Michigan: Attorney General Disqualified for Representing a Judge in a Conflict of Interest Case

Link for Opinion: http://scholar.google.com/scholar_case?case=3957021689359029401&q=rules+of+professional+conduct&hl=en&as_sdt=80000004&as_ylo=2010

In People v. Waterstone, 486 Mich. 942, 783 N.W.2d 314 (2010), the court of appeals directed the Attorney General to withdraw from prosecution of the case because of a conflict of interest under Michigan Rules of Professional Conduct 1.9 and 1.10. In this case, the Attorney General brought a felony complaint against Circuit Court Judge Waterstone, alleging that she knowingly permitted witnesses to commit perjury during a criminal trial. One of the two defendants from that criminal trial had earlier filed a federal civil rights suit against the judge and others. The Attorney General’s office assigned an assistant Attorney General from the Public Employment, Elections and Tort Division to defend the judge in the civil action, which was eventually dismissed. The Wayne County Prosecutor withdrew from prosecution of individuals allegedly involved in the perjury because of a conflict of interest, and eventually the Attorney General agreed to prosecute the cases.

The Court of Appeals held that because the prosecuting attorney learned confidential information during representation of the judge in the civil action and was then asked to investigate an alleged crime by that former client. In this case, the Attorney General’s office was a “firm” under Michigan Rules of Professional Conduct 1.10. This means that the Attorney General’s office should have conducted a conflict check before getting involved with the case. Even though the assistant Attorney General involved in the prosecution did not have actual knowledge of the Attorney General’s former representation of the judge, the court held that “prosecution of a judge is unusual, and knowledge of the potential federal case against the judge could be inferred under the circumstances.” Because a simple conflict check would have revealed the federal lawsuit, the Attorney General should have obtained the consent of the former client before taking the case. Further, the Attorney General’s failure to disclose the conflict prejudiced the judge, because it was reasonable for the judge to believe that the Attorney General was still representing her when an investigator from the Attorney General’s office interviewed her in connection with the perjury claims. Because of the conflict of interest, the court directed the Attorney General to withdraw from prosecuting the judge in the criminal matter.