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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.10   Rule 1.10 Imputed Disqualification: General Rule

1.10:100   Comparative Analysis of MI Rule

¥ Primary Michigan References: MI Rule 1.10
¥ Background References: ABA Model Rule 1.10, Other Jurisdictions
¥ Commentary:

1.10:101      Model Rule Comparison

MRPC 1.10 has added language prohibiting a firm from representing a person in a related matter in which a lawyer who has become associated with the firm, or that lawyerÕs former firm, is disqualified under MRPC 1.9 unless the disqualified lawyer is screened from participation in the matter and is apportioned no part of the fee. Written notice must be promptly given to the appropriate tribunal to enable it to ascertain compliance with the RuleÕs provision. This added Section (b) 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. The law firm may still not represent a person with interests adverse to those of a present client of the firm or where associated lawyers of the present firm may have material information protected by MRPC 1.6 and 1.9.

1.10:102      Model Code Comparison

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

1.10.103      Definition of "Firm"

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

1.10:200   Imputed Disqualification Among Current Affiliated Lawyers

¥ Primary Michigan References: MI Rule 1.10(a)
¥ Background References: ABA Model Rule 1.10(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:2001, ALI-LGL ¤ 123, Wolfram ¤ 7.6
¥ MI Commentary: Dubin and Schwartz MRPC 1.10

The Rule speaks in terms of lawyers associated in a firm in stating the imputed disqualification principles. According to the Comment to the Rules, the term ÒfirmÓ includes lawyers in a private firm and lawyers employed in the legal department of a corporation or other organization or in a legal services organization. If lawyers who share office space present themselves to the public so as to suggest they are a firm or conduct themselves as a firm, they are to be regarded as a firm for purposes of this Rule. The Comment also points out that a group of lawyers could be regarded as a firm for purposes of the Rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the Rule that information acquired by one lawyer is attributed to another.

This Rule can be viewed either on the premise that a firm of lawyers is essentially one lawyer for purposes of loyalty to the client, or on the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom that lawyer is associated.

In accordance with the Rule, the Michigan Court of Appeals in People v Doyle, 159 Mich App 632; 406 NW2d 893, modified on other grounds 161 Mich App 743; 411 NW2d 730 (1987), found that the disqualification of a prosecuting attorney with supervisory authority would justify the recusal of the entire prosecuting office. In Formal Ethics Opinion R-4, the State Bar noted that the disqualification of an individual attorney generally disqualifies the entire firm. In Informal Opinion RI-48, the State Bar opined that a law firm is imputedly disqualified from representing the husband when the wife formerly contacted a firm lawyer for divorce advice; and in Informal Opinion RI-123, it was noted that under the principles of imputed disqualification, all members of a firm may be disqualified by virtue of a conversation between a legal assistant and a prospective client.

1.10:300   Removing Imputation by Screening

¥ Primary Michigan References: MI Rule 1.10
¥ Background References: ABA Model Rule 1.10, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:2001, ALI-LGL ¤ 124, Wolfram ¤ 7.6
¥ MI Commentary: Dubin and Schwartz MRPC 1.10

The Michigan Rule specifically sets forth a process, not contained in the model rule, for screening when a lawyer becomes associated with a firm. MRPC 1.10(b). Screening is a permissible procedure under the MRPC only in relation to Sections 1.10(b) and 1.11(a) (successive government and private employment). Therefore, the only method of removing imputation by screening under the Michigan Rule is that if a lawyer becomes associated with the firm, the firm may not represent a person in the same or substantially related matter in which that lawyer or that lawyerÕs firm would be disqualified unless the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee and written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the RuleÕs provisions.

The imputed disqualification rule is subject to the overriding principle contained in that the disqualification under the Rule may be waived by the affected client under the conditions stated in Rule 1.7. A client may waive a disqualifying conflict of interest only if it is clear that the questioned firm clearly believes that the conflict will not adversely affect representation of the client. Informal Opinion RI-21. However, the law firm is still bound to comply with the provisions of Rules 1.6, 1.7 and 1.9(c).

1.10:400   Disqualification of Firm After Disqualified Lawyer Departs

¥ Primary Michigan References: MI Rule 1.10(c)
¥ Background References: ABA Model Rule 1.10(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:2008, ALI-LGL ¤ 124, Wolfram ¤ 7.6.3
¥ MI Commentary: Dubin and Schwartz MRPC 1.10

After a lawyer has terminated an association with a firm, disqualification of the firm is governed by Paragraph (c) of MRPC 1.10.

1.10:500   Client Consent

¥ Primary Michigan References: MI Rule 1.10(c)
¥ Background References: ABA Model Rule 1.10(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:2001, ALI-LGL ¤¤ 122, 123, Wolfram ¤¤ 7.2, 7.3
¥ MI Commentary: Dubin and Schwartz MRPC 1.10

See Discussion under 1.10:300 above. Before considering whether a client may waive a firmÕs imputed disqualification, the lawyer must make a threshold determination of whether disqualification is appropriate under another independent section of the Rules. Informal Opinion RI-194.