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Ethics Opinion

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C-214

January 14, 1977

SYLLABUS

    A lawyer may serve as a city or township attorney while at the same time serving as a member of the county board of commissioners in the county in which the township or city is located, provided that the lawyer is ever mindful of the potential conflicts which may on occasion exist and that the lawyer take appropriate action to disqualify himself or herself from participation both as lawyer and member of the board of commissioners when a conflict of interest does occur.

    References: MCPR DR 5-101(A), DR 5-105(A); Attorney General, ex rel. Moreland v. Common Council of City of Detroit, 112 Mich 145 (1987); Northway v. Sheridan, 111 Mich 18 (1896); OAG, No. 4658, p. 317, October 31, 1968.

TEXT

A lawyer who serves as an elected member of a county board of commissioners asks whether the lawyer may concurrently serve as township attorney within the same county.

We note that Op Atty Gen No. 4658, p. 317, October 31, 1968, holds that the office of city attorney, city assessor, city councilman, city clerk, township, treasurer, township trustee, and township superintendent were all incompatible offices with being an elected member of the county board of supervisors, under the rule as stated by the Michigan Supreme Court in Northway v. Sheridan, 111 Mich 18 (1896). That rule held that two offices are incompatible if the "nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one person to retain both." See also Attorney General, ex rel. Moreland v. Common Council of City of Detroit, 112 Mich 145 (1987). Op Atty Gen No 4658, p 317, reasoned that since a city attorney's duties are to act as legal advisor to the city council and to represent the city in all legal proceedings, the city attorney would be charged with the duty of taking an active role in the negotiation, preparation and execution of any contract to which the city was a party and would be acting as an agent of the city council. In such position, the city attorney is subject to the same potential conflict of duties as the offices of city councilperson and county supervisor, which had been held to be incompatible.

We see a distinction between the roles of a councilperson or other city official and the role of the legal representative of those public officials. A lawyer, whether a township attorney or a city attorney, is not an officer of those political subdivisions but is merely representing those bodies as a lawyer would represent any other client. If, in the course of those duties, the lawyer finds that there is a conflict of interest in the representation of the township or city and duties as a member of the county board, then it would be incumbent upon the lawyer to remedy the conflict by withdrawing from representation of the client and from participating in the matter as a member of the county board. While there may be numerous occasions in which conflicts might arise in the representation of a township and serving on the county board, we do not envision those occurrences to be so numerous as to render service in each of the positions to be a nullity or a breach of ethics rules merely because potential conflict may exist. See MCPR DR 5-101(A), DR 5-105(A).

Therefore, a lawyer may serve as a city or township attorney while at the same time serving as a member of the county board of commissioners in the county in which the township or city is located, provided that the lawyer is ever mindful of the potential conflicts which may on occasion exist and that the lawyer take appropriate action to refrain from participation both as lawyer and member of the Board of Commissioners when a conflict of interest does occur.

 
     

 

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