Must a Michigan judge whose spouse is a supervising assistant prosecutor recuse when the prosecutor's office appears, and can the judge offer a waiver?

Plain-English summary

A district court judge in a five-judge district was married to an assistant county prosecutor who served as Chief Trial Attorney in a 16-lawyer office, supervising felony investigation, preparation, and trial, juvenile waivers and scheduling, and the day-to-day work of criminal investigators. The spouse was barred from directing, participating in, or supervising any case assigned to the judge, and cases would not be assigned to the judge during periods when the spouse was in charge of the office. The judge asked whether disqualification could be avoided if the spouse did not participate in the judge's cases, the judge disclosed the relationship, and the parties did not object. The opinion applied MCR 2.003(B) and the Rules of Professional Conduct on government lawyers.

The opinion explained that MCR 2.003(B)(5) bars a judge from hearing a case where an advocate is within the third degree of consanguinity or affinity, and that prohibition is mandatory and unwaivable, but that prior opinions (R-3, C-216, CI-605, J-4) had addressed the different situation where a relative of the judge works in an advocate's firm but is not the appearing advocate. Under that line, the judge discloses the relationship, the firm discloses whether the relative participated personally and substantially, and the judge is recused unless the parties affirmatively ask the judge to proceed. The opinion stressed that the parties' decision must be free of any influence from the judge, and that the judge should not propose a waiver, drawing on ABA Model Code Canon 3F (remittal of disqualification), under which the judge must not solicit or hear comment on remittal unless the lawyers jointly propose it after consultation.

The opinion concluded that the degree of the spouse's participation drives the analysis, that "personal and substantial participation" (a term from MRPC 1.11 and 1.12, explained in JI-34 and RI-11) means involvement to an important, material degree including any participation on the merits, and that JI-31 and the supervisory structure of the office are pivotal. Because the spouse directly supervised all case investigators and was thus involved in collecting evidence, often before anyone knew which judge would be assigned, the opinion concluded there was no way to screen the prosecutor spouse for district court matters that might later be assigned to the judge spouse.

Currency note

The committee later issued JI-133, which the State Bar notes effectively supersedes JI-101; this page is indexed for historical research and is not current guidance. This opinion was also issued in 1995, before Michigan's 2002 adoption of the Ethics 2000 revisions to its Rules of Professional Conduct, and it interprets the Michigan Code of Judicial Conduct and disqualification court rule as they then stood, all of which have since been amended. Treat this page as historical context. Verify against JI-133 and the current rules before relying on anything mentioned here.

Common questions

Q: Is this opinion still current?

A: No. The opinion notes that JI-133 effectively supersedes JI-101; consult JI-133 and the current rules for present guidance.

Q: Must the judge recuse when the spouse's prosecutor's office appears?

A: The opinion concluded the judge must disclose the relationship and is recused unless the parties voluntarily ask the judge to proceed, after the appearing prosecutor discloses whether the spouse participated personally and substantially.

Q: Can the judge offer the parties a waiver form?

A: No. The opinion concluded the judge should not propose a waiver, because that could pressure the parties and undermine the voluntariness of their consent.

Q: Why couldn't the spouse simply be screened from the judge's cases?

A: The opinion concluded that because the spouse supervised all case investigators and was involved in collecting evidence, often before the assigned judge was known, there was no reliable way to screen the spouse for matters that might later be assigned to the judge.

Background and rules framework

The opinion interpreted MCR 2.003(B) (including (B)(5)) on judicial disqualification and the "personal and substantial participation" standard drawn from MRPC 1.11 and 1.12 (Michigan's analogues to Model Rules 1.11 and 1.12). It relied on prior opinions J-4, R-3, C-216, CI-605, CI-1130, JI-31, JI-34, and RI-11, and on ABA Model Code Canon 3F.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / MRPC 1.11 (former and current government lawyers; personal and substantial participation)
• MR 1.12 / MRPC 1.12 (former judge, arbitrator, or adjudicative officer)

Code of Judicial Conduct and court rules (as cited):

• MCR 2.003(B), (B)(5) (grounds for disqualification, including relatives appearing as advocates)
• ABA Model Code of Judicial Conduct Canon 3F (remittal of disqualification)

Other opinions cited:

• Michigan J-4, R-3, C-216, CI-605, CI-1130: disclosure-and-consent where a relative works for an appearing firm
• Michigan JI-31, JI-34, RI-11: supervision of a spouse's work; personal and substantial participation
• Michigan JI-133: later opinion that effectively supersedes JI-101

See also

• Mich Judicial Ethics Op. JI-35: a judge negotiating for employment before leaving the bench
• Mich Judicial Ethics Op. J-4: judge disqualification for former-firm, financial, and family ties

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=810&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

SEE JI-133, which effectively supersedes JI-101.

JI-101

June 6, 1995

SYLLABUS

A judge whose spouse is an assistant prosecuting attorney must disclose the relationship on the record whenever the prosecutor's office appears in a matter pending before the judge, the prosecutor appearing should disclose whether the spouse has participated personally and substantially in the pending matter, and the judge is recused unless the parties voluntarily ask the judge to proceed.

