Michigan Tells Judges to Act on Attorney Misconduct. Nothing Checks Whether They Do.

Michigan’s Code of Judicial Conduct tells judges to act when they see a lawyer cross the line. The only official opinion interpreting that sentence gives them room not to, and no one counts which choice they make.

I hear a version of the same question from readers almost every week. The judge was sitting right there. The judge saw the fabricated filing, the missed deadline, the lawyer who said one thing in March and the opposite in June. Why didn’t the judge do anything?

Most people assume the answer is that judges are not allowed to. The answer is the opposite. Michigan’s Code of Judicial Conduct has told judges for more than fifty years that they should act. What it has never done is tell them they must, define what acting means, or create any way for the public to see whether they did.

What the Canon Says

Canon 3 of the Michigan Code of Judicial Conduct governs how judges perform the duties of office. Subsection (B) covers administrative responsibilities, and paragraph (3) is the sentence that matters here. The Michigan Supreme Court amended Canon 3 effective September 1, 2026, but the amendment changed only the courtroom recording provision in subsection (A). Subsection (B) was left untouched.

Three words carry the whole provision. “Should” makes it hortatory rather than mandatory. “Appropriate” hands the choice of response to the judge. “Aware” sets a trigger that is lower than knowledge, but undefined. Michigan has never published commentary explaining any of the three.

The enforcement link sits in the court rules. MCR 9.202(A) makes a judge personally responsible for the judge’s own behavior and for the proper conduct and administration of the court. MCR 9.202(B)(2) provides that conduct violating the Code of Judicial Conduct may constitute a ground for action by the Judicial Tenure Commission. So a judge’s failure to act on attorney misconduct can, on paper, become judicial misconduct. Whether it ever has is a different question.

What “Appropriate” Has Been Allowed to Mean

The State Bar of Michigan indexes its ethics opinions by the provision they interpret. Under Canon 3(B)(3), the index lists exactly one: JI-85, issued March 23, 1994. A judge asked what to do when a plaintiff’s lawyer tried to hand the court a supplemental brief for the judge’s in camera review without giving the other side a copy. The committee agreed that the submission would be an improper ex parte communication under MRPC 3.5(b), and that the judge had an affirmative duty not to permit it.

Then it answered the reporting question. If the submission was an isolated incident and the lawyer promptly fixed it at the judge’s direction, the committee concluded, the judge “may conclude that appropriate measures have been taken” and need not report the lawyer to the Attorney Grievance Commission. The canon’s single interpretive opinion, in other words, is an opinion about when a judge does not have to escalate.

That reading is defensible on its facts. A one-time procedural misstep corrected on the record is the kind of thing a courtroom handles every day. The problem is that JI-85 is the only guidance. It addresses the mildest scenario the canon could cover and is silent on the rest: fabricated authority, dishonesty to the tribunal, repeated violations after warnings, conduct that harms a client sitting in the courtroom. Thirty-two years later, no opinion has filled that space.

Other states with the same 1970s-era language did fill it. A Texas judicial ethics committee concluded in 1979 that when a judge learns a lawyer knowingly presented false information to obtain a judgment, initiating disciplinary measures becomes the judge’s duty. Massachusetts’ Committee on Judicial Ethics, in Opinion 92-3, read the identical trigger to require action once a judge has enough information to suggest that investigation is needed, without waiting for certainty. West Virginia’s Judicial Investigation Commission noted in 1988 that it could find no case law construing the canon at all, and read its plain words as stating an obligation.

The American Bar Association moved past the old language entirely. Its 2007 Model Code replaced the canon with Rule 2.15, which many states have since adopted in some form. Rule 2.15(B) says a judge who has knowledge that a lawyer committed a violation raising a substantial question about the lawyer’s honesty, trustworthiness, or fitness must report it to the appropriate disciplinary authority. Rule 2.15(D) requires appropriate action when a judge receives information indicating a substantial likelihood of a violation. The official comment states the premise in one line: taking action to address known misconduct is a judge’s obligation. Michigan still uses its 1974 canon structure, and its verb is still “should.”

