skip navigation

End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Michigan Legal Ethics

1.12   Rule 1.12 Former Judge or Arbitrator

1.12:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 1.12
Background References: ABA Model Rule 1.12, Other Jurisdictions

1.12:101      Model Rule Comparison

Michigan adopted MR 1.12 exactly.

1.12:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

1.12:200   Former Judge or Arbitrator Representing Client in Same Matter

Primary Michigan References: MI Rule 1.12(a)
Background References: ABA Model Rule 1.12(a), Other Jurisdictions
Commentary: ABA/BNA § 91.4501
MI Commentary: Dubin and Schwartz MRPC 1.12

According to the official comment to the rule, the term “personally and substantially” signifies that a judge who was a member of a multi-member court is not prohibited from representing a client in the matter pending in the court but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits.

Michigan Informal Ethics Opinion RI-43 states that a lawyer who previously served as a law clerk and participated in a trial and pretrial, and then left his employment and joined the prosecutor’s office, could not perform legal services in opposition to the defendant’s appeal.

1.12:300   Negotiating for Future Employment

Primary Michigan References: MI Rule 1.12(b)
Background References: ABA Model Rule 1.12(b), Other Jurisdictions
Commentary: ABA/BNA § 91:4001, ALI-LGL § 125, Wolfram § 8.10
MI Commentary: Dubin and Schwartz MRPC 1.12

In RI-11, the Ethics Committee held that an administrative law judge “may not negotiate for employment with a law firm which is attorney for a party before the judge, no matter how long it takes the Supreme Court to decide the lead case. If the matter was concluded, or if the responsibility of the judge for the matter was over, the prohibition would no longer apply.” The Committee also suggested that the participation in a matter is not over until the final opinion is rendered and that “we believe the definition of ‘matter’ in MRPC 1.11 is applicable to MRPC 1.12 and that pre-hearing conferences and orders are matters within MRPC 1.12(b).” The Ethics Committee also found that “substantial responsibility” means “the attorney has been personally involved to an important, material degree in investigations about or deliberations on the transactions and facts in question during the lawyer’s tenure in public service.”

Although a lawyer serving as a law clerk to a judge may negotiate for employment with a party or attorney involved in the matter in which the clerk is participating personally and substantially, he may only do so after the lawyer has notified the judge of such negotiation. In RI-43 the Ethics Committee held that because a judge’s clerk had done research in a criminal defendant’s case and the clerk later became employed by the prosecutor’s office as the supervisor responsible for appellate work, the former clerk and the entire prosecutor’s staff should be disqualified from working on the defendant’s appeal because the law clerk had not notified the judge of negotiations for employment with the prosecutor’s office, the prosecutor’s office did not screen the former clerk as soon as his employment started and the former clerk was acting as a supervisor for the appellate work in the prosecutor’s office.

1.12:400   Screening to Prevent Imputed Disqualification

Primary Michigan References: MI Rule 1.12(c)
Background References: ABA Model Rule 1.12(c), Other Jurisdictions
Commentary: ABA/BNA § 91:4501, ALI-LGL §§ 203, 204, Wolfram § 7.6.4
MI Commentary: Dubin and Schwartz MRPC 1.12

See discussion under 1.12:300 above.

1.12:500   Partisan Arbitrators Selected by Parties to Dispute

Primary Michigan References: MI Rule 1.12(d)
Background References: ABA Model Rule 1.12(d), Other Jurisdictions
Commentary: ABA/BNA § 51:1501
MI Commentary: Dubin and Schwartz MRPC 1.12

MRPC 1.12(d) allows a lawyer who is selected as a partisan arbitrator to later represent the party who selected him or her. In RI-235, the Ethics Committee applied this situation to a lawyer who had previously acted as a partisan in a special mediation panel under MCR 2.403. The Committee held that the lawyer could not represent the party because MRPC 1.12(d) does not pertain to special mediation under the court rules. RI-265 holds that a lawyer who served as a mediator (now case evaluator) under MCR 2.403 may not later serve as an arbitrator in a dispute between the same parties concerning the same subject matter.