ICLE Homepage | Other Administrative Orders
July 2, 2004
ADM File No. 2003-62
Proposed Adoption of
New Michigan Rules of
Professional Conduct
On order of the Court, this is to advise that the Court is considering the adoption of
new Michigan Rules of Professional Conduct. Before determining whether the proposal
should be adopted, changed before adoption, or rejected, this notice is given to afford
interested persons the opportunity to comment on the form or the merits of the proposal, and
of the related Proposed Michigan Standards for Imposing Lawyer Sanctions (ADM File No.
2002-29), or to suggest alternatives. In some instances, alternative language is presented.
The Court welcomes the views of all. In addition, this matter will be considered, along with
ADM File No. 2002-29, at a public hearing before the Court makes a final decision. The
notices and agendas for public hearings are posted on the Court's website,
www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the
subject, nor does it imply probable adoption of the proposal in its present form.
Staff Comment: Staff comments follow the rules throughout this proposal.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State
Court Administrator so that they can make the notifications specified in MCR 1.201.
Comments on these proposals may be sent to the Supreme Court Clerk in writing or
electronically by December 1, 2004, at P.O. Box 30052, Lansing, Ml 48909, or
MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2003-
62. Your comments and the comments of others will be posted at
www.courts.michigan.gov/supremecourt/resources/administrative/index.htm
PROPOSED NEW
MICHIGAN RULES OF PROFESSIONAL CONDUCT
PREAMBLE: A LAWYER'S RESPONSIBILITIES
[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer
of the legal system, and a public citizen having special responsibility for the quality of justice.
[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer
provides a client with an informed understanding of the client's legal rights and obligations and
explains their practical implications. As advocate, a lawyer zealously asserts the client's
position under the rules of the adversary system. As negotiator, a lawyer seeks a result
advantageous to the client but consistent with requirements of honest dealings with others. As
an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the
client or to others.
[3] In addition to these representational functions, a lawyer may serve as a third-party
neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some
of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g.,
Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the
practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity.
For example, a lawyer who commits fraud in the conduct of a business is subject to discipline
for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. See Rule 8.4.
[4] In all professional functions a lawyer should be competent, prompt, and diligent. A
lawyer should maintain communication with a client concerning the representation. A lawyer
should keep in confidence information relating to representation of a client except so far as
disclosure is required or permitted by the Rules of Professional Conduct or other law.
[5] A lawyer's conduct should conform to the requirements of the law, both in professional
service to clients and in the lawyer's business and personal affairs. A lawyer should use the
law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer
should demonstrate respect for the legal system and for those who serve it, including judges,
other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the
rectitude of official action, it is also a lawyer's duty to uphold legal process.
[6] As a public citizen, a lawyer should seek improvement of the law, access to the legal
system, the administration of justice, and the quality of service rendered by the legal profession.
As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond
its use for clients, employ that knowledge in reform of the law, and work to strengthen legal
education. In addition, a lawyer should further the public's understanding of and confidence
in the rule of law and the justice system because legal institutions in a constitutional democracy
depend on popular participation and support to maintain their authority. A lawyer should be
mindful of deficiencies in the administration of justice and of the fact that the poor, and
sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all
lawyers should devote professional time and resources and use civic influence to ensure equal
access to our system of justice for all those who because of economic or social barriers cannot
afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing
these objectives and should help the bar regulate itself in the public interest.
[7] Many of a lawyer's professional responsibilities are prescribed in the Rules of
Professional Conduct, as well as substantive and procedural law. However, a lawyer is also
guided by personal conscience and the approbation of professional peers. A lawyer should
strive to attain the highest level of skill, to improve the law and the legal profession, and to
exemplify the legal profession's ideals of public service.
[8] A lawyer's responsibilities as a representative of clients, an officer of the legal system,
and a public citizen are usually harmonious. Thus, when an opposing party is well represented,
a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice
is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves
the public interest because people are more likely to seek legal advice, and thereby heed their
legal obligations, when they know their communications will be private.
[9] In the nature of law practice, however, conflicting responsibilities are encountered.
Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities
to clients, to the legal system, and to the lawyer's own interest in remaining an ethical person
while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms
for resolving such conflicts. Within the framework of these Rules, however, many difficult
issues of professional discretion can arise. Such issues must be resolved through the exercise
of sensitive professional and moral judgment guided by the basic principles underlying the
Rules.
[10] The legal profession is largely self-governing. Although other professions also have
been granted powers of self-government, the legal profession is unique in this respect because
of the close relationship between the profession and the processes of government and law
enforcement. This connection is manifested in the fact that ultimate authority over the legal
profession is vested largely in the courts.
[11] To the extent that lawyers meet the obligations of their professional calling, the occasion
for government regulation is obviated. Self-regulation also helps maintain the legal profession's
independence from government domination. An independent legal profession is an important
force in preserving government under law, for abuse of legal authority is more readily
challenged by a profession whose members are not dependent on government for the right to
practice.
[12] The legal profession's relative autonomy carries with it special responsibilities of self-
government. The profession has a responsibility to assure that its regulations are conceived in
the public interest and not in furtherance of parochial or self-interested concerns of the bar.
Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer
should also aid in securing their observance by other lawyers. Neglect of these responsibilities
compromises the independence of the profession and the public interest that it serves.
[13] Lawyers play a vital role in the preservation of society. The fulfillment of this role
requires an understanding by lawyers of their relationship to our legal system. The Rules of
Professional Conduct, when properly applied, serve to define that relationship.
SCOPE
[14] The Rules of Professional Conduct are rules of reason. They should be interpreted with
reference to the purposes of legal representation and of the law itself. Some of the Rules are
imperatives; cast in the terms "shall" or "shall not." These define proper conduct for purposes
of professional discipline. Others, generally cast in the term "may," are permissive and define
areas under the Rules in which the lawyer has discretion to exercise professional judgment. No
disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds
of such discretion. Other Rules define the nature of relationships between the lawyer and
others. The Rules are thus partly obligatory and disciplinary and partly constitutive and
descriptive in that they define a lawyer's professional role. Many of the Comments use the term
"should." Comments do not add obligations to the Rules but provide guidance for practicing
in compliance with the Rules.
[15] The Rules presuppose a larger legal context shaping the lawyer's role. That context
includes court rules and statutes relating to matters of licensure, laws defining specific
obligations of lawyers and substantive and procedural law in general. The Comments are
sometimes used to alert lawyers to their responsibilities under such other law.
[16] Compliance with the Rules, as with all law in an open society, depends primarily upon
understanding and voluntary compliance, secondarily upon reinforcement by peer and public
opinion, and finally, when necessary, upon enforcement through disciplinary proceedings. The
Rules do not, however, exhaust the moral and ethical considerations that should inform a
lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules
simply provide a framework for the ethical practice of law.
[17] Furthermore, for purposes of determining the lawyer's authority and responsibility,
principles of substantive law external to these Rules determine whether a client-lawyer
relationship exists. Most of the duties flowing from the client-lawyer relationship attach only
after the client has requested the lawyer to render legal services and the lawyer has agreed to do
so. But there are some duties, such as that of confidentiality under Rule 1.6 that attach when
the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule
1.18. Whether a client-lawyer relationship exists for any specific purpose can depend on the
circumstances and may be a question of fact.
[18] Under various legal provisions, including constitutional, statutory, and common law, the
responsibilities of government lawyers may include legal authority that ordinarily reposes in the
client in private client-lawyer relationships. For example, a lawyer for a government agency
may have authority, on behalf of the government, to decide upon settlement or whether to
appeal from an adverse judgment. Such authority in various respects is generally vested in the
attorney general and the prosecuting attorney in state government, and their federal counterparts,
and the same may be true of other government law officers. Also, lawyers under the supervision
of these officers may be authorized to represent several government agencies in
intergovernmental legal controversies in circumstances where a private lawyer could not
represent multiple private clients. These Rules do not abrogate any such authority.
[19] Failure to comply with an obligation or prohibition imposed by a Rule is a basis for
invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a
lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the
time of the conduct in question and in recognition of the fact that a lawyer often has to act upon
uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether
or not discipline should be imposed for a violation, and the severity of a sanction, depend on
all the circumstances, such as the willfulness and seriousness of the violation, extenuating
factors, and whether there have been previous violations.
