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Ethics Opinion

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R-15

July 24, 1992

SYLLABUS

    A lawyer who serves as chairperson of the county board of commissioners which decides judicial salary supplements, fringe benefits, and the annual operating budget of the circuit, district and probate courts, is not per se prohibited from appearing as an advocate before those courts. A lawyer/commissioner:

    1. may not undertake representation in any matter adverse to the county or county commission;
    2. may not represent a client in a matter in which the lawyer participated personally and substantially as commissioner;
    3. may not participate as commissioner in any matter in which the lawyer participated personally and substantially while in private practice;
    4. may not represent a client if the representation will be materially limited by duties as commissioner, unless a disinterested lawyer would reasonably believe the representation will not be adversely affected and the client consents.

    A judge is not automatically disqualified from presiding in a matter in which a lawyer/commissioner appears on behalf of a client. While litigation in which a judge and a lawyer are opposing parties is pending, the judge is disqualified from presiding in unrelated cases in which the lawyer appears. A judge is not automatically disqualified from presiding in cases in which the lawyer appears merely because the lawyer has in the past been an opposing party to the judge.

    A lawyer who serves on the county board of commissioners which is responsible for approving lawyer fees for services in indigency cases, establishing how indigent counsel are appointed and their eligibility for appointment may not accept court appointments for representation of indigent criminal defendants.

    A lawyer who serves on the county board of commissioners which is responsible for funding and management oversight of the county sheriff's department, may not represent criminal defendants in proceedings in which sheriff's deputies are to be called as witnesses.

    References: MCJC 1, 2, and 3; MRPC 1.7, 1.11, 3.5(a), 8.4(d); JI-44; RI-22; C-241; CI-1166. CI-347 is superseded.

TEXT

A lawyer who regularly appears in the circuit court, district court and probate court of a county, all of which are one-judge courts, also serves as the chairperson of the elected county board of commissioners. In the lawyer's elected capacity the lawyer serves on each board committee ex officio, and participates in and votes on decisions affecting judicial salary supplements and

fringe benefits, as well as the annual operating budget of the three courts. In the lawyer's representative capacity, the lawyer has been held in contempt or otherwise disciplined for perceived improprieties before the courts. The lawyer has also been a party in several lawsuits involving other commissioners and the circuit judge.

The Committee is asked (a) whether the lawyer is prohibited from appearing as advocate in the courts over which the board of commissioners exercises funding and administrative authority; (b) if the lawyer is not per se prohibited from appearing in the courts, whether the sitting judges are automatically disqualified from cases in which the lawyer appears; (c) whether the lawyer may accept appointments for indigent defense when appointed counsel fees are paid by the county only after approval of the Board of Commissioners; and (d) whether the lawyer may represent a criminal defendant in cases where county sheriff deputies, whose salary the county commission is responsible for determining, are or may become witnesses.

COMMISSIONER APPEARING BEFORE COURTS

There is no per se prohibition against a lawyer serving as a public official while maintaining an active law practice; lawyers must evaluate such instances on a case by case basis. MRPC 1.7(b) states:

    "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 . . . ."

A lawyer's duties to the public office and the electorate are "duties to third persons" within the meaning of MRPC 1.7(b), and the lawyer may not undertake representation which would be materially limited by the lawyer's public duties, unless a disinterested lawyer would reasonably believe the representation would not be adversely affected and the client consents.

Previous opinions involving a lawyer's activities in a public and private capacity, or multiple public capacities have also applied MRPC 1.11. RI-1 involved a part-time domestic relations referee maintaining a private law practice, and held that a lawyer who is a part-time referee may represent clients in connection with a matter in which lawyer participated personally and substantially as referee, provided that all parties consent, and that the referee may not hear matters in which the referee participated personally and substantially as a lawyer.

