January 13, 1995
A prosecutor serving as legal advisor to the Department of Social Services [DSS] in child neglect matters has a duty at the outset of the legal services and a continuing duty throughout the legal services to evaluate whether circumstances exist or have developed which create a conflict of interest requiring client consent or the prosecutor's withdrawal.
If confidences and secrets of DSS have been shared with a prosecutor regarding a matter, the prosecutor may not, absent an applicable exception in MRPC 1.6 or 1.13(c), disclose that information or use it to the disadvantage of DSS without DSS consent.
A prosecutor and DSS may have an agreement that if a conflict of interest arises during representation of DSS the prosecutor may seek permission from the tribunal to withdraw and DSS will seek substitute representation. An advance agreement may not provide that after withdrawal based upon a conflict of interest the prosecutor may in every case continue to perform prosecutorial duties related to the same matter, without evaluation of whether the prosecutor has further ethical duties which may prevent that participation.
References: MRPC 1.2(a), 1.6(b) and (c), 1.7(a) and (b), 1.13, 1.16; RI-47, RI-96, RI-112; MCR 5.914; MCL 712A.17(5); MSA 27.3178 (598.17(5)).
Under Michigan statutes and court rules, county prosecutors have authority to perform legal services for the Department of Social Services in addition to the prosecutors' other duties. See MCR 5.914, MCL 712A.17(5); MSA 27.3178 (598.17(5)). The judges of a probate court have sought guidance regarding the ethical duties involved when a prosecutor's duties to DSS may conflict with the prosecutor's other duties. The judges also ask whether such conflicts may be handled by an agreement which provides that DSS consents in advance to the prosecutor's dual role on all matters except those in which DSS has consulted with the lawyer and then disagrees with the counsel. In such cases DSS would seek representation from the attorney general. More specifically, the inquirer seeks guidance regarding the disclosure or use by a prosecuting attorney of information received from DSS or its agents, and whether the information may be subsequently used in proceedings directed at DSS or its agents arising out of the same matter.
The Committee is not a fact-finder and does not resolve questions of law. The Committee's jurisdiction is limited to interpreting the impact of the Michigan Rules of Professional Conduct on the proposed conduct. Since this inquiry does not present detailed facts to which the Committee may apply the ethics rules with any specificity, the guidance presented here is necessarily general and a lawyer should exercise judgment in applying the opinion to particular situations.
APPLYING CONFLICT OF INTEREST RULES
MRPC 1.13 states:
"(a) A lawyer employed or retained to represent an organization represents the organization as distinct from its directors, officer, employees, members, shareholders, or other constituents.
"(b) If a lawyer for an organization knows that an officer, employee, or other person associated with the organization 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 shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization, and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others:
"(1) asking reconsideration of the matter;
"(2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and
"(3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law.
"(c) When the organization's highest authority insists upon action, or refuses to take action, that is clearly 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 may take further remedial action that the lawyer reasonably believes to be in the best interest of the organization. Such action may include revealing information otherwise protected by Rule 1.6 only if the lawyer reasonably believes that
"(1) the highest authority in the organization has acted to further the personal or financial interests of members of that authority which are in conflict with the interests of the organization; and
"(2) revealing the information is necessary in the best interest of the organization.
"(d) In dealing with an organization's directors, officers, employees, members, shareholders, or other constituents, a lawyer shall explain the identity of the client when the lawyer believes that such explanation is necessary to avoid misunderstandings on their part.
"(e) A lawyer representing an organization may also represent any of its directors, officers, emnployees, members, shareholders, or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders."
We have frequently opined that a prosecutor represents an entity rather than an individual. RI-47, RI-96, RI-112. Ethics opinion RI-112 reasoned that a county prosecutor who served as general corporation counsel for a county was not ethically prohibited from exercising a public duty to enforce the incompatible offices statute against two county commissioners, because there was no client-lawyer relationship between the prosecutor and the individual county commissioners under MRPC 1.13(a).
