Unique Ethics Concerns for the Government Lawyer
By Thomas K. Byerley
MBJ January 1998

This column provides information on lawyer and judicial regulatory issues which have been the subject of recent inquiry.

Lawyers in government service, such as prosecutors, city, township, county or state attorneys, often find that the traditional lawyer-client ethics relationships are absent. Although all Michigan lawyers are subject to the Rules of Professional Conduct, lawyers working for governments many times have unique ethics concerns. For example, the question of "Who is the client?" may be easy to answer in the "traditional" practice of law, yet presents challenging issues for the lawyer employed in government service.

Since the Michigan Rules of Professional Conduct (MRPC) have only a few special rules for lawyers in government service, such as Rule 1.11, "Successive Government and Private Employment" and Rule 3.8, "Special Responsibilities of a Prosecutor," most ethics issues involving government lawyers must be addressed by ethics opinions. This article is offered to summarize some of Michigan's ethics opinions that have addressed the special circumstances of lawyers employed by governmental units.

Issues Affecting Prosecuting Officials

Lawyers who cease being prosecutors and become criminal defense lawyers, or part-time prosecutors who also have a private practice that includes criminal defense are faced with unique ethics issues.

MRPC 1.11 provides:

"(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.

(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 material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.

(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter; or

(2) negotiate for private employment with any person who is involved as a party or as an attorney for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer, or arbitror may negotiate for private employment in accordance with Rules 1.12(b).

(d) As used in this rule, the term matter' includes:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties; and

(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

(e) As used in this rule, the term confidential government information' means information that has been obtained under governmental authority and that, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public."

An ethics opinion has explained that a lawyer who was formerly employed as a prosecuting official may in some cases represent a criminal defendant in a trial court proceeding where the signing of the complaint and warrant arose during the employment of the prosecuting official with the prosecutor's office. Representation is allowed where the prosecuting official had no personal contact with the defendant or the arresting officer and the prosecuting official did not participate in any phase of investigation or prosecution to any substantial degree. RI-4. However, that same opinion explained that if the prosecuting official participated substantially in a criminal prosecution during employment as a prosecutor, he or she may later represent that defendant in the criminal matter only if the government agency consents to that representation.

In an opinion issued under Michigan's former Code of Professional Responsibility, the Ethics Committee opined that a lawyer may represent criminal defendants in the same county where the lawyer's spouse is employed as an assistant prosecuting attorney, if:

• The lawyers are not opposing counsel in any given case;
• Full written disclosure of the relationship is given; and
• Written consent is received from the defendant and from the prosecuting attorney involved. C-213.

A lawyer who acts as a prosecuting official in one jurisdiction is not prohibited from representing criminal defendants in other jurisdictions, provided that:

• The lawyer does not defend persons currently under investigation in the prosecutor's jurisdiction;
• The lawyer does not defend matters in which the lawyer participated personally and substantially as a prosecutor unless the client and the government agency consent; and
• The lawyer does not undertake defense cases of which the facts may give rise to violations of criminal law coming under the jurisdiction of the prosecutor. R-13.

When a defense counsel in a criminal trial later becomes the elected prosecuting attorney, the prosecutor and subordinates may not participate in the state's response to the defendant's appeal of the conviction. Further, the prosecutor may not participate in the selection of the special prosecutor in the matter, coordinate efforts with the special prosecutor during the course of the appeal, or otherwise participate in the appeal. RI-152.

Similarly, an assistant prosecutor previously employed as a judicial clerk is disqualified from representing the prosecutor's office before that court in any matter which involved the lawyer's personal or substantial participation as clerk. RI-43.

In RI-253, a trial judge was considering bids from lawyers to represent indigent persons in criminal matters and received proposals from current full-time assistant prosecutors who each intended to resign if their proposal was accepted. In that matter, the Ethics Committee opined that a judge may ethically consider the bid and that former assistant prosecutors may undertake the criminal defense contract if: the lawyer does not defend a case in which he or she participated personally and substantially as a prosecutor, unless the prosecutor's office consents; and the lawyer has acquired no confidential government information about a person which could be used to the material disadvantage of the person in the representation of a client whose interests are adverse to the person.

