Can a retired Michigan judge who takes visiting-judge assignments also serve as a private mediator or arbitrator?

Plain-English summary

The State Court Administrator asked whether a retired Court of Appeals judge who accepts visiting-judge assignments may serve as a neutral mediator on a trial-court mediation panel, as an AAA-appointed mediator, or as a neutral mediator for a county mediation tribunal. MCJC 5E provides that a judge should not act as an arbitrator or mediator except in the performance of judicial duties. The opinion found no authority interpreting that section but reasoned that, while a full-time sitting judge plainly may not serve as a private mediator or arbitrator, the question was whether the prohibition should apply with equal strictness to retired judges subject to call.

The opinion drew on its treatment of retired judges under other canons. Under J-3, a retired judge could serve as a business director, otherwise prohibited, provided the judge took a leave during any judicial assignment, received no remuneration during judicial service, and was disqualified from matters related to the business. Under RI-1, C-137, and CI-190, part-time and retired judges could practice law, otherwise barred by MCJC 5F, as long as they guarded against conflicts and disqualification and did not practice while engaged in judicial duties. The opinion also read the State Court Administrator's assignment guidelines as contemplating that a retired judge subject to assignment may have engaged in mediation or arbitration outside judicial duties.

The opinion concluded that a retired judge's outside mediation and arbitration, while it increases the matters from which the judge will be disqualified, is not significantly different from disqualification based on prior service as a judge or lawyer. It noted that MRPC 1.12(a) bars a lawyer from representing anyone in a matter in which the lawyer participated personally and substantially as a judge or arbitrator absent the parties' consent. The retired judge must ensure that mediation activities are not so identified with one party, organization, or interest group as to reflect adversely on impartiality or raise an appearance of impropriety, and it is irrelevant whether the work is under a county program, an independent organization, or the State Bar.

Currency note

This opinion was issued in 1990, 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 as it then stood. Both the Code of Judicial Conduct and the cited Rules of Professional Conduct have been amended since. Treat this page as historical context, not current guidance. Verify against the current Code of Judicial Conduct and Rules of Professional Conduct before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a retired Michigan judge work as a private mediator or arbitrator?

A: The opinion concluded a retired judge subject to assignment may do so, provided the roles are kept separate and the work does not compromise the judge's impartiality.

Q: Can a full-time sitting judge serve as a private mediator?

A: No. The opinion read MCJC 5E to bar a sitting judge from acting as an arbitrator or mediator except in the performance of judicial duties.

Q: What happens to matters the retired judge mediated?

A: The opinion concluded the retired judge is disqualified from later serving as judge in those matters, and is disqualified from mediating or arbitrating matters in which the judge previously served as judge.

Q: Does the source of the mediation appointment matter?

A: The opinion concluded it is irrelevant whether the mediation or arbitration is under a county program, an independent organization, or the State Bar.

Background and rules framework

The opinion interpreted MCJC 2A, 2B, 5E, and 5F of the Michigan Code of Judicial Conduct, together with MCR 2.003(B) on disqualification and MRPC 1.12 (Michigan's analogue to Model Rule 1.12) on a former judge, arbitrator, or mediator. It relied on prior opinions J-3, RI-1, C-137, and CI-190.

Citations and references

Rules of Professional Conduct:

• MR 1.12 / MRPC 1.12 (former judge, arbitrator, or mediator)

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

• MCJC 2A, 2B (impartiality and appearance of impropriety)
• MCJC 5E (a judge should not act as arbitrator or mediator except in judicial duties)
• MCJC 5F (a judge should not practice law)
• MCR 2.003(B) (grounds for disqualification)

Other opinions cited:

• Michigan J-3: retired judge serving as a business director
• Michigan RI-1, C-137, CI-190: part-time and retired judges practicing law

See also

• Mich Judicial Ethics Op. JI-29: judge appointing a private practitioner as referee and liaison attorney

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=737&Type=6

Original opinion text

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

JI-28

July 12, 1990

SYLLABUS

A retired judge may participate as mediator or arbitrator as long as (a) the retired judge does not participate during the period of any judicial assignment, (b) the retired judge is disqualified from mediation and arbitration in matters in which the judge served as judge, and is disqualified as judge from matters in which the judge participated as mediator or arbitrator, and (c) the participation does not reflect adversely on the retired judge's impartiality or raise an appearance of impropriety.

References: MCJC 2A, 2B, 5E, 5F; MRPC 1.12; J-3; RI-1; C-137; CI-190; MCR 2.003(B).

TEXT

The State Court Administrator has asked for clarification on whether a retired Court of Appeals judge who wishes to accept assignments to the Court of Appeals as a visiting judge may serve (a) as a neutral mediator on a trial court mediation panel, (b) as a mediator appointed by the American Arbitration Association, or (c) as a neutral mediator for the Wayne County Mediation Tribunal.

MCJC 5E states: "A judge should not act as an arbitrator or mediator, except in the performance of his judicial duties." We are not aware of any authority interpreting this section of the Code, but it seems clear that a full-time sitting judge may not serve as arbitrator or mediator in a matter in which the judge is not presiding as judge. The question remains as to whether this prohibition should be strictly applied to retired judges who are subject to call.

The Committee has considered the application of other Canons to retired judges. In J-3 the Committee held that a retired judge may serve as director of a business, an activity prohibited to full-time sitting judges, provided that the retired judge during the period of any judicial assignment takes a leave of absence from the business, receives no remuneration for the business activity during the period of judicial service, and is disqualified from hearing any matter related to the interests of the business in which the retired judge participates.

In RI-1, C-137 and CI-190, it was acknowledged that part-time and retired judges could engage in the practice of law, in spite of MCJC 5F prohibiting that activity for full-time sitting judges, as long as they guarded against conflicts and disqualification and did not practice law while engaged in judicial duties.

The State Court Administrator's Judicial Assignments Guidelines, Policy and Procedure Manual, as amended November, 1988, provides the following information on the assignment of retired judges.

"Guideline I. 1, Former Judges: . . . 11. Any former judge who has acted as a mediator will not be assigned to preside at the trial of any case in which he or she served as mediator."

The retired judge is disqualified from presiding over a matter in which the retired judge previously acted as judge, MCR 2.003(B), thus the Guideline cannot be referring to mediation in the performance of the judge's judicial duties. We must conclude, therefore, that the mediation referenced in the Guideline contemplates that a retired judge subject to assignment may have formerly engaged in mediation or arbitration activities outside the performance of judicial duties.

Although a retired judge's participation in mediation and arbitration activities unrelated to the performance of judicial duties will increase the number of cases in which the retired judge will be disqualified from serving as judge, we do not think this inconvenience is significantly different from the disqualification of a retired judge because of previous participation as a judge in a matter, or previous participation as a lawyer in a matter. We note that MRPC 1.12(a) prohibits a lawyer from representing anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or arbitrator, unless all parties to the proceeding consent after consultation.

The retired judge should ensure that the mediation activities in which the retired judge participates are not so identified with one party, organization or interest group as to reflect adversely on the judge's impartiality or to raise questions of bias or the appearance of impropriety. MCJC 2A, 2B; MCR 2.003(B).

It is irrelevant whether the mediation or arbitration is undertaken under the auspices of a county program, an independent organization, or even the State Bar.