JI-97

November 21, 1994

SYLLABUS

A part-time magistrate is not per se disqualified from representing the funding unit of the magistrate's court in a civil matter in the circuit court. The magistrate is required to analyze each situation on a case by case basis to determine whether representation is permitted.

If the part-time magistrate is disqualified from handling a private case because of lawyer ethics rules, members of the magistrate's law firm are also disqualified from handling the matter unless the particular ethics rule disqualifying the part-time magistrate allows other firm members to participate after proper screening, fee apportionment, and notice. If the part-time magistrate is disqualified from handling a private case because of restrictions applicable only to magistrates and not found in lawyer ethics rules, the disqualification is not imputed to other firm members.

Firm members may handle matters before the part-time magistrate's court. The part-time magistrate is disqualified from any matter in which a member of the firm appears.

References: MCJC 5C, 5E, 5F; MRPC 1.7(b), 1.11(a), 1.12(a) and (c); RI-1, RI-126, RI-129; JI-29, JI-42, JI-56, JI-77; JTC A/O 93; MCR 2.003(B), MCR 4.401(C); MCL 600.8525, MSA 27.8528.

TEXT

A part-time magistrate of a district court also serves as a lawyer representing the court's funding unit in civil litigation which is usually pending in the circuit court of the same county. An opinion has been requested of the Committee which addresses the propriety of this practice. The inquirer also asks about the types of cases members of the part-time magistrate's law firm may take.

This Committee is not designed to interpret the law, and therefore, any references to any law is done for the purpose of addressing possible ethical issues. It is obvious that as a result of the dual role of lawyer and as a judicial officer, both the Michigan Rules of Professional Conduct and the Michigan Code of Judicial Conduct must be considered.

Private Practice by Magistrates

This Committee has consistently determined that part-time judicial officers are not per se prohibited from the private practice of law. JI-29, JI-42, JI-77 and RI-1. The ethics rules do not per se prohibit a magistrate from appearing as advocate for a party before any court, RI-1, R-13. We noted in JI-77, however, that Michigan statutes do preclude magistrates from the practice of law in the district court for the district in which the magistrate serves. MCL 600.8528; MSA 27.8528; MCJC 5F.

Magistrates are not prohibited from practicing law in other courts within the county or other district courts outside of their particular district. Part-time magistrates are subject to the administrative control of the presiding chief judge of the district court. MCR 4.401(c). The general duties of a magistrate usually consist of criminal arraignments, disposition of civil infractions, and disposition of civil small claims. It would appear that the only matter which could carry over to the circuit court would be the criminal arraignments on felony offenses. To the extent any other matter would carry over from the magistrate's court to the circuit court, MRPC 1.11(a) states:

"Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which the lawyer is associated may knowingly undertake or continue representation in such a matter, unless:

"(1) the disqualified lawyer is screened from and participation in the matter and is apportioned no part of the fee therefrom; and

"(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule." Emphasis added.

If the magistrate participated personally and substantially in a matter as magistrate, the magistrate could not represent a private client in the matter without complying with MRPC 1.11(a). Furthermore, if the matter which carries over to the circuit court involves the same parties, MRPC 1.12(a) states:

"(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, unless all parties to the proceeding consent after consultation." Emphasis added.

Once it is determined that the part-time magistrate may represent a particular client in another court, there are additional ethical principles to consider. First, MCJC 5E would preclude a part-time magistrate from serving as "an arbitrator or mediator, except in the performance of judicial duties." Secondly, any information acquired by the lawyer while serving as a part-time magistrate should not be used in financial dealings or for any other purpose not related to the part-time magistrate's duties as a judicial officer. MCJC 5C; JI-77. Thirdly, the part-time magistrate is obligated to "screen for conflicts" before undertaking the private representation of a client, and should not proceed if delivering services regarding that claim will be materially limited by the lawyer's responsibilities as part-time magistrate. MRPC 1.7(b); RI-126, RI-129. There may be other ethical considerations triggered in a particular case. As stated in JI-77 in citing MRPC 7.1 and 8.4:

"Finally, additional practical steps should be taken to avoid the appearance of impropriety. One example would be the removal of signs or nameplates and other indications of the quasi-judicial status of part-time quasi-judicial officers when they are conducting trials as private attorneys in the same jurisdiction so that prospective jurors do not accord greater credibility to them because of their quasi-judicial status. Another suggestion would be that participants in trials refrain from informing jurors of any quasi-judicial role played by lawyers involved, whether in the jurisdiction in which the lawyers are serving or otherwise."

