April 11, 1994
An assistant prosecuting attorney may serve as a director on the board of a community corrections program, provided that if the lawyer's duties on the board materially limit the lawyer's prosecutorial duties a disinterested lawyer could reasonably believe that the representation would not be adversely affected.
References: MRPC 1.7(b); JI 64, JI-66; MCLA 791.401 et seq.
A lawyer serves as assistant prosecuting attorney and as a volunteer member of the board of directors of a tri-county community corrections program. MCLA 791.401 et seq establishes the residential treatment and incarceration program as an alternate placement for convicted felons who might otherwise be sent to the State Department of Corrections, and provides that the prosecuting attorney or a designee be member of the board. One of the goals of the program is to operate at or near capacity to remain fully funded. The lawyer asks whether a conflict of interest exists between the lawyer's duties as assistant prosecuting attorney and a member of the program board.
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."
Applying MRPC 1.7(b) to the facts provided, the lawyer may not serve as prosecutor in a matter in which the representation would be materially limited by the prosecutor's duties as a member of the program board, unless a disinterested lawyer could reasonably believe that the representation would not be adversely affected. If the lawyer recommends defendants for alternative sentencing to the program, for example, solely for the purpose of keeping the program at or near capacity for funding purposes and not because defendants are suitable candidates for the program, the lawyer's prosecutorial discretion in considering other rehabilitation options may be seen to be materially limited.
In JI-64 the Committee opined that it was not unethical for a judge in sentencing a defendant to offer as an alternative to incarceration that the defendant perform services or attend an educational rehabilitative program provided that where only one program existed which served the educational or rehabilitative purpose, the judge, the court and court staff do not have a nonjudicial interest in, participate in, or otherwise operate or control the program alternative. In accord, JI-66.
In the present inquiry the program on which the lawyer serves is the only residential alternative to incarceration in the tri-county area. The prosecutor or the prosecutor's designee serves on the board as required by statute and has no private interest in the program. In a particular case, it is the county probation department which actually recommends placement of a defendant to the program, not the prosecutor. Without facts in a particular case, there is no evidence that the lawyer's prosecutorial functions would be limited by the prosecutor's service on the board.