A party and the partyÕs lawyer may be sanctioned by the court for filing a frivolous lawsuit. A claim is frivolous when (1) the partyÕs 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 partyÕs 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 attorneyÕs 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 attorneysÕ 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 partyÕs 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 lawyerÕs 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 clientÕs 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 lawyerÕs 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 clientÕs 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 Òworking time.Ó The State Bar has opined that the statute appears to establish ÒminimumÓ levels of compensation for a witness. Informal Opinion RI- 117. Compensating a witness for the purpose of influencing testimony or making the witness ÒsympatheticÓ 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 lawyerÕs 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 lawyerÕs 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 ÒneedlerÓ 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), plaintiffÕs counsel in a breast implant case advised plaintiffÕs 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 plaintiffÕs counsel to send a follow-up letter correcting the first communication, rejecting plaintiffÕs argument that such order was a violation of counselÕs 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, Òengage in undignified or discourteous conduct toward the tribunal.Ó 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 advocateÕs right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge, but should avoid reciprocation; the judgeÕs 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 attorneyÕs testimony involved the partiesÕ 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 lawyerÕs testimony, only likelihood. A Ònecessary witnessÓ is one whose testimony cannot be obtained in any other way. See Chrysler IntÕl Corp v Moroni, 1997 US Dist LEXIS 6917(ED Mich, March 31, 1997); Kubiak v Hurr, 143 Mich App 465; 372 NW2d 341 (1985).