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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:704, ALI-LGL § 110, Wolfram § 11.2

3.1:101      Model Rule Comparison

Except for minor wording changes, MRPC 3.1 is substantially identical to the Model Rule.

3.1:102      Model Code Comparison

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

3.1:200   Non-Meritorious Assertions in Litigation

Primary Michigan References: MI Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL § 110, Wolfram § 11.2
MI Commentary: Dubin and Schwartz MRPC 3.1

The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person. Likewise, the action is frivolous if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law. See Comment to Rule 3.1.

In the case of In re Corace, 390 Mich 419; 213 NW2d 124 (1973), the court specifically recognized the duty of a lawyer to advance the law. The court stated: “Our adversary system intends and expects lawyers to probe the outer limits of the bounds of the law, ever searching for a more efficacious remedy or a more successful defense. A lawyer may not properly be disciplined for acting outside the bounds of the law unless it is established that he knowingly advanced a claim or defense that was unwarranted.” See, also, Cardinal Mooney High School v Michigan High School Athletic Assn, 437 Mich 75; 467 NW2d 21 (1991) where the Michigan Supreme Court reversed a decision assessing costs against the lawyer and client when it found that the appellant had a reasonable basis for believing that a meritorious claim could be presented on appeal.

In Formal Ethics Opinion R-9, the Ethics Committee held that a lawyer may file suit relying on a client’s statement of facts, if upon balance a disinterested lawyer would conclude (a) the purpose of the suit is not harassment (b) given the time available to the lawyer before any applicable statute of limitation expires, reasonable inquiry has been made into aspects of the client’s claim which are available, and (c) there is no apparent reason to disbelieve the client’s statement of the facts.

3.1:300   Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

Primary Michigan References: MI Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:151, ALI-LGL § 110, Wolfram § 11.2
MI Commentary: Dubin and Schwartz MRPC 3.1

A party and the party’s lawyer may be sanctioned by the court for filing a frivolous lawsuit. A claim is frivolous when (1) the party’s primary purpose was to harass, embarrass or injure the prevailing party, or (2) the party had no reasonable basis upon which to believe the underlying facts were true, or (3) the party’s position was devoid of arguable legal merit. Cvengros v Farm Bureau Ins., 216 Mich App 261; 548 NW2d 698 (1996). See, also, the statutory provision of MCL 600.2591(3)(a), MSA 27.2591(3)(a).

Pursuant to court rule, an attorney must investigate the truth of the allegations before signing a pleading. The attorney’s signature on the pleading certifies that the attorney has read the pleading and that the pleading is well grounded in fact and warranted under existing law or a good faith argument for a change in existing law. See MCR 2.114(D). For violation of this rule, the court on motion or its own initiative shall impose upon the person who signed it, a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorneys’ fees. MCR 2.114(E).

In Bechtold v Morris, 443 Mich 105; 503 NW2d 654 (1993), the Michigan Supreme Court held that sanctions may be imposed against a lawyer who files an improperly signed paper even if the paper is not defined as a pleading under the Michigan Court Rules. The Michigan Court Rules also authorize imposition of judicial sanctions for failure to provide or permit discovery (MCR 2.313(B) and (D)) and for failure to attend a scheduled pretrial conference. MCR 2.401(G).

3.1:400   Civil Liability for Abusive Litigation Practice [see 1.1:520]

Primary Michigan References: MI Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL §§ 56, 110, Wolfram § 11.2
MI Commentary: Dubin and Schwartz MRPC 3.1

The Michigan Supreme Court has held that a lawyer does not owe a duty to a person being sued by that lawyer and therefore cannot be subject to a claim for negligence. Friedman v Dozorc, 412 Mich 1; 312 NW2d 585 (1981). See, also, Discussion under 1.1:520 above.

