J-5

July 24, 1992

SYLLABUS

While litigation against the judges of a court for actions taken in an official judicial capacity is pending, and counsel for the judges appears before any of the judges in an unrelated matter, the judge must disclose the relationship to the parties and their counsel.

References: MCJC 3; MCR 2.003(B); JI-39, JI-43; R-14; CI-306; Kolowich v. Ferguson, 264 Mich 668 (1939); People v. Lowenstein, 118 Mich App 475 (1982); Pitoniak v. Borman's, Inc., 104 Mich App 718 (1981).

TEXT

A circuit judge of a metropolitan county has inquired on behalf of a multi-judge bench whether recusal by the judges of that bench is required in all cases where a private law firm (which happens to be one in which the inquiring judge was formerly a member) retained to represent the county circuit judges in superintending control or federal civil rights actions brought against them by disgruntled litigants appears before the court.

A similar question was addressed in ABA i1477, which required recusal where litigation against the presiding judge was ongoing, absent a remittal of disqualification and subject to the rule of necessity. ABA i1477 is predicated on Canon 3C of the 1972 ABA Model Code of Judicial Conduct, which is essentially the same as 1990 Model Code of Judicial Conduct Canon 3E. ABA i1477 states:

"The Model Code declares that a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. Canon 3.

"Canon 3C(1) of the Model Code sets forth instances in which a judge should disqualify himself. These are but examples, and the general standard is not limited to them. Any circumstances that objectively lead to the conclusion that the judge's impartiality might reasonably be questioned calls for disqualification. This objective standard extends beyond the judge's personal belief that his impartiality is not impaired. [Citation omitted.] Only in unusual circumstances would a judge's impartiality not be subject to reasonable question when a lawyer appearing before the judge in behalf of a client is at the same time representing the judge in litigation pending before another court, whether the lawyer is representing the judge in a personal matter or in a matter pertaining to the judge's official position or conduct. [Footnote omitted.]"

In Michigan the state court administrator may assign a visiting judge who is not a member of the same circuit bench to preside, therefore the exception of the rule of necessity is not operative. See, MCR 2.003(4). Further, MCJC 3 contains different language than that of the ABA Model Code. MCJC 3C reads:

"A judge should raise the issue of his disqualification whenever he has cause to believe that he may be disqualified under GCR 1963, 405."

GCR 1963, 405, is now MCR 2.003, which provides in pertinent part at MCR 2.003(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;

". . .

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

In Kolowich v. Ferguson, 264 Mich 668, 670 (1933), the Michigan Supreme Court stated:

"We accept the statement of the circuit judge that he has no bias or prejudice and can accord defendant a fair trial. Unless the fact of prejudice or bias is established or the necessities of justice to the defendant require it, a change of judge is an unjustifiable wrong to the public for it works delay, entails expense, and endangers the prosecution."

In People v. Lowenstein, 118 Mich App 475 (1982), the court stated:

"No human being (even a judge) is completely prejudice free. But our judicial system requires judges. Therefore, we make allowances. Under normal circumstances, we will assume (absent evidence to the contrary) that the judge is free enough from bias to make a tolerably nonpartisan decision. For example, a judge will occasionally preside over a case involving a defendant who had earlier pled guilty to the offense. Because this situation often enough arises and because the appearance of impropriety is not that high, we allow the trial judge to remain in charge of the case absent a showing of actual bias. [Citation omitted.] However, we realize that some situations are just too dangerous. Judges normally are not subjected to such special pressures and 'under a realistic appraisal of psychological tendencies in human weakness' we find that the appearance of justice requires the judge to disqualify himself. The test is not whether or not actual bias exists but also whether there was 'such a likelihood of bias or an appearance that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused'. Ungar v. Sarafite, 376 US 575, 588; 84 S Ct 841; 11 L Ed 2d 921 (1964). In fact, 'even though a judge personally believes himself to be unprejudiced, unbiased and impartial, he should nevertheless certify his disqualification where there are circumstances of such a nature to cause doubt as to his partiality, bias or prejudice'. Merritt v. Hunter, 575 P2d 623, 624 (Okla, 1978). The right to a fair tribunal is a right grounded in due process. United States v. Sciuto, 531 F2d 842 (CA 7, 1976)." People v. Lowenstein, 118 Mich App 475, 481-483 (1982).

The Lowenstein court goes on to favorably quote the following passage by the Arizona Supreme Court.

