Is a Michigan judge disqualified when a lawyer rents commercial property that is owned by the judge's spouse rather than the judge?

Plain-English summary

A judge's spouse owned commercial property within the circuit over which the judge presided, and a lawyer was interested in renting it. The judge said he could not dictate to the spouse how the spouse rented the building. The opinion applied MCJC 5C and extended the analysis of JI-6 to property held in the spouse's name.

The opinion concluded that a landlord-tenant relationship with a judge as landlord and a lawyer as tenant creates an appearance of impropriety if the lawyer practices before the judge, and that the spouse's ownership gives rise to a similar appearance. It reasoned that if titling property in a spouse's name avoided the appearance of impropriety, MCJC 5C(3) could be circumvented, and that the litigating public would presume the judge and spouse to be partners in such investments regardless of the actual facts. The appearance question therefore cannot turn on whether the judge can dictate business decisions to the spouse.

The opinion concluded that the judge should at a minimum disclose the relationship and continue to sit only with the informed consent of the parties. Although actual impartiality may be unaffected, especially given the technical lack of privity between the judge and the lawyer, the relationship casts a shadow over the judge's decisions affecting the tenant and the tenant's clients, which disclosure and consent would remove. If the relationship causes frequent disqualifications, the opinion concluded the judge should request the spouse to consider divesting the property under MCJC 5C(3).

Currency note

This opinion was issued in 1989 and interprets the Michigan Code of Judicial Conduct as it then stood. The Code of Judicial Conduct and the rules governing judicial disqualification have been amended since. Treat this page as historical context, not current guidance. Verify against the current Code of Judicial Conduct and court rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Does it matter that the judge's spouse, not the judge, owns the rented property?

A: The opinion concluded it does not change the appearance of impropriety; the public would presume the judge and spouse to be partners in such investments regardless of the facts.

Q: Can the judge avoid the issue by saying he cannot control the spouse's leasing decisions?

A: The opinion concluded the appearance question cannot turn on whether the judge can dictate business decisions to the spouse, because that would let MCJC 5C(3) be circumvented by titling property in the spouse's name.

Q: What must the judge do when the lawyer-tenant appears?

A: The opinion concluded the judge must at a minimum disclose the relationship and continue to sit only with the informed consent of the parties.

Q: What if the situation causes repeated disqualifications?

A: The opinion concluded the judge should ask the spouse to consider divesting the property under MCJC 5C(3).

Background and rules framework

The opinion interpreted MCJC 5C and MCJC 5C(3) of the Michigan Code of Judicial Conduct, governing a judge's financial dealings and the management or divestment of investments that require frequent disqualification. It followed and extended JI-6.

Citations and references

Code of Judicial Conduct (as cited):

• MCJC 5C (a judge's financial activities)
• MCJC 5C(3) (managing or divesting interests that cause frequent disqualification)

Other opinions cited:

• Michigan JI-6: appearance of impropriety where a lawyer-tenant rents from a landlord-judge

See also

• Mich Judicial Ethics Op. JI-6: disqualification when a lawyer-tenant appears before a landlord-judge
• 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=722&Type=6

Original opinion text

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

JI-13

October 12, 1989

SYLLABUS

A relationship between a landlord/judge and a tenant/lawyer creates the appearance of impropriety if the tenant/lawyer practices before the landlord/judge. There is a similar appearance of impropriety if the landlord is the judge's spouse.

Whenever the tenant/lawyer appears before the landlord/judge, a full disclosure of the relationship must be made to all litigants and the consent of all litigants obtained, in order to avoid a disqualification.

A judge should manage investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as possible without serious financial detriment, a judge should divest investments and other financial interests that require frequent disqualification.

References: MCJC 5C; JI-6.

TEXT

A judge's spouse owns commercial property within the circuit of which the judge presides. A lawyer has indicated interest in renting the commercial property. The judge recites that he "cannot dictate to [the spouse] how [the spouse] tenants the building."

A landlord/tenant relationship with a judge as landlord and a lawyer as tenant creates the appearance of impropriety if the lawyer practices before the landlord/judge. The fact that the judge's spouse is the actual owner of the building gives rise to a similar appearance of impropriety. If an appearance of impropriety could be avoided, MCJC 5C(3) could be circumvented by merely titling property in the name of a judge's spouse. The appearance of impropriety cannot turn on the existential question of whether or not a judge is able to dictate business decisions to a spouse. For purposes of appearance of impropriety, the litigating public would presume a judge and spouse to be partners in such investments regardless of the actual facts of the case.

The judge should, at a minimum, disclose the relationship and continue to sit on the case only with the informed consent of the parties. Actual judicial impartiality may be completely unaffected by the landlord/tenant relationship described above, especially given the technical lack of privity between the judge and the lawyer, but the relationship itself casts a shadow of doubt over the judge's acts and decisions affecting the tenant and his or her clients. Disclosure and consent would remove that shadow.

If the relationship causes frequent disqualifications, the judge should request the spouse to consider divesting the property pursuant to MCJC 5C(3).