What It Looks Like When a Judge Acts

The clearest Michigan example remains King v. Whitmer, the federal suit filed in November 2020 to overturn the state’s presidential election result. On August 25, 2021, U.S. District Judge Linda Parker of the Eastern District of Michigan issued a 110-page opinion sanctioning Sidney Powell, L. Lin Wood, and other lawyers who filed it. Beyond fees and mandatory legal education, she ordered the clerk to send her decision to the Michigan Attorney Grievance Commission and to the disciplinary authority in every jurisdiction where each lawyer was admitted, for investigation and possible suspension or disbarment.

The referral did not end in a file drawer. On May 1, 2023, the Grievance Administrator filed a formal complaint against seven of the lawyers, charging frivolous filings under MRPC 3.1 and conduct prejudicial to the administration of justice. The Sixth Circuit affirmed most of the sanctions in June 2023, reversed them for two lawyers on inadequate findings, and held that the Eastern District’s local rule permits disciplinary referrals. The U.S. Supreme Court declined review in February 2024. In July 2024, the Attorney Discipline Board affirmed the denial of the lawyers’ motions to dismiss and remanded the case for an evidentiary hearing. The Grievance Administrator’s file had more than one source; state officials had also asked the Commission to act. But the sequence shows what a judge’s written findings do. They hand the disciplinary system a record it does not have to build from scratch.

The same court produced a sharper example three months later, this time over a lawyer’s honesty to the tribunal itself. In Allstate Insurance Co. v. Inscribed PLLC, an insurance-fraud suit before Judge Parker, the defendants moved to disqualify Allstate’s lawyers. Magistrate Judge Elizabeth A. Stafford heard the motion on referral and issued an amended opinion on November 15, 2021. She found that one Allstate attorney held substantive ex parte conversations with a represented defendant in violation of MRPC 4.2, then lied about it in an affidavit and under oath at the evidentiary hearing, in violation of the duty of candor in MRPC 3.3. The opinion noted the false testimony might amount to perjury under federal law. A supervising partner who was present and did nothing violated MRPC 5.1(c). The court disqualified the firm, Smith & Brink, from the case and referred the attorney to the district’s chief judge and to the Michigan Attorney Grievance Commission under the Eastern District’s local disciplinary rule.

That is the canon in its purest form. The misconduct happened in front of the court, it went to the court’s own ability to trust what it was told, and the court responded inside the case and outside it.

The third example is recent and squarely within Michigan’s state courts. In Barber v. Morawa, decided June 17, 2026, the Court of Appeals affirmed a defense verdict in a medical malpractice case, then turned to the plaintiff’s lawyer. Across the trial court and the appeal, he cited cases that did not exist, attributed holdings to real cases that never made them, ignored the defense’s repeated warnings, and finally filed a “Notice of Correction” that was itself prepared with AI and still misstated authority. The panel held that unverified reliance on generative AI violates the reasonable-inquiry duty in MCR 1.109(E)(5), found the appeal vexatious, remanded for fees payable by the lawyer personally, and directed the clerk to forward its opinion to the Attorney Grievance Commission.

None of these orders needed Canon 3(B)(3) to get there. The federal judges worked under federal rules, including the Eastern District’s local rule on attorney discipline, and the Court of Appeals grounded its sanctions in the Michigan Court Rules. But all three did exactly what the canon describes: they took a measure within the case and initiated one outside it.

What It Looks Like When a Judge Doesn’t

The most instructive recent case comes from Kentucky, which uses the ABA’s mandatory language. On January 16, 2026, the state’s Judicial Conduct Commission privately reprimanded a judge over a plea that a defendant said her own lawyer entered without her knowledge or consent. The judge agreed to set the plea aside only if the defendant filed a bar complaint against that lawyer, and threatened her with contempt if she did not. The Commission found the judge violated Rule 2.15(B). If the judge believed the lawyer had violated the professional conduct rules, the judge was required to report it, and could not shift that duty onto the defendant as the price of relief. The judge conceded the point and accepted the reprimand.

Michigan has no comparable public decision. Clutch Justice searched Judicial Tenure Commission formal complaints, Michigan Supreme Court orders in judicial discipline cases, and the State Bar’s opinion index, and found no instance of a Michigan judge charged with failing to act under Canon 3(B)(3). With “should” as the verb and JI-85 as the only gloss, it is hard to see how one would be charged.

