Michigan Judicial Disqualification Conflicts of Interest

8/9/2019 Michigan Judicial Disqualification Conflicts of Interest

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J-6September 20, 1996

SYLLABUS

The validity of ethics opinions issued prior to September 1, 1995, must be reevaluated in

light of amendments to the rules governing judicial disqualification.

A judge's disqualification under Michigan Rules of Court may be remitted by the partiesin any circumstance except personal bias or prejudice concerning a party.

References: MCJC 3C, 3D; MCR 2.003(B) and (D). The following opinions are affirmed: J-5; R-14, R-15; JI-6, JI-24, JI-28, JI-29, JI-31, JI-34, JI-35, JI-37, JI-43, JI-44, JI-50, JI-51, JI-57, JI-61, JI-62, JI-79, JI-86, JI-96, JI-97, JI-100; RI-1, RI-119, RI-121, RI-131, RI-166. Thefollowing opinions are distinguished: C-216, J-3, R-3; JI-39. The following opinions areaffirmed in part and superseded in part: JI-23, JI-102. The following opinion is affirmed inpart, distinguished in part, and superseded in part: J-4.

TEXT

The Committee has been asked to address the impact recent amendments to MCR 2.003,relating to judicial disqualification, may have on previous ethics opinions. The amendmentswere effective September 1, l995.

THE COURT RULE

Prior to September 1, 1995, MCR 2.003(B) provided that there were certain enumeratedgrounds when a judge could not impartially hear a case, and thereby, warranted a

disqualification:

"(B) Grounds. A judge is disqualified when the judge cannot impartially hear a case,including a proceeding in which the judge

"(1) is interested as a party;

"(2) is personally biased or prejudiced for or against a party or attorney;

"(3) has been consulted or employed as an attorney in the matter in controversy;

"(4) was a partner of a party, attorney for a party, or a member of a law firm representing

a party within the preceding two years;

"(5) is within the third degree (civil law) of consanguinity or affinity to a person acting asan attorney or within the sixth degree (civil law) to a party;

"(6) or the judge's spouse or minor child owns a stock, bond, security, or other legal orequitable interest in a corporation which is a party, but this does not apply to


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"(a) investments in securities traded on a national securities exchange registeredunder the Securities Exchange Act of 1934, 15 USC 78a et seq.;

"(b) shares in an investment company registered under the Investment CompanyAct of 1940, 15 USC 80a-1 et seq.;

"(c) securities of a public utility holding company registered under the PublicUtility Holding Company Act of 1935, 15 USC 79 et seq.;

"(7) is disqualified merely because the judge's former law clerk is an attorney of recordfor a party in an action that is before the judge or is associated with a law firmrepresenting a party in an action that is before the judge.

"A judge is not disqualified merely because the judges former law clerk is an attorney ofrecord for a party in an action that is before the judge or is associated with a law firmrepresenting a party in an action that is before the judge."

The Michigan Supreme Court amended MCR 2.003 in significant ways, effective

September 1, 1995. The current rule states:

"(B) Grounds. A judge is disqualified when the judge cannot impartially hear a case,including but not limited to instances in which:

"(1) The judge is personally biased or prejudiced for or against a party orattorney.

"(2) The judge has personal knowledge of disputed evidentiary facts concerningthe proceeding.

"(3) The judge has been consulted or employed as an attorney in the matter in

controversy.

"(4) The judge was a partner of a party, attorney for a party, or a member of a lawfirm representing a party within the preceding two years.

"(5) The judge knows that he or she, individually or as a fiduciary, or the judgesspouse, parent or child wherever residing, or any other member of the judgesfamily residing in the judges household, has an economic interest in the subjectmatter in controversy or in a party to the proceeding or has any other more thande minimis interest that could be substantially affected by the proceeding.

"(6) The judge or the judges spouse, or a person within the third degree of

relationship to either of them, or the spouse of such a person:

"(a) is a party to the proceeding, or an officer, director or trustee of aparty;

"(b) is acting as a lawyer in the proceeding;

"(c) is known by the judge to have a more than de minimis interest thatcould be substantially affected by the proceeding;


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"(d) is to the judges knowledge likely to be a material witness in theproceeding.

"A judge is not disqualified merely because the judges former law clerk is an attorney ofrecord for a party in an action that is before the judge or is associated with a law firm

representing a party in an action that is before the judge."

The 1995 amendments made four significant changes.

First, MCR 2.003(B)(2) is completely new, and is modeled after the ABA Model Code of JudicialConduct, Sec 3E(1)(a). It appears consistent with Crampton v Department of State, 395 Mich326; 235 NW2d 343 (l975), which is frequently cited by parties seeking disqualification eventhough it did not involve the disqualification of a judge. The case involved the disqualification ofadministration board members, usually police officers, from hearing drivers license appeals.Lebow, Michael J., "Judicial Disqualifications for Bias or Prejudice", Vol 72 No 7, MBJ 684, 685(Jul 1993). In recommending the provision to the Michigan Supreme Court, the State Barcommentary provided:

"[The rules] describe instances in which a judge has "participated personally andsubstantially" in a matter outside of the judicial role. Such prior participation isconsidered sufficient to raise the question of a judge's personal bias in a matter, andshould not be left for a party or party counsel to prove the judge's actual bias. This is thesame standard applied when public officials and employees handle matters in privatepractice, MRPC 1.11 and 1.12; when lawyers change firms, MRPC 1.9 and 1.10; whenformer prosecutors become judges; and when judges negotiate private employment inanticipation of leaving the bench. . . ."

Second, the provision for disqualification for fiduciary and economic interests has been movedfrom MCR 2.003(B)(6) to MCR 2.003(B)(5). The provision is only triggered when the judge

knows of the financial interest. The scope has been expanded beyond the judge's spouse andminor child, to also include the judge's parents and anyone residing in the judge's household.The scope has also been expanded beyond an economic or equitable interest in the party, toalso include any economic interest in the subject matter in controversy. The scope has alsobeen changed to apply to any more than de minimisinterest that could be substantially affectedby the proceeding.

Third, the provision for disqualification for degrees of kinship has been moved from MCR2.003(B)(5) to MCR 2.003(B)(6). The former provision required disqualification of the judge if aparty was within six degrees of kinship or an advocate was within three degrees of kinship to the

judge. The amended provision addresses only three degrees of kinship. It expands the scope,however, beyond parties and advocates to also include officers, directors and trustees of

parties, material witnesses, and those whose interests could be substantially affected by theproceedings.

Fourth, the court rule was further amended to add section (D), which provides for remittal ofdisqualification as follows:

"(D) Remittal of Disqualification. If it appears that there may be grounds fordisqualification, the judge may ask the parties and their lawyers to consider, out of thepresence of the judge, whether to waive disqualification. If, following disclosure of any


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basis for disqualification other than personal bias or prejudice concerning a party, theparties without participation by the judge, all agree that the judge should not bedisqualified, and the judge is then willing to participate, the judge may participate in theproceedings. The agreement shall be in writing or placed on the record."

The process speaks for itself, and states that this procedure may be utilized in all cases of

possible disqualification except for grounds as found in MCR 2.003(B)(1), to wit: personal biasor prejudice for or against a party or attorney.

MICHIGAN ETHICS OPINIONS

The State Bar of Michigan has published a collection of ethics opinions for judges and lawyersin the book, Michigan Ethics Opinions. It includes the following:

"Judicial Tenure Commission Advisory Opinions

"From 1968 through 1988, the Judicial Tenure Commission, pursuant to MCR

Subchapter 9.200, rendered 111 advisory opinions which were compiled and publishedin the 1987 Annual Report of the Judicial Tenure Commission. At the direction of theMichigan Supreme Court, the Judicial Tenure Commission ceased issuing advisoryopinions in October, 1988. The opinions are designated as A/O.

"Formal Judicial and Lawyer Ethics Opinions

"Formal ethics opinions are prepared by a subcommittee and submitted to the State BarBoard of Commissioners. A formal ethics opinion adopted by the State Bar Board ofCommissioners reflects the policy of the State Bar. Formal ethics opinions deal withmatters of general and substantial interest to the public, address situations which affecta significant number of members of the Bar, or reverse prior formal opinions. The

opinions are designated as J for formal opinions interpreting the Michigan Code ofJudicial Conduct (MCJC), and R for formal opinions interpreting the Michigan Rules ofProfessional Conduct (MRPC).

