RI-289

February 24, 1997

SYLLABUS

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. If a conflict of interest subsequently arises which disqualifies the lawyer, all members of the lawyer's firm will be imputedly disqualified.

References: MRPC 1.4(b), 1.7(b), 1.8(i), 1.16(a); R-3, RI-228.

TEXT

The inquirer is inside counsel for a federally recognized tribe ["Tribe"], and lawyer of record for the Tribe in a federal administrative proceeding. A local city is also a party to the administrative proceeding and its interests are adverse to the Tribe's. The dispute giving rise to the administrative proceeding may well result in litigation between the Tribe and the city once the administrative remedies are exhausted.

The inquirer's spouse is a candidate for a seat on the local city commission. The city commissioners are not parties to the administrative proceeding, either individually or in their official capacities, and presumably will not be parties to any subsequent litigation.

The inquirer poses two questions: (1) if the inquirer's spouse is elected to the city commission, may the inquirer continue to represent the Tribe in the administrative proceedings, and in subsequent litigation, if any ensues; and (2) if the answer to the first inquiry is "no," may the inquirer continue to be employed in the Tribe's legal department if the inquirer is recused from involvement in the administrative proceedings or subsequent litigation?

The Michigan Rules of Professional Conduct provide a number of Rules which provide guidance in answering these questions. MRPC 1.7(b) states:

"(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."

The Comment to MRPC 1.7(b) states as follows:

"Loyalty to a client is also impaired when the lawyer cannot consider, recommend, or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. Paragraph (b) addresses such situations. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Consideration should be given to whether the client wishes to accommodate the other interests involved."

The lawyer must "reasonably" believe that the representation would not be adversely affected. If "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." Comment to MRPC 1.7.

MRPC 1.8(i) states:

"(i) A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person whom the layer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship."

There are apparently no rules or ethic opinions in Michigan which are directly on point. There are a number of opinions, however, which address situations where lawyers are married to one another and are representing adverse parties in litigation. Cf. R-3, RI-228. In RI-228, a lawyer whose spouse was employed by the prosecutor's office in a nonlaw position was not per se prohibited from representing a criminal defendant, so long as the client consented to the representation after consultation. The lawyer was also required to continually evaluate for conflicts of interest throughout the representation.

Relying on RI-228, the answer to the inquirer's first question is a qualified "yes" if the lawyer reasonably believes the representation of the Tribe will not be adversely affected and the client consents after consultation. MRPC 1.7(b). In consulting with the Tribe, the lawyer must keep in mind the requirements of MRPC 1.4(b) which states:

"(b) A lawyer shall explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

RI-228 points out the importance of continuing to evaluate the existence of potential conflicts of interest throughout the representation, not just at the outset. This continuing diligence is also required by MRPC 1.16, which provides that where representation has already commenced, the lawyer must withdraw from the representation if continuing the representation will result in a violation of the rules.

The inquirer indicates that the individual city commissioners are not parties to the administrative proceedings either individually or in their official capacities and it is unlikely the city commissioners will be parties in any ensuing litigation. If the inquirer's spouse becomes a witness requiring cross-examination by the lawyer, the lawyer will be required to withdraw and all members of the lawyer's firm (in this case, the Tribe's legal department) will be imputedly disqualified. RI-228; MRPC 1.10(a). Other circumstances might also require this result. This analysis answers the inquirer's second question.

In conclusion, if the lawyer's spouse is elected to the city commission, the lawyer may continue to represent the Tribe, both in the administrative proceeding and in any ensuing litigation, if the lawyer reasonably believes the representation will not be adversely affected and if the Tribe consents after consultation. The lawyer must take care to evaluate the existence of conflicts of interest throughout the representation and must withdraw if a disqualifying conflicts arise.