[20] Violation of a Rule does not itself give rise to a cause of action against a lawyer nor does
it create any presumption in such a case that a legal duty has been breached. In addition,
violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as
disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance
to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They
are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be
subverted when they are invoked by opposing parties as procedural weapons. The fact that a
Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the
administration of a disciplinary authority, does not imply that an antagonist in a collateral
proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the
Rules do establish standards of conduct by lawyers, a lawyer's violation of a Rule may be
evidence of breach of the applicable standard of conduct.
[21] The Comment accompanying each Rule explains and illustrates the meaning and purpose
of the Rule. The Preamble and this note on Scope are only intended to provide general
orientation and are not to be interpreted as Rules. The Comments are intended as guides to
interpretation, but the text of each Rule is authoritative.
Staff Comment: In the current Michigan Rules, the Preamble and Scope are included as comments
under MRPC 1.0; the proposed format is the same as the ABA Model Rules. Preamble paragraph [3],
which addresses the lawyer's role as a "third-party neutral," is new to the proposed MRPCs. In general,
the proposed Preamble is identical to the Preamble of the Model Rules, except for the final sentence in
Model Rule Preamble Paragraph [9], which states: "These principles include the lawyer's obligation
zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while
maintaining a professional, courteous and civil attitude toward all persons involved in the legal system."
Michigan's "professionalism" rule is found at current MRPC 6.5 (proposed MRPC 6.6); therefore this
sentence in the Preamble is not necessary.
This sentence was deleted from Paragraph [18] of the Scope section: "They also may have
authority to represent the public interest' in circumstances where a private lawyer would not be
authorized to do so." In Paragraph [20], these two sentences were added: "In addition, violation of a
Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer
in pending litigation." "Nevertheless, since the Rules do establish standards of conduct by lawyers, a
lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct."
RULE 1.0 TERMINOLOGY
(a) "Belief" or "believes" denotes that the person involved actually supposed the fact in
question to be true. A person's belief may be inferred from circumstances.
(b) "Confirmed in writing," when used in reference to the informed consent of a person,
denotes informed consent that is given in writing by the person or a writing that a lawyer
promptly transmits to the person confirming an oral informed consent. See paragraph (e) for
the definition of "informed consent." If it is not feasible to obtain or transmit the writing at the
time the person gives informed consent, then the lawyer must obtain or transmit it within a
reasonable time thereafter.
(c) "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional
corporation, sole proprietorship or other association engaged in the practice of law; or lawyers
employed in a legal services organization or the legal department of a corporation or other
organization.
(d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or
procedural law of the applicable jurisdiction and has a purpose to deceive.
(e) "Informed consent" denotes the agreement by a person to a proposed course of conduct
after the lawyer has communicated information and explanation reasonably adequate under the
circumstances about the material risks of and reasonably available alternatives to the proposed
course of conduct.
(f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question.
A person's knowledge may be inferred from circumstances.
(g) "Partner" denotes a member of a partnership, a shareholder in a law firm organized as
a professional corporation, or a member of a professional limited liability company or similar
organization engaged in the practice of law.
(h) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the
conduct of a reasonably prudent and competent lawyer.
(i) "Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes
that the lawyer believes the matter in question and that the circumstances are such that the belief
is reasonable.
(j) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of
reasonable prudence and competence would ascertain the matter in question.
(k) "Screened" denotes the isolation of a lawyer from any participation in a matter through
the timely imposition of procedures within a firm that are reasonably adequate under the
circumstances to protect information that the isolated lawyer is obligated to protect under these
Rules or other law.
(l) "Substantial" when used in reference to degree or extent denotes a material matter of
clear and weighty importance.
(m) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a
legislative body, administrative agency or other body acting in an adjudicative capacity. A
legislative body, administrative agency or other body acts in an adjudicative capacity when a
neutral official, after the presentation of evidence or legal argument by a party or parties, will
render a binding legal judgment directly affecting a party's interests in a particular matter.
