Can a lawyer who serves on a bar disciplinary body, or that lawyer's firm, defend another attorney against a disciplinary complaint?

Plain-English summary

The Committee addressed whether a lawyer who serves on the Committee on Professional Responsibility, the Executive Committee, the Board of Bar Commissioners, or a Complaint Tribunal, or a member of such a lawyer's firm, may represent another attorney against a disciplinary complaint. The opinion describes each body's role under the Rules of Discipline: the Board controls the General Counsel who prosecutes complaints and sets the Bar's positions; the Executive Committee acts for the Board between meetings; the Committee on Professional Responsibility decides whether complaints are dismissed, investigated, or prosecuted; and Complaint Tribunals hear and decide formal complaints. Each is a disciplinary agent of the court.

The opinion concludes that members of the Board, Executive Committee, and Committee on Professional Responsibility are subject to Rules 1.7(b) and 8.4(d). Their responsibility to the Bar and Court as disciplinary agents materially limits their ability to represent an accused attorney, a conflict analogous to a lawyer-director of a hospital who could not sue the hospital (citing Berry v. Saline Memorial Hospital). The opinion concludes this conflict cannot be waived, because a disinterested lawyer would not advise the client to consent given the need to maintain the integrity of the disciplinary process, and that allowing such representation would be prejudicial to the administration of justice under Rule 8.4(d) (citing Opinions 38 and 87 and Erwin M. Jennings Co. v. DiGenova on confidence in the integrity of justice).

The opinion concludes that under Rule 1.10(a) the prohibition extends to members of these lawyers' firms, though it does not prevent a firm member from representing a fellow member of the same firm. It concludes Rule 1.11 (successive government and private employment) does not apply because the situation is a concurrent conflict, not a transfer of employment. For Complaint Tribunal members, the opinion applies Rule 1.12 (former adjudicative officers), which bars representing anyone in a matter in which the lawyer participated personally and substantially as an adjudicative officer absent consent, and allows the firm to avoid imputation through screening under Rule 1.12(c), because a neutral does not have access to a party's confidential information; it notes such members must also consider the Code of Judicial Conduct, which is beyond the Committee's scope. A note records that the Board amended the opinion to remove the prohibition as applied to the Ethics Committee, which has no role in disciplinary actions.

In practice

Under this opinion, a lawyer who sits on the Board of Bar Commissioners, the Executive Committee, or the Committee on Professional Responsibility may not defend another lawyer in a disciplinary matter, and the disqualification is imputed to the lawyer's firm under Rule 1.10. The opinion treats this as a non-waivable conflict. For a Complaint Tribunal member, the opinion applies Rule 1.12 instead, which bars the member's own such representation but lets the firm cure imputation through screening; tribunal members must also weigh their obligations under the Code of Judicial Conduct.

Common questions

Q: Can a Board of Bar Commissioners member defend another lawyer in a discipline case?

A: The opinion concludes no; the member's responsibility to the Bar and Court as a disciplinary agent materially limits the representation under Rule 1.7(b), and allowing it would be prejudicial to the administration of justice under Rule 8.4(d).

Q: Can the member's law firm take the case instead?

A: Per the opinion, no; under Rule 1.10(a) the prohibition extends to the member's firm, except that a firm member may represent a fellow member of the same firm.

Q: Does the same rule apply to Complaint Tribunal members?

A: The opinion applies Rule 1.12 to tribunal members: the member may not represent anyone in a matter in which the member participated as an adjudicative officer absent consent, but the firm can avoid imputation through screening under Rule 1.12(c).

Background and rules framework

The opinion applies Mississippi Rules of Professional Conduct 1.7(b) (conflict from responsibilities to a third person), 8.4(d) (conduct prejudicial to the administration of justice), 1.10(a) (imputed disqualification), and 1.12 (former adjudicative officers and screening), and reads them against the Rules of Discipline defining the bodies' roles. These correspond to the same-numbered Model Rules.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 1.7(b) (conflict; responsibilities to a third person) (cf. Model Rule 1.7)
• MRPC 8.4(d) (conduct prejudicial to the administration of justice) (cf. Model Rule 8.4)
• MRPC 1.10(a) (imputed disqualification) (cf. Model Rule 1.10)
• MRPC 1.12 (former adjudicative officer; 1.12(c) screening) (cf. Model Rule 1.12)

Other authority:

• Mississippi Rules of Discipline, Rules 3, 7, 8; The Mississippi Bar Bylaws, Article III.

