Author: LegalEase Solutions

QUESTION PRESENTED

Whether a lawyer can enter a limited appearance on behalf of a party in his or her official capacity and not personal capacity?

SHORT ANSWER

Yes, a lawyer can limit his scope to represent a client only in the client’s official capacity and not in his or her personal capacity. However, such representation requires the informed consent of the client after divulging the potential risk involved.

RESEARCH FINDINGS 

“Ethical rules involving attorneys practicing in the federal courts are ultimately questions of federal law.   The federal courts, however, are entitled to look to the state rules of professional conduct for guidance.” El Camino Res., Ltd. v. Huntington Nat. Bank, 623 F. Supp. 2d 863, 876 (W.D. Mich. 2007). See also In re Snyder, 472 U.S. 634, 645 n. 6 (1985); National Union Fire Ins. Co. of Pittsburgh, Pa. v. Alticor, Inc., 466 F.3d 456, 457–58 (6th Cir.2006) (vacated in part on other grounds, 472 F.3d 436 (6th Cir.2007)) (applying Michigan Rules of Professional Conduct). “The district judges of this court have determined that the ethical obligations of attorneys practicing before it will generally be governed by Michigan Rules of Professional Responsibility.” Id. See W.D. Mich. Lcivr 83.1(j); City of Kalamazoo v. Michigan Disposal Serv. Corp., 125 F.Supp.2d 219, 231 (W.D.Mich.2000).

The Michigan Rules of Professional Conduct states that “[a] lawyer may limit the objectives of the representation if the client consents after consultation.” Mich. R. Prof’l Conduct 1.2(b). However, in cases of conflict of interest, the Rules of Professional Conduct states as follows:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

(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.

Mich. R. Prof’l Conduct 1.7.

The Sixth Circuit held that “‘it is a well-established ethical principle that an attorney owes undivided allegiance to a client and usually may not represent parties on both sides of a dispute.’” CenTra, Inc. v. Estrin, 538 F.3d 402, 413 (6th Cir. 2008) (quoting Evans & Luptak, PLC v. Lizza, 251 Mich. App. 187, 197, 650 N.W.2d 364, 370 (2002)).

The Michigan Rules of Professional Conduct permits conflicting representations, “when the client consents after consultation.” Mich. R. Prof’l Conduct 1.7.(a)(2). The CenTra Court discussed the meaning of above phrase, after noting that though not identical it is similar to the “informed consent” mentioned in ABA Model Rules:

While Michigan’s language is not identical to the Restatement or the ABA Model Rules, the two national models bear significant similarity to Michigan’s rules and give context to Michigan’s standards. The Restatement advises:

(1) A lawyer may represent a client notwithstanding a conflict of interest prohibited by § 121 if each affected client or former client gives informed consent to the lawyer’s representation. Informed consent requires that the client or former client have reasonably adequate information about the material risks of such representation to that client or the former client.

(2) Notwithstanding the informed consent of each affected client or former client, a lawyer may not represent a client if:

(a) the representation is prohibited by law;

(b) one client will assert a claim against the other in the same litigation; or

(c) in the circumstances it is not reasonably likely that the lawyer will be able to provide adequate representation to one or more of the clients.

Restatement § 122. The ABA Model Rules also provide similar guidance for attorneys:

Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the *415 same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

ABA Model Rules, Rule 1.7(b). Although the three systems have some semantic variations, they are all similar in one important respect: Michigan requires “consent[ ] after consultation,” and the ABA Model Rules and the Restatement require “informed consent.” Although the ABA sets the bar even higher by requiring that consent be written, the common denominator for all three is the idea of consultation (informing) before consent.

This similarity between “informed consent” and “consent[ ] after consultation” is important because we could find little that elaborates upon what satisfies “consent[ ] after consultation” under Michigan law. In contrast, the Restatement and the ABA Model Rules provide more guidance. The Restatement requires that attorneys inform their clients of the nature of the conflict so that the clients are “aware of the material respects in which the representation could have adverse effects on the interests of that client.” Restatement § 122 cmt. c(i). According to the Restatement, what is “material” may change with the circumstances. For instance, a client already represented by a disinterested attorney may require less information from the conflicted attorney, but the client “nevertheless may have need of information adequate to reveal [the conflict’s] scope and severity.” Id. Under the ABA Model Rules, a conflicted attorney does not need to disclose “facts or implications already known to the client or other person; nevertheless, a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid.” ABA Model Rules, Rule 1.0 cmt. 6. Thus, providing to the client anything less than full information runs the risk that the client is inadequately informed, thereby making any consent invalid.

CenTra, Inc. v. Estrin, 538 F.3d 402, 414-15 (6th Cir. 2008).

Thus, a lawyer may represent a client for a limited purpose when the consent of the client is obtained after the lawyer communicates the pros and cons of such conflicting representation.

In § 1983 suits, where claims against a public official in both his official and individual capacities create a potential for conflicting defenses, the court warned “that there is a ‘need for sensitivity to the risk of conflict’ . . . and that the judge and the parties have joint responsibility to guard interests that are actually threatened.” Gordon v. Norman, 788 F.2d 1194, 1199 (6th Cir. 1986) (quoting Coleman v. Frierson, 607 F. Supp. 1566, 1572 (N.D. Ill. 1985)).

The Tenth Circuit discussed “the potential conflict between the defenses available to a government official sued in his individual and official capacities, we have admonished that separate representation for the official in his two capacities is a wise precaution.” Johnson v. Bd. of Cnty. Comm’rs for Cnty. of Fremont, 85 F.3d 489, 493 (10th Cir. 1996). The Johnson Court went on to “hold that when a potential conflict exists because of the different defenses available to a government official sued in his official and individual capacities, it is permissible, but not required, for the official to have separate counsel for his two capacities.” Id. (citing See Silva v. Witschen, 19 F.3d 725, 732 (1st Cir.1994); Richmond Hilton Assocs. v. City of Richmond, 690 F.2d 1086, 1089 (4th Cir.1982); Clay v. Doherty, 608 F.Supp. 295, 303 (N.D.Ill.1985).

“Obviously, if the potential conflict matures into an actual material conflict, separate representation would be required.” Id. (citing Dunton v. Suffolk Cnty., State of N.Y., 729 F.2d 903, 907-08 (2d Cir.) amended, 748 F.2d 69 (2d Cir. 1984). Thus, “imminent threat of a serious conflict” warrants a separate representation. See Dunton, 729 F.2d at 907.

CONCLUSION

Based on the foregoing, it would appear that separate representation is both permitted under the Michigan Rules of Professional Conduct (which the court may, and likely will, look to for guidance) and a widely accepted practice in the federal courts.  Therefore, there would appear to be little or no grounds on which to contest such limited representation.