"Even if it is assumed that any potential conflict arises from the prosecuting attorney's role as county corporation counsel in civil matters (as distinct from the prosecuting attorney's general duty as a minister of justice and advocate for the people in criminal matters), it is clear that there is no conflict of interest within the meaning of MRPC 1.7 because the county itself, not the individual commissioners, is the "client" of corporation counsel. Furthermore, no facts are presented in this inquiry to indicate that the prosecuting attorney's personal interests create a conflict within the meaning of MRPC 1.7(b)." RI-112, emphasis in original.
Ethics opinion RI-96 addressed whether a county attorney could provide legal advice to the county sheriff's department. The opinion noted that the prosecutor's client was the county as an entity, pursuant to MRPC 1.13(a), and that the prosecutor could render legal services to the county sheriff, even when those duties conflict with the interests of the client entity, if the lawyer reasonably believes the representation will not be adversely affected and the clients consent after consultation. See MRPC 1.7(b). The opinion continued:
"However, a lawyer assigned to provide assistance to the sheriff's department may not subsequently review the conduct of the sheriff's department in a matter or determine whether to file criminal charges in a matter, since the lawyer could not reasonably believe the representation of the county client would not be adversely affected by the lawyer's own interests in upholding whatever advice the lawyer had given to the sheriff, regardless of whether the sheriff followed the advice of the lawyer in the matter. MRPC 1.7(b). Another assistant county prosecutor who does not advise the sheriff's department, however, may determine whether to file criminal charges in the matter and review the actions of the sheriff's office in the matter. See RI-47." Emphasis added.
In RI-47, an assistant city attorney who served as legal advisor for labor relations and personnel functions asked whether it was ethical to serve as management representative on an in-house grievance panel. In determining that service on the grievance panel would materially limit the lawyer's representation of the entity client, that a disinterested lawyer would not reasonably believe the representation would not be adversely affected, and that therefore MRPC 1.7(b) prohibited the assistant city attorney from serving on the grievance panel, the opinion noted several factors. First, if the lawyer's labor/personnel advice had not been followed in the matter arising in the internal grievance, the lawyer's duties to the entity client would impel the lawyer to find for the employee in the grievance matter. Second, if the lawyer's advice was followed and it later appears that the lawyer's advice was not accurate or as helpful as it could have been, the lawyer will have a conflict with the lawyer's own interests, i.e., the client's confidence in the judgment of the lawyer and ultimately the employment of the lawyer. Third, if the lawyer is involved as labor/personnel counsel in the particular grievance matter, the lawyer might gain information which is not presented at the supervisory grievance board level; the lawyer would be unable to share the additional information with the grievance board without the consent of the entity client. There might also be a question of improper contacts with an "opposing" party in violation of MRPC 4.2 or 4.3.
These opinions are helpful in resolving the present inquiry. The functions which the prosecutor is required to perform for DSS, (a) serving as legal consultant at all stages of child protective proceedings, (b) appearing on behalf of DSS in child protective proceedings, (c) reviewing petitions for legal sufficiency, and (d) taking testimony, are legal services. When the prosecutor does not provide these services, both the statute and the court rule indicate that DSS may "retain legal representation" elsewhere. When a prosecutor provides legal services to DSS, the prosecutor has two concurrent organizational clients, i.e., prosecutorial duties on behalf of the "state" and legal services on behalf of DSS. We note that pursuant to MRPC 1.13(a) and (d), the prosecutor represents DSS as an entity and does not have attorney-client duties to employees of DSS, parents, children or witnesses.
Although the prosecutor's duties to DSS and the government entity do not per se create a conflict of interest, a conflict may arise in a particular case. In determining when such concurrent representation is ethically permissible, the provisions of MRPC 1.7 apply. 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 interest, unless:
"(1) the lawyer reasonably believes the representation will not be adversely affected; and
"(2) the client consents after consultation . . . ."
