Ethics Opinions

ETHICS OPINION NO. 201
OF THE MISSISSIPPI BAR

RENDERED Friday, June 12, 1992

AMENDED JUNE 25, 2009*

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, the Board of Bar Commissioners, or a Complaint Tribunal 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.

According to the By-laws of The Mississippi Bar, the entities in question have the following duties insofar as disciplinary complaints are concerned:

Committee on Professional Responsibility--The CPR determines whether a disciplinary complaint shall be dismissed; investigated further; prosecuted as a Formal Complaint; or treated as minor violation which should be handled by a letter of admonition. Ethics Committee--Recommends standards of professional ethics and renders opinions, formal and informal, on what constitutes unethical conduct.

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.)

Board of Bar Commissioners--Besides hiring and controlling the salary of the Bar's General Counsel, who is charged with investigating and prosecuting disciplinary complaints, the Board of Bar Commissioners has been designated as a special master of the Supreme Court in all disciplinary matters, decides what position the Bar shall take on disciplinary matters; decides when the Bar shall appeal a Complaint Tribunal's decision; and decides whether the Bar will oppose a Petition for Reinstatement filed by a suspended or disbarred attorney. The Board also must approve all formal interpretative opinions rendered by the Ethics Committee before the opinions may be binding.

Complaint Tribunal--This group hears and decides all formal disciplinary complaints and decides what punishment, if any, is warranted.

All of these committees have direct control over disciplinary actions, at one stage or another.

Members of the Committee on Professional Responsibility, the Executive Committee, the Board of Bar Commissioners, and the Complaint Tribunal are confronted with the prohibitions of Rules 1.7, 1.11 and 8.4 of the Mississippi Rules of Professional Conduct. Rule 1.11 (a), in pertinent part, is particularly instructive:

Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation.

Similarly, Rule 8.4(d) 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. 30, 38, 54, 58, 87, and 118. In these opinions, the Ethics Committee

has determined that a lawyer whose partner is county prosecutor may not defend criminal defendants in an adjoining county; that a city judge may not defend cases in his city court before another judge; that a city prosecutor's partner may not sue the city; that a city attorney's partner may not sue a city employee for a tort committed within the scope of the employee's employment; that a city prosecutor's partner may not defend a criminal case filed in City court even if the case is transferred to County court; and that a city judge may not accept a civil case that is in any way connected to a criminal case which appeared before the city judge.

The guiding light in all of these cases was stated inErwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141 A. 866, 868 (1928), and quoted in Opinion No. 30:

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." (Emphasis supplied)

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 extends to members of the same firms with which these attorneys are associated. The integrity of the system demands no less.

*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.