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Michigan Rules of Professional Conduct
Table of Contents
RULE 1.0. SCOPE AND APPLICABILITY ............................................................. 4
Rule 1.0. Scope and Applicability of Rules and Commentary ............................. 4
RULES 1.1–1.17. CLIENT-LAWYER RELATIONSHIP ......................................... 9
Rule 1.1. Competence. ........................................................................................... 9
Rule 1.2. Scope of Representation. ...................................................................... 11
Rule 1.3. Diligence. .............................................................................................. 13
Rule 1.4. Communication. ................................................................................... 14
Rule 1.5. Fees. ...................................................................................................... 15
Rule 1.6. Confidentiality of Information. ............................................................ 18
Rule 1.7. Conflict of Interest: General Rule. ...................................................... 23
Rule 1.8. Conflict of Interest: Prohibited Transactions. .................................... 27
Rule 1.9. Conflict of Interest: Former Client. ..................................................... 31
Rule 1.10. Imputed Disqualification: General Rule. .......................................... 34
Rule 1.11. Successive Government and Private Employment. .......................... 36
Rule 1.12. Former Judge or Arbitrator. .............................................................. 39
Rule 1.13. Organization as Client. ...................................................................... 39
Rule 1.14. Client Under a Disability. ................................................................. 43
Rule 1.15. Safekeeping Property. ........................................................................ 45
Rule 1.15A. Trust Account Overdraft Notification. ........................................... 48
Rule 1.16. Declining or Terminating Representation. ....................................... 50
Rule 1.17. Sale of a Law Practice. ....................................................................... 52
Rule 1.18. Duties to Prospective Client. ............................................................. 56
Rule 1.19. Lawyer-Client Representation Agreements: Arbitration Provisions
............................................................................................................................... 58
RULES 2.1–2.4. COUNSELOR. ............................................................................. 59
Rule 2.1. Advisor. ................................................................................................. 59
Rule 2.2. Intermediary. ....................................................................................... 60
Rule 2.3. Evaluation for Use by Third Persons. ................................................. 62
Rule 2.4. Lawyer Serving as Third-Party Neutral. ............................................ 64
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RULES 3.1–3.9. ADVOCATE. ................................................................................ 65
Rule 3.1. Meritorious Claims and Contentions. ................................................. 65
Rule 3.2. Expediting Litigation. .......................................................................... 66
Rule 3.3. Candor Toward the Tribunal. .............................................................. 66
Rule 3.4. Fairness to Opposing Party and Counsel. ........................................... 70
Rule 3.5. Impartiality and Decorum of the Tribunal. ........................................ 71
Rule 3.6. Trial Publicity. ..................................................................................... 72
Rule 3.7. Lawyer as Witness. .............................................................................. 74
Rule 3.8. Special Responsibilities of a Prosecutor. ............................................. 75
Rule 3.9. Advocate in Nonadjudicative Proceedings. ......................................... 77
RULES 4.1–4.4. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS.
................................................................................................................................... 77
Rule 4.1. Truthfulness in Statements to Others. ............................................... 77
Rule 4.2. Communication With a Person Represented by Counsel. .................. 78
Rule 4.3. Dealing With a Self-Represented Person. ........................................... 79
Rule 4.4. Respect for Rights of Third Persons. ................................................... 80
RULES 5.1–5.6. LAW FIRMS AND ASSOCIATIONS. ......................................... 80
Rule 5.1. Responsibilities of a Partner or Supervisory Lawyer. ........................ 80
Rule 5.2. Responsibilities of a Subordinate Lawyer. .......................................... 81
Rule 5.3. Responsibilities Regarding Nonlawyer Assistants. ............................ 82
Rule 5.4. Professional Independence of a Lawyer. ............................................. 83
Rule 5.5. Unauthorized Practice of Law; Multijurisdictional Practice of Law. 84
Rule 5.6. Restrictions on Right to Practice. ........................................................ 89
Rule 5.7. Responsibilities Regarding Law-Related Services. ............................ 89
RULES 6.1–6.6. PUBLIC SERVICE. ..................................................................... 92
Rule 6.1. Pro Bono Publico Service. .................................................................... 92
Rule 6.2. Accepting Appointments. ..................................................................... 92
Rule 6.3. Legal Services Organizations and Lawyer Referral Services. ........... 93
Rule 6.4. Law Reform Activities Affecting Client Interests. ............................. 96
Rule 6.5. Professional Conduct. .......................................................................... 96
Rule 6.6. Nonprofit and Court-Annexed Limited Legal Services Programs. .... 97
RULES 7.1–7.5. INFORMATION ABOUT LEGAL SERVICES. .......................... 99
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Rule 7.1. Communications Concerning a Lawyer’s Services. ............................ 99
Rule 7.2. Advertising. .......................................................................................... 99
Rule 7.3. Solicitation. ........................................................................................ 101
Rule 7.4. Communication of Fields of Practice. ................................................ 102
Rule 7.5. Firm Names and Letterheads. .......................................................... 103
RULES 8.1–8.5. MAINTAINING THE INTEGRITY OF THE PROFESSION. . 103
Rule 8.1. Bar Admission and Disciplinary Matters. ........................................ 103
Rule 8.2. Judicial and Legal Officials. .............................................................. 104
Rule 8.3. Reporting Professional Misconduct. .................................................. 105
Rule 8.4. Misconduct. ........................................................................................ 106
Rule 8.5. Disciplinary Authority; Choice of Law. ............................................. 107
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MICHIGAN RULES OF PROFESSIONAL CONDUCT
RULE 1.0. SCOPE AND APPLICABILITY
Rule 1.0. Scope and Applicability of Rules and Commentary
(a) These are the Michigan Rules of Professional Conduct. The form of citation for
this rule is MRPC 1.0.
(b) Failure to comply with an obligation or prohibition imposed by a rule is a basis
for invoking the disciplinary process. The rules do not, however, give rise to a cause
of action for enforcement of a rule or for damages caused by failure to comply with
an obligation or prohibition imposed by a rule. In a civil or criminal action, the
admissibility of the Rules of Professional Conduct is governed by the Michigan
Rules of Evidence and other provisions of law.
(c) The text of each rule is authoritative. The comment that accompanies each rule
does not expand or limit the scope of the obligations, prohibitions, and counsel
found in the text of the rule.
Comment:
The rules and comments were largely drawn from the American Bar Association’s
Model Rules of Professional Conduct. Prior to submission of those Model Rules to
the Michigan Supreme Court, the State Bar of Michigan made minor changes in the
rules and the comments to conform them to Michigan law and preferred practice.
The Supreme Court then adopted the rules, with such substantive changes as
appeared proper to the Court. Additional changes in the comments were then made
by staff to conform the comments to the rules as adopted by the Supreme Court.
The Supreme Court has authorized publication of the comments as an aid to the
reader, but the rules alone comprise the Supreme Court’s authoritative statement of
a lawyer’s ethical obligations.
Preamble: A Lawyer’s Responsibilities
This preamble is part of the comment to Rule 1.0, and provides a general
introduction to the Rules of Professional Conduct.
A lawyer is a representative of clients, an officer of the legal system and a public
citizen having special responsibility for the quality of justice.
As a representative of clients, a lawyer performs various functions. As advisor, a
lawyer provides a client with an informed understanding of the client’s legal rights
and obligations and explains their practical implications. As advocate, a lawyer
zealously asserts the client’s position under the rules of the adversary system. As
negotiator, a lawyer seeks a result advantageous to the client but consistent with
requirements of honest dealing with others. As intermediary between clients, a
lawyer seeks to reconcile their divergent interests as an advisor and, to a limited
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extent, as a spokesperson for each client. A lawyer acts as evaluator by examining
a client’s legal affairs and reporting about them to the client or to others.
In all professional functions a lawyer should be competent, prompt and diligent. A
lawyer should maintain communication with a client concerning the representation.
A lawyer should keep in confidence information relating to representation of a client
except so far as disclosure is required or permitted by the Rules of Professional
Conduct or other law.
A lawyer’s conduct should conform to the requirements of the law, both in
professional service to clients and in the lawyer’s business and personal affairs. A
lawyer should use the law’s procedures only for legitimate purposes and not to
harass or intimidate others. A lawyer should demonstrate respect for the legal
system and for those who serve it, including judges, other lawyers and public
officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of
official action, it is also a lawyer’s duty to uphold legal process.
As a public citizen, a lawyer should seek improvement of the law, the
administration of justice and the quality of service rendered by the legal profession.
As a member of a learned profession, a lawyer should cultivate knowledge of the law
beyond its use for clients, employ that knowledge in reform of the law and work to
strengthen legal education. A lawyer should be mindful of deficiencies in the
administration of justice and of the fact that the poor, and sometimes persons who
are not poor, cannot afford adequate legal assistance, and should therefore devote
professional time and civic influence in their behalf. A lawyer should aid the legal
profession in pursuing these objectives and should help the bar regulate itself in the
public interest.
Many of a lawyer’s professional responsibilities are prescribed in the Rules of
Professional Conduct, as well as substantive and procedural law. However, a
lawyer is also guided by personal conscience and the approbation of professional
peers. A lawyer should strive to attain the highest level of skill, to improve the law
and the legal profession and to exemplify the legal profession’s ideals of public
service.
A lawyer’s responsibilities as a representative of clients, an officer of the legal
system, and a public citizen are usually harmonious. Thus, when an opposing party
is well represented, a lawyer can be a zealous advocate on behalf of a client and at
the same time assume that justice is being done. So also, a lawyer can be sure that
preserving client confidences ordinarily serves the public interest because people
are more likely to seek legal advice, and thereby heed their legal obligations, when
they know their communications will be private.
In the nature of law practice, however, conflicting responsibilities are encountered.
Virtually all difficult ethical problems arise from conflict between a lawyer’s
responsibilities to clients, to the legal system, and to the lawyer’s own interest in
remaining an upright person while earning a satisfactory living. The Rules of
Professional Conduct prescribe terms for resolving such conflicts. Within the
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framework of these rules many difficult issues of professional discretion can arise.
Such issues must be resolved through the exercise of sensitive professional and
moral judgment guided by the basic principles underlying the rules.
The legal profession is largely self-governing. Although other professions also have
been granted powers of self-government, the legal profession is unique in this
respect because of the close relationship between the profession and the processes of
government and law enforcement. This connection is manifested in the fact that
ultimate authority over the legal profession is vested largely in the courts.
To the extent that lawyers meet the obligations of their professional calling, the
occasion for government regulation is obviated. Self-regulation also helps maintain
the legal profession’s independence from government domination. An independent
legal profession is an important force in preserving government under law, for
abuse of legal authority is more readily challenged by a profession whose members
are not dependent on government for the right to practice.
The legal profession’s relative autonomy carries with it special responsibilities of
self-government. The profession has a responsibility to assure that its regulations
are conceived in the public interest and not in furtherance of parochial or self-
interested concerns of the bar. Every lawyer is responsible for observance of the
Rules of Professional Conduct. A lawyer should also aid in securing their
observance by other lawyers. Neglect of these responsibilities compromises the
independence of the profession and the public interest which it serves.
Lawyers play a vital role in the preservation of society. The fulfillment of this role
requires an understanding by lawyers of their relationship to our legal system. The
Rules of Professional Conduct, when properly applied, serve to define that
relationship.
Scope
The Rules of Professional Conduct are rules of reason. They should be interpreted
with reference to the purposes of legal representation and of the law itself. Some of
the rules are imperatives, cast in the terms “shall” or “shall not.” These define
proper conduct for purposes of professional discipline. Others, generally cast in the
term “may,” are permissive and define areas under the rules in which the lawyer
has professional discretion. No disciplinary action should be taken when the lawyer
acts or chooses not to act within the bounds of such discretion. Other rules define
the nature of relationships between the lawyer and others. The rules are thus
partly obligatory and disciplinary and partly constitutive and descriptive in that
they define a lawyer’s professional role. Many of the comments use the term
“should.” Comments do not add obligations to the rules, but provide guidance for
practicing in compliance with the rules.
The rules presuppose a larger legal context shaping the lawyer’s role. That context
includes court rules and statutes relating to matters of licensure, laws defining
specific obligations of lawyers, and substantive and procedural law in general.
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Compliance with the rules, as with all law in an open society, depends primarily
upon understanding and voluntary compliance, secondarily upon reinforcement by
peer and public opinion, and finally, when necessary, upon enforcement through
disciplinary proceedings. The rules do not, however, exhaust the moral and ethical
considerations that should inform a lawyer, for no worthwhile human activity can
be completely defined by legal rules. The rules simply provide a framework for the
ethical practice of law.
Furthermore, for purposes of determining the lawyer’s authority and responsibility,
principles of substantive law external to these rules determine whether a client-
lawyer relationship exists. Most of the duties flowing from the client-lawyer
relationship attach only after the client has requested the lawyer to render legal
services and the lawyer has agreed to do so. But there are some duties, such as that
of confidentiality under Rule 1.6, that may attach when the lawyer agrees to
consider whether a client-lawyer relationship shall be established. Whether a
client-lawyer relationship exists for any specific purpose can depend on the
circumstances and may be a question of fact.
Under various legal provisions, including constitutional, statutory and common-law,
the responsibilities of government lawyers may include authority concerning legal
matters that ordinarily reposes in the client in private client-lawyer relationships.
For example, a lawyer for a government agency may have authority on behalf of the
government to decide upon settlement or whether to appeal from an adverse
judgment. Such authority in various respects is generally vested in the attorney
general and the prosecuting attorney in state government, and their federal
counterparts, and the same may be true of other government law officers. Also,
lawyers under the supervision of these officers may be authorized to represent
several government agencies in intragovernmental legal controversies in
circumstances where a private lawyer could not represent multiple private clients.
They also may have authority to represent the “public interest” in circumstances
where a private lawyer would not be authorized to do so. These rules do not
abrogate any such authority.
As indicated earlier in this comment, a failure to comply with an obligation or
prohibition imposed by a rule is a basis for invoking the disciplinary process. The
rules presuppose that disciplinary assessment of a lawyer’s conduct will be made on
the basis of the facts and circumstances as they existed at the time of the conduct in
question and in recognition of the fact that a lawyer often has to act upon uncertain
or incomplete evidence of the situation. Moreover, the rules presuppose that
whether or not discipline should be imposed for a violation, and the severity of a
sanction, depend on all the circumstances, such as the wilfulness and seriousness of
the violation, extenuating factors and whether there have been previous violations.
As also indicated earlier in this comment, a violation of a rule does not give rise to a
cause of action, nor does it create any presumption that a legal duty has been
breached. The rules are designed to provide guidance to lawyers and to provide a
structure for regulating conduct through disciplinary agencies. They are not
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designed to be a basis for civil liability. Furthermore, the purposes of the rules can
be subverted when they are invoked by opposing parties as procedural weapons.
The fact that a rule is a just basis for a lawyer’s self-assessment, or for sanctioning
a lawyer under the administration of a disciplinary authority, does not imply that
an antagonist in a collateral proceeding or transaction has standing to seek
enforcement of the rule. Accordingly, nothing in the rules should be deemed to
augment any substantive legal duty of lawyers or the extradisciplinary
consequences of violating such a duty.
Moreover, these rules are not intended to govern or affect judicial application of
either the client-lawyer or work-product privilege. Those privileges were developed
to promote compliance with law and fairness in litigation. In reliance on the client-
lawyer privilege, clients are entitled to expect that communications within the scope
of the privilege will be protected against compelled disclosure. The client-lawyer
privilege is that of the client and not of the lawyer. The fact that in exceptional
situations the lawyer under the rules has a limited discretion to disclose a client
confidence does not vitiate the proposition that, as a general matter, the client has a
reasonable expectation that information relating to the client will not be voluntarily
disclosed and that disclosure of such information may be judicially compelled only
in accordance with recognized exceptions to the client-lawyer and work-product
privileges.
The lawyer’s exercise of discretion not to disclose information under Rule 1.6 should
not be subject to reexamination. Permitting such reexamination would be
incompatible with the general policy of promoting compliance with law through
assurances that communications will be protected against disclosure.
The comment accompanying each rule explains and illustrates the meaning and
purpose of the rule. The Preamble and this note on scope provide general
orientation. The comments are intended as guides to interpretation, but the text of
each rule is authoritative.
Terminology
“Belief” or “believes” denotes that the person involved actually supposed the fact in
question to be true. A person’s belief may be inferred from circumstances.
“Confirmed in writing,” when used in reference to the informed consent of a person,
denotes informed consent that is given in writing confirming an oral informed
consent. If it is not feasible to obtain or transmit the writing at the time the person
gives informed consent, then the lawyer must obtain or transmit it within a
reasonable time thereafter.
“Consult” or “consultation” denotes communication of information reasonably
sufficient to permit the client to appreciate the significance of the matter in
question.
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“Firm” or “law firm” denotes a lawyer or lawyers in a private firm, lawyers
employed in the legal department of a corporation or other organization, and
lawyers employed in a legal services organization. See comment, Rule 1.10.
“Fraud” or “fraudulent” denotes conduct having a purpose to deceive and not merely
negligent misrepresentation or failure to apprise another of relevant information.
“Informed consent” denotes the agreement by a person to a proposed course of
conduct after the lawyer has communicated adequate information and explanation
about the material risks of and reasonably available alternatives to the proposed
course of conduct.
“Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question.
A person’s knowledge may be inferred from circumstances.
“Partner” denotes a member of a partnership and a shareholder in a law firm
organized as a professional corporation.
“Reasonable” or “reasonably,” when used in relation to conduct by a lawyer, denotes
the conduct of a reasonably prudent and competent lawyer.
“Reasonable belief” or “reasonably believes,” when used in reference to a lawyer,
denotes that the lawyer believes the matter in question and that the circumstances
are such that the belief is reasonable.
“Reasonably should know,” when used in reference to a lawyer, denotes that a
lawyer of reasonable prudence and competence would ascertain the matter in
question.
“Substantial,” when used in reference to degree or extent, denotes a material matter
of clear and weighty importance.
RULES 1.1–1.17. CLIENT-LAWYER RELATIONSHIP
Rule 1.1. Competence.
A lawyer shall provide competent representation to a client. A lawyer shall not:
(a) handle a legal matter which the lawyer knows or should know that the lawyer is
not competent to handle, without associating with a lawyer who is competent to
handle it;
(b) handle a legal matter without preparation adequate in the circumstances; or
(c) neglect a legal matter entrusted to the lawyer.
Comment:
Legal Knowledge and Skill.
In determining whether a lawyer is able to provide competent representation in a
particular matter, relevant factors include the relative complexity and specialized
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nature of the matter, the lawyer’s general experience, the lawyer’s training and
experience in the field in question, the preparation and study the lawyer is able to
give the matter, and whether it is feasible to refer the matter to, or associate or
consult with, a lawyer of established competence in the field in question. In many
instances, the required proficiency is that of a general practitioner. Expertise in a
particular field of law may be required in some circumstances.
A lawyer need not necessarily have special training or prior experience to handle
legal problems of a type with which the lawyer is unfamiliar. A newly admitted
lawyer can be as competent as a practitioner with long experience. Some important
legal skills, such as the analysis of precedent, the evaluation of evidence and legal
drafting, are required in all legal problems. Perhaps the most fundamental legal
skill consists of determining what kind of legal problems a situation may involve, a
skill that necessarily transcends any particular specialized knowledge. A lawyer
can provide adequate representation in a wholly novel field through necessary
study. Competent representation can also be provided through the association of a
lawyer of established competence in the field in question.
In an emergency, a lawyer may give advice or assistance in a matter in which the
lawyer does not have the skill ordinarily required where referral to or consultation
or association with another lawyer would be impractical. Even in an emergency,
however, assistance should be limited to that reasonably necessary in the
circumstances, for ill-considered action under emergency conditions can jeopardize
the client’s interest.
A lawyer may offer representation where the requisite level of competence can be
achieved by reasonable preparation. This applies as well to a lawyer who is
appointed as counsel for an unrepresented person. See also Rule 6.2.
Thoroughness and Preparation.
Competent handling of a particular matter includes inquiry into and analysis of the
factual and legal elements of the problem, and use of methods and procedures
meeting the standards of competent practitioners. It also includes adequate
preparation. The required attention and preparation are determined in part by
what is at stake; major litigation and complex transactions ordinarily require more
elaborate treatment than matters of lesser consequence.
Maintaining Competence.
To maintain the requisite knowledge and skill, a lawyer should engage in
continuing study and education, including the knowledge and skills regarding
existing and developing technology that are reasonably necessary to provide
competent representation for the client in a particular matter. If a system of peer
review has been established, the lawyer should consider making use of it in
appropriate circumstances.
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Rule 1.2. Scope of Representation.
(a) A lawyer shall seek the lawful objectives of a client through reasonably available
means permitted by law and these rules. A lawyer does not violate this rule by
acceding to reasonable requests of opposing counsel that do not prejudice the rights
of the client, by being punctual in fulfilling all professional commitments, or by
avoiding offensive tactics. A lawyer shall abide by a client’s decision whether to
accept an offer of settlement or mediation evaluation of a matter. In a criminal
case, the lawyer shall abide by the client’s decision, after consultation with the
lawyer, with respect to a plea to be entered, whether to waive jury trial, and
whether the client will testify. In representing a client, a lawyer may, where
permissible, exercise professional judgment to waive or fail to assert a right or
position of the client.
(b) A lawyer licensed to practice in the State of Michigan may limit the scope of a
representation, file a limited appearance in a civil action, and act as counsel of
record for the limited purpose identified in that appearance, if the limitation is
reasonable under the circumstances and the client gives informed consent,
preferably confirmed in writing.
(1) A lawyer licensed to practice in the State of Michigan may draft or partially
draft pleadings, briefs, and other papers to be filed with the court. Such assistance
does not require the signature or identification of the lawyer, but does require the
following statement on the document: “This document was drafted or partially
drafted with the assistance of a lawyer licensed to practice in the State of Michigan,
pursuant to Michigan Rule of Professional Conduct 1.2(b).”
(2) The filing of such documents is not and shall not be deemed an appearance by
the lawyer in the case. Any filing prepared pursuant to this rule shall be signed by
the party designated as “self-represented” and shall not be signed by the lawyer
who provided drafting preparation assistance. Further, the lawyer providing
document preparation assistance without entering a general appearance may rely
on the client’s representation of the facts, unless the lawyer has reason to believe
that such representation is false, seeks objectives that are inconsistent with the
lawyer’s obligation under the Rules of Professional Conduct, or asserts claims or
defenses pursuant to pleadings or papers that would, if signed by the lawyer, violate
MCR 1.109, or which are materially insufficient.
(c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that
the lawyer knows is illegal or fraudulent, but a lawyer may discuss the legal
consequences of any proposed course of conduct with a client and may counsel or
assist a client to make a good-faith effort to determine the validity, scope, meaning,
or application of the law.
(d) When a lawyer knows that a client expects assistance not permitted by the Rules
of Professional Conduct or other law, the lawyer shall consult with the client
regarding the relevant limitations on the lawyer’s conduct.
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Comment:
Scope of Representation.
Both the lawyer and the client have authority and responsibility in the objectives
and means of representation. The client has ultimate authority to determine the
purposes to be served by legal representation, within the limits imposed by law and
the lawyer’s professional obligations. Within those limits, a client also has a right
to consult with the lawyer about the means to be used in pursuing those objectives.
At the same time, a lawyer is not required to pursue objectives or employ means
simply because a client may wish that the lawyer do so. A clear distinction between
objectives and means sometimes cannot be drawn, and in many cases the client-
lawyer relationship partakes of a joint undertaking. In questions of means, the
lawyer should assume responsibility for technical and legal tactical issues, but
should defer to the client regarding such questions as the expense to be incurred
and concern for third persons who might be adversely affected.
In a case in which the client appears to be suffering mental disability, the lawyer’s
duty to abide by the client’s decisions is to be guided by reference to Rule 1.14.
Independence from Client’s Views or Activities.
Legal representation should not be denied to people who are unable to afford legal
services or whose cause is controversial or the subject of popular disapproval. By
the same token, representation of a client, including representation by
appointment, does not constitute an endorsement of the client’s political, economic,
social, or moral views or activities.
Services Limited in Objectives or Means.
The objectives or scope of services provided by a lawyer may be limited by
agreement with the client or by the terms under which the lawyer’s services are
made available to the client. For example, a retainer may be for a specifically
defined purpose. Representation provided through a legal-aid agency may be
subject to limitations on the types of cases the agency handles. When a lawyer has
been retained by an insurer to represent an insured, the representation may be
limited to matters related to the insurance coverage. The terms upon which
representation is undertaken may exclude specific objectives or means. Such
limitations may exclude objectives or means that the lawyer regards as repugnant
or imprudent.
An agreement concerning the scope of representation must accord with the Rules of
Professional Conduct and other law. Thus, the client may not be asked to agree to
representation so limited in scope as to violate Rule 1.1, or to surrender the right to
terminate the lawyer’s services or the right to settle litigation that the lawyer might
wish to continue.
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Reasonable Under the Circumstances.
Factors to weigh in deciding whether the limitation is reasonable under the
circumstances according to the facts communicated to the attorney include the
apparent capacity of the person to proceed effectively with the limited scope
assistance given the complexity and type of matter and other self-help resources
available. For example, some self-represented persons may seek objectives that are
inconsistent with an attorney’s obligation under the Rules of Professional Conduct,
or assert claims or defenses pursuant to pleadings or motions that would, if signed
by an attorney, violate MCR 1.109. Attorneys must be reasonably diligent to ensure
a limited scope representation does not advance improper objectives, and the
commentary should help inform lawyers of these considerations.
Illegal, Fraudulent and Prohibited Transactions.
A lawyer is required to give an honest opinion about the actual consequences that
appear likely to result from a client’s conduct. The fact that a client uses advice in a
course of action that is illegal or fraudulent does not, of itself, make a lawyer a
party to the course of action. However, a lawyer may not knowingly assist a client
in illegal or fraudulent conduct. There is a critical distinction between presenting
an analysis of legal aspects of questionable conduct and recommending the means
by which an illegal act or fraud might be committed with impunity.
When the client’s course of action has already begun and is continuing, the lawyer’s
responsibility is especially delicate. The lawyer is not permitted to reveal the
client’s wrongdoing, except where permitted by Rule 1.6. However, the lawyer is
required to avoid furthering the purpose, for example, by suggesting how it might
be concealed. A lawyer may not continue assisting a client in conduct that the
lawyer originally supposes is legally proper but then discovers is illegal or
fraudulent. Withdrawal from the representation, therefore, may be required.
Where the client is a fiduciary, the lawyer may be charged with special obligations
in dealings with a beneficiary.
Paragraph (c) applies whether or not the defrauded party is a party to the
transaction. Hence, a lawyer should not participate in a sham transaction; for
example, a transaction to effectuate criminal or fraudulent escape of tax liability.
Paragraph (c) does not preclude undertaking a criminal defense incident to a
general retainer for legal services to a lawful enterprise. The last clause of
paragraph (c) recognizes that determining the validity or interpretation of a statute
or regulation may require a course of action involving disobedience of the statute or
regulation or of the interpretation placed upon it by governmental authorities.
Rule 1.3. Diligence.
A lawyer shall act with reasonable diligence and promptness in representing a
client.
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Comment:
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction
or personal inconvenience to the lawyer, and may take whatever lawful and ethical
measures are required to vindicate a client’s cause or endeavor. A lawyer should
act with commitment and dedication to the interests of the client and with zeal in
advocacy upon the client’s behalf. However, a lawyer is not bound to press for every
advantage that might be realized for a client. A lawyer has professional discretion
in determining the means by which a matter should be pursued. See Rule 1.2. A
lawyer’s workload should be controlled so that each matter can be handled
adequately.
