April 11, 1990
An assistant city attorney who serves as the entity client's legal advisor for Labor Relations/Personnel may not serve as the management representative on a two-person supervisory grievance board.
An assistant city attorney who does not have legal responsibility for advising the employee relations functions of the entity client may serve as management representative of a two-person supervisory grievance board.
An assistant city attorney may represent management in grievance proceedings where another assistant city attorney serves as management representative on the adjudicative panel.
References: MRPC 1.6(b), 1.7(b), 1.10(a), 1.13, 3.5(b), 4.3; RI-22, RI-37, RI-43; C-241; Upjohn Co v United States, 449 US 383 (1981); Russo v Department of Licensing and Regulation, 110 Mich App 624 (1982); Withrow v Larkin, 421 US 35 (1975); Holley v Seminole County School District, 755 F2d 1492 (CA11 1985).
An assistant city attorney who serves as legal advisor to Labor Relations/Personnel has been asked to serve on the city's supervisory grievance board as a management representative, a board to which employees may appeal their grievances. Management would be represented in these matters by other assistant city attorneys.
An employee with a grievance first raises it with the employee's immediate supervisor. If not resolved to the satisfaction of the employee, the matter is referred to the Assistant City Manager, and if still not resolved, to the City Manager. From the City Manager, the employee's union may refer the grievance to the Personnel Manager, who refers the matter to the supervisory grievance board, consisting of two persons, a union representative and a management representative.
The assistant city attorney asks (1) whether the lawyer may ethically accept the assignment; (2) whether another member of the city attorney's office may serve on the board when assistant city attorneys represent management's position before the board; and (3) whether if one assistant city attorney is disqualified from serving on the supervisory grievance board all assistant city attorneys are disqualified by imputation.
1. May the lawyer accept the assignment?
The lawyer's client is the city. MRPC 1.13(a) makes it clear that a lawyer for an organization, such as the city government, "represents the organization as distinct from its directors, officers, employees, members, shareholders, or other constituents." Although a lawyer may discover the needs of the entity client from the actions and communications of officers and employees of the entity, it is the lawyer's duty to distinguish for the officers and employees that the lawyer's duties of loyalty, etc., are to the entity, and not to individuals who act for the entity.
MRPC 1.7(b) prohibits a lawyer from representing 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." The lawyer may perform as a member of the supervisory grievance board, even when those duties conflict with those of the client entity, if the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation. Since the lawyer will serve at the request of management, it would appear that the client has "consented" to the lawyer's participation.
The question remaining is whether the lawyer's duties to the "third party," i.e., the supervisory grievance board, will "materially limit" the lawyer's representation of the entity client, and whether the lawyer "reasonably believes the representation will not be adversely affected." In RI-37, we stated that MRPC 1.7 must be interpreted from the view-point of a disinterested lawyer.
The lawyer's participation in the specific grievance at a lower level would be solely in service for the entity client. As management representative on the supervisory grievance board, it could be argued that the interests the lawyer serves are the same, i.e., the interests of the entity, as embodied by the management nomination. If, however, the advice or counsel of the lawyer at the lower level was not followed, the lawyer's duties to the entity client would impell the lawyer to find for the employee in the grievance matter. If the lawyer's advice was followed, and after the "appeals" it appears that the lawyer's advice was not accurate or as helpful as it could have been, the lawyer will have a conflict with the lawyer's own interests, i.e., the client's confidence in the judgment of the lawyer and ultimately the employment of the lawyer, and the lawyer's duties to the third party supervisory grievance board.
As legal advisor for Labor Relations/Personnel, the lawyer would be involved in writing and reviewing policies, and in counseling management in supervisory and employment matters, which are the very policies or procedures which would be the subject of grievances. If the matter before the supervisory grievance board concerned these matters, would the lawyer's participation on the board be improper?
If the lawyer is involved in the particular grievance matter at a lower level, the lawyer might gain information from the immediate supervisor or others concerning the matter which is not presented at the supervisory grievance board level. In Upjohn Co v United States, 449 US 383 (1981), the Supreme Court held that communications from management and lower level employees to inside entity counsel were in fact within the attorney-client privilege. Pursuant to MRPC 1.6(b), the lawyer may not:
"(1) reveal a confidence or secret of a client;
"(2) use a confidence or secret of a client to the disadvantage of the client; or
"(3) use a confidence or secret of a client for the advantage of the lawyer or a third person, unless the client consents after full disclosure."
Although the communications are from various employees, the privilege, and thus the power to waive the privilege, is held by the entity client. The lawyer may not use or disclose this information while serving on the supervisory grievance board.