(n) "Writing" or "written" denotes a tangible or electronic record of a communication or
representation, including handwriting, typewriting, printing, photostating, photography, audio
or video recording and e-mail. A "signed" writing includes an electronic sound, symbol or
process attached to or logically associated with a writing and executed or adopted by a person
with the intent to sign the writing.
[Comment
Confirmed in Writing
[1] If it is not feasible to obtain or transmit a written confirmation at the time the client gives
informed consent, then the lawyer must obtain or transmit it within a reasonable time
thereafter. If a lawyer has obtained a client's informed consent, the lawyer may act in reliance
on that consent so long as it is confirmed in writing within a reasonable time thereafter.
Firm
[2] Whether two or more lawyers constitute a firm within paragraph (c) can depend on the
specific facts. For example, two practitioners who share office space and occasionally consult
or assist each other ordinarily would not be regarded as constituting a firm. However, if they
present themselves to the public in a way that suggests that they are a firm or conduct
themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms
of any formal agreement between associated lawyers are relevant in determining whether they
are a firm, as is the fact that they have mutual access to information concerning the clients they
serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the
Rule that is involved. A group of lawyers could be regarded as a firm for purposes of the Rule
that the same lawyer should not represent opposing parties in litigation, while it might not be
so regarded for purposes of the Rule that information acquired by one lawyer is attributed to
another.
[3] With respect to the law department of an organization, including the government, there is
ordinarily no question that the members of the department constitute a firm within the meaning
of the Rules of Professional Conduct. There can be uncertainty, however, as to the identity of
the client. For example, it may not be clear whether the law department of a corporation
represents a subsidiary or an affiliated corporation, as well as the corporation by which the
members of the department are directly employed. A similar question can arise concerning an
unincorporated association and its local affiliates.
[4] Similar questions can also arise with respect to lawyers in legal aid and legal services
organizations. Depending upon the structure of the organization, the entire organization or
different components of it may constitute a firm or firms for purposes of these Rules.
Fraud
[5] When used in these Rules, the terms "fraud" or "fraudulent" refer to conduct that is
characterized as such under the substantive or procedural law of the applicable jurisdiction
and has a purpose to deceive. This does not include merely negligent misrepresentation or
negligent failure to apprise another of relevant information. For purposes of these Rules, it is
not necessary that anyone has suffered damages or relied on the misrepresentation or failure
to inform.
Informed Consent
[6] Many of the Rules of Professional Conduct require the lawyer to obtain the informed
consent of a client or other person (e.g., a former client or, under certain circumstances, a
prospective client) before accepting or continuing representation or pursuing a course of
conduct. See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b). The communication necessary to obtain
such consent will vary according to the Rule involved and the circumstances giving rise to the
need to obtain informed consent. The lawyer must make reasonable efforts to ensure that the
client or other person possesses information reasonably adequate to make an informed
decision. Ordinarily, this will require communication that includes a disclosure of the facts and
circumstances giving rise to the situation, any explanation reasonably necessary to inform the
client or other person of the material advantages and disadvantages of the proposed course of
conduct and a discussion of the client]'[s or other person]'[s options and
alternatives. In some circumstances, it may be appropriate for a lawyer to advise a client or
other person to seek the advice of other counsel. A lawyer need not inform a client or other
person of facts or implications already known to the client or other person; nevertheless, a
lawyer who does not personally inform the client or other person assumes the risk that the client
or other person is inadequately informed and the consent is invalid. In determining whether
the information and explanation provided are reasonably adequate, relevant factors include
whether the client or other person is experienced in legal matters generally and in making
decisions of the type involved, and whether the client or other person is independently
represented by other counsel in giving the consent. Normally, such persons need less
information and explanation than others, and generally, a client or other person who is
independently represented by other counsel in giving the consent should be assumed to have
given informed consent.
[7] Obtaining informed consent will usually require an affirmative response by the client or
other person. In general, a lawyer may not assume consent from a client]'[s or other
person]'[s silence. Consent may be inferred, however, from the conduct of a client or
other person who has reasonably adequate information about the matter. A number of Rules
require that a person]'[s consent be confirmed in writing. See Rules 1.7(b) and 1.9(a).
