I am going through a custody battle and I am pro se. The lawyer that is representing my son's father represented me several years ago in a criminal matter. The criminal matter was a violation of probation, and I have since successfully completed the probation and the charges were expunged from my record. Should I try to fight and have him removed due to potential bias? And if I should, how do I go about asking the judge to have this lawyer removed from the case?
Criminal Defense Attorney
If you feel the attorney may be potentially biased due to his representation of you in the criminal matter then you should motion the court for his removal. You can file the motion and schedule a hearing regarding the motion yourself or retain counsel. If you need help you may want to retain counsel. Good luck and I wish you the best!
There is a Conflict of interest because it is possible lawyer has additional and otherwise unavailable confidential information about you. File a motion with the judge for his disqualification.
To the PROSPECTIVE client, please call myself or another attorney for your choice with more detaiils and an appointment. My PRELIMINARY answer to your question(s) is for general purposes and based upon what little information you have conveyed. It is based on such limited information that the general answer should never be relied as a reason for your action or inaction. My response does NOT establish an attorney-client relationship and such may only be established by mutual agreement, and the signing of a written retainer agreement, which will generally require payment for our services, as this is what we do for a living and, just like you, we must get paid for our work.. .
Ethics / Professional Responsibility Lawyer
The problem I see is that any "bias" is "potential" and not proven. Further, the lawyer could be biased against you and that is likely not grounds for removal. The grounds for removal would be if the lawyer used the information gained in previously representing you against you in the current proceedings. That would be a clear conflict of interest and would violate the Michigan Rules of Professional Conduct (MRPC). You may want to look @ the michbar.org website and look up the MRPC, and specifically read 1.9 (and also look @ 1.7 and 1.8). Certainly if the lawyer is using information he gained while previously representing you, and that isn't a matter of public record, to now claim you are unfit, that would seem to violate the MRPC. Any Judge would be interested in such a violation as would the Michigan Bar.
Criminal Defense Attorney
You should hire an attorney to help you with this.
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Disclaimer: No attorney-client relationship has been established. Please contact an attorney about your legal rights. This answer is for educational purposes only.