RI-389
December 18, 2023
SYLLABUS
A prosecutor’s office should not represent the People when charges are brought against an employee or an intern who is employed within the prosecutor’s own office because there is an inherent conflict of interest. To ensure the integrity of the prosecutor’s office and the criminal justice system, the prosecutor’s office should appoint a special prosecutor or request a transfer of the case to another county when charges are brought against an employee or an intern.
References: MRPC 1.7(b); MCL 49.160
TEXT
An intern within the prosecutor’s office was charged with a crime by the same prosecutor’s office by which the intern was employed. A prosecutor inquires whether there is a conflict of interest within the prosecutor’s office if the prosecutor’s office1 charges one of their interns or employees with a crime.
For this opinion’s purpose only, the term “prosecutor’s office” includes state, county, city, and municipal prosecutors’ offices and any other body with prosecutorial powers.
MRPC 1.7(b) provides:
(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 explanation of the implications of the common representation and the advantages and risks involved.
“Central to the integrity of the criminal justice system is a prosecuting office free of bias or conflict that would undermine faith in the independence of the office.”2 When charging within the office, it may be difficult for the prosecutor to ensure the rights of the intern are protected while simultaneously being a minister of justice over one of their own employees and representing the interests of the People.
Commentary to MRPC 1.7 provides the following guidance: “[W]hen a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent.” “A ‘disinterested lawyer’ is a hypothetical objective lawyer. Simon’s New York Code of Prof’l Responsibility Annotated, 554-55 (2003), see also Fairfax Savings Bank, FSB v. Weinberg & Green, 685 A2d 1190, 1214 (MD Ct. App. 1996) (A disinterested lawyer must apply an objective test in determining whether a client can consent to a conflict).” See RI-348.
There is an inherent conflict if a prosecutor prosecutes one of their own employees,3 RI-307 provides that “[i]f the lawyer reasonably concludes that there is a likelihood that the representation would be materially limited, then by necessity, the representation would be adversely affected, and the lawyer may not ask the client for consent and the representation must be declined.” See also MRPC 1.7(b). Here, the such as the intern named in the fact scenario. Specifically, Ethics Opinion
prosecutor’s representation of the People is materially limited by their responsibilities to the charged employee or the charged intern, and the terms of consent may not be satisfied because the client, meaning the People, is unable to consent. Therefore, the prosecutor cannot ensure that the representation of the People will not be adversely affected when prosecuting an employee/intern because the prosecutor has responsibilities towards that employee/intern professionally that are contrary to the concurrent duty to ensure that the defendant/employee/intern is held accountable to the People for their actions.
“Prosecutors are subject to the Michigan Rules of Professional Conduct to the same degree as other lawyers.” See RI-152.4 MCL 49.160 or request a transfer of the case to another county as allowed by court rule and law. For the prosecutor to ensure the integrity of the criminal justice system and to comply with the Michigan Rules of Professional Conduct, the prosecutor’s office should appoint a special prosecutor as allowed under
CONCLUSION
There is an inherent conflict of interest within a prosecutor’s office when charges are brought against an employee or an intern employed within the same office as the elected prosecutor. To ensure the integrity of the prosecutor’s office and the criminal justice system, the prosecutor’s office should appoint a special prosecutor to represent the People when charges are brought against an employee or an intern or request a transfer of the case to another county.
1. For this opinion’s purpose only, the term “prosecutor’s office” includes state, county, city, and municipal prosecutors’ offices and any other body with prosecutorial powers.
2. See the Prosecuting Attorneys Association of Michigan’s Best Practices Recommendation Conflict of Interest/Special Prosecutor (subscription required).
3. An example of a prosecutor’s office’s appointing a special prosecutor due to a conflict of interest may be found in Phillips v Ingham County, 371 F. Supp. 2d 918 (W.D. Mich. 2005).
4. See also RI-280.