Cases:

• Berry v. Saline Memorial Hospital, 907 S.W.2d 736 (Ark. 1995), lawyer-director's fiduciary conflict.
• Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 141 A. 866 (1928), integrity of the administration of justice.

Other opinions cited:

• Mississippi Ethics Opinions Nos. 38 and 87 (judge and prosecutor conflicts).

See also

• MS Bar Ethics Op. 217: Assistance Committee Conflicts
• MS Bar Ethics Op. 204: Lawyer Ordered to Sue Own Client
• MS Bar Ethics Op. 220: Suing a Former Law Partner

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/201/
• Original PDF: https://www.msbar.org/media/3498/et-op-201-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 201

OF THE MISSISSIPPI BAR

RENDERED June 12, 1992

AMENDED April 06, 2013

CONFLICT OF INTEREST -- BAR ASSOCIATION COMMITTEES : 1) It is improper for an attorney who is a member of the Committee on Professional Responsibility, the Executive Committee, the Board of Bar Commissioners, or a Complaint Tribunal to represent an attorney, other than himself, against a disciplinary complaint. 2) It is improper for a member of a firm with which an attorney who is a member of the Committee on Professional Responsibility, the Executive Committee, or the Board of Bar Commissioners, is associated, to represent an attorney, other than himself, against a disciplinary complaint.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on the following question:

May an attorney who is a member of the Committee on Professional Responsibility or a member of the Executive Committee or a member of the Board of Bar Commissioners or a member of a Complaint Tribunal represent an attorney, other than himself, against a disciplinary complaint or may a member of that attorney's firm represent an attorney, other than himself, against a disciplinary complaint?

In order to answer this question, one must first determine what each entity does in relation to disciplinary complaints. The Bylaws of The Mississippi Bar and the Rules of Discipline for the Mississippi State Bar (“MRD”) as adopted by the Supreme Court of Mississippi, described the duties of the entities in question insofar as disciplinary complaints are concerned. First, the Court has designated each of these entities as a disciplinary agent of the court. See Rule 3, MRD.

Board of Bar Commissioners (“Board”)—The Board hires and controls the salary of the Bar's General Counsel, who is charged with investigating and prosecuting disciplinary complaints. The Board has also been designated as a special master of the Supreme Court of Mississippi in all disciplinary matters and decides what position the Bar shall take on disciplinary matters including whether the Bar should accept an offer of settlement from an accused attorney; when the Bar shall appeal a Complaint Tribunal's decision whether the Bar will oppose a Petition for Reinstatement filed by a
suspended or disbarred attorney. See Rule 3, MRD; See also The Mississippi Bar Bylaws, Article III (July 18, 2009).

Executive Committee--The Executive Committee is composed of the President, Vice-President/President-Elect, Second Vice-President, Past President, President of Young Lawyers Division, and two Bar Commissioners. All of these officers are members of the Board of Bar Commissioners. (It should be noted, of course, that the President is the one who makes all committee appointments and that the President-Elect will make all committee appointments when he assumes the Presidency.) The Executive Committee acts for the Board between Board meetings, including decisions regarding disciplinary matters. See The Mississippi Bar Bylaws, Article III, 3-6 (July 18, 2009).

Committee on Professional Responsibility--The Committee on Professional Responsibility determines whether a disciplinary complaint shall be dismissed; investigated further; prosecuted as a Formal Complaint; or treated as a minor violation which should be handled by a letter of admonition, private reprimand or public reprimand. See Rule 7, MRD.

Complaint Tribunal—Complaint Tribunals are appointed by the Supreme Court of Mississippi. Each tribunal is composed of a presiding judge and two practicing attorneys. The Tribunals hear and decide all formal disciplinary complaints including what punishment, if any, is warranted. See Rule 8, MRD

All of these entities have direct control over disciplinary matters, at one stage or another.

