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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

I. CLIENT-LAWYER RELATIONSHIP

1.1   Rule 1.1 Competence

1.1:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary:

1.1:101      Model Rule Comparison

The first sentence of MRPC 1.1 is identical to the first sentence of the MR 1.1. The second sentence of the Model Rule is omitted. It provides “competent representation requires legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” MRPC 1.1 provides as its second sentence, instead, prohibitions against three kinds of incompetent professional service, which are detailed in Subparts (a)-(c) of the Rule. These prohibitions are similar to provisions in ABA Model Code DR 6-101.

1.1:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

1.1:200   Disciplinary Standard of Competence

Primary Michigan References: MI Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 31:201, ALI-LGL § 16, Wolfram § 5.1
MI Commentary: Dubin and Schwartz, Michigan Rules of Professional Conduct and Disciplinary Procedure (The Institute of Continuing Legal Education, 1997 Supp) (“Dubin and Schwartz”) MRPC 1.1

The Michigan rule speaks in terms of prohibited activity in delineating the standard for competence. It prohibits lawyers from undertaking matters which they should know they are not competent to handle, from handling legal matters without adequate preparation and from neglecting legal matters. In People v Johnson, 451 Mich 115; 545 NW2d 637 (1996), the Michigan Supreme Court granted the defendant a new trial based on the denial of effective assistance of counsel. The attorney failed to call four potential eye witnesses who would have testified that the defendant did not commit the crime in question. Additionally, trial counsel had no file entries, no recollection and not even a routine practice that might indicate what he did on defendant’s behalf. The court held that this sort of performance fell far below the standard of acceptable conduct and could subject the lawyer to disciplinary proceedings. In People v Travis, 182 Mich App 389; 451 NW2d 641(1989), the court held that defense counsel violated the rule when he abandoned his client’s case following the trial court’s adverse ruling. In Holt v Whelan, 388 Mich 50; 199 NW2d 195 (1972), the court held that a lawyer’s duty to his client in a criminal case is judged by the same standard regardless of the fact that the client may be indigent or in an impoverished condition. If an attorney is incompetent to handle a particular case, he is guilty of professional misconduct if he nevertheless undertakes to represent a client in that case. Id. Even if competent to undertake the representation, an attorney who is inattentive and neglectful in the representation is guilty of misconduct. Thus, where a lawyer accepted a retainer fee agreement and assured the client that she was being competently and professionally served when in fact nothing was being done by him about her personal injury claim so that the claim was eventually barred by the statute of limitations, the lawyer was guilty of professional misconduct. State Bar Grievance Adm’r v Crane, 400 Mich 484; 255 NW2d 624 (1977); State Bar Grievance Adm’r v Giltner, 406 Mich 511; 280 NW2d 445 (1979). Once a lawyer accepts a retainer to represent a client, he is obliged to exert his best efforts wholeheartedly to advance the client’s legitimate interests with fidelity and diligence until he is relieved of that obligation either by his client or the court. In re Daggs, 384 Mich 729; 187 NW2d 227 (1971). The failure of an attorney to appear and represent a client at sentencing after accepting a retainer violates the code of professional responsibility and warrants suspension from the practice of law for sixty days. State Bar Grievance Adm’r v Grubbs, 396 Mich 275; 240 NW2d 233 (1976).

Several informal opinions have been issued by the State Bar relating to the competence rule. RI-128 holds that a lawyer may not avoid all direct client contact by employing a legal assistant and still exercise the professional judgment expected of a lawyer. RI-223 permits participation of the lawyer in a for-profit prepaid legal services plan provided that the plan allows the lawyer to exercise independent professional judgment on behalf of the client and to practice competently. Lawyers must monitor their workloads and decline new clients if taking them on would create overloads that make competent representation impossible. RI-252. In representing a client, the lawyer’s goal must be to accomplish the client’s objective in a way that would be constitutional and enforceable. RI-254.

1.1:300   Malpractice Liability

Primary Michigan References: MI Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 301:1, ALI-LGL § 49-54, Wolfram § 5.6
MI Commentary: Dubin and Schwartz MRPC 1.1

1.1:310      Relevance of Ethics Codes in Malpractice Actions

Prior to the adoption of the MRPC in 1988, the general rule in Michigan was that a violation of the ethics rules established a rebuttable presumption of malpractice. Lipton v Boesky, 110 Mich App 589; 313 NW2d 163 (1981). However, the Comment to MRPC, adopted after the Lipton v Boesky case, provides that no such presumption arises from a violation of the MRPC. The Comment also provides that the Michigan Rules of Evidence and other law govern the admissibility of the MRPC in criminal or civil actions. The Comment suggests that provisions of the MRPC may be relevant in a malpractice action, and a federal district court construing Michigan law has held that courts should look to the MRPC for the general standards of professional conduct expected of lawyers in their relationship with the public, the legal system and the legal profession. Hart v Comerica Bank, 957 F2d 958 (ED Mich 1997).

