September 1, 1983
A lawyer employed by the state as a children's protective services worker but not as an attorney should follow department rules to properly perform Duties and avoid interfering with those who have been assigned judicial and legal duties by the state.
Neither the lawyer nor the lawyer's law partner should accept juvenile court work while the lawyer is employed by state protective services, because such cases would place the lawyer in an adversarial relationship with the employer.
Upon ceasing to be employed as a state child protective services worker, the lawyer may act as private attorney in juvenile court matters for which the lawyer had no responsibility as a public employee.
References: MCPR DR 2-102(E), DR 7-104, DR 9-101(B); CI-302, CI-329, CI-433, CI-669, CI-794; ABA Op 328, ABA Op 342.
A lawyer recently admitted to practice is employed by the Department of Social Services as a juvenile services worker. The department does not consider acting as an attorney among the duties of that position. As a protective services worker, the lawyer frequently communicates with persons who may appear in juvenile court and who may have interests adverse to those of the state. Some cases require the lawyer to investigate child abuse and neglect and to assist in developing treatment plans for families. The lawyer asks:
- In performing duties as a children's protective services worker, would the lawyer violate MCPR DR 7-104 by not seeking the consent of a client's attorney to communicate with the client, or when the state's interests are adverse to those of persons under investigation, by advising those persons to seek legal counsel?
- In starting a practice, may the lawyer or a law partner of the lawyer accept juvenile cases for which the lawyer had no responsibility while working for the state, but which were the responsibility of the employer department?
The state did not retain the lawyer to act as an attorney when discharging the duties of a children's protective services worker with the Department of Social Services. MCPR DR 7-104 states:
"(A) During the course of his representation of a client a lawyer shall not:
"(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter, unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.
"(2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client." Emphasis added.
Because the state understands that the duties of a children's protective services worker to include investigation and recommendation of treatment, and because the state employs attorneys to represent its legal interests and of the adverse parties in interest, the lawyer's conduct as a protective services worker should supplement rather than interfere with the duties of the attorneys assigned such cases. Because the lawyer is not employed as a lawyer for the Department of Social Services, the Department is not the lawyer's "client" under the meaning of the rule, and the proscription against contacting parties represented by counsel does not apply.
The lawyer's primary duty is to follow the rules and regulations of the Department governing the position of protective services worker. Since the lawyer is not performing the duties of an attorney, the rules relating to the position for which he has been employed are paramount to avoid interference with judicial and legal proceedings and duties of those taking part in such proceedings.
Several ethics opinions deal with the performance of dual professions out of the same office by lawyers, the primary concern being the avoidance of having the other business result in "feeding" clients into the law practice. CI-669, concerning an attorney who became a partner in a CPA firm, stated: "[T]here is no strict prohibition by the Code of Professional Responsibility against an attorney engaging in both the practice of law and another profession." In a similar fact situation, ABA Op 328 stated:
"Perhaps because of the terms 'indirect solicitation' and 'feeding the law practice' are vague as well as overbroad, they were entirely omitted from the Code of Professional Responsibility . . . . Accordingly, this Committee cannot condemn any activity today on the basis of 'indirect solicitation' or feeding the law practice.
". . . The ABA's position on this matter, however, is by no means a blanket approval of a dual practice. On the contrary, the Committee points out that it would be very difficult to practice certain occupations in conjunction with the practice of law, especially within the same office."
In CI-302, the Committee stated:
"Whether or not . . . [it] is proper [for an attorney to become a minority shareholder in a title insurance company] depends upon the physical situation. The two businesses must be kept separate and distinct . . . a common reception area would, for example, be suspect. The primary concern of the Committee and all the decisions involving a similar situation has been:
In accord, CI-433: "That the other profession or business would serve as a feeder of the law practice and that this was an impermissible form of solicitation under the Code . . . . Thus . . . this Committee has never held that an attorney may indiscriminately or otherwise combine his two professions, allowing one to fee the other.
CI-669 cited MCPR DR 2-102(E) where it said:
"(E) A lawyer who is engaged both in the practice of law and in other professional business shall not so indicate on his letterhead, office sign or professional card, nor shall he identify himself as a lawyer in any publication in connection with his profession or business."
CI-669 reaffirmed CI-329, which stated:
". . . It would be improper for a lawyer to conduct his law practice and a second occupation, not law-related, from one office; also, . . . a lawyer could conduct his law practice in a law-related profession or occupation such as account(ing) from the same office provided he complies with all of the provisions of the Code of Professional Responsibility.
"[A]mong other things, [however] as was recognized in Op 190, it would not be proper for [accounting] activities to serve as a feeder for the law practice. Nor would it be proper to recommend employment of oneself to a nonlawyer who has sought legal advice regarding [accounting] matters."
In light of the above, as the inquirer is attempting to begin a law practice while continuing as an employee of the Department of Social Services, both professions must be kept separate and distinct. The position of child protective services director must not serve as a source of clients for the law practice.
May the lawyer accept juvenile cases for which the lawyer had no personal responsibility as a state employee, but for which the lawyer's employing agency was responsible? MCPR DR 9-101(B) states:
"A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee."
MCPR DR 9-101(B) applies when a former public employee seeks private employment. Thus, the guidelines would apply once the lawyer ceased to be a public employee, but not while he/she and a partner are trying to develop a law practice while the lawyer is still a public employee. Neither the lawyer nor partner should do any juvenile work while the lawyer is a juvenile protective services worker because the cases would position the lawyer adverse to the Department of Social Services, and therefore in conflict with the lawyer's employer.
MCPR DR 9-101(B) does apply once the lawyer ceases to be a public employee. CI-794 considered whether a former chief assistant prosecutor could represent an indigent criminal defendant by appointment of the circuit court where the matter arose during tenure with the prosecutor's office. The Committee indicated that two questions must be addressed:
". . . First, whether the matter in which [the former prosecutor] propose to accept employment is the same 'matter' which arose in the prosecutor's office during employment there; and second, whether or not the lawyer had 'substantial responsibility' for that matter as Chief Assistant Prosecutor."
To define "substantial responsibility," the Committee cited ABA Op 342, which states:
". . . 'substantial responsibility' . . . envisages a much closer and more direct relationship than that of a mere perfunctory approval or disapproval of the matter in question. It contemplates a responsibility requiring the official to become personally involved to an important, material degree, in the investigative or deliberative processes regarding the transactions or facts in question.
". . . For it is sufficient that he had uh a heavy responsibility for the matter in question that it is unlikely that he did not become personally and substantially involved in the investigative or deliberative processes regarding that matter. With a responsibility so strong and compelling that he probably became involved in the investigative or decisional processes, a lawyer upon leaving the government service, should not represent another in regard to that matter."
As the Committee indicated further in CI-794, it is not a fact-finding body. However, before accepting employment involving juvenile proceedings for which the state agency had responsibility, the lawyer should determine, as stated by CI-794:
". . . Whether or not the lawyer actually acquired information or became knowledgeable of the facts upon which the state bases its case through involvement in the investigative or deliberative stage to any substantial degree. If the lawyer did acquire such information and was substantially involved in the case . . . then . . . acceptance of employment under the circumstances would, therefore, be violative of MCPR DR 9-101(B)."