A lawyer whose spouse is employed by the prosecutor's office is not per se prohibited from representing a criminal defendant. The client must consent to the representation after consultation regarding the relationship, and, if consent is given, the lawyer must continue to evaluate for conflicts of interest throughout the representation. RI-228. Also, neither the assistant prosecutor nor any other lawyer in the prosecutor's office is per se disqualified from a matter because a criminal defendant's lawyer intends to call a member of the prosecutor's office as a character witness for the defendant. RI-233.

A lawyer who represented a client on an appeal while in private practice may continue to represent the client after being hired to handle appeals for a county prosecutor's office, where the criminal case against the client was prosecuted in a different county by the Attorney General's office, and where the county prosecutor's office will not appear in the Court of Appeals. RI-295.

In an important decision issued May 12, 1997, the Ethics Committee opined that 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. The opinion states, however, that 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. RI-292.

One additional ethics opinion is worth noting for prosecuting officials. In RI-165, the Ethics Committee opined that a criminal defense lawyer has no ethical duty to inform the prosecutor's office of its failure to initiate criminal charges against the lawyer's client, even though the initiation of the charges was a part of a negotiated plea agreement between the lawyer and the prosecuting attorney.

Issues Affecting Government Lawyers in Civil Practice

Government lawyers employed as civil counsel also face unique ethical challenges. For example, government civil lawyers are often faced with conflict of interest issues that do not exist in nongovernmental service. The Standing Committee on Professional Ethics has issued several ethics opinions to address some of these concerns.

In an opinion issued under Michigan's former Code of Professional Responsibility, the Ethics Committee opined that a lawyer may serve as a city or township attorney while at the same time serving as a member of the county board of commissioners in the county in which the township or city is located, provided that the lawyer is ever mindful of the potential conflicts which may on occasion exist and that the lawyer take appropriate action to disqualify him or herself from participation both as a lawyer and member of the board of commissioners when a conflict of interest does occur. C-214.

In RI-47, the committee was presented with a situation in which an assistant city attorney, who serves as legal advisor on labor issues, was asked to serve on the city's supervisory grievance board as a management representative. Management would be represented in these matters by other assistant city attorneys. The committee opined that this assignment would create an impermissible conflict of interest and would not be allowed. However, an assistant city attorney who does not have legal responsibility for advising the employee relations functions of the entity client may serve as management representative of a supervisory grievance board. Further, an assistant city attorney may represent management in grievance proceedings where another assistant city attorney serves as management representative on the adjudicative panel.

A lawyer who is also a city council member may not ethically represent clients adverse to the city housing authority when the city housing authority is represented by the city attorney. RI-126. A lawyer may continue to represent a client in administrative proceedings against a municipality when the lawyer's spouse is elected to the city commission, if the lawyer reasonably believes that the representation will not be adversely affected and if the client consents after consultation. RI-289.

A city attorney owes an ethical obligation to follow the directives of the majority of the city council in drafting ordinances, as long as the directives do not involve the lawyer in furthering fraud or illegal activity of the client. If that city attorney is asked by a dissenting city council member to draft an opinion on the constitutionality of the action taken by the city council in adopting an ordinance, the request must be denied. RI-254.

Government civil counsel, who by definition represent the governmental entity as a "whole," are frequently asked to counsel individual board or council member or employees of the government agency. In RI-259, the committee opined that a city attorney may meet individually with a member of the city council, the chief of police or the city manager regarding the consequences of the city manager's arrest, but may not deliver legal services to them individually unless the proper conflict screening is performed and confidences and secrets are preserved.

Government civil counsel also receive inquiries from the public at large. In RI-266, it was opined that a county lawyer may discuss generally with a citizen the reasons why the county retained separate counsel in a particular matter, provided that no client confidences are revealed. The opinion also states that provided no legal advice is rendered, a lawyer for a county may give general information to interested persons on procedures for intervention in public county proceedings.

Conclusion

This article contains a short summary of a small number of ethics opinions dealing with the unique ethical issues affecting lawyers employed by governmental agencies. Lawyers needing additional guidance should read the full text of the ethics opinions referred to in this article and may also search the index of Michigan Ethics Opinions for additional ethics opinions affecting government lawyers. The index and full text of Michigan Ethics Opinions may be found on the State Bar's website, located at: http://www.michbar.org. Telephone ethics inquiries for the contemplated prospective conduct of the inquirer may be made to the State Bar's Ethics Hotline, at (517) 485-ETHX.

Thomas K. Byerley is the Regulation Counsel for the State Bar of Michigan.