May 11, 1990


    A judge is not disqualified from presiding over matters in which a member of the judge's former law firm appears while the judge receives payments from an independently administered pension plan.

    References: MCR 2.003; C-228; CI-293, CI-890, CI-1079.


Upon becoming a judge in 1983, the inquirer arranged with the former law firm for a buy-out of the judge's interest in the law firm. The judge was advised by the former firm in 1987 that the last payment of the buy-out had been made, and in 1989 that the last distribution of the judge's share of the firm's independently administered pension plan had been made. Pursuant to MCR 2.003(B) and CI-293, during the period the judge was receiving payments from the firm the judge recused from hearing matters in which members of the former firm appeared. After notification of "final distribution" the judge resumed hearing such cases.

In early 1990 the judge received an unanticipated letter enclosing additional pension benefits. The additional benefits appear to be due to a change in the corporate structure of the pension insurer, and not to any negligence on the part of the former firm or the judge. The judge fears that by retaining this and perhaps other disbursements, the judge has violated ethics rules disqualifying the judge from the firm's cases. In addition, the judge has presided over a case in which a former firm member appeared, but has yet to render judgment; the judge asks whether to render judgment or to have the case reassigned.

A judge is precluded from hearing cases involving members of the former firm as long as the judge is receiving payments from the firm on stock, CI-293, purchase of the judge's interest, CI-1079, real estate, CI-890, or fees for casework, C-228, CI-1079. MCR 2.003(B) imposes a flat prohibition against the judge hearing cases in which former firm members appear for two years after assuming the judicial office, but not two years after receipt of the last payment from the former firm.

In this instance the "late payment" is not from the former law firm of the judge but from the insurance company. Since the former law firm is not making the payment, does not control the funds, and was not responsible for the timing or amount of the payments, the judge need not recuse from matters in which the former law firm appears while receiving payments from the independently administered plan.