Can a lawyer who is running against a sitting judge keep representing clients in cases before that same judge?

Plain-English summary

The Committee reconsidered Informal Opinion RI-52 (1990), which had barred a lawyer from appearing as an advocate before a judge while the lawyer was an announced candidate for that judge's seat. It did so because the Judicial Ethics Committee had rescinded Informal Judicial Opinion JI-23 and issued JI-138 (2012), which concluded that a judge is not per se disqualified from presiding over a case in which an advocate is running for the judge's seat.

Following JI-138's move away from a per se rule, the Committee concluded that the lawyer-candidate is likewise not per se prohibited from representing a litigant before the judicial opponent. The lawyer must disclose the fact of the candidacy to the client at the earliest opportunity, including before retention if possible (MRPC 1.4(b)). The lawyer must then determine whether the candidacy materially limits the representation under MRPC 1.7(b); if so, the lawyer may continue only if the lawyer reasonably believes the representation will not be adversely affected and obtains the client's consent after consultation.

The Committee distinguished Formal Opinion R-20 and Formal Judicial Opinion J-5, which addressed a lawyer who represents a judge in another matter and appears before that judge for a different client. Unlike J-5 (which obligates the judge to raise disqualification), JI-138 calls only for the judge's disclosure of the shared candidacy, not per se disqualification. The Committee did not believe MRPC 8.4(e) (assisting a judge in violating the Code of Judicial Conduct) was implicated, and noted that the shared candidacy is not information protected from disclosure by MRPC 1.6. The opinion rescinds RI-52.

In practice

The opinion holds that, under the Michigan rule as it stood at the time, the lawyer-candidate's required steps are disclosure to the client under MRPC 1.4(b) and a case-specific conflict assessment under MRPC 1.7(b). Per the opinion, withdrawal from all matters on the opponent judge's docket is not required; the analysis turns on whether the lawyer's interest in winning the election would materially limit the lawyer's ability to advocate for the particular client.

Common questions

Q: Does a lawyer running for a judge's seat have to withdraw from cases pending before that judge?

A: No. The opinion concludes there is no per se prohibition; the lawyer may continue the representation subject to disclosure and a conflict assessment.

Q: What must the lawyer tell the client?

A: Per the opinion, the lawyer must disclose the candidacy to the client at the earliest opportunity, including before retention if possible, under MRPC 1.4(b).

Q: When does the candidacy become a disqualifying conflict?

A: Under MRPC 1.7(b), the lawyer must decide whether the interest in being elected materially limits the representation; if so, the lawyer may proceed only with the client's informed consent after consultation.

Q: Is the lawyer's candidacy confidential information the lawyer must protect?

A: No. The opinion states that the fact that the lawyer and judge are candidates for the same office is not information afforded protection from disclosure by MRPC 1.6.

Background and rules framework

The opinion interprets MRPC 1.4(b) / Model Rule 1.4 (keeping the client reasonably informed), MRPC 1.7(b) / Model Rule 1.7 (material-limitation conflict), MRPC 1.6 / Model Rule 1.6 (confidentiality), MRPC 3.5(b) / Model Rule 3.5 (ex parte contact), and MRPC 8.4(e) / Model Rule 8.4 (assisting judicial misconduct). It reads these alongside the Judicial Ethics Committee's JI-138, which abandoned a per se disqualification rule under Canon 3C of the Code of Judicial Conduct.

Citations and references

Rules of Professional Conduct:

• MRPC 1.4(b) / Model Rule 1.4 (communication with the client)
• MRPC 1.7(b) / Model Rule 1.7 (material-limitation conflict)
• MRPC 1.6 / Model Rule 1.6 (confidentiality)
• MRPC 3.5(b) / Model Rule 3.5 (ex parte communication)
• MRPC 8.4(e) / Model Rule 8.4 (assisting a judge in misconduct)

Other opinions cited:

• RI-52: rescinded; had barred appearing before a judge while a candidate for the judge's seat
• R-20; J-5; JI-23 (rescinded); JI-138: cited on the judge's disqualification and disclosure obligations
• Canon 3C, Code of Judicial Conduct

See also

• Mich Ethics Op. RI-343: Fixed-Fee Insurance Defense and Fee Disclosure
• Mich Ethics Op. RI-110: Administrative Hearing Officer Maintaining a Private Law Practice

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1232&Type=6

Original opinion text

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

RI-361

May 3, 2013

SYLLABUS

A lawyer who is a candidate for judicial office and is simultaneously representing a client in a matter pending before his or her judicial opponent must disclose this fact to his or her client at the earliest opportunity, including prior to retention, if possible. MRPC 1.4(b). In order to continue the representation, the lawyer must determine whether his or her candidacy for his or her judicial opponent’s seat triggers any obligation under MRPC 1.7(b) and proceed accordingly.

References: MRPC 1.4(b), 1.6, 1.7(b), 3.5(b), 8.4(e); Canon 3C; R-20, RI-52, J-5, JI-23, JI-138.

