December 31, 1991
A prosecuting attorney is not ethically prohibited from enforcing the incompatible offices statute against two of the county's commissioners, notwithstanding that the prosecuting attorney's office serves as general corporation counsel for the county.
Referenced: MRPC 1.7, 1.13.
A prosecuting attorney has concluded from a recent Attorney General's Opinion that two of the county's commissioners hold incompatible offices. One commissioner is also an elected township official; two contracts exist between the county and that township. The second commissioner is also a city councilperson; one contract exists between the county and that municipality.
The enforcement section of the incompatible offices statute, MCL 15.184, provided that either the Attorney General or the prosecuting attorney may seek a circuit court remedy for a violation of the incompatible offices statute. No other mechanism of enforcement is provided in the statute. The prosecuting attorney has been told that the Attorney General's office is unlikely to pursue enforcement action in this matter. Because the prosecuting attorney's office serves as general corporation counsel for the county, and in this capacity has rendered legal services to the county board of commissioners, the prosecuting attorney asks:
- Is the prosecuting attorney personally precluded by ethical constraints from pursuing the circuit court action; and
- If so, is the entire prosecuting attorney's office also disqualified from pursuing this matter.
MRPC 1.7 generally prohibits a lawyer from representing one client if the representation will be directly adverse to another client, or if that representation may be materially limited by the lawyer's responsibilities to another client or third person, or by the lawyer's own interests. However, MRPC 1.13(a) unequivocally states that when a lawyer is employed or retained to represent an organization, the lawyer represents the entity "as distinct from its directors, officers, employees, members, shareholders, or other constituents." Even if it is assumed that any potential conflict arises from the prosecuting attorney's role as county corporation counsel in civil matters (as distinct from the prosecuting attorney's general duty as a minister of justice and advocate for the people in criminal matters), it is clear that there is no conflict of interest within the meaning of MRPC 1.7 because the county itself, not the individual commissioners, is the "client" of corporation counsel. Furthermore, no facts are presented in this inquiry to indicate that the prosecuting attorney's personal interests create a conflict within the meaning of MRPC 1.7(b).
Accordingly, the prosecuting attorney may bring the circuit court action to enforce the incompatible offices statute. Since the prosecuting attorney is not disqualified, there is no imputed disqualification of the assistant prosecutors in this matter. See MRPC 1.10(a).
In reinforcing the fact that the prosecuting attorney represents the organization as distinct from the personal interests of any member of the board, MRPC 1.13(b) suggests:
"(b) If a lawyer for an organization knows that an officer, employee, or other person associated with the organization is engaged in action, intends to act, or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization, and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others:
"(1) asking reconsideration of the matter;
"(2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and
"(3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law."
Thus, in an effort to seek resolution of the matter before litigation is undertaken, the prosecuting attorney may seek voluntary cooperation of the two commissioners with incompatible offices, may seek cooperation and assistance from the remaining members of the board of commissioners to appeal to the commissioners with incompatible offices, or may discuss the matter with legal counsel retained by the commissioners with incompatible offices for the matter.