JI-79

February 7, 1994

SYLLABUS

An incumbent judge is not automatically disqualified from presiding in a matter in which a member of the judge's reelection campaign committee appears as an advocate for a party. The judge has an affirmative duty to disclose the relationship to opposing counsel and all parties. The lawyer has an affirmative duty to disclose the relationship to the client, and, if the judge fails to make timely disclosure, to the opposing counsel.

A lawyer who serves on an incumbent judge's reelection campaign committee shall not represent a party in a matter in which the judge presides if that representation could be materially limited by the lawyer's responsibilities to the judge and a disinterested lawyer would reasonably conclude that the representation would not be adversely affected.

The duty to disclose continues until the final campaign report for the candidacy has been filed.

References: MRPC 1.7(b), 1.10(a), 8.4(e); MCJC 2, 7; R-14; J-5; RI-52; JI-23, JI-39, JI-43, JI-44; JTC A/O 103; MCR 2.003(B), MCR 2.117(B)(3); Crampton v. Department of State, 395 Mich 347 (1975); People v. Gauntlett, 134 Mich App 737 (1984).

TEXT

An opinion has been requested of the Committee which addresses the propriety of judges or lawyers participating in proceedings where the lawyer is a member of the judge's reelection campaign committee. The following issues have been raised:

1. Is an incumbent judge automatically disqualified from presiding in a matter in which a member of the judge's reelection campaign committee appears as an advocate for a party? If so, is the judge disqualified when other members of the law firm of the campaign committee member appear before the judge?
2. Is a lawyer who serves on an incumbent judge's reelection campaign committee disqualified from taking cases which will come before the judge? If so, are other members of the lawyer's law firm disqualified?

The procedure for the disqualification of judges is addressed in MCR 2.003 which provides specific and general grounds for recusal. It is not necessary to establish actual bias or prejudice as MCJC 2 requires members of the judiciary to avoid even the appearance of impropriety in all activities. Case law has also provided examples of situations that raise the issue of the appearance of impropriety. For instance, in Crampton v. Department of State, 395 Mich 326 (1975), the Michigan Supreme Court held that a representative of the Secretary of State's office and police officers could not properly sit on the review board hearing driver's license appeals as it was equivalent to a factual issue being adjudicated by "a tribunal of which [an] adversary" was a member. Therefore, even absent actual bias or prejudice, there may be situations where, ". . . the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable." 395 Mich at 356.

The affirmative duty of a judge to avoid even the appearance of impropriety was addressed again in the case of People v. Gauntlett, 134 Mich App 737 (1984). An assistant prosecutor had leaked information regarding the possible sentence of a sex offender as discussed during a confidential conference in the judge's chambers. The entire Circuit Court bench filed a grievance against the assistant prosecutor, however, one circuit judge refused to disqualify from conducting

further proceedings in the case. Upon review, the Michigan Court of Appeals held, in part, that:

". . . the interests of justice require that he be removed to avoid even the appearance of impropriety." 134 Mich at 761.

It is clear that a judge presiding in a matter in which a lawyer on the reelection campaign committee is involved may be grounds for a motion for disqualification. Nonetheless, a further review of other ethics opinions demonstrate that recusal is not automatic.

In J-5 it was opined that if a lawyer represents a judge in a matter arising out of the judge's official capacity, and the lawyer subsequently appears on a case before the judge, this fact must be disclosed by the judge to the parties and opposing counsel. This duty of disclosure extends to any matter in which a member of the law firm appears as MCR 2.117(B)(3)(b) provides that an appearance of a lawyer is deemed to be the appearance of every member of the firm. Each member is thereby obligated to appear before the court as ordered for purposes of conference or trial.

A lawyer in this situation also has a duty to disclose the relationship with the judge to the client, other parties, and opposing counsel pursuant to MRPC 1.7 and 8.4(e). MRPC 8.4(e) further holds the lawyer to an affirmative duty to refrain from "knowingly" assisting a judge in conduct that is a violation of the Code of Judicial Conduct. Therefore, if the lawyer is aware that the judge has failed to disclose the relationship with the lawyer, the lawyer must disclose it. See R-14.

