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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.6   Rule 1.6 Confidentiality of Information

1.6:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary:

1.6:101      Model Rule Comparison

MRPC 1.6 substantially revises the confidentiality of information provision of the Model Rules. Initially, the Michigan Rule defines ŅconfidenceÓ and prohibits knowing disclosure of a confidence or a secret of a client or using a confidence or secret of a client to the clientÕs disadvantage or for the advantage of the lawyer or a third person. The Rule also permits disclosure when required by the MRPC or by law or court order; to the extent reasonably necessary to rectify the consequences of the clientÕs illegal or fraudulent acts involving the lawyerÕs services; to notify of the intention of the client to commit a crime; and to establish or collect a fee or defend the lawyer of an accusation of wrongful conduct.

The Michigan Rule also adds a Subsection (d) requiring the lawyer to use reasonable care to prevent employees, associates and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of the client.

1.6:102      Model Code Comparison

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

1.6:200   Professional Duty of Confidentiality

Primary Michigan References: MI Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA ¤ 55:101, ALI-LGL ¤¤ 59-66, Wolfram ¤¤ 6.1, 6.7
MI Commentary: Dubin and Schwartz MRPC 1.6

1.6:210      Definition of Protected Information

Michigan has set forth the definition of protected information in the first paragraph of the Rule, which provides: ŅŌConfidenceÕ refers to information protected by the client/lawyer privilege under applicable law, and ŌSecretÕ 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.Ó

1.6:220      Lawyer's Duty to Safeguard Confidential Client Information

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. Enforcement of this obligation promotes the public policy of upholding the law because the lawyerÕs function is to advise clients to avoid any violation of the law in the proper exercise of their rights. In Barkley v Detroit, 204 Mich App 194; 514 NW2d 242 (1994), the Michigan Court of Appeals held that an attorney from the City of DetroitÕs law department may not first interview an employee concerning an underlying suit, thus obtaining confidential information, and then use that information to argue to the city council that no representation should be provided in the underlying case because the particular employee was not acting in good faith within the scope of employment.

In the case of In re Markowicz, 393 Mich 6; 222 NW2d 504 (1974), the Supreme Court of Michigan upheld a one-year suspension for a lawyer who had threatened to disclose the identity of adoptive parents to a biological mother if the adoptive father client did not execute the lawyerÕs petition. The court held that the attorney abused the process and his position as an a attorney in a piratical fashion by threatening to disclose information that was to be treated as confidential.

In Formal Opinion R-5, the State Bar opined that disclosure of a confidence or secret because of a non-existent, inadequate or unobserved retention policy would be a violation of the Rule. In Formal Opinion R-12, it was made clear that the duty of confidentiality continues after the client/lawyer relationship is terminated. Informal Opinion RI-72 holds that a clientÕs confession of commission of a crime is a confidence and may not be revealed by a lawyer unless the client consents; and RI- 151 reaches the conclusion that a clientÕs confession to a lawyer concerning perjured testimony is confidential.

1.6:230      Lawyer Self-Dealing in Confidential Information [see also 1.8:300]

Under 1.6(b)(3) the lawyer may not knowingly 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. In Resolution Trust Corp v First of America, 868 F Supp 217, 221 (WD Mich, 1994), the court held that an attorney would be required to destroy all copies of a letter from opposing counsel to his client marked ŅPrivileged and ConfidentialÓ which had been inadvertently sent.

In Informal Ruling RI-57, the State Bar opined that a lawyer may not use confidences or secrets of a client to pursue a lawsuit for another person without the consent of the client; and, in RI-68, that a lawyer may not elicit or use confidential information from a client solely to promote the lawyerÕs other business.

1.6:240      Use or Disclosure of Confidential Information of Co-Clients

Where it was determined that the testimony of one defendant would portray that defendant as being notably less culpable than the other, the joint representation of the two defendants at trial by one lawyer was found to deprive one of the defendants of the effective assistance of counsel. People v Gardner, 406 Mich 369; 279 NW2d 785 (1979). In a case where an attorney represented a paying client and two other indigent clients, the court held that separate counsel should have been appointed for the co-defendants. Under the circumstances, counsel was unable to make any decisions of consequence respecting the indigent co-defendants without harming the defense of the paying client. People v Hilton, 26 Mich App 274; 182 NW2d 29 (1970).

