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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1   Rule 4.1 Truthfulness in Statements to Others

4.1:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 4.1
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary:

4.1:101      Model Rule Comparison

The Model rules contain an additional subsection:

(b) [a lawyer shall not] fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

4.1:102      Model Code Comparison

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

4.1:200   Truthfulness in Out-of-Court Statements

Primary Michigan References: MI Rule 4.1
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary: ABA/BNA § 71:201, ALI-LGL § 98, Wolfram § 13.5
MI Commentary: Dubin and Schwartz MRPC 4.1

The official comment to the rule makes clear that it pertains to statements of material fact which generally do not include estimates of price or value placed on the subject of a transaction or to a party’s intention as to an acceptable settlement of a claim or the existence of an undisclosed principal.

Informal Ethics Opinion RI-55 involved a situation where an employer of an organization that represented clients in hearings before various administrative agencies which permitted non-lawyers to represent clients did not want a lawyer employee to disclose that he was a lawyer. The Ethics Committee stated that the lawyer under those circumstances did not have to disclose affirmatively that he was a lawyer but that he could not affirmatively claim that he was not a lawyer and could not mislead the tribunal, the client or any third party about his professional status.

Informal Ethics Opinion RI-268 opined that a lawyer serving as an arbitrator has no duty under the ethics rules to disclose past or present relationship with individuals or entities although a duty of disclosure may exist under other applicable law or rules.

4.1:300   Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

Primary Michigan References: MI Rule 4.1(b)
Background References: ABA Model Rule 4.1(b), Other Jurisdictions
Commentary: ABA/BNA § 71:203, ALI-LGL § 66, Wolfram §§ 12.6, 13.3
MI Commentary: Dubin and Schwartz MRPC 4.1

The Michigan rules do not include the provision of the Model Rules that state that a lawyer may not knowingly “fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.” The Comment to the rule provides, however, that where the lawyer has made a statement that the lawyer believed to be true when made but later discovers that the statement was not true, in some circumstances failure to correct the statement may be equivalent to making a statement that is false. When the falsity of the original statement by the lawyer resulted from reliance upon what was told to the lawyer by the client and if the original statement if left uncorrected may further a criminal or fraudulent act by the client, the provisions of Rule 1.6(c)(3) give the lawyer discretion to make the disclosure necessary to rectify the consequences.

4.2   Rule 4.2 Communication with Person Represented by Counsel

4.2:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary:

4.2:101      Model Rule Comparison

Michigan adopted MR 4.2 exactly.

4.2:102      Model Code Comparison

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

4.2:200   Communication with a Represented Person

Primary Michigan References: MI Rule 4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary: ABA/BNA § 71:301, ALI-LGL § 99-102, Wolfram § 11.6.2
MI Commentary: Dubin and Schwartz MRPC 4.2

4.2:210      "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

The Comment to MRPC 4.2 defines who is a “party” when dealing with an organization.

In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having managerial responsibility on behalf of the organization, and with any other persons whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

In Formal Ethics Opinion R2, the State Bar of Michigan ethics committee addressed the issue of whether “the proscription in MRPC 4.2 reaches nonmanagerial employees and former employees of a party which is an organization, where the organization counsel does not consent to prediscovery communication by opposing counsel.” The underlying facts of the opinion involved a lawyer’s representing a plaintiff in a malpractice action who wished to communicate with present and former employees who were nurses of the defendant hospital.

The opinion concludes that the lawyer should not, without the consent of the hospital’s counsel, communicate about the subject matter of the representation with nurses who cared for the plaintiff and who were still employed by the hospital. In so opining, the committee noted that the trend in the law was to broaden the scope of MRPC to cover certain nonmanagerial employees whose actions or statements could bind the organization.

The committee noted that:

In 1983 the U.S. Supreme Court determined that middle management and lower employees can embroil the organization in legal difficulties, through actions in the scope of their employment, that they frequently have information relevant for and needed by the organization counsel, and the counsel’s communications between those employees and the organization counsel are privileged. Upjohn Co v United States, 449 US 383 (1981). Opposing counsel was not prohibited from talking to the Upjohn employees. In 1985 [sic] the US Federal Court for the Western District of Michigan found that communication by opposing parties or their agents with managerial employees of an organization is a prohibited ex parte communication. Massa v Eaton Corp, 109 FRD 312 (WD Mich, 1985). 1 “Those who can hurt or bind the organization with respect to the matter at hand are off limits except for formal discovery or except with the consent of the entity’s lawyer.”

The committee noted that the comment language to MRPC 4.2 was “derived from Federal Rules of Evidence 801(d)(2)(D)” which states that a statement is not hearsay if the statement is offered against a party and is a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. 2 Therefore, the plaintiff’s counsel was prohibited from contacting the defendant’s current employees who treated the plaintiff.

Evidence obtained from ex parte interviews of current employees in violation of MRPC 4.2 has been deemed inadmissible in a court proceeding. See Massa v Eaton Corp, 109 FRD 312 (WD Mich, 1985).