RI-110 addressed whether a lawyer who serves as a full-time administrative hearing officer may continue in the private practice of law. The opinion states:

    "There is no per se ethics prohibition regarding the lawyer's doing so, as long as the continuing practice does not create conflicts of interest, breaches of confidentiality, or other ethics violations. Under MRPC 1.11(a), a lawyer may not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the government agency consents after consultation. Under MRPC 1.11(c), a lawyer serving as a public officer or employee may not participate in a matter in which the lawyer participated personally and substantially in private practice. For a discussion of personally and substantially related matters, see RI-11 and JI-34. Under MRPC 1.7(b), a lawyer may not represent a client if the representation would be materially limited by the lawyer's responsibilities to a third person, such as the government agency employer, or the lawyer's own interests. For example, if a member of the firm of opposing counsel in a private practice matter appears before the administrative hearing officer in an unrelated matter, it could be argued that the decision rendered in the administrative matter is tainted because of the hearing officer's personal stake in the private practice matter. The propriety of continuing to represent private clients while serving as a full-time administrative hearing officer must be weighed against those rules on a case by case basis."

R-13 also applied MRPC 1.11 in addressing under what circumstances a lawyer could serve as public lawyer for tribal courts, and handle criminal defense cases in state courts. The opinion reasoned that:

    "Lawyers who hold public positions have special duties and responsibilities to their constituencies which interplay with their personal interests . . . . The tribal court presenter is the primary law enforcement official for the tribal government. For the tribal court presenter to undertake additional responsibilities which interfere with his/her ability to perform the presenting function would violate MRPC 1.7(b) and may amount to dereliction of the prosecutor's duty."

Previous ethics opinions have addressed conflicts arising from a lawyer holding two public offices concurrently, or holding a public office while maintaining a private law practice.

CI-347, applying MCPR DR 9-101 [the predecessor of MRPC 1.11(a)] and MCPR DR 8-101 [carried forward in MRPC 3.5(a) and 8.4(d)], permitted a lawyer who was a county commissioner to practice civil and criminal law before the circuit, probate, and district judges of the county in which the lawyer was an elected official, as long as there was no subject matter conflict between the interests of the commission and the client whom the lawyer was representing [i.e., MRPC 1.7(b)], and as long as the lawyer did not attempt to influence the tribunal to act favorably on behalf of his client [i.e., MRPC 3.5(a)]. This opinion is notable for a review of then-existing ABA standards on the matter, and held that even though the lawyer's public position grants power to set judicial salary supplements, certain judicial fringe benefits, and the operating budget for the judges' staffs, thereby putting the lawyer in a position "to influence or attempt to influence a tribunal," the inquiry still must be whether the lawyer in fact influenced or attempted to influence the tribunal.

CI-1166, which was decided under MCPR DR 8-101, improperly influencing a public official [the predecessor to MRPC 3.5(a)], and MCPR DR 9-101, appearance of impropriety [not carried forward into MRPC], opined that a lawyer holding an elected position which involves adjustment of judicial salaries and other court financial matters may appear before that court if the lawyer as public officer recuses from deliberations on court financing. The opinion notes that the extent of the public official's involvement with court matters was crucial in resolving the inquiry.

    "Clearly, if you have appointive power, individually or with others, you would be ethically prohibited from practicing civil and criminal law in the subject court. Moreover, if the salary determining function you perform involves adjustment of judicial salary during the judge's term of office, the ethical prohibition would similarly obtain. Should you possess either or both of the above referenced official powers and still wish to practice law in the subject court, the Committee recommends that you consider recusing yourself from trustee proceedings involving these matters. In doing so, the Committee's ethical concerns may be satisfied. You should determine, however, whether such action is appropriate from the standpoint of fully satisfying your duties and requirements as an elected official. Where your elected duties require, as a matter of law, your participation in such matters, the Committee is of the opinion that the fulfillment of your duties as an elected public official takes precedence and you would be ethically prohibited from law practice before the subject court."

