## Facts

- Nine Detroit police officers were named as defendants (with the City) in separate civil suits alleging police misconduct.
- City law allowed the corporation counsel, upon request, to represent city officers or employees in proceedings involving “official duties,” but excluded conduct involving willful misconduct or lack of good faith.
- In practice, the city council determined whether an officer would receive representation; the law department represented the officer unless and until an adverse council determination was made.
- The collective-bargaining agreement provided that an adverse council determination was subject to arbitration and required representation to continue at least until arbitration concluded.
- The officers sought declaratory relief on the City’s obligation to provide counsel and whether ethics rules barred the law department from (1) representing both the City and the officers in the civil suits and (2) advising the council on whether representation should be denied or discontinued.
- The trial court declared that (a) a conflict arises when the council denies representation and the officer challenges that decision in arbitration, requiring the City to pay for independent counsel then, and (b) no conflict exists before an adverse determination.
- The officers appealed; the City did not cross-appeal.

## Issues

1. Whether ethical conflict rules permit the city law department to represent both the City and sued officers while also advising the city council on whether to deny or discontinue representation.
2. Whether any conflict arises only after a council denial and arbitration challenge, or whether it can arise earlier when the law department’s advice to the council becomes adverse to officers it is defending.
3. Whether attorney ethics rules may be used to interpret and define the City’s representation obligations under municipal law and the collective-bargaining agreement in a declaratory-judgment action.

## Decision

- The Michigan Court of Appeals affirmed in part and reversed in part.
- The court treated the ethics rules as governing standards for municipal attorneys and as relevant to construing the City’s duty to provide counsel, not as an independent basis for damages or direct enforcement.
- The court agreed that when an actual conflict exists, the City must provide (and pay for) independent counsel for the officers.
- The court rejected the trial court’s bright-line timing rule that no conflict exists until after an adverse council determination and arbitration; conflicts may arise earlier when the law department’s responsibilities to the City require positions materially adverse to officers it is representing.

## Legal Principles

- A municipality’s obligation to provide a defense to employees for acts within the scope of “official duties” must be carried out through conflict-free representation consistent with attorney ethics rules.
- Dual representation of a city and its employees in litigation is not automatically impermissible, but it becomes improper when the lawyer’s duties to one client are directly adverse to, or materially limit duties to, the other.
- If the city law department must advise or advocate to decisionmakers on terminating or denying representation to employees it is defending, the resulting adversity can trigger a conflict requiring independent counsel at municipal expense.
- Declaratory relief may be used to determine the municipality’s representation obligations under local law and a collective-bargaining framework, construed consistently with governing standards of professional conduct.

## Conclusion

The court held that the City’s duty to provide counsel to officers for good-faith acts within official duties must be performed consistently with conflict-of-interest rules; when the law department’s concurrent representation and advisory roles create adversity, the City must fund independent counsel, and such conflicts can arise before a formal denial of representation and arbitration.


Barkley v. City of Detroit, 204 Mich. App. 194, 514 N.W.2d 242 (Mich. Ct. App. 1994)