Perhaps no professional shortcoming is more widely resented than procrastination.
A client’s interests often can be adversely affected by the passage of time or the
change of conditions; in extreme instances, as when a lawyer overlooks a statute of
limitations, the client’s legal position may be destroyed. Even when the client’s
interests are not affected in substance, however, unreasonable delay can cause a
client needless anxiety and undermine confidence in the lawyer’s trustworthiness.
Unless the relationship is terminated as provided in Rule 1.16, a lawyer should
carry through to conclusion all matters undertaken for a client. If a lawyer’s
employment is limited to a specific matter, the relationship terminates when the
matter has been resolved. If a lawyer has served a client over a substantial period
in a variety of matters, the client sometimes may assume that the lawyer will
continue to serve on a continuing basis unless the lawyer gives notice of
withdrawal. Doubt about whether a client-lawyer relationship still exists should be
clarified by the lawyer, preferably in writing, so that the client will not mistakenly
suppose the lawyer is looking after the client’s affairs when the lawyer has ceased
to do so. For example, if a lawyer has handled a judicial or administrative
proceeding that produced a result adverse to the client but has not been specifically
instructed concerning pursuit of an appeal, the lawyer should advise the client of
the possibility of appeal before relinquishing responsibility for the matter.
Rule 1.4. Communication.
(a) A lawyer shall keep a client reasonably informed about the status of a matter
and comply promptly with reasonable requests for information. A lawyer shall
notify the client promptly of all settlement offers, case evaluations, and proposed
plea bargains.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation.
Comment:
The client should have sufficient information to participate intelligently in decisions
concerning the objectives of the representation and the means by which they are to
be pursued to the extent the client is willing and able to do so. For example, a
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lawyer negotiating on behalf of a client should provide the client with facts relevant
to the matter, inform the client of communications from another party, and take
other reasonable steps that permit the client to make a decision regarding an offer
from another party. A lawyer who receives an offer of settlement or a mediation
evaluation in a civil controversy, or a proffered plea bargain in a criminal case,
must promptly inform the client of its substance. See Rule 1.2(a). Even when a
client delegates authority to the lawyer, the client should be kept advised of the
status of the matter.
Adequacy of communication depends in part on the kind of advice or assistance
involved. For example, in negotiations where there is time to explain a proposal,
the lawyer should review all important provisions with the client before proceeding
to an agreement. In litigation, a lawyer should explain the general strategy and
prospects of success and ordinarily should consult the client on tactics that might
injure or coerce others. On the other hand, a lawyer ordinarily cannot be expected
to describe trial or negotiation strategy in detail. The guiding principle is that the
lawyer should fulfill reasonable client expectations for information consistent with
the duty to act in the client’s best interests and consistent with the client’s overall
requirements as to the character of representation.
Ordinarily, the information to be provided is that appropriate for a client who is a
comprehending and responsible adult. However, fully informing the client
according to this standard may be impracticable, for example, where the client is a
child or suffers from mental disability. See Rule 1.14. When the client is an
organization or group, it is often impossible or inappropriate to inform every one of
its members about its legal affairs; ordinarily, the lawyer should address
communications to the appropriate officials of the organization. See Rule 1.13.
Where many routine matters are involved, a system of limited or occasional
reporting may be arranged with the client. Practical exigency may also require a
lawyer to act for a client without prior consultation.
Withholding Information.
In some circumstances, a lawyer may be justified in delaying transmission of
information when the client would be likely to react imprudently to an immediate
communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client
when the examining psychiatrist indicates that disclosure would harm the client. A
lawyer may not withhold information to serve the lawyer’s own interest or
convenience. Rules or court orders governing litigation may provide that
information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c)
directs compliance with such rules or orders.
Rule 1.5. Fees.
(a) A lawyer shall not enter into an agreement for, charge, or collect an illegal or
clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a
lawyer of ordinary prudence would be left with a definite and firm conviction that
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the fee is in excess of a reasonable fee. The factors to be considered in determining
the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved,
and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the
services; and
(8) whether the fee is fixed or contingent.
(b) When the lawyer has not regularly represented the client, the basis or rate of the
fee shall be communicated to the client, preferably in writing, before or within a
reasonable time after commencing the representation.
(c) A fee may be contingent on the outcome of the matter for which the service is
rendered, except in a matter in which a contingent fee is prohibited by paragraph
(d) or by other law. A contingent-fee agreement shall be in writing and shall state
the method by which the fee is to be determined. Upon conclusion of a contingent-
fee matter, the lawyer shall provide the client with a written statement of the
outcome of the matter and, if there is a recovery, show the remittance to the client
and the method of its determination. See also MCR 8.121 for additional
requirements applicable to some contingent-fee agreements.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is
contingent upon the securing of a divorce or upon the amount of alimony or support,
or property settlement in lieu thereof, the lawyer’s success, results obtained, value
added, or any factor to be applied that leaves the client unable to discern the basis
or rate of the fee or the method by which the fee is to be determined, or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be made
only if:
(1) the client is advised of and does not object to the participation of all the lawyers
involved; and
(2) the total fee is reasonable.
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Comment:
Basis or Rate of Fee.
When the lawyer has regularly represented a client, they ordinarily will have
evolved an understanding concerning the basis or rate of the fee. In a new client-
lawyer relationship, however, an understanding as to the fee should be promptly
established. It is not necessary to recite all the factors that underlie the basis of the
fee, but only those that are directly involved in its computation. It is sufficient, for
example, to state that the basic rate is an hourly charge or a fixed amount or an
estimated amount, or to identify the factors that may be taken into account in
finally fixing the fee. When developments occur during the representation that
render an earlier estimate substantially inaccurate, a revised estimate should be
provided to the client. A written statement concerning the fee reduces the
possibility of misunderstanding. Furnishing the client with a simple memorandum
or a copy of the lawyer’s customary fee schedule is sufficient if the basis or rate of
the fee is set forth.
Prohibited Contingent Fees.
Paragraph (d) prohibits a lawyer from charging a fee in a domestic relations matter
when payment is contingent upon the securing of a divorce, or upon the amount of
alimony or support or property settlement to be obtained. The amount of alimony,
support or property awarded to a client shall not be used by a lawyer as a basis for
enhancing the fee. This provision does not preclude a contract for a contingent fee
for legal representation in connection with the recovery of postjudgment balances
due under support, alimony or other financial orders because such contracts do not
implicate the same policy concerns.
Terms of Payment.
A lawyer may require advance payment of a fee, but is obliged to return any
unearned portion. See Rule 1.16(d). A lawyer may accept property in payment for
services, such as an ownership interest in an enterprise, providing this does not
involve acquisition of a proprietary interest in the cause of action or subject matter
of the litigation contrary to Rule 1.8(j). However, a fee paid in property instead of
money may be subject to special scrutiny because it involves questions concerning
both the value of the services and the lawyer’s special knowledge of the value of the
property.
An agreement may not be made whose terms might induce the lawyer improperly to
curtail services for the client or perform them in a way contrary to the client’s
interest. For example, a lawyer should not enter into an agreement whereby
services are to be provided only up to a stated amount when it is foreseeable that
more extensive services probably will be required, unless the situation is adequately
explained to the client. Otherwise, the client might have to bargain for further
assistance in the midst of a proceeding or transaction. However, it is proper to
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define the extent of services in light of the client’s ability to pay. A lawyer should
not exploit a fee arrangement based primarily on hourly charges by using wasteful
procedures. When there is doubt whether a contingent fee is consistent with the
client’s best interest, the lawyer should offer the client alternative bases for the fee
and explain their implications. Applicable law may impose limitations on
contingent fees, such as a ceiling on the percentage. See MCR 8.121.
Division of Fee.
A division of fee is a single billing to a client covering the fee of two or more lawyers
who are not in the same firm. A division of fee facilitates association of more than
one lawyer in a matter in which neither alone could serve the client as well, and
most often is used when the fee is contingent and the division is between a referring
lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee on
agreement between the participating lawyers if the client is advised and does not
object. It does not require disclosure to the client of the share that each lawyer is to
receive.
Disputes over Fees.
If a procedure has been established for resolution of fee disputes, such as an
arbitration or mediation procedure established by the bar, the lawyer should
conscientiously consider submitting to it. Law may prescribe a procedure for
determining a lawyer’s fee, for example, in representation of an executor or
administrator, of a class, or of a person entitled to a reasonable fee as part of the
measure of damages. The lawyer entitled to such a fee and a lawyer representing
another party concerned with the fee should comply with the prescribed procedure.
Rule 1.6. Confidentiality of Information.
(a) “Confidence” refers to information protected by the client-lawyer privilege under
applicable law, and “secret” refers to other information gained in the professional
relationship that the client has requested be held inviolate or the disclosure of
which would be embarrassing or would be likely to be detrimental to the client.
(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:
(1) reveal a confidence or secret of a client;
(2) use a confidence or secret of a client to the disadvantage of the client; or
(3) use a confidence or secret of a client for the advantage of the lawyer or of a third
person, unless the client consents after full disclosure.
(c) A lawyer may reveal:
(1) confidences or secrets with the consent of the client or clients affected, but only
after full disclosure to them;
(2) confidences or secrets when permitted or required by these rules, or when
required by law or by court order;
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(3) confidences and secrets to the extent reasonably necessary to rectify the
consequences of a client’s illegal or fraudulent act in the furtherance of which the
lawyer’s services have been used;
(4) the intention of a client to commit a crime and the information necessary to
prevent the crime; and
(5) confidences or secrets necessary to establish or collect a fee, or to defend the
lawyer or the lawyer’s employees or associates against an accusation of wrongful
conduct.
(d) A lawyer shall exercise reasonable care to prevent employees, associates, and
others whose services are utilized by the lawyer from disclosing or using confidences
or secrets of a client, except that a lawyer may reveal the information allowed by
paragraph (c) through an employee.
Comment:
The lawyer is part of a judicial system charged with upholding the law. One of the
lawyer’s functions is to advise clients so that they avoid any violation of the law in
the proper exercise of their rights.
The observance of the ethical obligation of a lawyer to hold inviolate confidential
information of the client not only facilitates the full development of facts essential
to proper representation of the client, but also encourages people to seek early legal
assistance.
Almost without exception, clients come to lawyers in order to determine what their
rights are and what is, in the maze of laws and regulations, deemed to be legal and
correct. The common law recognizes that the client’s confidences must be protected
from disclosure. Upon the basis of experience, lawyers know that almost all clients
follow the advice given and that the law is upheld.
A fundamental principle in the client-lawyer relationship is that the lawyer
maintain confidentiality of information relating to the representation. The client is
thereby encouraged to communicate fully and frankly with the lawyer even as to
embarrassing or legally damaging subject matter.
The principle of confidentiality is given effect in two related bodies of law, the
client-lawyer privilege (which includes the work-product doctrine) in the law of
evidence and the rule of confidentiality established in professional ethics. The
client-lawyer privilege applies in judicial and other proceedings in which a lawyer
may be called as a witness or otherwise required to produce evidence concerning a
client. The rule of client-lawyer confidentiality applies in situations other than
those where evidence is sought from the lawyer through compulsion of law. The
confidentiality rule applies to confidences and secrets as defined in the rule. A
lawyer may not disclose such information except as authorized or required by the
Rules of Professional Conduct or other law. See also Scope, ante, p M 1-18.
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The requirement of maintaining confidentiality of information relating to
representation applies to government lawyers who may disagree with the policy
goals that their representation is designed to advance.
Authorized Disclosure.
A lawyer is impliedly authorized to make disclosures about a client when
appropriate in carrying out the representation, except to the extent that the client’s
instructions or special circumstances limit that authority. In litigation, for
example, a lawyer may disclose information by admitting a fact that cannot
properly be disputed, or, in negotiation, by making a disclosure that facilitates a
satisfactory conclusion.
Lawyers in a firm may, in the course of the firm’s practice, disclose to each other
information relating to a client of the firm, unless the client has instructed that
particular information be confined to specified lawyers, or unless the disclosure
would breach a screen erected within the firm in accordance with Rules 1.10(b),
1.11(a), or 1.12(c).
Disclosure Adverse to Client.
The confidentiality rule is subject to limited exceptions. In becoming privy to
information about a client, a lawyer may foresee that the client intends to commit a
crime. To the extent a lawyer is prohibited from making disclosure, the interests of
the potential victim are sacrificed in favor of preserving the client’s confidences even
though the client’s purpose is wrongful. To the extent a lawyer is required or
permitted to disclose a client’s purposes, the client may be inhibited from revealing
facts which would enable the lawyer to counsel against a wrongful course of action.
A rule governing disclosure of threatened harm thus involves balancing the
interests of one group of potential victims against those of another. On the
assumption that lawyers generally fulfill their duty to advise against the
commission of deliberately wrongful acts, the public is better protected if full and
open communication by the client is encouraged than if it is inhibited.
Generally speaking, information relating to the representation must be kept
confidential as stated in paragraph (b). However, when the client is or will be
engaged in criminal conduct or the integrity of the lawyer’s own conduct is involved,
the principle of confidentiality may appropriately yield, depending on the lawyer’s
knowledge about and relationship to the conduct in question, and the seriousness of
that conduct. Several situations must be distinguished.
First, the lawyer may not counsel or assist a client in conduct that is illegal or
fraudulent. See Rule 1.2(c). Similarly, a lawyer has a duty under Rule 3.3(a)(4) not
to use false evidence. This duty is essentially a special instance of the duty
prescribed in Rule 1.2(c) to avoid assisting a client in illegal or fraudulent conduct.
The same is true of compliance with Rule 4.1 concerning truthfulness of a lawyer’s
own representations.
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Second, the lawyer may have been innocently involved in past conduct by the client
that was criminal or fraudulent. In such a situation the lawyer has not violated
Rule 1.2(c), because to “counsel or assist” criminal or fraudulent conduct requires
knowing that the conduct is of that character. Even if the involvement was
innocent, however, the fact remains that the lawyer’s professional services were
made the instrument of the client’s crime or fraud. The lawyer, therefore, has a
legitimate interest in being able to rectify the consequences of such conduct, and
has the professional right, although not a professional duty, to rectify the situation.
Exercising that right may require revealing information relating to the
representation. Paragraph (c)(3) gives the lawyer professional discretion to reveal
such information to the extent necessary to accomplish rectification. However, the
constitutional rights of defendants in criminal cases may limit the extent to which
counsel for a defendant may correct a misrepresentation that is based on
information provided by the client. See comment to Rule 3.3.
Third, the lawyer may learn that a client intends prospective conduct that is
criminal. Inaction by the lawyer is not a violation of Rule 1.2(c), except in the
limited circumstances where failure to act constitutes assisting the client. See
comment to Rule 1.2(c). However, the lawyer’s knowledge of the client’s purpose
may enable the lawyer to prevent commission of the prospective crime. If the
prospective crime is likely to result in substantial injury, the lawyer may feel a
moral obligation to take preventive action. When the threatened injury is grave,
such as homicide or serious bodily injury, a lawyer may have an obligation under
tort or criminal law to take reasonable preventive measures. Whether the lawyer’s
concern is based on moral or legal considerations, the interest in preventing the
harm may be more compelling than the interest in preserving confidentiality of
information relating to the client. As stated in paragraph (c)(4), the lawyer has
professional discretion to reveal information in order to prevent a client’s criminal
act.
It is arguable that the lawyer should have a professional obligation to make a
disclosure in order to prevent homicide or serious bodily injury which the lawyer
knows is intended by the client. However, it is very difficult for a lawyer to “know”
when such a heinous purpose will actually be carried out, for the client may have a
change of mind. To require disclosure when the client intends such an act, at the
risk of professional discipline if the assessment of the client’s purpose turns out to
be wrong, would be to impose a penal risk that might interfere with the lawyer’s
resolution of an inherently difficult moral dilemma.
The lawyer’s exercise of discretion requires consideration of such factors as
magnitude, proximity, and likelihood of the contemplated wrong; the nature of the
lawyer’s relationship with the client and with those who might be injured by the
client; the lawyer’s own involvement in the transaction; and factors that may
extenuate the conduct in question. Where practical, the lawyer should seek to
persuade the client to take suitable action. In any case, a disclosure adverse to the
client’s interest should be no greater than the lawyer reasonably believes necessary
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to the purpose. A lawyer’s decision not to make a disclosure permitted by
paragraph (c) does not violate this rule.
Where the client is an organization, the lawyer may be in doubt whether
contemplated conduct will actually be carried out by the organization. Where
necessary to guide conduct in connection with this rule, the lawyer should make an
inquiry within the organization as indicated in Rule 1.13(b).
Paragraph (c)(3) does not apply where a lawyer is employed after a crime or fraud
has been committed to represent the client in matters ensuing therefrom.
Withdrawal.
If the lawyer’s services will be used by the client in materially furthering a course of
criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule
1.16(a)(1).
After withdrawal the lawyer is required to refrain from making disclosure of the
client’s confidences, except as otherwise provided in Rule 1.6. Neither this rule nor
Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of
withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document,
affirmation, or the like.
Dispute Concerning Lawyer’s Conduct.
Where a legal claim or disciplinary charge alleges complicity of the lawyer in a
client’s conduct or other misconduct of the lawyer involving representation of the
client, the lawyer may respond to the extent the lawyer reasonably believes
necessary to establish a defense. The same is true with respect to a claim involving
the conduct or representation of a former client. The lawyer’s right to respond
arises when an assertion of complicity or other misconduct has been made.
Paragraph (c)(5) does not require the lawyer to await the commencement of an
action or proceeding that charges complicity or other misconduct, so that the
defense may be established by responding directly to a third party who has made
such an assertion. The right to defend, of course, applies where a proceeding has
been commenced. Where practicable and not prejudicial to the lawyer’s ability to
establish the defense, the lawyer should advise the client of the third party’s
assertion and request that the client respond appropriately. In any event,
disclosure should be no greater than the lawyer reasonably believes is necessary to
vindicate innocence, the disclosure should be made in a manner which limits access
to the information to the tribunal or other persons having a need to know it, and
appropriate protective orders or other arrangements should be sought by the lawyer
to the fullest extent practicable.
If the lawyer is charged with wrongdoing in which the client’s conduct is implicated,
the rule of confidentiality should not prevent the lawyer from defending against the
charge. Such a charge can arise in a civil, criminal, or professional disciplinary
proceeding, and can be based on a wrong allegedly committed by the lawyer against
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the client, or on a wrong alleged by a third person, for example, a person claiming to
have been defrauded by the lawyer and client acting together.
A lawyer entitled to a fee is permitted by paragraph (c)(5) to prove the services
rendered in an action to collect it. This aspect of the rule expresses the principle
that the beneficiary of a fiduciary relationship may not exploit it to the detriment of
the fiduciary. As stated above, the lawyer must make every effort practicable to
avoid unnecessary disclosure of information relating to a representation, to limit
disclosure to those having the need to know it, and to obtain protective orders or
make other arrangements minimizing the risk of disclosure.
Disclosures Otherwise Required or Authorized.
The scope of the client-lawyer privilege is a question of law. If a lawyer is called as
a witness to give testimony concerning a client, absent waiver by the client,
paragraph (b)(1) requires the lawyer to invoke the privilege when it is applicable.
The lawyer must comply with the final orders of a court or other tribunal of
competent jurisdiction requiring the lawyer to give information about the client.
The Rules of Professional Conduct in various circumstances permit or require a
lawyer to disclose information relating to the representation. See Rules 2.2, 2.3, 3.3
and 4.1. In addition to these provisions, a lawyer may be obligated or permitted by
other provisions of law to give information about a client. Whether another
provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope
of these rules, but a presumption should exist against such a supersession.
Former Client.
The duty of confidentiality continues after the client-lawyer relationship has
terminated. See Rule 1.9.
Confidentiality of Information.
When transmitting a communication that contains confidential and/or privileged
information relating to the representation of a client, the lawyer should take
reasonable measures and act competently so that the confidential and/or privileged
client information will not be revealed to unintended third parties.
Rule 1.7. Conflict of Interest: General Rule.
(a) A lawyer shall not represent a client if the representation of that client will be
directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the
relationship with the other client; and
(2) each client consents after consultation.
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(b) A lawyer shall not represent a client if the representation of that client may be
materially limited by the lawyer’s responsibilities to another client or to a third
person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected;
and
(2) the client consents after consultation. When representation of multiple clients
in a single matter is undertaken, the consultation shall include explanation of the
implications of the common representation and the advantages and risks involved.
Comment:
Loyalty to a Client.
Loyalty is an essential element in the lawyer’s relationship to a client. An
impermissible conflict of interest may exist before representation is undertaken, in
which event the representation should be declined. The lawyer should adopt
reasonable procedures, appropriate for the size and type of firm and practice, to
determine in both litigation and nonlitigation matters the parties and issues
involved and to determine whether there are actual or potential conflicts of interest.
If such a conflict arises after representation has been undertaken, the lawyer
should withdraw from the representation. See Rule 1.16. Where more than one
client is involved and the lawyer withdraws because a conflict arises after
representation, whether the lawyer may continue to represent any of the clients is
determined by Rule 1.9. See also Rule 2.2(c). As to whether a client-lawyer
relationship exists or, having once been established, is continuing, see comment to
Rule 1.3 and Scope, ante, p M 1-18.
As a general proposition, loyalty to a client prohibits undertaking representation
directly adverse to that client without that client’s consent. Paragraph (a)
expresses that general rule. Thus, a lawyer ordinarily may not act as advocate
against a person the lawyer represents in some other matter, even if it is wholly
unrelated. On the other hand, simultaneous representation in unrelated matters of
clients whose interests are only generally adverse, such as competing economic
enterprises, does not require consent of the respective clients. Paragraph (a)
applies only when the representation of one client would be directly adverse to the
other.
Loyalty to a client is also impaired when a lawyer cannot consider, recommend, or
carry out an appropriate course of action for the client because of the lawyer’s other
responsibilities or interests. The conflict in effect forecloses alternatives that would
otherwise be available to the client. Paragraph (b) addresses such situations. A
possible conflict does not itself preclude the representation. The critical questions
are the likelihood that a conflict will eventuate and, if it does, whether it will
materially interfere with the lawyer’s independent professional judgment in
considering alternatives or foreclose courses of action that reasonably should be
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pursued on behalf of the client. Consideration should be given to whether the client
wishes to accommodate the other interest involved.
Consultation and Consent.
A client may consent to representation notwithstanding a conflict. However, as
indicated in paragraph (a)(1) with respect to representation directly adverse to a
client, and paragraph (b)(1) with respect to material limitations on representation
of a client, when a disinterested lawyer would conclude that the client should not
agree to the representation under the circumstances, the lawyer involved cannot
properly ask for such agreement or provide representation on the basis of the
client’s consent. When more than one client is involved, the question of conflict
must be resolved as to each client. Moreover, there may be circumstances where it
is impossible to make the disclosure necessary to obtain consent. For example,
when the lawyer represents different clients in related matters and one of the
clients refuses to consent to the disclosure necessary to permit the other client to
make an informed decision, the lawyer cannot properly ask the latter to consent.
Lawyer’s Interests.
The lawyer’s own interests should not be permitted to have adverse effect on
representation of a client. For example, a lawyer’s need for income should not lead
the lawyer to undertake matters that cannot be handled competently and at a
reasonable fee. See Rules 1.1 and 1.5. If the probity of a lawyer’s own conduct in a
transaction is in serious question, it may be difficult or impossible for the lawyer to
give a client detached advice. A lawyer may not allow related business interests to
affect representation, for example, by referring clients to an enterprise in which the
lawyer has an undisclosed interest.
Conflicts in Litigation.
Paragraph (a) prohibits representation of opposing parties in litigation.
Simultaneous representation of parties whose interests in litigation may conflict,
such as coplaintiffs or codefendants, is governed by paragraph (b). An
impermissible conflict may exist by reason of substantial discrepancy in the parties’
testimony, incompatibility in positions in relation to an opposing party, or the fact
that there are substantially different possibilities of settlement of the claims or
liabilities in question. Such conflicts can arise in criminal cases as well as civil.
The potential for conflict of interest in representing multiple defendants in a
criminal case is so grave that ordinarily a lawyer should decline to represent more
than one codefendant. On the other hand, common representation of persons
having similar interests is proper if the risk of adverse effect is minimal and the
requirements of paragraph (b) are met. Compare Rule 2.2 involving intermediation
between clients.
Ordinarily, a lawyer may not act as advocate against a client the lawyer represents
in some other matter, even if the other matter is wholly unrelated. However, there
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are circumstances in which a lawyer may act as advocate against a client. For
example, a lawyer representing an enterprise with diverse operations may accept
employment as an advocate against the enterprise in an unrelated matter if doing
so will not adversely affect the lawyer’s relationship with the enterprise or conduct
of the suit and if both clients consent upon consultation. By the same token,
government lawyers in some circumstances may represent government employees
in proceedings in which a government agency is the opposing party. The propriety
of concurrent representation can depend on the nature of the litigation. For
example, a suit charging fraud entails conflict to a degree not involved in a suit for a
declaratory judgment concerning statutory interpretation.
Interest of Person Paying for a Lawyer’s Service.
A lawyer may be paid from a source other than the client if the client is informed of
that fact and consents and the arrangement does not compromise the lawyer’s duty
of loyalty to the client. See Rule 1.8(f). For example, when an insurer and its
insured have conflicting interests in a matter arising from a liability insurance
agreement, and the insurer is required to provide special counsel for the insured,
the arrangement should assure the special counsel’s professional independence. So
also, when a corporation and its directors or employees are involved in a controversy
in which they have conflicting interests, the corporation may provide funds for
separate legal representation of the directors or employees if the clients consent
after consultation and the arrangement ensures the lawyer’s professional
independence.
Other Conflict Situations.
Conflicts of interest in contexts other than litigation sometimes may be difficult to
assess. Relevant factors in determining whether there is potential for adverse effect
include the duration and intimacy of the lawyer’s relationship with the client or
clients involved, the functions being performed by the lawyer, the likelihood that
actual conflict will arise, and the likely prejudice to the client from the conflict if it
does arise. The question is often one of proximity and degree.
For example, a lawyer may not represent multiple parties in a negotiation whose
interests are fundamentally antagonistic to each other, but common representation
is permissible where the clients are generally aligned in interest even though there
is some difference of interest among them.
Conflict questions may also arise in estate planning and estate administration. A
lawyer may be called upon to prepare wills for several family members, such as
husband and wife, and, depending upon the circumstances, a conflict of interest
may arise. In estate administration the identity of the client may be a question of
law. The lawyer should make clear the relationship to the parties involved.
A lawyer for a corporation or other organization who is also a member of its board of
directors should determine whether the responsibilities of the two roles may
conflict. The lawyer may be called on to advise the corporation in matters involving
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actions of the directors. Consideration should be given to the frequency with which
such situations may arise, the potential intensity of the conflict, the effect of the
lawyer’s resignation from the board, and the possibility of the corporation’s
obtaining legal advice from another lawyer in such situations. If there is material
risk that the dual role will compromise the lawyer’s independence of professional
judgment, the lawyer should not serve as a director.
Conflict Charged by an Opposing Party.
Resolving questions of conflict of interest is primarily the responsibility of the
lawyer undertaking the representation. In litigation, a court may raise the question
when there is reason to infer that the lawyer has neglected the responsibility. In a
criminal case, inquiry by the court is generally required when a lawyer represents
multiple defendants. See MCR 6.101(C)(4). Where the conflict is such as clearly to
call in question the fair or efficient administration of justice, opposing counsel may
properly raise the question. Such an objection should be viewed with caution,
however, for it can be misused as a technique of harassment. See Scope, ante, p M
1-18.