MRPC 1.7(a) prohibits a lawyer, including a lawyer who serves in a public position, from representing a client whose interests are directly adverse to another client unless a disinterested lawyer could reasonably believe the representation will not adversely affect the relationship with the other client and each client consents after consultation. MRPC 1.7(b) prohibits a lawyer, including a lawyer who serves in a public position, from representing a client if the representation would be materially limited by the lawyer's responsibilities to another client, a third person or the lawyer's own interests, unless a disinterested lawyer could reasonably believe the representation will not be adversely affected and each client consents after consultation.
Lawyers are required to determine whether conflicts of interest exist at the outset of representation, and to continue to monitor in case conflicts of interest arise during the course of representation which may require withdrawal. Not all conflicts amount to impermissible conflicts requiring any action by the lawyer, e.g., where interests are not "directly adverse" as contemplated in MRPC 1.7(a) or "materially limiting" as contemplated in MRPC 1.7(b). Some conflicts require the lawyer to advise the client, but the lawyer need not withdraw if the client consents, e.g., where the "disinterested lawyer" test has been satisfied. Some conflicts require the lawyer to withdraw from both representations, even if the clients wish the lawyer to remain.
MRPC 1.7(a) warns against representing concurrent clients when the clients' interests are "directly adverse." Whether a representation is "directly adverse" to another client is not determined solely by whether the clients are in a suit as opposing parties, but also involves, for example, whether the credibility of witnesses testifying on behalf of one client must be attacked for the other client in a related (but not the same) matter, whether the lawyer gave advice to one client which would be relevant to the merits of the case of the second client, etc. See Hazard and Hodes, The Law of Lawyering, 1992 Supplement, Prentice-Hall, pp 232-236.1. Further, MRPC 1.7(b) prohibits representation if the lawyer owes duties which "materially limit" the lawyer's ability to represent the client. A prosecutor must determine whether a prosecutorial matter would be "materially limited" by the prosecutor's duties to DSS, or whether representation in a DSS matter would be "materially limited" by other duties the prosecutor holds.
We expect that there are few instances in which MRPC 1.7(a) or (b) is triggered for a prosecutor who represents DSS. In those few matters, the prosecutor may not handle that matter unless the provisions of MRPC 1.7(a)(1) and (2) and MRPC 1.7(b)(1) and (2) respectively, are met. MRPC 1.7(a)(1) requires that a disinterested lawyer reasonably believe the relationship will not be adversely affected, and MRPC 1.7(b)(1) requires that a disinterested lawyer reasonably believe that the representation would not be adversely affected, before the prosecutor could seek consent from the clients regarding the dual representation. Unless the "disinterested lawyer" test in MRPC 1.7(a)(1) and MRPC 1.7(b)(1) are met first, client consent will not vitiate the conflict. See RI-25, RI-94, RI-108, RI-111, and RI-134, for examples in which client consent would not vitiate a conflict of interest.
Obtaining "client consent" as required under MRPC 1.7(a)(2) and 1.7(b)(2) poses a novel issue under these facts. The lawyer must obtain consent from "an appropriate official of the organization other than the individual who is to be represented, or by the shareholders," MRPC 1.13(e). Although it is possible to determine who would give consent on behalf of DSS, it is not clear to whom the prosecutor should look to provide consent on behalf of the government entity client. Since the prosecutor is the chief law enforcement officer in the county, the discretion of the prosecutor regarding waiver of a conflict should constitute adequate "consent." This is not a review of the prosecutor's discretion of whether action should be brought, but rather a consent to the prosecutor performing dual roles in the particular matter.
A conflict of interest may arise if DSS and the prosecutor disagree over the handling of a particular matter. MRPC 1.2(a) states:
"(a) A lawyer shall seek the lawful objectives of a client through reasonably available means permitted by law and these rules. A lawyer does not violate this rule by acceding to reasonable requests of opposing counsel that do not prejudice the rights of the client, by being punctual in fulfilling all professional commitments, or by avoiding offensive tactics. A lawyer shall abide by a client's decision whether to accept an offer of settlement or mediation evaluation of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, with respect to a plea to be entered, whether to waive jury trial, and whether the client will testify. In representing a client, a lawyer may, where permissible, exercise professional judgment to waive or fail to assert a right or position of the client."
