November 4, 2022
Where a lawyer appearing before a judicial officer has divorced or has terminated a prior dating relationship, the judicial officer and the lawyer must disclose the prior relationship to all parties involved. The parties may request the judicial officer to continue presiding in the case after disclosure of the relationship and consultation. If there is no agreement for the judicial officer to continue presiding over the case, the judicial officer must hold a hearing under MCR 2.003 for possible disqualification.
Where a judicial officer and an attorney appearing before that judicial officer have a child in common, the judicial officer must disclose the relation to the parties and must engage in the disqualification analysis under MCR 2.003 unless all parties consent following disclosure and consultation.
References: R-3, CI-605; MCJC 2(A), 2(C), 3(A)(1), 3(A)(3), 3(C); MCR 2.003(C)(1)(g)
A judge inquires whether a lawyer may appear before a judicial officer whom they divorced or had a prior dating relationship several years ago and if so, whether there is a disclosure requirement to opposing counsel, whether an analysis under MCR 2.003 for possible disqualification is necessary, and if the amount of time from separation factors into the disclosure requirement. The judge further inquires whether having a child in common requires a disqualification analysis under MCR 2.003. Ethics opinion R-3 provides that a judge is disqualified from presiding over a case where their spouse appears as an advocate for either party. However, there are no current opinions that address the issue of a lawyer appearing before an ex-spouse judicial officer, for which this opinion seeks to provide guidance.
Ethics opinion R-3 provides that when a judicial officer is married to counsel, the judicial officer is disqualified unless the parties agree after disclosure and consultation. “Because of the importance of avoiding even the appearance of impropriety, a judge should always disclose to parties in a case before him or her if they are in a relationship with a lawyer for either of the parties.” See R-3; MCJC 2A and 2C. Further, R-3 analyzes conflict of interest rules under MRPC 1.7 and MRPC 1.8(i). Specifically, it states “[l]awyers should err on the side of caution and should disclose such relationships, or decline representation under MRPC 1.7(b), …” “[E]xistence of the marital relationship and all of the facts regarding the nature of the firms, the clients, and the case, create in the lawyer spouses or in the lawyers litigating the case a personal interest in the outcome of the litigation, the relationship and the nature of that personal interest must be disclosed to the clients pursuant to MRPC 1.8(i) and representation may be improper under MRPC 1.7(b).” Id.
Ethics opinion R-31, however, does not provide guidance on whether a divorce requires disclosure to the parties and it does not address whether a divorce impacts the rule of consanguinity/affinity including how the rule of consanguinity/affinity is affected when the lawyer and the judicial officer have a child in common. MCR 2.003(C)(1)(g) provides for the degree of relationship in which there are grounds for disqualification of a judge, which specifically states as follows:
(g) The judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;
(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.
Divorce or Termination of Relationship
While MCR 2.003(C)(1)(g) provides for the degree of relationship, it does not provide information as to how divorce or termination of a relationship affects the degree of relationship or impacts the rule of consanguinity/affinity. In further research, no Michigan case law or statute provides information as to how to handle disqualification between a judge and a lawyer who have had a previous relationship, nor does it provide information on whether divorce terminates the issue of consanguinity/affinity. Due to the lack of direction within current state law, this committee takes into account the guidance in R-3, the language in Canons 2A and 2C, and MRPC 1.7 and 1.8 to provide guidance on this issue. The committee opines that if an attorney appears before a judicial officer to whom they previously had been married but are now divorced, disclosure of the prior marriage must be made to all parties in order for the parties to be given the opportunity for proper consultation to determine if the parties agree to the judicial officer continuing to preside. Disclosure of the prior marriage provides all parties involved the opportunity to consult with counsel and determine whether they would agree to continue the case with the current judicial officer or motion the court to complete an analysis for possible disqualification under MCR 2.003.2
As R-3 states “where … a lawyer and a judge are cohabitating, the rules regarding married lawyers should be adhered to because the cohabitation relationship is akin in terms of intimacy, confidentiality, and shared interest to the marital relationship.” Following the same logic, the committee opines that if a judicial officer and a lawyer who appears before that judicial officer were in a prior dating relationship, disclosure must be made to all parties in order for the parties to have the opportunity to receive proper consultation and either agree with the judicial officer continuing to preside or to motion the court to disqualify under MCR 2.003.2
Divorce or Termination of Relationship with a Child in Common3
If the judicial officer and counsel appearing before them have a child3 in common, the committee opines that the judicial officer must disclose the family relation to all parties and must conduct the analysis under MCR 2.003. The age of the child is not a factor as to when disclosure must be made. Following the same logic as stated in R-3 earlier, the committee opines that disclosure must be made to all parties in order for the parties to have an opportunity to motion the court to disqualify the judicial officer or for the court to conduct the analysis under MCR 2.003 on its own accord. The committee further opines that once all parties have been informed of the family relation and have had an opportunity to consult with respective counsel, the parties may forego the MCR 2.003 disqualification analysis if all parties consent to the judicial officer continuing to preside over the matter. The court should avoid all appearance of impropriety or impartiality for any party in accordance with Canon 2(A) and (C) and Canon 3(A)(1) and (3).
Elapse of Time
In response to the inquirer’s issue of whether there is an amount of time where the judicial officer and the lawyer no longer need to disclose, the committee finds that there are no rules within the current rules of professional conduct or the judicial canons that provide a time frame as to disclosure in regard to conflict of interests or disqualification. Therefore, this committee opines that disclosure of the prior relationship has no time requirement and therefore the amount of timebetween the appearance and the divorce or termination of the relationship is of no consequence. Disclosure is necessary as the only two individuals that are aware of the circumstances for the termination of the relationship are the lawyer and the judge that were in the relationship and the reasons for termination of the relationship, or the lingering effects may influence the judicial officer’s decisions, even when not done intentionally. To ensure the neutrality of the bench, the court should avoid all appearance of impropriety or impartiality for any party in accordance with Canon 2(A) and (C) and Canon 3(A)(1) and (3).
Therefore, if a judicial officer and a lawyer appearing before the court have divorced or have terminated their prior dating relationship, disclosure must be provided to all parties in order for the parties to have the opportunity to motion the court for disqualification or for the court to raise the issue of disqualification under Canon 3(C). If all parties agree following disclosure and consultation to the judicial officer presiding, and the judicial officer sees no need to complete an analysis under MCR 2.003 for possible disqualification, the matter may move forward. Where a judicial officer and attorney appearing before the judge have a child in common, the judge must disclose the relation to all parties and must engage in the disqualification analysis under MCR 2.003 and MCJC 3(C) unless parties consent to the judicial officer continuing to preside over the matter. Disclosure of the child in common must occur regardless of the age of the child.
1. See also CI-605.
2. The court may, on its own accord, review the issue of possible disqualification under Judicial Canon 3(C) and MCR 2.003.
3. A child in common means through birth, adoption, or legal authority over a child as authorized by the probate court or the family court.