Rule 1.8. Conflict of Interest: Prohibited Transactions.
(a) A lawyer shall not enter into a business transaction with a client or knowingly
acquire an ownership, possessory, security, or other pecuniary interest adverse to a
client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and
reasonable to the client and are fully disclosed and transmitted in writing to the
client in a manner that can be reasonably understood by the client;
(2) the client is given a reasonable opportunity to seek the advice of independent
counsel in the transaction; and
(3) the client consents in writing thereto.
(b) A lawyer shall not use information relating to representation of a client to the
disadvantage of the client unless the client consents after consultation, except as
permitted or required by Rule 1.6 or Rule 3.3.
(c) A lawyer shall not prepare an instrument giving the lawyer or a person related
to the lawyer as parent, child, sibling, or spouse any substantial gift from a client,
including a testamentary gift, except where the client is related to the donee.
(d) Prior to the conclusion of representation of a client, a lawyer shall not make or
negotiate an agreement giving the lawyer literary or media rights to a portrayal or
account based in substantial part on information relating to the representation.
(e) A lawyer shall not provide financial assistance to a client in connection with
pending or contemplated litigation, except as provided in this subrule.
(1) A lawyer may advance court costs and expenses of litigation, the repayment of
which shall ultimately be the responsibility of the client.
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(2) A lawyer representing an indigent client may pay court costs and expenses of
litigation on behalf of the client.
(3) A lawyer who represents an indigent client pro bono, pro bono through a
nonprofit legal services or public interest organization, or pro bono through a law
school clinical or pro bono program, may pay for or provide the following types of
assistance to the client to facilitate the client’s access to the justice system in the
matter:
(i) transportation;
(ii) lodging if it is less costly than providing transportation for multiple days;
(iii) meals; or
(iv) clothing.
Assistance may be provided under this subrule even if the indigent client’s
representation is eligible for a fee under a fee-shifting statute.
(4) Any assistance provided under subrule (3) must be delivered at no fee to the
indigent client, and the lawyer may not:
(i) promise, assure, or imply the availability of such assistance prior to retention or
as an inducement to continue the client-lawyer relationship after retention;
(ii) seek or accept reimbursement from the client, a relative of the client or anyone
affiliated with the client; and
(iii) publicize or advertise a willingness to provide such assistance to prospective
clients.
(f) A lawyer shall not accept compensation for representing a client from one other
than the client unless:
(1) the client consents after consultation;
(2) there is no interference with the lawyer’s independence of professional judgment
or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule
1.6.
(g) A lawyer who represents two or more clients shall not participate in making an
aggregate settlement of the claims of or against the clients, or, in a criminal case,
an aggregated agreement as to guilty or nolo contendere pleas, unless each client
consents after consultation, including disclosure of the existence and nature of all
the claims or pleas involved and of the participation of each person in the
settlement.
(h) A lawyer shall not:
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(1) make an agreement prospectively limiting the lawyer’s liability to a client for
malpractice unless permitted by law and the client is independently represented in
making the agreement; or
(2) settle a claim for such liability with an unrepresented client or former client
without first advising that person in writing that independent representation is
appropriate in connection therewith.
(i) A lawyer related to another lawyer as parent, child, sibling, or spouse shall not
represent a client in a representation directly adverse to a person whom the lawyer
knows is represented by the other lawyer except upon consent by the client after
consultation regarding the relationship.
(j) A lawyer shall not acquire a proprietary interest in the cause of action or subject
matter of litigation the lawyer is conducting for a client, except that the lawyer
may:
(1) acquire a lien granted by law to secure the lawyer’s fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case, as permitted
by Rule 1.5 and MCR 8.121.
Comment:
Transactions between Client and Lawyer.
As a general principle, all transactions between client and lawyer should be fair and
reasonable to the client. In such transactions a review by independent counsel on
behalf of the client is often advisable. Furthermore, a lawyer may not exploit
information relating to the representation to the client’s disadvantage. For
example, a lawyer who has learned that the client is investing in specific real estate
may not, without the client’s consent, seek to acquire nearby property where doing
so would adversely affect the client’s plan for investment. Paragraph (a) does not,
however, apply to standard commercial transactions between the lawyer and the
client for products or services that the client generally markets to others, for
example, banking or brokerage services, medical services, products manufactured or
distributed by the client, and utilities’ services. In such transactions, the lawyer
has no advantage in dealing with the client, and the restrictions in paragraph (a)
are unnecessary and impracticable.
A lawyer may accept a gift from a client if the transaction meets general standards
of fairness. For example, a simple gift such as a present given at a holiday or as a
token of appreciation is permitted. If effectuation of a substantial gift requires
preparing a legal instrument such as a will or conveyance, however, the client
should have the detached advice that another lawyer can provide. Paragraph (c)
recognizes an exception where the client is a relative of the donee or the gift is not
substantial.
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Literary Rights.
An agreement by which a lawyer acquires literary or media rights concerning the
conduct of the representation creates a conflict between the interests of the client
and the personal interests of the lawyer. Measures suitable in the representation of
the client may detract from the publication value of an account of the
representation. Paragraph (d) does not prohibit a lawyer representing a client in a
transaction concerning literary property from agreeing that the lawyer’s fee shall
consist of a share in ownership in the property, if the arrangement conforms to Rule
1.5 and paragraph (j).
Person Paying for Lawyer’s Services.
Paragraph (f) requires disclosure of the fact that the lawyer’s services are being
paid for by a third party. Such an arrangement must also conform to the
requirements of Rule 1.6 concerning confidentiality and Rule 1.7 concerning conflict
of interest. Where the client is a class, consent may be obtained on behalf of the
class by court-supervised procedure.
Limiting Liability.
Paragraph (h) is not intended to apply to customary qualifications and limitations
in legal opinions and memoranda.
Family Relationships between Lawyers.
Paragraph (i) applies to related lawyers who are in different firms. Related lawyers
in the same firm are governed by Rules 1.7, 1.9, and 1.10. The disqualification
stated in paragraph (i) is personal and is not imputed to members of firms with
whom the lawyers are associated.
Acquisition of Interest in Litigation.
Paragraph (j) states the traditional general rule that lawyers are prohibited from
acquiring a proprietary interest in litigation. This general rule, which has its basis
in common-law champerty and maintenance, is subject to specific exceptions
developed in decisional law and continued in these rules, such as the exception for
reasonable contingent fees set forth in Rule 1.5 and the exception for certain
advances of the costs of litigation set forth in paragraph (e).
Sexual Relations with Clients.
After careful study, the Supreme Court declined in 1998 to adopt a proposal to
amend Rule 1.8 to limit sexual relationships between lawyers and clients. The
Michigan Rules of Professional Conduct adequately prohibit representation that
lacks competence or diligence, or that is shadowed by a conflict of interest. With
regard to sexual behavior, the Michigan Court Rules provide that a lawyer may be
disciplined for “conduct that is contrary to justice, ethics, honesty, or good morals.”
MCR 9.104(3). Further, the Legislature has enacted criminal penalties for certain
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types of sexual misconduct. In this regard, it should be emphasized that a lawyer
bears a fiduciary responsibility toward the client. A lawyer who has a conflict of
interest, whose actions interfere with effective representation, who takes advantage
of a client’s vulnerability, or whose behavior is immoral risks severe sanctions
under the existing Michigan Court Rules and Michigan Rules of Professional
Conduct.
Humanitarian Exception.
Paragraph (e)(3) serves as a humanitarian exception. The lawyer can assist the
client with needs that frustrate the client’s access to the justice system in the
specific matter for which the representation was undertaken, while still preserving
the nature of the attorney-client relationship. For purposes of this rule, indigent is
defined as people who are unable, without substantial financial hardship to
themselves and their dependents, to obtain competent, qualified legal
representation on their own.
Rule 1.9. Conflict of Interest: Former Client.
(a) A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which
that person’s interests are materially adverse to the interests of the former client
unless the former client consents after consultation.
(b) Unless the former client consents after consultation, a lawyer shall not
knowingly represent a person in the same or a substantially related matter in
which a firm with which the lawyer formerly was associated has previously
represented a client
(1) whose interests are materially adverse to that person, and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and
1.9(c) that is material to the matter.
(c) A lawyer who has formerly represented a client in a matter or whose present or
former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former
client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client,
or when the information has become generally known; or
(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3
would permit or require with respect to a client.
Comment:
After termination of a client-lawyer relationship, a lawyer may not represent
another client except in conformity with this rule. The principles in Rule 1.7
determine whether the interests of the present and former client are adverse. Thus,
a lawyer could not properly seek to rescind on behalf of a new client a contract
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drafted on behalf of the former client. So also a lawyer who has prosecuted an
accused person could not properly represent the accused in a subsequent civil action
against the government concerning the same transaction.
The scope of a “matter” for purposes of this rule may depend on the facts of a
particular situation or transaction. The lawyer’s involvement in a matter can also
be a question of degree. When a lawyer has been directly involved in a specific
transaction, subsequent representation of other clients with materially adverse
interests clearly is prohibited. On the other hand, a lawyer who recurrently
handled a type of problem for a former client is not precluded from later
representing another client in a wholly distinct problem of that type even though
the subsequent representation involves a position adverse to the prior client.
Similar considerations can apply to the reassignment of military lawyers between
defense and prosecution functions within the same military jurisdiction. The
underlying question is whether the lawyer was so involved in the matter that the
subsequent representation can be justly regarded as a changing of sides in the
matter in question.
Lawyers Moving Between Firms.
When lawyers have been associated in a firm but then end their association, the
problem is more complicated. First, the client previously represented must be
reasonably assured that the principle of loyalty to the client is not compromised.
Second, the rule of disqualification should not be so broadly cast as to preclude
other persons from having reasonable choice of legal counsel. Third, the rule of
disqualification should not unreasonably hamper lawyers from forming new
associations and taking on new clients after having left a previous association. In
this connection, it should be recognized that today many lawyers practice in firms,
that many, to some degree, limit their practice to one field or another, and that
many move from one association to another several times in their careers. If the
concept of imputed disqualification were applied with unqualified rigor, the result
would be radical curtailment of the opportunity of lawyers to move from one
practice setting to another and of the opportunity of clients to change counsel.
Reconciliation of these competing principles in the past has been attempted under
two rubrics. One approach has been to seek rules of disqualification per se. For
example, it has been held that a partner in a law firm is conclusively presumed to
have access to all confidences concerning all clients of the firm. Under this analysis,
if a lawyer has been a partner in one law firm and then becomes a partner in
another law firm, there is a presumption that all confidences known by a partner in
the first firm are known to all partners in the second firm. This presumption might
properly be applied in some circumstances, especially where the client has been
extensively represented, but may be unrealistic where the client was represented
only for limited purposes. Furthermore, such a rigid rule exaggerates the difference
between a partner and an associate in modern law firms.
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The other rubric formerly used for dealing with vicarious disqualification is the
appearance of impropriety proscribed in Canon 9 of the former Michigan Code of
Professional Responsibility. Two problems can arise under this rubric. First, the
appearance of impropriety might be understood to include any new client-lawyer
relationship that might make a former client feel anxious. If that meaning were
adopted, disqualification would become little more than a question of subjective
judgment by the former client. Second, since “impropriety” is undefined, the term
“appearance of impropriety” begs the question. Thus, the problem of imputed
disqualification cannot readily be resolved either by simple analogy to a lawyer
practicing alone or by the very general concept of appearance of impropriety.
A rule based on a functional analysis is more appropriate for determining the
question of vicarious disqualification. Two functions are involved: preserving
confidentiality and avoiding positions adverse to a client.
Under Rule 1.10(b), screening may be employed to preserve the confidences of a
client when a lawyer has moved from one firm to another. Rule 1.10(b) applies not
just to cases in which a lawyer’s present and former firms are involved on the date
the lawyer moves. The paragraph also applies where the lawyer’s present firm later
wishes to enter a case from which the lawyer is barred because of information
acquired while associated with the prior firm.
Confidentiality.
Preserving confidentiality is a question of access to information. Access to
information, in turn, is essentially a question of fact in particular circumstances.
The determination of that question of fact can be aided by inferences, deductions, or
assumptions that reasonably may be made about the way in which lawyers work
together. A lawyer may have general access to files of all clients of a law firm and
may regularly participate in discussions of their affairs; it should be inferred that
such a lawyer in fact is privy to all information about all the firm’s clients. In
contrast, another lawyer may have access to the files of only a limited number of
clients and participate in discussion of the affairs of no other clients; in the absence
of information to the contrary, it should be inferred that such a lawyer in fact is
privy to information about the clients actually served but not those of other clients.
Application of paragraph (b) depends on a situation’s particular facts. In any such
inquiry, the burden of proof should rest upon the lawyer whose disqualification is
sought.
Rule 1.10(b), incorporating paragraph (b) of this rule, operates to disqualify the firm
only when the lawyer involved has actual knowledge of information protected by
Rules 1.6 and 1.9(c). Thus, if a lawyer while with one firm acquired no knowledge of
information relating to a particular client of the firm, and that lawyer later joined
another firm, neither the lawyer individually nor the second firm is disqualified
from representing another client in the same or a related matter even though the
interests of the two clients conflict. See Rule 1.10(c) for the restrictions on a firm
once a lawyer has terminated association with the firm.
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Independent of the question of disqualification of a firm, a lawyer changing
professional association has a continuing duty to preserve confidentiality of
information about a client formerly represented. See Rule 1.6.
Adverse Positions.
The second aspect of loyalty to a client is the lawyer’s obligation to decline
subsequent representations involving positions adverse to a former client arising in
substantially related matters. This obligation requires abstention from adverse
representation by the individual lawyer involved, but does not properly entail
abstention of other lawyers through imputed disqualification. Thus, if a lawyer left
one firm for another, the new affiliation would not preclude the firms involved from
continuing to represent clients with adverse interests in the same or related
matters, so long as the conditions of Rule 1.10(b) and (c) have been met.
Information acquired by the lawyer in the course of representing a client may not
subsequently be used or revealed by the lawyer to the disadvantage of the client.
However, the fact that a lawyer has once served a client does not preclude the
lawyer from using generally known information about that client when later
representing another client.
Disqualification from subsequent representation is for the protection of clients and
can be waived by them. A waiver is effective only if there is disclosure of the
circumstances, including the lawyer’s intended role in behalf of the new client.
With regard to an opposing party raising a question of conflict of interest, see
comment to Rule 1.7. With regard to disqualification of a firm with which a lawyer
is or was formerly associated, see Rule 1.10.
Rule 1.10. Imputed Disqualification: General Rule.
(a) While 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
Rules 1.7, 1.8(c), 1.9(a), or 2.2. If a lawyer leaves a firm and becomes associated
with another firm, MRPC 1.10(b) governs whether the new firm is imputedly
disqualified because of the newly hired lawyer’s prior services in or association with
the lawyer’s former law firm.
(b) When a lawyer becomes associated with a firm, the firm may not knowingly
represent a person in the same or a substantially related matter in which that
lawyer, or a firm with which the lawyer was associated, is disqualified under Rule
1.9(b), unless:
(1) the disqualified lawyer is screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate tribunal to enable it to
ascertain compliance with the provisions of this rule.
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(c) When a lawyer has terminated an association with a firm, the firm is not
prohibited from thereafter representing a person with interests materially adverse
to those of a client represented by the formerly associated lawyer, and not currently
represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly
associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and
1.9(c) that is material to the matter.
(d) A disqualification prescribed by this rule may be waived by the affected client
under the conditions stated in Rule 1.7.
Comment:
Definition of “Firm.”
For purposes of these rules, the term “firm” includes lawyers in a private firm and
lawyers employed in the legal department of a corporation or other organization or
in a legal services organization. Whether two or more lawyers constitute a firm
within this definition can depend on the specific facts. For example, two
practitioners who share office space and occasionally consult or assist each other
ordinarily would not be regarded as constituting a firm. However, if they present
themselves to the public in a way suggesting that they are a firm or conduct
themselves as a firm, they should be regarded as a firm for purposes of the rules.
The terms of any formal agreement between associated lawyers are relevant in
determining whether they are a firm, as is the fact that they have mutual access to
confidential information concerning the clients they serve. Furthermore, it is
relevant in doubtful cases to consider the underlying purpose of the rule that is
involved. A group of lawyers could be regarded as a firm for purposes of the rule
that the same lawyer should not represent opposing parties in litigation, while it
might not be so regarded for purposes of the rule that information acquired by one
lawyer is attributed to another.
With respect to the law department of an organization, there is ordinarily no
question that the members of the department constitute a firm within the meaning
of the Rules of Professional Conduct. However, there can be uncertainty as to the
identity of the client. For example, it may not be clear whether the law department
of a corporation represents a subsidiary or an affiliated corporation, as well as the
corporation by which the members of the department are directly employed. A
similar question can arise concerning an unincorporated association and its local
affiliates.
Similar questions can also arise with respect to lawyers in legal aid. Lawyers
employed in the same unit of a legal service organization constitute a firm, but not
necessarily those employed in separate units. As in the case of independent
practitioners, whether the lawyers should be treated as being associated with each
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other can depend on the particular rule that is involved and on the specific facts of
the situation.
Where a lawyer has joined a private firm after having represented the government,
the situation is governed by Rule 1.11(a) and (b); where a lawyer represents the
government after having served private clients, the situation is governed by Rule
1.11(c)(1). The individual lawyer involved is bound by the rules generally, including
Rules 1.6, 1.7, and 1.9.
Principles of Imputed Disqualification.
The rule of imputed disqualification stated in paragraph (a) gives effect to the
principle of loyalty to the client as it applies to lawyers who practice in a law firm.
Such situations can be considered from the premise that a firm of lawyers is
essentially one lawyer for purposes of the rules governing loyalty to the client, or
from the premise that each lawyer is vicariously bound by the obligation of loyalty
owed by each lawyer with whom the lawyer is associated. Paragraph (a) operates
only among the lawyers currently associated in a firm. When a lawyer moves or has
recently moved from one firm to another, the situation is governed by Rules 1.9(b)
and 1.10(b).
Rule 1.10(c) operates to permit a law firm, under certain circumstances, to
represent a person with interests directly adverse to those of a client represented by
a lawyer who formerly was associated with the firm. The rule applies regardless of
when the formerly associated lawyer represented the client. However, the law firm
may not represent a person with interests adverse to those of a present client of the
firm, which would violate Rule 1.7. Moreover, the firm may not represent the
person where the matter is the same or substantially related to that in which the
formerly associated lawyer represented the client and any other lawyer currently in
the firm has material information protected by Rules 1.6 and 1.9(c), unless the
provisions of this rule are followed.
[amended effective May 22, 2007]
Rule 1.11. Successive Government and Private Employment.
(a) 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. No lawyer in a firm with which
that lawyer is associated may knowingly undertake or continue representation in
such a matter, unless:
(1) the disqualified lawyer is screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable
it to ascertain compliance with the provisions of this rule.
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(b) Except as law may otherwise expressly permit, a lawyer having information that
the lawyer knows is confidential government information about a person, acquired
when the lawyer was a public officer or employee, may not represent a private client
whose interests are adverse to that person in a matter in which the information
could be used to the material disadvantage of that person. A firm with which that
lawyer is associated may undertake or continue representation in the matter only if
the disqualified lawyer is screened from any participation in the matter and is
apportioned no part of the fee therefrom.
(c) Except as law may otherwise expressly permit, a lawyer serving as a public
officer or employee shall not:
(1) participate in a matter in which the lawyer participated personally and
substantially while in private practice or nongovernmental employment, unless
under applicable law no one is, or by lawful delegation may be, authorized to act in
the lawyer’s stead in the matter; or
(2) negotiate for private employment with any person who is involved as a party or
as an attorney for a party in a matter in which the lawyer is participating
personally and substantially, except that a lawyer serving as a law clerk to a judge,
other adjudicative officer, or arbitrator may negotiate for private employment in
accordance with Rule 1.12(b).
(d) As used in this rule, the term “matter” includes:
(1) any judicial or other proceeding, application, request for a ruling or other
determination, contract, claim, controversy, investigation, charge, accusation,
arrest, or other particular matter involving a specific party or parties; and
(2) any other matter covered by the conflict of interest rules of the appropriate
government agency.
(e) As used in this rule, the term “confidential government information” means
information that has been obtained under governmental authority and that, at the
time this rule is applied, the government is prohibited by law from disclosing to the
public or has a legal privilege not to disclose, and that is not otherwise available to
the public.
Comment:
This rule prevents a lawyer from exploiting public office for the advantage of a
private client. It is a counterpart of Rule 1.10(b), which applies to lawyers moving
from one firm to another.
A lawyer representing a government agency, whether employed or specially
retained by the government, is subject to the Rules of Professional Conduct,
including the prohibition against representing adverse interests stated in Rule 1.7
and the protections afforded former clients in Rule 1.9. In addition, such a lawyer is
subject to Rule 1.11 and to statutes and government regulations regarding conflict
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of interest. Such statutes and regulations may circumscribe the extent to which the
government agency may give consent under this rule.
Where the successive clients are a public agency and a private client, the risk exists
that power or discretion vested in public authority might be used for the special
benefit of a private client. A lawyer should not be in a position where benefit to a
private client might affect performance of the lawyer’s professional functions on
behalf of public authority. Also, unfair advantage could accrue to the private client
by reason of access to confidential government information about the client’s
adversary obtainable only through the lawyer’s government service. However, the
rules governing lawyers presently or formerly employed by a government agency
should not be so restrictive as to inhibit transfer of employment to and from the
government. The government has a legitimate need to attract qualified lawyers as
well as to maintain high ethical standards. The provisions for screening and waiver
are necessary to prevent the disqualification rule from imposing too severe a
deterrent against entering public service.
When the client is an agency of one government, that agency should be treated as a
private client for purposes of this rule if the lawyer thereafter represents an agency
of another government, as when a lawyer represents a city and subsequently is
employed by a federal agency.
Paragraphs (a)(1) and (b) do not prohibit a lawyer from receiving a salary or
partnership share established by prior independent agreement. They prohibit
directly relating the attorney’s compensation to the fee in the matter in which the
lawyer is disqualified.
Paragraph (a)(2) does not require that a lawyer give notice to the government
agency at a time when premature disclosure would injure the client; a requirement
for premature disclosure might preclude engagement of the lawyer. Such notice is,
however, required to be given as soon as practicable in order that the government
agency will have a reasonable opportunity to ascertain that the lawyer is complying
with Rule 1.11 and to take appropriate action if it believes the lawyer is not
complying.
Paragraph (b) operates only when the lawyer in question has knowledge of the
information, which means actual knowledge; it does not operate with respect to
information that merely could be imputed to the lawyer.
Paragraphs (a) and (c) do not prohibit a lawyer from jointly representing a private
party and a government agency when doing so is permitted by Rule 1.7 and is not
otherwise prohibited by law.
Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer
in question has become associated.
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Rule 1.12. Former Judge or Arbitrator.
(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in
connection with a matter in which the lawyer participated personally and
substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such
a person, unless all parties to the proceeding consent after consultation.
(b) A lawyer shall not negotiate for employment with any person who is involved as
a party, or as an attorney for a party, in a matter in which the lawyer is
participating personally and substantially as a judge or other adjudicative officer or
arbitrator. A lawyer serving as a law clerk to a judge, other adjudicative officer, or
arbitrator may negotiate for employment with a party or attorney involved in a
matter in which the clerk is participating personally and substantially, but only
after the lawyer has notified the judge, other adjudicative officer, or arbitrator.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that
lawyer is associated may knowingly undertake or continue representation in the
matter, unless:
(1) the disqualified lawyer is screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate tribunal to enable it to
ascertain compliance with the provisions of this rule.
(d) An arbitrator selected as a partisan of a party in a multimember arbitration
panel is not prohibited from subsequently representing that party.
Comment:
This rule generally parallels Rule 1.11. The term “personally and substantially”
signifies that a judge who was a member of a multimember court, and thereafter
left judicial office to practice law, is not prohibited from representing a client in a
matter pending in the court, but in which the former judge did not participate. So
also the fact that a former judge exercised administrative responsibility in a court
does not prevent the former judge from acting as a lawyer in a matter where the
judge had previously exercised remote or incidental administrative responsibility
that did not affect the merits. Compare the comment to Rule 1.11. The term
“adjudicative officer” includes such officials as judges pro tempore, referees, special
masters, hearing officers and other parajudicial officers, and also lawyers who serve
as part-time judges.
Rule 1.13. Organization as Client.
(a) A lawyer employed or retained to represent an organization represents the
organization as distinct from its directors, officers, employees, members,
shareholders, or other constituents.
(b) If a lawyer for an organization knows that an officer, employee, or other person
associated with the organization is engaged in action, intends to act, or refuses to
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act in a matter related to the representation that is a violation of a legal obligation
to the organization, or a violation of law which reasonably might be imputed to the
organization, and that is likely to result in substantial injury to the organization,
the lawyer shall proceed as is reasonably necessary in the best interest of the
organization. In determining how to proceed, the lawyer shall give due
consideration to the seriousness of the violation and its consequences, the scope and
nature of the lawyer’s representation, the responsibility in the organization, and the
apparent motivation of the person involved, the policies of the organization
concerning such matters, and any other relevant considerations. Any measures
taken shall be designed to minimize disruption of the organization and the risk of
revealing information relating to the representation to persons outside the
organization. Such measures may include among others:
(1) asking reconsideration of the matter;
(2) advising that a separate legal opinion on the matter be sought for presentation
to appropriate authority in the organization; and
(3) referring the matter to higher authority in the organization, including, if
warranted by the seriousness of the matter, referral to the highest authority that
can act in behalf of the organization as determined by applicable law.
(c) When the organization’s highest authority insists upon action, or refuses to take
action, that is clearly a violation of a legal obligation to the organization or a
violation of law which reasonably might be imputed to the organization, and that is
likely to result in substantial injury to the organization, the lawyer may take
further remedial action that the lawyer reasonably believes to be in the best
interest of the organization. Such action may include revealing information
otherwise protected by Rule 1.6 only if the lawyer reasonably believes that
(1) the highest authority in the organization has acted to further the personal or
financial interests of members of that authority which are in conflict with the
interests of the organization; and
(2) revealing the information is necessary in the best interest of the organization.
(d) In dealing with an organization’s directors, officers, employees, members,
shareholders, or other constituents, a lawyer shall explain the identity of the client
when the lawyer believes that such explanation is necessary to avoid
misunderstandings on their part.
(e) A lawyer representing an organization may also represent any of its directors,
officers, employees, members, shareholders, or other constituents, subject to the
provisions of Rule 1.7. If the organization’s consent to the dual representation is
required by Rule 1.7, the consent shall be given by an appropriate official of the
organization other than the individual who is to be represented, or by the
shareholders.
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Comment:
The Entity as the Client.
In transactions with their lawyers, clients who are individuals can speak and decide
for themselves, finally and authoritatively. In transactions between an
organization and its lawyer, however, the organization can speak and decide only
through agents, such as its officers or employees. In effect, the client-lawyer
relationship is maintained through an intermediary between the client and the
lawyer. This fact requires the lawyer under certain conditions to be concerned
whether the intermediary legitimately represents the client.
When officers or employees of the organization make decisions for it, the decisions
ordinarily must be accepted by the lawyer even if their utility or prudence is
doubtful. Decisions concerning policy and operations, including ones entailing
serious risk, are not as such in the lawyer’s province. However, different
considerations arise when the lawyer knows that the organization may be
substantially injured by action of an officer or employee that is in violation of law.
