The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6802

June 17, 1994

LEGISLATURE:

Legislator accepting assignments from a probate court to represent indigent persons in civil commitment proceedings

A member of the Legislature, who is also an attorney admitted to practice law in Michigan, may accept assignments from a probate court to represent indigent persons in civil commitment proceedings.

Honorable Kirk A. Profit

State Representative

The Capitol

Lansing, Michigan

You have asked if a member of the Legislature, who is also an attorney admitted to practice law in Michigan, may accept assignments from a probate court to represent indigent persons in civil commitment proceedings.

In addressing your question, we must first examine the relevant provisions of the 1963 Michigan Constitution that contain limitations on the conduct of state legislators. In Const1963, art 3, Sec. 2, dealing with separation of powers, the people have provided:

The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.

In Const1963, art 4, Sec. 8, which covers holding other public positions, the people have provided:

No person holding any office, employment or position under the United States or this state or a political subdivision thereof, except notaries public and members of the armed forces reserve, may be a member of either house of the legislature.

Const1963, art 4, Sec. 9, limits the conduct of state legislators as follows:

No person elected to the legislature shall receive any civil appointment within this state from the governor, except notaries public, from the legislature, or from any other state authority, during the term for which he is elected.

Const1963, art 4, Sec. 10, deals with contracts between legislators and the state and its political subdivisions as follows:

No member of the legislature nor any state officer shall be interested directly or indirectly in any contract with the state or any political subdivision thereof which shall cause a substantial conflict of interest. The legislature shall further implement this provision by appropriate legislation.

Next, we must consider if this appointment of a state legislator by a probate court results in a violation of any of these constitutional provisions. Section 454(2) and (5) of the Mental Health Code, 1974 PA 258, MCL 330.1454(2) and (5); MSA 14.800(454)(2) and (5), empower a probate court to appoint counsel to represent an unrepresented person who is the subject of a civil commitment petition and, if that person is indigent, "the court shall compensate appointed counsel from court funds."

The probate court is a part of the one court of justice in Michigan under Const1963, art 6, Sec. 1. Frederick v Presque Isle County Circuit Judge, 439 Mich 1, 15; 476 NW2d 142 (1991). The court is, therefore, a state court. OAG, 1963-1964, No 4169, p 121, 123 (June 17, 1963).

OAG, 1965-1966, No 4522, p 239 (March 16, 1966), considered whether an attorney, as an officer of the court, may serve as a legislator without violating the state constitution. After reviewing the relevant authorities, the opinion stated:

Upon analysis of the foregoing court pronouncements I find nothing to indicate that an attorney, because he is designated as an officer of the court, is thereby exercising the powers of the judicial branch of state government. His responsibility to the court as an attorney to abide by the rules of the court and to conduct his professional relationship with his clients and with the court in an ethical manner does not require the exercise of any part of the judicial power.

OAG, 1965-1966, No 4522, pp 242-243.

Based upon that analysis, the opinion concluded that an attorney could serve as a state legislator without violating Const 1963, art 3, Sec. 2, or art 4, Secs. 8, 9 and 10.

Those conclusions are equally applicable here even though the attorney is paid by the court. The attorney's duty is still to represent his client under the MRPC 1.3. The probate court does not control the attorney in carrying out his court assignment anymore than the probate court would control the same attorney if the attorney were before the same court representing a fee-paying client. Payment of the attorney by the probate court does not result in the attorney exercising any part of the judicial power. The payment does not result in the attorney becoming either an officer or employee of the judicial branch of state government. Payment for attorney services by the probate court rather than by a fee-paying client does not change the result reached in OAG, 1965-1966, No 4522, supra. See also, Letter Opinion of the Attorney General (Representative Joseph Palamara, January 21, 1987), which concluded that a state legislator may work for or be a partner in a law firm that has a contract to do legal work for a city.

Under Const1963, art 3, Sec. 2, there is no violation of the separation of powers doctrine since the legislator, as a court appointed attorney, is not exercising any judicial power.

Under Const1963, art 4, Sec. 8, the legislator, by virtue of his probate court appointment, does not occupy any office, employment or position in the judicial branch of state government.

Under Const1963, art 4, Sec. 9, the legislator has not received any civil appointment since the legislator does not hold any office in the judicial branch of state government.

Under Const1963, art 4, Sec. 10, assuming arguendo that this arrangement with the probate court constitutes a contract, it would not constitute a substantial conflict of interest because it is not with the Legislature. OAG, 1983-1984, No 6151, p 110 (May 12, 1983). But a legislator who, pursuant to probate court appointment, will be paid with probate court funds must disclose that fact when voting upon any appropriations for probate courts. OAG, 1987-1988, No 6468, p 197 (September 29, 1987), and Letter Opinion of the Attorney General (Representative Joseph Palamara, January 21, 1987), at p 4.

It is my opinion, therefore, that a member of the Legislature, who is also an attorney admitted to practice law in Michigan, may accept assignments from a probate court to represent indigent persons in civil commitment proceedings.

Frank J. Kelley

Attorney General