NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.

JI-66

March 26, 1993

SYLLABUS

A judge is not per se prohibited from serving on the board of a bona fide civic organization which accepts sentencing referrals from the judge or whose staff members testify in matters over which the judge presides.

A judge who serves on the board of an organization whose members appear as witnesses in proceedings before the judge must disclose the judge's membership on the board and recuse unless the parties ask the judge to proceed in the matter.

A judge whose affiliation with an organization results in frequent disqualification must resign from the organization.

A law clerk is not ethically prohibited from serving on the board of a bona fide civic organization which accepts sentencing referrals, and whose staff members testify in matters heard by the court which the law clerk serves.

References: MCJC 1, 2C, 3C, 5B; MRPC 8.4(e); JI-51, JI-61, JI-62, JI-64; JTC A/O 28, JTC A/O 100.

TEXT

Staff members of a civic organization provide counseling and temporary housing for rape victims, child abuse victims and other persons in need of such temporary support. Staff members frequently accompany victims to the court when the criminal charges are heard, to provide emotional support during the ordeal. When subpoenaed by counsel, staff members may testify in a particular case regarding the appearance, attitude, and other condition of the victim when the victim arrived at the shelter or during treatment at the shelter; other than testifying when called, the organization is not involved in proceedings or litigation. A presiding judge may also sentence defendants to assailant counseling with the organization.

A district court judge asks whether the judge and the law clerk of another district court judge from the same court may serve on the board of the organization.

MCJC 5B states:

"A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee, or nonlegal advisor of a bona fide educational, religious, charitable, fraternal or civic organization, subject to the following limitations:

"(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court.

"(2) A judge should not individually solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of his office for that purpose, but he may be listed as an officer, director, or trustee of such an organization. A judge may, however, join a general appeal on behalf of an educational, religious, charitable, or fraternal organization, or speak on behalf of such organization."

The questions which arise under the facts provided are (1) would the judge's participation with the organization "reflect adversely on impartiality," and (2) does the fact that members of the organization testify in matters presided over by the judge constitute the organization's "engaged in proceedings" before the judge or "regularly engaged in adversary proceedings"? In a particular case the district court judge could be evaluating the testimony of the organization's staff members and ruling on objections, sentencing a defendant to attendance at the organization's assailant counsel program, and serving on the board of the same organization, presumably establishing policies, approving types of counseling programs, addressing resources, etc.

Several ethics opinions address a judge's acquaintance with or relationship to a witness in a proceeding over which the judge presides. JI-61 opined that absent actual bias, a judge is not disqualified from presiding in a matter in which a part-time police officer who will be called as a witness is also a probation officer with the judge's court. JI-51 opined that a judge serving on the board of a legal aid organization is required to disclose that relationship when one of the advocates before the judge is a staff lawyer for the organization; after disclosure, the parties then have the option to move for recusal as they deem appropriate. JI-62 opined that absent actual bias, a judge is not disqualified from a case in which the organization employing the judge's spouse testifies, as long as the spouse has not participated in the preparation of the testimony.

Is the appearance of bias compounded by the fact that the judge sentences a defendant to the organization on whose board the judge sits? JI-64 addressed the ethical propriety of a variety of sentencing practices. With regard to this issue the opinion states:

"MCJC 2C forbids a judge from allowing the prestige of the judicial office to be used for the private interests of another person or organization. MCJC 1 requires a judge to maintain the independence and impartiality of the judiciary, free from outside interests. MCJC 5 allows judges to participate in avocational or charitable/civic activities, as long as they do not interfere with the performance of judicial duties. As long as these principles are observed and the judge does not personally benefit from referrals to a particular agency, there is nothing which would ethically prevent a judge from making sentencing referrals to an organization of which the judge is a member."

The opinion cites to JTC A/O 59 which held that a juvenile court judge who served on the board of a nonprofit children's hospital could refer children to that hospital for evaluation and treatment.

There is no evidence that the judge in this inquiry personally benefits from sentencing defendants to programs offered by this organization, or that a board member of the organization recognizes a personal benefit from any particular counselee. Without facts of a particular case, there is no evidence that a judge would not be able to evaluate the evidence presented and make a determination based upon controlling legal authority, regardless of the judge's membership on the board of a particular organization which accepts sentencing referrals from the judge.

