Can a prosecutor whose office also serves as county corporation counsel sue two county commissioners for holding incompatible offices?

Plain-English summary

A prosecuting attorney concluded, based on an Attorney General's opinion, that two county commissioners held incompatible offices (one also an elected township official, the other a city councilperson, each with contracts between the county and the other unit). Under MCL 15.184, only the Attorney General or the prosecuting attorney may seek a circuit court remedy, and the Attorney General was unlikely to act. Because the prosecutor's office also serves as the county's general corporation counsel and had rendered legal services to the board of commissioners, the prosecutor asked whether ethical constraints precluded the prosecutor, or the whole office, from bringing the action.

The Committee acknowledged MRPC 1.7 generally bars representation directly adverse to another client or materially limited by duties to another client or the lawyer's own interests, but concluded MRPC 1.13(a) controls: a lawyer who represents an organization represents the entity, "as distinct from its directors, officers, employees, members, shareholders, or other constituents." It concluded that even assuming any potential conflict arose from the corporation-counsel role, there was no MRPC 1.7 conflict because the county itself, not the individual commissioners, was the client, and no facts showed a personal-interest conflict under MRPC 1.7(b). The prosecutor could therefore bring the enforcement action, and because the prosecutor was not disqualified, there was no imputed disqualification of the assistant prosecutors under MRPC 1.10(a).

The Committee noted that MRPC 1.13(b) reinforces that the lawyer represents the organization distinct from any board member's personal interests, and outlines measures a lawyer may take when a constituent acts against the organization's interest. It concluded the prosecutor could, before litigating, seek the voluntary cooperation of the two commissioners, enlist the other board members to appeal to them, or discuss the matter with counsel retained by the affected commissioners.

Currency note

This opinion was issued in 1991 and interprets the Michigan Rules of Professional Conduct as they then stood. MRPC 1.7, 1.10, and 1.13 have since been amended, and the cited statutes may have been revised. Later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules and statutes before relying on any specific rule, statute, or requirement mentioned here.

Common questions

Q: Is it a conflict for a prosecutor who serves as county counsel to sue county commissioners?

A: No. The opinion concluded there is no MRPC 1.7 conflict because the prosecutor's client as corporation counsel is the county entity, not the individual commissioners, under MRPC 1.13(a).

Q: If the prosecutor is not conflicted, are the assistant prosecutors disqualified?

A: No. The opinion concluded that because the prosecutor was not disqualified, there is no imputed disqualification of the assistant prosecutors under MRPC 1.10(a).

Q: What can the prosecutor do before filing the lawsuit?

A: The opinion concluded the prosecutor may seek the commissioners' voluntary cooperation, enlist the rest of the board to appeal to them, or discuss the matter with counsel retained by the affected commissioners, consistent with MRPC 1.13(b).

Background and rules framework

The opinion interpreted MRPC 1.7 / Model Rule 1.7 (concurrent conflicts), MRPC 1.13 / Model Rule 1.13 (the organization as client, and the lawyer's options when a constituent acts against the organization), and MRPC 1.10(a) / Model Rule 1.10 (imputed disqualification), in the context of a prosecutor's statutory enforcement authority under Michigan's incompatible-offices statute.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / MRPC 1.7 (concurrent conflicts of interest)
• MR 1.13 / MRPC 1.13(a), (b) (the organization as client; measures regarding a constituent)
• MR 1.10 / MRPC 1.10(a) (imputed disqualification)

Statutes:

• MCL 15.184 (incompatible-offices statute; enforcement by the Attorney General or prosecuting attorney)

See also

• ABA Formal Op. 91-361: Representing a Partnership
• Mich Ethics Op. RI-95: Suing a Former Client

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=982&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

RI-112

December 31, 1991

SYLLABUS

A prosecuting attorney is not ethically prohibited from enforcing the incompatible offices statute against two of the county's commissioners, notwithstanding that the prosecuting attorney's office serves as general corporation counsel for the county.

Referenced: MRPC 1.7, 1.13.

TEXT

A prosecuting attorney has concluded from a recent Attorney General's Opinion that two of the county's commissioners hold incompatible offices. One commissioner is also an elected township official; two contracts exist between the county and that township. The second commissioner is also a city councilperson; one contract exists between the county and that municipality.

The enforcement section of the incompatible offices statute, MCL 15.184, provided that either the Attorney General or the prosecuting attorney may seek a circuit court remedy for a violation of the incompatible offices statute. No other mechanism of enforcement is provided in the statute. The prosecuting attorney has been told that the Attorney General's office is unlikely to pursue enforcement action in this matter. Because the prosecuting attorney's office serves as general corporation counsel for the county, and in this capacity has rendered legal services to the county board of commissioners, the prosecuting attorney asks:

• Is the prosecuting attorney personally precluded by ethical constraints from pursuing the circuit court action; and

• If so, is the entire prosecuting attorney's office also disqualified from pursuing this matter.

MRPC 1.7 generally prohibits a lawyer from representing one client if the representation will be directly adverse to another client, or if that representation may be materially limited by the lawyer's responsibilities to another client or third person, or by the lawyer's own interests. However, MRPC 1.13(a) unequivocally states that when a lawyer is employed or retained to represent an organization, the lawyer represents the entity "as distinct from its directors, officers, employees, members, shareholders, or other constituents." Even if it is assumed that any potential conflict arises from the prosecuting attorney's role as county corporation counsel in civil matters (as distinct from the prosecuting attorney's general duty as a minister of justice and advocate for the people in criminal matters), it is clear that there is no conflict of interest within the meaning of MRPC 1.7 because the county itself, not the individual commissioners, is the "client" of corporation counsel. Furthermore, no facts are presented in this inquiry to indicate that the prosecuting attorney's personal interests create a conflict within the meaning of MRPC 1.7(b).

Accordingly, the prosecuting attorney may bring the circuit court action to enforce the incompatible offices statute. Since the prosecuting attorney is not disqualified, there is no imputed disqualification of the assistant prosecutors in this matter. See MRPC 1.10(a).

In reinforcing the fact that the prosecuting attorney represents the organization as distinct from the personal interests of any member of the board, MRPC 1.13(b) suggests:

"(b) If a lawyer for an organization knows that an officer, employee, or other person associated with the organization is engaged in action, intends to act, or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization, and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others:

"(1) asking reconsideration of the matter;

"(2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and

"(3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law."

Thus, in an effort to seek resolution of the matter before litigation is undertaken, the prosecuting attorney may seek voluntary cooperation of the two commissioners with incompatible offices, may seek cooperation and assistance from the remaining members of the board of commissioners to appeal to the commissioners with incompatible offices, or may discuss the matter with legal counsel retained by the commissioners with incompatible offices for the matter.