"Informal Judicial and Lawyer Ethics Opinions

"An informal ethics opinion is prepared and issued by a subcommittee after it has beencirculated to subcommittee members and the Chairperson has resolved any conflictingviews. Informal ethics opinions generally deal with situations of limited and individualinterest or application. The opinions are designated as "JI" for informal opinionsinterpreting the Michigan Code of Judicial Conduct (MCJC), and RI for informal opinionsinterpreting the Michigan Rules of Professional Conduct (MRPC)."

The publication also contains formal opinions released prior to October l, l988, and designatedas "C". The amendment to MCR 2.003 necessitates review of these prior ethics opinions asdiscussed hereafter.


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DUTY TO RAISE THE ISSUE OF DISQUALIFICATION

MCR 2.003(A) remains unchanged and, therefore, any party or the judge may raise the issue ofa judge disqualification by motion. See also, MCJC 3C, "a judge should raise the issue ofdisqualification whenever the judge has cause to believe the grounds for disqualification may

exist under MCR 2.003(B)." Formal opinions interpreting the Michigan Rules of ProfessionalConduct are designated "R" in the publication Michigan Ethics Opinions.

In R-14, July 24, l992, the Committee concluded that the judge's personal lawyer could incertain cases represent clients before the judge, provided that everyone consented afterconsultation. MRPC 1.2, 1.4, 1.7. The opinion, in relation to MCR 2.003, also held that "thelawyer must disclose the judicial representation to opposing parties, allowing them anopportunity to seek recusal of the judge [or disqualification of the lawyer]". The former court rule,MCR 2.003(B)(2), is identical to the court rule as amended, MCR 2.003(B)(1). The rationale ofR-14 has not changed. Therefore, MCR 2.003(D) would permit the opposing party to reach anagreement with the other party to allow the judge to hear the case despite the possible groundsfor disqualification. The judge would have to carefully weigh the provisions of MCR 2.003 before

agreeing to participate in the proceedings.

IMPARTIALITY AND BIAS

A number of opinions have been rendered by the committee regarding issues of impartiality andbias. MCR 2.003(B) as amended provides specific enumerated grounds for disqualification.How do the amendments affect the committees former opinions?

In J-5 the issue was whether all of the countys circuit judges would be disqualified from hearingcases involving a law firm retained to represent them in an action before the federal court. Onceagain, the question of the appearance of impropriety was raised. The judges certainly have the

obligation to disclose the relationship to all other parties. The committee concluded then that a judge should consider the appearance of impropriety as well as other factors in deciding amotion to recuse. The advent of MCR 2.003(D) would permit the judge to retain the caseprovided the parties consented after the disclosure. The opinion is affirmed.

In JI-29 a judge asked about disqualification in domestic relations matters where an advocatehad been appointed by the judge to serve as a part-time circuit court domestic relations referee.Aside from the ethical issues facing the appointee, the committee opined that, pursuant toMCJC 3C, the judge would be required to raise the issue of disqualification pursuant to MCR2.003(B). JI-29 holds that a policy requiring judicial disqualification because an appointeeappears before the judge is not justified, since"[s]uch a rule would burden the judicial system, particularly in a one-judge circuit. Further, the

statute which creates the judges appointive authority specifically authorizes appointment of aprivate practitioner, MCL 552.507."

Such policy considerations are still valid. In light of MCR 2.003(D), absent circumstances whichdemonstrate bias, a judge may still agree to participate in the proceedings if the parties consentafter the disclosure of this information. The opinion is affirmed.

In JI-34 the committee subsequently addressed disqualification issues of a judge who presidedover criminal matters initiated or pending while the judge served as the chief prosecutor.


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Disqualification was required "where the judge is personally biased or prejudiced for or against aparty or lawyer or where the judge has actual knowledge about a criminal case because the

judge while a prosecutor had been consulted or employed as counsel". The circumstances ofthis scenario invokes mandatory disqualification on the basis of MCR 2.003(B)(2), and perhapsMCR 2.003(B)(3). However, absent personal bias or prejudice, the procedure found in MCR2.003(D) could be utilized. It is not likely that a defendant would waive disqualification, but

he/she could. If the defendant did, the judge could consider participating in the proceedings.The opinion is affirmed.

In JI-35, an incumbent judge who lost his bid for re-election sought the guidance of thecommittee in negotiating for employment upon leaving judicial office. The committee stated that"the judge should automatically recuse to avoid accusations that the judgment or the judgesposition has been maneuvered for personal gain of the judge or the prospective employer". Tohold otherwise would render a long-serving judge unemployable. Nonetheless, the committeefurther stated the judge should refrain from employment negotiations with a lawyer or law firmthat has pending matters before the judge. It is interesting to note that the committee furtherstated that:

"If the judge does not join a particular firm following employment discussions with the firm, thejudge should for a reasonable time disclose to all parties the proposed professional relationship,and recuse unless asked to proceed." Emphasis added.

The court rule as amended specifically provides for this process. Thus, in this fashion, MCR2.003(D) codifies JI-35, and the opinion is affirmed.

Ethics opinion JI-39 concluded that a judge who is a defendant in a legal malpractice action maynot preside over any matter in which a member of the judge's former law firm, or a member ofthe law firm representing the judge appears, until the malpractice action is resolved. Thecommittee further reasoned that the disqualification was "absolute" despite a mutual agreementby all parties to permit the judge to preside over the case. With regard to the former firm, the

committee reasoned that there "is an extension of the shared ethics and malpracticeresponsibility" and that "this continuation automatically disqualifies the judge from hearing andpresiding on matters in which the judge's former law firm is involved, until such time as themalpractice action filed against the judge and the law firm is completely resolved." Similarly, thecommittee reasoned that "only in unusual circumstances would a judge's impartiality not besubject to reasonable question, when a lawyer appearing before the judge in behalf of a client isat the same time representing the judge in litigation pending before another court. This would betrue whether the lawyer was representing the judge in a personal matter, or a matter pertainingto the judge's official position or conduct."

Although MCR 2.003(D) does not allow remittal in cases of bias for or against a party, it doesallow remittal in cases of bias for or against an advocate. The duty to disclose the relationship

remains, however, the disqualification is not absolute absent actual bias or prejudice. Therefore,JI-39 is distinguished.

The committee addressed the disqualification of a Court of Appeals judge in opinion JI-43. The judge was a defendant in civil litigation arising from certain real estate transactions while the judge was a general partner in a real estate development. The issue was whether the judgeshould recuse when the judge's lawyer or the opposing lawyer appeared before the judge onunrelated matters. The committee found no extension of shared ethics and malpractice liabilityin these facts, and thus the reasoning of JI-39 did not apply. The committee concluded that


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absent actual bias, the judge was not per se disqualified, however, since reassignment wasreadily available, the judge should recuse while the judge's personal case was pending. Thesame would then hold true if law firm associates of either advocate appeared before the judge.With the proviso that any disqualification may be remitted under MCR 2.003(D), JI-43 isaffirmed.

In JI-5l a judge who served on the board of directors for a nonprofit legal aid organization wasrequired to disclose the relationship when a lawyer from the organization appeared before the

judge. Once again the committee found no grounds for a per se disqualification. This againassumes that the judge is not personally biased or prejudiced for or against the organizationslawyers. If challenged, the parties could avail themselves of MCR 2.003(D), and the judge couldproceed accordingly. JI-51 is affirmed.

On a rare occasion, a judge may appear as a witness before a colleague of the same bench.Such was the case in JI-57, in which defense counsel sought the testimony of a judge whoconducted the marriage ceremony of the plaintiff, to determine if the judge noted any deficiencyin the plaintiffs competency. The judge was a colleague of the judge assigned to the case.Would the presiding judge be swayed by the fact that a particular witness was a judicial

colleague? The committee concluded that if the presiding judge was concerned about theappearance of bias, the judge should so advise the parties, and recuse unless asked toproceed. This former opinion is still acceptable in light of MCR 2.003(D), and JI-57 is affirmed.

A variation of the preceding opinion was presented in JI-6l, in which a district judge questionedwhether recusal was required if a witness was both a part-time police officer and a full-timeprobation officer of the district court. The committee reasoned that "if there is no appearance ofbias in the judge regularly hearing the sentencing recommendations of the probation officer,there should be no increased likelihood of bias when the police officer testifies." Furthermore, itwas concluded that "defense counsel has an opportunity to impeach" the witness, andtherefore, "there is less likelihood of abuse in the criminal case than in the sentencing stage." Inthe end, the committee once again opined that absent actual bias, the judge need not recuse.

