March 19, 1992
The chief judge of a probate court, who serves as "employer" of all persons working for the court, may hire a lawyer as an employee of the court to represent juveniles in delinquency and in neglect proceedings or parents in neglect proceedings, only if (1) the judge does not interfere with the independent professional judgment of the lawyer or with the lawyer-client relationship; (2) the judge avoids ex parte contacts concerning matters undertaken by the lawyer; and (3) the judge takes steps to minimize any appearance of bias.
In representing any client, the lawyer employed by the court must exercise independent professional judgment regarding the representation, preserve all client confidences, disclose to the client the lawyer's relationship to the judge and the court and obtain client consent after consultation. A lawyer may limit the scope of the representation only if the client consents after adequate consultation about the practical implications of the limitation. A material limitation is permitted only if a disinterested lawyer would conclude that the client would be adequately represented in light of the limitation. If the lawyer's duties to the judge-employer or the lawyer's own interests in continued employment materially limit the lawyer's representation of a particular client, the lawyer should decline that representation.
References: MCJC 1, MCJC 2, MCJC 3A(4); MRPC 1.2(b), 1.6, 1.7(b), 1.8(f), 3.5(b), 5.4(c); JI-29; MCR 2.003(B)(2); Matter of Sedor, 73 Wis 2d 629, 245 NW2d 895 (1976).
A probate judge inquires regarding the ethical implications of the judge's court hiring a lawyer to provide legal services to indigent youth in delinquency cases and to either a parent or the child in child protection proceedings. In the past, the court has made these services available by appointment from a list of lawyers or by contract with a group of local lawyers with funds provided by the county. Under the proposal, the lawyer would technically be an employee of the county, although the county treats the chief judge of the probate court as the employer of all persons working for the court.
A lawyer employee is subject to the same ethical constraints as an appointed or retained lawyer, although there are legal differences between their roles. Appointed private counsel is an independent contractor hired to represent a client. An independent counsel is free to decide the specific method or means to accomplish this task. See, e.g., Restatement (Second) of Agency paragraph 2. An employee, on the other hand, can ordinarily be legally controlled by the employer "not only as to the result accomplished by the work but also as to the details and means by which the task is accomplished." Armbruster v. Quinn, 498 F Supp 858, 861 (ED Mich 1980), rev'd on other grounds, 711 F 2d 1332 (CA 6 1983) (interpreting Michigan Law). For a lawyer hired by a third party to represent another client, this traditional legal standard for controlling the details of the employee's work must yield to the edicts of MRPC 1.8(f)(2) and 5.4(c) which require that there be "no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship."
MRPC 1.2(b) allows a lawyer to limit the objectives of the representation if the client consents after consultation. The Comment to MRPC 1.2 makes it clear that the limitation "may exclude objectives or means" of achieving the objectives of the representation. But where the limitation may have a materially adverse effect upon the representation, greater attention must be paid to the question of whether client consent may be sought. Case law in other jurisdictions has made it clear that "an informed consent requires disclosure which details not only the attorney's adverse interest, but also the effect it will have on the exercise of [the attorney's] professional judgment." Matter of Sedor, 73 Wis 2d 629, 639; 245 NW2d 895, 901 (1976). MRPC 1.7(b) states:
"(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests unless:
"(1) the lawyer reasonably believes the representation will not be adversely affected; and
"(2) the client consents after consultation . . . ."
The Comment to MRPC 1.7 states that a lawyer should not seek the consent of a client to representation that may be materially limited by a lawyer's own interests "when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances . . . ." The Comment further cautions that when the conflict involves the lawyer's own interest, "it may be difficult or impossible for the lawyer to give a client detached advice." The Comment specifically identifies the lawyer's interest in income as a potential area of conflict. When a lawyer is paid "from a source other than the client," the Comment notes that the client should be informed of this fact and consent to the arrangement. Such arrangements should "not compromise the lawyer's duty of loyalty to the client" nor undermine "the lawyer's professional independence."
A person employed by the court to represent a substantial number of clients before that court would be more economically dependent upon that source of income than a private lawyer assigned to a specific case. For a full-time court employee, there would be complete economic dependence on the judge for the lawyer's earned income. Thus, when a judge before whom a lawyer practices is that individual's employer and can limit pay raises or even terminate the employment, the risks of violating MRPC 1.7(b) are far greater than for private counsel. A lawyer too concerned about pleasing the person who pays or employs that lawyer also runs the risk of violating 1.8(f), which establishes the conditions under which a lawyer may accept payment for legal services from someone other than the client. When a judge can determine a lawyer's future employment and future salary increases, there can arise subtle and tacit pressures, even if based on misperceptions by the lawyer, that can jeopardize the independence of counsel and the lawyer's loyalty to the client. These risks are enhanced in an age of greater scarcity in public funds and greater administrative attention to judicial efficiency and case load statistics.
