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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1   Rule 8.1 Bar Admission and Disciplinary Matters

8.1:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 8.1
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary:

8.1:101      Model Rule Comparison

Michigan adopted MR 8.1 exactly.

8.1:102      Model Code Comparison

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

8.1:200   Bar Admission

Primary Michigan References: MI Rule 8.1
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary: ABA/BNA §§ 21:101, 10l:1, ALI-LGL § 2, Wolfram §§ 15.2, 15.3
MI Commentary: Dubin and Schwartz MRPC 8.1

Admission to the State Bar of Michigan is administered by the Board of Law Examiners. An applicant for admission must be at least 18 years old, possess good moral character and have completed at least 60 semester hours or 90 quarter hours toward an undergraduate degree from an accredited school or while attending an accredited junior or community college.

There are two methods by which an applicant may be admitted to the Bar: admission by examination and admission without examination. An applicant for admission by examination must obtain a J.D., L.L.B. or L.L.M. degree from a reputable and qualified law school incorporated in the United States, its territories or the District of Columbia that requires for graduation three school years of study for full time students, and four school years of study for part time or night students. The applicant must also be approved by a State Bar Character and Fitness Committee. Every applicant for admission must achieve a passing score as determined by the Board on the multi-state professional responsibility examination. The examination consists of two sections: the multi-state bar examination and an essay examination prepared by or under the supervision of the Board on specified subjects. The National Conference of Bar Examiners grades the multi-state section and the Board grades the essay section. The Board determines a method for combining the grades and selects a passing score.

In admission without examination, an applicant must meet the general requirements and the law school requirements specified for admission by examination and must be licensed to practice law in the United States, its territories or the District of Columbia. The applicant must be a member in good standing of the Bar where he or she is admitted, intend in good faith to maintain an office in Michigan for the practice of law, intend to practice law in Michigan or to be a full time instructor in a reputable and qualified Michigan law school and have, after being licensed, and for three of the five years receiving the application.

(a)   Actively practiced law as a principal business or occupation in a jurisdiction where admitted.

(b)   Been employed as a full time instructor in a reputable and qualified law school in the United States, its districts or its territories; or

(c)   Been on active duty in the United States Armed Forces as a Judge Advocate, Legal Specialist or Legal Officer.

An applicant for admission without examination must submit the National Conference of Bar Examiners’ request for preparation of a character report along with other material required by the Board and payment of the fees.

An applicant who is licensed to practice in a foreign country and is in good standing as an attorney or counselor at law or the equivalent in a foreign country for at least three of the five years immediately preceding the application may qualify for admission without examination to practice as a special legal consultant. See, generally, Rules for the Board of Law Examiners Rule 5a through 5e.

An applicant for examination must pay a fee of $175 and an application for admission without examination a fee of $400 plus the requisite fee for the National Conference of Bar Examiners report.

Upon successful completion of the requirements for admission, the Board of Law Examiners will issue a certificate of qualification to the applicant. The applicant must then appear personally and present such certificate to the Supreme Court or one of the circuit courts of the State of Michigan. Upon motion made in open court by an active member of the State Bar of Michigan, the court may enter an order admitting each applicant to the Bar of the State of Michigan. The clerk is required then to forthwith administer the specified oath of office. See Rules concerning the State Bar of Michigan, Rule 15, Section 3.

8.1:210      Bar Admission Agency

See discussion under 8.1:200 above.

8.1:220      Bar Admission Requirements

See discussion under 8.1:200 above.

8.1:230      Admission on Motion

See discussion under 8.1:200 above.

8.1:240      Admission Pro Hac Vice [see also 5.5:230]

Any person who is duly licensed to practice law in another state or territory, or in the District of Columbia, or in any foreign country, may be permitted to engage in the trial of a specific case in a court or before an administrative tribunal in Michigan when associated with and on motion of an active member of the State Bar of Michigan who appears of record in the case. Such temporary permission may be revoked by the court summarily at any time for misconduct. Rules concerning State Bar, Rule 15, Section 2.

