NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.
JI-6
June 1, 1989
SYLLABUS
A relationship between a landlord/judge and a tenant/lawyer creates the appearance of impropriety if the lawyer practices before the judge.
A full disclosure of the relationship must be made to all litigants, and the consent of all litigants obtained, in order to avoid a disqualification.
A judge should manage investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as can be done without serious financial detriment, a judge should divest investments and other financial interests that require frequent disqualification.
References: MCJC 2A, 5C(3); CI-293, CI-300.
TEXT
A judge is the owner of an office building in which the judge formerly practiced law; the former partners lease the building.The judge continues to disqualify himself from the former partners' cases, but the partners have now subleased some space in the building to another lawyer.The judge asks whether the judge is disqualified in cases involving the new lawyer.
A landlord-tenant relationship with judge as landlord and a lawyer as tenant creates the appearance of impropriety if the lawyer practices before the landlord judge.MCJC 2A.The fact that a tenant sublets from the lawyers rather than directly from the judge alters the legal connection between the two, but does not alter the appearance to the litigating public.If the relationship exists and a litigant learns of it from someone other than the judge, there is just cause to question the judge's impartiality.
If the tenant/attorney appears before the landlord/judge, the judge should, at a minimum, disclose the relationship and continue to sit on the case only with the informed consent of the parties.
Actual judicial impartiality may be completely unaffected by the landlord/tenant relationship described, especially as there is no direct privity between the landlord/judge and sublessee/lawyer, but the relationship itself casts a shadow of doubt over the judge's acts and decisions affecting the sublessee or the clients.Disclosure and consent would remove the shadow.In accord, CI-293, CI-300.
If the relationship causes frequent disqualification, the judge should consider divesting the property or renting to nonlawyers pursuant to MCJC 5C(3).