1.6:250      Information Imparted in Lawyer Counseling Programs

MRPC 8.3(c) specifically exempts disclosure of information gained by a lawyer while serving as an employee or volunteer of the substance abuse counseling program of the State Bar of Michigan.

1.6:260      Information Learned Prior to Becoming a Lawyer

There appear to be no Michigan cases or State Bar of Michigan ethics opinions interpreting this topic.

1.6:300   Exceptions to Duty of Confidentiality--In General

Primary Michigan References: MI Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA ¤ 55:101, ALI-LGL ¤¤ 59-66, Wolfram ¤¤ 6.4, 6.7
MI Commentary: Dubin and Schwartz MRPC 1.6

1.6:310      Disclosure to Advance Client Interests or with Client Consent

A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the clientÕs 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. (Comment to MCR 1.6.) However, the lawyer may not reveal confidences or secrets unless the client gives its consent after full disclosure. MCR 1.6(c)(1). In Informal Ruling RI-57, the State Bar has stated that a lawyer is required to keep confidences even when, in the lawyerÕs professional judgment, the disclosure would not harm the client, and, in RI-261, that a lawyer may not disclose to third parties observations or impressions formed about a current or former client unless such disclosure is specifically permitted by 1.6(c).

1.6:320      Disclosure When Required by Law or Court Order

Subsection (c)(2) provides that a lawyer may reveal confidences or secrets when required by law or by court order. That has been suggested to mean that 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. (See Comment to MCR 1.6.)

In Informal Opinion RI-311, the Ethics Committee held that a legal service agency may report to the Legal Services Corporation the names and addresses of clients of that agency when required to do so by law.

1.6:330      Disclosure in Lawyer's Self-Defense

A lawyer whose client files a grievance against him may reveal confidences and secrets of a client for defense, but only to the extent reasonably necessary. The Rule provides in Subsection (c)(5) that the lawyer may reveal confidences or secrets necessary to defend the lawyer or the lawyerÕs employees or associates against the accusation of wrongful conduct. Informal Opinion RI-84. This principle was followed in the case of People v Houston, 448 Mich 312; 532 NW2d 508 (1995) where the defendantÕs claim that his counsel had improperly disclosed confidential information was rejected because the information was necessary to determine the defendantÕs allegation that he had not been competently represented by his attorney.

The lawyer may reveal confidences and secrets to the limited extent necessary to collect a fee, but may not sue a client to recover any legal fees while still representing the client. Informal Opinion RI-159. Furthermore, a lawyer may reveal confidential information in order to collect legal fees even though the lawyer has assigned the right to sue the client to a credit card company, if the credit card company files suit against the former client. Informal Opinion RI-183. The Comment to the Rule clearly suggests that if a lawyer is charged with wrongdoing, that lawyer may respond to the extent reasonably believed necessary to establish a defense. The lawyer must keep the client advised if the assertion of wrongdoing is made by a third party, and disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate his or her innocence. Similarly, if disclosure is necessary to collect a fee, the lawyer must make every effort practicable to avoid unnecessary disclosure of information even to the extent of obtaining protective orders or making other arrangements to minimize the risk of disclosure.

1.6:340      Disclosure in Fee Dispute

See Discussion under 1.6:330 above.

1.6:350      Disclosure to Prevent a Crime

The Rule provides that a lawyer may reveal the intention of a client to commit a crime and the information necessary to prevent the crime. Subsection (c)(4). If the prospective crime is likely to result in substantial injury such as homicide or serious bodily injury, a lawyer may have an obligation under tort or criminal law to take reasonable preventive measures but the lawyer is not required to do so except in the limited circumstance where failure to act may constitute assisting the client in the illegal action. However, the clientÕs commission of a crime is a confidence which may not be revealed by the lawyer unless the client consents. Informal Opinion RI-72. Otherwise, the clientÕs statements concerning intent to commit a future crime are not protected by the attorney/client privilege. RI-160. 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. RI-273. If the acts of the client do not constitute the intent to commit a crime, the lawyer may disclose confidences and secrets only to the extent reasonably necessary to rectify the consequences of a clientÕs illegal or fraudulent act in the furtherance of which the lawyerÕs services have been used. Subsection (c)(3). If the lawyer learns that the lawyerÕs services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw. See MCR 1.16(a)(1).