This opinion remains intact with or without the application of MCR 2.003(D), and is affirmed.

In JI-62 the question posed addressed the propriety of the employer of a judges spouseappearing as a witness in mental health proceedings. MCR 2.003(B)(6)(d) provides that the

judge is disqualified when the judges spouse is likely to be a material witness. On suchoccasions, the judge should disclose the relationship and is recused unless asked to proceedvia MCR 2.003(D). The mere appearance of the spouses employer or colleagues still does notcreate a basis for disqualification. Therefore, JI-62 is affirmed.

In JI-79 the committee concluded that a judge was not automatically disqualified from presidingin a matter in which a member of the judges re-election campaign committee appears as anadvocate for a party. MCJC 2 requires a judge to avoid even the appearance of impropriety in

all activities, and therefore there is an obligation to disclose the relationship. See Shaman,Lubet, and Alfini, Judicial Conduct and Ethics, The Michie Company, 1992, pp. 274-275.Understandably, this situation is potentially burdensome on single judge courts. The committeestated that,

"Lawyers as well as all members of the public should have a sincere and significantinterest in the individuals who represent them on the bench. An inflexible rule ofautomatic recusal would discourage lawyers from participating in the election of qualifiedindividuals to the bench at the expense of disqualifying the judge in unrelated matters."


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The committee suggested that the better practice would be to "liberally consider requests forrecusal" in such cases. The advent of MCR 2.003(D) would now permit another alternative. Ifthe petitioning party did not wish to consider remittal of the disqualification, it is still the betterdecision to follow the opinion presented in JI-79, and it is affirmed.

Once upon a time, there was a circuit judge, a district court magistrate, and a deputy sheriff,who co-owned recreational real estate property. In JI-86 the committee noted that MCJC 5Cprovides that a judge should refrain from certain financial and business dealings that wouldreflect adversely on the judges impartiality. If the instances of recusal become too frequent,divestiture of the financial interests is required by MCJC 5C(3). Under the circumstances wherethe deputy sheriff might appear as a witness in either court, the committee concluded that "a

judges personal friendship and financial ties with a witness is not, in itself, sufficient to requirerecusal," and furthermore:

"[A] circuit judge is not per se disqualified from reviewing decisions of a district court magistratesolely on the basis of their common ownership of land and building. There is no presumptionthat the judges friendship or financial ties with the magistrate has created actual bias or the

appearance of bias requiring recusal. The result should be no different in cases where thecircuit judge, deputy sheriff and magistrate are all involved in the same proceeding unrelated totheir common investment."

The obligation to disclose the relationship exists pursuant to MCJC 3C. MCR 2.003(D) isapplicable, and hence, JI-86 is affirmed.

RI-121 addresses the participation of four lawyers in the processing of attorney grievancematters where one of the lawyers is the supervising attorney for the remaining three lawyers intheir capacity as corporate attorneys for a large metropolitan county. The supervising attorney isa member of the Attorney Grievance Commission, the prosecutorial arm of the MichiganSupreme Court pursuant to MCR 9.108(A). The other three attorneys are voluntary hearing

panelists for the Attorney Discipline Board, the adjudicative branch of the Michigan SupremeCourt pursuant to MCR 9.110. The inquiry focused on the appearance of impropriety and/or theproblems of inadvertent "influence", or "contamination" arising from the mutual employment ascorporate counsel.

PERSONAL BIAS FOR OR AGAINST A PARTY OR ATTORNEY

Personal bias for or against a party or attorney is now found in MCR 2.003 (B)(1). Personal biasfor or against a party may not be remitted; personal bias for or against an attorney may beremitted. This particular ground for disqualification was previously cited as MCR 2.003(B)(2).Several opinions have been issued regarding this provision. Opinions C-228, JI-29, JI-34, JI-5l,

and RI-121 have already been discussed. The remaining opinions will now be reviewed.

Ethics opinion RI-131 addressed whether a lawyer could continue to serve as a hearing panelistfor the Attorney Discipline Board pursuant to MCR 9.115, while the subject of a formal complaintapproved by the Attorney Grievance Commission, or while the subject of an investigation by theGrievance Administrator. The committee noted that a member of the hearing panel who was thesubject of a formal complaint might be perceived to be biased or partial in one of two ways. Thepanelist might be lenient to another lawyer respondent who was also charged with misconduct,or the panelist might be seen as favoring the prosecution in an effort to obtain an advantage in


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the panelist's own case. The committee stopped short of concluding that recusal was absolute.To clarify the opinion, applying MCR 2.003 as amended, if the panelist is personally biased orprejudiced for one party or the other, the disqualification is mandatory and is not affected byMCR 2.003(D).

If the panelist is the subject of an investigation but not a formal complaint, the panelist must

either disclose this fact to the parties, or, if the panelist did not wish to disclose, voluntarilyrecuse "on the basis that the panelist could not hear the case impartially." If the panelistchooses the first option, disqualification could be remitted pursuant to MCR 2.003(D). Theopinion is affirmed.

Opinion J-3 affects the service of retired judges by assignment who may also serve as "director,officer, manager, advisor, or employee of any business." Sitting judges are prohibited fromserving in any such capacity pursuant to MCJC 5C(2). This opinion states that,

"When assigned judicial duties, the visiting or retired judge should take a leave of absence fromthe business, receive no compensation from the business during the period of time in which the

judge is adjudicating matters, and of course, recuse from hearing matters that are related to the

interests of the outside business."

MCJC 5C still applies, but MCR 2.003(B)(6)(a) now requires disqualification when the judge isan officer, director or trustee of a party. The disqualification may be remitted. The opinion isdistinguished.

Opinion J-4 addressed a number of other grounds for disqualification which will be addressed insubsequent sections of this article, but is affirmed in the following respect. Recusal is stillrequired in situations where the judge formerly served as a city commissioner and subsequentlyfaces matters which came before the commission, or where the judge had previously"participated personally and substantially in the matters" reaching fruition after the judgesresignation.

If a judge serves as a member of the attorney discipline board hearing panel, is the judgeautomatically disqualified when the respondent-attorney appears before the judge? In JI-24 theCommittee concluded that disqualification was not automatic. However, the committee notedthe case of People v Lowenstein, 118 Mich App 475, 482-483 (1982), which cited an Oklahomacase holding:

"Even though a judge personally believes himself to be unprejudiced, unbiased andimpartial, he should nevertheless certify his disqualification where there arecircumstances of such a nature to cause doubt as to his partiality, bias or prejudice."

The committee reasoned that even if the judge did recuse when the respondent appears as

advocate in unrelated matters pending before the judge, the recusal is personal to thecircumstances of the respondent and does not reach appearances by the respondent's law firmcolleagues. The opinion is affirmed.

Opinion JI-28 is closely related to J-3 in that it addressed retired judges. The State CourtAdministrator sought this opinion in response to a retired Court of Appeals judge who intendedto accept judicial assignments while also accepting appointments as a neutral mediator forcertain trial courts. MCJC 5E prohibits a full-time judge from acting as an arbitrator or mediator,except in the performance of judicial duties. The committee reasoned that a retired judge need


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not refrain from serving as a mediator or arbitrator, provided that this service is notcontemporaneous with the period of any judicial assignment, and the service on prior mediationor arbitration panels is:

". . . not so identified with one party, organization or interest group as to reflect adverselyon the judges impartiality or to raise questions of bias or the appearance of impropriety."

Whether a judge is automatically disqualified from matters in which the judge had participatedas a mediator or arbitrator depends upon the particular forum. See, RI-265, "a lawyer who hasserved as a mediator under MCR 2.403 may not later serve as an arbitrator in an arbitrationproceeding between the same parties concerning the matter which was mediated", and"whether a lawyer who has served as a mediator in a private mediation setting may serve as anarbitrator in a proceedings between the same parties concerning the matter which wasmediated depends upon the rules of the private mediation forum and the arbitration forum." Theopinion is affirmed.

Many judges, especially those in the less populated counties, are bound to face litigants andlawyers who are personal acquaintances. Likewise, judges are likely to occasionally encounter

a litigant or an attorney who have leveled derogatory remarks against the judge. In eithersituation, according to opinion JI-44, recusal is not, and should not be, automatic. A judgeconcerned about the appearance of bias should advise the parties and attorneys and recuseunless asked to proceed. This is exactly the procedure now available by MCR 2.003(D).

