May 12, 1997
A lawyer who is a member of a city council is not per se prohibited from representing clients charged with violation of city ordinances, or where the investigating or arresting police officers are from the city police department.
A lawyer who is a member of a city council may not represent a client charged with violation of a city ordinance if the lawyer's ability to effectively represent the client is materially limited by the lawyer's responsibilities to others including the lawyer's constituents or if the representation arises out of a matter in which the lawyer participated personally and substantially as a member of the city council.
References: MRPC 1.7(b), 1.11; RI-22, RI-126; CI-419.
A lawyer serves as an elected member of a city council. The lawyer also operates a law practice, and on occasion is asked to represent persons charged by the city with violations of its ordinances. In such cases the city is the prosecuting authority and, in some instances, police officers employed by the city are the arresting or investigating officers. On other occasions the lawyer is asked to represent persons charged with violations of state law, where the charges are brought by the county prosecutor, but where city police officers are the arresting or investigating officers. The lawyer asks whether it is permissible to undertake such representations while serving as a city council member.
An informal opinion produced by this Committee under the old Code of Professional Responsibility concluded that a lawyer who was a member of a city council could not represent clients charged with violation of that city's ordinances. CI-419. A number of disciplinary rules and canons were cited in support of this conclusion, some of which find counterparts in the present Michigan Rules of Professional Conduct (MRPC). Heaviest reliance was placed on DR 8-101(A)(2), which prohibited a lawyer who holds public office from using "his public position to influence, or attempt to influence, a tribunal to act in favor of himself or a client." DR 9-101(C) provided that "[a] lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official." Under the facts as stated in CI-419, there was no indication that the lawyer had, or intended to engage in any of the conduct prohibited by these disciplinary rules. Accordingly, the Committee's conclusion was ultimately based on the text of Canon 9 itself. "Since (even in the absence of improper action) representation by the councilman of a defendant charged with violation of a city ordinance would have at least the appearance of impropriety, we do not believe the councilman may ethically represent such defendant." CI-419.
This approach, erecting a per se rule against the representation of private clients by lawyers who also filled public office, in connection with matters related to the public entity, was generally followed in opinions issued under the Code. In most instances, such a result was reached on the basis of Canon 9 and the lawyer's responsibility to avoid the "appearance of impropriety." Lawyers from the firm of a lawyer who is a member of city council may not represent clients before the city council, or any other boards or commissions of the city. C-214. A lawyer may not represent a client before a municipal board when another lawyer from the same firm is a member of the board. CI-192. A lawyer who is a member of a city commission may not represent clients charged with violations of city ordinances. CI-54. A lawyer who is a member of a city council may not represent clients charged in district court with criminal offenses. CI-42.
The disciplinary rules cited in CI-419 find counterparts in the Michigan Rules of Professional Conduct. MRPC 1.2(d), 3.5(a), 8.4(d). In the present inquiry, as in CI-419, there is no indication that the lawyer intends to exert such influence, or to imply the existence of such influence to the client. More important, is the fact that the broad admonition of the old Canon 9 -- that a lawyer avoid even the "appearance of impropriety" -- does not find a counterpart in the Michigan Rules of Professional Conduct. Accordingly, resolution of this issue under the Rules will require a fresh analysis.
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 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 under taken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."
MRPC 1.11 states in part:
"(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 officer or employee, unless the appropriate government agency consents after consultation . . . .
"(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 disadvantage of that person . . . ."
Opinions opined by this Committee after the adoption of the Michigan Rules of Professional Conduct have, in situations analogous to the present one, purported to abandon the per se disqualification approach previously taken under the Code. In applying the Michigan Rules of Professional Conduct, these opinions have often produced the same result, on the basis that the circumstances under which the lawyer would be prohibited from taking action are so pervasive as to warrant an approach of total exclusion.
For example, in RI-126 the inquirer was a city council member who also worked as a supervising lawyer in a legal assistance program that regularly represented clients in matters adverse to the city's housing department. The Committee took note that opinions produced under the Code and the mandate of Canon 9 to avoid "the appearance of impropriety," would have precluded such representation by the lawyer. Looking to MRPC 1.7(b) and 1.11, the Committee also noted that under the Michigan Rules of Professional Conduct, "the lawyer-councilperson is not per se prohibited from handling cases against the city housing authority." In the final analysis, the Committee viewed the conflict between the lawyer's public and private roles as being so pervasive as to warrant a per se prohibition of the lawyer's handling of matters adverse to the city's housing department.
Similarly, in RI-22, the issue was whether lawyers in a firm could represent clients before public boards or commissions on which members of the firm served. After noting that such representations were prohibited by opinions produced under the Code, the Committee looked to MRPC 1.7(b) and 1.11(a) and observed that these rules did not require automatic disqualification in all instances. Nevertheless, the Committee was of the opinion that the circumstances presented by the inquiry were of such a nature as to require a complete prohibition:
"It would appear that the specter of conflict of interest, be it actual or merely apparent, under either setting prohibits a firm's representation under the circumstances presented.
". . . .
"Therefore, the law firm of a public commissioner or government official may not represent clients appearing before the commission or board, nor before any entity subordinate to that body." RI-22.
Notwithstanding the approach taken in these opinions, the Committee does not believe that resolution of the present inquiry requires that the lawyer be automatically prohibited from representing clients in the situations described. If the lawyer applies the requirements of MRPC 1.7(b) and 1.11 to the specific circumstances presented by each proposed representation, there will be occasions when the representation will be permissible, and occasions when it will not be permissible.
As an example, the lawyer may be asked to represent a client charged with speeding in violation of a city ordinance. If the ordinance in question has been in effect without debate or vote during the lawyer's tenure on the city council, and if the defense of the client does not reasonable require the lawyer to take action such as challenging the validity or constitutionality of the ordinance, it might be concluded that this representation is completely permissible under both MRPC 1.7(b) and 1.11. On the other hand, if the representation would reasonably require the lawyer to advocate a position contrary to positions taken as a member of the city council, or challenge the validity of acts taken by the council, such representation would most likely be prohibited by both MRPC 1.7(b) and 1.11(a).
Other circumstances requiring the lawyer to refrain from undertaking such representations may exist based on the lawyer's public responsibilities vis a vis the police department, and the police officers who will be presenting charges against the lawyer's potential clients. It is not possible to envision all possible circumstances under which such problems might exist, but they could arise out of the lawyer's service on personnel or labor relations committees of the city council, or from the lawyer's knowledge of otherwise confidential information concerning specific officers. In appropriate situations, representation of potential clients may be prohibited by MRPC 1.7(b), 1.11(a) and (b).
As this analysis suggests, there are a number of circumstances where the lawyer's public role will likely prohibit undertaking representation of a client in a specific matter. The lawyer must carefully consider all of the ramifications in order to determine if the lawyer's ability to represent the client fully and effectively will be materially limited by the responsibilities owed to others, including the lawyer's constituents. It is not to be assumed that this will be an easy task, or that there are bright lines that can be drawn.
At the same time, because it is conceivable that there are numerous circumstances where the lawyer might represent a client that would not be prohibited by the Michigan Rules of Professional Conduct, the Committee cannot conclude that the lawyer is automatically precluded from representing all clients in all situations falling within the scope of this inquiry. That determination cannot be made other than on a case-by-case basis, unique to the facts and circumstances presented by each proposed representation.