May 13, 2022
A full-time staff attorney or law clerk may not simultaneously serve as a part-time magistrate or referee, even in a different jurisdiction, when both roles may require performance during regular business hours.
References: MCJC 1; MCJC 2(A); JI-29; JI-42; JI-77; RI-1; MCR 6.003(4); MCR 9.201(B)(2).
Courts often employ magistrates and referees to assist in their daily course of dockets as provided for under state law and court rule. These positions may be full-time or part-time depending on the needs of the court. If the position is part-time, it is highly likely that the person whom the court hired to be the part-time magistrate or referee may seek other employment to supplement their income. A court has inquired if a judge’s full-time law clerk or staff attorney may also serve as a part-time magistrate or referee; specifically, whether the law clerk or staff attorney could perform their duties during normal business hours while also being “on-call” as a magistrate or referee for a different jurisdiction. When called, the law clerk or staff attorney would be required to take time off to act as a magistrate1 or referee. The issue that must be analyzed here is whether a person may serve in both positions, whether in the same or in a different jurisdiction, when both require work to be performed during normal business hours.
The position of magistrate or referee is considered a “judicial officer” or “judge” and is subject to oversight by the Judicial Tenure Commission. See MCR 6.003(4); MCR 9.201(B)(2). Therefore, a magistrate’s and a referee’s (also known as a quasi-judicial officer) conduct is governed by the Michigan Code of Judicial Conduct.
Same Jurisdiction Analysis
An attorney may not serve as both a full-time law clerk or staff attorney and a part-time magistrate or referee within the same jurisdiction. Michigan Code of Judicial Conduct (MCJC) 2(A) states in part:
A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
The potential of an appearance of impropriety is great when an attorney serves as a law clerk or staff attorney while simultaneously serving as a quasi-judicial officer in the same jurisdiction. For example, if a part-time magistrate serves as the judicial officer during an arraignment in the district court and then provides legal research to the judge of the circuit court (or district court depending on the type of case) and drafts a proposed order, it may have the appearance of impropriety due to the magistrate having made a judicial determination during the arraignment phase and thereafter being involved in or influencing the judicial decision-making process as a member of the judge’s staff at a later hearing. This type of scenario may cause a party to question the independence of each member of the judiciary and each step of the judiciary process as provided in MCJC 1, which states in part:
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. A judge should always be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary.
Different Jurisdiction Analysis
An attorney may not serve as both a full-time law clerk or staff attorney and a part-time magistrate or referee even in a different jurisdiction. A magistrate or referee serving in a different jurisdiction from the judge for whom they serve as a full-time law clerk or staff attorney encounters challenges when serving in both roles simultaneously. An attorney receiving compensation from work performed in one role while concurrently working and receiving compensation in another role from two different jurisdictions would appear improper to the public. Such conduct is prohibited under MCJC 2(A).
Further, allowing a part-time judicial officer, regardless of employment status, salaried or independent contractor, to take leave time to perform duties outside of regular business hours does not remove the appearance of impropriety and may further implicate human resources questions.2 For example, what does the attorney do if they run out of leave time, and they are called to perform their magistrate or referee duties? Do they perform the work while being paid by both jurisdictions? Do they not answer the call? This scenario raises many questions. Any person who is not privy to the terms of the employment relationship may reasonably expect an individual who works for a judge full time to be expected to perform their duties during normal business hours. Therefore, the perception of an attorney being compensated by two jurisdictions concurrently provides an appearance of impropriety. It further brings a question of independence of the judiciary for example, if a case needs to be transferred from one county to another (the county in which the attorney serves as a part-time magistrate or referee) due to a potential conflict or a change of venue motion. Such appearance of impropriety is prohibited under MCJC 2(A).
This committee has consistently found that part-time judicial officers are not per se prohibited from the private practice of law.3 However, it has not analyzed, until this opinion, whether a part-time judicial officer may simultaneously work within the same or in a different jurisdiction as a judicial law clerk or judicial staff attorney. A part-time magistrate or part-time referee is subject to the Michigan Code of Judicial Conduct and therefore, must avoid the appearance of impropriety and maintain the independence of the judiciary. Therefore, under MCJC 1 and MCJC 2(A), and following review of this committee’s previous ethics opinions, it is ethically prohibited for an attorney to simultaneously serve as a full-time judicial law clerk or staff attorney and as a part-time magistrate or referee in the same or different jurisdiction.
1. A district court may appoint a non-attorney magistrate under Shadwick v City of Tampa, 407 US 345, 350-353 (1972). This opinion focuses on an attorney being hired as a part-time magistrate or referee and a full-time law clerk or staff attorney, but should also be considered in regard to the appearance of impropriety when employing a non-attorney magistrate.
2. Research should be conducted on human resources management, which is outside the jurisdiction of this committee.
3. Part-time judicial officers may engage in the practice of law under limited restrictions. See JI-29, JI-42, JI-77, and R-1.