JI-129

December 15, 2003

SYLLABUS

Lawyer/referees who perform public agency functions in addition to their referee functions must measure the propriety of their conduct against the ethical considerations that are applicable to both adjudicative officers and lawyers serving as a public officer or employee.

A part-time FOC referee may not ethically participate personally and substantially in an extrajudicial role that is inconsistent with his or her judicial role.

A lawyer may communicate with the opposite party provided MRPC 4.2 and 4.3 are complied with.

References: MRPC 1.6, 1.12(a), 4.2, 4.3; MCJC 2A, 2C, 3C; RI-1, JI-29, JI-42, JI-77, JI-126; MCR 2.003; MCL 552.507.

TEXT

A lawyer/referee for the Friend of the Court performs referee functions as set forth in MCL 552.507. This same lawyer performs enforcement functions for the Friend of the court such as screening show cause petitions in an attempt to negotiate a resolution, presentation of evidence, advocating a finding of civil contempt, and requesting payments for release to a judge. The referee asks:

1. Is it a conflict of interest to take an enforcement role on cases over which I have presided or will preside as a referee, where I will be called upon to make decisions with regard to child support, child custody, and parenting time?
2. Is it a conflict of interest for me to meet with an individual on a show cause petition and ask him or her questions and then appear as his or her adversary potentially using information against him or her that I gathered during the screening process?

Since this lawyer/referee performs other functions than referee functions as set forth in MCL 552.507, in reality this lawyer is an adjudicative officer part of the time and a lawyer for the Friend of the Court part of the time. See JI-128 where this committee opined that a full-time Circuit Court attorney referee may not act in the dual capacity of referee and also as an advocate in contested matters. See also MRPC 1.12(a) where it is provided that a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as an adjudicative officer, unless all parties consent. Therefore "the propriety of conduct by the lawyer/referee . . . must be measured against the ethical considerations which are applicable to both judicial officers and attorneys . . ." serving as a public officer or employee. RI-1.

The Committee opined in JI-29 that:

"While serving as referee the lawyer is bound by the Michigan Code of Judicial Conduct. As a judicial officer, the referee must avoid even the appearance of impropriety and bias for or against a party, MCJC 2A; MCR 2003. As a judicial officer, the referee must manage extra judicial activities to minimize the number of cases in which the referee would be disqualified. The guarantee that disqualifying contacts are minimized may require a provision in the attorney's contract that would give priority to referee duties when it is likely and foreseeable that actions of the liaison attorney would come before the referee. Not only might such a contract term be unacceptable to the contracting board, but the lawyer might not be able to identify such situations until client confidences and secrets have been exposed to the liaison or the liaison has already participated personally and substantially.

"The Committee is not a fact-finding body. Based upon the information furnished, the Committee is not prepared to opine that a lawyer is per se prohibited from serving as liaison attorney and as domestic relations referee. It is crucial, however, that the lawyer, the appointing judge, and the contracting board closely examine the practical consequences and potential conflicts of such a dual service, and make provisions for those instances in which the lawyer may not serve one or another of the functions in a particular matter."

After JI-29, the Committee in JI-77 approved the private practice of law by part-time probate or circuit court referees "in the district where they serve, however may only do so consistent with JI-29, JI-42 and RI-1." The condition under which this conduct may be done was summarized in JI-126. Most of these conditions apply when the two positions held by the lawyer are that of a public officer and a referee. And most of these conditions are violated when a referee attempts to perform enforcement functions as a FOC lawyer. Those two roles are ethically inconsistent.

1. Practice as a FOC lawyer in an enforcement role may result in frequent disqualification of the lawyer as a judicial officer. MCJC 3 and MCR 2003.
2. The prestige of judicial office as a referee must not be used to advance his or her practice as an FOC lawyer. MCJC 2C.
3. The lawyer/referee must not act as a judicial officer in any matter in which the lawyer/referee participated personally and substantially as an FOC lawyer in an enforcement role without the consent of all parties to the proceeding following consultation. MRPC 1.12(a) and JI-29.
4. The lawyer/referee may not represent the FOC in an enforcement role in any matter in which the lawyer/referee acted personally and substantially as a judicial officer.
5. The referee in performance of judicial duties without client consent must not use information obtained by the lawyer for the FOC from the client. MRPC 1.6.
6. Avoidance of the appearance of impropriety as to the lawyer's status as a quasi-judicial officer and also as to the lawyer's representation of the FOC in an enforcement role.

In the letter requesting this opinion, the observation was made that "some counties attempt to safeguard against conflicts of interest by assuring that: 1) attorney referees do not take an enforcement role on cases assigned to them as referees and 2) a different attorney referee handles the show cause action before the judge than the attorney/referee who presided over the show cause hearing or met with the respondent informally at the Friend of the Court office." The real issue here is not one of conflict of interest but is one of inconsistency of roles and the erosion of the public's confidence in the impartiality of the legal system. Every party is to be afforded due process of law and the operation of lawyers in inconsistent roles must not be viewed as eroding this fundamental guarantee.

It does not violate ethics rules when a referee meets with an individual on a show cause petition and asks the individual questions and then appears as his or her adversary, using information against the individual that was gathered during the screening process. The screening process described is one in which the attorney for the FOC is communicating with a person, whether represented or not, with regards to a matter in which the FOC has taken a contrary position or recommends taking an action against said persons interests. Such communication may take place as long as MRPC 4.2 and 4.3 are complied with.