8.1:300   False Statements of Material Fact in Connection with Admission or Discipline

Primary Michigan References: MI Rule 8.1(a)
Background References: ABA Model Rule 8.1(a), Other Jurisdictions
Commentary: ABA/BNA §§ 21:301, 101:201, Wolfram § 15.3.1
MI Commentary: Dubin and Schwartz MRPC 8.1

In RI-29, the Ethics Committee opined that a lawyer who learned that a law student employed by his company did not report an accident involving property damage to the proper authorities had a duty to report this conduct to the Bar admissions authorities unless the information was protected by the attorney/client privilege.

8.1:400   Duty to Volunteer Information to Correct a Misapprehension

Primary Michigan References: MI Rule 8.1(b)
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:
MI Commentary: Dubin and Schwartz MRPC 8.1

There do not appear to be any Michigan cases or State Bar of Michigan ethics opinions interpreting this topic.

8.1:410      Protecting Client Confidential Information

See discussion under 8.1:300 above.

8.1:500   Application of Rule 8.1 to Reinstatement Proceedings

Primary Michigan References: MI Rule 8.1(b)
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:
MI Commentary: Dubin and Schwartz MRPC 8.1

There do not appear to be any Michigan cases or State Bar of Michigan ethics opinions interpreting this topic.

8.2   Rule 8.2 Judicial and Legal Officials

8.2:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 8.2
Background References: ABA Model Rule 8.2, Other Jurisdictions
Commentary:

8.2:101      Model Rule Comparison

Michigan adopted MR 8.2 exactly.

8.2:102      Model Code Comparison

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

8.2:200   False Statements About Judges or Other Legal Officials

Primary Michigan References: MI Rule 8.2(a)
Background References: ABA Model Rule 8.2(a), Other Jurisdictions
Commentary: ABA/BNA § 101:601, ALI-LGL § 114, Wolfram § 11.3.2
MI Commentary: Dubin and Schwartz MRPC 8.2

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

8.2:300   Lawyer Candidates for Judicial Office

Primary Michigan References: MI Rule 8.2(b)
Background References: ABA Model Rule 8.2(b), Other Jurisdictions
Commentary: ABA/BNA § 101:601, ALI-LGL § 114, Wolfram § 17.2
MI Commentary: Dubin and Schwartz MRPC 8.2

In the case of In Re Chmura (after remand), 464 Mich 58; 626 NW2d 876 (2001), the Supreme Court of Michigan held that a candidate for judicial office did not violate the Code of Judicial Conduct because his campaign literature contained communications that were either literally true, substantially true despite their inaccuracies or communicated mere rhetorical hyperbole rather than provably false factual connotations. The opinion reversed a decision of the Judicial Tenure Commission which had found that the candidate’s flyers contained communications in reckless disregard for the truth and had the purpose of appealing to racist attitudes.

8.3   Rule 8.3 Reporting Professional Misconduct

8.3:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 8.3
Background References: ABA Model Rule 8.3, Other Jurisdictions
Commentary:

8.3:101      Model Rule Comparison

Michigan adopted MR 8.3 exactly.

8.3:102      Model Code Comparison

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

8.3:200   Mandatory Duty to Report Serious Misconduct

Primary Michigan References: MI Rule 8.3(a)
Background References: ABA Model Rule 8.3(a), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL § 5, Wolfram § 12.10
MI Commentary: Dubin and Schwartz MRPC 8.3

MRPC 8.3 is important to the self-regulation of the legal profession which requires that members initiate disciplinary investigation when they know of a violation of the rules or of judicial misconduct. The rule applies only to “significant” violations of the Rules of Professional Conduct or the Code of Judicial Conduct. If a lawyer were obliged to report every violation of the rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. Comment to MRPC 8.3.

