Michigan Legal Ethics
1.2 Rule 1.2 Scope of Representation
1.2:100 Comparative Analysis of MI Rule
¥ Primary Michigan References:
MI Rule 1.2
¥ Background References: ABA
Model Rule 1.2, Other Jurisdictions
¥ Commentary:
1.2:101 Model Rule Comparison
Subsection (a) of MRPC 1.2 expands on the provisions of MR 1.2(a). Moreover, the Michigan Rule puts greater emphasis on the independent professional judgment of the lawyer than does the Model Rule.
Whereas the Model Rule calls for the lawyer to Òabide by a clientÕs decisions concerning the objections of representation,Ó the first sentence of the Michigan Rule does not quite so directly leave decision making solely in the clientÕs hands. Rather, it says that the lawyer shall pursue the Òlawful objections of a client,Ó and this is to be done only Òthrough reasonably available means permitted by law and these rules.Ó The Michigan Rule does not directly require the lawyer to Òconsult with the client as to the means,Ó language found in the Model Rule. However, it may be implicit in the Michigan Rule that consultation is expected, because the objections to be sought are those Òof a client.Ó
The second sentence of MRPC 1.2(a) is not found in the Model Rule. It makes clear that the lawyer is not required to forego appropriate professional conduct for the purpose of advancing the clientÕs interests.
The third sentence of MRPC 1.2(a) is similar to the second sentence of the Model Rule provision. The only distinction is that the Michigan version adds a reference to clientÕs authority to make decisions concerning a Òmediation evaluation.Ó ÒMediation,Ó as the term is used in this context, refers to the unique procedure established in Rule 2.403 of the Michigan Court Rules. Under this procedure, typically all civil cases involving money damages are evaluated at the close of discovery by a panel of three attorneys. The parties are then invited to accept or reject the dollar valuation accorded to the case by the panel. The court rule provides for attorney fee sanctions if a party rejects the mediatorsÕ evaluation but then fails to improve its position appreciably thereafter. In August 2000, new court rules with respect to alternative dispute resolution were adopted by the Michigan Supreme Court and the term ÒmediationÓ in Rule 2.403 was changed to Òcase evaluationÓ and the term ÒmediatorÓ was changed to Òcase evaluator.Ó All other aspects of the process remain the same.
The fourth sentence of the Michigan Provision, Rule 1.2(a), is substantially similar to the third sentence of the Model Rule.
The fifth sentence of MRPC 1.2(a) is not found in the Model Rule. It again emphases the importance under the Michigan Rules of the lawyerÕs independent professional judgment, and that lawyerÕs latitude to decide that a potential argument on behalf of a client should not be advanced.
Subsections (b), (c), and (d) of MRPC 1.2 are identical to MR 1.2, subsection (c), (d), and (e), respectively.
1.2:102 Model Code Comparison
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1.2:200 Creating the Client-Lawyer Relationship
¥ Primary Michigan References:
MI Rule 1.2
¥ Background References: ABA
Model Rule 1.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:101, ALI-LGL ¤¤ 14, 18,
Wolfram ¤ 9.2
¥ MI Commentary: Dubin and Schwartz MRPC 1.2
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1.2:210 Formation of Client-Lawyer Relationship
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1.2:220 Lawyer's Duties to Prospective Client
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1.2:230 When Representation Must Be Declined [see 1.16:200-230]
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1.2:240 Client-Lawyer Agreements
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1.2:250 Lawyer's Duties to Client in General
Once a lawyer accepts a retainer to represent a client, he is obliged to exert his best efforts wholeheartedly to advance the clientÕs legitimate interests with fidelity and diligence until he is relieved of that obligation either by his client or the court. The failure of a client to pay for his services does not relieve a lawyer of the duty to perform them completely and on time, save only when relieved as above. In Re Daggs, 384 Mich 729, 187 NW2d 227 (1971). An attorney has the duty of demonstrating professional skill and care and must show loyalty to the client, since the attorney is a position of the highest trust and confidence. Kukla v Perry, 361 Mich 311; 105 NW2d 176 (1960); Mallick v Migut, 22 Mich App 140; 177 NW2d 200 (1970).
1.2:260 Client's Duties to Lawyer
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1.2:270 Termination of Lawyer's Authority
A client can terminate the services and authority of a lawyer at any time with or without cause. 3 Michigan Law & Practice ¤103. If the relationship is not specifically terminated by the client, the relationship between the lawyer and client terminates when the ends or objectives for which the lawyer was employed have been met. Friedman v Dozorc, 412 Mich 1; 312 NW2d 585 (1981).