3.1:500   Complying with Law and Tribunal Rulings

Primary Michigan References: MI Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 16:1201, ALI-LGL § 105, Wolfram §§ 12.1.3, 13.3.7
MI Commentary: Dubin and Schwartz MRPC 3.1

If the plaintiff fails to comply with the Michigan Court Rules or with a court order, a defendant may move for dismissal of an action or a claim against that defendant. MCR 2.504(B)(1). See, also, discussion under 3.1:300 above.

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary:

3.2:101      Model Rule Comparison

Michigan adopted MR 3.2 exactly.

3.2:102      Model Code Comparison

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

3.2:200   Dilatory Tactics

Primary Michigan References: MI Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:202, ALI-LGL § 106, Wolfram § 11.2.5
MI Commentary: Dubin and Schwartz MRPC 3.2

Delay does not always constitute dilatory tactics. Even though it causes delay, a course of action is proper if a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Delay should not be indulged, however, merely for the convenience of the advocates or for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client. See Comment to Rule 3.1.

3.2:300   Judicial Sanctions for Dilatory Tactics

Primary Michigan References: MI Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:202, ALI-LGL § 106, Wolfram § 11.2.5
MI Commentary: Dubin and Schwartz MRPC 3.2

MCR 2.114(D)(3) provides that the signature of a lawyer or of a client on a pleading constitutes certification that the pleading is not being used to cause unnecessary delay. Sanctions for violation of this court rule are provided by MCR 2.114(E).

3.3   Rule 3.3 Candor Toward the Tribunal

3.3:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 3.3
Background References: ABA Model Rule 3.3, Other Jurisdictions
Commentary:

3.3:101      Model Rule Comparison

In MRPC 3.3, the second sentence of MR 3.3(a)(4) has been removed from Subparagraph (4) and placed in a separate paragraph so that it modifies Subparagraphs (a)(1) through (4). Otherwise, the Michigan Rule is substantially identical to the Model Rule.

3.3:102      Model Code Comparison

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

3.3:200   False Statements to a Tribunal

Primary Michigan References: MI Rule 3.3(a)(1) & (2)
Background References: ABA Model Rule 3.3(a)(1) & (2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 120, Wolfram § 12.5
MI Commentary: Dubin and Schwartz MRPC 3.3

In In re Contempt of Calcutt, 184 Mich App 749; 458 NW2d 919 (1990), lv den 442 Mich 910; 503 NW2d 447 (1993), lv den 445 Mich 872; 519 NW2d 160 (1994), the Michigan Court of Appeals held that defense counsel violated MRPC 3.3 when he failed to disclose accurately and completely the status of a fund. Counsel had made representations to the Court that the fund had been disbursed to his client and that the fund was no longer in existence when, in reality, the fund had not been disbursed. The Court held that the defense counsel violated his duty of candor to the Court. In RI-55, the State Bar opined that a lawyer who appears in a representative capacity in administrative proceedings, for which a license to practice law is not a prerequisite, may not affirmatively claim nonlawyer status, and may not mislead the client, the tribunal or any third person with respect to such professional status.

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

Primary Michigan References: MI Rule 3.3(a)(2)
Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 120
MI Commentary: Dubin and Schwartz MRPC 3.3

The obligation prescribed in Rule 1.2(c) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Thus, where false evidence is offered by the client, the lawyer should seek to persuade the client that the evidence should not be offered or that its false character should immediately be disclosed. If the persuasion is ineffective, the lawyer must take reasonable, remedial measures except perhaps in the case of perjury by a criminal defendant. See Comment to Rule 3.3.

3.3:310      Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

See Discussion under 3.3:300 above.

3.3:400   Disclosing Adverse Legal Authority

Primary Michigan References: MI Rule 3.3(a)(3)
Background References: ABA Model Rule 3.3(a)(3), Other Jurisdictions
Commentary: ABA/BNA § 4:301, ALI-LGL § 111, Wolfram § 12.8
MI Commentary: Dubin and Schwartz MRPC 3.3

The Rule prohibits a lawyer from knowingly failing to disclose controlling legal authority in the jurisdiction known to the lawyer to be directly adverse to the position of the client but not disclosed by opposing counsel. This is based on the underlying concept that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.

