November 1, 1996
A prosecutor may establish a pro bono legal services program for the lawyer employees of the prosecutor's office.
Before accepting a pro bono assignment, the lawyer must perform an independent evaluation of whether the interests of the pro bono client present conflicts of interest.
It is misleading, and therefore improper, for the services or appearances by counsel in the pro bono program to be designated as cases or clients of the "prosecutor's office" if the pro bono program is not in fact an authorized legal duty of the public office.
References: MRPC 1.7(b), 1.9(c), 1.11(c), 7.1; RI-152, RI-249; MCL 552.45.
A prosecutor has asked about the ethical propriety of an office pro bono program. The pro bono services are only available to non-custodial parents who meet each of the following criteria:
The non-custodial parent must be entitled to visitation under an existing orderof visitation entered by the circuit court.
The non-custodial parent must have consistently been refused and denied meaningful visitation with the minor child by the custodial parent, for reasons which are inappropriate or unfair.
The non-custodial parent must show a "demonstrated need" for participation in the program, in one of the following ways:
(1) denied requested legal assistance from the local legal aid office. It is noted that legal aid has recently suffered significant reductions in resources.
(2) exhausted efforts to seek low-cost legal assistance from the private bar, including referrals from the prosecutor's staff.
The non-custodial parent must demonstrate that he/she has faithfully provided financial support to his/her child(ren), and will continue to do so.
The facts provided state that an individual will not be eligible to participate in the program if the individual was the party in a divorce and/or child custody matter in which the prosecutor or any assistant prosecutor in the office represented the opposing party while in private practice.
The facts state that only non-custodial parent-clients are eligible. The policy directive establishing the program and interoffice memoranda provided by the inquirer include the inquirer's own beliefs that:
"[O]ne major reason for the rise in juvenile crime is the growing number of children being raised in broken homes, or without the meaningful presence of either a father or mother figure."
"[A] boy's relationship with his father is basic, and that the benefit of a strong, affirming bond with 'Dad' is very powerful."
"The pain of a lost, or non-existent, relationship with a father can last a lifetime."
"The other most commonly voiced complaint, by non-custodial fathers, is that some custodial mothers too often unfairly deny visitation to divorced, or non-custodial, fathers for reasons which are not in the best interests of the child."
"[F]athers have much to offer their sons, and that 'although any man can be a father, it takes a real special guy to be a Dad.'"
"[T]his program has stringent guidelines and is only available to fathers with 'demonstrated need,' and is not intended to, in any way, compete with or take legal business away from, the members of the local private Bar Association."
"That pro bono program . . . is only applicable to fathers who have visitation rights specifically granted by the court, and whose rights are being unfairly infringed upon, and/or denied altogether, by the custodial parent, for improper reasons."
The inquirer's program must also be examined under ethical prohibitions regarding conflicts. According to the inquirer's program guidelines, a non-custodial parent cannot participate if that parent was a "party in a divorce and/or child custody matter in which the current prosecuting attorney, or any assistant prosecuting attorney in the office, represented the opposing party while in private practice." That particular criterion may eliminate certain conflicts of interest arising from prior representation of an opposing parent, but it is not sufficient. There are other conflicts questions which should be addressed by the lawyers in the program, but need not be set forth in the program itself.
MRPC 1.11(a), (b) and (c) state:
"(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public office or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, unless:
"(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
"(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
"(b) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person, acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the materials disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.
"(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:
"(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter . . . ."
Thus the proper ethical standard is whether the lawyer "participated personally and substantially in the matter" while in private practice. See RI-152. Also, the prosecutor may not represent a parent if the prosecutor previously participated personally and substantially in the matter, e.g., represented the child, unless "the appropriate government agency" consents.
The application of MRPC 1.11 to public officers was discussed in RI-249. In that opinion a part-time Friend of the Court referee shared office space with a lawyer who regularly handled domestic relations matters and a third lawyer who has been appointed Friend of the Court. In sorting through the ethics duties of the various practitioners, the opinion reasoned, in part, that under MRPC 1.11(a), the Friend of the Court may not represent a "private client in connection with a matter in which the lawyer participated personally and substantially as [Friend of the Court] unless the government agency consents after consultation."
MRPC 1.11(c) was discussed in RI-152, addressing conflicts when a former defense lawyer becomes a prosecutor. The prosecutor was disqualified from participation in any matter in which the lawyer "participated personally and substantially" as private practitioner, including but not limited to those matters in which the lawyer served as defense counsel. For example, if the prosecutor served as a witness at a line-up, the prosecutor "participated personally and substantially" even if the eventual defendant hired other counsel.
MCL 552.45 requires the prosecutor's office to represent the interests of children in a marriage. When the prosecutor has a legal duty to represent the interest of the child in a divorce proceeding, some of the prospective pro bono assignments may have to be declined. See RI-183. A pro bono policy which allows the prosecutor to take sides between the parents at all may be at odds to the prosecutor's duty to represent the interests of the child. MRPC 1.7(b) would be triggered, and the prosecutor's duty to represent the interests of the children may materially limit the prosecutor's ability to diligently represent the interests of either parent.
There may also be circumstances in which the prosecuting attorney formerly represented the child or the interests of the child in the same or a substantially related matter, such as a prior divorce in which custody or visitation is being challenged some months or years later. There may be circumstances in which the prosecutor gained protected information which could be used to the disadvantage of a child not wanting the existing order of visitation challenged or enforced, as the case may be. In these situations MRPC 1.9(c) would prohibit the pro bono representation; the prosecutor would not be able to use the information to the disadvantage of the child, and to refrain from using it would not be in the best interests of the parent.
We also note that lawyers participating in the inquirer's program list their appearance as on behalf of the prosecutor's office. Although the program is a pro bono effort developed by the prosecutor and only staff lawyers participate, it is not a part of the official duty of the prosecutor's office as constituted under law. Thus, it would be misleading for the staff lawyers who participate to designate any appearance for the parent as an appearance by the office of the prosecuting attorney. MRPC 7.1. Use of such designation could also be perceived as an attempt to influence the tribunal by placing the weight of the prosecutor's office behind the private cause of the parent. MRPC 3.5(a) prohibits a lawyer from seeking to influence a judge, juror, prospective juror or other official by means prohibited by law, and MRPC 8.4(d) prohibits a lawyer from stating or implying an ability to influence improperly a government agency of official.