For a definition of "writing" and "confirmed in writing," see paragraphs (n) and (b). Other
Rules require that a client]'[s consent be obtained in a writing signed by the client.
See, e.g., Rules 1.8(a) and (g). For a definition of "signed," see paragraph (n).
Screened
[8] This definition applies to situations where screening of a personally disqualified lawyer is
permitted to remove imputation of a conflict of interest under Rules 1.10, 1.11, 1.12 or 1.18.
[9] The purpose of screening is to assure the affected parties that confidential information
known by the personally disqualified lawyer remains protected. The personally disqualified
lawyer should acknowledge the obligation not to communicate with any of the other lawyers
in the firm with respect to the matter. Similarly, other lawyers in the firm who are working on
the matter should be informed that the screening is in place and that they may not communicate
with the personally disqualified lawyer with respect to the matter. Additional screening
measures that are appropriate for the particular matter will depend on the circumstances. To
implement, reinforce, and remind all affected lawyers of the presence of the screening, it may
be appropriate for the firm to undertake such procedures as: a written undertaking by the
screened lawyer to avoid any communication with other firm personnel and any contact with
any firm files or other materials relating to the matter; written notice and instructions to all
other firm personnel, forbidding any communication with the screened lawyer relating to the
matter; denial of access by the screened lawyer to firm files or other materials relating to the
matter; and periodic reminders of the screen to the screened lawyer and all other firm
personnel.
[10] In order to be effective, screening measures must be implemented as soon as practical
after a lawyer or law firm knows or reasonably should know that there is a need for screening.
]
Staff Comment: Proposed MRPC 1.0 is substantially identical to the ABA Model Rules. An important
change to MRPC 1.0 is the insertion of the Terminology section in a rule, rather than in the Scope
section, where it currently appears. There are several new terms that are defined in the proposed MRPC
1.0, and one important variation between the proposed MRPCs and the ABA Model Rules. The State
Bar of Michigan Representative Assembly voted to eliminate all references to "confirmed in writing"
in the proposed Rules, but those references have been retained in the proposed rules for purposes of
informed public comment and debate. The term "confirmed in writing" is defined in MRPC 1.0(b) and
is used in Model Rules 1.7(b), 1.9(a) and (b), 1.11(a) and (d), 1.12(a) and 1.18(d). It is also found in
Comments 1.0[1] and [7], 1.7[1] and [2], 1.8[12], 1.9[9], 1.10[6], 1.12[2] and 3.7[6]. The
Representative Assembly voted against the "confirmed in writing" requirement because it may add a
burdensome and sometimes impractical requirement that may increase expense and possible exposure
to civil liability. There is also a concern that a lawyer's failure to generate a written confirmation may
give rise to an independent grievance cause of action. The ABA proposal states that there are times, for
the protection of both the client and the lawyer, that understandings between a lawyer and a client should
be confirmed in writing. Under the ABA's view, this "confirmed in writing" standard is a good
compromise between never requiring any writing and always requiring the client to sign the agreement.
RULE 1.0.1ADDITIONAL TERMINOLOGY
(a) "Adjudicative officer" includes such officials as judges, judges pro tempore, referees,
special masters, hearing officers and other parajudicial officers, and also lawyers who serve in
such capacities on a part-time basis.
(b) "Person" means a natural person or entity recognized as such by law.
Staff Comment: These two additional terms were added by the State Bar Ethics Committee for extra
clarity. In Michigan, adjudicative officers and parajudicial officers have many titles, so a definition of
these officers is helpful. Also, the definition of "person" clarifies that it includes corporate entities.
These added definitions were placed in a separate rule so as to not unduly modify the ABA Model Rules'
numbering system.
RULE 1.0.2 APPLICABILITY OF RULES
Failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the
disciplinary process. The rules do not, however, give rise to a cause of action for enforcement
of a rule or for damages caused by failure to comply with an obligation or prohibition imposed
by a rule.
Staff Comment: The proposed rule is substantially similar to the current MRPC 1.0(b). Although this
concept is also found in paragraph [20] of the Scope section, it is "elevated" to Rule status in proposed
MRPC 1.0.2.
