[These FAQs are neither legal advice nor an ethics opinion, and are not a substitute for your obligation to adhere to the requirements of the Michigan Rules of Professional Conduct (MRPC), the Michigan Code of Judicial Conduct , statutes, court rules, and/or case law and to review ethics opinions. This document does not reflect the ethical implications of any updates, modifications, or added features.]
Reporting and Disclosure Obligations
Appointments
Communication
Previous Employment
Disqualification Issues to Consider
Other
What is a judge’s reporting obligations if a judge has determined that an attorney has violated the rules of professional conduct or if a judge has violated the code of judicial conduct?
All attorneys have an ethical obligation under MRPC 8.3 to report a violation by another attorney when the attorney knows “that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.” When a judge becomes aware of unprofessional conduct, a judge should report an attorney to the Michigan Attorney Grievance Commission and a judge to the Michigan Judicial Tenure Commission in accordance with Canon 3(B)(3).
Judges have an ethical duty to prevent the unauthorized practice of law and ensure that they instruct court personnel to regularly check pleadings filed with the court to assure the person representing a party is a member of the State Bar (see JI-26). If a judge becomes aware of a person practicing law without a license to practice law[1] in the State of Michigan, the judge should report the person to the Unauthorized Practice of Law division of the State Bar of Michigan in accordance with MRPC 5.5 (see also MCR 8.126 for more information on temporary admission to practice in a Michigan court, administrative tribunal, or arbitration).
A judge may report an attorney to the Michigan Attorney Grievance Commission and to the Michigan Attorney Discipline Board when a lawyer is convicted of a crime under MCR 9.120 and when a lawyer has been declared to be incompetent or alleged to be incapacitated or asserting impaired ability under MCR 9.121.
For more information, see the Ethics Topic Index under Reporting Duties.
What are a judge’s ethical obligations to vulnerable colleagues?
Canon 1 requires judges to “participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.” Canon 2(A) provides that “[p]ublic confidence in the judiciary is eroded by irresponsible or improper conduct” and that “[a] judge must avoid all impropriety and appearance of impropriety.” Lastly, Canon 3(B)(3) provides “[a] judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.” Therefore, if a judge has a reasonable belief that the performance of a colleague is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, a judge should take steps to advise the colleague of the importance of receiving proper care and if necessary, take action by making a referral to the Judicial Tenure Commission in order for the judge to receive appropriate services and a possible referral to the Lawyers and Judges Assistance Program.
What are a judge’s ethical obligations to vulnerable attorneys who appear before them?
Canon 3(B)(3) provides “[a] judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.” If a judge has a reasonable belief that the performance of an attorney is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, a judge should take steps to advise the attorney of the importance of receiving proper care and if necessary, take action by making a referral to the Attorney Grievance Commission in order for the judge to receive appropriate services and a possible referral to the Lawyers and Judges Assistance Program. Further, if the judge finds that the attorney is unable to continue representing clients, either temporarily or permanently, the judge should contact the State Bar of Michigan’s Interim Administrator Program to ensure the attorney’s case load is covered by a successor attorney. Further information as to what judges need to know about the Interim Administrator Program may be found on the Michigan Judicial Institute’s website located here. Note that contacting the State Bar of Michigan’s Interim Administrator Program does not absolve the judge from their reporting requirement under Canon 3(B)(3).
Must a judge disclose to the parties their routine legal relationships with lawyers, financial, and otherwise, that has since terminated?
BEST PRACTICE: Disclosure of all relationships less than five years old and analyze relationships over five years to determine if there is cause to believe that there is a basis for disqualification under MCR 2.003. MCJC 3.
There is no clear line between relationships that are so old they require no disclosure and those that are recent enough to require disclosure. Canon 3(C) requires a judge to disclose relationships whenever there is cause to believe that a basis for disqualification may exist under MCR 2.003. MCR 2.003 states that a judge is disqualified where a lawyer was the judge’s partner within the preceding two years. It also requires a judge to be disqualified whenever there is an appearance of impropriety. The rule is silent about the duty of disclosure, and about the impact of relationships ending more than two years in the past.
May a judge require appointed counsel to appear on the day of the hearing, including but not limited to arraignments, when retained or appointed counsel fails to appear or when an in pro per party appears without the consent from the party?