3.3:500   Offering False Evidence

Primary Michigan References: MI Rule 3.3(a)(4)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL §§ 115, 117, 120, Wolfram §§ 12.3, 12.43, 12.5
MI Commentary: Dubin and Schwartz MRPC 3.3

Subsection (a)(4) of the Rule prohibits a lawyer from offering evidence that the lawyer knows to be false. If the lawyer has offered material evidence and comes to know of its falsity, the lawyer must take reasonable remedial measures.

3.3:510      False Evidence in Civil Proceedings

The lawyer’s duty is clear if a client has presented false testimony in civil proceedings. The lawyer must take reasonable remedial measures to correct the false testimony or rectify the consequences of the client’s act. MRPC 3.3(a)(4); Informal Opinion RI-13. However, the mere suspicion that testimony may be perjured is insufficient to require the lawyer to act, and in any event, the false testimony must be material before the lawyer has a duty to correct it. Informal Opinions RI-13 and RI-33.

3.3:520      False Evidence in Criminal Proceedings

Whether an advocate for a criminally accused has the same duty of disclosure as in civil proceedings has been intensely debated. Withdrawal may not be possible because of the imminence or existence of trial. The lawyer’s duty to disclose the existence of perjury may be qualified by constitutional provisions for due process and the right to counsel in criminal cases. The area is unsettled. See Comment to Rule 3.3.

In People v LaVearn, 448 Mich 207; 528 NW2d 721 (1995), the Michigan Supreme Court held that defense counsel would violate MRPC 3.3(a)(4) if he offered a defense which would require the defendant to offer false testimony.

The State Bar has opined that a lawyer who learns after a trial in which his client was convicted that the client gave false alibi testimony has no obligation to disclose that false testimony. However, the lawyer cannot pursue post-conviction or appellate remedies which involve the client’s false testimony. Informal Opinion RI-148.

3.3:530      Offering a Witness an Improper Inducement

Reasonable compensation of a witness is permissible. A statute, MCL 600.2552, provides for witness fees, mileage or payment for loss of “working time.” The State Bar has opined that the statute appears to establish “minimum” levels of compensation for a witness. Informal Opinion RI- 117. Compensating a witness for the purpose of influencing testimony or making the witness “sympathetic” is clearly prohibited. Id. Payment by the lawyer of expenses reasonably incurred by the witness and reasonable compensation for loss of earnings and necessary preparation attending and testifying is permitted. Id.

3.3:540      Interviewing and Preparing Witnesses

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

3.3:600   Remedial Measures Necessary to Correct False Evidence

Primary Michigan References: MI Rule 3.3(a)(4)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:401 et seq., ALI-LGL §§ 66, 67, Wolfram §§ 12.5, 12.6, 13.3.6
MI Commentary: Dubin and Schwartz MRPC 3.3

3.3:610      Duty to Reveal Fraud to the Tribunal

See Discussion under 3.3:200-3.3:500 above.

3.3:700   Discretion to Withhold Evidence Believed to Be False

Primary Michigan References: MI Rule 3.3(c)
Background References: ABA Model Rule 3.3(c), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 120, Wolfram § 12.5
MI Commentary: Dubin and Schwartz MRPC 3.3

See Discussion under 3.3:200-3.3:500 above.

3.3:800   Duty of Disclosure in Ex Parte Proceedings

Primary Michigan References: MI Rule 3.3(d)
Background References: ABA Model Rule 3.3(d), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 172 , Wolfram § 12.7
MI Commentary: Dubin and Schwartz MRPC 3.3

In an ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The judge has an affirmative responsibility to accord the absent party just consideration, and the lawyer for the represented party therefore has the correlative duty to make disclosure of material facts that are known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision. See Comment to MRPC 3.3.