Other situations which interpret MCJC 5B(1), i.e., whether the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court, have involved the organization as party or advocate, not as mere witness. Author E. Wayne Thode, Reporter's Notes to Code of Judicial Conduct, American Bar Association and American Bar Foundation, 1973, at page 79 states:

". . . The appearance to other litigants and the public of a lack of impartiality of a judge in a proceeding because a 'brother' judge is an officer or director of a litigating party is simply too strong to be permitted. If the regular appearances in court of an organization are not as an adversary, the limitation is inapplicable." Emphasis added.

Thus it appears that the language "engaged in proceedings" is not intended to mean mere participation as a witness, but is intended to mean the party or advocate for a party whose interests are being decided in the matter pending before the tribunal. MCJC 5B(1) therefore does not prohibit the judge from serving on the board of an organization merely because staff members of the organization appear as witnesses in proceedings before the judge or in adversary proceedings in other courts.

Considering these opinions together, it appears that impartiality is not per se placed at risk when a judge presides in a matter in which a member of an organization with which the judge is affiliated is a witness. We are unaware of any authority which suggests that a judge should always disclose the judge's membership on the board of an organization appearing as a witness. The mere fact that the judge may be otherwise acquainted with a witness in a proceeding before the judge does not automatically reflect adversely on the judge's impartiality.

The organization at issue in this fact situation, however, is committed to service of persons who have been subjected to abuse. The organization provides shelter and counseling in cases which involve the very allegations with which the defendants are charged. These are not witnesses to ancillary or peripheral factual matters, but witnesses who will testify directly to the appearance of the victim when arriving at the shelter, whether shelter has been provided to the victim on prior occasions, and the like, which have a direct bearing on the charges. Whenever a staff member of the organization is called to testify, the testimony is at the behest of the prosecutor, never at the behest of the accused. Although these facts do not make the testimony of staff members of the organization less credible in a particular case, the testimony is not "disinterested."

Seen in this light, the judge's affiliation with the organization, especially when combined with the judge's referrals to the organization, may give the appearance that the judge is predisposed to a particular viewpoint regarding allegations of abuse.

Two opinions of the Judicial Tenure Commission address situations in which a judge is assigned to preside over matters which relate to extrajudicial activities in which the judge participates. In JTC A/O 28 the Commission held that a judge who was a landlord could not preside over landlord-tenant cases. MCJC 3C would require the judge to raise the issue of disqualification in landlord-tenant matters and obtain consent of the parties before proceeding. In JTC A/O 100, the Commission prohibited a judge who presided over alcohol-related offenses from attending a vigil held by Mothers Against Drunk Driving (M.A.D.D.), reasoning that where a judge presides over alcohol-related offenses, involvement in the vigil could well reflect adversely on the judge's impartiality. Persons charged with drunk driving offenses have a right to expect that their cases will be heard before an impartial judge who has no preconceptions.

Under these facts, therefore, whenever a staff member of the organization is called to testify, the judge should disclose the judge's membership on the board of the organization and recuse unless the parties ask the judge to proceed. If the affiliation results in frequent disqualification, the judge should resign from the organization.

With regard to whether the law clerk of another judge of the same court may serve on the same organization's board, the Michigan Code of Judicial Conduct does not regulate the activity of those who are not judicial officers. MCJC 3B(2) does require a judge to direct staff and court officials subject to the judge's control to "observe high standards of fidelity, diligence and courtesy to litigants, jurors, witnesses, lawyers and others with whom they deal in their official capacity," but judges are not required to regulate an employee's activity outside the scope of the employee's official duties for the court.

If the law clerk is a licensed lawyer, the Michigan Rules of Professional Conduct apply. The lawyer ethics rules deal primarily with conflicts between duties a lawyer may owe to clients and duties owed to other clients [MRPC 1.7(a), 1.9, 1.13], to third parties or the lawyer's own interests [MRPC 1.7(b), 1.8(a)], as public officer [MRPC 1.11], as former judge or arbitrator [MRPC 1.12]. Whether the lawyer is serving as law clerk or as a member of the organization's board, the lawyer is not serving in a client-lawyer relationship and these ethics duties do not apply. MRPC 8.4(e) prohibits a lawyer from knowingly assisting a judge or a judicial officer in conduct that is a violation of the Michigan Code of Judicial Conduct or other law. If the law clerk is not yet a licensed lawyer, the Rules of Professional Conduct are not applicable.