If the judge under the foregoing scenarios grants a motion to recuse, or refuses to participateeven where the parties remit the disqualification, the judge should specifically state the reasons.This will permit the chief judge, or any other judge selected to review the decision toappropriately decide the matter de novopursuant to MCR 2.003(C). The committee affirms JI-44.

A frequent criticism or suspicion of indigent litigants is that court-appointed attorneys are not as

capable as privately retained counsel, or that counsel's loyalty is to the appointing judge ratherthan to the client. There is an array of contractual arrangements between courts and attorneyswho accept court appointments. In JI-50 a probate judge questioned the ethical implications ofhiring a lawyer as a county employee to represent indigent youth in delinquency cases, andindigent parents or children in child protection proceedings. The committee recognized that thelawyer would be completely dependent on the judge for any earned income. JI-29. MRPC 1.7(b)and 1.8(f) obligates the attorney to not permit the judge to affect the level of advocacy for theindigent client. MCJC 1 and 3 obligate the judge to uphold the integrity and independence of the

judiciary and to perform the duties of judicial office impartially. The committee recognized thatwith due care, the lawyer could be hired as a county employee, but that:

" . . . no one will envy the delicate task a judge and counsel must undertake in walking

this professional tightrope."

MCR 2.003(A) continues to permit a party or the judge to raise the issue of disqualification. Ajudge's appointment of counsel, without more, is not grounds for disqualification. If a particularcase presents aggravating circumstances in addition to the appointment of counsel under thefacts set forth in the opinion, the parties should be counseled accordingly.

Opinions RI-52 and JI-23 impose a reciprocal obligation on lawyers and judges a presiding judge's campaign opponent appears as advocate. Opinion JI-96 modifies this stand by


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concluding that disqualification is not per se required in uncontested matters in which one of theadvocates is an announced candidate for the presiding judges seat. Citing an advisory opinionof the Judicial Tenure Commission, A/O 103, the committee noted that no distinction was madebetween adversarial proceedings and non-adversarial matters. The committee suggested thatthe judge disclose the lawyers candidacy and await a motion to recuse if the parties so choose.The opinion suggests that "in the absence of a reasonable good faith challenge to the judges

impartiality", the judge could preside over uncontested matters or sign stipulated orders. Sincethe opinions are based upon bias for or against an advocate, not a party, the remittalprocedures of MCR 2.003(D) are available. To the extent that JI-23 requires recusal, the opinionis superseded. Opinion JI-96 is affirmed.

We have previously addressed the appearance of a lawyer and the lawyer's law firm colleaguesin matters before a judge who is also a client of the law firm. JI-39, J-5, and R-14. We now turnour attention to JI-102 which reviews the ethical implications of a lawyer appearing before anadministrative hearing officer whose family member was a former client of the lawyer. Thecommittee recognized that given these facts, a person could deduce that the judge would bepersonally biased or prejudiced for or against that lawyer. The committee concluded thefollowing:

1. The family relationship, in and of itself, is not sufficient to require disclosure ordisqualification.

2. If the representation of the family member is concurrent with the appearance beforethe judicial officer, disclosure is required.

3. If the judges personal ethics or financial interest are directly at stake, disqualificationis required.

With regard to situations 1 and 2, the opinion is affirmed. With regard to situation 3, thedisqualification may be remitted under MCR 2.003(D).

Judges have varying experiences and relationships with their respective local boards of countycommissioners. On at least one occasion, a lawyer was elected as chairperson of a board ofcommissioners which oversees the budget and related issues of court operations. Aside fromthe ethical implications for the lawyer, R-15 addressed issues of judicial disqualification. Thecommittee was cognizant of the fact that parties might question the independence of the

judiciary as being threatened by "toadyism", and suggested that each matter be handled on acase by case basis since automatic disqualification was not warranted. A second factcomplicated this inquiry, to wit: the lawyer commissioner "has been an opposing party inlitigation against the circuit court judge", and had been sanctioned for contempt. Therefore, atthe very least, the question of the appearance of bias or prejudice must be considered. Thecommittee quoted the Lowensteincase:

"No human being (even a judge) is completely prejudicial free. But our judicial systemrequires judges. Therefore, we make allowances. Under normal circumstances, we willassume (absent evidence to the contrary) that the judge is free enough from bias tomake a tolerably nonpartisan decision." People v Lowenstein, 118 Mich App 475, 481-482 (1982).

Hence, if the lawyer commissioner believes the presiding judge is biased, the lawyer may seekdisqualification, or reconsider whether or not to remain on the case. The opinion is affirmed.


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PREVIOUSLY CONSULTED OR EMPLOYED AS ATTORNEY IN THE MATTER

This ground for disqualification is still cited as MCR 2.003(B)(3). The only change is the additionof the words, "the judge", at the beginning of the provision. A few opinions have been issued on

this topic, including JI-34 which has already been discussed.

In JI-97, the committee concluded that a part-time magistrate would be disqualified from anymatters being handled by a member of the magistrates private law firm, and that at no timecould the magistrate practice law in that court as it is precluded by statute and the MichiganCode of Judicial Conduct. MCL 600.8525; MSA 27A.8525; MCJC 5F. Furthermore, themagistrate would be disqualified from any matter in which the magistrate participated personallyand substantially as a lawyer. MRPC 1.11(c); MCR 2.003(B)(3). In accord, RI-1.

Under the current language of MCR 2.003(B)(4), a part-time magistrate would be disqualifiedwhen a member of the magistrates law firm appears, so JI-97 and RI-1 are affirmed. Thedisqualification could be remitted pursuant to MCR 2.003(D).

RELATIONSHIP TO PARTY OR FIRM WITHIN PRECEDING TWO YEARS

This ground for disqualification remains cited as MCR 2.003(B)(4), with the only difference beingthe addition of the words, "the judge" at the beginning of the provision. Several opinions havebeen rendered in the past, including RI-1; J-4; JI-34, JI-39, and JI-97, as previously discussed.Since the applicable rule has not changed, the only affect the 1995 amendments have on theseopinions is to allow remitter. J-4 bears another look along with a quick review of a few others.

A portion of J-4 involved a lawyer who became a partner in a law firm that divided into two firmsshortly before the lawyer was elected to the circuit court bench. Is the judge disqualified from

hearing matters involving either law firm for a period of two years? The purpose of the two-yeardisqualification rule is to avoid requiring a party to prove actual bias or prejudice where the

judge had been personally and professionally associated with a law firm. The committee notedthat MCJC 3D allowed for the remittal of disqualification as provided by court rule, but that nocourt rule then existed and prior to September 1, l995, it appeared that all situations arisingunder MCR 2.003 mandated disqualification.

If a former partner was no longer associated with the judges former law firm, what is theoutcome? The committee concluded that the relationship should be disclosed, MCJC 3C, andthe judge should recuse unless the parties remit disqualification. This conclusion in J-4 isperfectly in line with the court rule as amended.

Does a bonus for work performed prior to taking judicial office extend the two year period ofdisqualification? In JI-37 the Committee concluded that it did not. There is no basis to changethis opinion, especially in light of the review of J-4.

In JI-100 the Committee considered the ramifications of a former client of the judge who nowappears before the judge but is represented by a totally different law firm. The committeeapplied MCR 2.003(B)(4), "representing a party", which was not changed by the 1995amendments. The opinion is affirmed.


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are not prejudicial unless the matter over which the judge presides is the matter which affectsthe disbursement."

Similarly, JI-6 concluded that a landlord judge must disclose that an advocate is the judge'stenant and recuse unless asked to proceed. The Michigan Supreme Court itself has endorsedthis approach in People v Perkins, 193 Mich App 209 (1992). The opinions are affirmed.

May a judge review the decisions of the judges spouse in their capacity as a judge of a lowercourt? Opinion JI-31 addresses this question and answers it in the negative, but the decisionwas not based upon MCR 2.003. Recusal allows the circuit judge to avoid the appearance ofimpropriety and the appearance that a family relationship has influenced judicial conduct. MCJC2; MCJC 2C. See also, Franck, Michael "A Judge Shall Avoid Impropriety and the Appearanceof Impropriety in All of the Judge's Activities", commentary reported in Vol 69 No 3, MBJ 234-235 (Mar 1990). This appears to be a case where the Lowensteinrule would apply, in that the"circumstances [are] of such a nature to cause doubt as to . . . partiali ty, bias or prejudice."

