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Ethics Opinion

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RI-172

September 17,1993

SYLLABUS

    A Michigan lawyer, who as a lawyer in the US Army Legal Assistance Office renders legal assistance on matters arising under Michigan law to soldiers and their spouses, may not render legal services to both parties in a legal transaction unless:

    1. the assistance may ethically be rendered as an intermediary; or
    2. a disinterested lawyer would reasonably believe the representation would not be adversely affected and both clients consent.

    The personnel of a Staff Judge Advocate Office at a particular military base constitutes a "firm" for purposes of ethics rules.

    If a lawyer in the Legal Assistance Office is disqualified from representing a client in a matter arising under Michigan law, the disqualification is imputed to all other lawyers in the Staff Judge Advocate Office.

    References: MRPC 1.7, 1.10(a), 2.2; RI-154; CI-1124. CI-506 is superseded.

TEXT

A Michigan lawyer serving on active duty with the United States Army and based outside of Michigan serves the Legal Assistance Office in a role that requires the lawyer to advise and counsel soldiers and their spouses on many legal matters. Army regulations do not prohibit the Legal Assistance Office from seeing both parties to an action so long as each party is represented by separate counsel within the office. The Legal Assistance Office consists of four units: claims, legal assistance, criminal law, and administrative law. unit operates independently of the others with its own chief who reports to the Deputy Judge Advocate who, in turn, reports to the Staff Judge Advocate of the post to which the inquirer is assigned. The staff lawyers may be licensed in Michigan or other states. The lawyer asks:

  1. May the lawyer ethically represent both parties in a legal matter;
  2. If the lawyer may not represent both parties, is the entire Legal Assistance Office imputedly disqualified;
  3. If the lawyer is disqualified, is the entire Staff Judge Advocate Office imputedly disqualified?

MRPC 8.5 states:

    "A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere. A lawyer who is admitted to practice in another jurisdiction and who is practicing in this jurisdiction is subject to the disciplinary authority of this jurisdiction."

In RI-70 we opined:

    "A lawyer who actively practices in Michigan and in another state where ethics rules are inconsistent with ethics rules in Michigan must abide by Michigan ethics rules in legal matters conducted in Michigan or matters governed by Michigan law."

The Michigan Rules of Professional Conduct constitute the ethical standards for lawyers licensed to practice law in Michigan. The Rules apply to such individuals in their practice of Michigan law, be it within or outside the State of Michigan. The Michigan Rules of Professional Conduct do not govern the behavior of lawyers not licensed in the state of Michigan and not engaged in the practice of law in this state, nor do they govern the conduct of lawyers practicing under a license issued by another state or jurisdiction.

Therefore we shall only address the ethical propriety of conduct by lawyers licensed in Michigan when engaged in providing legal services arising under Michigan law.

A lawyer may assist both parties in a legal transaction if the conditions of MRPC 2.2 are met. MRPC 2.2 states:

    "(a) A lawyer may act as intermediary between clients if:

      "(1) the lawyer consults with each client concerning the implications of the common representation, including the advantages and risks involved and the effect on the client-lawyer privileges, and obtains each client's consent to the common representation;

      "(2) the lawyer reasonably believes that the matter can be resolved on terms compatible with the client's best interests, that each client will be able to make adequately informed decisions in the matter, and that there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful; and

      "(3) the lawyer reasonably believes that the common representation can be undertaken impartially and without improper effect on other responsibilities the lawyer has to any of the clients.

    "(b) While acting as intermediary, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions.

    "(c) A lawyer shall withdraw as intermediary if any of the clients so requests, or if any of the conditions stated in paragraph (a) is no longer satisfied. Upon withdrawal, the lawyer shall not continue to represent any of the clients in the matter that was the subject of the intermediation."

Other than the circumstances covered by MRPC 2.2, a lawyer is prohibited from representing a client whose interests are adverse to the interests of a current client unless the conditions of MRPC 1.7 are met. 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. 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."