TEXT

The Professional Ethics Committee ("Committee") reconsiders Informal Opinion RI-52 (June 8, 1990), which determined that a lawyer may not appear as an advocate in a proceeding before a judge seeking reelection when the lawyer is an announced candidate for that judge's seat in the forthcoming election. The Committee does so in light of the Judicial Ethics Committee's rescinding of Informal Judicial Opinion JI-23 (May 16, 1990) and issuance of Informal Judicial Opinion JI-138 (Nov. 6, 2012), which concludes that a judge is not per se disqualified from presiding over a case when one of the advocates is an announced candidate for that judge's seat in the upcoming election.

In abandoning a per se approach, JI-138 notes:

Certainly a judge could abuse the position of office to embarrass or disadvantage a judicial opponent. There may also be fear that the judge would be overly generous to a judicial opponent to avoid appearing as though the judge is attempting to gain an advantage. But, neither assumption should be made in every case over which a judge presides in which a judicial opponent serves as an advocate. Judges are charged with following the law and ethically administering their functions, and it is a reasonable expectation that this will occur in most instances.

In light of the Judicial Ethics Committee's rescinding of JI-23 and its conclusion as expressed in JI-138 that a judge is not per se disqualified from presiding over a case in which one of the advocates is an announced candidate for that judge's seat in the upcoming election, the lawyer candidate is, likewise, not per se prohibited from representing a litigant in that court. A lawyer who is a candidate for judicial office and is simultaneously representing a client in a matter pending before his or her judicial opponent must disclose this fact to his or her client at the earliest opportunity, including prior to retention, if possible. MRPC 1.4(b). In order to continue the representation, the lawyer must determine whether his or her candidacy for his or her judicial opponent's seat triggers any obligation under MRPC 1.7(b) and proceed accordingly.

There is no ethical basis for presuming that a lawyer's interest in being elected will so impact the lawyer's ability to advocate for clients that the lawyer must withdraw from representation of all clients with matters assigned to the court docket of his or her judicial opponent. Just as a judge must ethically discharge the duties of his or her judicial office, including determining whether there is a basis for disqualification in a given matter and acting accordingly, a lawyer must determine whether his or her ability to represent a client whose matter is assigned to the court docket of his or her judicial opponent may be materially limited by the lawyer's own interests in securing the position. If so, the lawyer may only continue the representation if the lawyer reasonably believes that the representation will not be adversely affected and obtains client consent after consultation, as is required by Michigan Rule of Professional Conduct (MRPC) 1.7(b).

This circumstance is distinguishable from the issues addressed in both Formal Opinion R-20 (July 20, 2008) and Formal Judicial Opinion J-5 (July 24, 1992), wherein the Committee addressed the ethical obligations of a lawyer who represents a judge in another matter1 and appears on behalf of another client in a case over which his or her judicial client presides. Formal Judicial Opinion J-5, referenced in R-20, concluded that the judge in that situation must raise the issue of disqualification. By contrast, JI-138 mandates only disclosure of the lawyer's and the judge's candidacy for the same office rather than per se disqualification of the judge.2

R-20 infers that, because J-5 concludes that a judge is obligated to raise the issue of disqualification as is required by Canon 3C of the Code of Judicial Conduct (Code) and that a failure to do so would violate the Code, the lawyer in that circumstance must take steps to avoid violating MRPC 8.4(e).3 R-20 contemplates that the lawyer, who represents the judge, make direct contact with the judge for the limited purpose of requesting the judge to raise the issue of disqualification, suggesting that such a communication is not prohibited ex parte communication about a pending matter as set forth in MRPC 3.5(b). The Committee does not believe such a measure is either warranted or appropriate in the circumstances at issue here. Nor does the Committee believe that MRPC 8.4(e) is implicated in these circumstances. The fact that the lawyer and the judge are candidates for the same office is not information afforded protection from disclosure by MRPC 1.6.4

Informal Opinion RI-52 is rescinded.

1 R-20 notes that, like the earlier opinion it modifies, R-14, it addresses the circumstance of a private practitioner in a law firm's representation of a judge in an official capacity, and does not pertain to circumstances in which (i) the lawyer is the state attorney general or other public attorney or their assistants under a legal duty to represent judicial officers in matters concerning their judicial office or duty, who are at the same time representing the state or their agencies before the judge; or (ii) a representation of an entire bench—the Court itself.

2 JI-138 provides in pertinent part, "As in other situations where disqualification is not mandated, but an issue exists which, left undisclosed, might cause a party to be concerned about the judge's impartiality, the judge should disclose the advocate's candidacy for the judge's seat as soon as practicable to all litigants in the case."

3 MRPC 8.4(e) provides that it is professional misconduct for a lawyer to "knowingly assist a judge or judicial officer in conduct that is a violation of the Code of Judicial Conduct or other law."

4 The lawyer candidate should be aware of obligations under MRPC 8.2(b).