In such a circumstance, it may be reasonably necessary for the lawyer to ask the
officer, employee, or other agent to reconsider the matter. If that fails, or if the
matter is of sufficient seriousness and importance to the organization, it may be
reasonably necessary for the lawyer to take steps to have the matter reviewed by a
higher authority in the organization. Clear justification should exist for seeking
review over the head of the officer or employee normally responsible for it. The
stated policy of the organization may define circumstances and prescribe channels
for such review, and a lawyer should encourage formulation of such a policy. Even
in the absence of organization policy, however, the lawyer may have an obligation to
refer a matter to higher authority, depending on the seriousness of the matter and
whether the officer in question has apparent motives to act at variance with the
organization’s interest. Review by the chief executive officer or by the board of
directors may be required when the matter is of importance commensurate with
their authority. At some point it may be useful or essential to obtain an
independent legal opinion.
In an extreme case, it may be reasonably necessary for the lawyer to refer the
matter to the organization’s highest authority. Ordinarily, that is the board of
directors or similar governing body. However, applicable law may prescribe that
under certain conditions highest authority reposes elsewhere, for example, in the
independent directors of a corporation. The ultimately difficult question is whether
the lawyer should be permitted to circumvent the organization’s highest authority
when it persists in a course of action that is clearly violative of law or a legal
obligation to the organization and that is likely to result in substantial injury to the
organization.
In such a situation, if the lawyer can take remedial action without a disclosure of
information that might adversely affect the organization, the lawyer as a matter of
professional discretion may take such actions as the lawyer reasonably believes to
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be in the best interest of the organization. For example, a lawyer for a close
corporation may find it reasonably necessary to disclose misconduct by the board to
the shareholders. However, taking such action could entail disclosure of
information relating to the representation with consequent risk of injury to the
client. When such is the case, the organization is threatened by alternative
injuries: the injury that may result from the governing board’s action or refusal to
act, and the injury that may result if the lawyer’s remedial efforts entail disclosure
of confidential information. The lawyer may pursue remedial efforts even at the
risk of disclosure in the circumstances stated in subparagraphs (c)(1) and (c)(2).
Relation to Other Rules.
The authority and responsibility provided in Rules 1.13(b) and (c) are concurrent
with the authority and responsibility provided in other rules. In particular, this
rule does not limit the lawyer’s authority under Rule 1.6, the responsibilities to the
client under Rules 1.8 and 1.16 and the responsibilities of the lawyer under Rule 3.3
or 4.1. If the lawyer’s services are being used by an organization to further an
illegal act or fraud by the organization, Rule 1.2(c) can be applicable. In connection
with complying with Rule 1.2(c), 3.3 or 4.1, or exercising the discretion conferred by
Rule 1.6(c), a lawyer for an organization may be in doubt whether the conduct will
actually be carried out by the organization. To guide conduct in such
circumstances, the lawyer ordinarily should make inquiry within the organization
as indicated in Rule 1.13(b).
When the lawyer involved is a member of a firm, the firm’s procedures may require
referral of difficult questions to a superior in the firm. In that event, Rule 5.2 may
be applicable.
Unincorporated Associations.
The duty defined in this rule applies to unincorporated associations.
Governmental Agency.
The duty defined in this rule applies to governmental organizations. However,
when the client is a governmental organization, a different balance may be
appropriate between maintaining confidentiality and assuring that the wrongful
official act is prevented or rectified because public business is involved. In addition,
duties of lawyers employed by the government or lawyers in military service may be
defined by statutes and regulations. Therefore, defining precisely the identity of the
client and prescribing the resulting obligations of such lawyers may be more
difficult in the government context. In some circumstances, it may be a specific
agency, but in others it may be the government as a whole. For example, if the
action or failure to act involves the head of a bureau, the department of which the
bureau is a part may be the client for purpose of this rule. With these
qualifications, the lawyer’s substantive duty to the client and reasonable courses of
action are essentially the same as when the client is a private organization.
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Clarifying the Lawyer’s Role.
The fact that the organization is the client may be quite unclear to the
organization’s officials and employees. An organization official accustomed to
working with the organization’s lawyer may forget that the lawyer represents the
organization and not the official. The result of such a misunderstanding can be
embarrassing or prejudicial to the individual if, for example, the situation is such
that the client-lawyer privilege will not protect the individual’s communications to
the lawyer. The lawyer should take reasonable care to prevent such consequences.
The measures required depend on the circumstances. In routine legal matters, a
lawyer for a large corporation does not have to explain to a corporate official that
the corporation is the client. On the other hand, if the lawyer is conducting an
inquiry involving possible illegal activity, a warning might be essential to prevent
unfairness to a corporate employee. See also Rule 4.3.
Dual Representation.
Paragraph (e) recognizes that a lawyer for an organization may also represent a
principal officer or major shareholder. Such common representation, although often
undertaken in practice, can entail serious potential conflicts of interest.
Derivative Actions.
Under generally prevailing law, the shareholders or members of a corporation may
bring suit to compel the directors to perform their legal obligations in the
supervision of the organization. Members of unincorporated associations have
essentially the same right. Such an action may be brought nominally by the
organization, but usually is, in fact, a legal controversy over management of the
organization.
The question can arise whether counsel for the organization may defend such an
action. The proposition that the organization is the lawyer’s client does not alone
resolve the issue. Most derivative actions are a normal incident of an organization’s
affairs, to be defended by the organization’s lawyer like any other suit. However, if
the claim involves serious charges of wrongdoing by those in control of the
organization, a conflict may arise between the lawyer’s duty to the organization and
the lawyer’s relationship with the board. In those circumstances, Rule 1.7 governs
whether independent counsel should represent the directors.
Rule 1.14. Client Under a Disability.
(a) When a client’s ability to make adequately considered decisions in connection
with the representation is impaired, whether because of minority or mental
disability or for some other reason, the lawyer shall, as far as reasonably possible,
maintain a normal client-lawyer relationship with the client.
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(b) A lawyer may seek the appointment of a guardian or take other protective action
with respect to a client only when the lawyer reasonably believes that the client
cannot adequately act in the client’s own interest.
Comment:
The normal client-lawyer relationship is based on the assumption that the client,
when properly advised and assisted, is capable of making decisions about important
matters. When the client is a minor or suffers from a mental disorder or disability,
however, maintaining the ordinary client-lawyer relationship may not be possible in
all respects. In particular, an incapacitated person may have no power to make
legally binding decisions. Nevertheless, a client lacking legal competence often has
the ability to understand, deliberate upon, and reach conclusions about matters
affecting the client’s own well-being. Furthermore, to an increasing extent the law
recognizes intermediate degrees of competence. For example, children as young as
five or six years of age, and certainly those of ten or twelve, are regarded as having
opinions that are entitled to weight in legal proceedings concerning their custody.
So also, it is recognized that some persons of advanced age can be quite capable of
handling routine financial matters while needing special legal protection concerning
major transactions.
The fact that a client suffers a disability does not diminish the lawyer’s obligation to
treat the client with attention and respect. If the person has no guardian or legal
representative, the lawyer often must act de facto as guardian. Even if the person
does have a legal representative, the lawyer should as far as possible accord the
represented person the status of client, particularly in maintaining communication.
If a legal representative has already been appointed for the client, the lawyer
should ordinarily look to the representative for decisions on behalf of the client. If a
legal representative has not been appointed, the lawyer should see to such an
appointment where it would serve the client’s best interests. Thus, if a disabled
client has substantial property that should be sold for the client’s benefit, effective
completion of the transaction ordinarily requires appointment of a legal
representative. In many circumstances, however, appointment of a legal
representative may be expensive or traumatic for the client. Evaluation of these
considerations is a matter of professional judgment on the lawyer’s part.
If the lawyer represents the guardian as distinct from the ward, and is aware that
the guardian is acting adversely to the ward’s interest, the lawyer may have an
obligation to prevent or rectify the guardian’s misconduct. See Rule 1.2(c).
If the lawyer seeks the appointment of a legal representative for the client, the
filing of the request itself, together with the facts upon which it is predicated, may
constitute the disclosure of confidential information which could be used against the
client. If the court to whom the matter is submitted thereafter determines that a
legal representative is not necessary, the harm befalling the client as the result of
the disclosure may be irreparable. Consequently, consideration should be given to
initially filing the petition seeking the appointment of a legal representative ex
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parte so that the court can decide how best to proceed to minimize the potential
adverse consequences to the client by, for example, issuing a protective order
limiting the disclosure of the confidential information upon which the request is
predicated.
Disclosure of the Client’s Condition.
Rules of procedure in litigation generally provide that minors or persons suffering
mental disability shall be represented by a guardian or next friend if they do not
have a general guardian. However, disclosure of the client’s disability can adversely
affect the client’s interests. For example, raising the question of disability could, in
some circumstances, lead to proceedings for involuntary commitment. The lawyer’s
position in such cases is an unavoidably difficult one. The lawyer may seek
guidance from an appropriate diagnostician.
Rule 1.15. Safekeeping Property.
(a) Definitions.
(1) “Allowable reasonable fees” for IOLTA accounts are per check charges, per
deposit charges, a fee in lieu of a minimum balance, federal deposit insurance fees,
sweep fees, and a reasonable IOLTA account administrative or maintenance fee.
All other fees are the responsibility of, and may be charged to, the lawyer
maintaining the IOLTA account. Fees or charges in excess of the interest or
dividends earned on the account for any month or quarter shall not be taken from
interest or dividends earned on other IOLTA accounts or from the principal of the
account.
(2) An “eligible institution” for IOLTA accounts is a bank, credit union, or savings
and loan association authorized by federal or state law to do business in Michigan,
the deposits of which are insured by an agency of the federal government, or is an
open-end investment company registered with the Securities and Exchange
Commission authorized by federal or state law to do business in Michigan. The
eligible institution must pay no less on an IOLTA account than the highest interest
rate or dividend generally available from the institution to its non-IOLTA
customers when the IOLTA account meets the same minimum balance or other
eligibility qualifications. Interest or dividends and fees shall be calculated in
accordance with the eligible institution’s standard practice, but institutions may
elect to pay a higher interest or dividend rate and may elect to waive any fees on
IOLTA accounts.
(3) “IOLTA account” refers to an interest- or dividend-bearing account, as defined by
the Michigan State Bar Foundation, at an eligible institution from which funds may
be withdrawn upon request as soon as permitted by law. An IOLTA account shall
include only client or third person funds that cannot earn income for the client or
third person in excess of the costs incurred to secure such income while the funds
are held.
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(4) “Non-IOLTA account” refers to an interest- or dividend-bearing account from
which funds may be withdrawn upon request as soon as permitted by law in banks,
savings and loan associations, and credit unions authorized by federal or state law
to do business in Michigan, the deposits of which are insured by an agency of the
federal government. Such an account shall be established as:
(A) a separate client trust account for the particular client or matter on which the
net interest or dividend will be paid to the client or third person, or
(B) a pooled client trust account with subaccounting by the bank or savings and
loan association or by the lawyer, which will provide for computation of net interest
or dividend earned by each client or third person’s funds and the payment thereof to
the client or third person.
(5) “Lawyer” includes a law firm or other organization with which a lawyer is
professionally associated.
(b) A lawyer shall:
(1) promptly notify the client or third person when funds or property in which a
client or third person has an interest is received;
(2) preserve complete records of such account funds and other property for a period
of five years after termination of the representation; and
(3) promptly pay or deliver any funds or other property that the client or third
person is entitled to receive, except as stated in this rule or otherwise permitted by
law or by agreement with the client or third person, and, upon request by the client
or third person, promptly render a full accounting regarding such property.
(c) When two or more persons (one of whom may be the lawyer) claim interest in the
property, it shall be kept separate by the lawyer until the dispute is resolved. The
lawyer shall promptly distribute all portions of the property as to which the
interests are not in dispute.
(d) A lawyer shall hold property of clients or third persons in connection with a
representation separate from the lawyer’s own property. All client or third person
funds shall be deposited in an IOLTA or non-IOLTA account. Other property shall
be identified as such and appropriately safeguarded.
(e) In determining whether client or third person funds should be deposited in an
IOLTA account or a non-IOLTA account, a lawyer shall consider the following
factors:
(1) the amount of interest or dividends the funds would earn during the period that
they are expected to be deposited in light of (a) the amount of the funds to be
deposited; (b) the expected duration of the deposit, including the likelihood of delay
in the matter for which the funds are held; and (c) the rates of interest or yield at
financial institutions where the funds are to be deposited;
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(2) the cost of establishing and administering non-IOLTA accounts for the client or
third person’s benefit, including service charges or fees, the lawyer’s services,
preparation of tax reports, or other associated costs;
(3) the capability of financial institutions or lawyers to calculate and pay income to
individual clients or third persons; and
(4) any other circumstances that affect the ability of the funds to earn a net return
for the client or third person.
(f) A lawyer may deposit the lawyer’s own funds in a client trust account only in an
amount reasonably necessary to pay financial institution service charges or fees or
to obtain a waiver of service charges or fees.
(g) Legal fees and expenses that have been paid in advance shall be deposited in a
client trust account and may be withdrawn only as fees are earned or expenses
incurred.
(h) No interest or dividends from the client trust account shall be available to the
lawyer.
(i) The lawyer shall direct the eligible institution to:
(1) remit the interest and dividends from an IOLTA account, less allowable
reasonable fees, if any, to the Michigan State Bar Foundation at least quarterly;
(2) transmit with each remittance a report that shall identify each lawyer for whom
the remittance is sent, the amount of remittance attributable to each IOLTA
account, the rate and type of interest or dividends applied, the amount of interest or
dividends earned, the amount and type of fees deducted, if any, and the average
account balance for the period in which the report is made; and
(3) transmit to the depositing lawyer a report in accordance with normal procedures
for reporting to its depositors.
(j) A lawyer’s good-faith decision regarding the deposit or holding of such funds in
an IOLTA account is not reviewable by a disciplinary body. A lawyer shall review
the IOLTA account at reasonable intervals to determine whether changed
circumstances require the funds to be deposited prospectively in a non-IOLTA
account.
Comment:
A lawyer should hold property of others with the care required of a professional
fiduciary. Securities should be kept in a safe deposit box, except when some other
form of safekeeping is warranted by special circumstances. All property which is
the property of a client or a third person should be kept separate from the lawyer’s
business and personal property and, if funds, should be kept in one or more trust
accounts. Separate trust accounts may be warranted when administering estate
funds or acting in similar fiduciary capacities.
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Lawyers often receive from third persons funds from which the lawyer’s fee
will be paid. If there is risk that the client may divert the funds without paying the
fee, the lawyer is not required to remit the portion from which the fee is to be paid.
However, a lawyer may not hold funds to coerce a client into accepting the lawyer’s
contention. The disputed portion of the funds should be kept in trust and the
lawyer should suggest means for prompt resolution of the dispute, such as
arbitration. The undisputed portion of the funds shall be promptly distributed.
A third person, such as a client’s creditors, may have a just claim against
funds or other property in a lawyer’s custody. A lawyer may have a duty under
applicable law to protect such a third-party claim against wrongful interference by
the client, and accordingly may refuse to surrender the property to the client.
However, a lawyer should not unilaterally assume to arbitrate a dispute between
the client and the third person.
The obligations of a lawyer under this rule are independent of those arising
from activity other than rendering legal services. For example, a lawyer who serves
as an escrow agent is governed by the applicable law relating to fiduciaries even
though the lawyer does not render legal services in the transaction.
Rule 1.15A. Trust Account Overdraft Notification.
(a) Scope. Lawyers who practice law in this jurisdiction shall deposit all funds held
in trust in accordance with Rule 1.15. Funds held in trust include funds held in any
fiduciary capacity in connection with a representation, whether as trustee, agent,
guardian, executor or otherwise.
(1) “Lawyer” includes a law firm or other organization with which a lawyer is
professionally associated.
(2) For any trust account which is an IOLTA account pursuant to Rule 1.15, the
“Notice to Eligible Financial Institution” shall constitute notice to the depository
institution that such account is subject to this rule. Lawyers shall clearly identify
any other accounts in which funds are held in trust as “trust” or “escrow” accounts,
and lawyers must inform the depository institution in writing that such other
accounts are trust accounts for the purposes of this rule.
(b) Overdraft Notification Agreement Required. In addition to meeting the
requirements of Rule 1.15, each bank, credit union, savings and loan association,
savings bank, or open-end investment company registered with the Securities and
Exchange Commission (hereinafter “financial institution”) referred to in Rule 1.15
must be approved by the State Bar of Michigan in order to serve as a depository for
lawyer trust accounts. To apply for approval, financial institutions must file with
the State Bar of Michigan a signed agreement, in a form provided by the State Bar
of Michigan, that it will submit the reports required in paragraph (d) of this rule to
the Grievance Administrator and the trust account holder when any properly
payable instrument is presented against a lawyer trust account containing
insufficient funds or when any other debit to such account would create a negative
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balance in the account, whether or not the instrument or other debit is honored and
irrespective of any overdraft protection or other similar privileges that may attach
to such account. The agreement shall apply to the financial institution for all of its
locations in Michigan and cannot be canceled except on 120 days notice in writing to
the State Bar of Michigan. Upon notice of cancellation or termination of the
agreement, the financial institution must notify all holders of trust accounts subject
to the provisions of this rule at least 90 days before termination of approved status
that the financial institution will no longer be approved to hold such trust accounts.
(c) The State Bar of Michigan shall establish guidelines regarding the process of
approving and terminating “approved status” for financial institutions, and for
other operational procedures to effectuate this rule in consultation with the
Grievance Administrator. The State Bar of Michigan shall periodically publish a
list of approved financial institutions. No trust account shall be maintained in any
financial institution that has not been so approved. Approved status under this
rule does not substitute for “eligible financial institution” status under Rule 1.15.
(d) Overdraft Reports. The overdraft notification agreement must provide that all
reports made by the financial institution contain the following information in a form
acceptable to the State Bar of Michigan:
(1) The identity of the financial institution
(2) The identity of the account holder
(3) The account number
(4) Information identifying the transaction item
(5) The amount and date of the overdraft and either the amount of the returned
instrument or other dishonored debit to the account and the date returned or
dishonored, or the date of presentation for payment and the date paid.
The financial institution must provide the information required by the notification
agreement within five banking days after the date the item was paid or returned
unpaid.
(e) Costs. The overdraft notification agreement must provide that a financial
institution is not prohibited from charging the lawyer for the reasonable cost of
providing the reports and records required by this rule, but those costs may not be
charged against principal, nor against interest or dividends earned on trust
accounts, including earnings on IOLTA accounts payable to the Michigan State Bar
Foundation under Rule 1.15. Such costs, if charged, shall not be borne by clients.
(f) Notification by Lawyers. Every lawyer who receives notification that any
instrument presented against the trust account was presented against insufficient
funds or that any other debit to such account would create a negative balance in the
account, whether or not the instrument or other debit was honored, shall, upon
receipt of a request for investigation from the Grievance Administrator, provide the
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Grievance Administrator, in writing, within 21 days after issuance of such request,
a full and fair explanation of the cause of the overdraft and how it was corrected.
(g) Every lawyer practicing or admitted to practice in this jurisdiction shall, as a
condition thereof, be conclusively deemed to have consented to the requirements
mandated by this rule and shall be deemed to have consented under applicable
privacy laws, including but not limited to those of the Gramm-Leach-Bliley Act, 15
USC 6801, to the reporting of information required by this rule.
Rule 1.16. Declining or Terminating Representation.
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client
if:
(1) the representation will result in violation of the Rules of Professional Conduct or
other law;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability
to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), after informing the client that the lawyer
cannot do so without permission from the tribunal for the pending case, a lawyer
may withdraw from representing a client if withdrawal can be accomplished
without material adverse effect on the interests of the client, or if:
(1) the client persists in a course of action involving the lawyer’s services that the
lawyer reasonably believes is criminal or fraudulent;
(2) the client has used the lawyer’s services to perpetrate a crime or fraud;
(3) the client insists upon pursuing an objective that the lawyer considers
repugnant or imprudent;
(4) the client fails substantially to fulfill an obligation to the lawyer regarding the
lawyer’s services and has been given reasonable warning that the lawyer will
withdraw unless the obligation is fulfilled;
(5) the representation will result in an unreasonable financial burden on the lawyer
or has been rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
(c) When ordered to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take reasonable steps to
protect a client’s interests, such as giving reasonable notice to the client, allowing
time for employment of other counsel, surrendering papers and property to which
the client is entitled, and refunding any advance payment of fee that has not been
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earned. The lawyer may retain papers relating to the client to the extent permitted
by law.
Comment:
A lawyer should not accept representation in a matter unless it can be performed
competently, promptly, without improper conflict of interest and to completion.
Mandatory Withdrawal.
A lawyer ordinarily must decline or withdraw from representation if the client
demands that the lawyer engage in conduct that is illegal or violates the Rules of
Professional Conduct or other law. The lawyer is not obliged to decline or withdraw
simply because the client suggests such a course of conduct; a client may make such
a suggestion in the hope that a lawyer will not be constrained by a professional
obligation.
When a lawyer has been appointed to represent a client, withdrawal ordinarily
requires approval of the appointing authority. See also Rule 6.2. Difficulty may be
encountered if withdrawal is based on the client’s demand that the lawyer engage in
unprofessional conduct. The court may wish an explanation for the withdrawal,
while the lawyer may be bound to keep confidential the facts that would constitute
such an explanation. The lawyer’s statement that professional considerations
require termination of the representation ordinarily should be accepted as
sufficient.
Discharge.
A client has a right to discharge a lawyer at any time, with or without cause,
subject to liability for payment for the lawyer’s services. Where future dispute
about the withdrawal may be anticipated, it may be advisable to prepare a written
statement reciting the circumstances.
Whether a client can discharge appointed counsel may depend on applicable law. A
client seeking to do so should be given a full explanation of the consequences. These
consequences may include a decision by the appointing authority that appointment
of successor counsel is unjustified, thus requiring the client to represent himself.
If the client is mentally incompetent, the client may lack the legal capacity to
discharge the lawyer, and in any event the discharge may be seriously adverse to
the client’s interests. The lawyer should make special effort to help the client
consider the consequences and, in an extreme case, may initiate proceedings for a
conservatorship or similar protection of the client. See Rule 1.14.
Optional Withdrawal.
A lawyer may withdraw from representation in some circumstances. The lawyer
has the option to withdraw if it can be accomplished without material adverse effect
on the client’s interests. Withdrawal is also justified if the client persists in a
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course of action that the lawyer reasonably believes is illegal or fraudulent, for a
lawyer is not required to be associated with such conduct even if the lawyer does not
further it. Withdrawal is also permitted if the lawyer’s services were misused in the
past even if that would materially prejudice the client. The lawyer also may
withdraw where the client insists on a repugnant or imprudent objective.
A lawyer may withdraw if the client refuses to abide by the terms of an agreement
relating to the representation, such as an agreement concerning fees or court costs,
or an agreement limiting the objectives of the representation.
Assisting the Client Upon Withdrawal.
Even if the lawyer has been unfairly discharged by the client, a lawyer must take
all reasonable steps to mitigate the consequences to the client. The lawyer may
retain papers as security for a fee only to the extent permitted by law.
Whether a lawyer for an organization may under certain unusual circumstances
have a legal obligation to the organization after withdrawing or being discharged by
the organization’s highest authority is beyond the scope of these rules.
Rule 1.17. Sale of a Law Practice.
(a) A lawyer or a law firm may sell or purchase a private law practice, including
good will, pursuant to this rule.
(b) The fees charged clients shall not be increased by reason of the sale, and a
purchaser shall not pass on the cost of good will to a client. The purchaser may,
however, refuse to undertake the representation unless the client consents to pay
fees regularly charged by the purchaser for rendering substantially similar services
to other clients prior to the initiation of the purchase negotiations.
(c) Actual written notice of a pending sale shall be given at least 91 days prior to the
date of the sale to each of the seller’s clients, and the notice shall include:
(1) notice of the fact of the proposed sale;
(2) the identity of the purchaser;
(3) the terms of any proposed change in the fee agreement permitted under
paragraph (b);
(4) notice of the client’s right to retain other counsel or to take possession of the file;
and
(5) notice that the client’s consent to the transfer of the client’s file to the purchaser
will be presumed if the client does not retain other counsel or otherwise object
within 90 days of receipt of the notice.
If the purchaser has identified a conflict of interest that the client cannot waive and
that prohibits the purchaser from undertaking the client’s matter, the notice shall
advise that the client should retain substitute counsel to assume the representation
and arrange to have the substitute counsel contact the seller.
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(d) If a client cannot be given actual notice as required in paragraph (c), the
representation of that client may be transferred to the purchaser only upon entry of
an order so authorizing by a judge of the judicial circuit in which the seller
maintains the practice. The seller or the purchaser may disclose to the judge in
camera information relating to the representation only to the extent necessary to
obtain an order authorizing the transfer of a file.
(e) The sale of the good will of a law practice may be conditioned upon the seller
ceasing to engage in the private practice of law for a reasonable period of time
within the geographical area in which the practice had been conducted.
Comment:
This rule permits a selling lawyer or law firm to obtain compensation for the
reasonable value of a private law practice in the same manner as withdrawing
partners of law firms. See MRPC 5.4 and 5.6. This rule does not apply to the
transfer of responsibility for legal representation from one lawyer or firm to another
when such transfers are unrelated to the sale of a practice; for transfer of individual
files in other circumstances, see MRPC 1.5(e) and 1.16. Admission to or retirement
from a law partnership or professional association, retirement plans and similar
arrangements, and a sale of tangible assets of a law practice, do not constitute a
sale or purchase governed by this rule.
A lawyer participating in the sale of a law practice is subject to the ethical
standards that apply when involving another lawyer in the representation of a
client. These include, for example, the seller’s obligation to act competently in
identifying a purchaser qualified to assume the representation of the client and the
purchaser’s obligation to undertake the representation competently, MRPC 1.1, the
obligation to avoid disqualifying conflicts and to secure client consent after
consultation for those conflicts that can be waived, MRPC 1.7, and the obligation to
protect information relating to the representation, MRPC 1.6 and 1.9.
If approval of the substitution of the purchasing attorney for the selling attorney is
required by the rules of any tribunal in which a matter is pending, such approval
must be obtained before the matter can be included in the sale, MRPC 1.16. See
also MCR 2.117(C).
All the elements of client autonomy, including the client’s absolute right to
discharge a lawyer and transfer the representation to another, survive the sale of
the practice.
Selling Entire Practice.
When a lawyer is closing a private practice, the lawyer may negotiate with a
purchaser for the reasonable value of the practice that has been developed by the
seller. A seller may agree to transfer matters in one legal field to one purchaser,
while transferring matters in another legal field to a separate purchaser. However,
a lawyer may not sell individual files piecemeal. A seller closing a practice to accept
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employment with another firm may take certain matters to the new employer while
selling the remainder of the practice.
Although the rule contemplates the sale of substantially all of the law practice, a
seller retiring from private practice generally may continue to represent a small
number of clients while transferring the balance of the practice.
The seller remains responsible for handling all client matters until the files are
transferred under this rule.
Termination of Practice by the Seller.
The rule allows the parties to agree that the seller cease practice in the
geographical area for a reasonable time as a condition of the sale. In certain
situations, a blanket prohibition on the seller’s practice would not be appropriate or
warranted, such as a judicial appointee who might subsequently be defeated for
reelection, or a seller elected full-time prosecutor. The parties should be allowed to
negotiate, for instance, whether any geographical or duration restrictions apply to
the seller’s employment as a lawyer on the staff of a public agency or of a legal
services entity that provides legal services to the poor, or as inside counsel to a
business.