An excessively zealous and adversarial presentation is inappropriate in most juvenile delinquency and parental abuse and neglect cases; however, a lawyer's evaluation from an adversarial perspective is appropriate in all cases. It preserves the integrity of the judicial process. As noted in MRPC 1.2 the decision as to whether to resort to all adjudicative procedures available is that of the client. In the individual case, however, the client's lawyer, as well as the judge, can have a significant influence on the willingness of a client to exercise this right.
A judge is charged with upholding the integrity and independence of the judiciary, MCJC 1. A judge must also perform the duties of judicial office impartially, MCJC 3. Confidence in the system of justice is undermined whenever parties are likely to perceive that a judge is biased or unable to determine the issues impartially based solely upon the evidence presented in the proceeding. See MCJC 2A, 2B; MCR 2.003(B)(2).
The essence of the adversary system is to assist the judge to understand more clearly the complexities and the unique elements of the case and the applicable law. If an advocate who is an employee of the judge consistently waived the client's procedural rights in order to expedite matters, refusing to seek extended time-consuming evidentiary hearings, and always resolving the case by acquiescing in a settlement instead of forcing the issue to judicial determination, there would be a breakdown in the adversary system.
In JI-29, it was determined that a judge who appointed a domestic relations referee [who would then act as a "quasi-judicial" public official under the Friend of the Court Act of 1982, MCL 552.502, MSA 25176(1)], was not per se disqualified from hearing the matter argued by that lawyer. It was noted that a per se disqualification would burden the judicial system, particularly in a one judge circuit. JI-29 concluded:
"Absent circumstances which show bias[,] a judge is not per se disqualified from presiding over matters presented by an appointee."
The next question resolved by JI-29 was whether the judge who appointed the domestic relations referee would be disqualified from presiding over matters in which the referee appeared while acting in the referee's role as liaison lawyer. Again, the Subcommittee on Judicial Ethics refused to adopt a per se judicial disqualification in light of the court's statutory appointive authority. MCL 552.507 specifically allows the judge to appoint a private practitioner to serve as referee.
In an employment relationship, where the employee's performance is presumably reviewed and critiqued by the employer for purposes of continued employment and compensation, formal and informal contacts between the employer and employee are commonplace. Where the employer is a judge and the employee is a lawyer representing interests of clients before the judge, however, such contacts regarding particular assignments and cases handled by the lawyer should be limited to those contacts permitted by law and necessary for the competent representation of the lawyer's clients. Both the judge and the lawyer have ethical duties to avoid ex parte contacts, MCJC 3A(4); MRPC 3.5(b). The lawyer is also obligated to protect the confidences and secrets of the client, MRPC 1.6. The employment relationship may not result in circumvention of the rules.
The lawyer-employee and judge-employer can, with an abundance of circumspection, care, and attention, fulfill their respective ethical obligations. Thus, there is no per se prohibition of the arrangement proposed. Yet, no one will envy the delicate task a judge and counsel must undertake in walking this professional tightrope.
A safer route would be to hire a lawyer for the child or parent in a manner less subject to risk, criticism, and adverse publicity involving our public institutions. If county commissioners would hire the lawyer separately, or through a private organization outside the court, many of the ethical risks could be avoided. If the commissioners felt incapable of selecting a lawyer for these tasks, an independent merit selection and review panel could be formed by lawyers and nonlawyers familiar with probate court proceedings. While the views of the probate judge might be solicited by such a panel in hiring and review determinations, the judge should not actually serve on that panel. Thus, the probate judge would not make the hiring, firing, and salary decisions, nor would the judge have undue influence on such decisions.
In summary, the judge of a probate court may hire a lawyer as an employee of the court to represent juveniles in delinquency or neglect proceedings or parents in neglect proceedings. The judge may not interfere with the independent professional judgment of the lawyer or with the lawyer-client relationship. The judge must guard against ex parte contacts and must take steps to minimize any appearance of bias.
In representing any client, the lawyer employed by the court must preserve client confidences and secrets, exercise independent professional judgment regarding the representation, must disclose to the client the lawyer's relationship to the judge and the court and obtain client consent after consultation. A lawyer may limit the scope of the representation only if the client consents after adequate consultation about the practical implications of the limitation; a lawyer may seek the consent of a client to a limitation only if a disinterested lawyer would conclude that the client would be adequately represented in light of the limitation. Where the lawyer's duties to the judge-employer or the lawyer's own interests in continued employment materially limit the lawyer's representation of a client, the lawyer should decline representation.