The Comment to MRPC 1.2 states in part:
"Both the lawyer and the client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits inposed by law and the lawyer's professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected."
When representing DSS the prosecutor must look to DSS for client instruction. Although decisions regarding legal sufficiency, relevant evidence, and advocacy generally fall within the discretion of the lawyer, decisions regarding social policy, such as whether, regarding a particular child, parental rights should be terminated or the child returned to the biological parents, generally fall within the discretion of the "client," DSS. The prosecutor may not abridge the instructions of DSS solely based upon the prosecutor's personal disagreement with the judgment of DSS. See MRPC 1.13(b) and (c)concerning a lawyer's duties in dealing with an organizational client.
A prosecutor might believe that a witness in a DSS matter has breached an obligation to a child. Although lawyers generally owe no ethical duties to mere witnesses, whether the prosecutor can ethically institute proceedings against the witness may be complicated by the prosecutor's duties to DSS. Such a decision in a particular case may depend upon whether the witness is a constituent of DSS [MRPC 1.13(b) and (c)], whether any conflict exists requiring DSS consent [MRPC 1.7(a)(2) and (b)(2)], whether DSS consent would vitiate any conflict arising in the matter [MRPC 1.7(a)(1) and (b)(1)], or other considerations. See also, MRPC 1.8(b), limiting a lawyer's use of information relating to a representation to the disadvantage of the client, and RI-57, in which a lawyer who becomes aware of the possibility of a class action lawsuit while interviewing a potential client may not use the information to benefit another client without consent. A lawyer is generally to follow the instructions of the client unless they are illegal, fraudulent, or violate ethics rules. See, e.g., R-10, in which a lawyer representing the personal representative of an estate was required to advocate the distribution of wrongful death proceeds preferred by the personal representative, unless illegal or fraudulent.
In a particular case disagreements between a lawyer and the client may reach the level of a conflict under MRPC 1.7(b). If a lawyer's view of prosecutorial duties "materially limit" the lawyer's ability to render the legal services sought by DSS, the lawyer may not only decline or withdraw from DSS representation, but also may be required to decline or withdraw from participating as a prosecutor in a related matter.
The lawyer owes both clients duties of confidentiality under MRPC 1.6. MRPC 1.6(b) prohibits the disclosure of a confidence or secret of a client, or the use of a confidence or secret of a client to the disadvantage of the client, except under circumstances delineated in MRPC 1.6(c), which states:
"(c) A lawyer may reveal:
"(1) confidences and secrets with the consent of the client or clients affected, but only after full disclosure to them;
"(2) confidences and secrets when permitted or required by these rules, or when required by law or court order;
"(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;
"(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and
"(5) confidences and secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct."
MRPC 1.2(c) and 1.13(b) anticipate the problem when a client wishes to pursue a course of action which is illegal or fraudulent. MRPC 1.13(b) does not allow the lawyer for an organizational client to act contrary to the client's wishes unless (1) the lawyer has knowledge, (2) that a constituent of the organization "is engaged in action, intends to act, or refuses to act," (3) in a matter related to the representation, (4) 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 (5) that is likely to result in substantial injury to the organization. Even after meeting all those tests, the lawyer may still only proceed "as is reasonably necessary in the best interest of the organization." A lawyer may not disclose a perceived impropriety to anyone outside the organization without first appealing the matter to the highest organizational authority to seek rectification of the conduct, and meeting the standards in MRPC 1.13(c) that the highest organizational authority has acted to further personal or financial interests of constituents of the organization and revealing the information is "necessary" in the best interest of the organization.
