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Ethics Opinion

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March 1, 1996


    A conflict of interest does not arise for a lawyer when the lawyer's client, a criminal defendant, is sentenced under a community sentencing program to clean the highway "adopted" by the lawyer under the state department of transportation highway clean up program, where the lawyer has no control over the choice of the sentencing alternative or the location where the sentence is served, and the selection and completion of the particular community service option occurs after the legal representation has ended.

    References: MRPC 1.7(b).


A lawyer has "adopted" a stretch of highway under the Michigan Department of Transportation highway clean up program. The lawyer sees that the "adopted" highway is cleaned during any one of three designated time periods during the year. The lawyer's participation in the program is noted by signage on the highway acknowledging the lawyer.

The local district court, before which the lawyer represents clients, may sentence criminal defendants to participate in community service. Although the lawyer may advocate that a particular client is a good candidate for community service, the lawyer has no control over the judge's decision-making. Further, the judge's order of community service does not specify the type of community service. Although counties handle community service in different ways, the available community service options are usually identified, reviewed and listed by either the probation department or the sheriff's department. Neither the prosecutor nor the defense attorney controls what type of community service options are considered nor which are assigned to a particular defendant. When a community service option has been decided upon, and if highway clean-up is the option determined, the decision of which highway section to clean is made by the probation department or the sheriff, accordingly.

Therefore, the inquirer has no way of knowing or controlling whether any particular defendant, including the lawyer's own, is assigned to work on the lawyer's "adopted" highway section. The actual assignment is made after the case is concluded and almost always after the attorney-client relationship has ended.

The lawyer asks whether the situation constitutes an impermissible conflict of interest.

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 lawyers's own interests unless:

      "(1) the lawyer reasonably believes the representation will not be adversely affected; and

      "(2) the client consents after consultation . . . ." Emphasis added.

Sponsorship of a highway section requires the inquirer to see that the highway is cleaned during designated time periods. One could say, therefore, that the lawyer's "own interest" for purposes of MRPC 1.7(b) is that if criminal defendants are sentenced to clean the highway, the lawyer does not have to do it. Does the lawyer's interest in clean highways, or the lawyer's interest in having criminal defendants clean highways in lieu of the lawyer, "materially limit" the lawyer's representation of defendants who may be sentenced to community service?

The facts do not show any indication, and we cannot hypothesize any reasonable scenario, that the lawyer's representation of criminal defendants at trial is affected in any manner, much less "materially limited," by the lawyer's adoption of a highway. Likewise, during the sentencing stage of representation, there is no indication that the lawyer is improperly influencing clients to plead guilty or failing to vigorously defend client interests just so they can be sentenced to clean a highway.

There is no indication that the lawyer gains any benefit from the sentencing program other than having the roadways cleaned, which is the same benefit gained by the public at large. Second, although the lawyer may advocate a community service sentence, it is up to the judge whether such an option should be made available, and it is up to another official to select the particular community service and the particular stretch of highway. Finally, the selection of the particular service option, the choice of geography, and the actual clean-up is performed after the legal representation has ended. Under these facts, there is no conflict of interest.

MRPC 1.4(b) requires a lawyer to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." In explaining community sentencing alternatives, the lawyer may certainly explain to the client the lawyer's participation in the highway program, and that it is possible the client could be assigned to that program generally, and to clean the lawyer's "adopted" highway specifically. Such a circumstance does not raise a conflict of interest.



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