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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Michigan Legal Ethics

INTRODUCTION

0.1:100   Sources of Law and Guidance

0.1:101      Professional Codes

The Michigan Supreme Court adopted, effective October 1, 1988, the Michigan Rules of Professional Conduct (“MRPC”). The Court has also adopted the Rules for the Board of Law Examiners dealing with admission to the Bar in Michigan and the Code of Judicial Conduct governing state court judges.

0.1:102      "Other" Law and Moral Obligation

The Michigan Court Rules are adopted by the Michigan Supreme Court to regulate the Michigan court system. Subchapter 8.100 of the Michigan Court Rules contains some rules that govern the conduct of attorneys. Procedural rules regarding disciplinary hearings are contained in subchapter 9.100. Occasionally, the Michigan Supreme Court produces administrative orders in its role as supervisor of the legal process which can function like the Michigan Court Rules regulating attorney practices. Such administrative orders can become effective immediately upon promulgation by an order of the Court.

0.1:103      Background of the MI Rules of Professional Conduct

The MRPC and Comments thereto were largely drawn from the American Bar Association’s Model Rules of Professional Conduct (“MR”). Prior to submission of the MR to the Michigan Supreme Court, the State Bar of Michigan made minor changes to 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.

The introductory sections of the MRPC consist of a preamble and terminology as well as a discussion of the scope of the Rules which makes clear, among other things, that the Rules do not exhaust the moral and ethical considerations that should inform a lawyer, and that a violation of a Rule does not give rise to a cause of action or create any presumption that a legal duty has been breached for purposes of civil liability.

The State Bar of Michigan’s standing Committee on Professional and Judicial Ethics expresses written opinions concerning the propriety of professional and judicial conduct when requested to do so by any member of the judiciary or member of the State Bar concerning contemplated conduct. The Committee may also respond to questions from the State Bar President, the Attorney Discipline Board, the Attorney Grievance Commission and other designated State Bar entities. The scope of an opinion is limited to the facts stated in the opinion and does not have the force and effect of law. The Committee renders two types of opinions, formal and informal. An informal opinion generally deals with situations of limited and individual interest or application and bears the designation “RI” and the opinion number. A formal opinion reflects the official policy of the State Bar and bears the designation “R” and the opinion number. To date, the Committee has issued 18 formal and 313 informal opinions.

The Commentaries contained in this narrative treat the MRPC as they stood as of December 31, 1998.

0.1:104      Unusual Aspects of the MI Ethics Rules

For the most part, the Michigan Ethics Rules follow the ABA Model Rules with minor changes. One Michigan rule, however, differs significantly from the Model Rules. MRPC 1.10, Imputed Disqualification: General Rule, has added language permitting a lawyer who has become associated with a law firm and who otherwise would be disqualified under MRPC 1.9, to be screened from participation in a matter and apportioned no part of the fees. Under those circumstances, the new firm may represent a person in a related matter in which the lawyer or the lawyer’s former firm would be disqualified. Written notice must promptly be given to the appropriate tribunal to enable it to ascertain compliance with the rule’s provision. This added section 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 when associated with a different firm.

0.2:200   Forms of Lawyer Regulation in MI

The members of the State Bar of Michigan are subject to regulation and discipline by the Michigan Supreme Court. The Court has promulgated detailed court rules (cited as “Michigan Court Rules” or “MCR”) regarding attorneys’ conduct, discipline and grievance procedures. MCR 9.100 et seq. Those rules provide for an Attorney Grievance Commission, a Grievance Administrator and an Attorney Discipline Board which are funded by the State Bar of Michigan through the annual collection of dues from its members.

0.2:210      Judicial Regulation

The Michigan Constitution of 1963 provides for the establishment of a Judicial Tenure Commission consisting of nine persons to regulate the discipline and conduct of Michigan judges. The Michigan Supreme Court has adopted procedures for the administration of the Judicial Tenure Commission in MCR 9.200 through MCR 9.227. The Court has also adopted a Michigan Code of Judicial Conduct, the violation of which may constitute misconduct by a judge under the court rules.

