May 21, 1996
Provided that no client confidences are revealed, a lawyer for the county may discuss generally with a citizen the reasons why the county retained separate counsel in a particular matter.
A county lawyer who is disqualified from representing a county board on a matter due to prior participation in the matter when in private practice should not participate in the matter on behalf of the county board in any capacity.
Provided that no client confidences are revealed, a lawyer for the county may discuss generally with former clients the reasons why the separately retained counsel should not be imputedly disqualified in the matter.
Provided that no legal advice is rendered, a lawyer for the county may give general information to interested persons on procedures for intervention in public county proceedings.
References: MRPC 1.6, 1.9, 1.10, 1.11(c)(1), 1.13, 4.2; RI-43, RI-47, RI-96; Ackerman v National Property Analyst Inc, 1993 WL 258678 (SD NY 1993); American Motors v Hufstetler, 575 NE2d 116 (Ohio 1991).
A group of law firms ["Defense Group"] have had a contract with a county for the past 15 years to perform indigent criminal defense services. Before becoming county attorney, Lawyer successfully represented a member of one of Defense Group in a lawsuit against the county for fees, costs and expenses related to indigent defense services delivered in a complicated felony case. The former client in that lawsuit is now a circuit court judge.
During the current budgeting process, the county board is considering whether to renew or rebid the Defense Group contract. The county board wants access to Defense Group's records of time, costs and expenses over a multi-year period and intends to question Defense Group about the records at a public meeting.
Lawyer has disclosed the prior representation to the county board, and on Lawyer's recommendation the county board has retained another law firm ["Law Firm"] to conduct the record review, direct questions during the public meeting, and make a recommendation to the board. Lawyer still attends all board sessions, participates in discussions, and sees all communications between the county board and Law Firm.
Because of the notoriety of the review, Lawyer has received a number of inquiries and seeks assistance in defining the ethical duties which may apply in responding to those individuals. The inquiries are as follows:
- A local citizen wants to know why public funds are being used to hire another law firm, when Lawyer is employed to advise the county board.
- Defense Group wants to talk to Lawyer about imputed disqualification of Law Firm due to Lawyer's former representation of the judge.
- The president of a local bar association wants information on how to intervene in the matter to protect confidences and secrets of Defense Group.
Although not explicit in the inquiry, Lawyer has presumably advised the county board to retain separate counsel to conduct this review because of Lawyer's prior representation of a member of Defense Group. Because the current review being conducted by the county board is related to the issue of costs and fees in providing indigent criminal defense work, the same issue involved in Lawyer's prior representation of the judge, Lawyer has apparently concluded that Lawyer may have confidential information from the prior representation which prevents him from advising the county board on the current matter under review, based on the requirements of MRPC 1.9.
As current county counsel, Lawyer has a duty of confidentiality with respect to the current client, the county. MRPC 1.6, 1.13. Therefore, Lawyer is not free to disclose confidential communications with, or advice rendered to, the county board. On the other hand, there is nothing confidential regarding the fact of the Lawyer's prior representation of the member of Defense Group or the requirements of MRPC 1.9. Therefore, it would be permissible for Lawyer to explain generally to the local citizen why Lawyer is not advising the county board on matters relating to the current review.
Although not entirely clear from Lawyer's inquiry, it appears that the Defense Group has a concern regarding Law Firm's participation in the review process, given Lawyer's prior representation of a member of Defense Group. Apparently, pursuant to MRPC 1.10, Defense Group is questioning whether Law Firm should be "imputedly" disqualified on the same grounds as Lawyer might be.
Prior opinions of this Committee have indicated that lawyers working together in public office (i.e., city attorney's office, prosecutor's office, etc.) may constitute a "firm" within the meaning of MRPC 1.10. See, e.g., RI-43, RI-47, RI-96. Under the facts presented here, however, the county has retained separate counsel, Law Firm. Therefore, it cannot be said that Lawyer and Law Firm are part of the same "firm" so as to invoke the imputed disqualification principles of MRPC 1.10.
Notwithstanding the above, however, there is a problem created by Lawyer's participation in the review being conducted by Law Firm. For the same reasons that Lawyer should not be advising the county board on the matter under review, Lawyer should not "participate" in the matter in any fashion. See, MRPC 1.11(c)(1). To the extent Lawyer participates in Law Firm's review of the matter at issue and is party to confidential communications between Law Firm and the county board, this may well create an imputed disqualification issue with regard to Law Firm. See, e.g., Ackerman v National Property Analyst Inc, 1993 WL 258678 (SD NY 1993); American Motors v Hufstetler, 575 NE 2d 116 (Ohio 1991).
The facts provided state that one or more members of the Defense Group desires to speak to Lawyer about the imputed disqualification issue. The county board is represented in this matter by Law Firm. Lawyer, therefore, should be viewed as an agent of the client under these facts. The facts provided are unclear as to whether or not the members of the Defense Group are functioning in their capacity as client or lawyer. To the extent they are functioning as the interested party, there is nothing that would prevent the parties from communicating on this issue, provided that Lawyer is careful not to disclose any client confidences in the course of that discussion. If and to the extent any of the members of Defense Group are instead functioning as a lawyer for Defense Group, then pursuant to MRPC 4.2, their communications should be directed to Law Firm as counsel for the county board on the issues under review.
Under the facts as presented in the inquiry, the review will be conducted as part of the some sort of public meeting. If and to the extent there are mechanisms in place which permit the intervention of interested persons, such as the president of the local bar association, there is no ethical problem with Lawyer discussing generally the existence of those mechanisms with the local bar association president. Lawyer is simply reminded that the current client is the county, and Lawyer should not purport to render any legal advice to the local bar association president.