J.Ethics Opinions: Disqualification Not Necessarily Required

State Bar of Michigan Ethics Opinions are not binding and do not have the effect of law, but many times are helpful to the inquirer in deciding ethical issues regarding future conduct. Adair v Michigan, 474 Mich 1027, 1039 n 13 (2006). The ethics committee has opined that some circumstances do not necessarily require judicial disqualification:

Personal Feelings About Attorney or Party

•Lawyer was being hostile toward the judge.

“A judge may not ‘perpetually recuse’ from cases of a particular advocate or particular party because of derogatory comments made against the judge by the advocate or the party in a particular case, or because of the judge’s personal dislike of a particular advocate.” State Bar of Michigan Ethics Opinion, JI-44 (November 1, 1991).¹

Personal Relationship With Attorney, Judicial Officer, Party, or Witness

•Employer of the judge’s spouse appeared before the judge as a witness.

“Absent actual bias, a judge is not disqualified from presiding in a matter in which the employer of the judges’s spouse is a witness or presents reports, when the work assignment of the judge’s spouse does not involve participation in the preparation of the testimony or the reports.” State Bar of Michigan Ethics Opinion JI-62 (December 12, 1992).

•Judge and the lawyer were opposing parties in the past.

“A judge is not automatically disqualified from presiding in a matter in which a lawyer/commissioner appears on behalf of a client. While litigation in which a judge and a lawyer are opposing parties is pending, the judge is disqualified from presiding in unrelated cases in which the lawyer appears. A judge is not automatically disqualified from presiding in cases in which the lawyer appears merely because the lawyer has in the past been an opposing party to the judge.” State Bar of Michigan Ethics Opinion R-15 (July 24, 1992).

•Judge was “personally acquainted” with an advocate or party.

“A judge’s ‘personal acquaintance’ with an advocate or party, without more information indicating the nature of the acquaintance which gives rise to a presumption of bias, is insufficient grounds for a judge’s automatic recusal. Where a judge is concerned about the appearance of bias because of a personal acquaintance with a party or advocate, the judge should advise the parties and their lawyers of the judge’s concerns and recuse unless asked to proceed.” State Bar of Michigan Ethics Opinion JI-44 (November 1, 1991).

•Judge being sued in an unrelated matter, and current matter involves the lawyer for the judge or the judge’s opponent.

“Absent actual bias or another clear reason, a Court of Appeals judge, sued in one case need not mandatorily recuse from another unrelated case where the lawyer for the judge or for the judge’s opponent is engaged.” State Bar of Michigan Ethics Opinion JI-43 (October 3, 1991).

“The Court of Appeals judge should consider voluntary recusal to avoid an untoward appearance while the judge’s own case is pending. If the judge decides the possible attribution of bias or prejudice is too attenuated to warrant recusal, the judge should still advise all parties and their counsel of the relationship and seriously consider any subsequent request for recusal.” State Bar of Michigan Ethics Opinion JI-43 (October 3, 1991).

•Judge sued after present matter filed.

“A judge need not di   squalify himself merely because one of the parties subsequently sues him,” and “one should distinguish between a suit brought after and one brought before the present one was filed.” People v Lowenstein, 118 Mich App 475, 486 (1982).

Professional Relationship With Attorney, Judicial Officer, Party, or Witness

•Police officer who was a probation officer with the judge’s court was also a witness in the case.

“Absent actual bias, a judge is not disqualified from presiding in a matter in which a part-time police officer who will be called as a witness is also a probation officer with the judge’s court.” State Bar of Michigan Ethics Opinion JI-61 (December 12, 1992).

•Judge from the same court was a witness in the case.

“Absent facts which show actual bias, a judge is not disqualified from presiding in a matter in which another judge on the presiding judge’s court is a witness, (1) if the presiding judge is not the trier of fact, or (2) if the judge/witness is not a necessary witness concerning a contested fact.” State Bar of Michigan Ethics Opinion JI-57 (August 24, 1992).

•Chief judge as the “employer” of all individuals working for the court.

“The chief judge of a [trial] court, who serves as ‘employer’ of all persons working for the court, may hire a lawyer as an employee of the court to represent juveniles in delinquency and in neglect proceedings or parents in neglect proceedings, only if (1) the judge does not interfere with the independent professional judgment of the lawyer or with the lawyer-client relationship; (2) the judge avoids ex parte contacts concerning matters undertaken by the lawyer; and (3) the judge takes steps to minimize any appearance of bias.” State Bar of Michigan Ethics Opinion JI-50 (March 19, 1992).

•Judge’s appointee appeared before the judge as an advocate.

“Absent circumstances which show bias a judge is not per se disqualified from presiding over matters presented by an appointee.” State Bar of Michigan Ethics Opinion JI-29 (October 30, 1990).

•Judge served on the Attorney Discipline Committee, and lawyer who faced the Committee appeared in front of the judge.

“A judge may serve as a member of an attorney discipline board hearing panel and participate in a disciplinary proceeding against a lawyer.” State Bar of Michigan Ethics Opinion JI-24 (May 17, 1990).

“A judge is not automatically disqualified from presiding in a matter in which a party was a respondent in a disciplinary proceeding in which the judge served as a member of the attorney discipline board hearing panel, or from presiding in a matter in which a lawyer for a party is a member of the disciplinary respondent’s law firm.” State Bar of Michigan Ethics Opinion JI-24 (May 17, 1990).