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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CONCERNED PASTORS FOR SOCIAL
ACTION, MELISSA MAYS, AMERICAN
CIVIL LIBERTIES UNION OF MICHIGAN,
and NATURAL RESOURCES DEFENSE
COUNCIL, INC.,
Plaintiffs,
Case Number 16-10277
Honorable David M. Lawson

v.
NICK A. KHOURI, FREDERICK HEADEN,
MICHAEL A. TOWNSEND, DAVID
MCGHEE, MICHAEL A. FINNEY,
BEVERLY WALKER-GRIFFEA, NATASHA
HENDERSON, and CITY OF FLINT,
Defendants.
_______________________________________/

OPINION AND ORDER DENYING MOTION BY ATTORNEY GENERAL

BILL SCHUETTE TO FILE AMICUS CURIAE BRIEF
Michigan attorney general Bill Schuette has filed a motion for leave to file a friend of the
court brief addressing a pending motion to dissolve a preliminary injunction. The Court had entered
the preliminary injunction on November 10, 2017 ordering the State defendants (the Michigan state
treasurer and the members of the Flint Receivership Transition Advisory Board (RTAP)) and the
Flint defendants (the City of Flint and its city administrator) to ensure that Flint residents had
properly installed and maintained faucet water filters, and, failing that, to deliver bottled water to
households. The State defendants and the Flint defendants have moved to dissolve the injunction
on several grounds.

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General Schuettes motion is problematic for several reasons. First, he cites as authority for
filing the motion a Michigan statute that authorizes the attorney general, when requested by the
governor, a branch of the legislature, or on his own initiative, to appear for the people of the
state in a court case in which the people of this state may be . . . interested. Mich. Comp. Laws
14.28. The problem with relying on that statute is that the attorney general, in the persons of
assistant attorneys general Michael Murphy, Richard Kuhl, and others, has already appeared in this
case on behalf of the state defendants. Second, General Schuettes proposed friend of the court brief
takes a position diametrically opposed to that advanced by his other deputies and assistants.
Allowing him to do so likely would create an ethical conflict that could delay the ultimate
disposition of this case, because it would raise the specter of disqualification of his entire office from
participating on behalf of any party in the case. See People v. Doyle, 159 Mich. App. 632, 406
N.W.2d 893 (1987). Third, the proposed brief does not raise any arguments that have not been
addressed by the parties presently before the Court. Fourth, there is a technical fault with the
motion, as it violates Rule 11 of the Courts electronic filing rules. The Court finds no good reason
to permit the filing.
I.
In the motion to dissolve the injunction filed by the attorney generals office on behalf of the
state defendants, those parties argue that the Court should vacate its preliminary injunction because
there are no ongoing violations of the monitoring or treatment requirements of the Safe Drinking
Water Act (SDWA), and they repeat their argument that delivery of bottled water will harm the Flint
water system recovery by slowing the distribution of orthophosphate in the service lines. The
proposed friend of the court brief that the same attorney general wants to file urges the Court to

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maintain the injunction in place, because the Flint water system still is in violation of the SDWAs
Lead and Copper Rule, and distribution of bottled water is necessary to protect the Flint residents.
These arguments parrot many of the points already made by the plaintiffs on this record. And they
are obviously adverse to the State defendants position.
A well-known and fundamental tenet of attorney ethics states that [a] lawyer shall not
represent a client if the representation of that client will be directly adverse to another client. Mich
R. Prof. Cond. 1.7(a). There are exceptions to this rule, such as when the lawyer reasonably
believes the representation will not adversely affect the relationship with the other client, or when
each client consents after consultation. Ibid. Neither applies here.
As the attorney general, Mr. Schuette has the duty to to prosecute and defend all suits
relating to matters connected with the various departments of state, including, as in this case, the
treasurer or the auditor general. Mich. Comp. Laws Ann. 14.29. Discharging that duty, the
attorney general appeared on behalf of the State defendants the state treasurer and the members
of the RTAB to defend the present lawsuit. As part of that defense, the attorney general opposed
the plaintiffs motion for a preliminary injunction, and after it was granted, filed a notice of appeal,
and moved to stay the injunction in this Court and the court of appeals. After both stay motions
were denied, the attorney general moved in this Court to dissolve the injunction.
It is that very motion the one to dissolve the preliminary injunction that Mr. Schuette
seeks to address with his friend of the court brief. And in that brief he wants to advocate a position
that is directly adverse to that taken by his clients the State defendants who brought the
motion to dissolve the injunction. It is true that an assistant different than Michael Murphy is the
one who wants to file the friend of the court brief, and that it came from the attorney generals

