September 12, 1996
A lawyer whose law firm represents unions in contract negotiations with a public university may accept a position at the university as an adjunct professor, or as a neutral in a nonbinding mediation process for adjustment of disputes between university employees, provided that the unions consent after consultation.
References: MRPC 1.4(b), 1.7(b); RI-47, RI-256, RI-265.
A law firm represents several unions which from time to time negotiate contracts with a public university. A member of the firm has been offered the opportunity to teach a course as an adjunct professor for one of the academic departments within the university. The lawyer has further been offered the opportunity to serve as a neutral in certain informal, nonbinding mediation proceedings involving claims of discrimination brought by one university employee against another university employee. The lawyer would be paid by the university for both activities.
The law firm states that it feels it would not be appropriate for the lawyer to serve as the neutral in any proceeding involving members of the unions represented by the firm. The firm inquires whether accepting either or both of these positions creates 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 lawyers responsibilities to another client or to a third person, or by the lawyers 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."
We have been provided no facts about a particular representation or employment mediation, and can only provide general guidance about the situation raised. The inquirer is reminded that conflicts of interest must be evlauated on a case by case basis.
We have no facts which indicate that the union representation would be materially limited by the lawyer's adjunct faculty position. Several ethics opinions clarify that the payment of compensation (such as a salary), in and of itself, is not sufficient. See, MRPC 1.8(f) which allows lawyers to accept compensation from persons other than clients; R-15 which concluded there is no per se prohibition for a lawyer member of a county board of commissioners which decides judicial salary supplements, fringe benefits, and the annual operating budget of the circuit, district and probate courts, to appear as an advocate before those courts; JI-77 which permits a part-time magistrate to handle district court matters in which the magistrate has not participate personally and substantially; JI-50 which allows a probate judge to hire a lawyer to represent juveniles if the lawyer's independent professional judgment is preserved. Generally adjunct faculty selection, compensation, and perquisites are determined by the academic department heads, and not by the central administration personnel who deal with union negotiations. Under these circumstances it is difficult to contemplate how the lawyer's classroom responsibilities would affect, much less materially limit, representation of the unions.
One could argue that to protect the adjunct position the lawyer would advocate less diligently on behalf of the union against the university. Even if that concern reached the level of "materially limiting" representation of the unions, MRPC 1.7(b)(1) and (2) provide that if the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation, disqualification is avoided. In this inquiry, the firm could reasonably conclude that the representation would not be adversely affected, and the unions could consent.
Even if the adjunct position is not materially limiting, MRPC 1.4(b) suggests that the law firm explain matters to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
The same analysis applies to whether performing as a "neutral" in the informal, nonbinding mediation process "materially limits" representation of the unions.
In RI-47 an assistant city attorney who serves as legal advisor to Labor Relations/Personnel was asked to serve on the city's supervisory grievance board as a management representative, a board to which employees may appeal their grievances. Management would be represented in these matters by other assistant city attorneys. The opinion set forth the following criteria:
The "client" must consent to the lawyer's participation. Since in RI-47 the lawyer was selected as a management representative, the "client" was deemed to have consented.
The lawyer's duties to the supervisory grievance board may not materially limit the lawyer's representation of the entity client. In RI-47, it was noted that the lawyer's participation in the specific grievance at a lower level on the entity's behalf furthered the same interests as the lawyer's participation as management representative on the supervisory grievance board. If, however, the lawyer's advice or counsel at the lower level was not followed, the lawyer's duties to the entity client would impel the lawyer to find for the employee in the grievance matter. If the lawyer's advice was followed, and after the "appeals" it 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, and the lawyer's duties to the third party supervisory grievance board.
Confidences and secrets gained in representing the client may not be used or disclosed to the disadvantage of the client. In RI-47 it was noted that, if the lawyer has been involved in counseling or investigating the particular grievance matter, the lawyer might gain information from the immediate supervisor or others concerning the matter which is not presented at the supervisory grievance board level. Also, the lawyer would be involved in writing and reviewing policies, and in counseling management in supervisory and employment matters, which are the very policies or procedures which would be the subject of grievances. Information gained in these discussions might be relevant to grievance matters presented to the panel.
Using a similar analysis on the facts of this inquiry, the lawyer is being asked to serve as a "neutral." The touchstone for a lawyer functioning as a neutral arbitrator or mediator in an alternate dispute resolution proceeding in which one or more of the participants is self-represented is to preserve neutrality. RI-256. One may question whether the firm member can properly be regarded as a "neutral" in this process if the member accepts both positions, and is thus otherwise employed by the university. Regardless, the rules of the mediation forum control how a party raises an objection to the service of a mediator, and that is not a question answered under lawyer ethics rules. RI-265, "[p]rivate mediation forums set their own operating rules, eligibility requirements, etc."
The first criteria used in RI-47 is client consent. We previously discussed disclosure of the participation to the union clients under MRPC 1.4(b).
The second criteria is whether the mediation participation would "materially limit" representation of the unions. We have been provided no facts which suggest that the participation would per se result in materially limited representation. If the mediation of a specific discrimination dispute between university employees is also the subject of union negotiations, then the law firm would have to evaluate whether the union representation would be materially limited, and, if so, whether a disinterested lawyer would reasonably conclude the representation would not be adversely affected. The facts provided state that the law firm "negotiates union contracts" with the university. Negotiating a contract term regarding management's treatment of employee discrimination issues seems to us totally unrelated to a mediator's consideration of alleged discrimination between two university employees. In fact, the lawyer's experience as mediator may enhance representation of the unions by providing extra information about the workplace environment.
The third criteria is that union information not be disclosed or used to the disadvantage of the unions without the clients' consent. In RI-47 the lawyer represented the employer on the very matters which would later be subject to grievance proceedings. In this inquiry the lawyer's mediation activities appear unrelated to any legal services performed for the unions.
The facts provided reveal that no binding determinations of any nature are made during this process. The outcome of the process does not impact the university or the unions in any way. It is merely an informal method of attempting to adjust disputes between university employees. Therefore, as with accepting the position as an adjunct professor, provided that the unions consent after consultation, the firm could reasonably conclude that the representation of the unions would not be adversely affected and continue the representation.