If a lawyer serves part-time as a domestic relations referee, can the lawyer's firm appear before the referee, and can the lawyer act as referee or counsel in matters from the other role?
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This page answers the general question as of 1989. Ezel answers yours: whether it's allowed on your facts, under the current Michigan Rules of Professional Conduct, with citations.
Plain-English summary
The inquiry came from a small circuit served by a single part-time domestic relations referee who continued in private practice. A referee is a quasi-judicial public officer who makes factual determinations, recommendations, and rulings on support, custody, and visitation, so the Committee measured the conduct of the lawyer/referee and the firm against both judicial and attorney ethics standards. It addressed three questions: whether the referee's partners may appear before the referee, whether the lawyer may act as counsel in matters the lawyer handled as referee, and whether the referee may act as referee in matters the lawyer handled as counsel.
On later representation, the Committee read MRPC 1.12, which bars a lawyer from representing anyone in a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer unless all parties consent after consultation, and which allows the firm to take the matter only if the disqualified lawyer is screened, apportioned no fee, and written notice is given to the tribunal. It concluded the lawyer/referee may represent a party in a matter the lawyer handled as referee with all parties' consent, and the firm may do so with screening and notice.
On the reverse direction, the Committee read MRPC 1.11(c)(1), which bars a lawyer serving as a public officer from participating in a matter the lawyer handled in private practice (absent a no-substitute exception), and reached the same result as MCR 2.003(B): the referee may not hear matters in which the lawyer participated as counsel. Applying MCR 2.003(B)(4), which disqualifies a judge who was a member of a party's law firm within the preceding two years, the Committee concluded that for a part-time referee this operates as a permanent bar to hearing matters presented by the referee's own firm.
Currency note
This opinion was issued in 1989 and interprets the Michigan Rules of Professional Conduct and court rules as they then stood. The MRPC and MCR 2.003 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 and court rules before relying on any specific rule or requirement mentioned here.
Common questions
Q: Can a part-time Michigan referee later represent a client in a matter the lawyer handled as referee?
A: The opinion concluded yes, but only if all parties to the proceeding consent after consultation, under MRPC 1.12; if the firm takes the matter, the lawyer/referee must be screened, apportioned no fee, and the tribunal given written notice.
Q: Can the referee hear a matter in which the lawyer earlier acted as counsel?
A: No. The opinion concluded MRPC 1.11(c)(1) and MCR 2.003(B) bar the referee from participating in a matter the lawyer handled in private practice.
Q: Can the referee's law partners appear before the referee?
A: The opinion concluded the referee is disqualified from hearing matters presented by the referee's own firm. Applying MCR 2.003(B)(4)'s two-year lookback to a continuing part-time referee, the Committee described this as a permanent bar.
Background and rules framework
The opinion interpreted MRPC 1.12 / Model Rule 1.12 (former judge, arbitrator, mediator, or other adjudicative officer) and MRPC 1.11 / Model Rule 1.11 (successive government and private employment), read together with the judicial disqualification provisions of MCR 2.003(B) and the Michigan Code of Judicial Conduct, which apply to a referee acting as a quasi-judicial officer.
Citations and references
Rules of Professional Conduct:
- MR 1.12 / MRPC 1.12 (former adjudicative officer; consent and firm screening)
- MR 1.11 / MRPC 1.11 (lawyer serving as a public officer)
Court rules:
- MCR 2.003(B) (disqualification of judges); MCR 9.201(2)
See also
- ABA Formal Op. 509: Disqualification From Confidential Government Information
- Mich Ethics Op. R-4: Screening a Lawyer Who Transfers Between Firms
Source
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
RI-1
January 28, 1989
SYLLABUS
A lawyer who is a part-time referee may represent clients in connection with a matter in which the lawyer participated personally and substantially as referee, provided that all parties consent.
A part-time referee may not hear matters in which the referee participated personally and substantially as a lawyer.
A part-time referee is disqualified from hearing matters presented by the referee's law firm.
References: MRPC 1.11, 1.12; MCR 2.003.
TEXT
A lawyer asks whether (1) the lawyer partners of a part-time domestic relations referee may represent an individual in matters pending before the referee; (2) a lawyer may act in matters in which the lawyer participated as referee; and (3) a referee may act in matters in which the referee participated as a lawyer.
The Committee notes that the appointed position of referee is part-time and continued private practice of law is contemplated. Thus the Committee must consider the implications of part-time practice when interpreting the Michigan Rules of Professional Conduct. Further, the circuit served by the referee is relatively small, and there is only one referee.
The position of domestic relations referee is a public office which is quasi-judicial in nature. A referee is responsible for making factual determinations, recommendations and rulings with respect to support, custody and visitation disputes. The issues may arise in domestic relations proceedings both before and after the entry of a judgment of divorce. The propriety of conduct by the lawyer/referee and other members of the firm must be measured against the ethical considerations which are applicable to both judicial officers and attorneys in private practice.
With respect to subsequent representation of individuals who were parties to matters coming before the referee, MRPC 1.12 states in part:
"(a) . . . a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjunctive officer . . . unless all of the parties to the proceeding consent after consultation.
". . .
"(c) . . . no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter, unless:
"(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
"(2) written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of the rule . . . ."
Thus, a lawyer who is a part-time referee may represent clients in connection with a matter in which the lawyer participated as referee, provided that all parties consent after consultation, and the firm may represent an individual in a matter in which the referee participated if the lawyer/referee is screened from participation and written notice is given to the tribunal.
MRPC 1.11(c)(1) states in part:
"(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:
"(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter, . . . ."
Serving the lawyer/referee does not meet the exception, he may not hear matters in which he participated as lawyer. This is the same result reached under Michigan Court Rule 2.003(B) "Disqualification of Judges" which states in part:
"(B) A judge is disqualified when the judge cannot impartially hear a case, including a proceeding in which the judge:
". . .
"(3) . . . has been consulted or employed as an attorney in the matter in controversy and all parties consent after consultation,
"(4) . . . was a partner of a party, attorney for a party, or a member of a law firm representing a party within the preceding two years . . . ."
When performing as referee, the lawyer/referee is a judicial officer and is considered subject to the Michigan Code of Judicial Conduct and judicial disqualification rules. See also MCR 9.201(2). Under MCR 2.003(B)(4) the referee is disqualified in a proceeding in which he was a member of the law firm of a party within the preceding two years. The Committee is aware that application of this rule to part-time practice situations results in a permanent bar to the referee hearing matters presented by the referee's law firm.
In summary, a lawyer who is part-time referee may represent clients in connection with a matter in which the lawyer participated as referee, provided that all parties consent; a part-time referee may not hear matters in which the referee participated as a lawyer; and a part-time referee is disqualified from hearing matters presented by the referee's firm.
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