This opinion rescinds Informal Opinion RI-52.

RI-361

May 3, 2013

SYLLABUS

A lawyer who is a candidate for judicial office and is simultaneously representing a client in a matter pending before his or her judicial opponent must disclose this fact to his or her client at the earliest opportunity, including prior to retention, if possible. MRPC 1.4(b). In order to continue the representation, the lawyer must determine whether his or her candidacy for his or her judicial opponent’s seat triggers any obligation under MRPC 1.7(b) and proceed accordingly.

References: MRPC 1.4(b), 1.6, 1.7(b), 3.5(b), 8.4(e); Canon 3C; R-20, RI-52, J-5, JI-23, JI-138.

TEXT

The Professional Ethics Committee ("Committee") reconsiders Informal Opinion RI-52 (June 8, 1990), which determined that a lawyer may not appear as an advocate in a proceeding before a judge seeking reelection when the lawyer is an announced candidate for that judge's seat in the forthcoming election. The Committee does so in light of the Judicial Ethics Committee's rescinding of Informal Judicial Opinion JI-23 (May 16, 1990) and issuance of Informal Judicial Opinion JI-138 (Nov. 6, 2012), which concludes that a judge is not per se disqualified from presiding over a case when one of the advocates is an announced candidate for that judge's seat in the upcoming election.

In abandoning a per se approach, JI-138 notes:

Certainly a judge could abuse the position of office to embarrass or disadvantage a judicial opponent. There may also be fear that the judge would be overly generous to a judicial opponent to avoid appearing as though the judge is attempting to gain an advantage. But, neither assumption should be made in every case over which a judge presides in which a judicial opponent serves as an advocate. Judges are charged with following the law and ethically administering their functions, and it is a reasonable expectation that this will occur in most instances.

In light of the Judicial Ethics Committee's rescinding of JI-23 and its conclusion as expressed in JI-138 that a judge is not per se disqualified from presiding over a case in which one of the advocates is an announced candidate for that judge's seat in the upcoming election, the lawyer candidate is, likewise, not per se prohibited from representing a litigant in that court. A lawyer who is a candidate for judicial office and is simultaneously representing a client in a matter pending before his or her judicial opponent must disclose this fact to his or her client at the earliest opportunity, including prior to retention, if possible. MRPC 1.4(b). In order to continue the representation, the lawyer must determine whether his or her candidacy for his or her judicial opponent's seat triggers any obligation under MRPC 1.7(b) and proceed accordingly.

There is no ethical basis for presuming that a lawyer's interest in being elected will so impact the lawyer's ability to advocate for clients that the lawyer must withdraw from representation of all clients with matters assigned to the court docket of his or her judicial opponent. Just as a judge must ethically discharge the duties of his or her judicial office, including determining whether there is a basis for disqualification in a given matter and acting accordingly, a lawyer must determine whether his or her ability to represent a client whose matter is assigned to the court docket of his or her judicial opponent may be materially limited by the lawyer's own interests in securing the position. If so, the lawyer may only continue the representation if the lawyer reasonably believes that the representation will not be adversely affected and obtains client consent after consultation, as is required by Michigan Rule of Professional Conduct (MRPC) 1.7(b).

This circumstance is distinguishable from the issues addressed in both Formal Opinion R-20 (July 20, 2008) and Formal Judicial Opinion J-5 (July 24, 1992), wherein the Committee addressed the ethical obligations of a lawyer who represents a judge in another matter1 and appears on behalf of another client in a case over which his or her judicial client presides. Formal Judicial Opinion J-5, referenced in R-20, concluded that the judge in that situation must raise the issue of disqualification. By contrast, JI-138 mandates only disclosure of the lawyer's and the judge's candidacy for the same office rather than per se disqualification of the judge.2

R-20 infers that, because J-5 concludes that a judge is obligated to raise the issue of disqualification as is required by Canon 3C of the Code of Judicial Conduct (Code) and that a failure to do so would violate the Code, the lawyer in that circumstance must take steps to avoid violating MRPC 8.4(e).3 R-20 contemplates that the lawyer, who represents the judge, make direct contact with the judge for the limited purpose of requesting the judge to raise the issue of disqualification, suggesting that such a communication is not prohibited ex parte communication about a pending matter as set forth in MRPC 3.5(b). The Committee does not believe such a measure is either warranted or appropriate in the circumstances at issue here. Nor does the Committee believe that MRPC 8.4(e) is implicated in these circumstances. The fact that the lawyer and the judge are candidates for the same office is not information afforded protection from disclosure by MRPC 1.6.4

Informal Opinion RI-52 is rescinded.

1 R-20 notes that, like the earlier opinion it modifies, R-14, it addresses the circumstance of a private practitioner in a law firm's representation of a judge in an official capacity, and does not pertain to circumstances in which (i) the lawyer is the state attorney general or other public attorney or their assistants under a legal duty to represent judicial officers in matters concerning their judicial office or duty, who are at the same time representing the state or their agencies before the judge; or (ii) a representation of an entire bench—the Court itself.

2 JI-138 provides in pertinent part, "As in other situations where disqualification is not mandated, but an issue exists which, left undisclosed, might cause a party to be concerned about the judge's impartiality, the judge should disclose the advocate's candidacy for the judge's seat as soon as practicable to all litigants in the case."

3 MRPC 8.4(e) provides that it is professional misconduct for a lawyer to "knowingly assist a judge or judicial officer in conduct that is a violation of the Code of Judicial Conduct or other law."

4 The lawyer candidate should be aware of obligations under MRPC 8.2(b).