Conflicts.
The practice may be sold to one or more lawyers or firms, provided that the seller
assures that all clients are afforded competent representation. Since the number of
client matters and their nature directly bear on the valuation of good will and
therefore directly relate to selling the law practice, conflicts that cannot be waived
by the client and that prevent the prospective purchaser from undertaking the
client’s matter should be determined promptly. If the purchaser identifies a conflict
that the client cannot waive, information should be provided to the client to assist
in locating substitute counsel. If the conflict can be waived by the client, the
purchaser should explain the implications and determine whether the client
consents to the purchaser undertaking the representation. Initial screening with
regard to conflicts, for the purpose of determining the good will of the practice, need
be no more intrusive than conflict screening of a walk-in prospective client at the
purchaser’s firm.
Client Confidences, Consent, and Notice.
Negotiations between the seller and prospective purchaser prior to disclosure of
information relating to a specific representation of an identifiable client can be
conducted in a manner that does not violate the confidentiality provisions of MRPC
1.6, just as preliminary discussions are permissible concerning the possible
association of another lawyer or mergers between firms, with respect to which client
consent is not required. Providing the purchaser access to client-specific
information relating to the representation and to the file, however, requires client
consent. The rule provides that before such information can be disclosed by the
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seller to the purchaser the client must be given actual written notice of the fact of
the contemplated sale, including the identity of the purchaser, and must be told
that the decision to consent or make other arrangements must be made within 90
days. If nothing is heard from the client within that time, consent to the transfer of
the client’s file to the identified purchaser is presumed.
A lawyer or law firm ceasing to practice cannot be required to remain in practice
because some clients cannot be given actual notice of the proposed purchase. Since
these clients are not available to consent to the purchase or direct any other
disposition of their files, the rule requires an order from a judge of the judicial
circuit in which the seller maintains the practice, authorizing their transfer or other
disposition. The court can be expected to determine whether reasonable efforts to
locate the client have been exhausted, and whether the absent client’s legitimate
interests will be served by authorizing the transfer of the file so that the purchaser
may continue the representation. Preservation of client confidences requires that
the petition for a court order be considered in camera.
The client should be told the identity of the purchaser before being asked to consent
to disclosure of confidences and secrets or to consent to transfer of the file.
Subchapter 9.300 of the Michigan Court Rules provides a mechanism for handling
client matters when a lawyer is temporarily or permanently unable to practice law.
Fee Arrangements between Client and Purchaser.
Paragraph (b) is intended to prohibit a purchaser from charging the former clients
of the seller a higher fee than the purchaser is charging the purchaser’s existing
clients. The sale may not be financed by increases in fees charged the clients of the
practice that is purchased. Existing agreements between the seller and the client
as to fees and the scope of the work must be honored by the purchaser, unless the
client consents after consultation.
Adjustments for differences in the fee schedules of the seller and the purchaser
should be made between the seller and purchaser in valuing good will, and not
between the client and the purchaser. The purchaser may, however, advise the
client that the purchaser will not undertake the representation unless the client
consents to pay the higher fees the purchaser usually charges. To prevent client
financing of the sale, the higher fee the purchaser may charge must not exceed the
fees charged by the purchaser for substantially similar service rendered prior to the
initiation of the purchase negotiations.
Deceased Lawyer.
Even though a nonlawyer seller representing the estate of a deceased lawyer is not
subject to the Michigan Rules of Professional Conduct, a lawyer who participates in
a sale of a law practice must conform to this rule. Therefore, the purchasing lawyer
can be expected to see that its requirements are met.
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Rule 1.18. Duties to Prospective Client.
(a) A person who consults with a lawyer about the possibility of forming a client-
lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned
information from a prospective client shall not use or reveal that information,
except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests
materially adverse to those of a prospective client in the same or a substantially
related matter if the lawyer received information from the prospective client that
could be significantly harmful to that person in the matter, except as provided in
paragraph (d). If a lawyer is disqualified from representation under this paragraph,
no lawyer in a firm with which that lawyer is associated may knowingly undertake
or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in
paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent,
confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid
exposure to more disqualifying information than was reasonably necessary to
determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter
and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
Comment:
Prospective clients, like clients, may disclose information to a lawyer, place
documents or other property in the lawyer’s custody, or rely on the lawyer’s advice.
A lawyer’s consultations with a prospective client usually are limited in time and
depth and leave both the prospective client and the lawyer free (and sometimes
required) to proceed no further. Hence, prospective clients should receive some but
not all of the protection afforded clients.
A person becomes a prospective client by consulting with a lawyer about the
possibility of forming a client-lawyer relationship with respect to a matter.
Whether communications, including written, oral, or electronic communications,
constitute a consultation depends on the circumstances. For example, a
consultation is likely to have occurred if a lawyer, either in person or through the
lawyer’s advertising in any medium, specifically requests or invites the submission
of information about a potential representation without clear and reasonably
understandable warnings and cautionary statements that limit the lawyer’s
obligations, and a person provides information in response. In contrast, a
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consultation does not occur if a person provides information to a lawyer in response
to advertising that merely describes the lawyer’s education, experience, areas of
practice, and contact information, or provides legal information of general interest.
Such a person communicates information unilaterally to a lawyer, without any
reasonable expectation that the lawyer is willing to discuss the possibility of
forming a client-lawyer relationship, and is thus not a “prospective client.”
Moreover, a person who communicates with a lawyer for the purpose of
disqualifying the lawyer is not a “prospective client.”
It is often necessary for a prospective client to reveal information to the lawyer
during an initial consultation prior to the decision about formation of a client-
lawyer relationship. The lawyer often must learn such information to determine
whether there is a conflict of interest with an existing client and whether the
matter is one that the lawyer is willing to undertake. Paragraph (b) prohibits the
lawyer from using or revealing that information, except as permitted by Rule 1.9,
even if the client or lawyer decides not to proceed with the representation. The duty
exists regardless of how brief the initial conference may be. In order to avoid
acquiring disqualifying information from a prospective client, a lawyer considering
whether or not to undertake a new matter should limit the initial consultation to
only such information as reasonably appears necessary for that purpose. Where the
information indicates that a conflict of interest or other reason for non-
representation exists, the lawyer should so inform the prospective client or decline
the representation. If the prospective client wishes to retain the lawyer, and if
consent is possible under Rule 1.7, then consent from all affected present or former
clients must be obtained before accepting the representation.
A lawyer may condition a consultation with a prospective client on the person’s
informed consent that no information disclosed during the consultation will prohibit
the lawyer from representing a different client in the matter. If the agreement
expressly so provides, the prospective client may also consent to the lawyer’s
subsequent use of information received from the prospective client.
Even in the absence of an agreement, under paragraph (c), the lawyer is not
prohibited from representing a client with interests adverse to those of the
prospective client in the same or a substantially related matter unless the lawyer
has received from the prospective client information that could be significantly
harmful if used in the matter.
Under paragraph (c), the prohibition in this Rule is imputed to other lawyers as
provided in Rule 1.10, but, under paragraph (d)(l), imputation may be avoided if the
lawyer obtains the informed consent, confirmed in writing, of both the prospective
and affected clients. In the alternative, imputation may be avoided if the conditions
of paragraph (d)(2) are met and all disqualified lawyers are timely screened and
written notice is promptly given to the prospective client. Paragraph (d)(2)(i) does
not prohibit the screened lawyer from receiving a salary or partnership share
established by prior independent agreement, but that lawyer may not receive
compensation directly related to the matter in which the lawyer is disqualified.
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Notice, including a general description of the subject matter about which the lawyer
was consulted, and of the screening procedures employed, generally should be given
as soon as practicable after the need for screening becomes apparent.
Rule 1.19. Lawyer-Client Representation Agreements: Arbitration
Provisions
A lawyer shall not enter into an agreement for legal services with a client requiring
that any dispute between the lawyer and the client be subject to arbitration unless
the client provides informed consent in writing to the arbitration provision, which is
based on being
(a) reasonably informed in writing regarding the scope and the advantages and
disadvantages of the arbitration provision, or
(b) independently represented in making the agreement.
Comment:
MRPC 1.19 is designed to ensure that a client entering into an arbitration
agreement with a lawyer has sufficient information to make an informed decision or
is independently represented by counsel in making the agreement. This paragraph
applies to agreements entered into at the onset of an attorney-client relationship as
well as to agreements entered into during the course of the attorney-client
relationship.
In order to ensure that client consent to an arbitration provision is informed
consent, at a minimum the agreement should advise the client of the practical
advantages and disadvantages of arbitration. Inclusion of the following information
is presumed to be sufficient to enable a client to give informed consent:
(1) By agreeing to arbitration, the client is
(a) waiving the right to a jury trial,
(b) potentially waiving the right to take discovery to the same extent as
is available in a case litigated in a court,
(c) waiving or limiting the right to appeal the result of the arbitration
proceeding to specific circumstances established by law, and
(d) agreeing to be financially responsible for at least a share of the
arbitrator’s compensation and the administrative fees associated with
the arbitration;
(2) whether the agreement to arbitrate includes arbitration of legal
malpractice claims against the lawyer;
(3) identification of the organization or person(s) that will administer the
arbitration;
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(4) if the client declines to agree to arbitration at the onset of the attorney-
client relationship, there is no prohibition against the lawyer and the client
agreeing to arbitrate the matter at a later date;
(5) arbitration may be conducted as a private proceeding, unlike litigation in
a court;
(6) the parties can select an arbitrator who is experienced in the subject
matter of the dispute;
(7) depending on the circumstances, arbitration can be more efficient,
expeditious and inexpensive than litigation in a court; and
(8) the client’s ability to report unethical conduct by the lawyer is not
restricted.
RULES 2.1–2.4. COUNSELOR.
Rule 2.1. Advisor.
In representing a client, a lawyer shall exercise independent professional judgment
and shall render candid advice. In rendering advice, a lawyer may refer not only to
law but to other considerations such as moral, economic, social, and political factors
that may be relevant to the client’s situation.
Comment:
Scope of Advice.
A client is entitled to straightforward advice expressing the lawyer’s honest
assessment. Legal advice often involves unpleasant facts and alternatives that a
client may be disinclined to confront. In presenting advice, a lawyer endeavors to
sustain the client’s morale and may put advice in as acceptable a form as honesty
permits. However, a lawyer should not be deterred from giving candid advice by the
prospect that the advice will be unpalatable to the client.
Advice couched in narrowly legal terms may be of little value to a client, especially
where practical considerations, such as cost or effects on other people, are
predominant. Purely technical legal advice, therefore, can sometimes be
inadequate. It is proper for a lawyer to refer to relevant moral and ethical
considerations in giving advice. Although a lawyer is not a moral advisor as such,
moral and ethical considerations impinge upon most legal questions and may
decisively influence how the law will be applied.
A client may expressly or impliedly ask the lawyer for purely technical advice.
When such a request is made by a client experienced in legal matters, the lawyer
may accept it at face value. When such a request is made by a client inexperienced
in legal matters, however, the lawyer’s responsibility as advisor may include
indicating that more is involved than strictly legal considerations.
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Matters that go beyond strictly legal questions may also be in the domain of another
profession. Family matters can involve problems within the professional
competence of psychiatry, clinical psychology, or social work; business matters can
involve problems within the competence of the accounting profession or of financial
specialists. Where consultation with a professional in another field is itself
something a competent lawyer would recommend, the lawyer should make such a
recommendation. At the same time, a lawyer’s advice at its best often consists of
recommending a course of action in the face of conflicting recommendations of
experts.
Offering Advice.
In general, a lawyer is not expected to give advice until asked by the client.
However, when a lawyer knows that a client proposes a course of action that is
likely to result in substantial adverse legal consequences to the client, the duty to
the client under Rule 1.4 may require that the lawyer act if the client’s course of
action is related to the representation. A lawyer ordinarily has no duty to initiate
investigation of a client’s affairs or to give advice that the client has indicated is
unwanted, but a lawyer may initiate advice to a client when doing so appears to be
in the client’s interest.
Rule 2.2. Intermediary.
(a) A lawyer may act as intermediary between clients if:
(1) the lawyer consults with each client concerning the implications of the common
representation, including the advantages and risks involved and the effect on the
client-lawyer privileges, and obtains each client’s consent to the common
representation;
(2) the lawyer reasonably believes that the matter can be resolved on terms
compatible with the clients’ best interests, that each client will be able to make
adequately informed decisions in the matter, and that there is little risk of material
prejudice to the interests of any of the clients if the contemplated resolution is
unsuccessful; and
(3) the lawyer reasonably believes that the common representation can be
undertaken impartially and without improper effect on other responsibilities the
lawyer has to any of the clients.
(b) While acting as intermediary, the lawyer shall consult with each client
concerning the decisions to be made and the considerations relevant in making
them, so that each client can make adequately informed decisions.
(c) A lawyer shall withdraw as intermediary if any of the clients so requests, or if
any of the conditions stated in paragraph (a) is no longer satisfied. Upon
withdrawal, the lawyer shall not continue to represent any of the clients in the
matter that was the subject of the intermediation.
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Comment:
A lawyer acts as intermediary under this rule when the lawyer represents two or
more parties with potentially conflicting interests. A key factor in defining the
relationship is whether the parties share responsibility for the lawyer’s fee, but the
common representation may be inferred from other circumstances. Because
confusion can arise as to the lawyer’s role where each party is not separately
represented, it is important that the lawyer make clear the relationship.
The rule does not apply to a lawyer acting as arbitrator or mediator between or
among parties who are not clients of the lawyer, even where the lawyer has been
appointed with the concurrence of the parties. In performing such a role the lawyer
may be subject to applicable codes of ethics, such as the Code of Ethics for
Arbitration in Commercial Disputes prepared by a joint committee of the American
Bar Association and the American Arbitration Association.
A lawyer acts as intermediary in seeking to establish or adjust a relationship
between clients on an amicable and mutually advantageous basis, for example, in
helping to organize a business in which two or more clients are entrepreneurs,
working out the financial reorganization of an enterprise in which two or more
clients have an interest, arranging a property distribution in settlement of an
estate, or mediating a dispute between clients. The lawyer seeks to resolve
potentially conflicting interests by developing the parties’ mutual interests. The
alternative can be that each party may have to obtain separate representation, with
the possibility in some situations of incurring additional cost, complication, or even
litigation. Given these and other relevant factors, all the clients may prefer that
the lawyer act as intermediary.
In considering whether to act as intermediary between clients, a lawyer should be
mindful that if the intermediation fails the result can be additional cost,
embarrassment, and recrimination. In some situations the risk of failure is so great
that intermediation is plainly impossible. For example, a lawyer cannot undertake
common representation of clients between whom contentious litigation is imminent
or who contemplate contentious negotiations. More generally, if the relationship
between the parties has already assumed definite antagonism, the possibility that
the clients’ interests can be adjusted by intermediation ordinarily is not very good.
The appropriateness of intermediation can depend on its form. Forms of
intermediation include informal arbitration (where each client’s case is presented
by the respective client and the lawyer decides the outcome), mediation, and
common representation where the clients’ interests are substantially, though not
entirely, compatible. One form may be appropriate in circumstances where another
would not. Other relevant factors are whether the lawyer subsequently will
represent both parties on a continuing basis and whether the situation involves
creating a relationship between the parties or terminating one.
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Confidentiality and Privilege.
A particularly important factor in determining the appropriateness of
intermediation is the effect on client-lawyer confidentiality and the client-lawyer
privilege. In a common representation, the lawyer is still required both to keep
each client adequately informed and to maintain confidentiality of information
relating to the representation. See Rules 1.4 and 1.6. Complying with both
requirements while acting as intermediary requires a delicate balance. If the
balance cannot be maintained, the common representation is improper. With
regard to the client-lawyer privilege, the prevailing rule is that as between
commonly represented clients the privilege does not attach. Hence, it must be
assumed that if litigation eventuates between the clients, the privilege will not
protect any such communications, and the clients should be so advised.
Since the lawyer is required to be impartial between commonly represented clients,
intermediation is improper when that impartiality cannot be maintained. For
example, a lawyer who has represented one of the clients for a long period and in a
variety of matters might have difficulty being impartial between that client and one
to whom the lawyer has only recently been introduced.
Consultation.
In acting as intermediary between clients, the lawyer is required to consult with the
clients on the implications of doing so, and proceed only upon consent based on such
a consultation. The consultation should make clear that the lawyer’s role is not
that of partisanship normally expected in other circumstances.
Paragraph (b) is an application of the principle expressed in Rule 1.4. Where the
lawyer is intermediary, the clients ordinarily must assume greater responsibility for
decisions than when each client is independently represented.
Withdrawal.
Common representation does not diminish the rights of each client in the client-
lawyer relationship. Each has the right to loyal and diligent representation, the
right to discharge the lawyers stated in Rule 1.16, and the protection of Rule 1.9
concerning obligations to a former client.
Rule 2.3. Evaluation for Use by Third Persons.
(a) A lawyer may, for the use of someone other than the client, undertake an
evaluation of a matter affecting a client if:
(1) the lawyer reasonably believes that making the evaluation is compatible with
other aspects of the lawyer’s relationship with the client; and
(2) the client consents after consultation.
(b) Except as disclosure is required in connection with a report of an evaluation,
information relating to the evaluation is protected by Rule 1.6.
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Comment:
Definition.
An evaluation may be performed at the client’s direction, but for the primary
purpose of establishing information for the benefit of third parties; for example, an
opinion concerning the title of property rendered at the behest of a vendor for the
information of a prospective purchaser, or at the behest of a borrower for the
information of a prospective lender. In some situations, the evaluation may be
required by a government agency, for example, an opinion concerning the legality of
the securities registered for sale under the securities laws. In other instances, the
evaluation may be required by a third person, such as a purchaser of a business.
Lawyers for the government may be called upon to give a formal opinion on the
legality of contemplated government agency action. In making such an evaluation,
the government lawyer acts at the behest of the government as the client, but for
the purpose of establishing the limits of the agency’s authorized activity. Such an
opinion is to be distinguished from confidential legal advice given agency officials.
The critical question is whether the opinion is to be made public.
A legal evaluation should be distinguished from an investigation of a person with
whom the lawyer does not have a client-lawyer relationship. For example, a lawyer
retained by a purchaser to analyze a vendor’s title to property does not have a
client-lawyer relationship with the vendor. So also, an investigation into a person’s
affairs by a government lawyer, or by special counsel employed by the government,
is not an evaluation as that term is used in this rule. The question is whether the
lawyer is retained by the person whose affairs are being examined. When the
lawyer is retained by that person, the general rules concerning loyalty to client and
preservation of confidences apply, which is not the case if the lawyer is retained by
someone else. For this reason, it is essential to identify the person by whom the
lawyer is retained. This should be made clear not only to the person under
examination, but also to others to whom the results are to be made available.
Duty to Third Person.
When the evaluation is intended for the information or use of a third person, a legal
duty to that person may or may not arise. That legal question is beyond the scope of
this rule. However, since such an evaluation involves a departure from the normal
client-lawyer relationship, careful analysis of the situation is required. The lawyer
must be satisfied as a matter of professional judgment that making the evaluation
is compatible with other functions undertaken in behalf of the client. For example,
if the lawyer is acting as advocate in defending the client against charges of fraud,
it would normally be incompatible with that responsibility for the lawyer to perform
an evaluation for others concerning the same or a related transaction. Assuming no
such impediment is apparent, however, the lawyer should advise the client of the
implications of the evaluation, particularly the lawyer’s responsibilities to third
persons and the duty to disseminate the findings.
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Access to and Disclosure of Information.
The quality of an evaluation depends on the freedom and extent of the investigation
upon which it is based. Ordinarily a lawyer should have whatever latitude of
investigation seems necessary as a matter of professional judgment. Under some
circumstances, however, the terms of the evaluation may be limited. For example,
certain issues or sources may be categorically excluded, or the scope of search may
be limited by time constraints or the noncooperation of persons having relevant
information. Any such limitations which are material to the evaluation should be
described in the report. If after a lawyer has commenced an evaluation the client
refuses to comply with the terms upon which it was understood the evaluation was
to have been made, the lawyer’s obligations are determined by law, having
reference to the terms of the client’s agreement and the surrounding circumstances.
Financial Auditors’ Requests for Information.
When a question concerning the legal situation of a client arises at the instance of
the client’s financial auditor and the question is referred to the lawyer, the lawyer’s
response may be made in accordance with procedures recognized in the legal
profession. Such a procedure is set forth in the American Bar Association
Statement of Policy Regarding Lawyers’ Responses to Auditors’ Requests for
Information, adopted in 1975.
Rule 2.4. Lawyer Serving as Third-Party Neutral.
(a) A lawyer serves as a third-party neutral when the lawyer assists two or more
persons who are not clients of the lawyer to reach a resolution of a dispute or other
matter that has arisen between them. Service as a third-party neutral may include
service as an arbitrator, a mediator, or in such other capacity as will enable the
lawyer to assist the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral must inform unrepresented parties
that the lawyer is not representing them. When the lawyer knows or reasonably
should know that a party does not understand the lawyer’s role in the matter, the
lawyer must explain the difference between the lawyer’s role as a third-party
neutral and a lawyer’s role as one who represents a client.
Comment:
Alternative dispute resolution has become a substantial part of the civil justice
system. Aside from representing clients in dispute-resolution processes, lawyers
often serve as third-party neutrals. A third-party neutral is a person, such as a
mediator, an arbitrator, a conciliator, or an evaluator, who assists the parties,
represented or unrepresented, in the resolution of a dispute or in the arrangement
of a transaction. Whether a third-party neutral serves primarily as a facilitator, an
evaluator, or a decision maker depends on the particular process that is selected by
the parties or mandated by a court.
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The role of a third-party neutral is not unique to lawyers, although, in some court-
connected contexts, only lawyers are allowed to serve in this role or to handle
certain types of cases. In performing this role, the lawyer may be subject to court
rules or other law that apply either to third-party neutrals generally or to lawyers
serving as third-party neutrals. Lawyer-neutrals also may be subject to various
codes of ethics, such as the Code of Ethics for Arbitration in Commercial Disputes
prepared by a joint committee of the American Bar Association and the American
Arbitration Association, or the Model Standards of Conduct for Mediators jointly
prepared by the American Bar Association, the American Arbitration Association,
and the Society of Professionals in Dispute Resolution.
Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role
may experience unique problems as a result of differences between the role of a
third-party neutral and a lawyer’s service as a client representative. The potential
for confusion is significant when the parties are unrepresented in the process.
Thus, paragraph (b) requires a lawyer-neutral to inform unrepresented parties that
the lawyer is not representing them. For some parties, particularly parties who
frequently use dispute-resolution processes, this information will be sufficient. For
others, particularly those who are using the process for the first time, more
information will be required. Where appropriate, the lawyer should inform
unrepresented parties of the important differences between the lawyer’s role as
third-party neutral and a lawyer’s role as a client representative, including the
inapplicability of the attorney-client evidentiary privilege. The extent of disclosure
required under this paragraph will depend on the particular parties involved and
the subject matter of the proceeding, as well as the particular features of the
dispute-resolution process selected.
A lawyer who serves as a third-party neutral subsequently may be asked to serve as
a lawyer representing a client in the same matter. The conflicts of interest that
arise for both the individual lawyer and the lawyer’s law firm are addressed in Rule
1.12.
Lawyers who represent clients in alternative dispute resolution are governed by the
Michigan Rules of Professional Conduct. When the dispute-resolution process takes
place before a tribunal, as in binding arbitration, the lawyer’s duty of candor is
governed by Rule 3.3. Otherwise, the lawyer’s duty of candor toward both the third-
party neutral and other parties is governed by Rule 4.1.
RULES 3.1–3.9. ADVOCATE.
Rule 3.1. Meritorious Claims and Contentions.
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue
therein, unless there is a basis for doing so that is not frivolous. A lawyer may offer
a good-faith argument for an extension, modification, or reversal of existing law. A
lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding
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that could result in incarceration, may so defend the proceeding as to require that
every element of the case be established.
Comment:
The advocate has a duty to use legal procedure for the fullest benefit of the client’s
cause, but also has a duty not to abuse legal procedure. The law, both procedural
and substantive, establishes the limits within which an advocate may proceed.
However, the law is not always clear and never is static. Accordingly, in
determining the proper scope of advocacy, account must be taken of the law’s
ambiguities and potential for change.
The filing of an action or defense or similar action taken for a client is not frivolous
merely because the facts have not first been fully substantiated or because the
lawyer expects to develop vital evidence only by discovery. What is required of
lawyers is that they inform themselves about the facts of their clients’ cases and the
applicable law and determine that they can make good-faith arguments in support
of their clients’ positions. Such action is not frivolous even though the lawyer
believes that the client’s position ultimately will not prevail. The action is frivolous,
however, if the lawyer is unable either to make a good-faith argument on the merits
of the action taken or to support the action taken by a good-faith argument for an
extension, modification, or reversal of existing law.
Rule 3.2. Expediting Litigation.
A lawyer shall make reasonable efforts to expedite litigation consistent with the
interests of the client.
Comment:
Although a judge bears the responsibility of assuring the progress of a court’s
docket, dilatory practices by a lawyer can bring the administration of justice into
disrepute. Delay should not be indulged merely for the convenience of the
advocates, or for the purpose of frustrating an opposing party’s attempt to obtain
rightful redress or repose. It is not a justification that similar conduct is often
tolerated by the bench and bar. Even though it causes delay, a course of action is
proper if a competent lawyer acting in good faith would regard the course of action
as having some substantial purpose other than delay. Realizing financial or other
benefit from otherwise improper delay in litigation is not a legitimate interest of the
client.
Rule 3.3. Candor Toward the Tribunal.
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal or fail to correct a
false statement of material fact or law previously made to the tribunal by the
lawyer;
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(2) fail to disclose to a tribunal controlling legal authority in the jurisdiction known
to the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer has offered material
evidence and comes to know of its falsity, the lawyer shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal
(b) If a lawyer knows that the lawyer’s client or other person intends to engage, is
engaging, or has engaged in criminal or fraudulent conduct related to an
adjudicative proceeding involving the client, the lawyer shall take reasonable
remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the
proceeding, and apply even if compliance requires disclosure of information
otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts
that are known to the lawyer and that will enable the tribunal to make an informed
decision, whether or not the facts are adverse.
(e) When false evidence is offered, a conflict may arise between the lawyer’s duty to
keep the client’s revelations confidential and the duty of candor to the court. Upon
ascertaining that material evidence is false, the lawyer should seek to persuade the
client that the evidence should not be offered or, if it has been offered, that its false
character should immediately be disclosed. If the persuasion is ineffective, the
lawyer must take reasonable remedial measures. The advocate should seek to
withdraw if that will remedy the situation. If withdrawal from the representation
is not permitted or will not remedy the effect of the false evidence, the lawyer must
make such disclosure to the tribunal as is reasonably necessary to remedy the
situation, even if doing so requires the lawyer to reveal information that otherwise
would be protected by Rule 1.6.
Comment:
This rule governs the conduct of a lawyer who is representing a client in a tribunal.
It also applies when the lawyer is representing a client in an ancillary proceeding
conducted pursuant to the tribunal’s adjudicative authority, such as a deposition.
Thus, subrule (a) requires a lawyer to take reasonable remedial measures if the
lawyer comes to know that a client who is testifying in a deposition has offered
evidence that is false.
As officers of the court, lawyers have special duties to avoid conduct that
undermines the integrity of the adjudicative process. A lawyer acting as an
advocate in an adjudicative proceeding has an obligation to present the client’s case
with persuasive force. Performance of that duty while maintaining confidences of
the client is qualified, however, by the advocate’s duty of candor to the tribunal. .
