March 6, 1992
A hearing panelist of the Attorney Discipline Board is disqualified from proceedings in which an advocate is within the third degree of consanguinity or affinity to the hearing panelist.
A hearing panelist is not automatically disqualified from hearings in which a relative is a member of an advocate's firm but not participating in the particular matter. In such situations, however, the relationship should be disclosed to all parties to allow them to raise the issue of disqualification if they so choose.
References: MCJC 1, 2A, 2C, 3C; R-3; J-4; JI-31; C-216; CI-605, CI-686; MCR 2.003, 9.115(F)(2)(a).
The Attorney Discipline Board requests an opinion regarding disqualification of a hearing panelist of the Attorney Discipline Board from proceedings involving unrelated counsel of the Attorney Grievance Commission, when the child of the panelist is employed by the Attorney Grievance Commission.
The language of MCR 9.115(F)(2)(a) governs the disqualification of a hearing panelist, and states that "the motion to disqualify shall be decided under the guidelines of MCR 2.003."
By such language, MCR 9.115 has directed that the hearing panelist will be subject to the rule governing disqualification of a judge, even though the hearing panelist is in fact not a judge or judicial officer. Therefore, for the purposes of this opinion we will treat the role of the Attorney Discipline Board member as that of a judge in terms of whether disqualification is appropriate.
MCR 2.003 provides the following grounds for disqualification which are relevant to this opinion:
"(A) Who May Raise. A party may raise the issue of a judge's disqualification by motion, or the judge may raise it.
"(B) Grounds. A judge is disqualified when the judge cannot impartially hear a case, including a proceeding in which the judge
". . .
"(2) is personally biased or prejudiced for or against a party or attorney;
". . .
"(5) is within the third degree (civil law) of consanguinity or affinity to a person acting as an attorney or within the sixth degree (civil law) to a party;
". . .
"(7) is disqualified by law for any other reason."
MCR 2.003 is based on GCR 1963, 912, including Staff Comment .2(5), which made it clear that in order to be covered under this rule the lawyer must be acting "in the proceeding." Comment .2(5) states that "Attorneys performing legal functions not connected with a particular proceeding are excluded from coverage; only those attorneys who work directly on a case are covered by the language." Emphasis added.
Based on MCR 2.003, the hearing officer/parent would be automatically disqualified from any proceedings in which the hearing officer's child was involved. However, in the facts relevant to this opinion, the lawyer/child would not be acting in the cases in which the hearing panelist/parent would be hearing. For this reason MCR 2.003 would not per se disqualify the judge under these circumstances.
MCJC 3C states:
As we have discussed, MCR 2.003 would not require automatic disqualification of the hearing panelist/parent. However, as was discussed in C-216, it is imperative to have an impartial judiciary. For that reason, if there is ever in existence a relationship between the judiciary and a litigant, or one who represents a litigant, that may have the potential to effect the impartiality of the judicial officer, then the issue of disqualification should be raised. MCJC 1, 2A, 2C.
In the case of the parent/child relationship which exists here, the impartiality of the parent/hearing officer may be subject to scrutiny even if the cases the parent/hearing officer hears are ones in which the Grievance Administrator is represented by an associate counsel other than the hearing panelist's child. It is important to ensure that such potential for impartiality is not allowed to undermine the authority of the Attorney Discipline Board. It is possible that, rightly or wrongly, defendants could use this as a basis for appeal.
For that reason, the Committee would recommend that the relationship be disclosed to all parties to enable them to raise the issue of disqualification if they feel there is partiality as a result of the employment of the lawyer/child by the Attorney Grievance Commission. This is consistent with our recommendations in previous opinions where relatives of the presiding adjudicator were member's of an advocate's law firm, but not participating in the case heard by the adjudicator. See, e.g., R-3; JI-31; J-4; ABA i1372; ABA i1260; JTC A/O 36, JTC A/O 60; CI-605; CI-686. However, the parent/hearing officer is not required by MCR 2.003, nor by any part of the Michigan Code of Professional Responsibility or the Michigan Code of Judicial Conduct to disqualify the parent/hearing officer from hearing cases as a hearing panelist when the Grievance Administrator is represented by an advocate unrelated to the hearing panelist.
In summary, although the hearing panelist/parent will be automatically disqualified from any case in which an advocate is within the third degree of affinity or consanguinity to the hearing panelist, the hearing panelist is not automatically disqualified from hearings in which a relative is a member of an advocate's firm but not participating in the particular matter. In such situations, however, the relationship should be disclosed to all parties to allow them to raise the issue of disqualification if they so choose.