The opinion also addresses a situation where a circuit judge contemplates appointing the judges spouse as a Friend of the Court referee. The committee relied upon MCJC 3B for the

ethical policy that a judge should not create a situation which increases the number of cases inwhich the judge may be disqualified. This result is not affected by the 1995 amendments, andthe opinion is affirmed.

In R-3 it is concluded that a judge should not preside over a case in which the judges spouseappears as a lawyer for one of the litigants. The committee extended this to lawyers who aredating and/or cohabitating with the judge. A second inquiry addressed the propriety of the judgepresiding over a case when the spouses law firm appears on behalf of a litigant. The judge isdirected to disclose the relationship and recuse unless the parties request that the judgeproceed. This result is not affected by the 1995 amendments, and on this issue the opinion isaffirmed.

RI-119 responded to an inquiry from the Attorney Discipline Board in light of the fact that ahearing panelist was related to an advocate within the third degree of consanguinity. MCR9.115(F)(2)(a) explicitly states that a motion to disqualify a hearing panelist shall be decidedunder the guidelines of MCR 2.003. It is clear that a hearing panelist is disqualified from anyproceedings in which the hearing officers close relative is directly involved. This result is notaffected by the 1995 amendments, and the opinion is affirmed.

CONCLUSION

Prior to September 1, 1995, the committee has opined that in certain situations other than actualbias or prejudice, parties could remit disqualification after being informed of a possible groundfor disqualification. It is clear that MCR 2.003(D) now specifically provides a procedure for doing

so. It is equally clear that the final decision rests with the presiding judge who must thereafteragree to participate in the proceedings.


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JI-34

December 21, 1990

SYLLABUS

A judge is disqualified from presiding in a matter involving the state or

county which was initiated or pending in the county prosecutor's office while

the judge served as chief prosecutor.

A judge may preside in matters involving the county or state which wereinitiated after the judge resigned as chief prosecutor, even if the judge had

acted as lawyer for the county or state within the prior two years.

A judge may preside in matters involving the county or state which were

initiated after the judge resigned as chief prosecutor even if the charge was

initiated under a policy set by the judge while chief prosecutor, or even if the

case was under investigation while the judge was chief prosecutor, so long as

the judge did not participate personally and substantially in the matter.

A criminal case is "initiated" for purposes of this professional obligation

with the first formal prosecutorial pleading designed to bring the named

alleged offender before the court.

"Personal and substantial participation" in a matter means being personally

involved to an important, material degree. Determination of what constitutes

"personal and substantial participation" depends on the context, and neednot involve a determination on the merits of the matter, direct contact with

witnesses, parties or their lawyers, or actual appearance before a tribunal.

References: MCJC 1, 2, 3; MRPC 1.6, 1.11, 1.12; RI-4, RI-11, RI-43; CI-368,

CI-672; MCR 2.003(B); MCL 49.153, MSA 5.751; Mich Const 1963, art 7, sec


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4;Barry v United States, 528 F2d 1094 (CA 7 1976); Genesee Prosecutor v

Circuit Judge, 386 Mich 672 (1972); Gravenmier v United States, 469 F2d 66

(CA 9 1972);In re Grand Jury Investigation, 486 F2d 1015 (CA 3 1973);

United States v De Luna, 763 F2d 897 (CA 8 1985); United States v Di

Pasquale, 864 F2d 271, 278 (CA 3 1988); United States v Vasilick, 160 F2d 631

(CA 3 1947); OAG 1945-46, No 0-3340, p 288 (March 27, 1945).

TEXT

A chief judge whose court is about to invest a judge who was the county chief prosecutor asks

for an opinion on the scope of disqualification from cases involving the prosecutor's office for

this new judge.

The current inquiry seeks a clarification whether CI-368 applies to a judge who was the chief

prosecutor and not merely an assistant prosecutor. A clarification is also sought of the meaning

of the term "personal and substantial involvement" in a matter, and a delineation of what

criminal cases the new judge may handle.

MCJC 3C requires a judge to raise the issue of disqualification if that judge may be disqualified

under the Michigan Court Rules. MCR 2.003(B) states:

"A judge is disqualified when the judge cannot impartially hear a case, including a proceeding in

which the judge

"(1) is interested as a party;

"(2) is personally biased or prejudiced for or against a party or

attorney;


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"(3) has been consulted or employed as an attorney in the matter in

controversy;

"(4) was a partner of a party, attorney for a party, or a member of a

law firm representing a party within the preceeding two years;

"(5) is within the third degree (civil law) of consanguinity oraffinity to a person acting as an attorney or within the sixth degree

(civil law) to a party;

"(6) or the judge's spouse or minor child owns a stock, bond,

security, or other legal or equitable interest in a corporation which

is a party . . . ;

"(7) is disqualified by law for any other reason."

I. DISQUALIFICATION OF JUDGES WHO WERE ASSISTANT PROSECUTORS

CI-368 held that an assistant prosecutor who is elected judge was not a "partner" or a "member

of a law firm" within the meaning of GCR 912.2(4) [currently MCR 2.003(B)(4)] which

disqualifies a judge who "was a partner of a party, attorney for a party, or a member of a lawfirm representing a party within the preceding two years." CI-368 did not treat the prosecutor's

office as a "law firm" for purposes of disqualification because a prosecutor, unlike many former

law firm members, did not have any continuing economic interest in the completion of the law

firm's business. The opinion specifically noted:

"Furthermore, we do not believe the Supreme Court intended to include full-timecounty paid prosecutor[s] within the scope of GCR 912.2(4) [currently MCR

2.003(B)(4)]."


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A judge who was an assistant prosecutor, and who was not substantially involved

in a particular criminal prosecution and thus gained no confidential, inadmissible, or prejudicial

information while an assistant prosecutor need not be disqualified as a judge hearing the case.

CI-368 recognized that to apply the disqualification rule contained in GCR 912.2(4) togovernment lawyers would substantially handicap the ability of a prosecutor to become a judge if

that person could not be involved in any criminal cases for two years. Such an interpretation of

subsection (4) of this disqualification rule would not only handicap qualified prosecutors from

becoming judges, it would also make the position of a prosecutor less attractive to many

individuals who aspire to a judicial career.

For reasons stated more fully in this opinion, we believe that the Supreme Court in adopting

subsection (4) of the disqualification rule meant it to apply only to private law firms and private

parties. MCR 2.003(B)(4) is concerned with the likelihood of preexisting and possiblycontinuing economic ties which make it inappropriate for a judge to hear a case involving former

partners, clients and associates for a two year period even if the judge had no prior personal

involvement in the case. It is only for private practitioners that the knowledge or the allegianceof a partner, former client, or former associate is imputed to the judge necessitating a two year

disqualification.

If the Supreme Court intended MCR 2.003(B)(4) to apply to prosecutors, no prosecutor whobecame a district or circuit court judge could hear any criminal case brought by the state for a

two year period because each would surely have represented the State of Michigan as a "party"

in some criminal proceeding. If MCR 2.003(B)(4) applies to government lawyers, it would notbe necessary to deal with the "partner" and "member of a law firm" language, since an assistant

prosecutor would be disqualified for two years from all criminal cases because that assistant

prosecutor would have formerly been an "attorney for a party" involved in current criminal cases.

While RI-43 determined that ". . . a Prosecutor's Office does constitute a 'firm' for purposes of[MRPC 1.12]," which requires "screening" of a judge or judge's law clerk who joins a "firm" that

is handling a case on that judge's

docket, this is not inconsistent with the different treatment of a prosecutor's office under MCR2.003(B)(4). MRPC 1.12 seeks to avoid the use of a prior judicial involvement to advise one of

the two litigants to a case. The policy behind this rule warrants its application to both parties to


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the case - the defense and the prosecution. Yet, differing policy considerations for private andgovernment counsel led this Committee to its conclusion that MCR 2.003(B)(4) did not apply to

government lawyers and did not require a two year imputed disqualification of a judge who was

a former assistant prosecutor from criminal cases that were handled solely by other prosecutors.

MCR 2.003(B)(4) is not necessary for former government lawyers because they do not haveconflicts of interest caused by lingering economic entanglements with the parties or other

lawyers involved in ongoing litigation. Other types of potential conflicts that could involve

former prosecutors are covered by other subsections of the Michigan disqualification rule.