Consequently, although a lawyer in an adversary proceeding is not required to
present an impartial exposition of the law or to vouch for the evidence submitted in
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a cause, the lawyer must not allow the tribunal to be misled by false statements of
law or fact or evidence that the lawyer knows to be false.
Representations by a Lawyer.
An advocate is responsible for pleadings and other documents prepared for
litigation, but is usually not required to have personal knowledge of matters
asserted therein, because litigation documents ordinarily present assertions by the
client or by someone on the client’s behalf and not assertions by the lawyer.
Compare Rule 3.1. However, an assertion purporting to be on the lawyer’s own
knowledge, as in an affidavit by the lawyer or in a statement in open court, may
properly be made only when the lawyer knows the assertion is true or believes it to
be true on the basis of a reasonably diligent inquiry. There are circumstances
where failure to make a disclosure is the equivalent of an affirmative
misrepresentation. The obligation prescribed in Rule 1.2(c) not to counsel a client to
commit or assist the client in committing a fraud applies in litigation. Regarding
compliance with Rule 1.2(c), see the comment to that rule. See also the comment to
Rule 8.4(b).
Legal Argument.
Legal argument based on a knowingly false representation of law constitutes
dishonesty toward the tribunal. A lawyer is not required to make a disinterested
exposition of the law, but must recognize the existence of pertinent legal
authorities. Furthermore, as stated in paragraph (a)(2), an advocate has a duty to
disclose directly controlling adverse authority that has not been disclosed by the
opposing party. The underlying concept is that legal argument is a discussion
seeking to determine the legal premises properly applicable to the case.
Offering Evidence.
Paragraph (a)(3) requires that a lawyer refuse to offer evidence that the lawyer
knows to be false, regardless of the client’s wishes. This duty is premised on the
lawyer’s obligation as an officer of the court to prevent the trier of fact from being
misled by false evidence. A lawyer does not violate this rule if the lawyer offers the
evidence for the purpose of establishing its falsity.
If a lawyer knows that the client intends to testify falsely or wants the lawyer to
introduce false evidence, the lawyer should seek to persuade the client that the
evidence should not be offered. If the persuasion is ineffective and the lawyer
continues to represent the client, the lawyer must refuse to offer the false evidence.
If only a portion of a witness’ testimony will be false, the lawyer may call the
witness to testify but may not elicit or otherwise permit the witness to present the
testimony that the lawyer knows is false. A lawyer’s knowledge that evidence is
false can be inferred from the circumstances. Thus, although a lawyer should
resolve doubts about the veracity of testimony or other evidence in favor of the
client, the lawyer cannot ignore an obvious falsehood.
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Remedial Measures.
Having offered material evidence in the belief that it was true, a lawyer may
subsequently come to know that the evidence is false. Or a lawyer may be surprised
when the lawyer’s client, or another witness called by the lawyer, offers testimony
the lawyer knows to be false, either during the lawyer’s direct examination or in
response to cross-examination by the opposing lawyer. In such situations, or if the
lawyer knows of the falsity of testimony elicited from the client during a deposition,
the lawyer must take reasonable remedial measures. If that fails, the lawyer must
take further remedial action. It is for the tribunal then to determine what should
be done–making a statement about the matter to the trier of fact, ordering a
mistrial, or perhaps nothing
The disclosure of a client’s false testimony can result in grave consequences
to the client, including a sense of betrayal, the loss of the case, or perhaps a
prosecution for perjury. However, the alternative is that the lawyer aids in the
deception of the court, thereby subverting the truth-finding process that the
adversarial system is designed to implement. See Rule 1.2(c). Furthermore, unless
it is clearly understood that the lawyer must remediate the disclosure of false
evidence, the client could simply reject the lawyer’s counsel to reveal the false
evidence and require that the lawyer remain silent. Thus, the client could insist
that the lawyer assist in perpetrating a fraud on the court.
Preserving Integrity of Adjudicative Process.
Lawyers have a special obligation to protect a tribunal against criminal or
fraudulent conduct that undermines the integrity of the adjudicative process, such
as bribing, intimidating, or otherwise unlawfully communicating with a witness,
juror, court official, or other participant in the proceeding, unlawfully destroying or
concealing documents or other evidence, or failing to disclose information to the
tribunal when required by law to do so. Thus, paragraph (b) requires a lawyer to
take reasonable remedial measures, including disclosure, if necessary, whenever the
lawyer knows that a person, including the lawyer’s client, intends to engage, is
engaging, or has engaged in criminal or fraudulent conduct related to the
proceeding. See Rule 3.4.
Duration of Obligation.
A practical time limit on the obligation to rectify the presentation of false evidence
or false statements of law and fact must be established. The conclusion of the
proceeding is a reasonably definite point for the termination of the obligation.
Ex Parte Proceedings.
Ordinarily, an advocate has the limited responsibility of presenting one side of the
matters that a tribunal should consider in reaching a decision; the conflicting
position is expected to be presented by the opposing party. However, in an ex parte
proceeding, such as an application for a temporary restraining order, there is no
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balance of presentation by opposing advocates. The object of an ex parte proceeding
is nevertheless to yield a substantially just result. The judge has an affirmative
responsibility to accord the absent party just consideration. The lawyer for the
represented party has the correlative duty to make disclosures of material facts that
are known to the lawyer and that the lawyer reasonably believes are necessary to
an informed decision.
Withdrawal.
Normally, a lawyer’s compliance with the duty of candor imposed by this rule does
not require that the lawyer withdraw from the representation of a client whose
interests will be or have been adversely affected by the lawyer’s disclosure. The
lawyer may, however, be required by Rule 1.16(a) to seek permission of the tribunal
to withdraw if the lawyer’s compliance with this rule’s duty of candor results in
such an extreme deterioration of the client-lawyer relationship that the lawyer can
no longer competently represent the client. Also see Rule 1.16(b) for the
circumstances in which a lawyer will be permitted to seek a tribunal’s permission to
withdraw. In connection with a request for permission to withdraw that is
premised on a client’s misconduct, a lawyer may reveal information relating to the
representation only to the extent reasonably necessary to comply with this rule or
as otherwise permitted by Rule 1.6.
Rule 3.4. Fairness to Opposing Party and Counsel.
A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence; unlawfully alter, destroy,
or conceal a document or other material having potential evidentiary value; or
counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an
inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open
refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make
reasonably diligent efforts to comply with a legally proper discovery request by an
opposing party;
(e) during trial, allude to any matter that the lawyer does not reasonably believe is
relevant or that will not be supported by admissible evidence, assert personal
knowledge of facts in issue except when testifying as a witness, or state a personal
opinion as to the justness of a cause, the credibility of a witness, the culpability of a
civil litigant, or the guilt or innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant
information to another party, unless:
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(1) the person is an employee or other agent of a client for purposes of MRE
801(d)(2)(D); and
(2) the lawyer reasonably believes that the person’s interests will not be adversely
affected by refraining from giving such information.
Comment:
The procedure of the adversary system contemplates that the evidence in a case is
to be marshaled competitively by the contending parties. Fair competition in the
adversary system is secured by prohibitions against destruction or concealment of
evidence, improper influence of witnesses, obstructive tactics in discovery
procedure, and the like.
Documents and other items of evidence are often essential to establish a claim or
defense. Subject to evidentiary privileges, the right of an opposing party, including
the government, to obtain evidence through discovery or subpoena is an important
procedural right. The exercise of that right can be frustrated if relevant material is
altered, concealed or destroyed. Other law makes it an offense to destroy material
for purpose of impairing its availability in a pending proceeding or one whose
commencement can be foreseen. Falsifying evidence is also generally a criminal
offense. Paragraph (a) applies to evidentiary material generally, including
computerized information.
With regard to paragraph (b), it is not improper to pay a witness’ expenses or to
compensate an expert witness on terms permitted by law. It is, however, improper
to pay an occurrence witness any fee for testifying beyond that authorized by law,
and it is improper to pay an expert witness a contingent fee.
Rule 3.5. Impartiality and Decorum of the Tribunal.
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror, or other official by means
prohibited by law;
(b) communicate ex parte with such a person concerning a pending matter, unless
authorized to do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication constitutes misrepresentation, coercion, duress or
harassment; or
(d) engage in undignified or discourteous conduct toward the tribunal.
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Comment:
Many forms of improper influence upon a tribunal are proscribed by criminal law.
Others are specified in the Michigan Code of Judicial Conduct, with which an
advocate should be familiar. A lawyer is required to avoid contributing to a
violation of such provisions.
During a proceeding a lawyer may not communicate ex parte with persons serving
in an official capacity in the proceeding, such as judges, masters, or jurors, unless
authorized to do so by law or court order.
A lawyer may on occasion want to communicate with a juror or prospective juror
after the jury has been discharged. The lawyer may do so, unless the
communication is prohibited by law or a court order, but must respect the desire of
the juror not to talk with the lawyer. The lawyer may not engage in improper
conduct during the communication.
The advocate’s function is to present evidence and argument so that the cause may
be decided according to law. Refraining from undignified or discourteous conduct is
a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may
stand firm against abuse by a judge, but should avoid reciprocation; the judge’s
default is no justification for similar dereliction by an advocate. An advocate can
present the cause, protect the record for subsequent review, and preserve
professional integrity by patient firmness no less effectively than by belligerence or
theatrics.
Rule 3.6. Trial Publicity.
(a) A lawyer who is participating or has participated in the investigation or
litigation of a matter shall not make an extrajudicial statement that the lawyer
knows or reasonably should know will be disseminated by means of public
communication and will have a substantial likelihood of materially prejudicing an
adjudicative proceeding in the matter. A statement is likely to have a substantial
likelihood of materially prejudicing an adjudicative proceeding when it refers to a
civil matter triable to a jury, a criminal matter, or any other proceeding that could
result in incarceration, and the statement relates to:
(1) the character, credibility, reputation, or criminal record of a party, of a suspect
in a criminal investigation or of a witness, or the identity of a witness, or the
expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility
of a plea of guilty to the offense or the existence or contents of any confession,
admission, or statement given by a defendant or suspect, or that person’s refusal or
failure to make a statement;
(3) the performance or results of any examination or test, or the refusal or failure of
a person to submit to an examination or test, or the identity or nature of physical
evidence expected to be presented;
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(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal
case or proceeding that could result in incarceration;
(5) information that the lawyer knows or reasonably should know is likely to be
inadmissible as evidence in a trial and that would, if disclosed, create a substantial
risk of prejudicing an impartial trial; or
(6) the fact that a defendant has been charged with a crime, unless there is included
therein a statement explaining that the charge is merely an accusation and that the
defendant is presumed innocent until and unless proven guilty.
(b) Notwithstanding paragraph (a), a lawyer who is participating or has
participated in the investigation or litigation of a matter may state without
elaboration:
(1) the nature of the claim, offense, or defense involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is
reason to believe that there exists the likelihood of substantial harm to an
individual or to the public interest; and
(7) in a criminal case, also:
(i) the identity, residence, occupation, and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in
apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the
length of the investigation.
(c) No lawyer associated in a firm or government agency with a lawyer subject to
paragraph (a) shall make a statement prohibited by paragraph (a).
Comment:
It is difficult to strike a balance between protecting the right to a fair trial and
safeguarding the right of free expression. Preserving the right to a fair trial
necessarily entails some curtailment of the information that may be disseminated
about a party before trial, particularly where trial by jury is involved. If there were
no such limits, the result would be the practical nullification of the protective effect
of the rules of forensic decorum and the exclusionary rules of evidence. On the
other hand, there are vital social interests served by the free dissemination of
information about events having legal consequences and about legal proceedings
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themselves. The public has a right to know about threats to its safety and
measures aimed at assuring its security. It also has a legitimate interest in the
conduct of judicial proceedings, particularly in matters of general public concern.
Furthermore, the subject matter of legal proceedings is often of direct significance
in debate and deliberation over questions of public policy.
Special rules of confidentiality may validly govern juvenile, domestic relations, and
mental disability proceedings, in addition to other types of litigation. Rule 3.4(c)
requires compliance with such rules.
Rule 3.6 sets forth a basic general prohibition against a lawyer’s making statements
that the lawyer knows or should know will have a substantial likelihood of
materially prejudicing an adjudicative proceeding. Recognizing that the public
value of informed commentary is great and the likelihood of prejudice to a
proceeding by the commentary of a lawyer who is not involved in the proceeding is
small, the rule applies only to lawyers who are, or who have been, involved in the
investigation or litigation of a case, and their associates.
See Rule 3.8(e) for additional duties of prosecutors in connection with extrajudicial
statements about criminal proceedings.
Rule 3.7. Lawyer as Witness.
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the
case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s
firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or
Rule 1.9.
Comment:
Combining the roles of advocate and witness can prejudice the opposing party and
can involve a conflict of interest between the lawyer and client.
The opposing party may properly object where the combination of roles may
prejudice that party’s rights in the litigation. A witness is required to testify on the
basis of personal knowledge, while an advocate is expected to explain and comment
on evidence given by others. It may not be clear whether a statement by an
advocate-witness should be taken as proof or as an analysis of the proof.
Paragraph (a)(1) recognizes that if the testimony will be uncontested, the
ambiguities in the dual role are purely theoretical. Paragraph (a)(2) recognizes that
where the testimony concerns the extent and value of legal services rendered in the
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action in which the testimony is offered, permitting the lawyers to testify avoids the
need for a second trial with new counsel to resolve that issue. Moreover, in such a
situation the judge has firsthand knowledge of the matter in issue; hence, there is
less dependence on the adversary process to test the credibility of the testimony.
Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is
required between the interests of the client and those of the opposing party.
Whether the opposing party is likely to suffer prejudice depends on the nature of
the case, the importance and probable tenor of the lawyer’s testimony, and the
probability that the lawyer’s testimony will conflict with that of other witnesses.
Even if there is risk of such prejudice, in determining whether the lawyer should be
disqualified due regard must be given to the effect of disqualification on the lawyer’s
client. It is relevant that one or both parties could reasonably foresee that the
lawyer would probably be a witness. The principle of imputed disqualification
stated in Rule 1.10 has no application to this aspect of the problem.
Whether the combination of roles involves an improper conflict of interest with
respect to the client is determined by Rule 1.7 or 1.9. For example, if there is likely
to be substantial conflict between the testimony of the client and that of the lawyer
or a member of the lawyer’s firm, the representation is improper. The problem can
arise whether the lawyer is called as a witness on behalf of the client or is called by
the opposing party. Determining whether or not such a conflict exists is primarily
the responsibility of the lawyer involved. See comment to Rule 1.7. If a lawyer who
is a member of a firm may not act as both advocate and witness by reason of conflict
of interest, Rule 1.10 disqualifies the firm also.
Rule 3.8. Special Responsibilities of a Prosecutor.
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by
probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right
to, and the procedure for obtaining, counsel and has been given reasonable
opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial
rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the degree of
the offense, and, in connection with sentencing, disclose to the defense and to the
tribunal all unprivileged mitigating information known to the prosecutor, except
when the prosecutor is relieved of this responsibility by a protective order of the
tribunal; and
(e) exercise reasonable care to prevent investigators, law enforcement personnel,
employees, or other persons assisting or associated with the prosecutor in a criminal
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case from making an extrajudicial statement that the prosecutor would be
prohibited from making under Rule 3.6.
(f) When a prosecutor knows of new, credible, and material evidence creating a
reasonable likelihood that a convicted defendant is innocent of the crime for which
the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay,
and
(ii) undertake further investigation, or make reasonable efforts to cause an
investigation, to determine whether the defendant is innocent of the crime.
(g) When a prosecutor knows of clear and convincing evidence establishing that a
defendant in the prosecutor’s jurisdiction is innocent of the crime for which
defendant was prosecuted, the prosecutor shall seek to remedy the conviction.
(h) A prosecutor’s independent judgment, made in good faith, that the new evidence
is not of such nature as to trigger the obligations of section (f) and (g), though
subsequently determined to have been erroneous, does not constitute a violation of
this Rule.
Comment:
A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate. This responsibility carries with it specific obligations to see that the
defendant is accorded procedural justice and that guilt is decided upon the basis of
sufficient evidence. Precisely how far the prosecutor is required to go in this
direction is a matter of debate. Cf. Rule 3.3(d), governing ex parte proceedings,
among which grand jury proceedings are included. Applicable law may require
other measures by the prosecutor, and knowing disregard of those obligations or a
systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.
Paragraph (c) does not apply to an accused appearing pro se with the approval of
the tribunal. Nor does it forbid the lawful questioning of a suspect who has
knowingly waived the rights to counsel and silence.
The exception in paragraph (d) recognizes that a prosecutor may seek an
appropriate protective order from the tribunal if disclosure of information to the
defense could result in substantial harm to an individual or to the public interest.
In paragraphs (b) and (e), this rule imposes on a prosecutor an obligation to make
reasonable efforts and to take reasonable care to assure that a defendant’s rights
are protected. Of course, not all of the individuals who might encroach upon those
rights are under the control of the prosecutor. The prosecutor cannot be held
responsible for the actions of persons over whom the prosecutor does not exercise
authority. The prosecutor’s obligation is discharged if the prosecutor has taken
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reasonable and appropriate steps to assure that the defendant’s rights are
protected.
Rule 3.9. Advocate in Nonadjudicative Proceedings.
A lawyer representing a client before a legislative or administrative tribunal in a
nonadjudicative proceeding shall disclose that the appearance is in a representative
capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a)
through (c), and 3.5.
Comment:
In representation before bodies such as legislatures, municipal councils, and
executive and administrative agencies acting in a rule-making or policy-making
capacity, lawyers present facts, formulate issues, and advance argument in the
matters under consideration. The decision-making body, like a court, should be able
to rely on the integrity of the submissions made to it. A lawyer appearing before
such a body should deal with the tribunal honestly and in conformity with
applicable rules of procedure.
Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do
before a court. The requirements of this rule therefore may subject lawyers to
regulations inapplicable to advocates who are not lawyers. However, legislatures
and administrative agencies have a right to expect lawyers to deal with them as
they deal with courts.
This rule does not apply to representation of a client in a negotiation or other
bilateral transaction with a governmental agency; representation in such a
transaction is governed by Rules 4.1 through 4.4.
RULES 4.1–4.4. TRANSACTIONS WITH PERSONS OTHER THAN
CLIENTS.
Rule 4.1. Truthfulness in Statements to Others.
In the course of representing a client, a lawyer shall not knowingly make a false
statement of material fact or law to a third person.
Comment:
Misrepresentation.
A lawyer is required to be truthful when dealing with others on a client’s behalf, but
generally has no affirmative duty to inform an opposing party of relevant facts. A
misrepresentation can occur if the lawyer incorporates or affirms a statement of
another person that the lawyer knows is false.
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Statements of Fact.
This rule refers to statements of fact. Whether a particular statement should be
regarded as one of fact can depend on the circumstances. Under generally accepted
conventions in negotiation, certain types of statements ordinarily are not taken as
statements of material fact. Estimates of price or value placed on the subject of a
transaction and a party’s intentions as to an acceptable settlement of a claim are in
this category, and so is the existence of an undisclosed principal except where
nondisclosure of the principal would constitute fraud.
Fraud by Client.
Making a false statement may include the failure to make a statement in
circumstances in which silence is equivalent to making such a statement. Thus,
where the lawyer has made a statement that the lawyer believed to be true when
made but later discovers that the statement was not true, in some circumstances
failure to correct the statement may be equivalent to making a statement that is
false. When the falsity of the original statement by the lawyer resulted from
reliance upon what was told to the lawyer by the client and if the original statement
if left uncorrected may further a criminal or fraudulent act by the client, the
provisions of Rule 1.6(c)(3) give the lawyer discretion to make the disclosure
necessary to rectify the consequences.
Rule 4.2. Communication With a Person Represented by Counsel.
(a) In representing a client, a lawyer shall not communicate about the subject of the
representation with a person whom the lawyer knows to be represented in the
matter by another lawyer, unless the lawyer has the consent of the other lawyer or
is authorized by law to do so.
(b) An otherwise self-represented person receiving limited representation in
accordance with Rule 1.2(b) is considered to be self-represented for purposes of this
rule unless the opposing lawyer knows of, or has been provided with, a written
notice of limited appearance comporting with MCR 2.117(B)(2)(c) or other written
communication advising of the limited scope representation. Oral communication
shall be made first to the limited scope representation lawyer, who may, after
consultation with the client, authorize oral communications directly with the client
as agreed.
(c) Until a notice of termination of limited scope representation comporting with
MCR 2.117(B)(2)(c) is filed, or other written communication terminating the limited
scope representation is provided, all written communication, both court filings and
otherwise, shall be served upon both the client and the limited scope representation
attorney.
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Comment:
This rule does not prohibit communication with a party, or an employee or agent of
a party, concerning matters outside the representation. For example, the existence
of a controversy between a government agency and a private party, or between two
organizations, does not prohibit a lawyer for either from communicating with
nonlawyer representatives of the other regarding a separate matter. Also, parties
to a matter may communicate directly with each other and a lawyer having
independent justification for communicating with the other party is permitted to do
so. Communications authorized by law include, for example, the right of a party to
a controversy with a government agency to speak with government officials about
the matter.
In the case of an organization, this rule prohibits communications by a lawyer for
one party concerning the matter in representation with persons having a
managerial responsibility on behalf of the organization, and with any other person
whose act or omission in connection with that matter may be imputed to the
organization for purposes of civil or criminal liability or whose statement may
constitute an admission on the part of the organization. If an agent or employee of
the organization is represented in the matter by separate counsel, the consent by
that counsel to a communication will be sufficient for purposes of this rule.
Compare Rule 3.4(f).
This rule also covers any person, whether or not a party to a formal proceeding, who
is represented by counsel concerning the matter in question.
Rule 4.3. Dealing With a Self-Represented Person.
(a) In dealing on behalf of a client with a person who is not represented by counsel,
a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer
knows or reasonably should know that the self-represented person misunderstands
the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct
the misunderstanding.
(b) Clients receiving representation under a notice of limited appearance
comporting with MCR 2.117(B)(2)(c) or other written communication advising of the
limited scope representation are not self-represented persons for matters within the
scope of the limited appearance, until a notice of termination of limited appearance
representation comporting with MCR 2.117(B)(2)(c) is filed or other written
communication terminating the limited scope representation is in effect. See Rule
4.2.
Comment:
An unrepresented person, particularly one not experienced in dealing with legal
matters, might assume that a lawyer is disinterested in loyalties or is a
disinterested authority on the law even when the lawyer represents a client.
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During the course of a lawyer’s representation of a client, the lawyer should not give
advice to an unrepresented person other than the advice to obtain counsel.
Rule 4.4. Respect for Rights of Third Persons.
In representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person, or use methods of
obtaining evidence that violate the legal rights of such a person.
Comment:
Responsibility to a client requires a lawyer to subordinate the interests of others to
those of the client, but that responsibility does not imply that a lawyer may
disregard the rights of third persons. It is impractical to catalogue all such rights,
but they include legal restrictions on methods of obtaining evidence from third
persons.
RULES 5.1–5.6. LAW FIRMS AND ASSOCIATIONS.
Rule 5.1. Responsibilities of a Partner or Supervisory Lawyer.
(a) A partner in a law firm shall make reasonable efforts to ensure that the firm has
in effect measures giving reasonable assurance that all lawyers in the firm conform
to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make
reasonable efforts to ensure that the other lawyer conforms to the Rules of
Professional Conduct.
(c) A lawyer shall be responsible for another lawyer’s violation of the rules of
professional conduct if:
(1) the lawyer orders or, with knowledge of the relevant facts and the specific
conduct, ratifies the conduct involved; or
(2) the lawyer is a partner in the law firm in which the other lawyer practices or has
direct supervisory authority over the other lawyer, and knows of the conduct at a
time when its consequences can be avoided or mitigated but fails to take reasonable
remedial action.
Comment:
Paragraphs (a) and (b) refer to lawyers who have supervisory authority over the
professional work of a firm or a legal department of a government agency. This
includes members of a partnership and the shareholders in a law firm organized as
a professional corporation. This also includes lawyers having supervisory authority
in the law department of an enterprise or government agency and lawyers who have
intermediate managerial responsibilities in a firm.
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The measures required to fulfill the responsibility prescribed in paragraphs (a) and
(b) can depend on the firm’s structure and the nature of its practice. In a small
firm, informal supervision and occasional admonition ordinarily might be sufficient.
In a large firm, or in practice situations in which intensely difficult ethical problems
frequently arise, more elaborate procedures may be necessary. Some firms, for
example, have a procedure whereby junior lawyers can make confidential referral of
ethical problems directly to a designated senior partner or special committee. See
Rule 5.2. Firms, whether large or small, may also rely on continuing legal
education in professional ethics. In any event, the ethical atmosphere of a firm can
influence the conduct of all its members and a lawyer having authority over the
work of another may not assume that the subordinate lawyer will inevitably
conform to the rules.
Paragraph (c)(1) expresses a general principle concerning responsibility for acts of
another. See also Rule 8.4(a).
Paragraph (c)(2) defines the duty of a lawyer having direct supervisory authority
over performance of specific legal work by another lawyer. Whether a lawyer has
such supervisory authority in particular circumstances is a question of fact.
Partners of a private firm have at least indirect responsibility for all work being
done by the firm, while a partner in charge of a particular matter ordinarily has
direct authority over other firm lawyers engaged in the matter. Appropriate
remedial action by a partner would depend on the immediacy of the partner’s
involvement and the seriousness of the misconduct. The supervisor is required to
intervene to prevent avoidable consequences of misconduct if the supervisor knows
that the misconduct occurred. Thus, if a supervising lawyer knows that a
subordinate misrepresented a matter to an opposing party in negotiation, the
supervisor as well as the subordinate has a duty to correct the resulting
misapprehension.
Professional misconduct by a lawyer under supervision could reveal a violation of
paragraph (b) on the part of the supervisory lawyer even though it does not entail a
violation of paragraph (c) because there was no direction, ratification, or knowledge
of the violation.
Apart from this rule and Rule 8.4(a), a lawyer does not have disciplinary liability for
the conduct of a partner, associate, or subordinate. Whether a lawyer may be liable
civilly or criminally for another lawyer’s conduct is a question of law beyond the
scope of these rules.
Rule 5.2. Responsibilities of a Subordinate Lawyer.
(a) A lawyer is bound by the rules of professional conduct notwithstanding that the
lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the rules of professional conduct if that
lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an
arguable question of professional duty.
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Comment:
Although a lawyer is not relieved of responsibility for a violation by the fact that the
lawyer acted at the direction of a supervisor, that fact may be relevant in
determining whether a lawyer had the knowledge required to render conduct a
violation of the rules. For example, if a subordinate filed a frivolous pleading at the
direction of a supervisor, the subordinate would not be guilty of a professional
violation unless the subordinate knew of the document’s frivolous character.
When lawyers in a supervisor-subordinate relationship encounter a matter
involving professional judgment as to ethical duty, the supervisor may assume
responsibility for making the judgment. Otherwise a consistent course of action or
position could not be taken. If the question can reasonably be answered only one
way, the duty of both lawyers is clear and they are equally responsible for fulfilling
it. However, if the question is reasonably arguable, someone has to decide upon the
course of action. That authority ordinarily reposes in the supervisor, and a
subordinate may be guided accordingly. For example, if a question arises whether
the interests of two clients conflict under Rule 1.7, the supervisor’s reasonable
resolution of the question should protect the subordinate professionally if the
resolution is subsequently challenged.
Rule 5.3. Responsibilities Regarding Nonlawyer Assistants.
