April 15, 1998
A lawyer may represent a client before an agency of the executive branch of the state government although a member of the firm is a member of the state legislature.
References: MRPC 1.7(b), 1.10(a), 1.11(a), 8.4(d).
A lawyer asks whether or not a firm may represent a municipal client before a state administrative agency if a member of the firm is a state legislator. It is pointed out the agency is a part of the executive branch of the state government and that the member of the firm who is in the legislature has been screened from the matter.
The primary issue is whether or not a conflict of interest exists. A conflict can arise in two situations. In the first, the specific matter may be one in which the elected official participated. MRPC 1.11(a). The second is one in which the lawyer's duty to a client may be limited by the lawyer's duty to another. MRPC 1.7(b).
MRPC 1.11(a) states:
"(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. 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."
While the primary purpose of this section is to apply to those lawyers who were employed by the administrative agency involved, it is possible for the public official to have been involved in a matter in a different capacity. In such a case the rule requires that such participation to have been both "personally and substantially." Since the agency involved is a part of the executive rather than legislative branch of the state government, it does not appear as though that test has been met.
Because MRPC 1.11(a) does not technically apply to this situation, the screening of the legislator member of the firm is not required, although it is prudent to do so out of an abundance of caution.
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 undertaken, the consultation shall include implications of the common representation and the advantages and risks involved."
MRPC 1.10(a) 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, or 2.2."
As a state legislator, a lawyer has a duty to his constituents who may be considered "third persons" for the purpose of MRPC 1.7(b). It does not appear that the representation of either the firm client or the legislator's constituents would be "materially limited" in the factual situation posed.
Also to be considered is whether or not MRPC 8.4(d) would prohibit representation by the subject firm. MRPC 8.4(d) states:
"It is professional misconduct for a lawyer to:
It does not appear that the fact that a member of the firm representing the client is a state legislator would influence either the state agency before whom the matter is pending not would it influence a circuit court if the matter proceed to that point. Under the facts as presented, there is no indication that any representation of possible influence has been made.
In conclusion, the fact that a firm has a member who is a state legislator does not preclude another member of that firm from representing a client before an agency of the state's executive branch.