In the case of In re Hocking, 451 Mich 1; 546 NW2d 234 (1996), the Supreme Court of Michigan reduced the suspension imposed on a judge by the Judicial Tenure Commission. The judge was suspended for allegedly filing a complaint with the Attorney Grievance Commission as part of a personal disagreement with an attorney. The Court found that the record did not support the suspension. “We find no record basis for the finding that the respondent filed the grievance to get even. To the contrary, if, as the record indicates, Judge Hocking believed that Ms. Miller recklessly made defamatory statements against him, Rule 8.3(a) of the Michigan Rules of Professional Conduct imposed on him a duty to report Ms. Miller’s conduct to the Attorney Grievance Commission.”

The State Bar of Michigan has opined that it is improper for an attorney to ignore his or her duty to report criminal wrongdoing by another attorney in return for a favorable outcome of a client’s case. Informal Opinion RI-78. A lawyer receiving a settlement offer based upon opposing counsel’s offer to refrain from reporting his client’s ethical violations should report the offering attorney. RI-220.

8.3:300   Reporting the Serious Misconduct of a Judge

Primary Michigan References: MI Rule 8.3(b)
Background References: ABA Model Rule 8.3(b), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL § 5, Wolfram § 12.10
MI Commentary: Dubin and Schwartz MRPC 8.3

The rule specifically requires a lawyer having knowledge that a judge has committed a significant violation of the Code of Judicial Conduct which raises a substantial question as to the judge’s honesty, trustworthiness or fitness for office to inform the Judicial Tenure Commission. MRPC 8.3(b). See Discussion under 8.3:200 above.

8.3:400   Exception Protecting Confidential Information

Primary Michigan References: MI Rule 8.3(c)
Background References: ABA Model Rule 8.3(c), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL §§ 113-117A, Wolfram § 12.10
MI Commentary: Dubin and Schwartz MRPC 8.3

The rule does not require disclosure of information otherwise protected by Rule 1.6. In 1993, the rule was also amended to provide that information gained by a lawyer while serving as an employee or volunteer of the Substance Abuse Counseling Program of the State Bar of Michigan is not required to be disclosed to the extent the information would be protected under MRPC 1.6 from disclosure if it were a communication between lawyer and client. This provision was added to prompt lawyers and judges with substance abuse problems to seek help from the State Bar counseling program without the fear of becoming subject to disciplinary proceedings.

The State Bar of Michigan has opined that MRPC 8.3 requires disclosure of another lawyer’s wrongdoing only if the client who provided the information consents to disclosure under MRPC 1.6. Informal Opinion RI-88. In another opinion, the State Bar held that a lawyer’s duty to report misrepresentations of his client’s former counsel was determinate on the source of the knowledge due to confidentiality concerns under MRPC 1.6. RI-232. And in RI-314, it was held that a lawyer is not exposed to disciplinary charges for failing to report conduct of another lawyer which is subject to the reporting requirements of MRPC 8.3(a), if the lawyer’s reason for failing to disclose is that the information is protected by MRPC 1.6, so long as the decision to withhold information is made in good faith.

8.4   Rule 8.4 Misconduct

8.4:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 8.4
Background References: ABA Model Rule 8.4, Other Jurisdictions
Commentary:

8.4:101      Model Rule Comparison

Michigan adopted MR 8.4 exactly.

8.4:102      Model Code Comparison

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

8.4:200   Violation of a Rule of Professional Conduct

Primary Michigan References: MI Rule 8.4(a)
Background References: ABA Model Rule 8.4(a), Other Jurisdictions
Commentary: ABA/BNA § 101:101, ALI-LGL § 2, Wolfram § 3.3
MI Commentary: Dubin and Schwartz MRPC 8.4

In the case of Grievance Adm’r v Rostash, 457 Mich 289; 577 NW2d 452 (1998), the accused attorney was found to have failed to disclose his actions in assisting the county prosecutor in order to obtain representation of the relatives of persons killed in an automobile accident. The attorney violated the Rules of Professional Conduct by failing to disclose the conflict of interest that existed because of the prosecutor’s role as chief law enforcement officer of the county. The Grievance Commissioner brought this suit, claiming that the 90-day suspension of the attorney’s license to practice law was insufficient. The court agreed and increased the suspension to 180 days.