0.2:220      Bar Organizations

Michigan has an integrated Bar. Active membership in the State Bar of Michigan is required of all attorneys licensed to practice law in this state. All active members, except those 70 years and older, must pay dues each fiscal year by October 1, a portion of which are designated by the Supreme Court to fund the Attorney Grievance Commission and Attorney Discipline Board. The State Bar is managed by a mixed elected/appointed Board of Commissioners representing election districts throughout the state and other constituencies.

0.2:230      Disciplinary Agency

There are two agencies involved in the discipline of members of the State Bar of Michigan. The Attorney Grievance Commission is the prosecutorial arm of the Supreme Court in connection with the discipline of Michigan attorneys. The Commission consists of three lay persons and six attorneys appointed by the Supreme Court. A Grievance Administrator, also appointed by the Court on the Commission’s recommendation, has the duty to investigate attorney misconduct, prosecute complaints authorized by the Commission, and prosecute or defend reviews and appeals. The Attorney Grievance Commission, and its Grievance Administrator, are located at 243 W. Congress Street, Suite 256, Detroit, Michigan, 48226, telephone (313) 961-6585, fax (313) 961-5819.

If disciplinary action against an attorney is authorized, the matter is heard by the Attorney Discipline Board which is the adjudicative arm of the Court in disciplinary matters. The Board also consists of six attorneys and three lay persons appointed by the Court. The headquarters of the Attorney Discipline Board is at 719 Griswold, Suite 1910, Detroit, Michigan, 48226, telephone (313) 963-5553, fax (313) 963-5571.

0.2:240      Disciplinary Process

Misconduct

Michigan attorneys are subject to discipline for misconduct, whether or not occurring in the course of an attorney/client relationship. Misconduct is defined as:

1. Conduct prejudicial to the proper administration of justice;

2. Conduct that exposes the legal profession or the courts to obloquy contempt, censure or reproach;

3. Conduct that is contrary to justice, ethics, honesty or good morals;

4. Conduct that violates the Standards or Rules of Professional Responsibility adopted by the Supreme Court;

5. Conduct that violates a criminal law of a state or of the United States;

6. Knowing misrepresentation of any facts or circumstances surrounding a request for investigation or complaint;

7. Failure to answer a request for investigation or complaint in conformity with MCR 9.113 and 0.115(D);

8. Contempt of the Board or a hearing panel; or

9. Violation of an order of discipline.

Proof of an adjudication of misconduct in a disciplinary proceeding by another state or a United States court is conclusive proof of misconduct in a disciplinary proceeding in Michigan. The only issues to be addressed in the Michigan proceeding are whether the attorney was afforded due process of law in the course of the original proceedings and whether imposition of identical discipline in Michigan would be clearly inappropriate.

Request for Investigation

The Grievance Administrator is required to furnish a form for a request for investigation to a person who alleges misconduct against an attorney. A request for investigation may be made with or without use of the form provided but must be in writing, describe the alleged misconduct, be signed by the complainant and filed with the Administrator. After filing of a request, the Administrator makes a preliminary investigation and may notify the complainant and the attorney that the allegations of the request for investigation are inadequate, incomplete or insufficient to warrant further attention. If the request appears to have merit, the Administrator serves a copy of the request on the attorney. After service, the Commission may further investigate through its power to issues subpoenas for the appearance of witnesses and the production of documents. The attorney must answer the request for investigation within twenty-one days after service. Failure to do so constitute misconduct. After an answer is filed, the Administrator may continue to investigate and when the investigation is complete, may either dismiss the request for investigation and notify the parties for the reason for dismissal or refer the matter to the Commission for review. The Commission may direct that a complaint be filed, that the request be dismissed or that the attorney be admonished with the respondent’s consent. Admonishment does not constitute discipline and is confidential.

Contractual Probation

If the Commission finds that the alleged misconduct, if proven, would not result in a substantial suspension or revocation of a respondent’s license to practice law, the Commission may defer disposition of the matter and place the respondent on contractual probation for a period not to exceed two years if the following criteria are met:

1. The misconduct is significantly related to a substance abuse problem of the respondent;

2. The terms and conditions of the contractual probation, which shall include an appropriate period of treatment, are agreed upon by the Grievance Administrator and the respondent prior to submission to the Commission for consideration; and

3. The Commission determines that contractual probation is appropriate and in the best interests of the public, the courts, the legal profession and the attorney.

