JI-26

June 29, 1990

SYLLABUS

1. Judges have an ethical duty to prevent the unauthorized practice of law.
2. Administrative responsibilities of judges require them to instruct court personnel to regularly check pleadings filed with the court for signature and professional identification ("P" number) to assure the person representing a party is a member of the State Bar. Judges must instruct court staff to reject pleadings having no professional identification unless the person is appearing pro se.
3. A judge who knows of unauthorized practice of law activity must take steps to prevent the unauthorized practice and report the incident to authorities empowered to act upon the matter.
4. When unauthorized practice of law activity occurs within the presence of a judge, the judge must stop the proceeding; place as much information on the record as possible; advise the party to seek the services of a licensed lawyer; and take other remedial action authorized by law.
5. When unauthorized practice of law activity occurs outside the presence of a judge, the judge must report the incident to the appropriate authority empowered to investigate the matter.
6. The duty to report unauthorized practice of law activity requires judges to report all relevant information, including but not limited to (a) names and addresses of all persons having information concerning the matter, (b) transcripts of proceedings recorded, and (c) copies of all available pleadings, documents and correspondence.
7. A judge who suspects that a party has or is receiving legal assistance from an unlicensed person outside the presence of the judge should report the incident to the appropriate authority empowered to investigate the matter.

References: MCJC 2B, 3A(1), 3B(1); MRPC 5.5(b), 8.3; C-239; CI-404, CI-456, CI-488, CI-551, CI-689; ABA i1972; MCR 2.114(E), MCR 2.116(F), MCR 3.606, MCR 9.104; MCLA 450.681, MCLA 600.916; State Bar v. Cramer, 399 Mich 116 (1976); State Bar v. Galloway, 422 Mich 188 (1985); Supreme Court Rules Concerning The State Bar of Michigan, Rule 15, Section 2, Rule 16; Bylaws of the State Bar of Michigan, Article VI, Section 1.

TEXT

An advisory opinion has been requested on the ethical responsibility of judges who become aware that a representative of a party is not licensed to practice law in the jurisdiction. Sometimes the judge or court staff discovers the unauthorized practice. Other times the matter is raised by opposing counsel or otherwise disclosed in the course of proceedings.

The first question seeks advice as to the judge's responsibility during an adversary proceeding. The second inquiry concerns a situation where a judge becomes aware that a party to a proceeding has received legal assistance from an

unlicensed person outside the presence of the court. In both instances guidance on the appropriate remedy is requested.

It is unlawful for unlicensed persons to practice law in Michigan. MCLA 600.916; MSA 27A.916. Limiting the practice of law to active members of the State Bar is to protect the public. Activity which constitutes the "practice of law" is a complex question beyond the jurisdiction of this Committee. Questions involving unauthorized practice must be decided by the courts on a case-by-case basis. See ABA i1972 (August 11, 1972). In State Bar v. Cramer, 399 Mich 116, 133 (1976), the Michigan Supreme Court said, ". . . any attempt to formulate a lasting, all encompassing definition of 'practice of law' is doomed to failure." Former ABA Model Code of Professional Responsibility EC 3-5 says: ". . . [f]unctionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of the professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client . . . ."

Judges have a clear duty to uphold the integrity of the judicial process through the observance of law making it unlawful for a person to practice law without a license.

MCJC 2B states:

"B. A judge should respect and observe the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Emphasis added.

Judges have many responsibilities. During an adjudicative proceeding a "judge should be faithful to the law." MCJC 3A(1). Administratively, a judge must not assist a person who is unlicensed in the practice of law. MCJC 3B(1) states:

"A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials." Emphasis added.

Administrative responsibilities of a judge require the judge to require and make sure that court personnel regularly check pleadings for signature and licensure ("P number") to assure the person is a member of the State Bar. If the person signing the pleading cannot be identified as a member of the State Bar, the filing should be rejected unless the party is appearing pro se. An out-of-state attorney may appear for a party pursuant to Rules of the Supreme Court Concerning the State Bar, Rule 15, Section 2. No filings or appearances by out-of-state lawyers should be accepted until permission is granted pursuant to the Rule. Judges must instruct court staff to reject pleadings having no professional identification number unless a person is appearing pro se.

The Michigan Code of Judicial Conduct contains no explicit judicial directive pertaining to the prevention and reporting of unauthorized practice of law. However, judges are also lawyers and subject to the Michigan Rules of Professional Conduct to the extent the Code of Judicial Conduct is not inconsistent with the Rules. MRPC 5.5 states:

"A lawyer shall not:

". . .

"(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law."

A lawyer is therefore prohibited from assisting one who is not a member of the bar in the performance of activities constituting unauthorized practice. Clearly, not only must a lawyer avoid assisting a nonlawyer in the unauthorized practice of law, but the lawyer must take appropriate measures to prevent unauthorized practice. MRPC 5.5(b) is substantially similar in import to MCPR DR 3-101(A). Common sense dictates that if lawyers are obligated to prevent an unlicensed person from practicing law, then lawyers sitting as judges are equally bound to see that the practice of law is limited to members of the legal profession.

