November 16, 1993
A lawyer who serves as a member of a city's police commission, and other members of the lawyer's firm, may not represent clients in matters involving the police commission, boards or departments subordinate to the police commission, or in matters in which employees of the police department appear as witnesses.
A lawyer who serves as a member of a city's police commission, and other members of the lawyer's firm, are not per se disqualified from representing clients in matters involving the city council or other city commissions and boards that are not subordinate to the police commission.
References: MRPC 1.7(b), 1.10(a), 8.4(d); R-15; RI-22; C-241; Op 179.
A partner in a law firm is being considered for appointment to the board of police commissioners [hereinafter "commission"] for a large metropolitan city. The commission has charter authority to review and approve the police department's budget, adopt rules for the organization and administration of the police department including with respect to training and promotion of employees, receive and resolve complaints concerning the police department, and act as final authority of the city in the discipline of police department employees. The lawyer has an active criminal practice, but does not represent criminal clients before district courts within the city. The lawyer also represents clients in matters before the city council and various boards and commissions within the city, but does not handle matters involving the commission. The lawyer inquires whether it would be ethically permissible to serve as a member of the commission if:
- Other members of the lawyer's law firm represent clients in matters in which the police department is a party or otherwise directly involved; and
- The lawyer or other law firm members represent clients before the city council or other city boards and commissions with respect to matters that do not directly involve the commission or the police department.
In R-15, the Committee relied on MRPC 1.7(b) in concluding that a lawyer serving as a county commissioner "may not represent criminal defendants in proceedings in which sheriff deputies are to be called as witnesses." 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."
Noting that "the county sheriff's department is inextricably bound to the county commission on matters of personnel and finance," the Committee opined that a disinterested lawyer would not reasonably believe that the lawyer/commissioner's representation of a client would not be materially affected by the lawyer's duties to the county sheriff's department, and therefore such representation was not permitted. R-15 opined that a lawyer who serves on the county board of commissioners which is responsible for funding and management oversight of the county sheriff's department, may not represent criminal defendants in proceedings in which sheriff's deputies are to be called as witnesses.
In this inquiry, the police department is "inextricably bound" to the commission, which exercises significant authority over the police department and its employees. Accordingly, and consistent with the foregoing rationale of R-15, a disinterested lawyer would not reasonably conclude that a lawyer/police commissioner's representation of a client with respect to matters involving the police commission or police department would not be materially affected by the lawyer's obligations to the police commission and police department. MRPC 1.7(b). Consequently, the lawyer/commissioner could not represent clients in any proceedings in which police department personnel are called as witnesses.
In addition, it is a violation of MRPC 8.4(d) to "state or imply an ability to influence improperly a governmental agency or official." If a lawyer/commissioner were to represent clients with respect to matters in which the commission or police department is directly involved, there is an implication that the lawyer could influence the outcome of the matter. See RI-22. This Committee does not opine on matters of law, but conflict of interest provisions contained in state statutes and local ordinances may also prohibit the lawyer/commissioner from undertaking the representation of private clients in matters involving the commission or police department.
Having concluded that the lawyer may not serve as police commissioner and also represent clients with respect to matters involving the commission or police department, we next address the issue of whether other members of the lawyer's law firm could represent clients with respect to such entities. In RI-22, the Committee reaffirmed the holding of C-241 (decided under the former Michigan Code of Professional Responsibility) that a law firm of a public commissioner may not represent clients appearing before that commission or any entity subordinate to that commission. The Committee opined that if the lawyer/commissioner could not represent the client without violating MRPC 1.7(b), then other members of the lawyer/commissioner's law firm would be similarly disqualified under MRPC 1.10(a) which 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."
The same reasoning applies here. Since the lawyer/commissioner cannot represent clients with respect to matters involving the commission or police department, MRPC 1.10(a) precludes other law firm members from representing clients in those matters. RI-22. A disqualification under MRPC 1.10(a) may be waived by the affected clients if the conditions of MRPC 1.7 are met. See MRPC 1.10(d). However, a disinterested lawyer would not reasonably believe the representation would not be adversely affected, and thus client consent would not vitiate the conflict.
MRPC 1.11 which governs successive government and private employment, is not applicable to this set of facts which involves a lawyer concurrently serving as a public police commissioner and a private lawyer. See RI-22; Hazard and Hodes, The Law of Lawyering, §1.11:100 - 1.11:601 (Rule 1.11 is a special rule governing "revolving door" conflicts caused by lawyers moving between private and public practice.) The screening provisions in MRPC 1.11 which allow a law firm of a former government lawyer to represent a client in a matter from which the former government lawyer is disqualified, are narrowly limited to a completed matter in which a former government lawyer previously participated. However, a lawyer/commissioner would have ongoing significant supervisory and disciplinary authority over members of the police department and could well be deciding matters of compensation and discipline with respect to police department personnel who are directly involved (investigating, testifying, or otherwise) in matters being handled, at the same time, by other members of the law firm. The lawyer/commissioner would be privy to the disciplinary matters, inadequate control of evidence, or a failure to adequately supervise or train department personnel. See R-15. There is the possibility that this confidential information could be used by private clients of the law firm to gain an advantage in a matter (civil or criminal) involving the police department. While the lawyer/commissioner intends to refrain from participation in law firm matters involving the police department, there exists a risk that some breach, even inadvertent, of public trust could occur. MRPC 1.11 does not permit a law firm to undertake representation of a matter involving a public entity by screening a member of the firm who is disqualified from that matter because of a conflict of interest resulting from concurrent (as opposed to former) service on behalf of that public entity.
In response to the second inquiry, it was previously held that a lawyer serving on a public commission or board and that lawyer's firm may represent clients with respect to matters involving different public commissions or boards that are not subordinate to the entity on which the lawyer serves. See RI-22, C-241, Op 179. Accordingly, the lawyer/commissioner, and other members of that lawyer's firm, may represent clients with respect to matters involving the city council or city commissions and boards not subordinate to the police commission.