July 12, 1990
A retired judge may participate as mediator or arbitrator as long as (a) the retired judge does not participate during the period of any judicial assignment, (b) the retired judge is disqualified from mediation and arbitration in matters in which the judge served as judge, and is disqualified as judge from matters in which the judge participated as mediator or arbitrator, and (c) the participation does not reflect adversely on the retired judge's impartiality or raise an appearance of impropriety.
References: MCJC 2A, 2B, 5E, 5F; MRPC 1.12; J-3; RI-1; C-137; CI-190; MCR 2.003(B).
The State Court Administrator has asked for clarification on whether a retired Court of Appeals judge who wishes to accept assignments to the Court of Appeals as a visiting judge may serve (a) as a neutral mediator on a trial court mediation panel, (b) as a mediator appointed by the American Arbitration Association, or (c) as a neutral mediator for the Wayne County Mediation Tribunal.
MCJC 5E states: "A judge should not act as an arbitrator or mediator, except in the performance of his judicial duties." We are not aware of any authority interpreting this section of the Code, but it seems clear that a full-time sitting judge may not serve as arbitrator or mediator in a matter in which the judge is not presiding as judge. The question remains as to whether this prohibition should be strictly applied to retired judges who are subject to call.
The Committee has considered the application of other Canons to retired judges. In J-3 the Committee held that a retired judge may serve as director of a business, an activity prohibited to full-time sitting judges, provided that the retired judge during the period of any judicial assignment takes a leave of absence from the business, receives no remuneration for the business activity during the period of judicial service, and is disqualified from hearing any matter related to the interests of the business in which the retired judge participates.
In RI-1, C-137 and CI-190, it was acknowledged that part-time and retired judges could engage in the practice of law, in spite of MCJC 5F prohibiting that activity for full-time sitting judges, as long as they guarded against conflicts and disqualification and did not practice law while engaged in judicial duties.
The State Court Administrator's Judicial Assignments Guidelines, Policy and Procedure Manual, as amended November, 1988, provides the following information on the assignment of retired judges.
"Guideline I. 1, Former Judges: . . . 11. Any former judge who has acted as a mediator will not be assigned to preside at the trial of any case in which he or she served as mediator."
The retired judge is disqualified from presiding over a matter in which the retired judge previously acted as judge, MCR 2.003(B), thus the Guideline cannot be referring to mediation in the performance of the judge's judicial duties. We must conclude, therefore, that the mediation referenced in the Guideline contemplates that a retired judge subject to assignment may have formerly engaged in mediation or arbitration activities outside the performance of judicial duties.
Although a retired judge's participation in mediation and arbitration activities unrelated to the performance of judicial duties will increase the number of cases in which the retired judge will be disqualified from serving as judge, we do not think this inconvenience is significantly different from the disqualification of a retired judge because of previous participation as a judge in a matter, or previous participation as a lawyer in a matter. We note that MRPC 1.12(a) prohibits a lawyer from representing anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or arbitrator, unless all parties to the proceeding consent after consultation.
The retired judge should ensure that the mediation activities in which the retired judge participates are not so identified with one party, organization or interest group as to reflect adversely on the judge's impartiality or to raise questions of bias or the appearance of impropriety. MCJC 2A, 2B; MCR 2.003(B).
It is irrelevant whether the mediation or arbitration is undertaken under the auspices of a county program, an independent organization, or even the State Bar.