The Commission may terminate contractual probation and file a formal complaint or take other action if the attorney fails to complete the terms and conditions of the probation or commits other misconduct. Contractual probation does not constitute discipline and is kept confidential with limited exceptions.

Imposition of Discipline

If a complaint issues, it is served on the attorney and his or her law firm. The proceedings are public after a complaint is issued. The attorney must file an answer to the complaint within twenty-one days of service. Failure to respond constitutes misconduct. After limited pretrial and discovery proceedings, a hearing panel consisting of three attorneys appointed by the Attorney Discipline Board conducts the initial hearing. The attorney must personally appear at the hearing. If the hearing panel finds that the charge of misconduct is not established by a preponderance of the evidence, it must enter an order dismissing the complaint. If there is a finding of misconduct, the hearing panel conducts a separate hearing to determine the appropriate discipline. The discipline which may be imposed includes the following:

1. Revocation of the license to practice law in Michigan (disbarment);

2. Suspension of the license to practice law in Michigan for a specified term not less than thirty days with such additional conditions relevant to the established misconduct as may be determined, and if the term exceeds 179 days until the further order of a hearing panel;

3. Reprimand with such conditions relevant to the established misconduct as may be imposed;

4. Probation; and

5. Restitution in an amount set by the hearing panel.

Review

The Grievance Administrator, the complainant or the attorney may petition the full Attorney Discipline Board to review the order of a hearing panel. The Board issues an order to show cause why the order of the hearing panel shall not be affirmed. A hearing on the order to show cause is heard by a sub-board of at least three Board members assigned by the chairperson. The Board makes a final decision on consideration of the whole record including a transcript of the presentation made to the sub-board and the sub-board’s recommendation. The Board may affirm, amend, reverse or nullify the order of the hearing panel in whole or in part or order other discipline. A copy of the discipline order is filed with the Supreme Court clerk and the clerk of the county where the attorney resides and where his or her office is located and is served on all parties.

A party aggrieved by a final order of discipline or dismissal entered by the Attorney Discipline Board may apply for leave to appeal to the Michigan Supreme Court. The procedure for such appeals is governed by the Standard Appellate Rules contained in MCR Subchapter 7.300. The Supreme Court may make any order it deems appropriate, including dismissing the appeal.

Transfer to Inactive Status

If an attorney has been judicially declared incompetent or involuntarily committed on the grounds of incompetency or disability, the Attorney Discipline Board must enter an order immediately transferring the attorney to inactive status for an indefinite period. If the Grievance Administrator alleges in a complaint that an attorney is incapacitated because of mental or physical affirmity or disability or because of addiction to drugs or intoxicants, a hearing panel determines whether the attorney is incapacitated and, if it so determines, enters an order transferring the attorney to inactive status for an indefinite period.

Duties of Attorneys Subject to Discipline

An attorney whose license has been revoked or suspended or who is transferred to inactive status must within seven days of the effective date of the order of discipline or transfer to inactive status notify all active clients in writing by registered or certified mail, return receipt requested, of the nature and duration of the discipline imposed, the effective date of such discipline or transfer to inactive status, the attorney’s inability to act as an attorney after the effective date of such discipline or transfer to inactive status, the location and identify of the custodian of the client’s files and records which will be made available to them or substitute counsel, that the clients may wish to seek legal advice of counsel elsewhere, and the address to which all correspondence to the attorney may be addressed. The affected attorney must also file a notice of the attorney’s disqualification from the practice of law with each tribunal in which the attorney is representing a client in litigation. After entry of any order of discipline and prior to its effective date, the attorney may not accept any new retainer or engagement as attorney unless specifically authorized by the Board, but during that time, the attorney may complete all matters that were pending on the date of entry. After the effective date of an order disbarring, suspending or transferring an attorney to inactive status, such attorney is forbidden during the effective period of discipline from practicing law in any form, appearing as an attorney before any court, board, commission or other public authority, or holding himself or herself out as an attorney. Such attorney may not share in any legal fees for legal services performed by another attorney during the period of disqualification.

