CI-1166
March 2, 1988
SYLLABUS
A lawyer who is an elected official of a governmental unit involved in adjustments of judicial salaries during a judge's term of office may not practice law before such judge.
References: MCPR DR 8-101, DR 9-101; Op 42, Op 54, Op 132, Op 139; CI-347, CI-419, CI-1137.
TEXT
As elected trustee of a township, a lawyer is involved in the determination of judicial salaries and with financial affairs of the courts in the district. The lawyer asks whether it is ethical to represent a client before the courts in the district, when the lawyer as elected official has a role in determining judicial salaries.
This Committee has had a number of occasions to consider the ethical propriety of practicing law in a jurisdiction where a lawyer also holds public elective office. In previous opinions, the Committee has opined that a lawyer who is a member of a city council (1) may not represent defendants in criminal cases before a court where police officers or other city employees (whose salary he is responsible for determining) are or may be witnesses, and (2) may not represent defendants in criminal cases before such a court involving violations of the city's ordinances. Op 42, Op 54, Op 139, CI-419, CI-1137. A lawyer who holds elective office is not ethically prohibited, however, from representing defendants in criminal cases in courts within the governmental unit he administers providing the above circumstances are absent. For example, where the local unit is not a party or directly involved or the prosecution is for a state law violation.
Former opinions also concluded that a lawyer/elected city official may practice civil matters in courts within the city's jurisdiction provided the city is not a party or directly interested. Op 42, Op 132. Further, although a city-councilperson may participate in setting salaries for city offices, he/she is ethically permitted to practice civil law in cases in which the city is not a party or directly interested or by extension where city employee would not be parties or witnesses. Op 42, Op 132.
Where a lawyer/elected official is involved with setting of judicial salaries, no ethical prohibition prevents the practice of civil law before a judge sitting within the governmental unit provided the judge is an elected official and his salary cannot be reduced during his term of office. Op 42, Op 132. It is to be noted, however, that in CI-347, the Committee specifically observed that where a lawyer/elected official was involved with the setting of judicial salary and used that position to influence or attempt to influence a judicial matter, such conduct would clearly be subject to a disciplinary proceeding. See also MCPR DR 8-101(A)(1) and (2).
The present inquiry raises the potential conflict of a lawyer/elected official appearing before a court over which the lawyer has salary determining responsibility. This Committee has expressed its opinion on this issue, in no uncertain terms:
"It would be manifestly improper under Canon [8] for a lawyer to appear before a judge whom he has appointed or whose reappointment or salary he could control. The public would have little faith in the disinterestedness of a public official who owed his position, tenure or income to the advocate. Nor could such conduct be justified by showing that the parties were of high character and that no injustice was shown to have resulted. Canon [8] is a frank recognition that, human nature being what it is, a dual relationship, involving adverse or conflicting interests, constitutes an enormous temptation to take advantage of one or both parties to such relationship. The purpose of Canon [8] is to condemn the creation and existence of the dual relationship instead of merely scrutinizing the results which may flow therefrom." Op 132.
Op 132 recognized a distinction, however, where the judge, in whose court the lawyer/elected official wishes to appear, is an elected official and the lawyer has neither appointive power nor control over the judge's salary during the latter's term of office. In such a situation, the lawyer/elected official is ethically permitted to appear in civil or criminal cases, provided no other ethical prohibition arises under the Committee's previously referenced opinions.
In the present inquiry the lawyer as elected official is involved with the determination of judicial salaries and other court financial affairs, but the precise nature of the trustee's involvement in those functions is unclear. The extent of this involvement is critical to resolution of the inquiry. Clearly, if a trustee has appointive power, individually or with others, the trustee would be ethically prohibited from practicing civil and criminal law in the subject court. Moreover, if the salary determining function involves adjustment of judicial salary during the judge's term of office, the ethical prohibition would similarly obtain.
The propriety of the lawyer appearing in the subject court may be met if the lawyer trustee abstained from deliberations involving the court issues. Where, as a matter of law, elected duties require trustee participation in such matters, the fulfillment of the duties as an elected public official takes precedence and abstention would be a breach of public duty. MCPR 9-101, 8-101.