RI-352

April 29, 2011

SYLLABUS

This opinion replaces Informal Opinion RI-194. It is not per se unethical for any partner, shareholder, employee, or other associate of a law firm to represent a private client in character and fitness proceedings when another lawyer in the same law firm is a member of a district character and fitness committee.

The Committee reaffirms that, because a member of the State Bar of Michigan Standing Committee on Character and Fitness would be disqualified from representing applicants in character and fitness proceedings under MRPC 1.7(b)(1), members of the Standing Committee member's law firm would likewise be disqualified from representing applicants in character and fitness proceedings by MRPC 1.10(a).

References: MRPC 1.7(b), 1.10(a) and (d), 8.4(d); CI-241; R-13; RI-22; RI-180; RI-194; Rule 15, Section 1(5)(d), (5)(f), (6), (7), (19), and (2); Section (E), Rule 6, of the State Bar of Michigan Standing Committee on Character and Fitness Rules of Procedure

TEXT

In Informal Opinion RI-194, the Ethics Committee considered whether a lawyer's representation of an applicant for admission to the State Bar of Michigan ("an applicant") in proceedings before the State Bar Standing Committee on Character and Fitness ("Standing Committee") is subject to a non-waivable conflict of interest when one member of the lawyer's firm currently serves on a character and fitness committee for the district in which the applicant resides ("District Committee") and another member of the lawyer's firm serves on the Standing Committee.

This opinion reconsiders that portion of Informal Opinion RI-194 that addressed an imputed conflict of interest in the circumstances where a lawyer represents an applicant in an interview conducted before a panel of the District Committee and another member of the lawyer's firm serves as a member of the District Committee. This Opinion reaffirms the conclusion of Informal Opinion RI-194 that states that a lawyer's representation of an applicant is subject to a non-waivable conflict of interest when a member of the lawyer's firm sits on the Standing Committee. For purposes of this opinion, it is assumed that the member of the lawyer's firm is not serving on the actual District Committee Panel convened to interview the applicant.

Supreme Court Rules Concerning the State Bar of Michigan relating to admission to the bar provide for a Standing Committee on Character and Fitness consisting of active members of the State Bar appointed annually by the State Bar President and District Committees consisting of active members of the bar in each commissioner election district appointed by the State Bar commissioners within the respective districts. The Standing Committee consists of 18 members.

The Standing Committee is required to investigate and make recommendations regarding the character and fitness of every applicant for admission to the bar by examination. The Standing Committee may refer an applicant to the appropriate District Committee for a personal interview when the state bar staff's investigation of an applicant's past conduct discloses significant adverse factual information. The personal interview is not an adversarial procedure and the District Committee members' role is not adjudicatory.

District Committees vary in size and typically conduct business in panels of no less than three members;[1] District Committee Panels function independently of one another in conducting applicant interviews.[2] Upon completion of an interview, a panel submits its report and recommendation on behalf of the District Committee directly to the Standing Committee for whatever action it deems appropriate.

On receipt of a District Committee report and recommendation, the Standing Committee must endorse the recommendation, take the recommendation under advisement pending receipt of additional information it deems necessary, remand the recommendation to the District Committee with instructions for further proceedings, or reject the recommendation and conduct a hearing de novo.[3] When the Standing Committee endorses a report and recommendation of the District Committee that an applicant is unfit for admission to the bar, the applicant is provided a copy of the report and recommendation and advised of the right to timely request a formal hearing before the Standing Committee.[4] If a formal hearing is timely requested, it is scheduled before the Standing Committee.[5] If no timely request is made, the report and recommendation are filed by the Standing Committee with the Board of Law Examiners ("Board").[6] Once a formal hearing has taken place, the Standing Committee's report and recommendation are filed with the Board of Law Examiners.[7] The applicant is entitled to review by the Board of any report and recommendation filed with the Board concluding that the applicant does not have the character and fitness requisite for admission.[8] Every applicant has the right to be represented by counsel at any stage of the character and fitness process.[9] All District Committee and Standing Committee reports and recommendations are strictly confidential[10] and do not establish a precedent applicable to other applicants.

Michigan Rule of Professional Conduct (MRPC) 1.10 addresses the subject of imputed disqualification. The general rule is that, when one member of a firm is disqualified from representing a particular client, other members of the firm are likewise disqualified from undertaking that representation unless a proper waiver is obtained.

MRPC 1.10(a) states:

(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, 1.8(c) or 2.2.

MRPC 1.10(d) states that disqualification under 1.10(a) may be waived by the affected client if the conditions of MRPC 1.7 are met.

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. 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.

Informal Opinion RI-194 concluded that the representation of a client before a District Committee Panel was an "inexorable conflict," citing Opinion CI-241 (an informal opinion interpreting Michigan's former Code of Professional Conduct). In Opinion CI-241, the Professional Ethics Committee opined that, in the context of a law firm representing individuals before a city governmental body on which a firm member sat, "[t]here is additionally the concern that where the individual pursuing relief before the city council or subordinate body feels aggrieved by the governmental decision, there exists the possibility of litigation between that person and the city creating an inexorable conflict."

The "inexorable conflict" approach is grounded in the reasonable potential for litigation. Given the structure of the application process where the District Committee Panel solely makes recommendations and does not adjudicate the applicant's character and fitness, there is no reasonable possibility of litigation against a District Committee Panel. Accordingly, Opinion RI-194's application of an "inexorable conflict" rule was not appropriate as applied to the District Committee Panel circumstance.

In Informal Opinion RI-194, the Ethics Committee noted that the Standing Committee must conduct a hearing de novo if it endorses the District Committee's recommendation that the applicant is unfit for admission to the Bar.[11] Citing this circumstance, Informal Opinion RI-194 concluded that "a disinterested lawyer could not reasonably conclude that a lawyer/member's representation of a private client with respect to matters involving character and fitness would not be materially affected by the lawyer's public responsibilities as a [Standing C]ommittee member."