C-239 addressed the subject of a lawyer's responsibility to take appropriate action to "prevent" unauthorized practice of law by non-members of the Bar under MCPR DR 3-101(A), stating:

"While DR 3-101(A) speaks [of] in terms of a lawyer 'not assisting' unauthorized practice, the advice of Canon 3 is broader, counseling a lawyer to 'assist in preventing' unauthorized practice. Very little authority is available to define how far this obligation extends beyond simply refraining from assisting unauthorized practice. We have in prior opinions assumed, without discussion, an obligation to do what is in one's power to prevent unauthorized practice. CI-404; CI-551. With respect to the ethical conduct of lawyers, DR 1-103 requires the disclosure of unprivileged information which suggests unethical conduct by another lawyer. We believe that DR 3-101(A) likewise requires more of a lawyer than simply avoiding active assistance to unauthorized practice. It is our opinion that an attorney has an ethical obligation to employ appropriate means to prevent unauthorized practice of law by nonlawyers." Emphasis added.

C-239 held that an administrative law judge who becomes aware of conduct which "clearly" falls within accepted legal definitions of unauthorized practice of law must prevent the unauthorized practice in proceedings over which the administrative law judge presides. In cases in which the ALJ becomes aware of conduct which does not "clearly" fall within accepted legal definitions of unauthorized practice, but where the activity may amount to unauthorized practice of law, the ethical obligation is discharged by reporting the facts to the State Bar Committee on the Unauthorized Practice of the Law, the authority empowered to investigate and act upon such practices.

The rationale of C-239 requiring administrative agency hearing officers to prevent and report unauthorized practice activities, likewise applies to members of the judicial branch of the government. As stated in the Commentary to MRPC 5.5, "[l]imiting the practice of law to members of the Bar protects the public against rendition of legal services by unqualified persons." Above all, a judge must recognize the public need for competence of all persons who provide legal services and assure that all persons engaged in the practice of law are subject to the discipline required of all members of the legal profession.

The State Bar of Michigan is empowered to investigate and prosecute unauthorized practice cases. Supreme Court Rules Concerning the State Bar of Michigan, Rule 16. The State Bar of Michigan By-laws, Article VI, Section 1, gives the Committee on Unauthorized Practice of the Law jurisdiction to investigate and prosecute. Unauthorized practice is punishable by civil contempt proceedings. MCLA 600.916; MSA 27A.916.

It is professional misconduct for a lawyer or a judge to violate or attempt to violate the Rules of Professional Conduct or knowingly assist or induce another to do so. MRPC 8.4 states:

"It is professional misconduct for a lawyer to:

"(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or to do so through the acts of another;

". . .

"(c) engage in conduct that is prejudicial to the administration of justice;

". . .

"(e) knowingly assist a judge or judicial officer in conduct that is a violation of the Code of Judicial Conduct or other law."

Michigan Court Rules expressly identify nine grounds for attorney discipline including conduct that is "contrary to justice, ethics, honesty, . . . and in violation of the standards or Rules of Professional Responsibility adopted by the Supreme Court." See MCR 9.104. MRPC 8.3 requires a lawyer who knows about the misconduct of another lawyer or a judge to report that lawyer or

judge when the facts raise a "substantial question" about the person's honesty, trustworthiness, or fitness to practice law or hold office. MRPC 8.3(b) says lawyers are responsible for reporting judicial misconduct as well as misconduct of other lawyers when the misconduct is "significant" and calls into question the "honesty, trustworthiness or fitness" of the lawyer or judge.

A judge who knows of unauthorized practice of law activity, whether or not the activity takes place within or without the presence of the judge, has an ethical duty to take necessary steps to prevent the unauthorized practice and must report the incident to authorities empowered to act upon the matter. When a judge becomes aware during the course of the proceeding that a representative of a party is not licensed to practice law, the judge must stop the proceeding and should place as much information as possible on the record and forward a transcript to the State Bar Committee on Unauthorized Practice of the Law, together with the names and addresses of all persons having relevant information about the incident and copies of all available pleadings, documents and correspondence bearing upon the matter.

In addition to reporting the unauthorized practice activity to the State Bar, the judge has other options:

1. Contempt Order to Show Cause: If the unauthorized practice has occurred before the judge, MCR 2.114(E); MCR 2.116(F). If the unauthorized practice has occurred outside the presence of the judge, MCR 3.606.
2. Dismiss the action, strike the pleadings: Haberkorn v. Sears Roebuck & Co., 427 P2d 378 (Ariz 1967).
3. Void the judgment: County of Downey v. Johnson, 69 Cal Rptr 830 (1968); Tuttle v. Hiland Dairyman's Ass'n, 350 P2d 616 (Utah 1960); Housing Authority in the County of Cook v. Tonsul, 450 NE2d 1248 (Ill 1983).
4. Disciplinary complaint: Report violations of ethics rules to the appropriate discipline agency pursuant to MCJC 3B(3) and MRPC 8.3.

A judge who suspects, but does not know, that a party to a proceeding has or is receiving advice and assistance from an unlicensed person outside the presence of the court should report the matter to the appropriate authority authorized to investigate and act upon the situation. The Committee does not believe judges are required to investigate and report suspicious unauthorized practice of law activity. The judge's obligation to uphold the law does not mandate that a judge take action to investigate violations of law that occur outside the judge's presence.

If a judge knows that a lawyer is assisting a party in unauthorized practice, the judge must report the lawyer to the Attorney Grievance Commission. If the lawyer knows a judge is assisting an unlicensed person in the practice of law, the lawyer should report the judge to the Judicial Tenure Commission and the nonlawyer to the State Bar Committee on the Unauthorized Practice of the Law. In both cases the activities of the nonlawyer are reported to the State Bar Committee on the Unauthorized Practice of the Law.