JI-114
June 17, 1997
SYLLABUS
A part time lawyer magistrate may practice law and be "of counsel" to a law firm. The magistrate is disqualified from hearing any matters where a member of the law firm appears, and may not practice in the court where the magistrate sits.
References: JI-77, JI-97; RI-102, MRPC 1.10, 1.12; MCR 2.003(B); MCLA 600-8525; A/O 80.
TEXT
A part time attorney-magistrate in a district court has been offered an "of counsel" position with a local firm that regularly practices before that same tribunal. The inquirer asks:
If a defendant is arraigned before the Magistrate or is the subject of a search warrant issued by that officer and a lawyer from the firm is later retained or appointed to represent the party, is there an ethical violation? Is there an appearance of impropriety because the necessary disqualification or recusal of the magistrate may be viewed as judge shopping?
May members of the magistrate's firm practice before the Court where the magistrate sits?
The direct answer to the question of ethical misconduct by the magistrate is, no. The magistrate will have done nothing except to arraign an unrepresented accused. Questions of ethics or improprieties would only arise upon the filing of an appearance by a lawyer from the firm for which the magistrate is "of counsel" "Of counsel" status should be regarded simply as membership in the law firm for the matters under consideration. RI-102; A/O 80. Recusal or disqualification of the judicial officer would answer any immediate questions of ethics or impropriety.
Frequent recusal or disqualification because of the appearance of an attorney from the part-time magistrate's firm, undoubtedly could raise questions of impropriety. Such a situation would provide increased opportunities for "judge shopping" not to mention interference with the efficient operation of the court. It would be the responsibility of the court administration to monitor the situation carefully and to take such steps as are needed to ensure the integrity and independence of the court (MCJC 1) and the impartial and diligent performance of its duties, MCJC 3.
Members of the part time magistrate's firm may appear in matters before the magistrate's court but not in cases where the magistrate is presiding. JI-77, JI-97. The inquirer's question suggests a possible contradiction in this request where it says "therefore, the magistrate's firm is not imputedly disqualified from representation unless the magistrate would be disqualified from the matter under MRPC 1.7, 1.8(c), 1.9(a) of (c), 1.11(a) or 2.2.
A lawyer magistrate is prohibited from practice in the court where the magistrate sits by MCLC 600.8525. The several references to the Michigan Rules of Professional Conduct that are cited have to do with specific areas of conflict of interest arising from the magistrate's practice of law as distinct from activities or responsibilities connected with judicial duties. It is in matters of practice where conflicts of interest might arise that would prevent the magistrate from representing a client that also prohibit members of the magistrate's firm from representing such a client. This situation is distinguishable from the blanket statutory prohibition of practice by the magistrate in the court where the magistrate sits.
A part time lawyer magistrate may practice law and be "of counsel" to a law firm. The magistrate is disqualified from hearing any matters where a member of the law firm appears, and may not practice in the court where the magistrate sits.