1.6:360      Disclosure to Prevent Death or Serious Bodily Injury

See Discussion under 1.6:350 above.

1.6:370      Disclosure to Prevent Financial Loss

See Discussion under 1.6:350 above.

1.6:380      Physical Evidence of Client Crime [see 3.4:210]

See Discussion under 1.6:350 above. A lawyer must turn over evidence of a crime received during representation. It is not improper to introduce into evidence testimony that the items were seized from the office of defense counsel. People v Nash, 418 Mich 196; 341 NW2d 439 (1983).

1.6:390      Confidentiality and Conflict of Interest

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

1.6:395      Relationship with Other Rules

is closely related to Rules 1.7 (Conflict of Interest), 1.8(b) (Prohibited Transactions), 1.9 (Conflict of Interest: Former Client), 1.10 (Imputed Disqualification), 1.13 (Entity as Client), and 1.16 (Declining or Terminating Representation).

1.6:400   Attorney-Client Privilege

Primary Michigan References: MI Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA ¤ 55:301, ALI-LGL ¤¤ 68-85, Wolfram ¤¤ 6.3-6.5
MI Commentary: Dubin and Schwartz MRPC 1.6

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

1.6:410      Privileged Communications

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

1.6:420      Privileged Persons

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

1.6:430      Communications "Made in Confidence"

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

1.6:440      Communications from Lawyer to Client

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

1.6:450      Client Identity, Whereabouts, and Fee Arrangements

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

1.6:460      Legal Assistance as Object of Communication

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

1.6:470      Privilege for Organizational Clients

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

1.6:475      Privilege for Governmental Clients

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

1.6:480      Privilege of Co-Clients

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

1.6:490      Common-Interest Arrangements

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

1.6:495      Duration of Attorney-Client Privilege

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

1.6:500   Waiver of Attorney-Client Privilege

Primary Michigan References: MI Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA ¤ 55:401, ALI-LGL ¤¤ 78-80, Wolfram ¤ 6.4
MI Commentary: Dubin and Schwartz MRPC 1.6

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

1.6:510      Waiver by Agreement, Disclaimer, or Failure to Object

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

1.6:520      Waiver by Subsequent Disclosure

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

1.6:530      Waiver by Putting Assistance or Communication in Issue

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

1.6:600   Exceptions to Attorney-Client Privilege

Primary Michigan References: MI Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA ¤¤ 55:901 et seq., ALI-LGL ¤¤ 81-84, Wolfram ¤¤ 6.4
MI Commentary: Dubin and Schwartz MRPC 1.6

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

1.6:610      Exception for Disputes Concerning Decedent's Disposition of Property

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

1.6:620      Exception for Client Crime or Fraud

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

1.6:630      Exception for Lawyer Self-Protection

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

1.6:640      Exception for Fiduciary-Lawyer Communications

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

1.6:650      Exception for Organizational Fiduciaries

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

1.6:660      Invoking the Privilege and Its Exceptions

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

1.6:700   Lawyer Work-Product Immunity

Primary Michigan References: MI Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA ¤ 91:2201, ALI-LGL ¤¤ 87-93, Wolfram ¤ 6.6
MI Commentary: Dubin and Schwartz MRPC 1.6

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

1.6:710      Work-Product Immunity

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

1.6:720      Ordinary Work Product

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

1.6:730      Opinion Work Product

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

1.6:740      Invoking Work-Product Immunity and Its Exceptions

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

1.6:750      Waiver of Work-Product Immunity by Voluntary Acts

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

1.6:760      Waiver of Work-Product Immunity by Use in Litigation

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

1.6:770      Exception for Crime or Fraud

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