Plaintiff had conducted informal discovery by conducting ex parte interviews with several current employees of the defendant corporation. The defendant filed a motion for entry of protective order pursuant to Fed R Civ P 26(c) and for an order to show cause why plaintiff should not be held in contempt for breaching ethical duties and disrupting the discovery process. The District Court magistrate decided that the individuals interviewed did not possess sufficient authority to “commit the corporation for the purposes of the litigation, and therefore ex parte interviews with those individuals were not prohibited by [MRPC 4.2].” Id. at 313. The District Court reversed the magistrate’s decision:

It appears that in determining which corporate employees have the authority to commit the corporation, the Magistrate applied the “control group” test. In a nutshell, that test provides that only directors, officers and managing agents of a corporation have the authority to speak for, and bind, the corporation in lawsuits. . . . However, it is my opinion that this is an unduly restrictive interpretation of the disciplinary rule, at least to the extent that it allows middle or upper level management personnel of a corporate party to be interviewed ex parte by an adversary in the hopes that admissions, binding on the corporate employer under Fed R Evid 801(d)(2)(D), might be elicited.

Id. at 313-14.

Upon ruling that the information obtained through the plaintiff’s ex parte interviews violated the ethical rules, the court ordered that the evidence obtained through those interviews would not be admissible at trial. Id. at 314. See also Upjohn Co v Aetna Casualty & Surety Co, 1990 US Dist Lexis 12900 (WD Mich, July 13, 1990) (“[i]t is improper for a lawyer or his or her representative to obtain information without following the guidelines set forth in the advisory opinion and then use this information in a lawsuit. . . .The court will not permit Aetna to benefit from this improper accumulation of information.”). Id. at 2-3. See also People v Greene, 405 Mich 273; 274 NW2d 448 (1979) where it was held that the prosecutor violated the ethics rules by meeting with defendant who was represented by counsel at defendant’s request.

A lawyer may not employ, retain or have an association with a non-lawyer/investigator for the purpose of securing communication with a worker’s compensation claimant who is represented by counsel about matters that are the subject of the representation. RI-315. However, a lawyer may communicate with a case worker for the Family Independence Agency in a case in which the FIA is a petitioner in family court, notwithstanding an appearance having been filed by an attorney indicating that the FIA is represented by counsel. RI-316. In RI-322, it was held that a lawyer may not send a written communication to the opposing lawyers’ client regarding the substance of the representation unless the opposing lawyer has consented to the communication, even if the lawyer sends a copy to opposing counsel.

For cases upholding the right of opposing counsel to communicate with agents or employees of a represented party, see Valassis v Samelson, 143 FRD 118 (ED Mich, 1992); Domako v Rowe, 438 Mich 347; 475 NW2d 30 (1991); and Davis v Dow Corning Corp, 209 Mich App 287; 530 NW2d 178 (1995).

4.2:220      Communications "Authorized by Law" -- Law Enforcement Activities

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

4.2:230      Communications "Authorized by Law" -- Other

A lawyer investigating a client’s claim and/or seeking to resolve a possible claim prior to litigation may direct communication to the governing body or any employee or agent of the entity, even if the inquirer knows such entity is generally represented by a particular counsel. Informal Opinion RI-39.

4.2:240      Communication with a Represented Government Agency or Officer

According to the Comment to MRPC 4.2, communication authorized by law includes the right of a party to a controversy with a government agency to speak with government officials about the matter.

4.2:250      Communication with a Confidential Agent of Non-Client

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

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary:

4.3:101      Model Rule Comparison

Michigan adopted MR 4.3 exactly.

4.3:102      Model Code Comparison

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

4.3:200   Dealing with Unrepresented Person

Primary Michigan References: MI Rule 4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary: ABA/BNA § 71:501, ALI-LGL § 103, Wolfram § 11.6.3
MI Commentary: Dubin and Schwartz MRPC 4.3

The Comment to the rule cautions that a lawyer should not give advice to an unrepresented person other than the advice to obtain counsel.

In Informal Opinion R-42, the Ethics Committee opined that an attorney who complied with MRPC 4.1 and 4.3 in providing honest information in representing his role, could accept offers of employment from former employees of a corporation he was suing on behalf of a client alleging discrimination. In RI-153, a lawyer who was concerned about the conduct of investigators retained by his client insurance company received an opinion that the lawyer was not bound by the ethical improprieties of his client’s investigators in their dealings with third parties.

In RI-157, a lawyer for a municipality drafted quit claim deeds of city property to prospective purchasers and wanted to know if he had a duty to disclose the fact that a title insurance company would not issue a policy to those purchasers for the property. The Ethics Committee found that the city lawyer had no duty to a prospective purchaser to disclose problems about the insurability of the title conveyed by the deed in view of the function served by a quit claim deed.

4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary:

4.4:101      Model Rule Comparison

Michigan adopted MR 4.4 exactly.

4.4:102      Model Code Comparison

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

4.4:200   Disregard of Rights or Interests of Third Persons

Primary Michigan References: MI Rule 4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary: ABA/BNA § 71:101, ALI-LGL §§ 103, 106, Wolfram § 12.4.4
MI Commentary: Dubin and Schwartz MRPC 4.4

The official Comment to this rule is broad and provides little guidance. It states simply that a lawyer may not disregard the rights of third persons and that it is impractical to catalogue all such rights, but they “include legal restrictions on methods of obtaining evidence from third persons.”

In Informal Ethics Opinion RI-309, the Ethics Committee disavowed ABA Formal Opinion 337 which prohibits the making of recordings without the consent of all parties. The Committee stated that “whether a lawyer may ethically record a conversation without the consent or prior knowledge of the parties involved is situation specific, not unethical per se, and must be determined on a case by case basis.”

4.4:210      Cross-Examining a Truthful Witness; Fostering Falsity

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

4.4:220      Threatening Prosecution [see 8.4:900]

See discussion under 8.4:900 below.