C-215
February 25, 1977
SYLLABUS
It would be improper for a lawyer to represent a police officers' association in salary negotiations or in general legal matters and at the same time represent a client charged with a crime if one of the complainants or material witnesses in the criminal matter is an official of the police officers' association or a member of the police officers' association who occupies a position causing ongoing contact with the lawyer.
The lawyer is not prohibited from undertaking the representation if:
The testimony of the police officer relates solely to an uncontested matter, or is merely cumulative in nature, and will not substantially effect the outcome of the proceedings; or
The testimony of the police officer relates solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or
Refusal of representation would work a substantial hardship on the client because of the distinctive value of the lawyer or the lawyer's firm as counsel in the particular case, and full and complete disclosure is made to all parties concerned, opposing counsel and the court.
References: MCPR Canon 9; MCPR DR 5-105(B) and (C). CI-9, CI-26, CI-170, CI-267 are superseded.
TEXT
A lawyer has been contacted to represent a police officers' association in salary negotiations or in general legal matters. Other members of the lawyer's firm represent criminal defendants in matters in which members of the police officers' association were involved as complainants or as investigating officers. The lawyer asks whether the prospective representation may be undertaken, if there is disclosure to and consent from all clients.
The question presented has been considered on three different occasions in CI-9, CI-26, and CI-170. In each of those opinions, the committee determined that it would be improper for a lawyer to represent a police officers' association in salary negotiations and other general matters relating to the association and at the same time represent criminal defendants in jurisdictions in which police officers of that association are the complaining witnesses or the investigating officers. Furthermore, the opinions determined that the potential conflict could not be resolved through disclosure and consent by the respective clients.
MCPR DR 5-105(C) allows a lawyer to represent multiple clients "if it is obvious that he can adequately represent the interest of each and if each client consents to the representation after full disclosure." Therefore, not only must there be consent of the clients but it must be "obvious" that the lawyer will be unaffected in the manner of representing the client in order to satisfy the requirements of MCPR DR 5-105(C). Additionally, MCPR Canon 9 requires a lawyer to avoid even the appearance of impropriety.
While it is apparent that the lawyer-client relationship between the lawyer and the police officers' association could possibly present ethical problems when that same lawyer attempts to represent a person charged with a crime, we are not of the opinion that such relationship should automatically disqualify that lawyer or the lawyer's firm from representing all criminal defendants within the same jurisdiction. This is particularly true in larger metropolitan areas where the police officers' association is very large and the lawyers representing those associations would have very little, if any personal contact with most of the association members. We therefore overrule CI-9, CI-26, CI-170, and CI-267 for the reason that such opinions too broadly and arbitrarily disqualify those lawyers who represent police officers' association.
We do, however, recognize the very serious ethical problems which would exist if the complaining officer or material witness in the criminal case were an official of the police officers' association or an association member who occupies a position within the association which causes him to have an ongoing contact with the lawyer. Therefore, it would be improper for a lawyer to represent a police officers' association in salary negotiations or in general legal matters and at the same time represent a client charged with a crime if one of the complainants or material witnesses in the criminal matter is an official of the police officers' association or a member of the police officers' association who occupies a position therein which causes him to have an ongoing contact with the lawyer.
The above prohibitions shall not apply if (a) the testimony of the police officer relates solely to an uncontested matter, or is merely cumulative in nature, and will not substantially effect the outcome of the proceedings; or (b)
the testimony of the police officer relates solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or (c) refusal of representation would work a substantial hardship on the client because of the distinctive value of the lawyer or the lawyer's firm as counsel in the particular case, and full and complete disclosure is made to all parties concerned, other counsel and the court.
The above exceptions have been borrowed from MCPR DR 5-105(B) and appropriately apply to this situation as well.
The restrictions might not cover all situations in which the lawyer should be disqualified. A lawyer must exercise independent judgment in each case and withdraw from any situation in which it is not obvious that the lawyer will be able to adequately represent the interest of the client or when the representation would likely cause a substantial appearance of impropriety.
Under all circumstances, the lawyer must make full disclosure to the criminally charged client and to the association client and disqualify himself if either client refuses to consent to such representation.