CI-605

February 20, 1981

SYLLABUS

A judge is automatically disqualified from presiding over a case in which one of the attorneys appearing before the court is the judge's spouse.

A judge is not automatically disqualified from hearing a case that is conducted by an unrelated attorney when the judge's spouse is the member of the same law office as the lawyer acting in the proceeding. In such a case, the judge must disclose the relationship to all the parties to the proceeding and disqualify him or herself unless the parties formally request the judge to continue.

TEXT

An opinion has been requested in clarifying the limitation which a lawyer may face in practicing law in the county when the lawyer's prospective spouse is a local judge and the lawyer is associated with a private law firm or acting as an assistant county prosecutor. Upon review of the law in this area, this inquiry has been rephrased in the following three issues:

1. Whether a county judge is automatically disqualified from presiding over a case in which one of the lawyers appearing before the court is the judge's spouse;
2. Whether a county judge is automatically disqualified from presiding over a case in which one of the lawyers appearing before the court is associated in the private practice of law with the judge's spouse and;
3. Whether a county judge is automatically disqualified from presiding over a case or proceeding in which the county prosecutor appearing before the judge is a member of the prosecutor's office in which the judge's spouse is assistant county prosecutor.

In Michigan, GCR 912 deals with the disqualification of judges. The pertinent provision provides as follows:

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

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

"(5) is within the third degree (civil law) of consanguinity or affinity to a person acting as an attorney or within the sixth degree (civil law) to a party." Emphasis added.

The drafting notes to GCR 912(5) indicate that the scope of automatic judicial disqualification is limited to the case where the judge's parent, child, uncle or spouse is acting as a lawyer in a case before him/her. The Drafting Committee explained that:

. . . A judge is disqualified, for example, if the judge's parent, child, uncle, spouse is acting as an attorney in the proceeding. The language, "a proceeding where the judge is within the third degree of consanguinity or affinity to a person acting as an attorney, "is an attempt to define more precisely the class of persons who would be covered by this sub-rule . . . . First, the person must be "acting as an attorney." This limits application of the sub-section to those attorneys performing legal functions and legal tasks . . . [T]he attorney must also be acting "in the proceeding." Attorneys performing legal functions not connected with a particular proceeding are excluded from coverage; only the language covers those attorneys who work directly on a case. 6 Michigan Court Rules Annotated, 1978.

Clearly upon the lawyer's marriage to a local judge, the judge would be disqualified under GCR 912 from hearing any case in which the lawyer is acting as an attorney in the proceeding, whether the lawyer is associated with a private law firm or remain associated with the county prosecutor's office.

The next question is whether the lawyer's marriage to a local judge will bar those lawyers associated with you, whether in private practice or in county government, from appearing as a lawyer in a proceeding before the spouse. C-216 holds that a judge is not automatically disqualified from hearing a case which is conducted by an unrelated lawyer although a relative of the judge within the third degree, as defined by GCR 912(5), is a member of the same law firm as the lawyer acting in the proceeding. C-216 requires that the judge disclose the relationship of all of the parties and disqualify him or herself unless all parties to the proceeding "formally request" the judge to continue.

CONCLUSION

Upon the lawyer's marriage to a local judge, the judge will be automatically disqualified from any case in which the lawyer is acting as an attorney in the proceeding. Additionally, where the lawyer is not acting as an attorney in a proceeding before the spouse, the judge will not automatically be disqualified from hearing a case which is conducted by an unrelated lawyer merely because that lawyer is associated with you in the practice of law. In such a case the judge should disclose the conflict and the judge should disqualify him or herself unless all the parties to the proceeding formally request the judge to continue to here the case.