CI-677

September 3, 1981

SYLLABUS

It is improper for legal counsel for a legislative committee to represent a defendant charged with violating laws whose subject matter is within the jurisdiction of the committee, notwithstanding the consent of the Committee. Such representation is likely to compromise the lawyer'' objectivity regarding proposed legislation.

References: DR 5-105; C-132; ABA Informal Opinion 1126.

TEXT

The question raised in this inquire is as follows:

When an attorney is an employee of a Michigan House of Representatives legislative committee to which legislation concerning civil infractions is customarily committed, may that attorney enter an appearance and represent a person who has received a notice of default judgment for a parking violation, assuming that the consent of the person and the House of Representatives is obtained and full disclosure is made, without being guilty of a conflict of interest under DR 5-105?

DR 5-105(A) requires an attorney to decline additional employment that would be likely to adversely affect his/her independent professional judgment on behalf of a client. In C-132, the Committee opined that it would be improper for a city councilperson to represent a defendant charged with violating a city ordinance. The Commissioners reasoned, in part, that the lawyer's duty to defend his/her client zealously "might prevent or even destroy that unbiased judgment which is so essential in passing upon the city's problems as . . . a member of the city council." In ABA Informal Opinion 1126, the Committee decided that while a state legislator is not flatly precluded from representing defendants accused of violating state criminal laws, ". . . should he fell that his representation of persons accused of crime does not permit him to have a free, impartial and unbiased attitude toward the enactment of criminal laws for the benefit of the public as a whole, then this should dictate that he not endeavor to serve both as a legislator and represent those accused of crime."

A lawyer's responsibilities as a legislator are political in nature, and run to the public as a whole. Also, separations of power considerations have made the bar and the judiciary reluctant to regulate the conduct of lawyer-legislators. And you have a constitutional right to represent yourself in litigation, including the defense of parking or traffic citations). However, you have a professional, lawyer-client relationship with your legislative committee employer, and it is entitled to your objective judgment regarding proposed parking and traffic violation legislation, including amendments to existing legislation.

The Committee believes that there is a likelihood of your objectivity regarding the merits of related legislative proposals being compromised by your representation of another client in litigation challenging parking or traffic violation procedures. As regards obtaining consent of the legislative committee to this representation, the Committee's conclusion is that the consent exception in DR 5-105(C) is inapplicable, because it is not obvious that you could continue to adequately represent the interests of the legislative committee.