CLIENT-LAWYER RELATIONSHIP
RULE 1.1 COMPETENCE
A lawyer shall provide competent representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation. Therefore, a lawyer shall not:
(a) Handle a legal matter which the lawyer knows or should know that the lawyer is not
competent to handle, without associating with a lawyer who is competent to handle it;
(b) Handle a legal matter without preparation adequate in the circumstances; or
(c) Neglect a legal matter entrusted to the lawyer.
[Comment
Legal Knowledge and Skill
[1] In determining whether a lawyer employs the requisite knowledge and skill in a particular
matter, relevant factors include the relative complexity and specialized nature of the matter, the
lawyer]'[s general experience, the lawyer]'[s training and experience in the
field in question, the preparation and study the lawyer is able to give the matter and whether
it is feasible to refer the matter to, or associate or consult with, a lawyer of established
competence in the field in question. In many instances, the required proficiency is that of a
general practitioner. Expertise in a particular field of law may be required in some
circumstances.
[2] A lawyer need not necessarily have special training or prior experience to handle legal
problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as
competent as a practitioner with long experience. Some important legal skills, such as the
analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal
problems. Perhaps the most fundamental legal skill consists of determining what kind of legal
problems a situation may involve, a skill that necessarily transcends any particular specialized
knowledge. A lawyer can provide adequate representation in a wholly novel field through
necessary study. Competent representation can also be provided through association with a
lawyer of established competence in the field in question.
[3] In an emergency, a lawyer may give advice or assistance in a matter in which the lawyer
does not have the skill ordinarily required where referral to or consultation or association with
another lawyer would be impractical. Even in an emergency, however, assistance should be
limited to that reasonably necessary in the circumstances, for ill-considered action under
emergency conditions can jeopardize the client]'[s interest.
[4] A lawyer may accept representation where the requisite level of competence can be
achieved by reasonable preparation. This applies as well to a lawyer who is appointed as
counsel for an unrepresented person. See also Rule 6.2.
Thoroughness and Preparation
[5] Competent handling of a particular matter includes inquiry into and analysis of the factual
and legal elements of the problem, and use of methods and procedures meeting the standards
of competent practitioners. It also includes adequate preparation. The required attention and
preparation are determined in part by what is at stake; major litigation and complex
transactions ordinarily require more extensive treatment than matters of lesser complexity and
consequence. An agreement between the lawyer and the client regarding the scope of the
representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c).
Maintaining Competence
[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in
the law and its practice, engage in continuing study and education and comply with all
continuing legal education requirements to which the lawyer is subject.
]
Staff Comment: This rule is a blending of the ABA Model Rule (first sentence) and the current MRPC
1.1 (the remainder of the proposed rule). The ABA Model Rule gives guidance on what a competent
lawyer should do, and the Michigan addition identifies issues that show a lack of competence.
RULE 1.2 SCOPE OF REPRESENTATION AND ALLOCATION
OF AUTHORITY BETWEEN CLIENT AND LAWYER
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning
the objectives of representation and, as required by Rule 1.4, shall consult with the client as to
the means by which they are to be pursued. A lawyer may take such action on behalf of the
client as is impliedly authorized to carry out the representation. A lawyer shall abide by a
client's decision whether to settle a matter or abide by a case evaluation of a matter. In a
criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer,
as to a plea to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not
constitute an endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under
the circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any
proposed course of conduct with a client and may counsel or assist a client to make a good faith
effort to determine the validity, scope, meaning or application of the law.
[Comment
Allocation of Authority between Client and Lawyer
[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to
be served by legal representation, within the limits imposed by law and the lawyer]'[s
professional obligations. The decisions specified in paragraph (a), such as whether to settle
a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer]'[s
duty to communicate with the client about such decisions. With respect to the means by which
the client]'[s objectives are to be pursued, the lawyer shall consult with the client as
required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the
representation.