The text of the opinion states that where fulfillment of the lawyer's public duties require as a matter of law participation in judicial financing decisions, the fulfillment of the lawyer's public duty was paramount, and the lawyer's private practice before the subject court would be prohibited; however, this statement does not appear in the syllabus of the opinion, nor is it supported by reference to a disciplinary rule. Moreover, it is not clear when, if ever, an elected official is compelled to participate in financing decisions. See, e.g., MCL 15.323, which specifically authorizes disclosure plus non-participation to vitiate pecuniary conflicts in certain governmental contracts.

C-241, decided six months later on the basis of the same ethics rules, held that a law firm was disqualified from representing a client before the city council on which a member of the firm served, or before any of the city's boards, commissions, or other municipal bodies. Recusal of the firm member from deliberations on the matter in which the law firm participated was not acceptable. "While it is in the public interest to encourage the participation of attorneys in public life, such withdrawal from specific issues would deprive citizens of the representative elected to exercise judgment in just such matters. Further, in the quasi-judicial context in which city administrative matters arise, both parties may not be represented by counsel as in the judicial arena, nor may an issue necessarily be contested. Thus the 'safety valve' of a request for recusal may not exist as a practical matter."

RI-22 revisited under the MRPC the situation posed in C-241. The Committee reasoned that the lawyer/public official's responsibility to constituents preclude the lawyer and the lawyer's firm from representing clients before the commission on which the lawyer served, as well as before any board subordinate to that commission, i.e., that pursuant to MRPC 1.7(b)(1) a disinterested lawyer could not reasonably believe the representation would not be adversely affected, and therefore client consent would not vitiate the conflict. The Committee reaffirmed the reasoning contained in C-241 to the effect that the duties of advocate and public servant in this instance were so intertwined that they created an "inexorable conflict."

Yet MRPC 1.7(b) permits even "materially limited" representation if the lawyer reasonably believes that client's representation will not be adversely affected. This Rule is concerned only with protecting the client from prejudice caused by the lawyer's other responsibilities, not with protecting the public from improprieties by the lawyer.

What about those cases where the client will benefit from the lawyer's dual role? RI-22 also holds that the policy of MRPC 1.11, prohibiting successive governmental and private employment to be exploited for the advantage of a private client, applies with equal force to simultaneous public and private employment. But this conclusion is based on whether the lawyer has participated personally and substantially in the matter with which the lawyer was involved in one capacity and with which the lawyer seeks continued involvement in a second capacity. The comments to MRPC 1.11 state that this Rule does not prohibit a lawyer from jointly representing a private party and a government agency when permitted by MRPC 1.7 and where such representation is not otherwise prohibited by law.

The judges in this inquiry are in no sense employees of this lawyer, and in fact have statutory safeguards prohibiting their salaries from being reduced while in office, therefore the connection noted in CI-1166 as crucial is not present. The fact that court employees' salaries are set by the county board has been a historical source of tension between judges and county commissioners, so much so that the Supreme Court has issued an administrative order requiring arbitration of these disputes.

Though the situation is fraught with potential for abuse, MRPC 3.5(a) and 8.4(d) both require that the lawyer have taken affirmative steps to improperly influence the proceedings. The Committee finds no rationale for barring the lawyer, under all circumstances from appearing before these courts, absent proof that abuse has actually occurred.

This being the case, there are clearly circumstances in which, on a case by case basis, a disinterested lawyer could reasonably believe the representation of the private client will not be adversely affected by the lawyer's public duties, and the lawyer would be able to seek client consent to the representation after disclosure of the potential conflict pursuant to MRPC 1.7(b)(1) and (2).

JUDICIAL DISQUALIFICATION

Similarly, there is no ethical rule which requires the judges to disqualify themselves whenever this lawyer appears before them, under all cases and under all circumstances. MCR 2.003 requires disqualification when a judge is "personally biased or prejudiced for or against a party or attorney" (among other grounds). MCJC 1, 2, and 3 require judges to uphold the independence of the judiciary, to avoid the appearance of impropriety, and to perform judicial duties impartially; MCJC 2C specifically proscribes a judge from allowing "other relationships" to influence judicial conduct or judgment. While the facts presented by this inquiry create a situation where the independence of the judiciary may be threatened, there is nothing to indicate "toadyism" has infected either the lawyer in question or the judges before whom the lawyer practices. The opposite risk, that a judge may hold personal bias or prejudice against the lawyer, must be addressed on a case by case basis. See JI-44.

