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 12, 1989
A relationship between a landlord/judge and a tenant/lawyer creates the appearance of impropriety if the tenant/lawyer practices before the landlord/judge. There is a similar appearance of impropriety if the landlord is the judge's spouse.
Whenever the tenant/lawyer appears before the landlord/judge, a full disclosure of the relationship must be made to all litigants and the consent of all litigants obtained, in order to avoid a disqualification.
A judge should manage investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as possible without serious financial detriment, a judge should divest investments and other financial interests that require frequent disqualification.
References: MCJC 5C; JI-6.
A judge's spouse owns commercial property within the circuit of which the judge presides. A lawyer has indicated interest in renting the commercial property. The judge recites that he "cannot dictate to [the spouse] how [the spouse] tenants the building."
A landlord/tenant relationship with a judge as landlord and a lawyer as tenant creates the appearance of impropriety if the lawyer practices before the landlord/judge. The fact that the judge's spouse is the actual owner of the building gives rise to a similar appearance of impropriety. If an appearance of impropriety could be avoided, MCJC 5C(3) could be circumvented by merely titling property in the name of a judge's spouse. The appearance of impropriety cannot turn on the existential question of whether or not a judge is able to dictate business decisions to a spouse. For purposes of appearance of impropriety, the litigating public would presume a judge and spouse to be partners in such investments regardless of the actual facts of the case.
The judge should, at a minimum, disclose the relationship and continue to sit on the case only with the informed consent of the parties. Actual judicial impartiality may be completely unaffected by the landlord/tenant relationship described above, especially given the technical lack of privity between the judge and the lawyer, but the relationship itself casts a shadow of doubt over the judge's acts and decisions affecting the tenant and his or her clients. Disclosure and consent would remove that shadow.
If the relationship causes frequent disqualifications, the judge should request the spouse to consider divesting the property pursuant to MCJC 5C(3).