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office of special counsel, but that does not matter. Another well-known tenet of attorney ethics
states that [w]hile lawyers are associated in a firm, none of them shall knowingly represent a client
when any one of them practicing alone would be prohibited from doing so by Rule[] 1.7. Mich R.
Prof. Cond. 1.10(a).
The reference to a firm in Rule 1.10(a) is not limited to private law firms. Under the
Michigan ethics rules, a government law department is treated as a single firm. Barkley v. City of
Detroit, 204 Mich. App. 194, 208, 514 N.W.2d 242, 248 (1994) (referencing Rule 1.10(a), and
stating that [w]hile government lawyers are not mentioned in the rule, it appears that, at least in
some circumstances, this rule applies to them); see also State of Bar Mich. Standing Comm. on
Profl Ethics, Informal Op. RI-43 (1990) (stating that a prosecutors office does constitute a firm
for the purposes of these Rules). That principle applies with special force when the conflict
originates with a government lawyer in a supervisory capacity, such as Mr. Schuette. See Doyle,
159 Mich. App. at 645, 406 N.W.2d at 899.
It is also noteworthy, perhaps, that the motion for leave to file the friend of the court brief
was filed by the attorney generals office of special counsel. Although the status of that office is
not readily apparent, it is clear that the lawyers assigned to it report directly to the attorney general.
They are not independent special assistant attorney[s] general, a position recognized by the state
legislature. See Mich. Comp. Laws 333.16237(2). The important feature of the latter position is
that [o]nce appointed, an independent special assistant attorney general is not subject to the control
and direction of the Attorney General. Attorney Gen. v. Michigan Pub. Serv. Commn, 243 Mich.
App. 487, 491, 625 N.W.2d 16, 20 (2000).

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It is beyond debate that the rules of professional conduct do apply to the office of attorney
general. Id. at 516, 625 N.W.2d at 33; see also People v. Waterstone, 486 Mich. 942, 942, 783
N.W.2d 314 (2010) (order) (recognizing that the Attorney General is subject to the rules of
professional conduct). Several courts have recognized that state attorneys general occasionally are
called upon to represent different divisions of government in the same action, and such dual
representation is not necessarily conflict-provoking. See Attorney Gen. at 509-16, 625 N.W.2d at
29-33 (collecting cases). However, the rules do recognize a clear conflict of interest when the
Attorney General acts as a party litigant in opposition to an agency or department that she also
represents in the same cause of action. Id. at 516, 625 N.W.2d at 33.
It is not clear who it is that Mr. Scheutte purports to represent through his friend of the court
filing. It may be the people of this state, see Mich. Comp. Laws 14.28, or it may be himself.
It is clear that he seeks to appear in his own name and office. He has, of course, no official stake
in the matter (except, of course, arising from his duty to represent the State defendants), although
perhaps he has a personal one. Either way, there is an obvious conflict, and if it is the latter, the
conflict is more egregious, as he means to take a position adverse to his clients in the same lawsuit
while advancing his own, personal position.
II.
In addition to the actual conflict, the proposed filing creates a positional conflict. As a
general matter, a positional conflict may arise when a lawyers advocacy of a legal position in one
case could have negative consequences for a second client in an unrelated matter. ABA/BNA Laws.
Man. on Prof. Conduct 51:117. Positional conflicts also are prohibited by Rule 1.7(a), see ABA
Model R. Prof. Cond. 1.7(a) cmt. 24 (noting that a conflict of interest exists when there is a

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significant risk that a lawyers action on behalf of one client will materially limit the lawyers
effectiveness in representing another client in a different case.), and by Rule 1.7(b) (which prohibits
a lawyer from representing a client where the representation of that client may be materially limited
by . . . the lawyers own interests . . . unless: (1) the lawyer reasonably believes the representation
will not be adversely affected; and (2) the client consents after consultation.). The general rule is
that a lawyer ordinarily may take inconsistent legal positions in different courts at different times,
but that a conflict is presented when there is a substantial risk that a lawyers action in one case will
materially and adversely affect another client in a different case. ABA/BNA Laws. Man. on Prof.
Conduct 51:118 (quoting Restatement (Third) of the Law Governing Lawyers) 128, cmt. f
(2000)).
Here, the positions taken by the attorney general manifestly are inconsistent, and the
positional circumstances are aggravated because he has asserted them in the same case.
III.
The conflict introduced in this case by General Schuette potentially presents new
complications. The State defendants understandably may have reason to doubt the loyalty they
have a right to expect from their attorneys. See Barkley, 204 Mich. App. at 204, 514 N.W.2d at 246
(reaffirming the fundament that [a]n attorney owes undivided allegiance to a client and usually may
not represent parties on both sides of a dispute) (citing Olitkowski v. St. Casimirs Savings & Loan
Assn, 302 Mich. 303, 309-10, 325-26, 4 N.W.2d 664, 668 (1942)); CenTra, Inc. v. Estrin, 538 F.3d
402, 413 (6th Cir. 2008) (stating that Rule 1.7(a) has particular salience when the attorney is
representing both sides in the same conflict). That discomfiture has been exhibited in this case by