No. Ethics opinion RI-51 states “[i]t is well established that under the Sixth Amendment a criminal defendant must be afforded a reasonable opportunity to secure counsel of the client's own choosing, Urquhart v. Lockhart, 726 F2d 1316 (CA8 1984); US v. Burton, 584 F2d 485 (DC Cir 1978), cert den 439 US 1069 (1979).” The judge requiring a court appointed counsel to represent a party who has retained or appointed counsel, who has not yet been appointed, or who has not yet retained an attorney would violate the party’s right to counsel of their own choosing.
Further, the court appointed counsel has ethical considerations they must abide by before taking on any representation, even in a limited scope, such as conducting a conflict check as required by MRPCs 1.7, 1.8, 1.9, and 1.18.
If the party wishes to terminate current representation, the court should adjourn the hearing, provide the party with the required financial documentation if necessary, and inform the party that current representation will continue and that the party must handle the issue of securing their retained or appointed representation as counsel has not yet been removed from the case as required under MRPC 1.16.
It should be noted that courts may require a court appointed attorney to be present for arraignments in case a party’s retained or appointed counsel does not appear, or a party appears in pro per as they have not yet secured representation. While arraignments are often considered proforma, retained or appointed counsel may have a legal strategy that could be negatively impacted by statements made at an arraignment. Thus, court appointed counsel may inadvertently create a negative impact on the party’s case. Further, if it is attempted to appoint court appointed counsel to represent a party on the same day as the hearing, the court appointed counsel is not in a position to competently represent the party under MRPC 1.1 as they have no knowledge of how the retained or appointed attorney intended to proceed with the case or have not had an opportunity to meet with their client and determine further legal strategy. “Pinch hitting” may cause substantial adverse ramifications to the party and their case.
If an attorney is missing from a scheduled proceeding, the court should summon the missing attorney and determine the reason for missing a scheduled court appearance and not fulfilling their duty as an officer of the court. The court may also wish to determine whether sanctions against the attorney are warranted for non-appearance. If the attorney continues to miss scheduled court appearances, the court should determine whether to report the attorney under MRPC 8.3 and inform the party that they may need to decide whether to continue having the missing attorney advocate for them or to find alternative counsel.
Can a judicial officer provide feedback about a lawyer’s courtroom performance when requested by the lawyer or the lawyer’s supervisor?
Judges may provide feedback to lawyers regarding their courtroom performance but only after the case has concluded, including any appeals that may remand the case to the trial court, and not during the pendency to avoid the appearance of impropriety or to avoid providing any tactical advantages to one side or the other. See MCJC 3(A)(4), (6); MCJC 2, (C).
However, a judge should not provide feedback to a lawyer’s supervisor as it may place the “judicial officer in a position of evaluating the attorney from a perspective of a supervisor-supervisee relationship. Providing such feedback may suggest that the judicial officer favors or has a special relationship with a particular law office or has a special interest in the development of its employees.” See California Judicial Formal Ethics Opinion 2021-018. Additionally, a judge “must avoid all impropriety and appearance of impropriety” (see MCJC 2) and by providing feedback to a lawyer’s supervisor, it places the judicial officer in a position where their actions may be scrutinized.
May a judge correct misinformation to the media?
Yes. A judge may make a public statement on behalf of educational, religious, fraternal, or civil/charitable organizations provided that the judge does not unduly rely on their judicial position to add credibility to the judge’s statements; does not opine on matters that may come before them as a judge; and otherwise, does not say something to bring the judiciary into disrepute. For example, a judge who is a member of a community’s education task force where misinformation about the work of the task force has been spread may counter the misinformation to the media as long as the judge does not use their position to lend credibility to their statements. See MCJC 5(B), JI-116, and Republican Party v White, 536 US 765 (2002).
May a judge give an interview about a case the judge has presided over while an appeal is pending? What if the case has gone through all appeals?
No. A judge should not speak or comment on the specifics of a case or anything related to the case while the case is within the appeal timeframes or in the appeal stages. By speaking or commenting on a case a judge has presided over during the appeal stage, those comments may greatly affect the party’s fundamental due process rights especially if the case is remanded to the court or other cases with similar facts may come before the judge. It is improper for a judge to comment on a case or on related facts that is making its way through the judiciary system. MCJC 3(A).
However, if the case has gone through the appeal process and no further appeals are available to the party per the court rules or statutes of the state, a judge may speak as it relates to a specific case as long as such activity does not detract from the dignity of the office or interfere with the performance of judicial duties. MCJC 4(B).
May a judge give legal advice to a pro per party on a matter over which the judge does not preside?