Members of the Board of Bar Commissioners, the Executive Committee, and the Committee on Professional Responsibility are confronted with the prohibitions of Rules 1.7 and 8.4 of the Mississippi Rules of Professional Conduct (“MRPC”). Rule 1.7 (b) states a lawyer shall not represent a client if the representation may be materially limited by the lawyer’s responsibility to a third person. In this scenario, the lawyer’s responsibility to the Bar and the Court as its disciplinary agent materially limits his or her ability to represent an accused attorney in a disciplinary matter. The situation is analogous to the lawyer who is a member of a hospital’s board of directors. The lawyer owes the hospital a fiduciary duty not to take any action that conflicts with that duty, such a filing suit on behalf of a private client. See Berry v. Saline Memorial Hospital, 907 S.W.2d 736, 739 (Ark. 1995). The court in Berry explained that the lawyer’s fiduciary relationship to the hospital created an impermissible conflict under ABA Model Rule 1.7(b) and disqualified the lawyer and his law firm. Id.

While Rule 1.7(b) does provide a mechanism for waiving conflict, if a disinterest lawyer would not conclude that the client should agree to the representation the circumstances, then the lawyer cannot properly ask the client to waive the conflict. See Cmt. MRPC 1.7. The need to maintain the integrity of the disciplinary process presents just such a conflict that cannot be waived. Rule 8.4(d), MRPC provides it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

The Committee is of the opinion that it is prejudicial to the administration of the disciplinary process for attorneys who have authority over various stages of the disciplinary process to represent other attorneys against disciplinary complaints.

The situations are analogous to the situations considered by the Ethics Committee in Opinion Nos. 38 and 87. In these opinions, the Ethics Committee has determined; that a city judge may not defend cases in the same municipal court before another judge and that a city prosecutor's partner may not defend a criminal case filed in municipal court even if the case is transferred to county court; The guiding light in all of these cases was stated in Erwin M. Jennings Co. v. DiGenova:

Integrity is the very breath of justice. Confidence in our law, our courts, and in the administration of justice is our supreme interest. No practice must be permitted to prevail which invites toward the administration of justice a doubt or distrust of its integrity.

107 Conn. 491, 499, 141 A. 866, 868 (1928).

The Ethics Committee is of the opinion that confidence in the disciplinary system of the Bar cannot be maintained if the attorneys who have authority over various stages of the disciplinary process are allowed to represent other attorneys in the process.

Furthermore, under Rule 1.10(a), this prohibition of representing private clients in disciplinary proceedings extends to members of the same firms with which these attorneys are associated. The integrity of the system demands no less. However, the concern expressed regarding the representation of private clients is not present when a member of the Board or Committee member’s law firm represents fellow member of their own firm.

Rule 1.11, MRPC, dealing with successive government and private employment is inapplicable to the question posed. This rule and its comment anticipate a “transfer of employment” and is intended to resolve conflicts between the new employer and former clients. It is not intended to address concurrent conflicts that arise when serving in a volunteer capacity on an agency’s governing board while also engaged in private practice. Further, the comment to ABA Model Rule 1.11 makes clear that a lawyer currently serving as a public officer is still subject to the prohibition of concurrent conflicts of interest as stated in Rule 1.7.

Members of the Complaint Tribunals are faced with a slightly different quandary. Rule 1.12, MRPC, addresses conflicts that may arise for judges and other adjudicative officers who are also engaged in private practice. Rule 1.12(a) provides that a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, unless all parties to the proceeding give informed consent. Rule 1.12(c) states this disqualification will be imputed to the lawyer’s firm if certain screening steps are not taken. The basis for allowing a screening mechanism in this rule, that is not present in Rule 1.10 is that a third party neutral does not have access to confidential information of either party that would be protected under Rule 1.6, MRPC. However, the lawyer acting as a Complaint Tribunal member must also consider his or her obligations under the Code of Judicial Conduct, including the lawyer’s obligation to promote public confidence in the integrity and impartiality of the judiciary. Interpretation of the Code of Judicial Conduct is beyond the scope of this Committee.

*Note: The Board of Bar Commissioners amended the opinion to remove the prohibition as it applied to the Ethics Committee given that the Ethics Committee has no role or direct control over disciplinary actions.