Reinstatement

An attorney whose license has been suspended for 179 days or less is automatically reinstated by filing with the Supreme Court clerk, the Board and the Grievance Administrator an affidavit showing that the attorney has fully complied with the terms and conditions of the suspension order. If the attorney’s license to practice law has been revoked or suspended for more than 179 days, he or she is not eligible for reinstatement until the attorney has petitioned for reinstatement and has established the requirements for reinstatement by clear and convincing evidence. An attorney who has as a result of disciplinary proceedings resigned, been disbarred, or who does not practice law for three years or more whether as the result of discipline or voluntarily, must be recertified by the Board of Law Examiners before the attorney may be reinstated to the practice of law. The specific procedures for reinstatement are provided by MCR 9.124.

0.2:245      Mandatory Disbarment Upon Conviction of a Crime Involving Moral Turpitude

When a Michigan lawyer is convicted of a crime, the lawyer, the prosecutor or other authority who prosecuted the lawyer, and the defense attorney who represented the lawyer must notify the Grievance Administrator and the Attorney Discipline Board of the conviction in writing within fourteen days.

On conviction of a felony, an attorney is automatically suspended until the effective date of an order filed by a hearing panel of its decision. The Board may, on the attorney’s motion, set aside the automatic suspension when it appears consistent with the maintenance of the integrity and honor of the profession, the protection of the public, and the interests of justice. The Board must set aside the automatic suspension if the felony conviction is vacated, reversed or otherwise set aside for any reason by the trial court or an appellate court.

0.2:250      Sanctions in Judicial Proceedings

Michigan courts have the power to impose sanctions upon attorneys for violation of the court rules similar to FRCP 11 relating to signatures of pleadings, motions, affidavits and other papers. However, MCR 9.1 et seq., discussed infra, otherwise contains the exclusive rules for disciplining attorneys for misconduct.

0.2:260      Criminal and Civil Liability

Civil liability of lawyers is determined under standards of malpractice which are generally similar to those of other states. Violations of the Rules of Professional Conduct and other misconduct of an attorney for which discipline may be imposed may or may not be an element of malpractice, depending upon the facts and circumstances of each case. No criminal liability is imposed on an attorney for misconduct resulting in disciplinary action under MCR 9.100 et seq.

0.2:270      Federal Courts and Agencies

There are two federal districts in Michigan: the Eastern District consisting of a Southern Division located in Detroit and a Northern Division located in Bay City; and the Western District comprised of a Southern Division with courtrooms in Grand Rapids, Kalamazoo and Lansing and a Northern Division located in Marquette.

0.2:280      Ethics Rules Applied in Federal Courts in MI

The United States District Courts for the Eastern and Western Districts of Michigan provide by local court rule for discipline of members of the Bar of their respective courts. The Eastern District, in accordance with its Local Rule 83.22 may suspend an attorney who has been convicted of a serious crime, impose discipline identical to that imposed by other courts on the attorney, and/or refer misconduct allegations to the Michigan Attorney Grievance Commission for investigation. In Local Civil Rule 83 and Local Criminal Rule 57, the Western District provides for admission and discipline of attorneys practicing in that Court.

0.3:300   Organization of This Library and the Model Rules

This Library will follow the outline of the State Legal Ethics Project, which, in turn, relies heavily on the MR outline. The State Legal Ethics Project, however, goes beyond the MR to include other precepts and standards governing conduct of lawyers generally.

0.4:400   Abbreviations, References and Terminology

The MRPC incorporates the following definitions, with minor changes, from the MR:

0.4:410      "Belief" or "Believe"

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.

0.4:420      "Consults" or "Consultation"

Consult” or “consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.

0.4:430      "Firm" or "Law Firm"

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.

0.4:440      "Fraud"

Fraud” or “fraudulent” denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.

0.4:450      "Knowingly," "Known," or "Knows"

Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.

0.4:460      "Partner"

Partner” denotes a member of a partnership and a shareholder in a law firm organized as a professional corporation.

0.4:470      "Reasonable" or "Reasonably"

Reasonable” or “reasonably,” when used in relation to conduct by a lawyer, denotes the conduct of a reasonably prudent and competent lawyer.

0.4:480      "Reasonable belief" or "Reasonably believes"

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.

0.4:490      "Substantial"

Substantial” when used in reference to degree or extent, denotes a material matter of clear and weighty importance.

0.4:500   Additional Definitions in MI

The MRPC also defines the term “reasonably should know,” when used in reference to a lawyer, as denoting that a lawyer of reasonable prudence and competence would ascertain the matter in question.