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the State defendants filing, which withdraws their initial concurrence in the motion for leave to file
a friend of the court brief.
General Schuettes filing may be a cause for angst among the Flint defendants as well. The
Michigan Supreme Court has held that the Attorney General has broad authority to sue and settle
with regard to matters of state interest, including the power to settle such litigation with binding
effect on Michigans political subdivisions. In re Certified Question from U.S. Dist. Court for E.
Dist. of Michigan, 465 Mich. 537, 546-47, 638 N.W.2d 409, 414 (2002) (emphasis added). The
proposed friend of the court brief is opposed to Flints position on the pending motion.
Normally, when a lawyer is burdened with a conflict of interest, the lawyer is removed from
the law suit. Mich R. Prof. Cond. 1.7(a); Natl Union Fire Ins. Co. of Pittsburgh, Pa. v. Alticor,
Inc., 472 F.3d 436, 439 (6th Cir. 2007) (on reh). Under Rule 1.10(a), that sanction may extend to
an entire firm. Barkley, 204 Mich App 194; 514 NW2d 242 (1994). And when the attorney
concerned in the conflict of interest has supervisory authority over other attorneys in the office, or
has policy-making authority, then recusal of the entire office is likely to be necessary. Doyle, 159
Mich. App. at 645, 406 N.W.2d at 899.
Removal of the entire attorney generals office from representing its clients in this case
would be disruptive and cause substantial delay. Outside counsel would have to be retained (at
considerable expense), and they would have to familiarize themselves with the complex legal,
technical, and health issues that this lawsuit presents.
Such delay is not in the interest of the parties before the Court. The State defendants, in the
person of Michigans Governor, recently contacted the Court with a request to appoint a mediator,
with the intention of exploring practical solutions to this water crisis that would be in the mutual

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interests of all the parties, and expedite a resolution that will address the welfare of Flints citizens.
The Court agreed and appointed a mediator.
Of course, if the attorney general wants to weigh in with a sensible resolution, he has the
authority to do so. Michigans highest court has observed: It is said that the Attorney General may
control and manage all litigation in behalf of the state and is empowered to make any disposition
of the states litigation which [the Attorney General] deems for its best interests. In re Certified
Question, 465 Mich. at 546-47, 638 N.W.2d at 414. However, as this Court noted in its injunction
ruling, addressing the citizens best interests requires a careful balancing of the safety, human, and
budgetary interests and concerns that the parties have legitimately identified and have been
struggling with throughout this litigation. Superficial posturing does not contribute to the search for
an equitable solution.
It is not clear that the conflict created by General Schuettes filing is a bell that is easily
unrung. The answer to that question may have to await another day, and the parties before the Court
no doubt may want to address the question. Denying the motion for leave to file the friend of the
court brief, however, is a good first step.
There are other remedies available for dealing with a conflict of interest. In addition to
disqualification, Barkley, 204 Mich. App. at 208-09, 514 N.W.2d at 248, an attorney may be liable
for damages in a malpractice action, Lipton v. Boesky, 110 Mich. App. 589, 598, 313 N.W.2d 163,
167 (1981) (holding that a violation of the Code [of Professional Responsibility] is rebuttable
evidence of malpractice) (citing Zeni v. Anderson, 397 Mich. 117, 129, 243 N.W.2d 270 (1976)),
and disciplinary actions by the Attorney Grievance Commission have been upheld by the Michigan
Supreme Court, In re Estes, 392 Mich. 645, 651, 221 N.W.2d 322, 324 (1974) (Although named

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and appointed coexecutor of the estate, respondent represented a client whose claim was contrary
to the provisions of the will and was antithetical to the best interests of the estate and beneficiaries.
This is a self-evident basis for discipline.). Once again, though, those actions are beyond the
purview of the present motion.
IV.
As noted earlier, the arguments advanced in the proposed friend of the court brief are not
novel, and they have been addressed in the plaintiffs filings and the Courts prior orders. The most
that can be said of the proposed brief is that it outlines the attorney generals personal position.
However, as demonstrated above, that causes more problems than it solves. Advance consideration
of the utility of such a filing would have been prudent.
V.
There also is a technical problem with General Schuettes motion. He originally docketed
his motion as an amicus brief, although no leave has been granted to allow that filing as such.
And he appended a proposed order to the filing. Counsel is obliged to be aware of and follow the
CM/ECF procedures. Proposed orders must be submitted to the judge to whom the case is assigned
. . . via the link located under the Utilities section of CM/ECF. E.D. Mich. Electronic Filing
Policies and Procedures R11(a). If a proposed order is accepted, the Court will then docket it with
the judges electronic signature. Proposed orders should never be e-filed and docketed by a party.
The motion will be denied, therefore, for the additional reason that it fails to comply with the
electronic filing policies and procedures.

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VI.
The proposed amicus brief has not introduced any new arguments or offered a perspective
that has not been presented by the parties already. Instead, the attorney general has taken a position
aligned with the plaintiffs and at odds with other attorneys in his own office. In doing so, he has
managed to inject a troubling ethical issue into this lawsuit, potentially complicating adjudication
of the serious legal questions before the Court, without adding anything of substance.
Accordingly, the motion by attorney general Bill Schuette for leave to file a friend of the
court brief [dkt. #136] is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: January 23, 2017

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 23, 2017.
s/Susan Pinkowski
SUSAN PINKOWSKI

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