1.3Attorney Conduct1
“A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Preamble to the Michigan Rules of Professional Conduct. “Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.” Id. “Every lawyer is responsible for observance of the Rules of Professional Conduct[, and a] lawyer should also aid in securing their observance by other lawyers.” Id. “Neglect of these responsibilities compromises the independence of the profession and public interest in which it serves. Id.
An attorney is responsible for aiding the administration of justice. An attorney has a duty to uphold the legal process and act in conformity with standards imposed on members of the bar. These standards include the rules of professional responsibility and judicial conduct adopted by the Michigan Supreme Court. MCR 9.103(A). Grounds for discipline are set forth in MCR 9.104.
The authority to supervise and discipline Michigan attorneys derives from the state constitution and rests with the Michigan Supreme Court. Schlossberg v State Bar Grievance Bd, 388 Mich 389, 395 (1972). This constitutional responsibility is discharged, in turn, by the Attorney Grievance Commission (acting as the Supreme Court’s prosecution arm) and the Attorney Discipline Board (acting as the Supreme Court’s adjudicative arm). MCR 9.100 et seq.
“Michigan has a long tradition of judicial oversight of the ethical conduct of its court officers.” Evans & Luptak, PLC v Lizza, 251 Mich App 187, 194 (2002). All Michigan judges have an “independent responsibility to supervise the ethical conduct of . . . court officers[.]” Attorney Gen v Michigan Pub Svc Comm, 243 Mich App 487, 492 (2000). This tradition is reflected in the Michigan Code of Judicial Conduct. Code of Judicial Conduct, 3(B)(3) provides that “[a] judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.” Judges, as well as lawyers, are obliged by the MRPC to report attorney misconduct. Grievance Administrator v Fieger, 476 Mich 231, 240-241 (2006); MRPC 8.3.
B.Motion to Disqualify Attorney
Although not specifically addressed by court rule, caselaw suggests that the court has the authority to consider a motion to disqualify counsel. Rymal v Baergen, 262 Mich App 274, 316-322 (2004); Evans & Luptak, 251 Mich App at 193-203. Typically, a motion to disqualify is based on an alleged conflict of interest. See MRPC 1.7 (General Rule), MRPC 1.8 (Prohibited Transactions), and MRPC 1.9 (Former Client). Another potential ground for disqualification may arise if the lawyer is a potential witness. MRPC 3.7. However, MRPC 3.7 does not prohibit “a lawyer from appearing as attorney of record in a case in which the lawyer is a party and is representing themselves.” MRPC 3.7(c). A conflict of interest exists where “the prosecutor has a personal, financial, or emotional interest in the litigation or a personal relationship with the accused.” People v Mayhew, 236 Mich App 112, 126-127 (1999). A conflict of interest also exists where the prosecutor becomes privy to confidential information while in an attorney-client relationship. People v Herrick, 216 Mich App 594, 599 (1996).
“Once a defendant has shown that a member of the prosecutor’s office counseled him or represented him in the same or related matter, a presumption arises that members of the prosecutor’s office have conferred about the matter.” People v Skippergosh, ___ Mich App ___, ___ (2024) (cleaned up). “To rebut the presumption of shared confidences, the prosecutor must show that effective screening procedures have been used to isolate the defendant’s former counsel from the prosecution of the substantially related criminal charges.” Id. at ___. “To determine whether two proceedings are substantially related, the question is whether the same or inextricably related facts, circumstances or legal questions are at issue in both proceedings, not whether both charges are for the same criminal offense, or both offenses involve guns, drugs, or other specific facts.” Id. at ___ (cleaned up). “The simplest form of this analysis may be framed as whether the current prosecution is predicated on the prior representation. The analysis also must provide an extra measure of protection to the criminal defendant and inquire whether a relationship exists between the legal issues involved in the pertinent cases.” Id. at ___ (quotation marks and citation omitted).
In Skippergosh, the Court of Appeals rejected the defendant’s argument that there was a conflict of interest because a member of the prosecutor’s office represented him in a domestic-violence case involving a different victim where, in the case at issue, no evidence of the previous domestic-violence matter was introduced. Id. at ___. “[W]hile the two cases were superficially similar, they did not involve overlapping legal issues or facts, beyond the fact that [defendant] was accused of committing domestic violence in both cases.” Id. at ___. “[B]ecause the two domestic-violence cases were not ‘substantially related,’ trial counsel was not ineffective for failing to move for an evidentiary hearing, particularly where the parties and the trial court were aware of the previous attorney-client relationship between [an attorney in the prosecutor’s office] and [defendant], and the matter was discussed and resolved on the record.” Id. at ___ (noting that defendant failed to show or allege that the prosecutor “shared any confidential information with the prosecutor’s office to prejudice his case”).
Whether a conflict of interest exists is a question of fact that is reviewed for clear error. Avink v SMG, 282 Mich App 110, 116 (2009). The application of “ethical norms” to a decision whether to disqualify counsel is reviewed de novo. Id.
1 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 1, for information related to ineffective assistance of counsel.