1.1:320      Duty to Client

An attorney in Michigan has the duty to use reasonable skill, discretion and judgment in representing a client. Lipton v Boesky, 110 Mich App 589; 313 NW2d 163 (1981); Simco v Blake, 448 Mich 648; 532 NW2d 842 (1995). An attorney appointed by a court to defend an indigent criminal defendant is not immune from malpractice liability. Donigan v Finn, 95 Mich App 28; 290 NW2d 80 (1980).

1.1:330      Standard of Care

In order to avoid liability for legal malpractice, all attorneys have a duty to behave as would an attorney of ordinary learning, judgment and skill under the same or similar circumstances. Simco v Blake, 448 Mich 648; 532 NW2d 842 (1995).

1.1:335      Requirement of Expert Testimony

In general, it is necessary for a plaintiff in a legal malpractice action to present expert testimony to establish a violation of the standard of care. Beattie v Firnschild, 152 Mich App 785; 394 NW2d 107 (1986). However, expert testimony is not required to support a judgment for malpractice where an attorney fails to meet a standard of care that is within the knowledge and experience of a lay jury to recognize. Joos v Auto-Owners Ins Co, 94 Mich App 419; 288 NW2d 443 (1979).

1.1:340      Causation and Damages

In a legal malpractice action, a plaintiff’s damages may not be based on speculation. Coleman v Gurwin, 443 Mich 59; 503 NW2d 435 (1993). A plaintiff must prove that the attorney’s negligence was both the cause in fact and a legal (proximate) cause of an injury. Skinner v Square D Co, 445 Mich 153; 516 NW2d 475 (1994); Charles Reinhart Co v Winiemko, 444 Mich 579; 513 NW2d 773 (1994). To establish cause in fact, a plaintiff must show that but for a defendant’s actions, the injury would not have occurred. Skinner, supra at 163.

In some cases, the court will apply the concept of the “suit within a suit” principle to determine causation. In Charles Reinhart Co, supra, plaintiff filed a legal malpractice claim and alleged that the attorney was negligent in pursuing an appeal. The court stated that a plaintiff must prove two aspects of causation in fact: “whether the attorney’s negligence caused the loss or unfavorable result of the appeal, and whether the loss or unfavorable result of the appeal in turn caused a loss or unfavorable result in the underlying litigation.” Id. at 588. In Michigan, the “suit within a suit” concept has vitality only in a limited number of situations, such as where an attorney’s negligence prevents the client from bringing a cause of action, where the attorney’s failure to appear causes judgment to be entered against his client or where the attorney’s negligence prevents an appeal from being perfected. Basic Food Industries v Grant, 107 Mich App 685, 693; 310 NW2d 26 (1981).

A client cannot base a malpractice action on his or her own immoral or illegal act. Thus, a client who committed perjury to obtain a divorce cannot sue for malpractice the lawyer who counseled her in the testimony. Pantely v Garris, Garris & Garris, PC, 180 Mich App 768; 447 NW2d 864 (1989).

1.1:350      Waiver of Prospective Liability [see 1.8:910]

It is unethical to make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless it is permitted by law and the client is independently represented in making the agreement. It is also improper to settle a claim for malpractice liability with a former client without first advising that person in writing that independent representation is appropriate. MRPC 1.8(h).

1.1:360      Settlement of Client's Malpractice Claim [see 1.8:920]

See Discussion under 1.1:350 above.

1.1:370      Defenses to Malpractice Claim

The elements of a legal malpractice action are: (l) existence of an attorney/client relationship; (2) negligence in legal representation of the plaintiff; (3) negligence as a proximate cause of the injury; and (4) fact and extent of the injury alleged. Charles Reinhart Co v Winiemko, 444 Mich 579; 513 NW2d 773 (1994). The failure of proof of any of these elements defeats the claim for malpractice. Additional defenses include the statute of limitations, Gebhardt v O’Rourke, 444 Mich 535; 510 NW2d 900 (1994); contributory negligence, Pontiac School District v Miller, Canfield, Paddock & Stone, 221 Mich App 602; 563 NW2d 693 (1997); and collateral estoppel, Knoblauch v Kenyon, 163 Mich App 712; 415 NW2d 286 (1987).

