Is an administrative hearing officer disqualified from a case after filing a grievance against the lawyer appearing before them?

Plain-English summary

The opinion (which superseded an earlier JI-123 issued January 13, 2000) addressed an unemployment-hearing officer who is a lawyer holding a civil service position and acts in a quasi-judicial capacity in trial-like, adversarial hearings. The officer had filed a grievance with the Attorney Grievance Commission about the conduct of a lawyer appearing in a matter pending before the officer, and asked whether recusal was required while the grievance was pending.

The Committee first concluded that administrative hearing officers (AHOs) are not governed by the Michigan Code of Judicial Conduct. Following JI-102 and Bailey v. Holloway Construction Co, 461 Mich 883 (1999), it held that AHOs are bound by the Michigan Rules of Professional Conduct, not the Code of Judicial Conduct, though the judicial disqualification court rule (MCR 2.003) can serve as a guide. Because AHOs have no "clients," the lawyer-conflict rules at MRPC 1.7 through 1.9 do not directly resolve the disqualification question.

Applying MCR 2.003(B)(1) (a judge is disqualified when personally biased or prejudiced for or against a party or attorney) and Cain v. Dept of Corrections, 451 Mich 470 (1996), the Committee concluded that disqualification requires actual personal bias from an extra-judicial source, which the facts did not show. The Committee also worked through the four Cain categories of constitutionally intolerable risk of bias and found none applied. Filing the grievance fulfilled the officer's duty under MRPC 8.3(a), and because the Grievance Commission then carries the matter forward, the officer's role as complaining witness did not leave the officer "enmeshed" in other matters involving the lawyer. By analogy to RI-84 (a lawyer is not automatically disqualified from representing a client who has filed a grievance against the lawyer), the Committee held that, absent actual bias or prejudice, the AHO was not disqualified.

Currency note

This opinion was issued in 2001 and interprets the Michigan Rules of Professional Conduct as they then stood. The MRPC have since been amended, and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Are administrative hearing officers bound by the Code of Judicial Conduct?

A: No. The opinion concluded that AHOs are governed by the Michigan Rules of Professional Conduct, not the Code of Judicial Conduct, though MCR 2.003 can be used as a guide.

Q: Does filing a grievance against a lawyer disqualify the hearing officer from that lawyer's case?

A: Per the opinion, not by itself. Disqualification requires a showing of actual personal bias from an extra-judicial source, which the facts did not present.

Q: Why didn't filing the grievance create a disqualifying entanglement?

A: The opinion reasoned that filing fulfilled the officer's duty under MRPC 8.3(a), and the Grievance Commission then investigates and prosecutes, so the officer's role as complaining witness did not leave the officer "enmeshed" in other matters involving the lawyer.

Background and rules framework

The opinion interprets MRPC 8.3(a) / Model Rule 8.3 (the duty to report another lawyer's misconduct) and treats MRPC 1.7 through 1.9 / Model Rules 1.7-1.9 (lawyer conflicts) as inapplicable because a hearing officer has no clients. It applies MCR 2.003(B)(1) (judicial disqualification for personal bias) as a guide for non-judicial disqualification, drawing on JI-102.

Citations and references

Rules of Professional Conduct:

• MRPC 8.3(a) / Model Rule 8.3 (duty to report lawyer misconduct)
• MRPC 1.7-1.9 / Model Rules 1.7-1.9 (lawyer conflicts; held inapplicable to hearing officers)

Court rules:

• MCR 2.003(B)(1) (judicial disqualification for personal bias or prejudice)

Cases:

• Bailey v. Holloway Construction Co, 461 Mich 883 (1999), MCR 2.003 does not apply to workers' compensation appellate commissioners
• Cain v. Dept of Corrections, 451 Mich 470 (1996), the actual-bias and extra-judicial-source standard for disqualification

Other opinions cited:

• JI-102: AHOs perform adjudicative functions but are governed by the MRPC, not the Code of Judicial Conduct
• RI-84: a lawyer is not automatically disqualified from representing a client who filed a grievance against the lawyer

See also

• Mich Ethics Op. RI-166: Adjudicator and Ex Parte Material
• Mich Ethics Op. C-239: Hearing Officers and UPL
• Mich Ethics Op. JI-149: Judge Consulting Another Judge

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=832&Type=6

Original opinion text

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

JI-123

August 3, 2001

SYLLABUS

This opinion supersedes JI-123 issued January 13, 2000.

An administrative hearing officer who hears unemployment hearings is not directly governed by the Michigan Code of Judicial Conduct.

An administrative hearing officer who has filed a grievance against a lawyer is not disqualified from hearing a new matter involving the lawyer, absent actual bias or prejudice.

References: MRPC 1.7–1.9; MRPC 8.3(a); JI-102; RI-84; MCR 2.003; Bailey v. Holloway Construction Co, 461 Mich 883 (1999), Cain v. Dept of Corrections, 451 Mich 470 (1996).