3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 3.4
Background References: ABA Model Rule 3.4, Other Jurisdictions
Commentary:

3.4:101      Model Rule Comparison

Except for minor wording changes, MRPC 3.4 is substantially identical to the Model Rule.

3.4:102      Model Code Comparison

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

3.4:103      Overview

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

3.4:200   Unlawful Destruction and Concealment of Evidence

Primary Michigan References: MI Rule 3.4(a)
Background References: ABA Model Rule 3.4(a), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL §§ 118, 119, Wolfram § 12.3, 12.4
MI Commentary: Dubin and Schwartz MRPC 3.4

A lawyer must affirmatively divulge to the tribunal, opposition counsel and the lawyer’s client the false nature of any evidence tendered during pretrial discovery proceedings. Informal Opinion RI- 56.

3.4:210      Physical Evidence of Client Crime

In People v Nash, 418 Mich 196; 342 NW2d 439 (1983), the court held that a lawyer must turn over physical evidence of a crime received during representation and that it is not improper to introduce into evidence testimony that the items were seized from the office of defense counsel.

3.4:300   Falsifying Evidence

Primary Michigan References: MI Rule 3.4(b)
Background References: ABA Model Rule 3.4(b), Other Jurisdictions
Commentary: ABA/BNA §§ 61:601, 61:701, ALI-LGL § 118, Wolfram § 12.3
MI Commentary: Dubin and Schwartz MRPC 3.4

3.4:310      Prohibited Inducements

Counseling a client to give false information justifies revocation of the lawyer’s license. In re Grimes, 414 Mich 483; 326 NW2d 380 (1982). It is improper to pay an expert witness a contingent fee. Comment to Rule 3.4.

3.4:400   Knowing Disobedience to Rules of Tribunal

Primary Michigan References: MI Rule 3.4(c)
Background References: ABA Model Rule 3.4(c), Other Jurisdictions
Commentary: ABA/BNA § 61:1231, ALI-LGL § 105, Wolfram § 12.1
MI Commentary: Dubin and Schwartz MRPC 3.4

While a party-nominated arbitrator is not prohibited by ethics rules from communicating with the nominating party or from advocating the position of the nominating party during deliberations, a lawyer acting as an arbitrator must ensure that such action is not prohibited by the court in the case of court-mandated arbitration. Informal Opinion RI-274.

3.4:500   Fairness in Pretrial Practice

Primary Michigan References: MI Rule 3.4(d)
Background References: ABA Model Rule 3.4(d), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL § 106, Wolfram § 12.4
MI Commentary: Dubin and Schwartz MRPC 3.4

See 3.4:200 and 3.4:300 above.

3.4:600   Improper Trial Tactics

Primary Michigan References: MI Rule 3.4(e)
Background References: ABA Model Rule 3.4(e), Other Jurisdictions
Commentary: ABA/BNA § 61:1361, ALI-LGL § 107, Wolfram § 12.1
MI Commentary: Dubin and Schwartz MRPC 3.4

The State Bar of Michigan has opined that an arbitration proceeding be viewed similar to trial for purposes of application of the ethical rules. Informal Opinion RI-264.

In People v Allen, 351 Mich 535; 88 NW2d 433 (1958), the Michigan Supreme Court held that a criminal defense counsel cannot be allowed lattitude to goad and provoke the prosecution and then seek a reversal because of intemperate language and reply. The court held that it would not award victory to the criminal defendant with the best “needler” as counsel.

3.4:700   Advising Witness Not to Speak to Opposing Parties

Primary Michigan References: MI Rule 3.4(f)
Background References: ABA Model Rule 3.4(f), Other Jurisdictions
Commentary: ALI-LGL § 118, Wolfram § 12.4.2
MI Commentary: Dubin and Schwartz MRPC 3.4

A lawyer representing a corporation may request that corporation employees not discuss pending litigation with opposing counsel or outsiders. Formal Opinion R-2. However, it is a violation of the ethical rules for a prosecutor to advise a complaining witness not to speak with defense counsel. Informal Opinion RI-302.