Even if MCR 2.003(B)(4) is not applicable to prosecutors, MCR 2.003(B)(2) and (3) are

applicable to prosecutors and would require disqualification where the judge is personally biased

or prejudiced for or against a party or lawyer or where the judge has actual knowledge about acriminal case because the judge while a prosecutor had been consulted or employed as counsel.

Thus a former assistant prosecutor is prohibited as a judge from hearing any case in which he/she

acted as principal lawyer or in which he/she had substantial responsibility while a prosecutor.

Limiting the application of MCR 2.003(B)(4) to private lawyers and private parties is consistentwith the former ABA Model Code of Judicial Conduct Canon 3C(1) adopted August 16, 1972,

and with the federal disqualification rule in 28 USC 455(b), as amended December 5, 1974. The

Michigan Supreme Court in adopting the Michigan Code of Judicial Conduct on October 1,

1974, was surely aware of the ABA Model Code of Judicial Conduct that prompted many statesand Congress to modify their rules affecting judicial conduct and disqualification. The

Commentary to ABA Model Canon 3C(1) notes that government lawyers are to be treated less

strictly than private practitioners for purposes of imputed disqualification. The 1990 ABA ModelCode of Judicial Conduct made no substantive changes to Model Canon 3C(1) or its

commentary. See ABA Model Code of Judicial Conduct 3E(1).

Professor E. Wayne Thode, the reporter for the ABA Committee, testified before Congress that

the ABA Committee initially considered treating private and government lawyers the same for

imputed disqualification. But this approach was soon abandoned because "that really was takingtoo hard a line" on government lawyers because there was "no good reason" to apply "toosweeping a disqualification" to government lawyers like those applied to lawyers in private

firms.Hearings on S.1064 Before the Subcommittee On Improvement In Judicial Machinery Of

The Committee On The Judiciary, United States Senate, 93d Cong. 1st Sess., 100 (1971-1973).


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Within two months after the Michigan Supreme Court adopted its current Code of JudicialConduct that incorporates the judicial disqualification standards set out in the Michigan Court

Rules, Congress adopted its current version of the disqualification rules. Congress specifically

adopted a separate rule for a judge who had served as a lawyer in "private practice" and a morelenient rule for a judge who was a lawyer in "government employment". Compare 28 USC

455(b)(2) with 455(b)(3).

II. DISQUALIFICATION OF JUDGES WHO WERE CHIEF PROSECUTORS

MCR 2.003(B)(4) need not apply to judges who are former prosecutors in part because the major

conflicts these individuals would face as judges are adequately covered by MCR 2.003(B)(2) onbias or prejudice toward a party or lawyer and MCR 2.003(B)(3) where the judge had beenconsulted or employed as counsel. For an assistant prosecutor, subsection (3) would only apply

to a case in which he or she was actually consulted on some significant issue or actually entered

an appearance on a case.

The office of the "prosecuting attorney" is a constitutional office whose duties are prescribed bylaw. Mich Const 1963 art 7, sec 4; OAG, 1945-46, No 0-3340, p 288; Genesee Prosecutor v

Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972). The prosecutor is the chief law

enforcement officer of the county. Genesee Prosecutor v Circuit Judge, supra, 386 Mich at 683.MCLA 49.153; MSA 5.751, sets out the duties of the prosecuting attorney:

"Sec. 53. The prosecuting attorneys shall, in their respective

counties, appear for the state or county, and prosecute or defend in

all the courts of the county, all prosecutions, suits, applications andmotions, whether civil or criminal, in which the state or county

may be a party or interested."

Thus, a prosecutor has ultimate statutory responsibility to act as the lawyer for the county and thestate in all cases in the county, both civil and criminal. The prosecutor is by statute counsel "forthe state or county . . . in all cases" (emphasis supplied) whether appearing personally or, as is

more common, through an assistant prosecutor, and without regard to whether the prosecutor's

name appears on the court pleadings.


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Accordingly, a prosecutor who becomes a judge would be subject to disqualification underMCJC 3C and MCR 2.003(B)(3) in any civil or criminal matter involving the county or the state

in which that judge had acted as an lawyer for the government unit involved. This

disqualification is imposed even in cases in which the prosecutor was not personally involved inany active capacity because the prosecutor is by statute lawyer for the county or the state in all

cases in the prosecutor's county. Indeed,Bradshaw v McCotter, 785 F2d 1327 (CA 5 1986),provided habeas corpus relief where a state judge on the case was earlier a prosecuting attorney

whose name appeared on a brief even though the judge had no substantial participation in thecase while prosecutor. "The separation between the roles of prosecutor and judge must be certain

and inflexible." 785 F2d at 1329.

This disqualification of the chief local law enforcement lawyer is consistent with the

disqualification of a federal judge who was the United States Attorney from all cases pending

while that judge served as United States Attorney. The United States Attorney has statutory

duties similar to Michigan prosecutors which makes the United States Attorney "of counsel" onall cases involving the United States in his or her district. 28 USC Sec 547; United

States v Maher, 88 F Supp 1007 (ND Maine 1950).

Disqualification of judges who were the United States Attorney in their

districts does not apply to Assistant United States Attorneys who were not personally involved in

the investigation or prosecution of the case. United States v De Luna, 763 F2d 897, 907 (CA 8

1985). Nor does it apply to the Attorney General or an Assistant Attorney General who was notpersonally involved "of record", or in an advisory or supervisory role. See Mr. Justice

Rehnquist's opinion inLaird v Tatum, 93 S Ct 7 (1972), regarding his 1971 Congressional

testimony as Assistant Attorney General on an issue that was involved in theLaird v Tatum casethat was then pending before the D.C. Circuit Court of Appeals but in which he had no personal

involvement.

The policy of more restrictive treatment for purposes of disqualification of higher ranking chief

prosecutors is also parallel to the differential disqualification treatment for higher and lower

ranking officials in the Ethics In Government Act, 18 USC Sec 207(b) and (c).

Because the disqualification under MCR 2.003(B)(3) is triggered only when the judge wasearlier "consulted or employed as an attorney in the matter in controversy," and because the chief

prosecutor's statutory representation under MCLA 49.153 applies only to matters "in all the

courts of the county," a former chief prosecutor would not be disqualified from hearing a case


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office. These terms have greater applicability to assistant prosecutors for whom personal and

substantial responsibility triggers disqualification under MCR 2.003(B).

In CI-672, we noted that "substantial responsibility means 'the attorney had been personallyinvolved to an important, material degree' in investigations about or deliberations on the

transactions and facts in question during his/her tenure as a governmental employee." NewJersey Op 614 (7/26/88) defined "substantial responsibility" as making a decision in regard to a

matter of substance. It found that a government lawyer's assignment of a matter to a subordinate

purely on a rotational basis did not constitute "substantial responsibility." RI-11 found thatprehearing conferences and motions on the merits, including discovery motions, were

substantial. Maine Op 80 (8/5/87) noted that even uncontested motions on the merits of the casewere sufficient to cause disqualification. Alabama Op 88-43 (6/30/88) found a continuance of a

case was not on the merits and did not constitute "substantial responsibility."

Obviously, the context is important to the determination of what constitutes substantial

participation on a matter. For example, CI-672 found a former administrative law judge [ALJ]could represent a teacher as a client in an appeal to the State Tenure Commission, and a prior

review by that lawyer, which an ALJ of a petition and answer filed in that tenure appeal was not

"substantial participation" where the lawyer, while an ALJ, did not investigate, deliberate or

otherwise act on the merits of the appeal.

RI-4 determined that a former assistant city attorney, who had earlier read a police report andsigned a prepared drunk driving complaint and warrant, had not "participated personally and

substantially as a public officer" so as to preclude under MRPC 1.11 later representation of the

criminal defendant. In that case, the lawyer, while assistant city attorney had no other contact

with the arresting officer, witnesses, or investigation.

It is not necessary for the lawyer to make a determination on the merits of the matter, or to havedirect contact with witnesses, the parties or their lawyers, or to make an appearance before a

tribunal in order for there to be substantial participation. See RI-4, RI-11.

MRPC 1.11(d) defines "matter" broadly as:


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"(1) any judicial or other proceeding, application, request for a ruling or otherdetermination, contract, claim, controversy, investigation, charge, accusation,

arrest, or other particular matter involving a specific party or parties; and

"(2) any other matter covered by the conflict of interest rules of the appropriate

government agency."

