THIS OPINION WAS WITHDRAWN AND REPLACED BY RI-352, ISSUED APRIL 29, 2011
March 3, 1994
It is unethical for any partner, shareholder, employee, or other associate of a law firm to represent a private client in character and fitness proceedings when another lawyer in the same law firm is a member of either the State Bar Standing Committee on Character and Fitness or any district character and fitness committee.
References: MRPC 1.7(b), 1.10(a), 8.4(d); RI-22, RI-180.
An opinion was requested concerning a lawyer's representation of a law student in proceedings before the State Bar Standing Committee on Character and Fitness ("Standing Committee"). One member of the lawyer's firm currently serves on a character and fitness panel for the district in which the law student resides ("District Committee"). Another member of the lawyer's firm serves on the Standing Committee. May the lawyer represent the law student with regard to character and fitness proceedings?
Supreme Court Rules Concerning the State Bar of Michigan relating to admission to the bar provide for a Standing Committee consisting of active members of the State Bar appointed annually by the State Bar President and District Committees consisting of active members of the bar in each commissioner election district. The Standing Committee currently consists of 12 members. District Committees vary in size and convene in 3-member panels. The Standing Committee and the District Committees are required to investigate and make recommendations regarding the character and fitness of every applicant for admission to the bar by examination. Five members of the Standing Committee or three members of a District Committee constitute a quorum.
When the investigation of an applicant's past conduct discloses significant adverse factual information, the applicant may be referred to the appropriate District Committee for a personal interview. District Committees make written reports and recommendations to the Standing Committee concerning each applicant. On receipt of a District Committee report, the Standing Committee must either endorse the recommendation, take the recommendation under advisement pending receipt of further information, remand with instructions for further proceedings, or reject and conduct a hearing de novo. When the Standing Committee endorses a report and recommendation of the District Committee that an applicant is unfit for admission to the bar, the applicant has the right to a formal hearing before the Standing Committee. The applicant has the additional right to a review of an unfavorable report and recommendation on character and fitness by the State Board of Law Examiners. Every applicant has the right to be represented by counsel at any stage of the character and fitness process. See Rule 15, Supreme Court Rules Concerning the State Bar of Michigan.
The Michigan Rules of Professional Conduct are quite clear on the subject of imputed disqualification. The general rule is where one member of a firm is disqualified from representing a particular client, then other members of the firm are likewise disqualified from undertaking that representation. 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."
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) or 2.2."
Thus, if other members of the inquirer's firm are disqualified from representing the law student at character and fitness proceedings by MRPC 1.7(b), then the inquirer would be similarly disqualified under MRPC 1.10(a). Because a disqualification under MRPC 1.10(a) may be waived by the affected clients if the requirements of MRPC 1.7(b) can be satisfied, the question becomes whether or not a disinterested lawyer could reasonably believe that the representation of the student applicant by the lawyer/member would not be adversely affected by the lawyer's responsibilities as a member of either the Standing Committee or a District Committee.
Over the years, this Committee has addressed a number of similar situations. In RI-22, the Committee reaffirmed the holding of C-241 (decided under the former Michigan Code of Professional Responsibility) which states that a law firm of a public commissioner may not represent clients appearing before that commission or any entity subordinate to that commission. The Committee held that if the lawyer/commissioner could not represent the client without violating MRPC 1.7(b), then other members of the lawyer/commissioner's law firm also would be disqualified under MRPC 1.10(a). See also C-212, CI-42, CI-192, CI-419, CI-1003 and RI-15. Recently, the Committee opined that a lawyer who serves as a member of a city's police commission, and other members of the lawyer's firm may not represent clients in matters involving the police commission, boards or departments subordinate to the police commission, but are not disqualified from representing clients in matters involving other city commissions and boards that are not subordinate to the police commission. RI-180.
The basis for the holding in those opinions was the existence of an "inexorable conflict" between the roles of public servant and private counsel. This conflict prevents a disinterested lawyer from forming a reasonable belief that the representation of the private client will not be "materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests."
Whenever a significant question arises regarding an applicant's character and fitness for admission to the bar, the Standing Committee has an obligation to the public to exercise independent professional judgment to ensure that only persons with high integrity are admitted to the bar. This duty would be compromised if the lawyer/member is permitted to represent private interests at hearings on character and fitness. The point is that every applicant who receives an unfavorable report and recommendation on character and fitness at the District level automatically comes before the Standing Committee for further consideration and in many cases, the Standing Committee will conduct a hearing de novo. Under the circumstances, a disinterested lawyer could not reasonably conclude that a lawyer/member's representation of a private client with respect to matters involving character and fitness would not be materially affected by the lawyer's public responsibilities as a committee member.
A lawyer/member of a District Committee is likewise prohibited from representing applicants for admission to the bar because of the conflict between private interests and public trust. The Committee recognizes that District Committees typically sit in panels of three committee members and that these district panels function independently of one another. Each panel conducts its own interview of applicants and each panel submits its report and recommendation directly to the Standing Committee for whatever action it deems appropriate. If lawyer/members of District Committees are allowed to represent private clients in character and fitness matters, there is the likelihood that the favorable outcome of an investigation in one matter may be regarded as a form of professional courtesy in exchange for similar treatment in another matter.
Furthermore, it is a violation of MRPC 8.4(d) to "state or imply an ability to influence improperly a governmental agency or official." The same holds true for abuse of positions of private trust. If a lawyer/member of a District Committee were allowed to represent private clients with respect to character and fitness matters, there is an implication that the lawyer could influence the outcome of the case.
The Committee concludes that since the lawyer/member could not represent a private client in character and fitness matters without violating MRPC 1.7(b), all other lawyers in the same law firm are disqualified under MRPC 1.10(a).