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.
November 3, 1989
A judge may, without compensation, provide limited legal advice or counseling to members of the judge's immediate family, but may not act as their advocate or negotiator, or make appearances as counsel for the family members.
A judge may without compensation draft a will for a member of the judge's immediate family.
A judge shall diligently wind up the judge's former law practice.
It is improper for a judge to provide legal advice to charitable/civic organizations on which the judge serves.
Judges have the same right to represent themselves as other citizens, and may appear pro se as a party before tribunals and in negotiations.
A judge may not appear as an attorney for family members in proceedings outside the state.
References: MCJC 2A, 5B, 5F; MRPC 1.7, 1.8, 1.9; CI-1079; MCLA 600.207, 600.307, 600.562, 600.820, 600.821; Matter of Ryman, 394 Mich 637 (1975); In Re Van Susteren, 262 NW 2d 133 (Wis 1978).
This request for an ethics opinion involves a series of questions pertaining to MCJC 5F, which states:
Similar statutory provisions concerning justices of the Michigan Supreme Court, judges of the Court of Appeals, and judges of the Circuit Court provide that they cannot ". . . practice as attorneys or counselors in any court of the state . . ." nor ". . . engage in the practice of law for compensation . . ." See MCL 600.207, MCL 600.307, MCL 600.562.
The provisions applicable to district and probate judges are worded differently. District judges and most probate judges, whose positions are regarded as full time, are forbidden to ". . . engage in the practice of law other than as a judge . . . ." See MCL 600.820 and MCL 600.821.
The ABA Model Code of Judicial Conduct flatly prohibits judges from engaging in the practice of law, but the Michigan Supreme Court expressly rejected the ABA Model language in favor of the present MCJC 5F. The difference in wording between MCJC 5F and statutory enactments applicable to justices of the Supreme Court, judges of the Court of Appeals and members of the Circuit Court Bench, on the one hand, and district and probate judges, on the other hand, raise issues concerning:
- The applicable "practice of law" standard; and
- Whether acts which would otherwise be prohibited are permissible if no compensation is received.
Matter of Ryman, 394 Mich 637 (1975) appears to answer these questions, at least inferentially. In Ryman, Justice Levin dissented and took issue with the majority finding that the respondent judge had continued the practice of law following assumption of judicial office. It was argued by Justice Levin that the same standard should govern the practice of law for district judges as other judges. Justice Levin therefore concluded that, since the respondent has not received "compensation for legal services" nor appeared as counsel in court, the respondent had not engaged in the improper practice of law. See 394 Mich at 648.
Although the controlling opinion in Ryman does not directly address the contentions of Justice Levin, the majority were obviously aware of (and must necessarily have rejected) them in finding that the respondent had wrongfully carried on the practice of law after assuming the bench. Consequently the Ryman holding must be understood to have determined that a judge may not practice law, whether or not the judge is compensated. As was appropriately noted in In Re Van Susteren, 82 Wis 2d 307, 262 NW 2d 133, 140 (1978):
"To hold that rendering legal services on a gratuitous basis is not a violation would serve to promote the consequences which the code seeks to avoid; the act of giving legal advice will erode the public confidence in the judiciary as effectively without the passage of remuneration as it will with remuneration." See also Shaman, Lubet, & Alfini, Judicial Conduct and Ethics, Michie Company, 1990, Sec 7.21, pp 190-195.
With this background, the Committee addresses the specific questions to which answers are sought.
I. MAY A JUDGE HANDLE A REAL ESTATE TRANSACTION FOR THE JUDGE'S SON-IN-LAW?
A real estate transaction may encompass any number of related activities. It may involve giving legal advice or counseling, negotiating, drafting, or reviewing documents and appearing at a "closing" or other occasion at which the documents are finalized. In this particular instance, it is unclear which activities might be required of the judge. Each activity would normally constitute the prohibited practice of law. They are legal in character, draw on the skill and expertise of a practitioner and would constitute part of an attorney's professional services were the attorney so engaged.
Other jurisdictions have arrived at similar conclusions. It has been held that judges may not draft documents, such as wills, property and support agreements in domestic relations matters, or mortgages and deeds. See In Re Van Susteren, 82 Wis 2d 307, 262 NW 2d 133, 140 (1978); Matter of Schwerzmann, 408 NYS 2d 187, 190 (1978); In Re Durr, 1 Ill Cts Comm'n 13 (1973). Functioning as a negotiator is also proscribed, as is the giving of advice on legal subjects in many instances. See Goldstein, Becoming a Judge: Problems With Leaving a Law Practice, 69b Judicature 88, 89 (1985); Shaman, Lubet, & Alfini, Judicial Conduct and Ethics, Michie Company, 1990, Ch 7.
An exception has been recognized by some authorities. In Texas it has been held that a judge could provide limited advice or counseling to close members of his family without being guilty of the improper practice of law. The judge could not, however, represent the relatives as counsel. See Tex Adv Op 47 (1979). Disciplinary authority in the state of New York espoused a similar view in finding no necessary impropriety where ". . . a Judge, without solicitation, in isolated instances, is asked by a relative, friend, or acquaintance for information, advice, or guidance in connection with a legal matter." See Matter of Schwerzmann, 408 NYS 2d 187 (1978).
Some authorities have recommended that judges be allowed to provide legal advice to and draft or review documents for a member of the judge's family, as long as the judge receives no compensation. See ABA Code of Judicial Conduct, 1990, Terminology Section, where "member of the judge's family" includes spouse, child, grandchild, parent, grandparent or other relative or person with whom the judge maintains a close familial relationship. MCR 2.003(B) would include all family members within the third degree of affinity or consanguinity.