The Committee has not been given a particular fact situation from which it can determine whether any information which a prosecutor may wish to disclose is protected by MRPC 1.6. Although it may be difficult to conceive of DSS information which may be considered "privileged," to the extent that such information exists, the prosecutor may not disclose or use confidences and secrets of DSS to perform duties for the state, unless DSS consents to the disclosure or use after consultation or unless the information falls within one of the exceptions of MRPC 1.6(c) or 1.13(c). An example of confidences and secrets would be a scenario in which a former DSS employee is sought by the prosecutor as a witness in a child protective proceeding, but the prosecutor learns from DSS that the employee was terminated for substance abuse on the job and recommends against using the witness. The information regarding the employee's substance abuse is a confidence and secret which could not be used or disclosed by the prosecutor without DSS consent.
In addition to other remedies discussed, a lawyer in such a situation may have grounds to seek permission of the tribunal to withdraw pursuant to MRPC 1.16.
AGREEMENT FOR WITHDRAWAL
The inquiry suggests that an agreement has been proposed in which DSS will consent in advance to any conflicts arising between the prosecutor's dual roles, except when DSS disagrees with the lawyer's opinion. In the latter event, DSS will seek representation from the attorney general. The Committee has not been provided with draft language of the proposed agreement, but only with a conceptual summary.
This plan does not adequately satisfy the prosecutor's ethical duties under MRPC 1.7. First, DSS cannot receive adequate counsel regarding whether to waive a conflict and give consent, if the situation in which the conflict arises has not yet occurred; a blanket consent before a particular conflict has arisen is not adequate under MRPC 1.7(a)(2) or 1.7(b)(2). See MRPC 1.2, 1.4. Second, as discussed earlier, there are some conflicts which client consent cannot vitiate. Third, it appears that the prosecutor would withdraw only after a determination that a dispute with the prosecutor's advice has arisen. If DSS confidences and secrets have already been shared with the prosecutor regarding the matter, the prosecutor might also be disqualified from performing prosecutorial duties related to the matter. That cannot be determined in advance of a particular situation arising. Finally, the plan infers that the prosecutor's duties to the government entity will always prevail over the lawyer's DSS responsibilities. A prosecutor may have a preference for performing prosecutorial duties rather than DSS services; when a prosecutor undertakes to provide legal services in a particular DSS matter, the prosecutor has two clients owed the same ethical duties of loyalty, competence, diligence, etc.
An agreement could certainly provide that if a conflict arises, the prosecutor may seek permission to withdraw from the court and that in such an event DSS should seek substitute representation. See MRPC 1.16(c) requiring permission of the tribunal. The agreement may not provide that after withdrawal based upon a conflict of interest the prosecutor may in every case continue to perform prosecutorial duties related to the same matter, without evaluation of whether the prosecutor has further ethical duties which prevent that participation.
We are advised that in reality the problems discussed in this opinion occur infrequently. We can conceive of few instances in which the interests of DSS in performing its public duty will be at odds with the public duties of the prosecutor. When such circumstances arise, however, ethics rules require a lawyer's independent professional judgment be exercised on a case by case basis and that clients be properly counseled so that consent, when required, may be informed. Although lawyers and clients may prefer the comfort of a set procedure which could be applied with certainty in all situations, a lawyer is obligated to reexamine the impact on each particular situation. The prosecutor's duties as outlined in this opinion are no different than those applicable to all lawyers in all types of practice, and impose no greater burden.
Therefore, a prosecutor serving as legal advisor to DSS in child neglect matters has a duty at the outset of the legal services and a continuing duty throughout the legal services to evaluate whether circumstances exist or have developed which create a conflict of interest requiring client consent or the prosecutor's withdrawal. If confidences and secrets of DSS have been shared with a prosecutor regarding a matter, the prosecutor may not, absent an applicable exception in MRPC 1.6 or 1.13(c), disclose that information or use it to the disadvantage of DSS without DSS consent.
An advance agreement between the prosecutor and DSS may not provide that after withdrawal based upon a conflict of interest the prosecutor may in every case continue to perform prosecutorial duties related to the same matter, without evaluation of whether the prosecutor has further ethical duties which may prevent that participation.