The discretion also shows up when judges do respond. On July 16, 2026, U.S. District Judge Hala Jarbou of the Western District of Michigan dismissed an immigration case in which a government filing cited an appeals decision that does not exist. She criticized the apparent AI use in writing and declined to impose sanctions. A month earlier, the Court of Appeals in Barber had met the same category of error with personal sanctions and a grievance referral. The facts differed, most obviously in the warnings the Barber lawyer ignored. The point is that both responses sit inside the same discretion, and only the judge decides where a given case falls.

Field Guide: Putting Misconduct in Front of the Judge

Because the canon leaves the judge so much room, what a judge does depends heavily on what the record in front of that judge shows. Litigants and lawyers can shape that record.

Start by documenting the conduct when it happens, in the case itself. A brief, a reply, or a short written notice that identifies the specific filing, statement, or omission, with dates and page references, does more than a complaint made in the hallway. Judges respond to what is on the docket. The Barber panel leaned heavily on the fact that defense counsel had flagged the fabricated citations again and again, in writing, before anyone asked for sanctions.

Next, use the procedural tools the court rules already provide. In Michigan trial courts, MCR 1.109(E) makes an attorney’s signature a certification that a filing is grounded in fact and existing law after reasonable inquiry, and it requires sanctions when that certification is violated. On appeal, MCR 7.216(C) authorizes sanctions for vexatious proceedings. A properly supported motion forces a ruling, and a ruling produces findings.

When you ask for relief, ask for the referral too. A request that the court direct its clerk to forward the order to the Attorney Grievance Commission, the step both Judge Parker and the Barber panel took, puts Canon 3(B)(3) squarely in front of the judge. If the court declines, ask that it state its reasons on the record. JI-85 itself suggested judges place a statement on the record describing how they handled improper conduct. A written explanation, either way, is a record someone can review later.

Do not make your own complaint wait on the judge. MCR 9.112 lets any person file a request for investigation with the Attorney Grievance Commission. It must be written and signed, describe the alleged misconduct, and give its approximate time and place. No form is required. A judge’s referral strengthens a grievance, but it is not a prerequisite, and the Kentucky reprimand illustrates the other side of that line: a judge cannot make your relief contingent on filing one.

Lawyers carry a separate obligation. MRPC 8.3(a) requires a lawyer who knows another lawyer committed a significant violation raising a substantial question about honesty, trustworthiness, or fitness to inform the Attorney Grievance Commission, subject to the confidentiality limits of MRPC 1.6. Unlike the judicial canon, the lawyer’s rule says “shall.” And if the problem is the judge’s own response, the Judicial Tenure Commission accepts requests for investigation of judges, though Michigan requires them to be verified under oath.

What Fixing It Would Actually Require

None of this requires new institutions. It requires the Michigan Supreme Court to finish work many other states have already done.

First, the Court should replace Canon 3(B)(3) with language modeled on ABA Rule 2.15: a mandatory duty to inform the Attorney Grievance Commission when a judge knows of a violation raising a substantial question about a lawyer’s honesty, trustworthiness, or fitness, and a duty to take appropriate action when the judge has information showing a substantial likelihood of a violation. Second, the amendment should carry official commentary stating that a judge may not condition relief on a party filing the grievance, the precise conduct Kentucky disciplined, and that reports made under the rule are privileged, as some states including Arizona already provide.

Third, the State Bar’s Judicial Ethics Committee should issue an opinion that supersedes or supplements JI-85, defining what counts as an appropriate measure for the conduct judges actually see now: fabricated or AI-generated authority, misrepresentations to the tribunal, and violations repeated after warnings. Fourth, when a judge refers a lawyer, the referral should appear as a docket entry or written order, so it exists as a public record whether or not the case produces a published opinion.

Fifth, the Attorney Grievance Commission and the Judicial Tenure Commission should report, in their published annual data, how many requests for investigation came from judges and how those matters were resolved. That one change would let the public, the Legislature, and the courts see for the first time whether the canon is being used at all.

Why This Matters

A judge is often the only person in the room with both the authority and the vantage point to see a lawyer’s misconduct as it happens. The client may not understand what went wrong. Opposing counsel may have reasons to stay quiet. The judge has the record, the training, and the bench. Canon 3(B)(3) recognizes that, and then leaves the decision entirely to the person who has every professional incentive to keep the docket moving.

The fix is not complicated. Make the duty mean something it can be measured against. If a judge in your case saw serious attorney misconduct and did nothing, or did something that made a real difference, I want to see the record. Send it through Clutch Intel.