State Bar of Michigan Weighs in on Potential Amendments to Canon 3 of Code of Judicial Conduct

The Michigan Supreme Court is considering an amendment of Canon 3 of the Michigan Code of Judicial Conduct designed to empower judges to help litigants be fairly heard. Read the proposed amendment here.

The State Bar of Michigan Board of Commissioners supports the proposed change with additional amendments.

The proposed change outlined in ADM File 2022-48 would add new language for Canon 3(4): “A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.”

The Board of Commissioners recommended adjusting the proposed language and adding an explanatory comment as well as changing “may make reasonable efforts” to “should make reasonable efforts” and adding “rules of evidence” along with the law and court rules to the things that the judge must follow.

The Board of Commissioners also supports adding the following explanatory comment drafted by the Bar’s Judicial Ethics Committee:

The judge has an affirmative role in facilitating the ability of every person who has a legal interest in a proceeding to be fairly heard. In the interest of ensuring fairness and access to justice, judges may make reasonable accommodations that help self-represented litigants to understand the proceedings and applicable procedural requirements, secure legal assistance, and be heard according to law. The judge should be careful that accommodations do not give self-represented litigants an unfair advantage or create an appearance of judicial partiality. In some circumstances, particular accommodations for self-represented litigants are required by decisional or other law. In other circumstances, potential accommodations are within the judge’s discretion.

Reasonable steps that a judge may take in the exercise of such discretion include, but are not limited to:

1. Construe pleadings to facilitate consideration of the issues raised.
2. Provide brief information or explanation about the proceedings.
3. Explain legal concepts in everyday language.
4. Ask neutral questions to elicit or clarify information.
5. Modify the traditional manner or order of taking evidence.
6. Attempt to make legal concepts understandable.
7. Explain the basis for a ruling.
8. Refer litigants to any resources available to assist in the preparation of the case or enforcement and compliance with any order.
9. Inform litigants what will be happening next in the case and what is expected of them.

The proposed language is based on model judicial conduct language proposed by the American Bar Association in 2007, which has subsequently been adopted in various forms by 35 other jurisdictions.

The proposed amendments to Canon 3 in ADM File 2022-48 will be considered at a public hearing. You can read the State Bar of Michigan’s full comments, comments from other parties, and information on upcoming public hearings and agendas here.

Posted: March 11, 2025