The context of CI-672 and RI-4 was a former government officer later representing a private

client. Restrictions on a lawyer relinquishing a position of public responsibility are

understandably less severe than restrictions on a lawyer assuming a public position of power andresponsibility. To preserve that neutrality and integrity of the court, we are concerned about even

the appearance of impropriety, MCJC Canon 2. Thus, the measure of when an action is

"substantial" is less in the context of MCJC 3C and MCR 2.003(B) for disqualifying a judge thanfor a MRPC 1.11 disqualification of a lawyer who was formerly a public official. The touchstone

for judicial disqualification was aptly characterized in United States v DeLuna, 763 F2d 897, 907

(CA 8 1985):

" . . . if the facts provide what an objective, knowledgeable member of the public

would find to be a reasonable basis for doubting the judge's impartiality."

A primary purpose of the judicial disqualification rules is to maintain

public confidence in the administration of justice. Thus, a pro forma review of a court pleading

without more, such as suggesting changes or how to respond, would not constitute "substantialparticipation" for a former prosecutor who became a judge; but actually signing the complaint

and warrant would be "substantial," because that act entails a determination regarding probable

cause that the defendant committed a crime. A "knowledgeable member of the public would find. . . a reasonable basis for doubting a judge's impartiality" where the judge hears a case in which

he/she initiated and signed the initial document accusing the defendant of a crime.

CONCLUSION


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Thus, a judge who was the chief prosecutor in the county is disqualified from hearing any

portion of a criminal or civil case involving the state or county which was initiated or pending

while the judge served as prosecutor.

A judge who was the chief prosecutor in the county may hear civil or criminal cases involvingthe county or state if these cases were initiated after the judge resigned as prosecutor, even if the

judge had acted as lawyer for the county or state within the prior two years.

A judge who was the chief prosecutor in the county may hear civil or criminal cases involving

the county or state if these cases were initiated after

the judge resigned as prosecutor even if the charge was initiated under a policy set by the judge

while prosecutor, or even if the case was under investigation while the judge was prosecutor, so

long as the judge as prosecutor did not have any personal and substantial involvement in the

investigation.

A criminal case is "initiated" for purposes of this professional obligation with the first formal

prosecutorial pleading designed to bring the named alleged offender before the court. Personaland substantial involvement in a matter means being personally involved to an important,

material degree. Determination of what constitutes substantial participation on a matter dependson the context, and it need not involve a determination on the merits, direct contact with the

witnesses, the parties or their lawyers, or actual appearance before a tribunal.


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JI-133

April 28, 2006

SYLLABUS

A judge whose spouse is an assistant prosecuting attorney must disclose the relationship

whenever the prosecutors office appears in a matter pending before the judge. The

prosecutor appearing should disclose whether the spouse has participated personally and

substantially in the pending matter. If the spouse is not personally and substantially

involved in, has no supervisory role over, and is screened from the pending matter, the

judge is not automatically disqualified and may preside. In such event, a party in the

proceeding reserves the right to move for disqualification under MCR 2.003(C).

References: MCJC 1 and 2; Comment to MRPC 1.7; JI-101, J-4, R-3, CI 605, CI-1130;

MCR 2.003; People v Wells, 238 Mich. App 383, 391, 605 N.W.2d 374 (1999).

JI-132 is superseded.

TEXT

The judge is married to an assistant prosecuting attorney (the spouse) practicing in the same

jurisdiction at the prosecutors office. Sometimes the spouse appears as a trial attorney before

other judges in the circuit court, but never before his/her spouse. The spouse has no supervisory

authority in the prosecutors office except over his/her own cases that do not go before the judge. The spouse handles preliminary examinations in the district court and serves as a duty prosecutor by reviewing police reports and complaints to ascertain whether criminal charges

will be initiated.

Three screening procedures are employed to avoid conflicts of interest between the judge and thespouse in accordance with MCR 2.003(B), which calls for automatic disqualification if the

judges spouse is acting as a lawyer in the proceeding:

When felony cases are assigned to the judge, the judges clerk reviews the file to determinewhether the spouse has had any involvement with the case. If the spouse was involved, the case

is automatically assigned to another circuit judge.

The spouses supervisor double-checks the clerk and reviews cases assigned to the judge to

determine whether the spouse was involved in the case. For example, the spouse may haveserved as a duty prosecutor in the case by reviewing a police request for a warrant.

Criminal defense attorneys have unfettered access to all of the prosecutors files in anypending case, except for attorney work product, affording any defense attorney the opportunity

to discover involvement by the spouse that the first two procedures may have missed.


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Even if a case makes it past all three procedural safeguards, a Notice and Waiver ofDisqualification is sent to counsel of record disclosing the relationship between the judge and the

spouse, in accordance with the guidelines discussed in JI-101. The judge claims the waiver must

be signed before the case can move forward and if the waiver is not returned or if the defendantchooses to have the matter heard by a different judge, for any reason whatsoever, the file is

automatically assigned to another judge. Upon review of the material the inquirer provided tothis committee however, it appears if a defendant does not return the Notice and Waiver of

Disqualification in a timely manner, the non-reply is deemed a waiver of disqualification and thecase proceeds with the judge. Regardless, the judge maintains that JI-101, as currently

interpreted, places an overwhelming burden on the other circuit judges, as a significant

percentage of the judges defendants ask to be reassigned to different judges. None of thosedefendants has provided a reason for the disqualification other than a desire to seek reassignment

by virtue of the notice. The judge claims that this creates a significant imbalance in case

assignments and that it is difficult to reassign other cases to the judge because those cases areoften in advanced stages of litigation. The judge is not the first to encounter this situation.

Written in 1989, R-3 acknowledges that there has been an increase in the number of married

couples where both spouses are practicing law.

The judge submits that the procedural protections followed by the judges office and theprosecutors office, involving disclosure and screening of the spouse from any involvement incriminal matters pending before the judge, should enable the judge to preside over such matters

without the need for consent of the parties in each case, while reserving to any party the right to

file a motion to disqualify under MCR 2.003(C).

ISSUE

The inquirer asks whether a judge who is married to an assistant prosecuting attorney must

automatically withdraw from presiding in a criminal case on request of the defendant solelybecause of the marital relationship where:

The spouse will not appear before the judge in any matter;

The spouse has supervisory function only as to the spouses own assignments;

No case is assigned to the judge where the spouse has been involved;

The spouses supervisor screens the file to ensure the spouse has no involvement in the case;

If requested by the defendant, the judge will be disqualified if it is later discovered that thespouse was involved in the case.

DISCUSSION

Under MCR 2.003(B)(6), a judge is disqualified if the judges spouse is acting as a lawyer in theproceeding. Disqualifications, other than for personal bias or prejudice, may be waived under


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the Remittal of Disqualification provisions of MCR 2.003(D). Where the spouse is not a lawyer

acting in a proceeding before the judge, however, MCR 2.003(B) does not directly apply.

JI-101 required recusal of a judge married to an assistant prosecutor with supervisory

responsibilities in any case in which the prosecutor's office appeared before the judge, unless the

parties voluntarily requested the judge to proceed after disclosure of the relationship. JI-101involved a situation where a district judge was married to the chief trial attorney of the

prosecutors office in the same jurisdiction. As chief trial attorney, the spouse had significant

supervisory duties regarding prosecutorial matters, including the investigation, preparation andtrial of felony cases in circuit court, supervising felony dispositions, waivers, trial scheduling,

direct dispositions, trials, and the day-to-day activities of criminal investigations. JI-101

required the judge to disclose the relationship whenever the prosecutors office appeared in amatter before the judge, even if the spouse was not involved in the case. Additionally, the

prosecutor was required to disclose whether the spouse had personally and substantially

participated in the matter. Even if the prosecutor believed that the spouse had neither personally

nor substantially participated in the matter, the judge was to be recused, unless the parties

voluntarily asked the judge to proceed.

JI-101 relied upon the opinions set forth in R-3 and CI-605 that a judge is disqualified where the

law firm of the judges spouse appears as an advocate for any party, unless the relationship isdisclosed and all parties consent. When a relative of the judge is employed by an advocatesfirm appearing in the matter, the judge is recused unless the parties affirmatively ask the judge to

proceed in the matter. In that situation, the judge must disclose the relationship to all theparties to the proceeding and disqualify him/herself unless the parties formally request the judge

to continue. R-3 noted that [t]his is a more exacting standard than was suggested ... for lawyer

spouses, where disclosure would be mandatory only if all of the circumstances indicated that one

of the spouses could have a personal interest in the outcome of the matter. Of course, the role of

a judge differs from that of an advocate and this more exacting standard is clearly appropriate.By applying the same standard to a spouse in a supervisory role in a prosecutors office as was

applied to a spouse in a law firm appearing before the judge, JI-101 concluded that the judge is

recused unless the parties affirmatively ask the judge to proceed.