Maybe. A judge cannot practice law for compensation, MCJC Canon 4(H). Therefore, the operative question is whether the sitting judge is being compensated for any advice they gave.
May a family law referee hear family law cases on which they had worked on as a lawyer prior to becoming a referee?
No. The passage of time does not affect MCR 2.003(C)(1)(d), which forever precludes a judge [or a quasi-judicial officer] from hearing any cases they once handled or worked on as a lawyer.
May a judge give an interview about a case that is complete that the judge handled as a prosecutor or a defense attorney prior to taking the bench?
There is no inherent obstacle in doing the interview, so long as the judge is mindful of the dignity and responsibilities of their current position as they give the interview. MCJC 4(B).
May a former judge represent a party in a case over which the judge presided while in office if the parties agree?
Yes. The Rules of Professional Conduct allow a former judge to handle a case over which the judge presided, so long as all parties are informed and agree. MRPC 1.12(a).
May a judge continue to maintain a trust account for up to 7 years after being elected to the bench if they are unable to find the client to return the unclaimed funds under the Uniform Unclaimed Property Act?
No. MCJC 7(C) provides that a judge has six months, or until June 30 following the election to resign from organizations and activities and divest interests that do not qualify under Canon 4. In addition to MCJC 7(C), an important reason to close out the trust account is that so long as the account is open, the judge is not able to accurately reflect their status to the State Bar’s questions regarding IOLTAs when renewing their license to practice law. The judge has the following options in handling the client funds:
- Best Practice: Transfer the case to another attorney through the judge’s succession plan to hold the money in that attorney’s trust account and contact the client at their last known location notifying them of the transfer of their case and the location of their unclaimed funds. That attorney will then continue to make reasonable attempts to contact the client for a maximum period of seven years. If unclaimed after seven years, the funds should be handled as required by the Uniform Unclaimed Property Act.
- Best Practice: Engage the services of another attorney to hold the money in that attorney’s trust account on behalf of the judge. The judge would then become the “client” for the purpose of having the attorney hold funds for which the judge is responsible to their former client(s). If unclaimed after seven years, the judge may then request the attorney to transfer the funds as required by the Uniform Unclaimed Property Act.
- If the amount of money is significant enough, the judge can hire an attorney to file a petition for conservatorship with a probate judge, under which the conservator will continue the efforts to find the owner(s) of the money, file reports with the court, and then close the conservatorship once the owners are found and the funds are returned or after seven years if the owners cannot be found. If the owners are not found after seven years, the conservator should handle the funds as required by the Uniform Unclaimed Property Act.
- If the amount of money is not significant, the trust account may be closed, open a regular account, and transfer the funds to a regular account, where it can remain or be maintained for seven years if necessary. If unclaimed after seven years, the funds should be handled as required by the Uniform Unclaimed Property Act.
May a judicial officer who oversees abuse and neglect matters be a foster parent?
Pursuant to MCJC 2, judicial officers must avoid the appearance of impropriety. Judges should keep in mind that DHHS staff, parents’ attorneys, and lawyer guardian ad litems involved in the foster care placement may also appear in unrelated abuse and neglect cases in the same county or in a different county. For respondent parents, the fact that the judicial officer presiding over their case is a foster parent could create the appearance that other participants have an unfair advantage in the proceeding, contrary to Canon 2(C). Such a perception would require disqualification of the judicial officer under Canon 3(C).
Further, Canon 4(E) provides that a judge should refrain from financial dealings that tend to reflect adversely on impartiality. While the foster care stipend paid to foster parents is minimal, it is a financial activity parties could perceive as an influence on the impartiality of the judicial officer.
Can a judge preside over a case if one of the witnesses is related to the judge?
Maybe. It depends on the degree of relationship to determine whether the judge can preside. Ethics opinion J-6 quotes MCR 2.003(B)(6), which states
(6) The judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(a) is a party to the proceeding, or an officer, director or trustee of a party;
(b) is acting as a lawyer in the proceeding;
(c) is known by the judge to have a more that de minimis interest that could be substantially affected by the proceeding;
(d) is to the judge’s knowledge likely to be a material witness in the proceeding.
If there is a question as to the validity of the witness or the reasoning as to why the witness is being called, the judge should hold a hearing on the record and receive an offer of proof as to whether the witness is material to the case. If the degree of relationship with the witness is within the third degree of relationship to the judge or the judge’s spouse, MCR 2.003(B)(6)(d) requires recusal by the presiding judge. If the judge has had any discussions regarding the case with the proposed witnesses, the judge should recuse themself from presiding over the case.
