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Ethics Opinion

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RI-152

December 21, 1992

SYLLABUS

    A former criminal defense lawyer whose trial client is represented by successor counsel on appeal may not handle the appeal for the state when subsequently elected prosecutor.

    When a prosecutor is disqualified from a case because the prosecutor was defense counsel of record in the matter, none of the subordinate prosecutors who report to the prosecutor may handle the appeal for the state.

    When a prosecutor is disqualified from a case because the prosecutor was defense counsel of record in the matter, the prosecutor may not participate in the selection of a special prosecutor in the matter, coordinate efforts with the special prosecutor during the course of the matter, or otherwise participate in the matter.

    References: MRPC 1.3, 1.4, 1.6, 1.7, 1.9(c), 1.10(a), 1.11(c), 5.1; RI-43.

TEXT

A criminal defense lawyer won election as county prosecutor and will take office the following January. The prosecutor supervises three divisions, including the trial and appellate divisions. The prosecutor intends to recuse from the cases in which the prosecutor acted as defense counsel and in which the prosecutor's office is participating. In those cases in which the prosecutor acted as defense counsel at trial and the defendant is appealing with new counsel, may another lawyer in the prosecutor's office handle the appeal for the prosecution?

The underlying question appears to be whether the lawyers in a prosecutor's office are subject to imputed disqualification when the prosecutor, the one who heads the office, is disqualified. MRPC 1.10(a) states:

    "(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9(a) or (c), or 2.2."

The inquiry does not provide a specific case or fact situation which would allow analysis of all the factors which might be applicable, therefore only general application of the rules can be discussed. The inquirer is directed to apply these general principles to the facts of the particular case in order to determine appropriate action.

Prosecutors are subject to the Michigan Rules of Professional Conduct to the same degree as other lawyers. A lawyer may not handle a case which presents an impermissible conflict of interest. In order to determine when imputed disqualification may be applicable, a review of conflict rules must be made.

MRPC 1.7 states:

    "(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

      "(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

      "(2) each client consents after consultation.

    "(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 . . . ."

Clearly the prosecutor may not directly undertake the appellate case for the prosecutor's office, since the prosecutor's own interests are in having the trial defense efforts. A victory for the prosecutor on appeal could mean a claim of ineffective assistance of counsel or malpractice, while a defense victory on appeal might similarly directly implicate the competence of the prosecutor while defense counsel. A disinterested lawyer could not reasonably believe the representation would not be adversely affected. Pursuant to MRPC 1.10(a), if the prosecutor is disqualified by virtue of MRPC 1.7(b), the entire prosecutor's office is disqualified.

Aside from imputed disqualification, a subordinate prosecutor may be prohibited from handling the appeal because of the subordinate's own conflict. The subordinate may be required to challenge trial counsel's conduct, or the subordinate prosecutor may be constrained to refrain from diligently prosecuting out of deference to the new prosecutor. In such instances the lawyer could not reasonably believe the representation would not be adversely affected, and the subordinate lawyer would be disqualified. If this analysis applies to even one subordinate lawyer, such as the prosecutor's chief assistant or the prosecutor's personal appointee, other subordinate prosecutors in the office would be imputedly disqualified pursuant to MRPC 1.10(a).

MRPC 1.9 states:

    "(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.

    "(b) Unless the former client consents after consultation, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated has previously represented a client

      "(1) whose interests are materially adverse to that person, and

      "(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter.

    "(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

      "(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or

      "(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client."

Under MRPC 1.9(a), the lawyer may not act as prosecutor in a matter in which "the same or substantially related" and "materially adverse" to one which the lawyer formerly handled for a client, unless the former client waives the conflict. Under the facts presented, the matters defended at trial by the prosecutor are the same matters now on appeal, and thus the prosecutor is disqualified unless the defendant consents. Pursuant to MRPC 1.10(a), the subordinate prosecutors are imputedly disqualified.

Under MRPC 1.9(b), the lawyer may not act as prosecutor in a matter substantially related and materially adverse to one which was handled by another member of the lawyer's former firm, and about which the lawyer had confidential information. Under MRPC 1.9(c), the lawyer may not use confidential information gained in a former representation to the disadvantage of a former client without the client's consent. The prosecutor has a continuing duty to protect the confidences and secrets of former clients pursuant to MRPC 1.6(b) and 1.9(c). The prosecutor cannot conceivably adhere to those duties and also supervise subordinates who must handle cases in which the prosecutor is disqualified. For the prosecutor to attempt to supervise the work on such cases would violate MRPC 1.3, 1.4, 1.6, 1.9(c), 1.11(c) and 5.1.

If the prosecutor is disqualified because of MRPC 1.9(a) or (c), the subordinate prosecutors are similarly disqualified, and outside counsel must be sought to prosecute those matters. If the lawyer is disqualified because of MRPC 1.9(b), the subordinate prosecutors would be disqualified from the matter unless the prosecutor is screened from participation and notice is given to the tribunal to enable it to ascertain compliance.

MRPC 1.11 specifically addresses lawyers moving to and from private practice and public office or public employment. MRPC 1.11(c) states in part:

    "Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

      "(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter . . . ."

Therefore, the prosecutor is disqualified from participation in any matter in which the lawyer "participated personally and substantially" as private practitioner, including but not limited to those matters in which the lawyer served as defense counsel. For example, if the prosecutor served as a witness at a line-up, the prosecutor "participated personally and substantially" even if the eventual defendant hired other counsel.

Because MRPC 1.11 is not cross-referenced in MRPC 1.10(a), the remaining lawyers in the prosecutor's office are not imputedly disqualified from participating in matters in which the lawyer is disqualified under MRPC 1.11. The Comment to MRPC 1.11 states in part:

    "A lawyer representing a government agency, whether employed or specially retained by the government, is subject to the Rules of Professional Conduct, including the prohibition against representing adverse interests stated in Rule 1.7 and the protection afforded former client in Rule 1.9. In addition, such a lawyer is subject to Rule 1.11, and to statutes and government regulations regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which the government agency may give consent under this rule . . . .

    "Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated."

The facts of this inquiry are distinguishable from those in RI-43. In that opinion, a former judicial law clerk was hired to serve as chief appellate prosecutor. MRPC 1.12(a) applies directly to law clerks, and required that the law clerk be disqualified from acting as prosecutor in any matters in which the law clerk participated "personally and substantially" while law clerk. In addressing whether the disqualification was imputed to other prosecutors, MRPC 1.12(c) was interpreted as requiring disqualification of the other prosecutors unless the disqualified law clerk was screened from participation and written notice was promptly given to the tribunal to enable it to ascertain compliance. MRPC 1.12 is inapplicable in the present fact situation.

 
     

 

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