July 29, 1991
A lawyer may represent a municipality when the mayor of the municipality is a sibling of the lawyer, as long as the interests of the client municipality and the mayor do not differ and the client municipality consents. In the event the interests of the municipality and the mayor differ, the lawyer is disqualified from the representation.
The disqualification of the lawyer is imputed to the other members of the lawyer's firm.
References: MRPC 1.7(b), 1.10(a), 1.13(a), 1.13(b), 5.4(c).
A lawyer whose sibling is the mayor of a municipality asks whether the lawyer's firm may represent the municipality. The Committee is aware that the manner in which municipal lawyers are selected varies from community to community. In some locales an appointment to or retention of counsel is made by the mayor; in others the selection may be made by the city council or by the city council upon nomination of the mayor.
Under MRPC 1.13(a) a lawyer employed or retained to represent an organization represents the organization as distinct from its directors, officers, employees, members, shareholders, or other constituents. A lawyer or law firm representing a municipality represents the entity as distinct from the mayor, department heads, governing council, etc. Under MRPC 1.7(b) a lawyer may not represent a client if the representation would be materially limited by the lawyer's own interests or the lawyer's duties to another client or a third person, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation. Thus, the lawyer must determine whether the representation of the municipality would be materially limited by the lawyer's duties to the sibling mayor. There is no per se conflict or disqualification solely because of the familial relationship.
Where the interests of the client municipality and the mayor coincide, there is clearly no conflict. Ethics rules do not foreclose a lawyer from representation of a family member or representation of an organization of which a family member is an officer, member or employee. For instance, MRPC 1.8(c) specifically allows a lawyer to prepare an instrument giving the lawyer a gift from a client when the lawyer is related to the donee, although such representation is prohibited for nonrelatives. MCJC 5F prohibits judges from practicing law, but does not prevent judges from providing limited legal advice or counseling to members of the judge's immediate family, J-2.
Therefore pursuant to MRPC 1.7(b) the lawyer may represent the municipality on those matters in which the mayor and the municipality have no differing interests, as long as the client municipality consents. If the representation were a single, isolated matter, the conflict analysis could be readily handled on a case by case basis. If the contemplated representation were an ongoing one,
however, we question whether such an arrangement is practical for the municipality and properly serves the interests of the public.
There is no ethics rule which per se precludes a lawyer from undertaking representation which is adverse to interests of a family member. Ethics rules do not foreclose a lawyer from representation when a family member appears in a conflicting role, such as advocate of an opposing party, MRPC 1.8(i); a lawyer who is beyond the third degree of affinity or consanguinity with the presiding adjudicator, MCR 2.003(B)(5); or a lawyer in a dating or cohabiting relationship with opposing counsel, R-3. It is clear that the closer the familial relationship the more strict the ethical rules.
There are situations in which the capacity in which a person serves is crucial in distinguishing the duties which a lawyer owes. In R-10 we distinguished the duties of a lawyer in a wrongful death action to the fiduciary personal representative of an estate from the lawyer's duties to the personal representative as claimant to the wrongful death proceeds. In C-241 a lawyer's public duty as a member of a city council was distinguished from the lawyer's duty as partner in a law firm. In JI-34 a judge's former role as prosecutor was analyzed in terms of the judge's duty as former prosecutor and the judge's current duties as adjudicator in the administration of justice. We note that the lawyer's duties to the mayor as mayor may be different from the lawyer's duties to the mayor as sibling.
A law firm which represents a municipality does not personally represent the mayor. The Comment to MRPC 1.13 states in part:
"In transactions between an organization and its lawyer, however, the organization can speak and decide only through agents, such as its officers or employees. In effect, the client-lawyer relationship is maintained through an intermediary between the client and the lawyer. This fact requires the lawyer under certain conditions to be concerned whether the intermediary legitimately represents the client."
It is easy to contemplate situations in which the interests of the municipality will differ from the interests and preferences of the mayor, and it will be the duty of the lawyer to provide independent professional judgment to the analysis and resolution of those issues and conflicts. To the extent that the lawyer would be inclined to follow the lead of the mayor/relative or to weigh the interests or instructions of the mayor/relative more heavily than those of the municipality, the lawyer could not reasonably believe that the representation of the municipality would not be adversely affected. Further, should the lawyer have knowledge that the mayor, or an individual supported by the mayor, "is engaged in action, intends to act, or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization," the lawyer must feel unconstrained in taking remedial action. MRPC 1.13(b).
Therefore the lawyer could not represent the municipality in matters in which the interests of the mayor and the municipality differ. Disclosure and consent of the municipality to representation by the lawyer would not vitiate the conflict, and the lawyer could not ethically continue to represent the municipality in such situations.
Is the conflict imputed to the entire law firm? Under MRPC 1.10(a), since the conflict arises under MRPC 1.7(b), the firm could not undertake representation that the family member could not provide directly. Screening of the family member from municipality matters is not an option offered under the ethics rules.