May a judge use their judicial office as a donation to a charity fundraiser?
No. A judge should not use the prestige of a judicial office for fundraising purposes, MCJC 2(C) and 4(D). Further, a judge must avoid the appearance of impropriety, MCJC 2(A). For example, a judge asked whether they may donate a “lunch with the judge” and a judge-guided tour of the courthouse to a charity fundraiser. This would not be ethical as it would violate MCJC 2 and MCJC 4. Lawyers or parties who may come before the judge will believe they have an incentive to bid on the items to attempt to curry favor with the judge. The public may also have this perception if a lawyer or a party is the highest bidder for either item.
May a judge be paid for a recreational activity not connected with the judicial position?
Yes. A judge may be paid for a recreational activity (i.e., professional acting) if the activity does not implicate or compromise the judicial position and the income is reported to the State Court Administrative Office (SCAO). A judge may participate in an be compensated for some extra judicial activities, MCJC 4 and 6. If the recreational activity does not involve or compromise the judicial position, it is an acceptable avocation. JI-137.
May a judge attend a court hearing to support a relative?
Yes. The judge may attend a court hearing if they are merely a spectator. The judge may not invoke their position in any way. Simply being present at the relative’s sentencing does not create an appearance of impropriety.
May a judge model for a local company where the advertisement will include the honorific title, but not the judicial robe and for payment, the company contributes to a charity of the judge’s choosing?
No. The photo will appear in a marketing device for a local company and the judge is included due to their judicial status, which status will be known to the community whether their position is mentioned. As such, the judge is using the prestige of their office to further the business interest of the company in violation of MCJC 2(C). For example, a judge may be asked to model for a local jewelry company. The advertisement would include “his/her honor” or “judge” but would not include the judge wearing their judicial robe. In exchange, the jeweler would contribute $1,000 to a charity of the judge’s choice (note, the judge is not soliciting for the charity), and the charity would be identified in connection with the photograph. The jewelry company regularly publishes locally prominent people modeling jewelry from the jeweler. Even though the jeweler regularly uses locally prominent people within its advertisements, a judge would not be able to be a part of this marketing campaign. This type of scenario and similar scenarios like this would violate MCJC 2(C) because the judge is using the prestige of their office and their judicial position within the local community to further the business interest of the jewelry company.
May a judicial officer purchase a service or good at a discounted rate and if so, must the discount be reported pursuant to Michigan Code of Conduct Canon 6?
A judge may accept a discount on services and goods “provided they are awarded on the same terms as applied to nonjudicial applicants and do not adversely reflect upon the judge’s impartiality toward persons whose interests come before the judge.” J-75. For example, a person who is and has been eligible to receive a discounted rate at a specific vehicle manufacturing company for the last 30 years may purchase a vehicle with that same discount when they are a judicial officer as well.
Canons that are implicated in judicial acceptance and reporting of discounts are as follows:
- Canon 2 – The discount is provided due to a particular relationship to the company and not due to the person being a judicial officer.
- Canon 4(E) – The discount would not impact the judge’s impartiality.
- Canon 4(E)(4) – The discount is not a gift.
- Canon 6 – The discount is not compensation; discounts are not generally considered compensation as provided in Canon 6.
A judge may need to report the discount depending on the specifications regarding the discount.
What factors should a judge consider before attending events hosted by law firms, advocacy groups, or other organizations?
Judicial officers may attend events hosted by law firms, advocacy groups, and other organizations, but before doing so, should consider several factors and ensure that there is no appearance of impropriety, no detraction from the dignity of their office, and no interference with the performance of judicial duties. The factors to be considered include:
- whether the event is by invitation only or open to the public;
- who the hosts and sponsors of the event are;
- who will be attending the event;
- whether any lawyers or persons attending the event will appear before the judge in any active cases;
- whether gifts or items of a monetary value will be provided at a charge or no charge and what is the approximate monetary value of the gifts and/or hospitality being provided;
- whether the event will be displayed on any type of format, i.e., social media;
- the relationship between the judge and the host(s) and sponsor(s) of the event; and
- any other circumstances relating to the event that, if the judicial officer attended, may require the judicial officer to disqualify themselves in the future.
For more information, see MI Ethics Opinion JI-156.
[1] See MCR 9.119 regarding conduct of disbarred, suspended, or inactive attorneys. A judge should report an attorney who continues to practice after being disbarred, suspended, or becoming inactive with the State Bar of Michigan.