"'[N]ormally a judge should not sit on litigation involving a party who is a party to other litigation in which the judge himself is a litigant.' Smith v. Smith, 115 Ariz 299, 303; 564 P2d 1266, 1270 (1977)." 118 Mich App 475, 485.

The test of Lowenstein has been stated another way in Pitoniak v. Borman's Inc, 104 Mich App 718, 724 (1981):

"A party who challenges the impartiality of a judge or tribunal need not show actual prejudice; it is sufficient grounds for disqualification if the situation is one in which 'experience teaches that the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable'. Withrow v. Larkin, 421 US 35, 47; 95 S Ct 1456; 43 L Ed 2d 712 (1975), Crampton, supra, 351."

JI-39 states that when a judge is codefendant with the former law firm in a malpractice action, the judge is automatically recused when the malpractice defense counsel appear before the judge in unrelated matters. In the malpractice case the judge has a direct financial interest in the outcome.

JI-43 states that when a judge's former real estate partnership is sued for actions taken while the judge was a partner, and the judge's lawyer appears before the judge as advocate for another client in unrelated litigation, the judge should disclose the relationship to the parties.

". . . [W]hen suit of a substantial nature, not spurious nor used as a tactic to induce disqualification, is filed against a judge, the judge, even absent actual prejudice against a lawyer or party, should seriously consider recusal [in unrelated cases where the judge's lawyer appears as advocate], even when not mandatory. This may extend to cases other than the one in which the judge is actually a party, and should last as long as the judge's personal cause is at risk in the hands of the lawyer for any party." JI-43.

In this inquiry, although there may be no question of actual bias or prejudice for or against the members of the law firm representing the judge in another wholly unrelated matter, the question of appearance must be considered. To a member of the public who is before the court as a party in a lawsuit on the opposite side of the judge's lawyer, that party may well believe that the judge's lawyer carries esteem and approval by the Court beyond that of his/her own lawyer and that such esteem or approval will inure to the adversary's advantage.

Beyond a subjective feeling of disadvantage that the party might have lie other possible, albeit unlikely, concerns. Are the lawyers paid from the Court's budget? If so, might there be a temptation to hold down billings to the Court, in hope of an exchange wherein the lawyer receives a favored treatment on matters before the Court? What about the lawyer/client relationship itself? We know it is privileged and can involve the most sacrosanct secrets. Is it not possible that in defending a judge, the judge might tell the lawyer some secrets that might give the lawyer great leverage in litigating before that judge. Some of these concerns may seem far-fetched to a judge dedicated to fairness and impartiality. Nonetheless, they may well cause an adversary of the judge's lawyer to feel considerably disadvantaged.

CI-306 stated that when an assistant city attorney in an official capacity represents a judge who has been sued as a result of the judge's official acts, the judge is not disqualified from unrelated cases in which the assistant city attorney appears absent actual bias. In reaching that result it was reasoned that the representation was by a "public lawyer" i.e., one without private clients and who would not personally financially benefit from any appearance of judicial bias, and that the representation was "pro forma" because the judge has immunity for actions taken in an official capacity.

Here, although the judges of the court are being sued for acts in an official capacity, they are represented by private counsel, not a "public lawyer." When a lawsuit is filed against a judge for acts or omissions in an official capacity, the judge might not have personal choice of counsel, might never discuss the lawsuit directly with the counsel selected, does not personally pay the counsel, and might not even be apprised of the details of the matter as it progresses. Instead, counsel may be selected and coordinated by an insurer or at public expense. Representation of judges in their official capacity rarely involves the sharing of confidences and secrets of the judicial clients that would give the judges' advocate an advantage when appearing before the judges in unrelated matters.

Thus, although recusal is question of law for the presiding judge's initial decision, a judge has the obligation to disclose any ongoing lawyer/client relationship to all parties in any matter in which a member of the law firm representing the judge appears.

Pursuant to MCR 2.003(A), a party may raise the issue of a judge's disqualification by motion, or the judge may raise it. With respect to motions for disqualification, MCR 2.003(C)(3) states:

"Ruling. The challenged judge shall decide the motion. If the challenged judge denies the motion,

"(a) in a court having two or more judges, on the request of a party, the challenged judge shall refer the motion to the chief judge, who shall decide the motion de novo;

"(b) in a single-judge court, or if the challenged judge is the chief judge, on the request of a party, the challenged judge shall refer the motion to the state court administrator for assignment to another judge, who shall decide the motion de novo,"

The factors discussed above should be weighed by the judge in deciding any motion to recuse.

The ethical duties of a lawyer when considering representation of judges is discussed in R-14.