Definition
"Heretofore been consulted or employed" is a phrase found in statutory text, used to disqualify a person — typically a judge, arbitrator, or official — from acting in a matter in which they have previously given advice or rendered services in a professional capacity. The phrase operates as a recusal or disqualification trigger: if the individual was consulted or employed in connection with the subject matter before them, they are barred from exercising authority over it.
The phrase is not a standalone term of art but a clause of limitation. Its operative words work together: "heretofore" (meaning prior to the present proceeding), "consulted" (having been sought for advice or opinion), and "employed" (having been engaged to render service). Together they cover the full range of prior professional involvement, from informal counsel to formal engagement.
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Common Confusion
"Consulted" and "employed" might appear redundant, but the pairing is deliberate. A person may have been informally consulted without ever being formally retained or paid, and conversely may have been employed in a clerical or ministerial capacity without having rendered substantive advice. The statute's use of both terms closes gaps that either word alone would leave open. The Michigan Supreme Court addressed the interpretation of this precise phrase in a statutory disqualification context, reported at 26 Mich. 342, indicating that courts have had to resolve disputes over what prior relationship rises to the level of "consulted or employed" sufficient to trigger disqualification.
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Why It Matters in Research
This phrase appears almost exclusively in the context of statutory disqualification or recusal provisions — most commonly in nineteenth-century state statutes governing judicial conduct, arbitration, or quasi-judicial proceedings. Researchers encountering it should treat it as a clause within a larger disqualification statute rather than as an independent defined term.
The primary research trap is treating "consulted" as requiring a formal attorney-client relationship. Historical courts, including the Michigan decision cited by Rapalje & Lawrence, were called upon to determine whether informal advice-giving qualified. If you are researching disqualification disputes in historical sources, look for the underlying statute's language: the breadth of "consulted or employed" was often the contested issue, not the disqualification principle itself.
The phrase also signals a broader pattern in nineteenth-century legislative drafting: rather than relying on common-law recusal principles, legislatures codified disqualification in explicit, paired-term formulas. Researchers comparing modern judicial disqualification standards to historical statutory schemes will find this drafting style instructive — modern codes of judicial conduct and federal disqualification statutes use different vocabulary (typically "proceeding in which the judge has served as lawyer" or similar), and the conceptual overlap is imperfect.
Corpus connections: This phrase is most likely to appear in digests and reporters covering state court construction-of-statutes decisions from roughly 1850–1900, particularly in Midwestern jurisdictions. Rapalje & Lawrence's citation to a Michigan decision suggests the phrase had generated enough litigation to warrant doctrinal treatment.
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Historical Dictionary Support
Rapalje & Lawrence record this phrase under the heading "PLOYED, (in a statute). 26 Mich. 342," which is a truncated citation form for the full phrase "heretofore been consulted or employed" — the dictionary entry having been split across a page or column break, with the leading portion of the phrase serving as the cross-reference head. This is a common artifact of nineteenth-century legal dictionary formatting and should not be read as a separate defined term.
The entry is notably spare. Rapalje & Lawrence provide only the statutory context indicator and the single case citation, offering no further gloss. This suggests the phrase was understood to be self-explanatory in its statutory setting, with the citation serving primarily to locate authoritative construction rather than to define the phrase itself. No other historical dictionaries in the Law Mind corpus appear to address this phrase, making Rapalje & Lawrence the sole lexicographic authority.
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Jurisdictional Note
The single supporting authority is a Michigan decision. While disqualification statutes using similar paired formulas existed in other states, the specific judicial construction of "heretofore been consulted or employed" as a statutory phrase has a traceable doctrinal record primarily in Michigan. Researchers applying this phrase in other jurisdictions should locate the governing statute's own terms and any state-specific construction.
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