RI-22

May 18, 1989

SYLLABUS

The law firm of a public commissioner or government official may not represent clients appearing before the commission or board, nor before any entity subordinate to that body.

References: MRPC 1.7(b), 1.10(a), 1.11(a); C-241.

TEXT

A lawyer asks whether members of a law firm may represent clients before a public commission or government board on which a member of the firm serves, or before any entity subordinate to that body.

MRPC 8.4(d) prohibits a lawyer from stating or implying an ability to influence improperly a government agency or official. In C-241 this was sufficient reason to prohibit representation by the firm of the public official. The Committee reasoned that the duty of the elected official to constituents and the rights of a party petitioning for redress created an "inexorable conflict."

Conflicts under the Michigan Rules of Professional Conduct are addressed in separate settings: (1) a matter in which the public official participated, MRPC 1.11(a), and (2) a matter in which a lawyer's duty to a client is limited by another duty of the lawyer, MRPC 1.7(b).

MRPC 1.11(a) states:

"(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 appropriategovernment agency to enable it to ascertain compliance with the provisions of this rule."

Thus, when the matter which the firm is asked to represent is one in which the public official participated personally or substantially, the firm may not represent the client unless the public official is screened and written notice is given the public agency.

To properly screen the public official from the matter, not only would the firm have to exclude the official from participation in the preparation of the client's case, but the public official would have to be recused from the official's public duty of hearing the presentation of the matter. As stated in C-241 an official's withdrawal from specific issues would deprive citizens of the representative elected to exercise judgment in such matters.

Further, while MRPC 1.11(a) relates primarily to the circumstances where the public official has already severed ties to the agency, the general principle is applicable. As the factual situation posed envisions the public official serving on the council at this time, the safeguards of this Rule cannot be met. Abstention of the public official will not diminish the appearance of conflict of interest. See CI-192.

MRPC 1.7(b) and 1.10(a) state:

"1.7(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 interest, unless:

"(1) the lawyer reasonably believes the representation will not be adversely affected; and
"(2) the client consents after consultation . . . ."

"1.10(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, . . . ."

Thus, if the public official could not represent the client because of the official's duty to a "third person," i.e., constituents or the agency as an entity, then MRPC 1.10 would disqualify the firm.

It would appear that the specter of conflict of interest, be it actual or merely apparent, under either setting prohibits a firm's representation under the circumstances presented.

Even if MRPC 1.7(b), focused on the firm's interest, i.e., aiding the public official's performance as a council member or securing a possible future benefit for the firm through the official's membership on the council, representation would not be permitted.

Therefore, the law firm of a public commissioner or government official may not represent clients appearing before the commission or board, nor before any entity subordinate to that body.