CI-1124 addressed the special circumstances of a legal services organization which frequently was consulted by both parties in a legal matter, i.e., spouses seeking divorce assistance. Although recognizing the public needs addressed by the legal services organization, the opinion concluded that staff counsel could not serve either party in the dispute, but that the organization could perform intake for each party and refer each party to private counsel for representation:
    "The organization should not continue staff representation of either spouse after it has become known that each had made disclosure to the organization of assets and income information. In such circumstances to continue representation of either leads to the appearance of having obtained vital and relevant information from the then unrepresented opposition by a direct out of court inquisitorial process. Such client representation would raise the further thorny issue as to why the organization had chosen to represent one particular party, when perhaps the other would testify that they had phoned for services first in time or that there had been discrimination in deciding which party's legal position the organization wished to represent. See also CI-380 and CI-506."

CI-1124 was issued under the former Michigan Code of Professional Responsibility, but the same result would be reached under MRPC 1.7. The lawyer may not represent a client with interests directly adverse to a current client, unless a disinterested lawyer would reasonably believe the relationship with the current client would not be adversely affected and both clients consent. Since in the divorce situation posed in CI-1124 a disinterested lawyer could not reasonably believe the relationship would not be adversely affected, client consent would not vitiate the conflict.

If the inquirer would be prohibited from undertaking the representation, all members of the inquirer's firm would be imputedly disqualified from the representation pursuant to MRPC 1.10(a). The Terminology section in the Comment to MRPC 1.10 states:

    "'Firm' or 'law firm' denotes a lawyer or lawyers in a private firm, lawyers employed in the legal department of a corporation or other organization, and lawyers employed in a legal services organization."
What constitutes a "firm" for purposes of imputed disqualification has not been definitively established in the context of the military establishment. In RI-43 we determined that a county prosecutor's office was a "firm" for ethics purposes, and that imputed disqualification applied even though there were separate trial and appellate divisions, accord, RI-152. The Staff Judge Advocate Office may be considered a "firm" as a "legal services organization" or as the "legal department of an organization."

CI-506 addressed whether lawyers at different branch offices of a legal aid service could ethically represent clients with adverse interests, i.e., one branch defending a client in a traffic matter, while another branch sues the client for divorce. In that instance the branches were physically located in different counties, had separate administrative control, lawyers at each office were independent from the influence of lawyers in other branches, and active client files were exclusively and confidentially maintained in the branch office of origin. Under the former Michigan Code of Professional Responsibility, the separation was deemed sufficient screening for branch offices to concurrently represent clients with adverse interests.

The screening described in CI-506 is not adequate under the Michigan Rules of Professional Conduct (see R-4), and even if it were, it does not resolve the inquiry raised here. First, the situation in CI-506 was two separate locations in different counties, not merely a division within the same office as is the case in the present inquiry. Second, MRPC 1.7(a)(1) and (b)(1) do not recognize screening as a method of resolving whether a disinterested lawyer would reasonably believe the representation or the relationship would be adversely affected; screening would only be applicable in obtaining client consent under MRPC 1.7(a)(2) or (b)(2). Third, the facts provided in this inquiry state that all of the lawyers work at the same military base. Since screening has to be in place prior to the existence of the conflict in order to be deemed effective, there is no feasible way a single office location can effectively predict in advance those situations for which screening must be instituted; a general policy to exclude lawyers from one division from contact with lawyers from another division does not guard against two domestic relations clients, for instance. Finally, the screening described in CI-506 is not sufficiently extensive. At a minimum, it does not protect against a lawyer who is privy to confidences and secrets of a client from communicating, even accidentally, with a lawyer from another branch who is privy to the confidences and secrets of another client. See R-4 concerning what constitutes adequate screening in those cases where screening is an option to avoid imputed disqualification.

We also note that CI-506 dealt with separate branches of a single legal services office. Although it may not have been clear under the former Michigan Code of Professional Responsibility, it is clear that the Michigan Rules of Professional Conduct treat multi-office law firms and multi-office legal services organizations as bound by the same rules. All members of a private law firm, whether or not located in the same office location, are clearly bound by the conflicts raised in all offices, and subject to imputed disqualification under MRPC 1.10(a). There is no special exception under the Rules for legal services organizations.

If a lawyer in one of the units of the Legal Assistance Office is disqualified from representing a client in a matter arising under Michigan law, the disqualification is imputed to all other lawyers in the Staff Judge Advocate Office. Without a specific fact situation in which to apply the rules, we cannot provide further guidance as to the circumstances in which the inquirer would be disqualified or consent of the parties would vitiate a conflict. CI-506 is superseded.

 
     

 

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