MRPC 1.7(b) precludes representation of a client if the representation may be materially limited as a result of the lawyer's representation to another client or to a third person (in this case, the presiding judge), unless a disinterested lawyer would "reasonably" believe that the representation of the client "will not be adversely affected" and the client consents after consultation. A lawyer working actively on the presiding judge's reelection campaign may be perceived as having an advantage, more credibility with the judge, or more access to the judge. If a lawyer is disqualified pursuant to MRPC 1.7(b), the conflict is imputed to other members of the lawyer's firm. Once again, actual bias or prejudice for or against a lawyer or party need not be demonstrated for a successful recusal. The rationale for the disclosure is reflected in J-5 where it states:

"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."

This situation also does not require automatic recusal, however, it remains incumbent for judges to promote and maintain confidence in the legal system. As pointed out in Section 10.03 of Shaman, Lubet, Alfini, Judicial Conduct and Ethics, Michie Company, 1992, pages 274-275:

"The need for the judiciary to avoid the appearance of partiality exists even in the absence of actual wrongdoing or favoritism. In a democracy, the enforcement of judicial decrees and orders ultimately depends upon public cooperation. The level of cooperation, in turn, depends upon a widely held perception that judges decide cases impartially . . . . Consequently, judges are called upon to avoid all activity that so much as suggests that their rulings are tempered by favoritism or self-interest."

In JI-43 it was concluded that absent actual bias a judge who is the subject of litigation in one case is not automatically recused in an unrelated case where the lawyer for the judge appears. The judge still has the duty to disclose this relationship to all parties and the other counsel. This informal opinion suggests that the judge "seriously consider any subsequent request for recusal." Furthermore, if the judge sits in a multi-judge court and reassignment is readily available, the judge should recuse. Any such disqualification is finite and should last only as "long as the judge's personal cause is at risk in the hands of the lawyer for any party."

There are opinions calling for automatic recusal such as JI-23 and JI-39. In JI-23, it was opined that a judge is automatically disqualified in a case in which one of the lawyers is a formally announced candidate opposing that judge in a forthcoming election. If the lawyer has not formally announced as a candidate against the judge, but it is rumored that the lawyer is expected to be a candidate, the judge should raise the issue and consider recusal upon the formal request. The Judicial Tenure Commission in JTC A/O 103 previously addressed this issue and concluded that ". . . a judge should disqualify himself or herself under such circumstances since the probability of bias is sufficiently great to create the appearance of impropriety even though no actual prejudice or bias is shown."

In JI-39 it was stated that a judge as a codefendant in a lawsuit is automatically recused when the lawyer defending the judge appears before the judge in unrelated matters. This opinion was based on the conclusion that the judge had a direct financial interest in the outcome of the lawsuit. It is obvious that this is in part contradictory to J-5 and JI-43 to the extent that it may be argued that a judge also has a financial interest in the conduct and outcome of the reelection campaign.

In order to resolve this dichotomy of automatic recusal, it is suggested that a judge carefully peruse the State Bar of Michigan publication, Becoming a Judge: Ethics and Campaign Practices which states: "A judge may be disqualified from hearing a case involving a party or an attorney who contributed to the judge's campaign if self-interest in reelection, gratitude for a campaign contribution, or personal sympathy for the contributor affects the judge's ability to decide the matter without bias." Emphasis added.

The publication does not mention the grounds for recusal based upon avoiding the appearance of bias. Nonetheless, case law and informal opinions have addressed this issue and judges must consider recusal on these grounds on a case by case basis. MCJC 7(B)(2)(b) provides that judges "may establish [campaign] committees of responsible persons" to promote the interests of the judge's candidacy. Lawyers as well as all members of the public should have a sincere and significant interest in the individuals who represent them on the bench. An inflexible rule of automatic recusal would discourage lawyers from participating in the election of qualified individuals to the bench at the expense of disqualifying the judge in unrelated matters. This would have a greater effect on single judge courts as the lawyer would effectively suspend their practice before a particular court or create the inconveniences associated with obtaining the services of another judge by administrative assignment. On the other hand, lawyers could manipulate the system by purposefully joining the campaign committees of judges which might be beneficial to their clients, i.e., supporting a judge who is recognized for sentencing criminals to maximum terms in order to appear only before judges who are more lenient.

It remains the case that the judge and lawyer have an affirmative duty to disclose the relationship and that recusal is not automatic. In order to avoid public criticism and doubt in the integrity of the judicial system, the better practice may be for the challenged judge to liberally consider requests for recusal in cases where a lawyer appears while a member of the judge's reelection campaign committee. The duty to disclose should continue until the final campaign report for the candidacy has been filed. Nonetheless, there remains one final safeguard for an aggrieved party, to wit, the opportunity for a de novo hearing pursuant to MCR 2.003(C).