NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.
October 15, 2010
The display of an attorney's for-profit educational courses and materials should not be allowed in the court clerk's office or in any area the public may perceive to be under the court clerk's control or other court staff's control.
References: MCJC 2A, 2B, 2C, 4, 5F; JI-76
A number of judges have asked about the propriety of permitting an attorney to display in or around the court clerk's office information about the attorney's educational courses and materials designed for pro se individuals involved in family law matters. The course has been adapted to apply specifically to that court's jurisdiction. There is a fee for the course and course materials for any person who desires to attend. The attorney offering the course is not accepting any course attendees as clients. No judge or court employee is involved in any way in the course or production of the materials and no judge or court employee would make any recommendations or suggest anyone attend.
MCJC 4 states:
As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, the judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law.
A judge, subject to the proper performance of judicial duties, may engage in the following quasi-judicial activities:
A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.
A judge may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice, and may otherwise consult with such executive or legislative body or official on such matters.
A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. A judge may assist such an organization in raising funds and may participate in their management and investment, but should not individually solicit funds. A judge may make recommendations to public and private fund-granting agencies or projects and programs concerning the law, the legal system, and the administration of justice.
Activities which enhance public knowledge about the law, or that contribute to the improvement of the law, the legal system and the administration of justice are clearly encompassed by the terms of MCJC 4.
MCJC 5F states:
Practice of Law. A judge should not practice law for compensation except as otherwise provided by law.
JI-76 permitted a judge to write an article for an educational pamphlet on divorce, concluding that such an activity qualified as an activity "for the promotion of the law" under MCJC 4A, provided that it comports with MCJC 5C, and provided further that the product distributed does not constitute the practice of law in contravention of MCJC 5F, referencing State Bar v. Cramer, 399 Mich 116 (1976), MCL 450.681, and MRPC 5.5. Allowing a display of the course materials in a common area where non-court personnel may make information available to the public does not constitute the practice of law by a judge in the courthouse in contravention of MCJC 5F. To minimize any potential misconception that any judge endorses the course or has authored the materials, the display or informational material should clearly identify the author (which may be an individual, firm, or company).
MCJC 2A states:
Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. 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.
MCJC 2B states:
A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person's race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect.
MCJC 2C states:
A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not use the prestige of office to advance personal business interests or those of others. A judge should not appear as a witness in a court proceeding unless subpoenaed.
The display of an attorney's for-profit educational courses and materials should not, however, be allowed in the court clerk's office or in any area the public may perceive to be under the court clerk's control or other court staff's control. Notwithstanding the educational nature of the materials and even where the author's name is clearly displayed, display of material the sale of which promotes an attorney's business interests in such an area could be perceived as violating MCJC 2A concerning a judge avoiding all impropriety and any appearance of impropriety, as well as MCJC 2C, concerning judges using their prestige of office to advance personal business interests of others because the court clerk's office is an arm of or under the control of the court.