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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

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 “abide by a client’s decisions concerning the objections of representation,” the first sentence of the Michigan Rule does not quite so directly leave decision making solely in the client’s hands. Rather, it says that the lawyer shall pursue the “lawful objections of a client,” and this is to be done only “through reasonably available means permitted by law and these rules.” The Michigan Rule does not directly require the lawyer to “consult with the client as to the means,” 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 “of a client.”

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 client’s 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 client’s authority to make decisions concerning a “mediation evaluation.” “Mediation,” 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 mediators’ 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 “mediation” in Rule 2.403 was changed to “case evaluation” and the term “mediator” was changed to “case evaluator.” 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 lawyer’s independent professional judgment, and that lawyer’s 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

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

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

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

1.2:210      Formation of Client-Lawyer Relationship

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

1.2:220      Lawyer's Duties to Prospective Client

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

1.2:230      When Representation Must Be Declined [see 1.16:200-230]

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

1.2:240      Client-Lawyer Agreements

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

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 client’s 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

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

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 lawyer’s 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 accused’s counsel was not ineffective based on the counsel’s 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 “made 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.” 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 client’s 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 client’s 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 client’s instructions.

Although attorneys have no implied authority to compromise a client’s 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 counsel’s 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 (6th Cir 1968); Katz v Kowalsky, 296 Mich 164; 295 NW 600 (1940). However, if an attorney has knowledge or notice of matters in which the attorney is not acting professionally for the client, that knowledge is not imputable to the client. Lazerlere v Starkweather, 38 Mich 96 (1877); Valley Jitney Jungle Co v Hamady, 264 Mich 354; 249 NW 888 (1933).

1.2:360      Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility

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

1.2:370      Appearance Before a Tribunal

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

1.2:380      Authority of Government Lawyer

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

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 lawyer’s 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 lawyer’s 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 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. 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 client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer, while not permitted to reveal the client’s 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 client’s 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 lawyer’s 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 client’s 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 lawyer’s client was truthful when made but inaccurate. RI-272. A lawyer who learns that a client’s 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 client’s 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

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

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 lawyer’s role is representing specific parties; and when the lawyer knows that another person misunderstands the lawyer’s 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 “who is the client” 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]

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

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

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