In Davis v Dow Corning Corp, 209 Mich App 287; 530 NW2d 178 (1995), plaintiff’s counsel in a breast implant case advised plaintiff’s treating physician not to speak with defense counsel through a mass mailing to all of the treating physicians. The court held that this was improper and ordered plaintiff’s counsel to send a follow-up letter correcting the first communication, rejecting plaintiff’s argument that such order was a violation of counsel’s first amendment rights.

3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 3.5
Background References: ABA Model Rule 3.5, Other Jurisdictions
Commentary:

3.5:101      Model Rule Comparison

MRPC 3.5 changes Subparagraph (c) of the Model Rule to read, “engage in undignified or discourteous conduct toward the tribunal.” It also clarifies that the prohibition against ex parte communications exist only with respect to a pending matter.

3.5:102      Model Code Comparison

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

3.5:200   Improperly Influencing a Judge, Juror, or Other Court Official

Primary Michigan References: MI Rule 3.5(a)
Background References: ABA Model Rule 3.5(a), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 101:702, ALI-LGL §§ 113, 115, Wolfram §§ 11.3, 11.4
MI Commentary: Dubin and Schwartz MRPC 3.5

In Informal Opinion RI-243, the Ethics Committee stated that a lawyer may not communicate with the judge concerning the matter that is currently pending with the judge. A letter written to a judge regarding such a matter is improper even if a copy of the letter is sent to opposing counsel. However, such prohibition may not pertain to communications with arbitrators and arbitration proceedings because there are no specific prohibitions mentioned regarding arbitrations. Informal Opinion RI-274. These positions might change if the arbitration were court mandated and the judge prohibited communications between the arbitrator and a party.

3.5:210      Improperly Influencing a Judge

See discussion under 3.5:200 above.

3.5:220      Improperly Influencing a Juror

Attorneys are cautioned by the Comment to Rule 3.5 to be familiar with the prescription by criminal law and the Michigan Code of Judicial Conduct with improper influence upon a tribunal, including jurors.

3.5:300   Improper Ex Parte Communication

Primary Michigan References: MI Rule 3.5(b)
Background References: ABA Model Rule 3.5(b), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 61:903, ALI-LGL §§ 112, 113, Wolfram § 11.3.3
MI Commentary: Dubin and Schwartz MRPC 3.5

A lawyer who was contacted by a judge after a lengthy trial with the request that the lawyer submit findings of fact and conclusions of law was prohibited from submitting any findings because the communication was ex parte and the opposing party did not receive proper notice. Informal Opinion RI-195. Ex parte communications by a lawyer with a judge, juror or prospective juror are clearly prohibited by the rule.

3.5:400   Intentional Disruption of a Tribunal

Primary Michigan References: MI Rule 3.5(c)
Background References: ABA Model Rule 3.5(c), Other Jurisdictions
Commentary: ABA/BNA § 61:901, ALI-LGL § 105, Wolfram § 12.1.3
MI Commentary: Dubin and Schwartz MRPC 3.5

The Comment to the rule states:

Refraining from undignified or discourteous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge, but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review, and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 3.6
Background References: ABA Model Rule 3.6, Other Jurisdictions
Commentary:

3.6:101      Model Rule Comparison

MRPC 3.6 incorporates the prohibition of Subrule (a) of the Model Rules but has eliminated Subparagraphs (b) and (c) of the Model Rules which set forth the exceptions to (a). Some of the exceptions contained in Model Subrule (b) are discussed in the Comment to the Michigan Rule.