With respect to a nonlawyer employed by, retained by, or associated with a lawyer:
(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has
in effect measures giving reasonable assurance that the person’s conduct is
compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make
reasonable efforts to ensure that the person’s conduct is compatible with the
professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a
violation of the rules of professional conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with knowledge of the relevant facts and the specific
conduct, ratifies the conduct involved; or
(2) the lawyer is a partner in the law firm in which the person is employed or has
direct supervisory authority over the person and knows of the conduct at a time
when its consequences can be avoided or mitigated but fails to take reasonable
remedial action.
Comment:
Lawyers generally employ assistants in their practice, including secretaries,
investigators, law student interns, and paraprofessionals. Such assistants, whether
employees or independent contractors, act for the lawyer in rendition of the lawyer’s
professional services. A lawyer should give such assistants appropriate instruction
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and supervision concerning the ethical aspects of their employment, particularly
regarding the obligation not to disclose information relating to representation of the
client, and should be responsible for their work product. The measures employed in
supervising nonlawyers should take account of the fact that they do not have legal
training and are not subject to professional discipline.
As does Rule 3.8, this rule may in certain situations impose on a prosecutor an
obligation to make reasonable efforts to assure that a defendant’s rights are
protected. Of course, not all of the individuals who might encroach upon those
rights are under the control of the prosecutor, but where this rule applies, the
prosecutor must take reasonable and appropriate steps to assure that the
defendant’s rights are protected.
Rule 5.4. Professional Independence of a Lawyer.
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may
provide for the payment of money, over a reasonable period of time after the
lawyer’s death, to the lawyer’s estate, or to one or more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared
lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other
representative of that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or
retirement plan, even though the plan is based in whole or in part on a profit-
sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that
employed, retained, or recommended employment of the lawyer in the matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of
the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the
lawyer to render legal services for another to direct or regulate the lawyer’s
professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or
association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of
the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable
time during administration;
(2) a nonlawyer is a corporate director or officer thereof, or one who occupies a
position of similar responsibility in any form of association other than a corporation;
or
(3) a nonlawyer has the right to direct or control the professional judgment of a
lawyer.
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Comment:
The provisions of this rule express traditional limitations on sharing fees. These
limitations are to protect the lawyer’s professional independence of judgment.
Where someone other than the client pays the lawyer’s fee or salary, or recommends
employment of the lawyer, that arrangement does not modify the lawyer’s
obligation to the client. As stated in paragraph (c), such arrangements should not
interfere with the lawyer’s professional judgment.
This rule also expresses traditional limitations on permitting a third party to direct
or regulate the lawyer’s professional judgment in rendering legal services to
another. See also Rule 1.8(f) (lawyer may accept compensation from a third party
as long as there is no interference with the lawyer’s independent professional
judgment and the client gives consent.
Rule 5.5. Unauthorized Practice of Law; Multijurisdictional Practice of
Law.
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of
the legal profession in that jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by law or these rules, establish an office or other systematic
and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to
practice law in this jurisdiction.
(c) A lawyer admitted in another jurisdiction of the United States and not disbarred
or suspended from practice in any jurisdiction may provide temporary legal services
in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this
jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a
tribunal in this or another jurisdiction, if the lawyer or a person the lawyer is
assisting is authorized by law to appear in such proceeding or reasonably expects to
be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or
other alternative dispute resolution proceeding in this or another jurisdiction, if the
services arise out of or are reasonably related to the lawyer’s practice in a
jurisdiction in which the lawyer is admitted to practice and are not services for
which the forum requires pro hac vice admission; or
(4) are not covered by paragraphs (c)(2) or (c)(3) and arise out of or are reasonably
related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to
practice.
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(d) A lawyer admitted in another jurisdiction of the United States and not disbarred
or suspended from practice in any jurisdiction may provide legal services in this
jurisdiction that:
(1) are provided to the lawyer’s employer or its organizational affiliates and are not
services for which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized by law to provide in this jurisdiction.
(e) A lawyer admitted in another jurisdiction of the United States and not disbarred
or suspended may practice the law of the jurisdiction(s) in which the lawyer is
properly licensed while physically present in the State of Michigan, if the lawyer
does not:
(1) hold themselves out as having an office in the State of Michigan,
(2) provide legal services in the State of Michigan, unless otherwise permitted by
law or Supreme Court rule, or
(3) offer to provide legal services in the State of Michigan, unless otherwise
permitted by law or Supreme Court rule.
Comment:
A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to
practice. A lawyer may be admitted to practice law in a jurisdiction on a regular
basis or may be authorized by law, order, or court rule to practice for a limited
purpose or on a restricted basis. See, for example, MCR 8.126, which permits,
under certain circumstances, the temporary admission to the bar of a person who is
licensed to practice law in another jurisdiction, and Rule 5(E) of the Rules for the
Board of Law Examiners, which permits a lawyer who is admitted to practice in a
foreign country to practice in Michigan as a special legal consultant, without
examination, provided certain conditions are met.
Paragraph (a) applies to the unauthorized practice of law by a lawyer, whether
through the lawyer’s direct action or by the lawyer assisting another person. The
definition of the practice of law is established by law and varies from one
jurisdiction to another. Whatever the definition, limiting the practice of law to
members of the bar protects the public against rendition of legal services by
unqualified persons. This rule does not prohibit a lawyer from employing the
services of paraprofessionals and delegating functions to them, so long as the lawyer
supervises the delegated work and retains responsibility for it. See Rule 5.3.
A lawyer may provide professional advice and instruction to nonlawyers whose
employment requires knowledge of the law, for example, claims adjusters,
employees of financial or commercial institutions, social workers, accountants and
persons employed in government agencies. Lawyers also may assist independent
nonlawyers, such as paraprofessionals, who are authorized by the law of a
jurisdiction to provide particular law-related services. In addition, a lawyer may
counsel nonlawyers who wish to proceed pro se.
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Other than as authorized by law or this rule, a lawyer who is not admitted to
practice generally in this jurisdiction violates paragraph (b) if the lawyer
establishes an office or other systematic and continuous presence in this jurisdiction
for the practice of law. Presence may be systematic and continuous even if the
lawyer is not physically present here. Such a lawyer must not hold out to the public
or otherwise represent that the lawyer is admitted to practice law in this
jurisdiction. See also Rules 7.1(a) and 7.5(b).
There are occasions on which a lawyer admitted to practice in another jurisdiction
of the United States and not disbarred or suspended from practice in any
jurisdiction may provide legal services on a temporary basis in this jurisdiction
under circumstances that do not create an unreasonable risk to the interests of
clients, the public, or the courts. Paragraph (c) identifies four such circumstances.
The fact that conduct is not so identified does not indicate whether the conduct is
authorized. With the exception of paragraphs (d)(1) and (d)(2), this rule does not
authorize a lawyer to establish an office or other systematic and continuous
presence in this jurisdiction without being admitted here to practice generally.
There is no single test to determine whether a lawyer’s services are provided on a
“temporary basis” in this jurisdiction and, therefore, may be permissible under
paragraph (c). Services may be “temporary” even though the lawyer provides
services in this jurisdiction on a recurring basis or for an extended period of time, as
when the lawyer is representing a client in a single lengthy negotiation or litigation.
Paragraphs (c) and (d) apply to lawyers who are admitted to practice law in any
jurisdiction of the United States, including the District of Columbia and any state,
territory, or commonwealth. The word “admitted” in paragraph (c) contemplates
that the lawyer is authorized to practice and is in good standing to practice in the
jurisdiction in which the lawyer is admitted and excludes a lawyer who, while
technically admitted, is not authorized to practice because, for example, the lawyer
is on inactive status or is suspended for nonpayment of dues.
Paragraph (c)(1) recognizes that the interests of clients and the public are protected
if a lawyer admitted only in another jurisdiction associates with a lawyer licensed to
practice in this jurisdiction. For this paragraph to apply, however, the lawyer
admitted to practice in this jurisdiction must actively participate in and share
responsibility for the representation of the client.
Lawyers not admitted to practice generally in a jurisdiction may be authorized by
law or order of a tribunal or an administrative agency to appear before the tribunal
or agency. This authority may be granted pursuant to formal rules governing
admission pro hac vice, such as MCR 8.126, or pursuant to informal practice of the
tribunal or agency. Under paragraph (c)(2), a lawyer does not violate this rule when
the lawyer appears before a tribunal or agency pursuant to such authority. To the
extent that a law or court rule of this jurisdiction requires that a lawyer who is not
admitted to practice in this jurisdiction obtain admission pro hac vice before
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appearing before a tribunal or administrative agency, this rule requires the lawyer
to obtain that authority.
Paragraph (c)(2) also provides that a lawyer rendering services in this jurisdiction
on a temporary basis does not violate this rule when the lawyer engages in conduct
in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is
authorized to practice law or in which the lawyer reasonably expects to be admitted
pro hac vice under MCR 8.126. Examples of such conduct include meetings with a
client, interviews of potential witnesses, and the review of documents. Similarly, a
lawyer admitted only in another jurisdiction may engage temporarily in this
jurisdiction in conduct related to pending litigation in another jurisdiction in which
the lawyer is or reasonably expects to be authorized to appear, including taking
depositions in this jurisdiction.
When a lawyer has been or reasonably expects to be admitted to appear before a
court or administrative agency, paragraph (c)(2) also permits conduct by lawyers
who are associated with that lawyer in the matter but who do not expect to appear
before the court or administrative agency. For example, subordinate lawyers may
conduct research, review documents, and attend meetings with witnesses in support
of the lawyer responsible for the litigation.
Paragraph (c)(3) permits a lawyer admitted to practice law in another jurisdiction to
perform services on a temporary basis in this jurisdiction, provided that those
services are in or are reasonably related to a pending or potential arbitration,
mediation, or other alternative dispute resolution proceeding in this or another
jurisdiction and the services arise out of or are reasonably related to the lawyer’s
practice in a jurisdiction in which the lawyer is admitted to practice. The lawyer,
however, must obtain admission pro hac vice under MCR 8.126 in the case of a
court-annexed arbitration or mediation, or otherwise if required by court rule or
law.
Paragraph (c)(4) permits a lawyer admitted in another jurisdiction to provide
certain legal services on a temporary basis in this jurisdiction if they arise out of or
are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer
is admitted but are not covered by paragraphs (c)(2) or (c)(3). These services include
both legal services and services performed by nonlawyers that would be considered
the practice of law if performed by lawyers.
Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably
related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted. A
variety of factors indicate such a relationship. The lawyer’s client previously may
have been represented by the lawyer or may reside in or have substantial contacts
with the jurisdiction in which the lawyer is admitted. The matter, although
involving other jurisdictions, may have a significant connection with that
jurisdiction. In other cases, significant aspects of the lawyer’s work may be
conducted in that jurisdiction or a significant aspect of the matter may involve the
law of that jurisdiction. The necessary relationship may arise when the client’s
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activities or the legal issues involve multiple jurisdictions, such as when the officers
of a multinational corporation survey potential business sites and seek the services
of the corporation’s lawyer in assessing the relative merits of each. In addition, the
services may draw on the lawyer’s recognized expertise, as developed through the
regular practice of law on behalf of clients in matters involving a particular body of
federal, nationally uniform, foreign, or international law.
Paragraph (d) identifies two circumstances in which a lawyer who is admitted to
practice in another jurisdiction of the United States and is not disbarred or
suspended from practice in any jurisdiction may establish an office or other
systematic and continuous presence in this jurisdiction for the practice of law as
well as to provide legal services on a temporary basis. Except as provided in
paragraphs (d)(1) and (d)(2), a lawyer who is admitted to practice law in another
jurisdiction and who establishes an office or other systematic or continuous
presence in this jurisdiction must become admitted to practice law generally in this
jurisdiction.
Paragraph (d)(1) applies to a lawyer who is employed by a client to provide legal
services to the client or its organizational affiliates, i.e., entities that control, are
controlled by, or are under common control with the employer. This paragraph does
not authorize the provision of personal legal services to the employer’s officers or
employees. This paragraph applies to in-house corporate lawyers, government
lawyers, and others who are employed to render legal services to the employer. The
lawyer’s ability to represent the employer outside the jurisdiction in which the
lawyer is licensed generally serves the interests of the employer and does not create
an unreasonable risk to the client and others because the employer is well situated
to assess the lawyer’s qualifications and the quality of the lawyer’s work.
If an employed lawyer establishes an office or other systematic presence in this
jurisdiction for the purpose of rendering legal services to the employer, the lawyer
may be subject to registration or other requirements, including assessments for
client protection funds and mandatory continuing legal education.
Paragraph (d)(2) recognizes that a lawyer may provide legal services in a
jurisdiction in which the lawyer is not licensed when authorized to do so by statute,
court rule, executive regulation, or judicial precedent.
A lawyer who practices law in this jurisdiction is subject to the disciplinary
authority of this jurisdiction. See Rule 8.5(a).
In some circumstances, a lawyer who practices law in this jurisdiction pursuant to
paragraphs (c) or (d) may be required to inform the client that the lawyer is not
licensed to practice law in this jurisdiction. For example, such disclosure may be
required when the representation occurs primarily in this jurisdiction and requires
knowledge of the law of this jurisdiction. See Rule 1.4(b).
Paragraphs (c) and (d) do not authorize lawyers who are admitted to practice in
other jurisdictions to advertise legal services to prospective clients in this
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jurisdiction. Whether and how lawyers may communicate the availability of their
services to prospective clients in this jurisdiction is governed by Rules 7.1 to 7.5.
Paragraph (e) is not meant to infringe upon any authorized practice in the federal
courts. See, e.g., In re Desilets, 291 F3d 925 (CA 6, 2002).
Rule 5.6. Restrictions on Right to Practice.
A lawyer shall not participate in offering or making:
(a) a partnership or employment agreement that restricts the right of a lawyer to
practice after termination of the relationship, except an agreement concerning
benefits upon retirement or as permitted in Rule 1.17; or
(b) an agreement in which a restriction on the lawyer’s right to practice is part of
the settlement of a controversy between private parties.
Comment:
An agreement restricting the right of a lawyer to practice after leaving a firm not
only limits the lawyer’s professional autonomy but also limits the freedom of clients
to choose a lawyer. Paragraph (a) prohibits such agreements except for restrictions
incident to provisions concerning retirement benefits for service with the firm or
restrictions included in the terms of a sale pursuant to MRPC 1.17.
Paragraph (b) prohibits a lawyer from agreeing not to represent other persons in
connection with settling a claim on behalf of a client.
Rule 5.7. Responsibilities Regarding Law-Related Services.
(a) A lawyer shall be subject to the Michigan Rules of Professional Conduct with
respect to the provision of law-related services, as defined in paragraph (b), if the
law-related services are provided:
(1) by the lawyer in circumstances that are not distinct from the lawyer’s provision
of legal services to clients; or
(2) in other circumstances by an entity controlled by the lawyer individually or with
others if the lawyer fails to take reasonable measures to assure that a person
obtaining the law-related services knows that the services are not legal services and
that the protections of the client-lawyer relationship do not exist.
(b) The term “law-related services” denotes services that might reasonably be
performed in conjunction with and in substance are related to the provision of legal
services, and that are not prohibited as unauthorized practice of law when provided
by a nonlawyer.
Comment:
When a lawyer performs law-related services or controls an organization that does
so, there exists the potential for ethical problems. Principal among these is the
possibility that the person for whom the law-related services are performed fails to
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understand that the services may not carry with them the protections normally
afforded as part of the client-lawyer relationship. The recipient of the law-related
services may expect, for example, that the protection of client confidences,
prohibitions against representation of persons with conflicting interests, and
obligations of a lawyer to maintain professional independence apply to the provision
of law-related services when that may not be the case.
Rule 5.7 applies to the provision of law-related services by a lawyer even when the
lawyer does not provide any legal services to the person for whom the law-related
services are performed, and regardless of whether the law-related services are
performed through a law firm or a separate entity. This rule identifies the
circumstances in which all the Michigan Rules of Professional Conduct apply to the
provision of law-related services. Even when those circumstances do not exist,
however, the conduct of a lawyer involved in the provision of law-related services is
subject to those rules that apply generally to lawyer conduct, regardless whether
the conduct involves the provision of legal services. See, e.g., Rule 8.4.
When law-related services are provided by a lawyer under circumstances that are
not distinct from the lawyer’s provision of legal services to clients, the lawyer
providing the law-related services must adhere to the requirements of the Michigan
Rules of Professional Conduct as provided in paragraph (a)(1). Even when the law-
related and legal services are provided in circumstances that are distinct from each
other, for example through separate entities or different support staff within the
law firm, the Michigan Rules of Professional Conduct apply to the lawyer as
provided in paragraph (a)(2) unless the lawyer takes reasonable measures to assure
that the recipient of the law-related services knows that the services are not legal
services and that the protections of the client-lawyer relationship do not apply.
Law-related services also may be provided through an entity that is distinct from
that through which the lawyer provides legal services. If the lawyer individually or
with others has control of such an entity’s operations, this rule requires the lawyer
to take reasonable measures to assure that each person using the services of the
entity knows that the services provided by the entity are not legal services and that
the Michigan Rules of Professional Conduct that relate to the client-lawyer
relationship do not apply. A lawyer’s control of an entity extends to the ability to
direct its operation. Whether a lawyer has such control will depend upon the
circumstances of the particular case.
When a client-lawyer relationship exists with a person who is referred by a lawyer
to a separate law-related service entity controlled by the lawyer, individually or
with others, the lawyer must comply with Rule 1.8(a).
In taking the reasonable measures referred to in paragraph (a)(2) to assure that a
person using law-related services understands the practical effect or significance of
the inapplicability of the Michigan Rules of Professional Conduct, the lawyer should
communicate to the person receiving the law-related services, in a manner sufficient
to assure that the person understands the significance of the fact, that the
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relationship of the person to the business entity will not be a client-lawyer
relationship. The communication should be made, preferably in writing, before law-
related services are provided or before an agreement is reached for provision of such
services.
The burden is upon the lawyer to show that the lawyer has taken reasonable
measures under the circumstances to communicate the desired understanding. For
instance, a sophisticated user of law-related services, such as a publicly held
corporation, may require a lesser explanation than someone unaccustomed to
making distinctions between legal services and law-related services, such as an
individual seeking tax advice from a lawyer-accountant or investigative services in
connection with a lawsuit.
Regardless of the sophistication of potential recipients of law-related services, a
lawyer should take special care to keep separate the provision of law-related and
legal services in order to minimize the risk that the recipient will assume that the
law-related services are legal services. The risk of such confusion is especially acute
when the lawyer renders both types of services with respect to the same matter.
Under some circumstances, the legal and law-related services may be so closely
entwined that they cannot be distinguished from each other, and the requirement of
disclosure and consultation imposed by paragraph (a)(2) of the rule cannot be met.
In such a case, a lawyer will be responsible for assuring that both the lawyer’s
conduct and, to the extent required by Rule 5.3, that of nonlawyer employees in the
distinct entity that the lawyer controls, comply in all respects with the Michigan
Rules of Professional Conduct.
A broad range of economic and other interests of clients may be served by lawyers’
engaging in the delivery of law-related services. Examples of law-related services
include providing title insurance, financial planning, accounting, trust services, real
estate counseling, legislative lobbying, economic analysis, social work, psychological
counseling, tax preparation, and patent, medical, or environmental consulting.
When a lawyer is obliged to accord the recipients of such services the protections of
those rules that apply to the client-lawyer relationship, the lawyer must take
special care to heed the proscriptions of the rules addressing conflicts of interest,
and to scrupulously adhere to the requirements of Rule 1.6 relating to disclosure of
confidential information. The promotion of the law-related services must also in all
respects comply with Rules 7.1 through 7.3, dealing with advertising and
solicitation. In that regard, lawyers should take special care to identify the
obligations that may be imposed as a result of a jurisdiction’s decisional law.
When the full protections of all the Michigan Rules of Professional Conduct do not
apply to the provision of law-related services, principles of law external to the rules,
for example, the law of principal and agent, govern the legal duties owed to those
receiving the services. Those other legal principles may establish a different degree
of protection for the recipient with respect to confidentiality of information, conflicts
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of interest, and permissible business relationships with clients. See also Rule 8.4
(Misconduct).
RULES 6.1–6.6. PUBLIC SERVICE.
Rule 6.1. Pro Bono Publico Service.
A lawyer should render public interest legal service. A lawyer may discharge this
responsibility by providing professional services at no fee or a reduced fee to persons
of limited means, or to public service or charitable groups or organizations. A
lawyer may also discharge this responsibility by service in activities for improving
the law, the legal system, or the legal profession, and by financial support for
organizations that provide legal services to persons of limited means.
Comment:
The ABA House of Delegates has formally acknowledged “the basic responsibility of
each lawyer engaged in the practice of law to provide public interest legal services”
without fee, or at a substantially reduced fee, in one or more of the following areas:
poverty law, civil rights law, public rights law, charitable organization
representation and the administration of justice. This rule expresses that policy,
but is not intended to be enforced through disciplinary process.
The rights and responsibilities of individuals and organizations in the United States
are increasingly defined in legal terms. As a consequence, legal assistance in coping
with the web of statutes, rules and regulations is imperative for persons of modest
and limited means, as well as for the relatively well-to-do.
The basic responsibility for providing legal services for those unable to pay
ultimately rests upon the individual lawyer, and personal involvement in the
problems of the disadvantaged can be one of the most rewarding experiences in the
life of a lawyer. Every lawyer, regardless of professional prominence or professional
workload, should find time to participate in or otherwise support the provision of
legal services to the disadvantaged. The provision of free legal services to those
unable to pay reasonable fees continues to be an obligation of each lawyer as well as
the profession generally, but the efforts of individual lawyers are often not enough
to meet the need. Thus, it has been necessary for the profession and government to
institute additional programs to provide legal services. Accordingly, legal aid
offices, lawyer referral services and other related programs have been developed,
and others will be developed by the profession and government. Every lawyer
should support all proper efforts to meet this need for legal services.
Rule 6.2. Accepting Appointments.
A lawyer shall not seek to avoid appointment by a tribunal to represent a person
except for good cause, such as:
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(a) representing the client is likely to result in violation of the Rules of Professional
Conduct or other law;
(b) representing the client is likely to result in an unreasonable financial burden on
the lawyer; or
(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the
client-lawyer relationship or the lawyer’s ability to represent the client.
Comment:
A lawyer ordinarily is not obliged to accept a client whose character or cause the
lawyer regards as repugnant. The lawyer’s freedom to select clients is, however,
qualified. All lawyers have a responsibility to assist in providing pro bono publico
service. See Rule 6.1. An individual lawyer fulfills this responsibility by accepting
a fair share of unpopular matters or indigent or unpopular clients. A lawyer may
also be subject to appointment by a court to serve unpopular clients or persons
unable to afford legal services.
Appointed Counsel.
For good cause, a lawyer may seek to decline an appointment to represent a person
who cannot afford to retain counsel or whose cause is unpopular. Good cause exists
if the lawyer could not handle the matter competently (see Rule 1.1) or if
undertaking the representation would result in an improper conflict of interest.
Good cause also exists if the client or the cause is so repugnant to the lawyer as to
be likely to impair the client-lawyer relationship or the lawyer’s ability to represent
the client. A lawyer may also seek to decline an appointment if acceptance would be
unreasonably burdensome, for example, when it would impose a financial sacrifice
so great as to be unjust.
An appointed lawyer has the same obligations to the client as retained counsel,
including the obligations of loyalty and confidentiality, and is subject to the same
limitations on the client-lawyer relationship, such as the obligation to refrain from
assisting the client in violation of the rules.
Rule 6.3. Legal Services Organizations and Lawyer Referral Services.
(a) A lawyer may serve as a director, officer, or member of a legal services
organization, apart from the law firm in which the lawyer practices,
notwithstanding that the organization serves persons having interests adverse to a
client of the lawyer. The lawyer shall not knowingly participate in a decision or
action of the organization:
(1) if participating in the decision or action would be incompatible with the lawyer’s
obligations to a client under Rule 1.7; or
(2)where the decision or action could have a material adverse effect on the
representation of a client of the organization whose interests are adverse to a client
of the lawyer.
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(b) A lawyer may participate in and pay the usual charges of a not-for-profit lawyer
referral service that recommends legal services to the public if that service:
(1) maintains registration as a qualified service with the State Bar, under such
rules as may be adopted by the State Bar, consistent with these rules;
(2) is operated in the public interest for the purpose of referring prospective clients
to lawyers; pro bono and public service legal programs; and government, consumer
or other agencies that can best provide the assistance needed by clients, in light of
their financial circumstances, spoken language, any disability, geographical
convenience, and the nature and complexity of their problems;
(3) is open to all lawyers licensed and eligible to practice in this state who maintain
an office within the geographical area served, and who:
(i) meet reasonable and objective requirements of experience, as established by the
service;
(ii) pay reasonable registration and membership fees not to exceed an amount
established by the State Bar to encourage widespread lawyer participation; and
(iii) maintain a policy of errors and omissions insurance, or provide proof of
financial responsibility, in an amount at least equal to the minimum established by
the State Bar;
(4) ensures that the combined fees and expenses charged a prospective client by a
qualified service and a lawyer to whom the client is referred not exceed the total
charges the client would have incurred had no referral service been involved; and
(5) makes no fee-generating referral to any lawyer who has an ownership interest
in, or who operates or is employed by, the qualified service, or who is associated
with a law firm that has an ownership interest in, or operates or is employed by, a
qualified service.
(c) The requirements of subrule (b) do not apply to
(1) a plan of prepaid legal services insurance authorized to operate in the state, or a
group or prepaid legal plan, whether operated by a union, trust, mutual benefit or
aid association, corporation or other entity or person, which provides unlimited or a
specified amount of telephone advice or personal communications at no charge to
the members or beneficiaries, other than a periodic membership or beneficiary fee,
and furnishes to or pays for legal services for its members or beneficiaries;
(2) individual lawyer-to-lawyer referrals;
(3) lawyers jointly advertising their services in a manner that discloses that such
advertising is solely to solicit clients for themselves; or
(4) any pro bono legal assistance program that does not accept fees from lawyers or
clients for referrals.
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(d) The State Bar or any aggrieved person may seek an injunction in the circuit
court to enjoin violations of subrule (b). In the event the injunction is granted, the
petitioner shall be entitled to reasonable costs and attorney fees.
(e) A lawyer may participate in and pay the usual charges of a plan or organization
defined in subrule (c)(1), if that plan or organization:
(1) has filed with the State Bar of Michigan a written plan disclosing the name
under which it operates; the name, address, and telephone number of its chief
operating officer; and the plan terms, conditions of eligibility, schedule of benefits,
subscription charges and agreements with counsel;
(2) updates its filings within 30 days of any material change;
(3) in January of each year following its inception files a statement representing
that it continues to do business under the terms and conditions reflected in its
filings as amended to date.
These filing requirements shall not apply to not-for-profit legal aid associations.
Comment:
Lawyers should be encouraged to support and participate in legal service
organizations. A lawyer who is an officer or a member of such an organization does
not thereby have a client-lawyer relationship with persons served by the
organization. However, there is potential conflict between the interests of such
persons and the interests of the lawyer’s clients. If the possibility of such conflict
disqualified a lawyer from serving on the board of a legal services organization, the
profession’s involvement in such organizations would be severely curtailed.
It may be necessary in appropriate cases to reassure a client of the organization
that the representation will not be affected by conflicting loyalties of a member of
the board. Established, written policies in this respect can enhance the credibility
of such assurances.