The question presented in this opinion is whether a different recusal standard should apply to a

judge married to a non-supervisory assistant prosecutor than to a judge married to a prosecutor

with supervisory authority or a member of a private law firm, where the spouse is not acting as a

lawyer in the proceeding.

In analyzing the disqualification issue presented, the interests of the community as a whole and

the efficient administration of justice must be balanced against the interests of individual parties.

On the one hand exists a heavy presumption of judicial impartiality. People v Wells, 238 Mich.App 383, 391, 605 N.W.2d 374 (1999). But on the other exists the notion that the nature of the

relationship between married couples poses a possible threat to the integrity of the judicial

process. The comment to MRPC 1.7 states [w]hen lawyers representing different clients in the

same matter or in substantially related matters are closely related by blood or marriage, there

may be a significant risk that client confidences will be revealed and that the lawyers familyrelationship will interfere with both loyalty and independent professional judgment. This


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committee has previously observed that in marital relationships, lawyers are likely to have a

certain degree of intimacy, confidentiality, and shared interest that creates the potential for

conflict of interest in connection with a marital relationship. R-3.

Canon 1 of the Model Code of Judicial Conduct states that an independent and honorable

judiciary is indispensable to justice in our society. A judge should participate in establishing,maintaining and enforcing high standards of conduct, and shall personally observe those

standards so that the integrity and independence of the judiciary will be preserved. The

Comment to MCJC 2 notes that [m]aintaining the prestige of judicial office is essential to asystem of government in which the judiciary functions independently of the executive and

legislative branches. Respect for the judicial office facilitates the orderly conduct of legitimate

judicial functions.

The inquirer distinguishes the present situation from those involving a judge married to a

prosecutor with supervisory authority (JI-101) or a private attorney (R-3, CI-605). Here, the

judges spouse does not have supervisory authority over other cases.

JI-101 found the spouses supervisory position to be pivotal in determining [the cases in which]

the prosecutor spouse had a personal and substantial participation. Screening the spouse from

certain cases was therefore a practical impossibility due to the spouses supervisory position.

The judge also expresses that an assistant prosecutor has no financial interest in proceedings

before the court handled by other attorneys from the prosecutor's office, unlike a spouse who is a

member of a private law firm appearing in a case. As noted above, J-4, R-3 and CI-605 requiredisqualification of a judge if a member of the law firm of the judge's spouse appears as an

advocate, unless the parties request the judge to continue presiding in the case after disclosure of

the relationship. The rationale of these opinions turned in part on the likelihood that the judge

may have (or be perceived to have) a pecuniary interest in a matter before the court because ofthe spouses financial and professional stake in the law firm handling the case, regardless ofwhether the spouse is appearing as a lawyer in the matter. In contrast, assistant prosecutors

appear before the court as representatives of the people, and typically have no more than a de

minimis interest in matters they present to the court. Unlike attorneys in a private law firm,

assistant prosecutors assigned to handle specific cases do not represent clients of a firm, do not

incur expenses that may be borne by other firm members, and do not pursue recovery or reliefthat will redound to the economic benefit of other firm members. And while a prosecutor acting

in a supervisory capacity cannot practicably be screened from other cases in the prosecutors

office, as noted in JI-101, and may be subject to heightened political pressure associated with thepolicy and practice of the office, a non-supervisory assistant prosecutor can be screened and is

not involved in managing or directing the work of others. Accordingly, the potential for conflict

of interest is more attenuated where a judge presides over a matter in which other prosecuting

attorneys appear and the spouse assistant prosecutor takes no role.

Therefore, where a spouse is an assistant prosecutor without supervisory authority over other

cases in the prosecutor's office and is not acting as a lawyer in the proceeding, the potential

conflict issue can be adequately addressed, and the rights of parties appearing before the courtprotected, if screening procedures are in place, the judge fully discloses the relationship to the


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parties, and both the judge and the prosecutor appearing in the matter affirm that the spouse hashad no role and will not be involved in the proceeding. In such circumstances, any party

reserves the right to bring a motion to disqualify under MCR 2.003(C) in the event a party

believes that grounds for disqualification exist under the particular circumstances presented.

CONCLUSION

The judge married to an assistant prosecutor must disclose the marital relationship whenever the

prosecutors office appears in a matter pending before the judge, and the prosecutor appearingshould disclose whether the spouse has participated personally and substantially in the pending

matter. If the spouse is not personally or substantially involved and has no supervisory role inthe pending matter, and if screening procedures are in place as to the spouse, the judge is not

automatically disqualified, and may preside over the matter following disclosure to the parties.In such event, a party to the proceeding reserves the right to file a motion to disqualify the judge

under MCR 2.003(C). If the spouse is personally and substantially involved in, or has a

supervisory role relating to, the pending matter, the judge is recused unless the disqualification is

remitted pursuant to MCR 2.003(D).

JI-132 is superseded.


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JI-44

November 1, 1991

SYLLABUS

A judge's "personal acquaintance" with an advocate or a party, without

more information indicating the nature of the acquaintance which gives rise

to a presumption of bias, is insufficient grounds for a judge's automatic

recusal. Where a judge is concerned about the appearance of bias because of

a personal acquaintance with a party or advocate, the judge should advise

the parties and their lawyers of the judge's concerns and recuse unless asked

to proceed.

A judge may not "perpetually recuse" from cases of a particular advocate or

particular party because of derogatory comments made against the judge by

the advocate or the party in a particular case, or because of the judge's

personal dislike of a particular advocate.

A lawyer may not associate as co-counsel with a lawyer in another firm, or

offer or accept a referral from a lawyer, when one of the reasons for

associating with or referring to the particular lawyer is to instigate a judicialrecusal.

References: MCJC 1, 2C, 3C; MCR 2.003(B); MRPC 3.5, 4.1, 8.4(c); J-4; JI-

23, JI-43; R-3;Brody v President & Fellows of Harvard College, 649 F2d 10

(CA 1 1981);Hirych v State Fair Commission, 376 Mich 384 (1965);Margiotta

v Kosik, et al, Civil No. 90-73002 (1-11-91).

TEXT


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The Committee has been asked about the ethical ramifications of judicial disqualification forreasons relating to the judge's personal relationship with one or more parties or lawyer advocates,

including the following circumstances:

1. May a judge recuse from hearing any cases of a particular party or advocate, on grounds of

being "personally and professionally acquainted"?

2. May a judge "perpetually disqualify" himself/herself from matters in which a particular party

or lawyer appears, because the lawyer in a particular case made derogatory remarks about the

judge on the record?

3. Where it is known that one judge of a multi-judge circuit recuses or seeks reassignment

whenever a particular lawyer is scheduled to appear before the judge, is it unethical for another

lawyer to associate with the lawyer as co-counsel or to refer cases to the lawyer in order to

effectuate the judge's recusal?

DISQUALIFICATION FOR PERSONAL ACQUAINTANCE

Although a judge is held to a high standard to avoid situations and relationships with persons

whose interests are likely to come before the judge, personal relationships in which judgescommonly find themselves are not ordinarily grounds for recusal. As noted inJudicial Conductand Ethics, Shaman, Lubet and Alfini, The Michie Company, 1990, pp. 124-127, a judge's social

relationship with a party, witness or advocate appearing before the judge is of special concern.

"On the one hand a judge should not be discouraged from having social or otherextrajudicial relationships; in fact, a judge's effectiveness can be enhanced by

them. On the other hand, the obvious problem of the appearance of bias andfavoritism exists when a friend or associate appears before the judge; these social

relationships should not dimish the dignity of the judiciary or interfere with

judicial responsibilities."Judicial Conduct and Ethics, at 124.


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MCJC 3C encourages judges to raise the issue of disqualification whenever the judge has causeto believe that disqualification is required under MCR 2.003(B). MCR 2.003(B) sets forth the

general rule for judicial disqualification:

"A judge is disqualified when the judge cannot impartially hear a case, including

a proceeding in which the judge . . .

(2) is personally biased or prejudiced for or against a party or

attorney. . . ."

Whether a judge can impartially hear a case is a subjective standard. Certain personalrelationships raise a presumption of bias,

Michigan Judicial Disqualification Conflicts of Interest

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