Informal Opinion RI-194 then concluded: "A lawyer/member of a District Committee is likewise prohibited from representing applicants for admission to the bar because of the conflict between private interests and public trust." Opinion RI-194 reasoned that the conflict was nonwaivable, citing the fear that, if the lawyer/members of District Committee are allowed to represent private clients in character and fitness matters, "there is the likelihood that the favorable outcome of an investigation in one matter may be regarded as a form of professional courtesy in exchange for similar treatment in another matter."

Opinion R-13 (a formal opinion interpreting the Michigan Rules of Professional Conduct approved by the Board of Commissioners) addresses the issue of a lawyer performing both prosecutor and defense functions in the same geographical area. Opinion R-13 notes a number of prior opinions issued under the former Code of Professional Responsibility (among them C-225, C-193, C-212 and CI-887) that prohibited similar conduct because of a fear that "professional courtesy" would be extended in other matters by other nearby prosecutors. In reviewing this analysis in light of the then newly adopted MRPC, Opinion R-13 concluded: "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." Opinion R-13 further noted that the MRPC did not adopt the controversial concept of "appearance of impropriety" which had been incorporated as part of the former Code. Finally, Opinion R-13 concluded: "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.

Because Informal Opinion RI-194 (issued almost 3 years after Opinion R-13) expressly relied upon the unsupported concept of "professional courtesy" and implicitly relied upon the disfavored concept of "an appearance of impropriety" in determining that representation at the District Committee Panel stage was per se improper, that portion of the opinion is superseded.

It is the opinion of this Ethics Committee that, so long as the conditions of MRPC 1.7 are met, it is not per se unethical for any partner, shareholder, employee, or other associate of a law firm to represent a private client in character and fitness proceedings when another lawyer in the same law firm is a member of a District Committee. See MRPC 1.10(a) and (d).

Finally, Informal Opinion RI-194 cited MRPC 8.4(d) which provides that is improper to "state or imply an ability to influence improperly a governmental agency or official." The opinion reasoned, "If a lawyer/member of a District Committee were allowed to represent private clients with respect to character and fitness matters, there is an implication that the lawyer could influence the outcome of the case."

While this Committee agrees that MRPC 8.4(d) applies in the context of representation before a District Committee panel, the mere offer of representation cannot properly be considered an attempt to "imply" an ability to "influence improperly" the outcome of a District Committee panel interview. Absent an affirmative statement and/or an intention to imply an improper influence, MRPC 8.4(d) is not violated.

The Committee notes that, while there is no per se prohibition against any partner, shareholder, employee, or other associate of a law firm representing a private client in character and fitness proceedings when another lawyer in the same law firm is a member of a District Committee but not serving on the particular District Committee Panel convened to interview the applicant, the Standing Committee is authorized pursuant to Rule 15, Section 1(19), of the Rules Concerning the State Bar of Michigan, to adopt rules of procedure governing proceedings before district committees and standing committees not inconsistent with those Rules. The Committee expresses no opinion about a District or Standing Committee member's duty to either disqualify herself or to raise an issue of disqualification where a member of the Committee member's law firm represents an applicant.

In every application not recommended favorably by State Bar staff, the Standing Committee on Character and Fitness plays a role, and any committee member could be called upon to participate in the Standing Committee's deliberations or proceedings. For that reason, members of the Standing Committee are themselves disqualified from representing applicants in character and fitness proceedings because a lawyer who is a Standing Committee member cannot reasonably believe that the representation of an applicant will not be adversely affected by the lawyer's responsibilities to a "third person" in the form of the State Bar, whose interests the Standing Committee represents, or by the lawyer's own interests in performing her duties as a Standing Committee member. MRPC 1.7(b)(1). Consistent with RI-194 in this respect only, the Committee reaffirms that, because a Standing Committee member would be disqualified from representing applicants in character and fitness proceedings under MRPC 1.7(b)(1), members of the Standing Committee member's law firm would likewise be disqualified from representing applicants in character and fitness proceedings by MRPC 1.10(a).

[1] Currently, approximately 150 active members of the State Bar of Michigan volunteer for service on a District Committee.

[2] According to the 2009-2010 Standing Committee report, District Committees conducted interviews of 65 applicants for the July, 2009, examination.

[3] Rule 15, Section 1(5)(d), of the Rules Concerning the State Bar of Michigan

[4] Rule 15, Section 1(5)(f), of the Rules Concerning the State Bar of Michigan

[5] Ibid.

[6] Ibid.

[7] Rule 15, Section 1(7), of the Rules Concerning the State Bar of Michigan

[8] Rule 15, Section 1(20), of the Rules Concerning the State Bar of Michigan

[9] Rule 15, Section 1(6), of the Rules Concerning the State Bar of Michigan

[10] Rule 15, Section 1(7), of the Rules Concerning the State Bar of Michigan, and Rule 6, contained within Section (E) of the State Bar of Michigan Standing Committee on Character and Fitness Rules of Procedure, which provides in pertinent part:

All papers and materials filed or obtained and all proceedings before the District or Standing Committee are confidential in nature and are absolutely privileged from disclosure by the Standing or District Committee or its staff, including former members and employees, in any other matter, including but not limited to civil, criminal, legislative, or administrative proceedings. All the Committee's investigative files and Committee-generated documents are likewise confidential and privileged from disclosure.

[11] To be complete, a de novo hearing before a Standing Committee only occurs in those circumstances if the applicant timely requests a formal hearing. Rule 15, Section 1, paragraph (f), of the Rules Concerning the State Bar of Michigan.