April 3, 1992
A judge serving on the board of directors of a nonprofit legal aid organization is required to disclose the relationship when one of the parties appearing before the judge is represented by a lawyer from the legal aid organization.
References: MCJC 1, 2A, 2B, 3C, 5B; MCR 2.003(B); JI-38.
A judge serving on the board of directors of a nonprofit legal aid organization asks if the judge must disclose the relationship every time a lawyer from the legal aid organization appears before the judge in an adversary proceeding, and, if disclosure is required, whether the judge must recuse upon request of any party, or only when recusal is requested by the party who is not represented by the legal aid lawyer.
JI-38 permits a judge to serve on the board of directors of a nonprofit legal aid organization providing legal services to indigents. In reaching that result, the opinion distinguished cases in which the legal aid organization itself is a party in adversary proceedings from cases in which a lawyer employed by the legal aid organization appears in adversary proceedings on behalf of a legal aid client. In the former situation, the judge would be prohibited from serving on the board by MCJC 5B, while in the latter situation the judge would not be prohibited from serving on the board.
We are now asked whether notice to the parties or recusal is required, when a judge who serves on the board of a legal aid organization presides in a matter in which a lawyer from the legal aid organization appears on behalf of a legal aid client, i.e., is there a duty to advise the parties and their counsel of the judge's extra-judicial relationship with the legal aid board.
MCJC 3C encourages judges to raise the issue of disqualification whenever a judge has cause to believe disqualification is required by MCR 2.003(B), which states in part:
"A judge is disqualified when the judge cannot impartially hear a case . . . ."
MCR 2.003(B)(2) requires recusal if the judge "is personally biased or prejudiced for or against a party or attorney."
We do not believe there is any ethical requirement to per se disqualify the judge when one of the parties in a proceeding before the judge is represented by a lawyer from the legal aid organization. We doubt that a reasonable person would conclude that a judge could not fairly and impartially adjudicate a matter in which the organization has no personal interest in the outcome other than to ensure that the staff lawyers provide quality representation for its legal aid clients.
As discussed in JI-38, if the legal aid organization has a personal interest in the proceeding, pecuniary or otherwise because of commitment to the particular causes or the enforcement of its own policies, then the judge must recuse from hearing the case or deciding the issue. To sit in judgment on such matters would reflect adversely on the judge's impartiality contrary to MCJC 1 and 3C, and could result in the appearance of impropriety contravening MCJC 2A.
Whether in all instances the judge must raise the issue of disqualification by a disclosure of the legal aid directorship is less clear. At all times judges must conduct themselves in a manner that promotes public confidence in the integrity and impartiality of the judiciary, MCJC 2B. A judge's friends, social and business acquaintances, and colleagues from clubs and civic and religious organizations of which a judge may be a member, are likely to enhance the judge's ability to make informed decisions. Unfortunately, those same experiences may affect the judge's impartiality and give rise to conflicts of interest. The judge may have little or no perception of being influenced by conflicting considerations.
Thus, when a legal aid attorney working for the organization on whose board the judge sits as director appears before that judge, the judge is required to disclose the relationship on the record.