1.1:380      Liability to Client for Breach of Contract, Breach of Fiduciary Duty, and Other Liabilities

Courts have allowed clients to pursue more than one theory in an action against their former attorneys. In Schlumm v Terrence J O’Hagan PC, 173 Mich App 345; 433 NW2d 839 (1989), an inmate and his family sued his former attorney for malpractice alleging negligence, breach of contract, breach of fiduciary duty and fraudulent misrepresentation. In Brownell v Garber, 199 Mich App 519; 503 NW2d 81(1993), a client alleged a fraud claim against his former attorney by contending that the attorney knew that a property settlement in connection with a divorce action would have adverse consequences at the time the attorney recommended it while representing otherwise. Defendant sought summary judgment on the basis of the statute of limitations for malpractice. The court stated that “[F]raud is distinct from malpractice” and held that when a complaint alleged not only malpractice but also all the necessary elements of fraud, the statute of limitations governing fraud actions would apply to the fraud count. Id. at 532-533.

However, if a client brings an action under theories other than legal malpractice simply to defeat the statute of limitations, the court may determine that the other theories are merely a restatement of plaintiff’s malpractice claim or that the allegation is grounded in malpractice and therefore the two-year statute of limitations applies. See Barnard v Dilley, 134 Mich App 375; 350 NW2d 887(1984), where the court applied the malpractice statute of limitations instead of the negligence statute; and Aldred v O’Hara-Bruce, 184 Mich App 488; 458 NW2d 671 (1990), where the client contended the six-year contract statute applied, but the court ruled that the action was in essence one for legal malpractice and subject to the two-year statute.

1.1:390      Liability When Non-Lawyer Would Be Liable

See Discussion under 1.1:380 above.

1.1:400   Liability to Certain Non-Clients

Primary Michigan References: MI Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 71:1101, ALI-LGL § 51, Wolfram § 5.6

1.1:410      Duty of Care to Certain Non-Clients

Generally, a legal malpractice action may be brought only by a client who feels he has been damaged by retained counsel’s negligence. Friedman v Dozorc, 412 Mich 1; 312 NW2d 585 (1981). There has been a reluctance to permit an attorney’s actions affecting a non-client to be a predicate to liability because of the potential for conflicts of interest that could seriously undermine counsel’s duty of loyalty to the client. Friedman, supra; Atlanta Int’l Ins Co v Bell, 438 Mich 512; 475 NW2d 294 (1991).

The Michigan Supreme Court has, however, recognized that an attorney’s negligence may expose him to liability to third parties under certain circumstances. One vehicle for affording relief has been the doctrine of equitable subrogation, allowing a wronged party to stand in the place of the client assuming specific conditions are met. Those conditions are: (1) a special relationship must exist between the client and the third party in which the potential for conflicts of interest is eliminated because the interests of the two are merged with regard to the particular issue or negligence of counsel as alleged; (2) the third party must lack any other available legal remedy; and (3) the third party must not be a mere volunteer, i.e., the damage must have been incurred as a consequence of the third party’s fulfillment of a legal or equitable duty the third party owed to the client. Atlanta Int’l, supra; Beaty v Hertzberg & Golden, PC, 456 Mich 247; 571 NW2d 716 (1997).

An attorney may also be liable to a third party on a third-party beneficiary theory where the initial attorney/client contract was so unquestionably for the benefit of a non-client that the non- client can maintain a suit for the attorney’s negligence. Mieras v DeBona, 452 Mich 278; 550 NW2d 202 (1996). However, in Ginther v Zimmerman, 195 Mich App 647; 491 NW2d 282 (1992), the Michigan Court of Appeals held that where the intent of a testator as expressed in a will was not frustrated, an attorney owes no duty to a person not named in the instrument who claimed that the lawyers committed malpractice when they failed to carry out the estate plan of the deceased and that they were third-party beneficiaries of the contract between the deceased and counsel.

Finally, a non-client may be able to show that an attorney owed him or her an independent fiduciary duty. To claim breach of fiduciary duty, there must be a situation in which the non- client reasonably reposed faith, confidence and trust in the attorney’s advice. Fassihi v Sommers, Schwartz, Silver, Schwartz & Tyler PC, 107 Mich App 509; 309 NW2d 645 (1981). However, Michigan courts have repeatedly declined to recognize a fiduciary obligation running to a potentially adverse party because such a duty would necessarily permeate all facets of the litigation and have a significantly deleterious effect on the attorney’s ability to make decisions for the benefit of the client. Friedman, supra.

1.1:420      Reliance on Lawyer's Opinion [see also 2.3:300]

See Discussion under 1.1:410 above.

1.1:430      Assisting Unlawful Conduct [see also 1.2:600-1.2:630]

See Discussion under 1.1:410 above.

1.1:440      Knowledge of Client's Breach of a Fiduciary Duty [see also 1.13:520]

See Discussion under 1.1:410 above.

1.1:450      Failing to Prevent Death or Bodily Injury

See Discussion under 1.1:410 above; see also Discussion under 1.6:350 below.