A second aspect of the propriety of this lawyer appearing before the courts is that the lawyer/commissioner has been an opposing party in litigation against the circuit court judge.

In People v. Lowenstein, 118 Mich App 475 (1982), a magistrate swore out an arrest warrant which was later challenged as not being issued by a neutral and detached magistrate. In dismissing the warrant, the trial judge stated that the magistrate was not disinterested because the magistrate was personally acquainted with the complaining witness, that the magistrate was an appointee of a three judge court where each judge had recused because of pending litigation between the defendant, and that the magistrate had previously been sued by defendant. The Court rejected the trial judge's first two reasons indicating that actual bias would need to be shown in those instances. The Court upheld the dismissal of the warrant on the ground that the magistrate had been sued by the defendant prior to submission of the warrant.

    "No human being (even a judge) is completely prejudice free. But our judicial system requires judges. Therefore, we make allowances. Under normal circumstances, we will assume (absent evidence to the contrary) that the judge is free enough from bias to make a tolerably nonpartisan decision. For example, a judge will occasionally preside over a case involving a defendant who had earlier pled guilty to the offense. Because this situation often enough arises and because the appearance of impropriety is not that high, we allow the trial judge to remain in charge of the case absent a showing of actual bias. [Citation omitted.] However, we realize that some situations are just too dangerous. Judges normally are not subjected to such special pressures and 'under a realistic appraisal of psychological tendencies in human weakness' we find that the appearance of justice requires the judge to disqualify himself. The test is not whether or not actual bias exists but also whether there was 'such a likelihood of bias or an appearance that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused'. Ungar v. Sarafite, 376 US 575, 588; 84 S Ct 841; 11 L Ed 2d 921 (1964). In fact, 'even though a judge personally believes himself to be unprejudiced, unbiased and impartial, he should nevertheless certify his disqualification where there are circumstances of such a nature to cause doubt as to his partiality, bias or prejudice'. Merritt v. Hunter, 575 P2d 623, 624 (Okla, 1978). The right to a fair tribunal is a right grounded in due process. United States v. Sciuto, 531 F2d 842 (CA 7, 1976)." People v. Lowenstein, 118 Mich App 475, 481-483 (1982).

The Lowenstein court goes on to favorably quote the following passage by the Arizona Supreme Court.

    "'[N]ormally a judge should not sit on litigation involving a party who is a party to other litigation in which the judge himself is a litigant.' Smith v. Smith, 115 Ariz 299, 303; 564 P2d 1266, 1270 (1977)." 118 Mich App 475, 485.

In this inquiry, although there may be no question of actual bias or prejudice for or against the lawyer/commissioner who is an opposing party of the judge in another wholly unrelated matter, the question of appearance must be considered. Hirych v. State Fair Commission, 376 Mich 384 (1965). Therefore the circuit judge is disqualified from presiding in cases in which the lawyer appears while litigation in which the lawyer is an opposing party to the judge is pending. The circuit judge is not automatically disqualified from presiding in cases in which the lawyer appears merely because the lawyer has in the past been an opposing party to the judge.

Finally, we are asked whether the previous discipline and contempt sanctions against the lawyer, taken separately or in conjunction with the facts of the lawyer's position as commissioner and the commissioner as opposing party, impacts whether the lawyer may appear. A lawyer's license to practice law may be limited or revoked by the Attorney Discipline Board after proceedings filed by the Attorney Grievance Commission. Until such order is entered, the lawyer may continue to represent clients and appear in courts regardless of past misbehavior. If the lawyer believes the presiding judge is biased against the lawyer, the lawyer should either reconsider whether the lawyer can adequately represent clients whose matters will ultimately come before that judge, or file a motion to recuse. See JI-44 regarding recusal for personal animosity.

