April 27, 1992
A lawyer who as a state hearing referee hears claims against a county represented by an insurer, is not automatically prohibited from handling as assistant city attorney subsequent claims against a city represented by the same insurer, provided that the lawyer has not undertaken duties to the insurer as assistant city attorney, and the lawyer has not participated personally and substantially in the matter as referee.
References: MRPC 1.7(b), 1.12(a).
A lawyer employed full-time as an assistant city attorney also serves part- time as a hearing referee for the State Department of Civil Rights. Both employers know of the dual employment and do not object. The lawyer is assigned as a referee to a case in which the county is a party. The insurer which represents the county in the matter before the referee is the same insurance provider who represents the city for which the lawyer works as assistant city attorney. As assistant city attorney, the lawyer will from time to time handle claims that would trigger the insurer's participation.
The lawyer asks whether by virtue of participation as referee in the matter which impacts the insurer, the lawyer is subsequently disqualified from cases as assistant city attorney in which the insurer would be involved.
The duty of a public lawyer to screen for conflicts before undertaking an individual representation matter for the public client is the same as the duty of a private lawyer to screen for conflicts. 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. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."
Thus the assistant city attorney may not undertake legal work on a claim if delivering services regarding that claim will be materially limited by the lawyer's responsibilities as referee.
Under these facts, the only connection between the assistant city attorney's duties and the referee's duties is that one insurer may have interests from time to time involving work in which the lawyer participates. Under these facts, the lawyer owes no duties to the insurer, either as assistant city attorney, since the insurance company is not a client, nor as referee.
The fact that the assistant city attorney's client may owe contractual duties to cooperate with the insurance company on a particular claim, does not automatically impact the assistant city attorney's duties in delivering legal services to the client on that claim, nor does it automatically impact the referee's duties in adjudicating an unrelated claim in which the insurer may also be involved. If the lawyer/referee's decision in a matter affects the insurer's attitude toward claims which the lawyer handles as assistant city attorney, or if the insurer's counsel in the matter heard by the lawyer/referee is a person with whom the assistant city attorney deals in city claim matters, the lawyer would have to evaluate on a case by case basis whether the representation is materially limited by the dual role. For instance, if the insurer's advocate before the referee is a person with whom the assistant city attorney must maintain a cooperative working relationship, the referee should be concerned about the appearance of bias in presiding in a matter in which that advocate appears.
MRPC 1.12(a) states:
"(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, unless all parties to the proceeding consent after consultation."
Therefore if a lawyer participated personally and substantially as referee in a matter, the lawyer could not subsequently perform services as assistant city attorney in that matter unless the parties consent. Under these facts, the lawyer does not represent the county, and therefore there is no fact situation under which the lawyer as assistant city attorney would be called upon to render legal services to a client regarding the same matter which the lawyer as referee adjudicated for the county. Further, any matters subsequently arising which fall into the job responsibilities of the assistant city attorney and involve the insurer, would not be the same "matters" as the lawyer handled as referee in the county proceeding.
Unless the lawyer had undertaken duties to the insurer as assistant city attorney triggering MRPC 1.7(b), or the lawyer has participated personally and substantially in the matter as referee pursuant to MRPC 1.12(a), the lawyer is not automatically prohibited from handling subsequent claims in which the insurer is involved.