3.6:102      Model Code Comparison

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

3.6:200   Improper Extrajudicial Statements

Primary Michigan References: MI Rule 3.6(a)
Background References: ABA Model Rule 3.6(a), Other Jurisdictions
Commentary: ABA/BNA § 61:1001, ALI-LGL § 109, Wolfram § 12.2
MI Commentary: Dubin and Schwartz MRPC 3.6

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

3.6:300   Permissible Statements

Primary Michigan References: MI Rule 3.6(b)
Background References: ABA Model Rule 3.6(b), Other Jurisdictions
Commentary: ABA/BNA § 69:1001, ALI-LGL § 109, Wolfram § 12.2
MI Commentary: Dubin and Schwartz MRPC 3.6

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

3.6:400   Responding to Adverse Publicity

Primary Michigan References: MI Rule 3.6(c)
Background References: ABA Model Rule 3.6(c), Other Jurisdictions
Commentary: ABA/BNA § 61:100l, ALI-LGL § 109, Wolfram § 12.2
MI Commentary: Dubin and Schwartz MRPC 3.6

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

3.7   Rule 3.7 Lawyer as Witness

3.7:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 3.7
Background References: ABA Model Rule 3.7, Other Jurisdictions
Commentary:

3.7:101      Model Rule Comparison

Michigan adopted MR 3.7 exactly.

3.7:102      Model Code Comparison

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

3.7:200   Prohibition of Advocate as Witness

Primary Michigan References: MI Rule 3.7(a)
Background References: ABA Model Rule 3.7(a), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 108, Wolfram § 7.5
MI Commentary: Dubin and Schwartz MRPC 3.7

MRPC 3.7(a) specifically states that a lawyer shall not act as advocate at a trial in which the lawyer is to be a necessary witness. A federal appellate court, construing Michigan law, has held that when an attorney knows he will or ought to be called as a witness, he should withdraw from representation. Waltzer v Transidyne General Corp, 697 F2d 130 (CA 6, 1983). In Waltzer, the subject of the attorney’s testimony involved the parties’ words and conduct at negotiations in which the attorney participated.

The prohibition against proceeding as both attorney and witness does not require certainty as to a lawyer’s testimony, only likelihood. A “necessary witness” is one whose testimony cannot be obtained in any other way. See Chrysler Int’l Corp v Moroni, 1997 US Dist LEXIS 6917(ED Mich, March 31, 1997); Kubiak v Hurr, 143 Mich App 465; 372 NW2d 341 (1985).

The Comment to MRPC 3.7 indicates that combining the roles of advocates and witness can prejudice the opposing party. The factors to be considered in deciding whether a party will be prejudiced by an attorney’s dual role are the importance of the lawyer’s testimony and the probability that the lawyer’s testimony will conflict with that of other witnesses.

3.7:300   An Affiliated Lawyer as Advocate (Imputed Disqualification)

Primary Michigan References: MI Rule 3.7(b)
Background References: ABA Model Rule 3.7(b), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 108, Wolfram § 7.5, 7.6
MI Commentary: Dubin and Schwartz MRPC 3.7

Rule 3.7(b) provides that a lawyer may act as an advocate at a trial at which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9. That position was upheld in Informal Opinion RI-87 in which the State Bar opined that another member of a lawyer’s firm is not disqualified from representation under MRPC 3.7(b). See also RI- 233 where the State Bar opined that neither an assistant prosecutor nor any other lawyer in the prosecutor’s office is per se disqualified from a matter because a criminal defendant’s lawyer intends to call a member of the prosecutor’s office as a character witness.

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 3.8
Background References: ABA Model Rule 3.8, Other Jurisdictions
Commentary:

3.8:101      Model Rule Comparison

MRPC 3.8 adopts the identical language of the Model Rule in Subparagraphs (a) through (e), but does not incorporate the additional Subsections (f) and (g) of the Model Rule relating to subpoenas of a lawyer in a grand jury or criminal proceeding and the making of extra judicial comments that might heighten public condemnation of the accused.

