JI-126

January 25, 2002

SYLLABUS

Part-time Family Court Referees may not represent private clients in domestic relations matters before the circuit judge who appointed the family court referee and before the family court judges who supervise the referee's performance and hear appeals from the part-time lawyer/referees decision in domestic relations matters as the judge is disqualified from hearing the matters presented by the family court referee.However, part-time family court referees may represent private clients in domestic relations' matters in the circuit in which they act as referee if the parties have waived the disqualification of the judge pursuant to MCR 2.003(D), or if there is a visiting judge presiding over their matters. Part-time family court referees may represent private clients in all other matters within the jurisdiction of the circuit court.Part-time family court lawyers referees may not represent private clients before other part-time family court referees presiding in the same circuit as the advocate lawyer referee.Lawyers who share office space, receptionist, and secretaries but who maintain entirely separate law practices under their individual names are not per se disqualified from representing private clients before another office sharer serving as a part-time family court lawyer/referee.

References: MRPC 1.6, 1.11(a) & (c), 1.12(a); MCJC 1, 2A, 2C, 3C, 5C, 5F; RI-1, RI-249; JI-29, JI-42, JI-56, JI-77; MCR 2.003; MCL 552.501, 552.507, 600.8525.

TEXT

Two part-time family court lawyer referees seek ethical guidance on representing clients in the circuit in which they preside. Family court referees are responsible for making factual determinations and recommendations and rulings with regard to support, custody and visitation disputes.

The part time family court referees have been appointed by the chief judge of an upper Michigan lower peninsula circuit court to hear pre-and-post judgment domestic relations matters for "up to three days per month." All family court referee's recommendations are subject to de novo review upon written request of either party or upon motion of the court.

Lawyer/referee A maintains a private practice office outside the circuit in which A serves as referee. Lawyer/referee B has a private practice office within the jurisdiction of B's appointment. Both lawyer referees represent private clients in civil matters in various courts within the circuit in which they preside. Lawyer B does some criminal defense work in circuit of appointment. They inquire:

1. May a part-time family court lawyer/referee represent private clients in family law matters before:
   1. the circuit judge who appointed the person to the position of family court referee?
   2. the family court judges who supervise the referee's performance and hear the appeals from referee decisions in domestic relation matters?
   3. The other family court lawyer/referee?
2. If the answer to any of the preceding questions is "no," does the prohibition extend to other lawyers practicing with the part-time lawyer/referee?

The position of domestic relations referee is a quasi-judicial office created by the Friend of the Court Act of 1982, P.A. 295 as amended by P.A. 1996 No. 366, MCL 552.501, MSA 25.176(a) et seq. The statute creating a circuit court judge's authority to make referee appointments specifically authorized the appointment of private practitioners, MCL 552.507.

Thus, by implication, it would appear that the law condones domestic relations referee's private practice of law. In JI-77 the Committee opined:

"Other statutes which contemplated the appointment of lawyer referees on a casual or part-time basis seem to imply that the appointee will not relinquish the private practice in the jurisdiction being served or elsewhere."

However full-time quasi-judicial officers/referees are subject to the MCJC and are barred from the practice of law. Further MCL 600.8525 prohibits lawyer/magistrates from practicing law in the district court in which the magistrate serves without a distinction between part-time and full time assignment. There is no statutory prohibition against the practice of law by part-time family court referees. The committee has previously opined that "part-time probate or circuit court referees may practice law in the district where they serve" consistent with JI-29, JI-42, JI-77 and RI-1.

Ethics rules do not per se disqualify a part-time family court referee from appearing as an advocate for a party in any court. Because the lawyer/referee serves sometimes as adjudicator and at other times as advocate, the conduct of part-time family court lawyer/referees must conform to the ethical standards applicable to judicial officers and to private practitioners.

In JI-56, the Committee held that a prosecutor could not act as a part-time magistrate in another jurisdiction because doing so was contrary to the separation of powers required in the Constitution, would possibly violate MCJC 1, 2C, 5C(1), and MCR 2.003(B)(2), and would raise recurring issues of impartiality and bias.