1.1:500   Defenses and Exceptions to Liability

Primary Michigan References: MI Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 301:1001, ALI-LGL § 54, Wolfram § 5.6

1.1:510      Advocate's Defamation Privilege

Statements made during the course of judicial proceedings are absolutely privileged. Timmis v Bennett, 352 Mich 355; 89 NW2d 748 (1958). “Judicial proceedings” may include any hearing before a tribunal or administrative board performing a judicial function. Timmis, supra; Couch v Schultz; 193 Mich App 292; 483 NW2d 684 (1991). This immunity extends to every step in the proceeding and covers anything that may be said in relation to the matters at issue. Couch, supra.

However, an attorney may not claim this absolute privilege for statements published other than as part of judicial proceedings. In Timmis, supra, a lawyer representing a client who had allegedly been mistreated by a police officer sent a letter to a number of individuals commenting on the actions of the police officer. The officer sued the lawyer for defamation. The lawyer claimed an absolute privilege because the letters were sent in the course of his representation of the client. However, the court held there was no absolute privilege because the statements which plaintiff claimed to have been false and libelous were not made in the course of any judicial proceedings. The court stated that “the mere fact that defendant contemplated starting an action for damages on behalf of Mrs. Roblyer involving the acts of plaintiff and other police officers of the City of Kalamazoo does not bring the situation within the generally recognized rule. While an attorney may not be held liable for statements, even though false and malicious, made during the course of a trial, or as a part of a judicial proceeding, he may not claim absolute immunity with respect to slanderous and libelous statements otherwise published.” The court went on to hold that the statements may have been qualifiedly privileged, but in such event the plaintiff seeking damages for defamation was entitled to a jury trial on the issue of malice.

1.1:520      Wrongful Use of Civil Proceedings; Abuse of Process; False Arrest

In Friedman v Dozorc, 412 Mich 1; 312 NW2d 585 (1981), the Michigan Supreme Court held that to recover upon a theory of abuse of process, a plaintiff must plead and prove (1) an ulterior purpose and (2) an act in the use of process which is improper in the regular prosecution of the proceeding. It then went on to hold that an attorney who had unsuccessfully prosecuted a malpractice action against a physician could not be held liable for abuse of process because plaintiff failed to allege that the attorney committed some irregular act in the use of process. The only act alleged was the issuance of a summons and complaint in the former malpractice action, but the court held that an action for abuse of process “lies for the improper use of process after it has been issued, not for maliciously causing it to issue.”

The court in Friedman v Dozorc also stated the elements of a tort action for malicious prosecution of civil proceedings: (1) the prior proceedings must have terminated in favor of the present plaintiff, (2) there was absence of probable cause for those proceedings, (3) there must be “malice” described as “a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based,” and (4) plaintiff must have sustained a special injury in the nature of an interference with person or property. Since the plaintiff failed to plead special injury, the court ordered that his claim for malicious prosecution against the attorney be dismissed.

1.1:530      Assisting Client to Break a Contract

When a lawyer counsels his or her client to act in a way which affects a contract that the client has with a third party, the lawyer may be accused of tortious interference with the contract or with advantageous business relations. To prevail on a theory of tortious interference with an existing contract, plaintiff must show that a contract existed, that it was breached, that defendant instigated the breach and that defendant did so without justification. Northern Plumbing & Heating, Inc. v Henderson Bros., 83 Mich App 84; 268 NW2d 296 (1978), lv den 405 Mich 845 (1979). The typical defense to such an action is that the lawyer was acting in good faith on behalf of the client and therefore his or her action could not be “improper.”

However, in Trepel v Pontiac Osteopathic Hospital, 135 Mich App 361; 354 NW2d 341 (1984), the court held that attorneys are not immune from allegations that they were personally involved in wrongful and intentional conduct forming the basis for a cause of action. In that case, the court found that two attorneys had personal knowledge of a hospital’s business expectancy and that they personally and intentionally interfered with that expectancy with illegal, unethical or fraudulent intent in assisting their client in sending letters with known false allegations for the purpose of interfering with the hospital’s application for a bond issue approval from the Michigan State Hospital Finance Authority. While this cause of action was founded upon interference with an advantageous business relationship, the same principles would arguably apply to an attorney improperly assisting a client to break a contract.

1.1:600   Vicarious Liability [see 5.1:500]

Primary Michigan References: MI Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 58, Wolfram § 5.6

In American Casualty Co. v Costello, 174 Mich App 1; 435 NW2d 760 (1989) an insurance company filed suit against three lawyers seeking reimbursement for $100,000 it expended pursuant to its surety obligations on a probate executor bond. Costello, one of the lawyers, had misappropriated estate funds and used them for his own purpose. Plaintiff asserted that the remaining defendants were liable for its loss under the theory that they were all partners in a partnership in fact or a partnership by estoppel.

The court upheld a jury verdict that there was no partnership, and therefore the two other partners were not liable for the bond proceeds. The clear implication, however, is that if there were a partnership under Michigan law, the other two partners would have been responsible for Costello’s wrongful conduct by reason of their relationship to him.