[2] On occasion, however, a lawyer and a client may disagree about the means to be used to
accomplish the client]'[s objectives. Clients normally defer to the special knowledge
and skill of their lawyer with respect to the means to be used to accomplish their objectives,
particularly with respect to technical, legal, and tactical matters. Conversely, lawyers usually
defer to the client regarding such questions as the expense to be incurred and concern for third
persons who might be adversely affected. Because of the varied nature of the matters about
which a lawyer and client might disagree and because the actions in question may implicate
the interests of a tribunal or other persons, this Rule does not prescribe how such
disagreements are to be resolved. Other law, however, may be applicable and should be
consulted by the lawyer. The lawyer should also consult with the client and seek a mutually
acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has
a fundamental disagreement with the client, the lawyer may withdraw from the representation.
See Rule 1.16(b)(4). Conversely, the client may resolve the disagreement by discharging the
lawyer. See Rule 1.16(a)(3).
[3] At the outset of a representation, the client may authorize the lawyer to take specific action
on the client]'[s behalf without further consultation. Absent a material change in
circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization.
The client may, however, revoke such authority at any time.
[4] In a case in which the client appears to be suffering diminished capacity, the
lawyer]'[s duty to abide by the client]'[s decisions is to be guided by reference
to Rule 1.14.
Independence from Client]'[s Views or Activities
[5] Legal representation should not be denied to people who are unable to afford legal services,
or whose cause is controversial or the subject of popular disapproval. By the same token,
representing a client does not constitute approval of the client]'[s views or activities.
Agreements Limiting Scope of Representation
[6] The scope of services to be provided by a lawyer may be limited by agreement with the
client or by the terms under which the lawyer]'[s services are made available to the
client. When a lawyer has been retained by an insurer to represent an insured, for example, the
representation may be limited to matters related to the insurance coverage. A limited
representation may be appropriate because the client has limited objectives for the
representation. In addition, the terms upon which representation is undertaken may exclude
specific means that might otherwise be used to accomplish the client]'[s objectives.
Such limitations may exclude actions that the client thinks are too costly or that the lawyer
regards as repugnant or imprudent.
[7] Although this Rule affords the lawyer and client substantial latitude to limit the
representation, the limitation must be reasonable under the circumstances. If, for example, a
client]'[s objective is limited to securing general information about the law that the
client needs in order to handle a common and typically uncomplicated legal problem, the
lawyer and client may agree that the lawyer]'[s services will be limited to a brief
telephone consultation. Such a limitation, however, would not be reasonable if the time allotted
was not sufficient to yield advice upon which the client could rely. Although an agreement for
a limited representation does not exempt a lawyer from the duty to provide competent
representation, the limitation is a factor to be considered when determining the legal
knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
See Rule 1.1.
[8] All agreements concerning a lawyer]'[s representation of a client must accord with
the Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and 5.6.
Criminal, Fraudulent and Prohibited Transactions
[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit
a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an
honest opinion about the actual consequences that appear likely to result from a
client]'[s conduct. Nor does the fact that a client uses advice in a course of action that
is criminal or fraudulent, of itself, make a lawyer a party to the course of action. There is a
critical distinction between presenting an analysis of legal aspects of questionable conduct and
recommending the means by which a crime or fraud might be committed with impunity.
[10] When the client]'[s course of action has already begun and is continuing, the
lawyer]'[s responsibility is especially delicate. The lawyer is required to avoid
assisting the client, for example, by drafting or delivering documents that the lawyer knows are
fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not
continue assisting a client in conduct that the lawyer originally supposed was legally proper
but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the
representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone
might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal
and to disaffirm any opinion, document, affirmation, or the like. See Rule 4.1.
[11] Where the client is a fiduciary, the lawyer may be charged with special obligations in
dealings with a beneficiary.
[12] Paragraph (d) applies whether or not the defrauded party is a party to the transaction.
Hence, a lawyer must not participate in a transaction to effectuate criminal or fraudulent
avoidance of tax liability. Paragraph (d) does not preclude undertaking a criminal defense
incident to a general retainer for legal services to a lawful enterprise. The last clause of
paragraph (d) recognizes that determining the validity or interpretation of a statute or
regulation may require a course of action involving disobedience of the statute or regulation
or of the interpretation placed upon it by governmental authorities.
[13] If a lawyer comes to know or reasonably should know that a client expects assistance not
permitted by the Rules of Professional Conduct or other law or if the lawyer intends to act
contrary to the client]'[s instructions, the lawyer must consult with the client regarding
the limitations on the lawyer]'[s conduct. See Rule 1.4(a)(5).
