Can a judge sit in on a family member's deposition or hearing just to give moral support?

Plain-English summary

The opinion addressed a sitting judge who asked whether it is ethical to attend a deposition or hearing of a family member solely to offer support, and not to participate in the matter. The Committee analyzed the question under MCJC 2A, which directs a judge to avoid impropriety and the appearance of impropriety, and MCJC 2C, which bars a judge from lending the prestige of office to advance others' interests.

The Committee reasoned that a judge is a public figure whose presence at a proceeding will inevitably be noticed, and an inference can be drawn that the judge is attempting to influence the outcome. Whether or not that is true, an appearance of impropriety can arise where the judge is neither a party nor a witness and has no legally cognizable interest requiring attendance. The Committee balanced that concern against a judge's natural place at the side of a child or parent during stressful proceedings, and found no policy reason to bar a judge from attending when the party is within the third degree of consanguinity or affinity. It also recognized that some people not related by law or blood, such as cohabitants, share a close familial relationship with the judge (citing R-3).

The Committee concluded that a judge is precluded from appearing at a proceeding to provide emotional support unless the other person is related within the third degree of consanguinity or affinity, or is a person with whom the judge maintains a close familial relationship.

Currency note

This opinion was issued in 1989 and interprets the Michigan Code of Judicial Conduct as it then stood. The MCJC has since been amended (the State Bar flags amendments effective August 1, 2013 to Canons 2, 4, 5, and 7, among other revisions), 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 Treat this page as historical context, not current guidance.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: Can a judge attend a relative's court hearing just for moral support?

A: Per the opinion, yes, where the party is within the third degree of consanguinity or affinity to the judge, or is someone with whom the judge maintains a close familial relationship.

Q: Why is a judge's attendance otherwise a problem?

A: The opinion reasoned that a judge's presence is inevitably noticed and can support an inference that the judge is trying to influence the proceeding, creating an appearance of impropriety under MCJC 2A and 2C.

Q: Does the relationship have to be by blood or marriage?

A: No. The opinion recognized that cohabitants and others in a close familial relationship with the judge can also qualify, citing R-3.

Background and rules framework

The opinion interprets the Michigan Code of Judicial Conduct: MCJC 2A (avoiding impropriety and its appearance) and MCJC 2C (not lending the prestige of office to advance others' interests). It draws the third-degree line from MCR 2.003(B)(5) and prior opinion J-2, and extends it to close familial relationships under R-3.

Citations and references

Rules of Judicial Conduct:

• MCJC 2A (avoid impropriety and the appearance of impropriety)
• MCJC 2C (prestige of office)

Court rules:

• MCR 2.003(B)(5) (disqualification; third degree of relationship)

Other opinions cited:

• J-2; R-3 (close familial relationships)

See also

• ABA Formal Op. 488: Judges' Personal Relationships
• Mich Ethics Op. JI-44: Recusal for Personal Acquaintance

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=724&Type=6

Original opinion text

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

JI-15

November 9, 1989

SYLLABUS

A judge may attend a deposition or hearing in order to provide moral support for a party who is within the third degree of consanguinity or affinity to the judge, or for other persons with whom the judge maintains a close familial relationship.

References: MCJC 2A, 2C; J-2; R-3; MCR 2.003(B)(5).

TEXT

A sitting judge asks whether it is ethical for the judge to attend a deposition or hearing of a family member solely to offer support for the family member and not to participate in the matter.

MCJC 2A directs that a judge avoid all impropriety and the appearance of impropriety. MCJC 2C prohibits a judge from allowing the prestige of the judicial office to be used to advance the business interests of others.

As a public figure and member of the judicial branch of government, a judge's presence at a hearing or other proceeding will inevitably be noticed and an inference can be drawn that the judge is attempting to influence the outcome of the hearing or the conduct of the deposition. Whether or not this is true, an appearance of impropriety can arise from the judge's involvement in a legal matter to which the judge is neither party, nor witness, and otherwise has no legally cognizable interest requiring the judge's presence at the proceeding.

This inference should be balanced by the concern of the judge when a party in the proceeding is a member of the judge's family. The Committee can find no policy reason to prohibit a judge from being at the side of a child or a parent during occasions of stress or vulnerability, which are likely to be present if the family member is a party in a legal proceeding. Consistent with other rules and opinions on close familial relationships, the Committee believes the correct balance would allow a judge to attend when a party is within the third degree of consanguinity or affinity to the judge. See, MCR 2.003(B)(5); J-2.

The Committee also recognizes that certain persons who may not be related to the judge by law or blood nevertheless share a close familial relationship to the judge, such as cohabitants. See R-3.

Therefore, a judge is precluded from appearing at a proceeding to provided emotional support, unless the other person is related to the judge within the third degree of consanguinity or affinity, or is a person with whom the judge maintains a close familial relationship. See R-3.