R-13

September 27, 1991

SYLLABUS

A lawyer serving as presenting officer and prosecutor for a tribal court may represent criminal defendants before other state courts, as long as:

(a) the lawyer does not defend persons currently under investigation or prosecution in the tribal court;

(b) the lawyer does not defend matters in which the lawyer participated personally and substantially as tribal lawyer unless the client and the government agency consent; and

(c) the lawyer does not undertake defense cases the facts of which may give rise to violations of tribal law coming under the jurisdiction of the tribal court prosecutor.

A lawyer may not prosecute in a tribal court:

(a) matters in which the lawyer personally and substantially participated as defense counsel in state courts; or

(b) matters which are substantially related and materially adverse to a former defense client, or use confidences and secrets of the former client, unless the former client consents.

References: MRPC 1.7, 1.9, 1.10, 1.11; R-4; RI-11; JI-34; C-225. C-193, C-212 and CI-887 are superseded

TEXT

A lawyer serves as tribal lawyer for an Indian tribe in which capacity the lawyer serves as the presenting officer before the juvenile court and prosecutor in the tribal court. There are two other tribal lawyers who may be called upon to perform presenting officer functions, or an individual case may be contracted out for handling.

The lawyer and another local law firm consisting of four lawyers have submitted a bid for the contract for court-appointed criminal misdemeanor and felony defense work, and the bid was successful. After criminal arraignments, one of the contract lawyers performs a conflict screening regarding the prospective defense matter. If the screening lawyer has an impermissible conflict, the matter is referred to the other contracting firm partner; if both contracting firms have impermissible conflicts, the matter is referred to other local defense counsel.

The lawyer asks for guidance in determining conflicts between criminal defense cases and the duties of the tribal lawyer. It has been agreed by the parties contracting for the court-appointed defense work the lawyer would not represent as defense counsel any individual who is concurrently under investigation or being prosecuted before the tribal court.

Historical Treatment

Several previous opinions have discussed the subject of a lawyer performing both prosecutor and defense functions in the same geographical area.

In Opinion C-193, interpreting the Canons of Professional Ethics, it was held improper for a prosecuting attorney of one county to represent defendants in criminal cases in other counties of the state, or for a prosecuting attorney of one state to defend persons accused of crimes in other states. Although recognizing that no statute forbade the representation, the opinion argued that prosecutors traditionally receive assistance and accommodation from police and prosecuting agencies of other communities, and such assistance would not be forthcoming if the lawyer were allowed to undertake defense work.

Opinion C-212, interpreting the Code of Professional Responsibility, allowed city criminal prosecutors to engage in private criminal defense work if the criminal case did not occur in the employing community and was not charged under a statute or ordinance analogous to those which the prosecutor is charged with enforcing, but warned for special precautions to avoid the appearance of impropriety in defense cases arising in adjacent communities. C-212 overruled opinions CI-63, CI-67, CI-104, CI-141 and CI-202, which flatly prohibited attorneys charged with responsibility for prosecution of criminal violations from representing criminal defendants in the same or other jurisdictions. Members of the prosecutors' law firms were similarly prohibited, CI-49. A part-time summer employee of a prosecutor was prohibited from concurrently engaging in a criminal defense practice, CI-217.

CI-887, without mentioning C-212 but endorsing C-193, held that county prosecutors were prohibited from undertaking criminal defense work in other counties, arguing that if a prosecutor were appearing as defense counsel in another county, "a dismissal of the charge may be regarded as a form of professional courtesy contrary to the best interests of the public and the proper enforcement of criminal jurisprudence."

C-225, interpreting the Code of Professional Responsibility, allowed private attorneys, who had been selected from a rotation list to act as special prosecutor, to continue to represent criminal defendants in the same city even while serving as special prosecutor. The opinion argued that since the prosecutorial appointment was not compensated, the conflict was minimal. The special prosecutor's law firm was prohibited from defending cases handled by the special prosecutor.

Current Rationale

We find nothing in the Michigan Rules of Professional Conduct which suggests that geography of the lawyer's practice controls the cases which the lawyer may undertake. Nor do we find any mention in the Rules of concepts of professional courtesy which form the underlying rationale for the results in the prior opinions. Further, the concept of "appearance of impropriety" does not appear in the current Rule. Existing opinions cited above do not provide the proper rationale to guide lawyers in these circumstances, and there is no current authority for a per se disqualification rule. Therefore, existing opinions are superseded by this opinion.

The current conflicts rules are triggered by duties owed to clients which differ from duties a lawyer has undertaken to other clients [MRPC 1.7, 1.9], the lawyer's own interests [MRPC 1.7(b)], or to third persons [MRPC 1.7(b), 1.11]. When a lawyer serves as criminal defense counsel, the client is the named defendant individual. When a lawyer serves as tribal court presenter, the lawyer is representing the tribal government, and indirectly the tribal community public.

Under MRPC 1.9, a lawyer may not represent a client in a matter substantially related and materially adverse to the interests of a former client, or use confidences or secrets of the former client, unless the former client consents. Thus, a lawyer as tribal court presenter may not undertake representation against a former defense client on a matter substantially related to the criminal defense case.

Under MRPC 1.11(a), a public lawyer may not undertake in private practice a matter in which the lawyer participated personally and substantially as public officer, unless the government agency consents. Thus, unless the tribal government consents, the tribal court presenter may not undertake criminal defense representation in matters in which the tribal court presenter personally and substantially participated. The criminal defense lawyer's firm is likewise disqualified unless the lawyer is screened and written notice is given to the tribal government. For details of adequate screening, see R-4. For further information on "personal and substantial participation," see RI-11 and JI-34.

Under MRPC 1.11(c) a lawyer may not serve as public officer in a matter in which the lawyer participated personally and substantially while in private practice, ". . . unless under applicable law no one is, or by lawyer delegation may be, authorized to act in the lawyer's stead in the matter." This exception does not come into play in this situation, since other lawyers are available to act in the place of the tribal court presenter. For screening public lawyers from matters in which they previously participated personally and substantially, see RI-43.

Lawyers who hold public positions have special duties and responsibilities to their constituencies which interplay with their personal interests. Thus C-241, dealing with a lawyer as a member of a city council, reminds that a public official's recusal from deliberation and participation on specific issues because they are substantially related to a client's interests would deprive citizens of the representative elected to exercise judgment in such matters. See also RI-22. The tribal court presenter is the primary law enforcement official for the tribal government. For the tribal court presenter to undertake additional responsibilities which interfere with his/her ability to perform the presenting function would violate MRPC 1.7(b) and may amount to dereliction of the prosecutor's duty. We also believe that the "necessity" exception in MRPC 1.11(c) was meant to cover the unanticipated situation, and not, as here, to contemplate that a lawyer would intentionally commit to conflicting duties. Therefore the lawyer may not undertake defense cases the facts of which may give rise to violations of tribal law coming under the jurisdiction of the tribal court prosecutor.

The lawyer has agreed not to take as defense clients persons currently under investigation or prosecution in the tribal court. In addition the lawyer may not take as defense cases matters in which the tribal court presenter participated personally and substantially. Nor may the lawyer take as defense cases matters which also fall within the jurisdiction of the tribal courts.

The lawyer may not prosecute in the tribal court matters in which the lawyer personally and substantially participated as defense counsel. The lawyer may not prosecute in the tribal court matters which are substantially related and materially adverse to a former defense client.