Magistrate Duties Affected by Private Practice

MCJC 5C states in pertinent part:

"(1) A judge should refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality or judicial office, interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.

" . . .

"(3) A judge should manage investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as it can be done without serious financial detriment, the judge should dispose of investments and other financial interests that require frequent disqualification.

" . . . ." Emphasis added. See also, J-3.

The magistrate's law practice is a "financial interest" under MCJC 5C. If the magistrate's connection with the law practice results in frequent disqualification, it is the magistrate's duty to take steps to minimize the number of instances of disqualification. These steps could include redirecting the law firm's caseload to cases which do not come before the magistrate, referring cases to other counsel, screening the magistrate from financial gain from the matters, and perhaps ultimately resigning from the law firm.

The part-time magistrate may not preside over matters in which the magistrate participated personally and substantially as a lawyer. MRPC 1.11(c); MCR 2.004(B)(3); RI-1. Further, the magistrate may not preside over matters in which a member of the magistrate's firm appears MCR 2.003(B)(4). It should be noted that MCR 2.003 prohibits the participation of the magistrate; the court rule does not disqualify the firm members from appearing. For further discussion of disqualification for financial interest, see C-228, J-4, JI-6, JI-13, People v. Perkins, 193 Mich App 209 (1992).

Representing the Court Funding Unit

The magistrate asks whether it is proper to continue to represent the court's funding unit in civil matters. R-15 discusses a lawyer not merely representing, but actually serving on a court's funding unit and practicing before the funded court. The lengthy analysis in that opinion concludes:

"Though the situation is fraught with potential for abuse, MRPC 3.5(a) and 8.4(d) both require that the lawyer have taken affirmative steps to improperly influence the proceedings. The Committee finds no rationale for barring the lawyer, under all circumstances, from appearing before these courts absent proof that abuse has actually occurred.

"This being the case, there are clearly circumstances in which, on a case by case basis, a disinterested lawyer could reasonably believe the representation of the private client will not be adversely affected by the lawyer's public duties, and the lawyer would be able to seek client consent to the representation after disclosure of the potential conflict pursuant to MRPC 1.7(b)(1) and (2)."

In the present inquiry, the part-time magistrate currently represents the municipality in which the magistrate's court sits in civil litigation in circuit court. Analyzing the lawyer's duties under MRPC 1.7(b), the magistrate would be prohibited from continuing the representation if it would be "materially limited" by the magistrate's public duties. MCJC 1 and 2 warn a judge not to participate in activities which could affect the impartiality or independence of the magistrate's judgment as adjudicator. It could be argued that, because the city is the magistrate's private client, the magistrate might be more likely to find for the government in criminal and civil matters arising before the magistrate. If so, there could be an appearance of bias which might merit a disqualification of the magistrate under MCR 2.003(B).

Following the rationale of R-15, however, and without a specific fact situation in which to apply the ethics rules to determine whether there is actual bias, we are unconvinced that the mere potential for abuse requires prohibiting all private representation of the funding unit by the magistrate. In theory, a lawyer may agree to represent a client in one matter but not agree with the client's position in an unrelated matter. If the representation of the funding unit is a single, isolated representation, on a civil cause of action over which the magistrate has no adjudicative jurisdiction, recusal of the magistrate in cases coming before the magistrate's court might not be necessary. If, on the other hand, the representation of the funding unit is protracted, an ongoing representation rather than a single case, or one which results in substantial financial impact on the magistrate's firm, the magistrate should analyze the ethical obligations to avoid frequent disqualification and financial conflicts.

For all the foregoing reasons, subject to a careful scrutiny of the law and applicable ethical rules for judges and lawyers, a part-time magistrate is not per se disqualified from representing the magistrate's district court's funding unit in the circuit court. The magistrate is required to analyze each situation on a case by case basis.

Imputed Disqualification

The fact that the magistrate personally is prohibited by statute from practicing before the magistrate's own district court is not imputed to members of the magistrate's law firm. Although such imputed disqualification was found in JI-42 for part-time probate judges, that disqualification was based upon a particular statute. MRPC 1.10(a) states:

"While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9(a) or (c), or 2.2."

Therefore the magistrate's law firm is not imputedly disqualified from representations unless the magistrate would be disqualified from the matter under MRPC 1.7, 1.8(c), 1.9(a) or (c), 2.2, or 1.11(a).