A judge should not offer or propose any waiver or consent form to the parties considering the judge's disqualification.

References: MRPC 1.11, 1.12; J-4, R-3, C-216; CI-605; JI-31; MCR 2.003(B).

TEXT

A district court judge in a five judge district is married to an assistant county prosecutor practicing in the same jurisdiction. The spouse, an assistant prosecutor, serves as Chief Trial Attorney in an office of 16 lawyers. The duties of that position include supervising the investigation, preparation and trial of felony cases in circuit court, supervising felony dispositions, waivers, and trial scheduling of juvenile offenders into circuit court, direct supervisory control over the day-to-day activities of criminal investigators. The spouse is barred from directing, participating in or supervising any case assigned to the judge, and from supervising other assistant prosecuting attorneys appearing in cases assigned to the judge. During any temporary absence from the office of the two more senior prosecutors, and during which time the spouse would be in charge, cases would not be assigned to the judge.

The judge asks whether judicial disqualification may be avoided in cases in which the prosecutor's office appears if the following procedure is followed:

• the assistant prosecuting attorney spouse does not participate in cases assigned to the judge;

• the judge discloses the personal relationship to all parties and counsel;

• the parties and counsel do not object to the judge presiding.

MCR 2.003(B)(5) forbids a judge from hearing a case when one of the advocates is within the third degree of consanguinity or affinity to the judge. The prohibition is mandatory, and may not be waived by the parties and counsel.

Several ethics opinions have addressed the situation where a relative of a presiding judge is employed by an advocate's firm, but is not the advocate appearing in the matter. R-3 opined that a judge is disqualified from presiding over a case where the law firm of the judge's spouse appears as an advocate for either party, unless the parties request the judge to continue presiding in the case after disclosure of the relationship and consultation. In accord, C-216, CI-605.

Formal Opinion J-4 further explained the recommended procedure when a presiding judge had a relative working in an advocate's law firm. The opinion resolved that the judge should disclose the relationship on the record, the law firm should disclose whether the judge's relative has participated personally and substantially in the matter, and the judge is recused unless the parties ask the judge to proceed.

Therefore, when a relative of the judge is employed by an advocate's firm appearing in the matter, the judge is recused unless the parties affirmatively ask the judge to proceed in the matter.

It is important that the decision of the parties regarding the judge's recusal be formed without any influence from the presiding judge. Any waiver proposed by the presiding judge, such as that proposed by the inquirer, does not allow for the voluntariness of the parties' consent, and could be construed by parties as pressure to consent. This issue is addressed in ABA Model Code of Judicial Conduct Canon 3F, Remittal of disqualification, which states in pertinent part:

". . . If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding . . . ." Emphasis added.

The commentary states in pertinent part:

"To assure that consideration of the question of remittal is made independently of the judge, a judge must not solicit, seek or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose remittal after consultation as provided in the rule."

Therefore, the judge should not propose a waiver to the parties.

In determining whether to consent to the judge's participation in the matter, the parties and their counsel need to evaluate whether the judge's spouse has participated in the pending matter. The greater the participation of the judge's spouse, the less likely the parties will consent to the judge's participation. JI-31 concluded that a judge should not supervise the performance of or review judicial decisions of the judge's spouse. MCR 2.003(B)(5) would seem to stand for the principle that a judge should not review the work of a lawyer spouse in a matter.

The supervisory structure of the prosecutor's office becomes pivotal in determining which cases the prosecutor spouse has had a "personal and substantial participation." In R-3 we noted:

"Similar questions can arise where one or both spouses are employed by a governmental entity rather than by a private firm, although analysis should be the same. CI-1130, decided under the Code, dealt in part with the question of whether Spouse B could represent criminal defendants who were being prosecuted by lawyers who were supervised by Spouse A in the prosecutor's office. The opinion concluded that, because of the supervisory structure in the office, Spouse A was effectively acting in an adverse capacity to Spouse B, a situation which was held to be prohibited by the Code. Such a situation would not, as noted, be absolutely prohibited by the MRPC, however disclosure to the clients and consent would be necessary. The continued significance of CI-1130 under the MRPC is its recognition of the importance of the supervisory structure in the prosecutor's office, which may or may not be distinguished from that of a private firm." Emphasis added.

The term "personal and substantial participation" is one used in the Michigan Rules of Professional Conduct in describing conflict situations of public lawyers and public officials. See MRPC 1.11, 1.12. The term is described at length in JI-34 and RI-11, and those descriptions will not be repeated here. We note, however, that the term means personal involvement to an important, material degree in investigations about or deliberations on the transactions and facts in question, and includes any participation on the merits of a matter. Many of these activities are conducted before litigation is filed, and thus before the prosecutor knows which judge will be assigned to hear the matter. Further, the facts provided indicate that the spouse directly supervises all case investigators, and thus is involved in the collection of evidence. Thus there is no way to screen the prosecutor spouse for district court matters which might in the future be assigned to the judge spouse.