1.2:300 Authority to Make Decisions or Act for Client
¥ Primary Michigan References:
MI Rule 1.2(a)
¥ Background References: ABA
Model Rule 1.2(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31.301, ALI-LGL ¤¤ 22-23,
Wolfram ¤¤ 4.4, 4.6
¥ MI Commentary: Dubin and Schwartz MRPC 1.2
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 lawyerÕs professional obligations. Within those limits, a client also has a right to consult with a 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 the lawyer to do so. 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. (See comment to MRPC 1.2.)
In People v Corteway, 212 Mich App 442; 538 NW2d 60 (1995), the Michigan Court of Appeals held that the accusedÕs counsel was not ineffective based on the counselÕs failure to make a recommendation to the accused and, therefore, the accused could not change his guilty plea. The court noted that under MRPC 1.2(a), defense counsel Òmade certain that defendant was aware of the nature of the charges and the consequences of his guilty plea or alternative courses of action, including the existence of possible defenses and lesser included defenses.Ó Id. at 446. In Makarewicz v Makarewicz, 204 Mich App 369; 516 NW2d 90 (1994), the court held that counsel violated 1.2(a) for failing to abide by a clientÕs decision whether to accept an offer of settlement of the matter. See also In re Estes, 390 Mich 585; 212 NW2d 903 (1973) where the Michigan Supreme Court made clear that an attorney who settles a case without the clientÕs authority is guilty of misconduct; and Burke v Burke, 169 Mich App 348; 425 NW2d 550 (1998) where the Michigan Court of Appeals assessed sanctions in the form of costs against an attorney for pursuing objectives against the clientÕs instructions.
Although attorneys have no implied authority to compromise a clientÕs claim or defense simply by reason of their retention, the unauthorized settlement may be binding on the client. In Capital Dredge & Dock Corp v Detroit, 800 F2d 525 (CA 6, 1986), the federal appeals court held, under Michigan law, that where a client hires an attorney and holds him out as counsel representing him in a matter, the client clothes the lawyer with apparent authority to settle claims connected with that matter.
1.2:310 Allocating Authority to Decide Between Client and Lawyer
See discussion under 1.2:300 above.
1.2:320 Authority Reserved to Client
See discussion under 1.2:300 above.
1.2:330 Authority Reserved to Lawyer
See discussion under 1.2:300 above.
1.2:340 Lawyer's Authority to Act for Client
An attorney has general implied authority to do on behalf of the client all acts necessary to the accomplishment of the purposes for which the attorney was retained. Slocam v Littlefield Public Schools, 127 Mich App 183; 338 NW2d 907 (1983). A litigant is bound by representations of his counsel made within the scope of counselÕs authority. Kozar v Chesapeake & Ohio RR Co, 320 F Supp 335 (WD Mich 1970).
1.2:350 Lawyer's Knowledge Attributed to Client
In general, notice to the attorney is notice to the client
who employed him. Reinecke v Sheehy,
47 Mich App 250; 209 NW2d 460 (1973); NLRB
v Ben Duthler, Inc, 395 F2d 28 (6
1.2:360 Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility
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1.2:370 Appearance Before a Tribunal
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1.2:380 Authority of Government Lawyer
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1.2:400 Lawyer's Moral Autonomy
¥ Primary Michigan References:
MI Rule 1.2(b)
¥ Background References: ABA
Model Rule 1.2(b), Other Jurisdictions
¥ Commentary: Wolfram ¤ 10.4
¥ MI Commentary: Dubin and Schwartz MRPC 1.2
A lawyer has no obligation to maintain a position in court contrary to his own notion of law and justice. Sprague v Moore, 136 Mich 426; 99 NW 377 (1904).
1.2:500 Limiting the Scope of Representation
¥ Primary Michigan References:
MI Rule 1.2(c)
¥ Background References: ABA
Model Rule 1.2(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:301, ALI-LGL ¤ 20, Wolfram
¤ 5.6.7
¥ MI Commentary: Dubin and Schwartz MRPC 1.2
1.2:510 Waiver of Client or Lawyer Duties (Limited Representation)
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 lawyerÕs services are made available to the client. For example, a retainer may be for a specifically defined purpose. The terms under 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. However, the client may not be asked to agree to representation so limited in scope as to violate the rules on competence (MRPC 1.1) or to surrender the right to terminate the lawyerÕs services, or to surrender the right to settle litigation that the lawyer might wish to continue. (See Comment to MRPC 1.2.)
Informal opinion RI-114 concludes that a lawyer and his personal representative client may agree that the lawyer will handle a probate matter, a wrongful death matter, the distribution of wrongful death proceeds or any combination of those responsibilities.