TEXT

An unemployment-hearing officer who is a lawyer and holds a civil service position with the State of Michigan acts as a quasi-judicial officer during unemployment hearings. The hearings in question are frequently trial-like and adversarial in nature.

The hearing officer has filed a grievance with the Attorney Grievance Commission concerning the behavior of an attorney representing a party in a matter currently pending before the hearing officer. The hearing officer inquires whether or not a recusal is necessary in the matter involving the attorney during the pendency of the grievance.

The first question is whether or not administrative hearing officers ("AHOs") are subject to the Michigan Code of Judicial Conduct. In JI-102, this committee noted:

"We have repeatedly opined that although administrative hearing officers perform adjudicative functions, their conduct is governed by the Michigan Rules of Professional Conduct, not the Michigan Code of Judicial Conduct."

Similarly, in Bailey v. Holloway Construction Co, 461 Mich 883 (1999), the Michigan Supreme Court held that MCR 2.003, the judicial disqualification court rule, does not apply to workers' compensation appellate commissioners. Therefore, AHOs in the state of Michigan are not governed by the Michigan Code of Judicial Conduct and are therefore bound by the Michigan Rules of Professional Conduct.

As discussed in JI-102, the Michigan Rules of Professional Conduct do not address adjudicative disqualification, since the rules on lawyer disqualification involve conflicts of interest between a lawyer's duty to clients and others. Since administrative hearing officers have no "clients," the lawyer disqualification rules in MRPC 1.7 through 1.9 are not helpful. However, JI-102 also points out that even though the Code of Judicial Conduct is not binding, it and the corresponding disqualification court rules can be used as a guide for non-judicial disqualification issues.

MCR 2.003(B)(1) is the rule most applicable to the facts presented to this committee. It provides:

"A judge is disqualified when the judge cannot impartially hear a case, including but not limited to instances in which: (1) the judge is personally biased or prejudiced for or against a party or attorney."

In this case, the AHO filed a grievance with the Attorney Grievance Commission concerning the behavior of an attorney representing a party in a matter pending before the AHO. The difficult question for the Committee is whether the AHO's filing of a grievance demonstrates that he is "personally biased or prejudiced for or against a party or attorney." The meaning of this phrase was discussed by the Supreme Court in Cain v. Dept of Corrections, 451 Mich 470 (1996). In order to meet the standard set in the court rule, there must be a showing of actual and personal bias. Id. at 495. Personal bias must come from an extra-judicial source. Therefore, "A favorable or unfavorable predisposition that springs from facts or events occurring in the current proceedings may deserve to be characterized as 'biased' or 'prejudiced.' However, these opinions will not constitute a basis for disqualification 'unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.'" Id. at 496. Emphasis added.

The facts presented to the committee do not show personal bias or prejudice since there is no indication that circumstances giving rise to the grievance came from an extra-judicial source.

Even where the requirement of showing actual bias or prejudice under MCR 2.003(B)(1) has not been met, decision makers may still be disqualified where "experience teaches that the probability of actual bias on the part of the judge as decision maker is too high to be constitutionally tolerable." Cain, supra, at 498. A hearing officer can be disqualified if she or he falls into one of four categories. Among the situations that may present such a risk are when the judge or decision maker:

(1) has a pecuniary interest in the outcome;

(2) has been the target of personal abuse or criticism from the party before him;

(3) is "enmeshed in [other] matters involving petitioner . . ."; or

(4) might have prejudiced the case because of prior participation as an accuser, investigator, fact finder or initial decision maker." Id.

Nothing in the facts related to the committee suggests that the inquiring AHO has a pecuniary interest in the case, has been the target of personal abuse or criticism from a party to the case or participated earlier in the case as an accuser, investigator, fact finder or initial decision maker. The remaining issue is whether the filing of a grievance by the inquiring AHO against a lawyer appearing before him causes the AHO to be "enmeshed in [other] matters" involving that lawyer. The filing of that grievance fulfilled the AHO's requirement under MRPC 8.3(a). The Attorney Grievance Commission now has the responsibility to investigate and potentially prosecute the grievance. Therefore, although the AHO is the complaining witness in the grievance, his involvement does not rise to the level of being "enmeshed in other matters involving" the lawyer. Based on these facts, the committee finds that none of the four criteria identified in Cain, supra, are applicable to this inquiry.

In RI-84, this committee opined that a lawyer is not automatically disqualified from representing a client who has filed a grievance against the lawyer. By analogy, it is reasonable that an AHO should not be similarly disqualified, absent that actual bias or prejudice.

Therefore, absent actual bias or prejudice, an AHO is not disqualified from presiding in an administrative hearing where the AHO has filed a grievance against the lawyer appearing before the AHO.