April 17, 1992
A lawyer who also serves as an elected member of a city council, which employs the city attorney and approves the budget and policies of the city housing authority, may not represent clients adverse to the city housing authority in the state courts when the city housing authority is represented in those matters by the city attorney.
References: MRPC 1.7(b), 1.11(a) and (c), 1.13(a); RI-22; C-241.
A city operating under a city manager/council form of government operates the city's public housing units. The city housing commission is funded in large part by grants from the US Department of Housing and Urban Development and is subject to federal regulations. However, title to the property is held by the city, and members of the city housing commission are appointed by the city manager with the approval of the city council. The city council is required to approve the housing commission's budget and policies annually. All evictions and other legal proceedings involving the city housing commission are initiated by the office of the city attorney, who is a department head within the city. The city attorney represents the city housing commission in court.
A lawyer, who is a recently elected member of the city council and who also serves the city council as mayor pro-tem, is a lawyer who serves as supervising lawyer for the legal assistance program of a county. A significant portion of the lawyer's responsibilities involve representing indigent and senior citizen tenants, a substantial portion of whom reside in public housing owned and managed by the city. The lawyer has entered an appearance on behalf of a defendant in district court proceedings commenced by the city housing commission, by and through the city and its city attorney.
The presiding judge asks whether a lawyer serving as an elected member of a city council which approves the budget and policies of the city housing authority and who also serves as supervising attorney for the county legal assistance programs may represent clients raising or defending claims against the city housing authority in state court.
Earlier decisions of this Committee have addressed conflicts arising when a lawyer held a public office while maintaining a private law practice. JI-42 found a part-time probate judge is not prohibited from practicing law, including probate law, in courts other than his/her own, as long as the part-time judge does not represent anyone in connection with a matter in which the part-time judge participated personally and substantially as judge, unless all parties to the proceeding consent after consultation. J-4 found that a judge who is a former city commissioner is disqualified in all matters which came before the city commissioners while the judge served as commissioner, and from matters which arise after the judge resigns as commissioner, if the judge participated personally and substantially in the matters.
In turn, C-241 prohibited members of the same law firm, as a member of a city council, from representing parties before city governmental bodies on which either the law firm member sits, or which are subordinate to the body on which the firm member sits. See also, RI-22.
There is, however, no per se prohibition upon a lawyer serving upon the county board of commissioners and practicing law in the courts of that county. See CI-347, CI-1166.
In Opinion 132, the Committee applied the Canons of Professional Ethics in determining that a lawyer who is a city commissioner may not ethically appear in civil actions in which the city is a party or directly interested, or in any ordinance violation cases. In CI-42, the Committee applied MCPR DR 8-101 [carried forward in MRPC 3.5(a) and 8.4(d)] and MCPR DR 9-101 "appearance of impropriety" [not carried forward in MRPC], in determining that a city council member may not represent defendants in criminal cases in district court, although the lawyer was permitted to practice in civil matters, so long as the city is not a party or directly interested. Emphasis added. Although these determinations were made prior to the adoption of the current Michigan Rules of Professional Conduct, their rationale has a bearing upon resolving this inquiry.
MRPC 1.7(b) prohibits a lawyer from representing a client if the representation of that client may be materially limited by the responsibilities "to a third person, or by the lawyer's own interest," unless the lawyer reasonably believes that the representation will not be adversely affected, and the client consents after consultation, would appear to be applicable.
Although lawyers are, and should be, encouraged to provide public service, including seeking public office, there must remain a clear ethical distinction between their assumed public responsibilities and their efforts on behalf of their clients. A clear delineation between public and private interests must be made, and the level and degree of compensation for services is in no way controlling. Thus, the lawyer/councilperson's ethical obligations are no way impacted by the fact that the lawyer is acting on behalf of the client as a legal assistance lawyer. Rather, the question is whether under such circumstances, there is an "inexorable conflict" between the roles of council member and private counsel protagonist (see C-241), which prohibits the lawyer from forming a "reasonable belief that representation will not be adversely affected."
Absent circumstances in which the lawyer/councilperson engages in conduct prejudicial to the administration of justice [MRPC 8.4(c)], states or implies an ability to influence improperly a government agency or official [MRPC 8.4(d)], or seeks to improperly influence a public offical [MRPC 3.5(a)], the lawyer/councilperson is not per seprohibited from handling cases against the city housing authority. The lawyer's official duties as a member of the city council and the lawyer's role as attorney for a party who has interests adverse to that same city clearly conflict, but the question remains as to whether the public duties "materially limit" the lawyer's representation of the client, and if so whether a disinterested lawyer would reasonably believe the representation would not be adversely affected and the client consented. The propriety of the lawyer/councilperson undertaking representation adverse to the city housing authority thus depends heavily on the extent of control and direction which the city council may exercise over the housing authority.
Complicating this particular situation is the lawyer's role the city attorney. The city attorney is the chief legal officer of the city, and in a city manager/council form of government owes lawyer/client duties to the city council entity. See MRPC 1.13(a). Where the interests of city council entity do not conflict with the interests of subordinate city boards and agencies, the city attorney also is the lawyer for those subordinate entities. We are told that the city attorney decides which cases the city housing authority initiates; presumably the city attorney also defends the city housing authority in actions filed against it. The city council has budget and control over the city attorney as a department head. Thus when the lawyer/councilperson appears as opposing counsel to the city attorney, the city attorney's relationship to the city council as department head and as counsel is affected.
MRPC 1.11 has been applied in situations where a lawyer holds a public office while maintaining a private law practice. When the lawyer is performing as the public official, MRPC 1.11(c) prohibits the lawyer from participating in a matter in which the lawyer participated personally and substantially while in private practice. When the lawyer is performing in private practice, the lawyer is prohibited by MRPC 1.11(a) from undertaking representation in a matter in which the lawyer participated personally and substantially as a public official. See, e.g., RI-1, RI-110, R-13.
The lawyer's representation of clients against the city housing authority would prevent the lawyer from participating to any degree in any future matter as councilperson which related to the subject matter of the representation. MRPC 1.11(d) broadly defines "matter" as including "any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties; and any other matter covered by the conflict of interest rules of the appropriate government agency." For the lawyer as councilperson to intentionally refrain from participating in that range of subjects regarding the city housing authority would subvert his duties as elected official. See C-241, RI-22.
Therefore the lawyer/council member may not represent interests adverse to the city which the lawyer represents as a councilperson. Pursuant to MRPC 1.11(a), other lawyers in the legal services "firm" may handle matters in which the lawyer is disqualified if the lawyer is timely and adequately screened from any participation in the matter, is apportioned no part of any fee therefrom, and written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with these provisions. For timely and adequate screening, see R-4 and RI-43. For further information on "personal and substantial participation," see RI-11, JI-34.