The restriction on lawyer participation with legal services and lawyer referral
service organizations to those that file their plans with the State Bar of Michigan is
intended to facilitate the establishment of a single, central repository of all such
organizations in Michigan and of the terms and conditions under which they
operate. The existence of that repository would make it possible for the State Bar of
Michigan annually to prepare and make publicly available a directory of legal
services and lawyer referral service organizations in Michigan. Absent such a
central repository, reliable information concerning the status of all such
organizations might not be available.
The 1990 amendment to MRPC 6.3(b) was made at the request of the State Bar of
Michigan.
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Rule 6.4. Law Reform Activities Affecting Client Interests.
A lawyer may serve as a director, officer, or member of an organization involved in
reform of the law or administration of the law notwithstanding that the reform may
affect the interests of a client of the lawyer. When the lawyer knows that the
interests of a client may be materially benefitted by a decision in which the lawyer
participates, the lawyer shall disclose that fact but need not identify the client.
Comment:
Lawyers involved in organizations seeking law reform generally do not have a
client-lawyer relationship with the organization. Otherwise, it might follow that a
lawyer could not be involved in a bar association law reform program that might
indirectly affect a client. See also the comment to Rule 1.2. For example, a lawyer
specializing in antitrust litigation might be regarded as disqualified from
participating in drafting revisions of rules governing that subject. In determining
the nature and scope of participation in such activities, a lawyer should be mindful
of obligations to clients under other rules, particularly Rule 1.7. A lawyer is
professionally obligated to protect the integrity of the program by making an
appropriate disclosure within the organization when the lawyer knows a private
client might be materially benefitted.
Rule 6.5. Professional Conduct.
(a) A lawyer shall treat with courtesy and respect all persons involved in the legal
process. A lawyer shall take particular care to avoid treating such a person
discourteously or disrespectfully because of the person’s race, gender, or other
protected personal characteristic. To the extent possible, a lawyer shall require
subordinate lawyers and nonlawyer assistants to provide such courteous and
respectful treatment.
(b) A lawyer serving as an adjudicative officer shall, without regard to a person’s
race, gender, or other protected personal characteristic, treat every person fairly,
with courtesy and respect. To the extent possible, the lawyer shall require staff and
others who are subject to the adjudicative officer’s direction and control to provide
such fair, courteous, and respectful treatment to persons who have contact with the
adjudicative tribunal.
Comment:
Duties of the Lawyer.
A lawyer is an officer of the court who has sworn to uphold the federal and state
constitutions, to proceed only by means that are truthful and honorable, and to
avoid offensive personality. It follows that such a professional must treat clients
and third persons with courtesy and respect. For many citizens, contact with a
lawyer is the first or only contact with the legal system. Respect for law and for
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legal institutions is diminished whenever a lawyer neglects the obligation to treat
persons properly. It is increased when the obligation is met.
A lawyer must pursue a client’s interests with diligence. This often requires the
lawyer to frame questions and statements in bold and direct terms. The obligation
to treat persons with courtesy and respect is not inconsistent with the lawyer’s
right, where appropriate, to speak and write bluntly. Obviously, it is not possible to
formulate a rule that will clearly divide what is properly challenging from what is
impermissibly rude. A lawyer’s professional judgment must be employed here with
care and discretion.
A lawyer must take particular care to avoid words or actions that appear to be
improperly based upon a person’s race, gender, or other protected personal
characteristic. Legal institutions, and those who serve them, should take
leadership roles in assuring equal treatment for all.
A judge must act “[a]t all times” in a manner that promotes public confidence in the
impartiality of the judiciary. Canon 2(B) of the Code of Judicial Conduct. See also
Canon 5. By contrast, a lawyer’s private conduct is largely beyond the scope of
these rules. See Rule 8.4. However, a lawyer’s private conduct should not cast
doubt on the lawyer’s commitment to equal justice under law.
A supervisory lawyer should make every reasonable effort to ensure that
subordinate lawyers and nonlawyer assistants, as well as other agents, avoid
discourteous or disrespectful behavior toward persons involved in the legal process.
Further, a supervisory lawyer should make reasonable efforts to ensure that the
firm has in effect policies and procedures that do not discriminate against members
or employees of the firm on the basis of race, gender, or other protected personal
characteristic. See Rules 5.1 and 5.3.
Duties of Adjudicative Officers.
The duties of an adjudicative officer are included in these rules, since many
legislatively created adjudicative positions, such as administrative hearing officer,
are not covered by the Code of Judicial Conduct. For parallel provisions for judges,
see the Code of Judicial Conduct.
Rule 6.6. Nonprofit and Court-Annexed Limited Legal Services Programs.
(a) A lawyer who, under the auspices of a program sponsored by a nonprofit
organization or court, provides short-term limited legal services to a client without
expectation by either the lawyer or the client that the lawyer will provide
continuing representation in the matter:
(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the
representation of the client involves a conflict of interest; and
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(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated
with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the
matter.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a
representation governed by this rule.
Comment:
Legal services organizations, courts, and various nonprofit organizations have
established programs through which lawyers provide short-term limited legal
services, such as advice or the completion of legal forms, that will help persons
address their legal problems without further representation by a lawyer. In these
programs, such as legal-advice hotlines, advice-only clinics, or pro se counseling
programs, a client-lawyer relationship may or may not be established as a matter of
law, but regardless there is no expectation that the lawyer’s representation of the
client will continue beyond the limited consultation. Such programs are normally
operated under circumstances in which it is not feasible for a lawyer to
systematically screen for conflicts of interest as is generally required before
undertaking a representation. See, e.g., Rules 1.7, 1.9, and 1.10.
A lawyer who provides short-term limited legal services pursuant to this rule must
secure the client’s consent to the scope of the representation. See Rule 1.2. If a
short-term limited representation would not be reasonable under the circumstances,
the lawyer may offer advice to the client but must also advise the client of the need
for further assistance of counsel. Except as provided in this rule, the Michigan
Rules of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to the
limited representation.
Because a lawyer who is representing a client in the circumstances addressed by
this rule ordinarily is not able to check systematically for conflicts of interest,
paragraph (a) requires compliance with Rules 1.7 or 1.9(a) only if the lawyer knows
that the representation presents a conflict of interest for the lawyer, and with Rule
1.10 only if the lawyer knows that another lawyer in the lawyer’s firm is
disqualified by Rules 1.7 or 1.9(a) in the matter.
Because the limited nature of the services significantly reduces the risk of conflicts
of interest with other matters being handled by the lawyer’s firm, paragraph (b)
provides that Rule 1.10 is inapplicable to a representation governed by this rule
except as provided by paragraph (a)(2). Paragraph (a)(2) requires the participating
lawyer to comply with Rule 1.10 when the lawyer knows that the lawyer’s firm is
disqualified by Rules 1.7 or 1.9(a). By virtue of paragraph (b), however, a lawyer’s
participation in a short-term limited legal services program will not preclude the
lawyer’s firm from undertaking or continuing the representation of a client with
interests adverse to a client being represented under the program’s auspices. Nor
will the personal disqualification of a lawyer participating in the program be
imputed to other lawyers participating in the program.
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If, after commencing a short-term limited representation in accordance with this
rule, a lawyer undertakes to represent the client in the matter on an ongoing basis,
Rules 1.7, 1.9(a), and 1.10 become applicable.
RULES 7.1–7.5. INFORMATION ABOUT LEGAL SERVICES.
Rule 7.1. Communications Concerning a Lawyer’s Services.
A lawyer may, on the lawyer’s own behalf, on behalf of a partner or associate, or on
behalf of any other lawyer affiliated with the lawyer or the lawyer’s law firm, use or
participate in the use of any form of public communication that is not false,
fraudulent, misleading, or deceptive. A communication shall not:
(a) contain a material misrepresentation of fact or law, or omit a fact necessary to
make the statement considered as a whole not materially misleading;
(b) be likely to create an unjustified expectation about results the lawyer can
achieve, or state or imply that the lawyer can achieve results by means that violate
the Rules of Professional Conduct or other law; or
(c) compare the lawyer’s services with other lawyers’ services, unless the
comparison can be factually substantiated.
Except as otherwise provided in this rule, a lawyer who is a retired or former
justice, judge, referee, or magistrate may use the title (“justice,” “judge,” “referee,”
or “magistrate”) only when the title is preceded by the word “retired” or “former.” A
justice, judge, referee, or magistrate who is removed from office or terminated on
grounds of misconduct is prohibited from using the title.
Comment:
This rule governs all communications about a lawyer’s services, including
advertising permitted by Rule 7.2. Whatever means are used to make known a
lawyer’s services, statements about them should be truthful. The prohibition in
paragraph (b) of statements that may create “an unjustified expectation” would
ordinarily preclude advertisements about results obtained on behalf of a client, such
as the amount of a damage award or the lawyer’s record in obtaining favorable
verdicts, and would ordinarily preclude advertisements containing client
endorsements. Such information may create the unjustified expectation that
similar results can be obtained for others without reference to the specific factual
and legal circumstances.
Rule 7.2. Advertising.
(a) Subject to the provisions of these rules, a lawyer may advertise.
(b) A copy or recording of an advertisement or communication shall be kept for two
years after its last dissemination along with a record of when and where it was
used.
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(c) A lawyer shall not give anything of value to a person for recommending the
lawyer’s services, except that a lawyer may:
(i) pay the reasonable cost of advertising or communication permitted by this rule;
(ii) participate in, and pay the usual charges of, a not-for-profit lawyer referral
service or other legal service organization that satisfies the requirements of Rule
6.3(b); and
(iii) pay for a law practice in accordance with Rule 1.17.
(d) For purposes of media advertising, services of a lawyer or law firm that are
advertised under the heading of a phone number, web address, icon, or trade name
shall identify the name and contact information of at least one lawyer responsible
for the content of the advertisement. The identification shall appear on or in the
advertisement itself; or, if that is not practical due to space limitations, the
identification shall be prominently displayed on the home page of the law firm’s
website and any other website used by the law firm for advertising purposes.
Comment:
To assist the public in obtaining legal services, lawyers should be allowed to make
known their services not only through reputation but also through organized
information campaigns in the form of advertising. Advertising involves an active
quest for clients, contrary to the tradition that a lawyer should not seek clientele.
However, the public’s need to know about legal services can be fulfilled in part
through advertising. This need is particularly acute in the case of persons of
moderate means who have not made extensive use of legal services. The interest in
expanding public information about legal services ought to prevail over
considerations of tradition. Nevertheless, advertising by lawyers entails the risk of
practices that are misleading or overreaching.
Neither this rule nor Rule 7.3 prohibits communications authorized by law, such as
notice to members of a class in a class action.
Record of Advertising.
Paragraph (b) requires that a record of the content and use of advertising be kept in
order to facilitate enforcement of these rules.
Paying Others to Recommend a Lawyer.
A lawyer is allowed to pay for advertising permitted by these rules and for the
purchase of a law practice in accordance with the provisions of MRPC 1.17, but
otherwise is not permitted to pay another person for channeling professional work.
But see MRPC 1.5(e). This restriction does not prevent an organization or person
other than the lawyer from advertising or recommending the lawyer’s services.
Thus, a legal aid agency or prepaid legal services plan may pay to advertise legal
services provided under its auspices. Likewise, a lawyer may participate in not-for-
profit lawyer referral programs and pay the usual fees charged by such programs.
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Paragraph (c) does not prohibit paying regular compensation to an assistant, such
as a secretary, to prepare communications permitted by these rules.
Rule 7.3. Solicitation.
(a) A lawyer shall not solicit professional employment from a person with whom the
lawyer has no family or prior professional relationship when a significant motive for
the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes
contact in person, by telephone or telegraph, by letter or other writing, or by other
communication directed to a specific recipient, but does not include letters
addressed or advertising circulars distributed generally to persons not known to
need legal services of the kind provided by the lawyer in a particular matter, but
who are so situated that they might in general find such services useful, nor does
the term “solicit” include “sending truthful and nondeceptive letters to potential
clients known to face particular legal problems” as elucidated in Shapero v
Kentucky Bar Ass’n, 486 US 466, 468; 108 S Ct 1916; 100 L Ed 2d 475 (1988).
(b) A lawyer shall not solicit professional employment from a person by written or
recorded communication or by in-person or telephone contact even when not
otherwise prohibited by paragraph (a), if:
(1) the person has made known to the lawyer a desire not to be solicited by the
lawyer; or
(2) the solicitation involves coercion, duress or harassment.
Comment:
There is a potential for abuse inherent in direct contact by a lawyer with a person
known to need legal services. These forms of contact subject a person to the private
importuning of the trained advocate in a direct interpersonal encounter. A person,
who may already feel overwhelmed by the circumstances giving rise to the need for
legal services, may find it difficult to evaluate fully all available alternatives with
reasoned judgment and appropriate self-interest in the face of a lawyer’s presence
and insistence upon being retained immediately. The situation is fraught with the
possibility of undue influence, intimidation, and overreaching.
However, the United States Supreme Court has modified the traditional ban on
written solicitation. Shapero v Kentucky Bar Ass’n, 486 US 466; 108 S Ct 1916; 100
L Ed 2d 475 (1988). Paragraph (a) of this rule is therefore modified to the extent
required by the Shapero decision.
The potential for abuse inherent in direct solicitation justifies its partial
prohibition, particularly since lawyer advertising and the communication permitted
under these rules are alternative means of communicating necessary information to
those who may be in need of legal services.
Advertising and permissible communication make it possible for a person to be
informed about the need for legal services, and about the qualifications of available
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lawyers and law firms, without subjecting a person to impermissible persuasion
that may overwhelm a person’s judgment.
The use of general advertising and communications permitted under Shapero,
rather than impermissible direct contact, will help to assure that the information
flows cleanly as well as freely. Advertising is out in public view, thus subject to
scrutiny by those who know the lawyer. The contents of advertisements and
communications permitted under Rule 7.2 are permanently recorded so that they
cannot be disputed and may be shared with others who know the lawyer. This
potential for informal review is itself likely to help guard against statements and
claims that might constitute false or misleading communications, in violation of
Rule 7.1. The contents of some impermissible direct conversations can be disputed
and are not subject to third-party scrutiny. Consequently they are much more
likely to approach (and occasionally cross) the dividing line between accurate
representations and those that are false and misleading.
There is far less likelihood that a lawyer would engage in abusive practices against
an individual with whom the lawyer has a prior family or professional relationship
or where the lawyer is motivated by considerations other than the lawyer’s
pecuniary gain. Consequently, the general prohibition in Rule 7.3(a) is not
applicable in those situations.
This rule is not intended to prohibit a lawyer from contacting representatives of
organizations or groups that may be interested in establishing a group or prepaid
legal plan for its members, insureds, beneficiaries, or other third parties for the
purpose of informing such entities of the availability of, and detail concerning, the
plan or arrangement that the lawyer or the lawyer’s firm is willing to offer. This
form of communication is not directed to a specific person known to need legal
services related to a particular matter. Rather, it is usually addressed to an
individual acting in a fiduciary capacity seeking a supplier of legal services for
others who may, if they choose, become clients of the lawyer. Under these
circumstances, the activity which the lawyer undertakes in communicating with
such representatives and the type of information transmitted to the individual are
functionally similar to and serve the same purpose as advertising permitted under
these rules.
Rule 7.4. Communication of Fields of Practice.
A lawyer may communicate the fact that the lawyer does or does not practice in
particular fields of law.
Comment:
This rule permits a lawyer to indicate areas of practice in communications about the
lawyer’s services, for example, in a telephone directory or other advertising. If a
lawyer practices only in certain fields, or will not accept matters except in such
fields, the lawyer is permitted to indicate that fact.
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Rule 7.5. Firm Names and Letterheads.
(a) A lawyer shall not use a firm name, letterhead or other professional designation
that violates Rule 7.1. A trade name may be used by a lawyer in private practice if
it does not imply a connection with a government agency or with a public or
charitable legal services organization and it is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the same name in
each jurisdiction, but identification of the lawyers in an office of the firm shall
indicate the jurisdictional limitations on those not licensed to practice in the
jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in the name of a
law firm, or in communications on its behalf, during any substantial period in which
the lawyer is not actively and regularly practicing with the firm.
(d) Lawyers may state or imply that they practice in a partnership or other
organization only when that is the fact.
Comment:
A firm may be designated by the names of all or some of its members, by the names
of deceased members where there has been a continuing succession in the firm’s
identity or by a trade name such as the “ABC Legal Clinic.” Although the United
States Supreme Court has held that legislation may prohibit the use of trade names
in professional practice, use of such names in law practice is acceptable so long as it
is not misleading. If a private firm uses a trade name that includes a geographical
name such as “Springfield Legal Clinic,” an express disclaimer that it is a public
legal aid agency may be required to avoid a misleading implication. It may be
observed that any firm name including the name of a deceased partner is, strictly
speaking, a trade name. The use of such names to designate law firms has proven a
useful means of identification. However, it is misleading to use the name of a
lawyer not associated with the firm or with a predecessor of the firm.
With regard to paragraph (d), lawyers sharing office facilities, but who are not in
fact partners, may not denominate themselves as, for example, “Smith and Jones,”
for that title suggests partnership in the practice of law.
RULES 8.1–8.5. MAINTAINING THE INTEGRITY OF THE PROFESSION.
Rule 8.1. Bar Admission and Disciplinary Matters.
(a) An applicant for admission to the bar, or a lawyer in connection with a bar
admission application or in connection with a disciplinary matter, shall not
(1) knowingly make a false statement of material fact, or
(2) fail to disclose a fact necessary to correct a misapprehension known by the
person to have arisen in the matter, or knowingly fail to respond to a lawful demand
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for information from an admissions or disciplinary authority, except that this rule
does not require disclosure of information protected by Rule 1.6.
(b) An applicant for admission to the bar
(1) shall not engage in the unauthorized practice of law (this does not apply to
activities permitted under MCR 8.120), and
(2) has a continuing obligation, until the date of admission, to inform the standing
committee on character and fitness, in writing, if any answers in the applicant’s
affidavit of personal history change or cease to be true.
Comment:
The duty imposed by this rule extends to persons seeking admission to the bar as
well as to lawyers. Hence, if a person makes a material false statement in
connection with an application for admission, it may be the basis for subsequent
disciplinary action if the person is admitted, and in any event may be relevant in a
subsequent admission application. The duty imposed by this rule applies to a
lawyer’s own admission or discipline as well as that of others. Thus, it is a separate
professional offense for a lawyer to knowingly make a misrepresentation or
omission in connection with a disciplinary investigation of the lawyer’s own conduct.
This rule also requires affirmative clarification of any misunderstanding on the part
of the admissions or disciplinary authority of which the person involved becomes
aware.
This rule is subject to the provisions of the Fifth Amendment of the United States
Constitution and to article 1, section 17 of the Michigan Constitution. A person
relying on such a provision in response to a question, however, should do so openly
and not use the right of nondisclosure as a justification for failure to comply with
this rule.
A lawyer representing an applicant for admission to the bar, or representing a
lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by the
rules applicable to the client-lawyer relationship.
Rule 8.2. Judicial and Legal Officials.
(a) A lawyer shall not make a statement that the lawyer knows to be false or with
reckless disregard as to its truth or falsity concerning the qualifications or integrity
of a judge, adjudicative officer, or public legal officer, or of a candidate for election or
appointment to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable
provisions of the Code of Judicial Conduct as provided under Canon 5.
Comment:
Assessments by lawyers are relied on in evaluating the professional or personal
fitness of persons being considered for election or appointment to judicial office and
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to public legal offices, such as attorney general, prosecuting attorney and public
defender. Expressing honest and candid opinions on such matters contributes to
improving the administration of justice. Conversely, false statements by a lawyer
can unfairly undermine public confidence in the administration of justice.
To maintain the fair and independent administration of justice, lawyers are
encouraged to continue traditional efforts to defend judges and courts unjustly
criticized.
Rule 8.3. Reporting Professional Misconduct.
(a) A lawyer having knowledge that another lawyer has committed a significant
violation of the Rules of Professional Conduct that raises a substantial question as
to that lawyer’s honesty, trustworthiness, or fitness as a lawyer shall inform the
Attorney Grievance Commission.
(b) A lawyer having knowledge that a judge has committed a significant violation of
the Code of Judicial Conduct that raises a substantial question as to the judge’s
honesty, trustworthiness, or fitness for office shall inform the Judicial Tenure
Commission.
(c) This rule does not require disclosure of:
(1) information otherwise protected by Rule 1.6; or
(2) information gained by a lawyer while serving as an employee or volunteer of the
substance abuse counseling program of the State Bar of Michigan, to the extent the
information would be protected under Rule 1.6 from disclosure if it were a
communication between lawyer and client.
Comment:
Self-regulation of the legal profession requires that members of the profession
initiate disciplinary investigation when they know of a violation of the Rules of
Professional Conduct. Lawyers have a similar obligation with respect to judicial
misconduct. An apparently isolated violation may indicate a pattern of misconduct
that only a disciplinary investigation can uncover. Reporting a violation is
especially important where the victim is unlikely to discover the offense.
A report about misconduct is not required where it would involve violation of Rule
1.6. However, a lawyer should encourage a client to consent to disclosure where
prosecution would not substantially prejudice the client’s interests. Because
confidentiality is essential to encourage lawyers and judges to seek treatment,
information received in the course of providing counseling services in the State
Bar’s lawyers and judges assistance program is exempt from the reporting
requirement to the extent it would be protected under Rule 1.6 if it were a
communication between lawyer and client.
If a lawyer were obliged to report every violation of the rules, the failure to report
any violation would itself be a professional offense. Such a requirement existed in
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many jurisdictions but proved to be unenforceable. This rule limits the reporting
obligation to those offenses that a self-regulating profession must vigorously
endeavor to prevent. A measure of judgment is, therefore, required in complying
with the provisions of this rule. The term “substantial” refers to the seriousness of
the possible offense and not the quantum of evidence of which the lawyer is aware.
The duty to report professional misconduct does not apply to a lawyer retained to
represent a lawyer whose professional conduct is in question. Such a situation is
governed by the rules applicable to the client-lawyer relationship.
Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist
or induce another to do so, or do so through the acts of another;
(b) engage in conduct involving dishonesty, fraud, deceit, misrepresentation, or
violation of the criminal law, where such conduct reflects adversely on the lawyer’s
honesty, trustworthiness, or fitness as a lawyer;
(c) engage in conduct that is prejudicial to the administration of justice;
(d) state or imply an ability to influence improperly a government agency or official;
or
(e) knowingly assist a judge or judicial officer in conduct that is a violation of the
Code of Judicial Conduct or other law.
Comment:
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as
offenses involving fraud and the offense of wilful failure to file an income tax return.
However, some kinds of offenses carry no such implication. Traditionally, the
distinction was drawn in terms of offenses involving “moral turpitude.” That
concept can be construed to include offenses concerning some matters of personal
morality, such as adultery and comparable offenses, that have no specific connection
to fitness for the practice of law. Although a lawyer is personally answerable to the
entire criminal law, a lawyer should be professionally answerable only for offenses
that indicate lack of those characteristics relevant to law practice. Offenses
involving violence, dishonesty, breach of trust, or serious interference with the
administration of justice are in that category. A pattern of repeated offenses, even
ones of minor significance when considered separately, can indicate indifference to
legal obligation.
A lawyer may refuse to comply with an obligation imposed by law upon a good-faith
belief that no valid obligation exists. The provisions of Rule 1.2(c) concerning a
good-faith challenge to the validity, scope, meaning, or application of the law apply
to challenges of legal regulation of the practice of law. See also Rule 3.4(c).
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Lawyers holding public office assume legal responsibilities going beyond those of
other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the
professional role of attorney. The same is true of abuse of positions of private trust
such as trustee, executor, administrator, guardian, agent, and such as officer,
director, or manager of a corporation or other organization.
Rule 8.5. Disciplinary Authority; Choice of Law.
(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is
subject to the disciplinary authority of this jurisdiction, regardless where the
lawyer’s conduct occurs. A lawyer not admitted in this jurisdiction is also subject to
the disciplinary authority of this jurisdiction if the lawyer provides or offers to
provide any legal services in this jurisdiction. A lawyer may be subject to the
disciplinary authority of both this jurisdiction and another jurisdiction for the same
conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction,
the rules of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of
the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide
otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the conduct occurred,
or, if the predominant effect of the conduct is in a different jurisdiction, the rules of
that jurisdiction shall be applied to the conduct; a lawyer shall not be subject to
discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the
lawyer reasonably believes the predominant effect of the lawyer’s conduct will
occur.
Comment:
Disciplinary Authority.
It is longstanding law that the conduct of a lawyer admitted to practice in this
jurisdiction is subject to the disciplinary authority of this jurisdiction. Extension of
the disciplinary authority of this jurisdiction to other lawyers who provide or offer
to provide legal services in this jurisdiction is for the protection of the citizens of
this jurisdiction. Reciprocal enforcement of a jurisdiction’s disciplinary findings and
sanctions will further advance the purposes of this rule. The fact that a lawyer is
subject to the disciplinary authority of this jurisdiction may be a factor in
determining whether personal jurisdiction may be asserted over the lawyer in civil
matters.
Choice of Law.
A lawyer potentially may be subject to more than one set of rules of professional
conduct that impose different obligations. The lawyer may be licensed to practice in
more than one jurisdiction with differing rules, or may be admitted to practice
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before a particular court with rules that differ from those of the jurisdiction or
jurisdictions in which the lawyer is licensed to practice. Additionally, the lawyer’s
conduct may involve significant contacts with more than one jurisdiction.
Paragraph (b) seeks to resolve such potential conflicts. Its premise is that
minimizing conflicts between rules, as well as uncertainty about which rules are
applicable, is in the best interests of clients, the profession, and those who are
authorized to regulate the profession. Accordingly, paragraph (b) provides that any
particular conduct of a lawyer shall be subject to only one set of rules of professional
conduct; makes the determination of which set of rules applies to particular conduct
as straightforward as possible, consistent with recognition of appropriate regulatory
interests of relevant jurisdictions; and protects from discipline those lawyers who
act reasonably in the face of uncertainty.
Paragraph (b)(1) provides, as to a lawyer’s conduct relating to a proceeding pending
before a tribunal, that the lawyer shall be subject only to the rules of the
jurisdiction in which the tribunal sits unless the rules of the tribunal, including its
choice of law rule, provide otherwise. As to all other conduct, including conduct in
anticipation of a proceeding not yet pending before a tribunal, paragraph (b)(2)
provides that a lawyer shall be subject to the rules of the jurisdiction in which the
lawyer’s conduct occurred or, if the predominant effect of the conduct is in another
jurisdiction, the lawyer shall be subject to the rules of that jurisdiction. In the case
of conduct in anticipation of a proceeding that is likely to be before a tribunal, the
predominant effect of such conduct could be either where the conduct occurred,
where the tribunal sits, or in another jurisdiction.
When a lawyer’s conduct involves significant contacts with more than one
jurisdiction, it may not be clear initially whether the predominant effect of the
lawyer’s conduct will occur in a jurisdiction other than the one in which the conduct
actually did occur. So long as the lawyer’s conduct conforms to the rules of a
jurisdiction in which the lawyer reasonably believes the predominant effect will
occur, the lawyer shall not be subject to discipline under this rule.
If two admitting jurisdictions were to proceed against a lawyer for the same
conduct, they should, applying this rule, identify the same governing ethics rules.
They should take all appropriate steps to see that they do apply the same rule to
the same conduct and should avoid proceeding against a lawyer on the basis of
inconsistent rules.
The choice of law provision applies to lawyers engaged in transnational practice,
unless international law, treaties, or other agreements between regulatory
authorities in the affected jurisdictions provide otherwise.