Therefore, in the absence of proof of actual abuse, and in the absence of a violation of MRPC 1.7 or 1.11, the lawyer/commissioner may represent clients in unrelated matters before judges whose supplements and operating budgets are set by the county board on which the lawyer serves. We do not address whether the incompatible offices statute is applicable to this situation, e.g., MCL 15.181 et seq and MCL 15.321 et seq.

APPOINTMENTS FOR CRIMINAL INDIGENT DEFENSE

The propriety of the lawyer/commissioner accepting court appointments which are paid for by the county after approval by the county board was also addressed in CI-347, which reasoned that where defense appointments were made on a rotating basis, and payment for those services authorized by the judge and the county commissioners, the lawyer/commissioner could accept such appointments as long as the lawyer/commissioner abstained from matters involving the lawyer's own compensation.

MRPC 1.11(c) prohibits a lawyer who currently holds public office from participating in any matter in which the lawyer personally and substantially participated while in private practice. MRPC 1.11(d) defines "matter" to include any judicial proceeding, contract, arrest, or investigation (among others). A defense lawyer, by nature of the job, is always personally and substantially engaged in judicial proceedings involving arrest and investigation. There is no exception in MRPC 1.11(c) which allows the private defense lawyer, "wearing a different hat," to subsequently approve his or her own bill for these services.

It is unclear whether indigent defense services in this inquiry are handled on a rotating basis or by contract, or whether the compensation is fixed or variable, but it makes no difference: the lawyer may not participate in decisions as a commissioner which will affect the lawyer's representation of appointed clients, or which will affect the lawyer's own interests in receiving compensation for such efforts. MRPC 1.7(b).

If it were simply a matter of approving the lawyer's own fees for services in indigency cases, the lawyer/commissioner's abstention from that review might vitiate the conflict. However commissioners are asked to determine a variety of issues regarding indigent defense beyond the approval of individual lawyer fees. Such decisions may affect whether lawyers are willing to serve as indigent counsel, how frequently they may be appointed, and whether they serve in misdemeanor or felony matters. Pursuant to MRPC 1.7(b)(1), the lawyer/commissioner's abstention from voting on the lawyer's bill will not cure the impropriety, notwithstanding the manner in which the court appointments are handled, and regardless of whether the fees are fixed or variable. CI-347 is superseded.

DEPUTIES AS WITNESSES

Finally, we are asked whether the lawyer/commissioner may appear in cases where county sheriff's deputies are or may become witnesses. While there is no pecuniary conflict, a disinterested lawyer would not reasonably believe that a client-defendant's representation would not be materially affected by the lawyer's responsibilities to the county sheriff's department, MRPC 1.7(b)(1). County commissioners are responsible for maintaining the county jail, negotiating with the deputy's union, handling personnel grievances, and even deciding the extent to which the road patrol and jail shall be staffed. Unlike judges, who are directly elected by the people and who have their base salary paid by the state, the county sheriff's department is inextricably bound to the county commission on matters of personnel and finance. It makes no difference whether sheriff's deputies are technically employees of the commission or of the sheriff.

In conclusion, a lawyer who serves on the county board of commissioners is not per se prohibited from representing clients before courts in the county. The lawyer may not undertake representation in a matter in which the lawyer participated personally and substantially as a commissioner, and the lawyer may not undertake representation in matters which are likely to come before the lawyer as commissioner.

A judge is not automatically recused from presiding in a matter in which a lawyer/commissioner appears on behalf of a client.

A lawyer who serves on the county board of commissioners which is responsible for establishing lawyer fees and appointment rotation regarding appointments of counsel for criminal indigent defendants may not accept such appointments; a lawyer who serves on the county board of commissioners which is responsible for funding and management oversight of the county sheriff's department, may not represent criminal defendants in proceedings in which sheriff deputies are to be called as witnesses.

 
     

 

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