1.2:600 Prohibited Assistance
¥ Primary Michigan References:
MI Rule 1.2(c)
¥ Background References: ABA
Model Rule 1.2(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:301, ALI-LGL ¤ 105, Wolfram
¤ 13.3
¥ MI Commentary: Dubin and Schwartz MRPC 1.2
Pursuant to Subparagraph (c), a lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a clientÕs 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. In other words, the rule makes 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.
When the clientÕs course of action has already begun and is continuing, the lawyerÕs responsibility is especially delicate. The lawyer, while not permitted to reveal the clientÕs wrongdoing except where permitted by MRPC 1.6, is required to avoid furthering the purpose of such conduct. If a lawyer determines that conduct which was originally legally proper is now illegal or fraudulent, he or she may be required to withdraw from representation. (See Comment to MRPC 1.2.)
Several informal opinions from the State Bar deal with this subrule. RI-160 provides that a lawyer may not aid or abet a client who has independently chosen to become a fugitive from justice and may not represent the client in collateral or unrelated matters while the lawyer knows the client remains a fugitive. Furthermore, the lawyer must counsel the client that he may not perform such services while the client remains a fugitive. If the client refuses to come forward, the lawyer must withdraw from representing him and may disclose the clientÕs conduct. RI-184 provides that if a lawyer knows that information provided by a bankruptcy client was false and the client refuses to correct the false information, the lawyer must rectify the false information with the bankruptcy court. Even though a lawyer may not reveal that a client testified falsely at the trial of a criminal matter where the client does not consent to the disclosure and the lawyerÕs services were not used in furtherance of the false testimony, that lawyer may not seek post- appeal relief on behalf of a client if the facts associated with the clientÕs prior false testimony are material to the relief sought. RI-273. However, the lawyer has no ethical duty to correct or disclose to the opposing party that testimony of the lawyerÕs client was truthful when made but inaccurate. RI-272. A lawyer who learns that a clientÕs statements in court pleadings or to a tribunal are false and material must counsel that if the client does not rectify the false statements, the lawyer has a duty to do so. If the client still refuses to rectify the statements, the lawyer is required to rectify them. RI-151.
1.2:610 Counseling Illegal Conduct
See discussion under 1.2:600 above.
1.2:620 Assisting Client Fraud
See discussion under 1.2:600 above.
1.2:630 Counseling About Indeterminate or Uncertain Law
When the legal question at issue is doubtful, a lawyer may assert the view of the law most favorable to the clientÕs position. In Re Corace, 390 Mich 419; 213 NW2d 124 (1973).
1.2:700 Warning Client of Limitations on Representation
¥ Primary Michigan References:
MI Rule 1.2(e)
¥ Background References: ABA
Model Rule 1.2(e), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:307, ALI-LGL ¤ 105
¥ MI Commentary: Dubin and Schwartz MRPC 1.2
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1.2:800 Identifying to Whom a Lawyer Owes Duties
¥ Primary Michigan References:
MI Rule 1.2
¥ Background References: ABA
Model Rule 1.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:101, ALI-LGL ¤ 105, Wolfram
¤ 7.2
¥ MI Commentary: Dubin and Schwartz MRPC 1.2
A lawyer must clarify for all interested persons that the lawyerÕs role is representing specific parties; and when the lawyer knows that another person misunderstands the lawyerÕs role, the lawyer shall make reasonable efforts to correct the misunderstanding, including advising the person to seek independent counsel. In short, the lawyer must determine Òwho is the clientÓ and then proceed accordingly. Existence of a lawyer/client relationship is not determined merely by who pays the bill. Formal Opinion R-10.
1.2:810 Prospective Clients [see 1.2:220]
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1.2:820 Persons Paying for Representation of Another [see 1.7:400]
An attorney/client relationship does not exist between an insurer and the attorney hired by the insurer to defend its insured. Atlantic International Ins v Bell, 438 Mich 512; 475 NW2d 294 (1991); Kirschner v Process Design Associates, 459 Mich 587; 592 NW2d 707 (1999). See also discussion under 1.7:315 and 1.8:700 below.
1.2:830 Representing an Entity [see also 1.13:200]
When an attorney represents a corporation, the client is the corporation itself and not its shareholders. Fassihi v Sommers, Schwartz, Silver, Schwartz & Tyler, P.C., 107 Mich App 509; 309 NW2d 645 (1981); Scott v Green, 140 Mich App 384; 364 NW2d 709 (1985). See also discussion under 1.7:340 and 1.13:200 below.
1.2:840 Representing a Fiduciary [see also 1.13:520]
See discussion under 1.7:420 below.
1.2:850 Class Action Clients
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