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Ethics Opinion

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RI-280

September 15, 1996

SYLLABUS

    A prosecutor who is representing the prosecutor's spouse in negotiations with an insurance company regarding a claim may not prosecute an arson cases in which the insurance company is the only remaining statutory crime victim.

    If the prosecuting attorney is disqualified from the matter, the entire prosecutor's office is also disqualified and a special prosecutor must be obtained for the criminal matter.

    References: MRPC 1.7, 1.10(a); RI-43, RI-152; People v. Doyle, 159 Mich App 632, 644, modified on other grounds, 161 Mich App 743 (1987).

TEXT

The prosecuting attorney for a rural county is prosecuting an arson case in which an insured dwelling was destroyed. The insurance company has fully compensated the owner for the parcel, thus becoming the only remaining statutory crime victim.

Shortly after the defendant was bound over to stand trial, a commercial building owned by the prosecutor's spouse and insured by the same insurance company was destroyed by what was later determined to be an accidental fire. Due to a dispute with the insurance company, the prosecutor believes it will be necessary to personally sue the insurance company on the spouse's behalf. In addition to the spouse's claim, the prosecutor is preparing a personal claim against the insurance company for personal items stored in the basement of the building destroyed by fire. The same claims adjuster who was involved in the arson case is also handling the claim resulting from the fire of the spouse's building. The prosecutor is displeased with the way in which the claims adjuster handled both matters.

First, the inquirer is concerned that it might appear that pursuit of the arson case will be adversely affected due to the inquirer's displeasure in the manner in which the insurance company has handled the spouse's claim. Specifically, the prosecutor is concerned that a bad experience with the insurance company might have a negative impact on trial performance during the prosecution, despite the prosecutor's best efforts to the contrary. Second, the prosecutor is concerned about any appearance of impropriety that may result if it appears that the prosecutor is attempting to exert some leverage in settling the spouse's claim on favorable terms as a result of the prosecution of the arson case. The prosecutor further inquires whether the prosecutor's office must continue to disqualify themselves each time the particular insurance company is involved in a case.

The rule on "appearance of impropriety" which appeared in MCPR DR 9-101 was not continued in the Michigan Rules of Professional Conduct effective October 1, 1988. That question is therefore moot.

MRPC 1.7 states:

    "(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

      "(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

      "(2) each client consents after consultation.

    "(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."

Prosecutors are subject to the Michigan Rules of Professional Conduct to the same degree as other lawyers. RI-152. Ordinarily, a lawyer may not undertake representation directly adverse to a current client, nor undertake representation which would be materially limited by the lawyer's duties to another client, a third person, or the lawyer's own interests. This duty applies because of loyalty to the client, and it does not matter whether the representation matters are wholly unrelated. MRPC 1.7(a) and (b). In the facts presented the inquirer states the prosecution matter would be adversely affected because of the inquirer's dealings for the spouse on the insurance matter. MRPC 1.7 prohibits litigating both matters.

A disqualification of one prosecuting attorney may also require the disqualification of an entire prosecutor's office. MRPC 1.10(a) deals with imputed disqualification and 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), 1.9(a) or (c), or 2.2."

A prosecutor's office constitutes a "firm" for purposes of these rules. RI-43. As previously stated, the prosecutor is prohibited under MRPC 1.7 from representing the spouse while at the same time prosecuting the arson case. Therefore, MRPC 1.10(a) requires that the whole prosecutor's office is imputedly disqualified.

Apart from any imputed disqualification under MRPC 1.10(a), disqualification of a prosecutor may also be required in other circumstances given the special responsibilities imposed upon prosecutors. The Court of Appeals has stated:

    "The general rule is that a conflict of interest involving the elected county prosecutor himself requires recusal of the prosecutor and the entire staff. Since assistant prosecutors act on behalf of the elected county prosecutor and are supervised by him, the policies of fairness to the defendant and the avoidance of an appearance of impropriety requires this result." People v. Doyle, 159 Mich App 632, 644, modified on other grounds, 161 Mich App 743 (1987).

The proper course of action is for the prosecutor to petition the circuit judge for appointment of a special prosecutor pursuant to MCL 49.160(a); MSA 5.578(1) to pursue the arson matter. If the prosecutor has a conflict which disqualifies the prosecutor from the case, the prosecutor may not select nor supervise the special prosecutor. RI-152.

The prosecutor further inquires whether the entire prosecutor's office must be disqualified in the near future from all criminal matters that may involve restitution to the insurance company. Certain factual circumstances may play into future determinations. For example, if in fact the dispute with the insurance company results in litigation, whether or not the prosecutor is satisfied with the outcome of the litigation may have a bearing upon future disqualification decisions. Further, the issue of restitution in the present arson case may be considerably more important as well as a greater focus of attention than in other criminal matters involving restitution. Without a particular fact situation to which to apply the ethics rules, we cannot give further guidance.

 
     

 

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