8.4:300   Commission of a Crime

Primary Michigan References: MI Rule 8.4(b)
Background References: ABA Model Rule 8.4(b), Other Jurisdictions
Commentary: ABA/BNA § 101:301, ALI-LGL § 8, Wolfram § 3.3.2
MI Commentary: Dubin and Schwartz MRPC 8.4

According to the Comment to MRPC 8.4, a lawyer is personally answerable to the entire criminal law, but should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice such as violence, dishonesty, breach of trust or serious interference with the administration of justice. However, a pattern of repeated offenses, even those of minor significance when considered separately, can indicate indifference to legal obligation and may constitute misconduct.

Under MCR 9.120(B)(3), professional misconduct is conclusively established by filing the judgment of conviction with the Attorney Discipline Board. In imposing discipline under such circumstances, the hearing panel must exercise its critical responsibility to carefully inquire into the specific facts of each case. Grievance Adm’r v Deutch, 455 Mich 149; 565 NW2d 369 (1997); In re Grimes, 414 Mich 483; 326 NW2d 380 (1982).

8.4:400   Dishonesty, Fraud, Deceit and Misrepresentation

Primary Michigan References: MI Rule 8.4(c)
Background References: ABA Model Rule 8.4(c), Other Jurisdictions
Commentary: ABA/BNA § 101:401, ALI-LGL § 2, Wolfram § 3.3.3
MI Commentary: Dubin and Schwartz MRPC 8.4

See Discussion under MRPC 3.3 and 3.4 above.

8.4:500   Conduct Prejudicial to the Administration of Justice

Primary Michigan References: MI Rule 8.4(d)
Background References: ABA Model Rule 8.4(d), Other Jurisdictions
Commentary: ABA/BNA § 101:501, ALI-LGL § 2, Wolfram § 3.3.2
MI Commentary: Dubin and Schwartz MRPC 8.4

It has been held in Michigan that in determining conduct prejudicial to the administration of justice, a lawyer may be disciplined for conduct involving activities unrelated to the practice of law. Grievance Administrator v Nickels, 422 Mich 254; 373 NW2d 528 (1985). There the Supreme Court upheld the lawyer’s suspension for improper treatment of an employee’s withholding taxes.

The State Bar has issued several opinions relative to conduct by a lawyer prejudicial to the administration of justice, including the following:

RI-52 (a lawyer may not appear as an advocate in a proceeding before a judge who seeks reelection when the lawyer is an announced candidate for that judge’s seat in the forthcoming election); RI-56 (failure of a lawyer to advise the tribunal, the opposition lawyers and the lawyer’s client of the changed condition of altered evidence and facts relating to lost evidence would be conduct prejudicial to the administration of justice); RI-160 (if there is a court order or other law requiring the lawyer to divulge the telephone number of a fugitive client, then there is a duty as an officer of the court to comply and divulge the telephone number, and failure to disclose could be viewed as conduct prejudicial to the administration of justice); RI-166 (a lawyer member of an administrative board who after the close of proofs becomes aware that additional material has been placed in a case file must disclose that material to the appropriate authorities and to all interested parties); RI-235 (a lawyer who had previously been selected and acted as a partisan of a party in a multi-member, court-sponsored special mediation panel may not subsequently represent the partisan who selected that lawyer in subsequent litigation on the same or a substantially related matter); and RI-265 (a lawyer who has served as a mediator under a court-annexed mediation program may not later serve as an arbitrator in an arbitration proceeding between the same parties concerning the matter which was mediated).