As legal advisor for Labor Relations/Personnel, the lawyer would normally be asked for input on individual grievances as they are handled at the level of the immediate supervisor, the Assistant City Manager, and the City Manager. If the lawyer was in fact involved in the particular matter coming before the supervisory grievance board, would the lawyer's participation on the board be improper?
The same rationale applied in answering Question 2 is applicable here. In addition, the lawyer asks whether contacts made with the employee at the lower levels would be perceived as improper communications.
Under MRPC 3.5(b), a lawyer shall not communicate ex parte with [a judge, juror, prospective juror, or other official] except as permitted by law. Since the grievance procedure is established by the entity client in negotiation with the union, contacts with employees about their grievances may only be made pursuant to the grievance procedure. If the procedure allows such contacts at the lower level, the lawyer would not be violating any ethical duty.
The employee may pursue a grievance through the first three stages, up to the supervisory grievance board, pro se without assistance or with a union representative. Only the union representative may proceed for the employee at the supervisory grievance board stage. Under MRPC 4.3, when a person is not represented by counsel, a lawyer "shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding." The Comment states the lawyer should give no advice to an unrepresented person other than the advice to obtain legal counsel.
Even if the grievance procedure allows the lawyer to contact the employee, the immediate supervisor, the Assistant City Manager, etc., the lawyer must comply with MRPC 4.3 in those contacts. This is especially important because the lawyer does not represent management; the lawyer represents the entity. It is the lawyer's duty to make sure the officers and employees of the entity client are clear about the lawyer's obligations, and do not misinterpret the lawyer's loyalties with regard to matters within the lawyer's scope of employment.
Under such a scenario a disinterested lawyer could not reasonably believe that the assistant city attorney assigned responsibility for Labor Relations/Personnel could serve as management representative on the supervisory grievance board without materially limiting the assistant city attorney's duties to the entity client.
2. May another member of the city attorney's office serve on the board when assistant city attorneys represent management's position before the board? If one assistant city attorney is disqualified from serving on the supervisory grievance board are all assistant city attorneys disqualified by imputation?
This is different from the combining of investigative and adjudicative functions which has been held not to violate due process or equal protection rights of parties. In Russo v Department of Licensing and Regulation, 110 Mich App 624 (1982), where the Michigan Department of Licensing and Regulation was involved in both the investigation and adjudication of a license revocation case, the Court of Appeals held, "It is well established that combining the investigative and adjudicative roles in a single government agency does not necessarily violate due process." In accord, Withrow v Larkin, 421 US 35 (1975), one agency both investigating and adjucating a physician's disciplinary charges.
In Holley v Seminole County School District, 755 F2d 1492 (CA 11 1985), the court found no due process violation in a tenure proceeding where the school board's attorney sat as a hearing examiner at the tenure hearing, stating, "[T]he case law generally allows for an administrative tribunal on which sit actors who have played both an investigative and adjudicatory role." The fact that an assistant city attorney has participated in the investigation of a particular grievance matter does not automatically preclude the assistant city attorney from serving on the board as adjudicator.
MRPC 1.10(a) prohibits lawyers practicing in a "firm" from knowingly representing a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7. It is not clear whether a city attorney's office is a "firm" for these purposes, but it is clear the lawyer's participation on the supervisory grievance board is not representation of a "client." MRPC 1.10(a) does not prevent another assistant city attorney from serving on the board.
If an assistant city attorney serves on the supervisory grievance board, may another member of the city attorney's office represent management before the board? C-241 states that an attorney may not represent a client before a city counsel or other governing body, or before a body subordinate to the governing body, when a member of that governing body is also a partner, shareholder, or employee of the same law firm. Accord, RI-22. Thus, if the city attorney's office is a "firm," another city attorney may not represent a client, i.e., management, before the board on which another city attorney sits.
In RI-43, the Committee determined that a prosecutor's office was a "firm" for purposes of MRPC 1.10(a), imputed disqualification, when a member of the prosecutor's office who had personal and substantial participation in a matter in prior employment is not timely and properly screened from further participation in that matter in the prosecutor's office. That rationale does not apply to this situation.
The supervisory grievance board is an internal proceeding prior to legal action being taken. It has been negotiated with the union on behalf of the employees which use the process. There is a presumption in the agreement that the bias of the "management representative" and the "union representative" have been balanced by their equal status on the board. Although one member of the board is a union representative and only the union, not the employee, can trigger the board's review of a grievance, the union still participates in matters before the board. Equal standing to appear is granted to management representatives.
As discussed in Question 1, the assistant city attorney who represents management in proceedings before the board should comply with MRPC 4.3, 3.5, 1.7 and 1.6.