On the basis of the foregoing authority our Committee concludes that a judge may provide limited legal advice or counseling to a son-in-law concerning a real estate transaction, including drafting or reviewing documents incident to the transaction. However, the judge cannot receive compensation for these services, may not function as advocate or negotiator, and may not make an appearance as counsel.
II. MAY A JUDGE DRAFT WILLS?
The drafting or preparation of legal documents such as wills has been held to constitute the improper practice of law. See In Re Durr, 1 Ill Cts Comm'n 13, 14 (1973); Matter of Katz, Unreported Determination (NY Comm'n March 30, 1984). See also, In Re Van Susteren, 82 Wis 2d 307, 262 NW 2d 133, 140 (1978).
Analogizing from the earlier discussion, a judge may draft wills for members of the judge's own immediate family, as long as it is without compensation. The drafting of wills for close family members, however, may raise attorney-client conflicts of interest. See, generally, MRPC 1.7, MRPC 1.8(c) and Comment. A judge engaging in permitted legal work is governed by the same rules as a lawyer and should proceed accordingly.
III. HOW LONG DOES A JUDGE HAVE TO WIND UP A FORMER LAW PRACTICE?
Upon becoming a judge, an individual must discontinue representation of clients. At the same time, a new judge must take appropriate steps to insure that the interests of clients are adequately protected.
The winding up process may entail turning outstanding work over to colleagues or referring matters to other attorneys. The situation may be complicated by transfer of contingent fee cases for which the judge will be paid for the work done prior to assuming the bench when the matter is finally settled or otherwise resolved. There may also be a sale of assets or transfer of stock in the partnership or professional corporation, in which the judge was a partner or shareholder, where provision is made for payment of the judge's interest over some designated period of time. For a general discussion of this subject see Goldstein, Becoming a Judge: Problems With Leaving a Law Practice, 69 Judicature 88, (1985). See also Matter of Ryman, 394 Mich 637 (1975), Justice Levin's Dissenting Opinion, pp 647-651; CI-1079.
It is evident that excessive delay in concluding a law practice may result in otherwise unnecessary disqualification where outstanding financial obligations are still owed to the judge or where matters which were referred by the judge remain uncompleted. A judge should encourage the diligent conclusion of these matters.
In Ryman, supra, Justice Levin observed that winding up was to be "completed diligently." 394 Mich at 650. While not decisionally binding, this is a fair statement of the applicable standard.
IV. MAY A JUDGE PROVIDE FREE LEGAL ADVICE TO CHARITABLE/CIVIC ORGANIZATIONS ON WHICH THE JUDGE SERVES IN SOME CAPACITY?
Canon 5B of the Code of Judicial Conduct provides that a judge may serve as "an officer, director, trustee, or non-legal advisor . . ." of educational, charitable, or civic organizations. By this choice of language, the Code authorizes the giving of "nonlegal" advice to such organizations by a judge. It also clearly forbids a judge to provide "legal advice" to charitable or civic organizations. The absence of remuneration has no bearing on the propriety of the conduct. Emphasis added. See Matter of Ryman, 394 Mich 637 (1975); In Re Van Susteren, 82 Wis 2d 307, 262 NW 2d 133, 139-140 (1978).
V. MAY JUDGES REPRESENT THEMSELVES IN PERSONAL MATTERS BEFORE TRIBUNALS OR IN NEGOTIATIONS?
There are differing views concerning the propriety of judges representing themselves in legal matters. As noted in Goldstein, Becoming a Judge: Problems With Leaving a Law Practice, 69 Judicature 88, 90-91, fn 21 (1985), two jurisdictions have held that while members of the judiciary may sue, they must be represented by counsel. See Ky Adv Op Je-32 (1981); Ala Adv Op 81-112 (1981). United States v. Martinez, 684 P 2d 509 (NM, 1984), held a judge could appear pro se in a criminal matter in United States District Court where the judge was defendant, without violating the prohibition against practicing law.
Some authorities have recommended a clarification of the ABA Model Code prohibition of practicing law along the following lines:
"This prohibition refers to the practice of law in a representative capacity and not in a pro se capacity. A judge may act for himself or herself in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with legislative and other governmental bodies. However, in so doing, a judge must not abuse the prestige of office to advance the interests of the judge or the judge's family." See ABA Model Code of Judicial Conduct 1990, Canon 4G.
Permitting judges to represent themselves may present some problems. However, the practice of law normally means the act of representing other persons, and judges are entitled to the same right to represent themselves as other citizens. Therefore, judges should be able to represent themselves in personal matters before tribunals or in negotiation, as long as this right is not abused and appropriate steps are taken to avoid the appearance of favoritism or impropriety, such as where the matter is in the judge's own court.
VI. MAY A JUDGE APPEAR AS AN ATTORNEY ON BEHALF OF THE JUDGE'S SPOUSE OUTSIDE OF THE STATE OF MICHIGAN?
While a judge may give legal advice to members of the judge's family (for no compensation), the judge may not make an appearance as counsel for, or function as an advocate or negotiator on behalf of, that family member. See discussion under part I.
The fact that the issue here presented involves an "out of state" appearance makes no difference. An impartial judiciary, in both fact and appearance, and whether in Michigan or outside the state, is essential to the administration of justice. The judge presiding over a Florida proceeding, for example, would be ruling on arguments which a fellow judge, albeit from a different state, would be advocating. The appearance of impartiality would be blemished. As was noted by Justice Levin in Ryman, "The judge might be tempted to take or be seen as taking unfair advantage of his office." 394 Mich at 649. Advocacy is inconsistent with the judicial office and prohibited completely, except for pro se matters. The absence of compensation and the locus of the proceeding do not mitigate the prohibition.