8.4:600   Implying Ability to Influence Public Officials

Primary Michigan References: MI Rule 8.4(e)
Background References: ABA Model Rule 8.4(e), Other Jurisdictions
Commentary: ABA/BNA § 101:701, ALI-LGL § 113
MI Commentary: Dubin and Schwartz MRPC 8.4

The State Bar has opined that a lawyer who serves as a member of a city’s police commission, and other members of the lawyer’s firm, may not represent clients in matters involving the police commission, boards or departments which are subordinate to the police commission. RI-180. See also RI-194 where the State Bar held that it is unethical for any partner or associate of a law firm to represent a private client in character and fitness proceedings when another lawyer in the same firm is a member of the State Bar Standing Committee on Character and Fitness. Likewise, a law firm which has an “of counsel” relationship with a member of a public board which was involved in approving public loans may not represent clients in matters before that board. RI-236. It would be a violation of MRPC 8.4 for an attorney sharing a secretary with another attorney who has obtained public office to represent that he could influence the other attorney. RI-249.

8.4:700   Assisting Judge or Official in Violation of Duty

Primary Michigan References: MI Rule 8.4(f)
Background References: ABA Model Rule 8.4(f), Other Jurisdictions
Commentary: ALI-LGL § 113
MI Commentary: Dubin and Schwartz MRPC 8.4

A lawyer may not draft findings of fact and conclusions of law in a matter when requested ex parte by the presiding judge to do so. If the lawyer cannot pursuade the judge to correct the ex parte contact, the lawyer may have a duty to report the judge’s conduct to the Judicial Tenure Commission. RI-195.

8.4:800   Discrimination in the Practice of Law

Primary Michigan References: MI Rule 8.4
Background References: Other Jurisdictions
Commentary: ABA/BNA § 91:301
MI Commentary: Dubin and Schwartz MRPC 8.4

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

8.4:900   Threatening Prosecution

Primary Michigan References: MI Rule 8.4
Background References: Other Jurisdictions
Commentary: ABA/BNA § 1:801, 61:601
MI Commentary: Dubin and Schwartz MRPC 8.3

In a proper case, a Michigan lawyer may, when acting in good faith and under a reasonable belief that a cause of action or remedy exists, call to the attention of an opposing party’s counsel a pertinent penal statute related to the transaction, may make reference to a specific criminal sanction which may be applicable, and may indicate or warn of the possibility of criminal prosecution, if done solely in order to assist in the enforcement of a valid right or legitimate claim of a client, and not done for the purposes of harrassment. RI-78. However, Michigan law prohibits all persons from making threats of criminal prosecution for the purpose of extorting money or pecuniary advantage. See MCL 750.213.

8.5   Rule 8.5 Disciplinary Authority; Choice of Law

8.5:100   Comparative Analysis of MI Rule

Primary Michigan References: MI Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary:

8.5:101      Model Rule Comparison

Michigan adopted MR 8.5 exactly.

8.5:102      Model Code Comparison

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

8.5:200   Disciplinary Authority

Primary Michigan References: MI Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA § 101:2001, ALI-LGL § 5, Wolfram § 3.2
MI Commentary: Dubin and Schwartz MRPC 8.5

According to the Comment to MRPC 8.5, licensed lawyers acting outside the territorial limits of Michigan, either in another state or outside the United States, remain subject to the governing authority of Michigan pursuant to their license to practice there. Furthermore, a lawyer admitted to practice in Michigan pro hac vice is subject to the disciplinary authority of Michigan for actions and inactions occurring during the course of the representation of a client in Michigan.

8.5:300   Choice of Law

Primary Michigan References: MI Rule 8.5
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA § 101:2101, ALI-LGL § 2, Wolfram § 2.6.1
MI Commentary: Dubin and Schwartz MRPC 8.5

The State Bar of Michigan has issued two informal opinions relating to choice of law under MRPC 8.5. RI-70 provides that an attorney who actively practices in Michigan and in another state where the ethical rules are inconsistent with ethics rules in Michigan must abide by Michigan ethics rules in legal matters conducted in Michigan or matters governed by Michigan law. RI-225 opines that a lawyer does not violate Michigan ethics rules by obtaining a financial interest in an out-of-state law firm that has nonlawyer partners provided that the ethics rule of the other state allows nonlawyer ownership of law firms and the law firm does not handle Michigan legal matters.