In JI-77, the Committee approved the private practice of law by part-time court lawyer referees and circuit court lawyer-referees provided inter alia:

1. The private practice by a judicial officer does not violate any relevant provision of law. MCJC 5F.
2. The private practice does not result in frequent disqualification of the lawyer as a judicial officer. MCJC 3
3. The prestige of judicial office is not used to advance the private practice of law by the lawyer. MCJC 2C
4. The lawyer/referee does not act as a judicial officer in any matter in which the lawyer/referee participated personally and substantially as a private practitioner without the consent of all parties to the proceeding following consultation. MRPC 1.12(A) and JI-29
5. The lawyer/referee does not represent a private client in any matter in which the lawyer/referee acted personally and substantially as a judicial officer unless the family law division of the circuit court in which the referee presides consents after consultation. MRPC 1.11(a) and (c)
6. Information acquired as a judicial officer is not used or disclosed by the referee for any purpose unrelated to judicial duties. MCJC 5C
7. Client confidences and secrets obtained by the lawyer in private practice are not used by the referee in performance of judicial duties without client consent. MRPC 1.6
8. The representation of private clients by the lawyer is not materially limited by the lawyer's responsibilities as a domestic relation's referee and the lawyer reasonably believes the representation will not be adversely affected and the clients consent after consultation.
9. Avoidance of the appearance of impropriety such as references to the lawyer's status as a quasi-judicial officer in and about the lawyer's private practice office and when appearing in court in a private practice capacity.

The Michigan Rules of Professional Conduct do not restrict the geography or the courts in which a lawyer may practice. Therefore, subject to the foregoing ethical restraints, there is no reason why part-time family court lawyer/referees cannot practice in the circuit court on matters other than family law matters, i.e., general civil and criminal.

However, the circuit judge who made the appointment or the family court judge(s) who oversee the referee's performance and conduct de novo hearings relative to the referee's rulings and recommendations are disqualified from hearing matters presented by the part-time family court referee. The appearance of impropriety is difficult to remedy as the judge regularly relies on the work product of the part-time referee, may appear to give greater weight to arguments of the lawyer/referee employed by the court, may cause opposing counsel to be less aggressive out of a fear of offending either the judge or the lawyer/referee before whom he or she may next appear. This disqualification, however, is not absolute and may be waived by the parties. For example, MCR 2.003 lists six situations where a judge is disqualified from hearing a case. MCR 2.003(D) allows five of these disqualifications (the exception being the 'personal bias of the judge') to be waived by the parties if the parties, without participation by the judge, all agree that the judge should not be disqualified and the judge agrees to participate.

With regard to one part-time family court lawyer/referee appearing as a lawyer in a private matter before another part-time family court lawyer/referee presiding in the same jurisdiction as the lawyer/referee advocate, the practice is ethically inappropriate. As a judicial officer subject to the Michigan Code of Judicial Conduct, a family court referee is subject to public scrutiny and must avoid all impropriety and the appearance of impropriety. MCJC 2A. If the Committee were to conclude that a family court referee may represent private clients at hearings before another domestic relations referee serving in the same jurisdiction, it is foreseeable that a favorable ruling or recommendation for the lawyer/referee's client will be perceived as a form of professional courtesy coupled with the expectation of favored treatment if and when the presiding lawyer/referee appears in a representative capacity before the other part-time lawyer/referee. Such speculation is contrary to the independence and impartiality of justice and should be removed from the proceedings. Thus, it is improper for a part-time lawyer/referee serving in one circuit to represent private clients in proceedings before other part-time family court referees presiding in the same circuit just as it is improper to appear before the judge who employs them.

However, when lawyers share space, a receptionist and secretary, but maintain separate practices of law under their separate individual names and maintain separate letterhead, telephone numbers, fax lines, the sharing relationship alone, without some additional factors does not prevent one lawyer from representing private clients before another office sharer serving as a part-time family court referee. As stated in RI-249, the commonality of sharing does not lead to the conclusion that lawyers sharing expenses constitutes a single law firm so long as the parameters for segregating law practices are maintained. Parameters include "(1) preservation of client confidences and secrets, (2) accuracy of communication about the relationship, (3) avoidance of improper solicitation of client referrals, (4) exercise of independent judgment regarding legal representation, (5) avoidance of conflicts of interest."