3.8:102      Model Code Comparison

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

3.8:200   The Decision to Charge

Primary Michigan References: MI Rule 3.8(a)
Background References: ABA Model Rule 3.8(a), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
MI Commentary: Dubin and Schwartz MRPC 3.8

The Comment to the rule makes clear that a prosecutor has the responsibility of a “minister of justice” and not simply that of an advocate. Informal Ethics Opinion RI-23 involved a case where a prosecutor determined there was probable cause to charge a defendant with arson but that reasonable doubt existed regarding the defendant’s guilt. The Ethics Committee stated that a prosecutor has the right to exercise prosecutorial discretion in deciding which cases not to prosecute. The Committee also pointed out that if the objectivity of a prosecutor can be questioned because of such acts as campaign contributions, it is wise to seek an independent review from another county prosecutor in connection with the decision to charge.

3.8:300   Efforts to Assure Accused's Right to Counsel

Primary Michigan References: MI Rule 3.8(b)
Background References: ABA Model Rule 3.8(b), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
MI Commentary: Dubin and Schwartz MRPC 3.8

According to the Comment to Rule 3.8, the prosecutor has an obligation to make reasonable efforts and to take reasonable care to assure that a defendant’s rights are protected. However, not all of the individuals who might encroach upon those rights are under the control of the prosecutor and the prosecutor cannot be held responsible for the actions of persons over whom he or she does not exercise authority. The Comment states that the prosecutor’s obligation is discharged if the prosecutor has taken reasonable and appropriate steps to assure that the defendant’s rights are protected. The Comment to the rule provides that this paragraph does not apply to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of a suspect who has knowingly waived the rights to counsel and silence.

3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

Primary Michigan References: MI Rule 3.8(c)
Background References: ABA Model Rule 3.8(c), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
MI Commentary: Dubin and Schwartz MRPC 3.8

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

3.8:500   Disclosing Evidence Favorable to the Accused

Primary Michigan References: MI Rule 3.8(d)
Background References: ABA Model Rule 3.8(d), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10.5
MI Commentary: Dubin and Schwartz MRPC 3.8

While the rule makes clear that a prosecutor must make timely disclosure of all evidence that tends to negate the guilt of the accused, the Michigan Supreme Court in People v Burwick, 450 Mich 281; 537 NW2d 813 (1995) held that a prosecutor has no duty to discover unknown witnesses nor an affirmative duty to attempt to find evidence that supports the defendant’s case.

3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

Primary Michigan References: MI Rule 3.8(e)
Background References: ABA Model Rule 3.8(e), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
MI Commentary: Dubin and Schwartz MRPC 3.8

See discussion under 3.8:300 above.

3.8:700   Issuing a Subpoena to a Lawyer

Primary Michigan References: MI Rule 3.8(f)
Background References: ABA Model Rule 3.8(f), Other Jurisdictions
Commentary: ABA/BNA § 55:1301, ALI-LGL § 97
MI Commentary: Dubin and Schwartz MRPC 3.8

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

3.8:800   Making Extrajudicial Statements

Primary Michigan References: MI Rule 3.8(g)
Background References: ABA Model Rule 3.8(g), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 109, Wolfram § 12.2.2
MI Commentary: Dubin and Schwartz MRPC 3.8

See discussion under Rule 3.6 above.

3.8:900   Peremptory Strikes of Jurors

Primary Michigan References: MI Rule 3.8
Background References: Other Jurisdictions
Commentary:
MI Commentary: Dubin and Schwartz MRPC 3.8

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

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 3.9
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary:

3.9:101      Model Rule Comparison

Michigan adopted MR 3.9 exactly.

3.9:102      Model Code Comparison

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

3.9:200   Duties of Advocate in Nonadjudicative Proceedings

Primary Michigan References: MI Rule 3.9
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary: ALI-LGL § 104, Wolfram § 13.8
MI Commentary: Dubin and Schwartz MRPC 3.9

This rule is straightforward. According to the official Comment to Rule 3.9, a decision-making body such as a legislature, municipal council and executive and administrative agencies, like courts, should be able to rely on the integrity of the submissions made to it by a lawyer.