]
Staff Comment: This proposed rule adopts the ABA Model Rule's language over the current MRPC 1.2.
The only modification from the Model Rule is to add "or abide by a case evaluation of a matter" in the
third sentence of paragraph (a) to acknowledge Michigan court procedure.
[]
RULE 1.3 DILIGENCE
A lawyer shall act with reasonable diligence and promptness in representing a client.
[Comment
[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or
personal inconvenience to the lawyer, and take whatever lawful and ethical measures are
required to vindicate a client]'[s cause or endeavor. A lawyer must also act with
commitment and dedication to the interests of the client and with zeal in advocacy upon the
client]'[s behalf. A lawyer is not bound, however, to press for every advantage that
might be realized for a client. For example, a lawyer may have authority to exercise
professional discretion in determining the means by which a matter should be pursued. See
Rule 1.2. The lawyer]'[s duty to act with reasonable diligence does not require the use
of offensive tactics or preclude the treating of all persons involved in the legal process with
courtesy and respect.
[2] A lawyer]'[s work load must be controlled so that each matter can be handled
competently.
[3] Perhaps no professional shortcoming is more widely resented than procrastination. A
client]'[s interests often can be adversely affected by the passage of time or the change
of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the
client]'[s legal position may be destroyed. Even when the client]'[s interests
are not affected in substance, however, unreasonable delay can cause a client needless anxiety
and undermine confidence in the lawyer]'[s trustworthiness. A lawyer]'[s duty
to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a
reasonable request for a postponement that will not prejudice the lawyer]'[s client.
[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry
through to conclusion all matters undertaken for a client. If a lawyer]'[s employment
is limited to a specific matter, the relationship terminates when the matter has been resolved.
If a lawyer has served a client over a substantial period in a variety of matters, the client
sometimes may assume that the lawyer will continue to serve on a continuing basis unless the
lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists
should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly
suppose the lawyer is looking after the client]'[s affairs when the lawyer has ceased
to do so. For example, if a lawyer has handled a judicial or administrative proceeding that
produced a result adverse to the client and the lawyer and the client have not agreed that the
lawyer will handle the matter on appeal, the lawyer must consult with the client about the
possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2).
Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of
the representation the lawyer has agreed to provide to the client. See Rule 1.2.
[5] To prevent neglect of client matters in the event of a sole practitioner]'[s death or
disability, the duty of diligence may require that each sole practitioner prepare a plan, in
conformity with applicable rules, that designates another competent lawyer to review client
files, notify each client of the lawyer]'[s death or disability, and determine whether
there is a need for immediate protective action. Cf. Rule 28 of the American Bar Association
Model Rules for Lawyer Disciplinary Enforcement (providing for court appointment of a lawyer
to inventory files and take other protective action in absence of a plan providing for another
lawyer to protect the interests of the clients of a deceased or disabled lawyer).
]
Staff Comment: This proposed rule is identical the current MRPC 1.3 and to the ABA Model Rule.
RULE 1.4 COMMUNICATION
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which
the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives
are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when
the lawyer knows that the client expects assistance not permitted by the Rules of Professional
Conduct or other law; and
(6) promptly notify the client of all settlement offers, mediation or case evaluations,
and proposed plea bargains.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation.
[Comment
[1] Reasonable communication between the lawyer and the client is necessary for the client
effectively to participate in the representation.
Communicating with Client
[2] If these Rules require that a particular decision about the representation be made by the
client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the
client]'[s consent prior to taking action unless prior discussions with the client have
resolved what action the client wants the lawyer to take. For example, a lawyer who receives
from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain
in a criminal case must promptly inform the client of its substance unless the client has
reasonably contemporaneously indicated that the proposal will be acceptable or unacceptable
or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a).
[3] Paragraph (a)(2) requires the lawyer to reasonably consult with the client about the means
to be used to accomplish the client]'[s objectives. In some situations depending on
both the importance of the action under consideration and the feasibility of consulting with the
client this duty will require consultation prior to taking action. In other circumstances, such
as during a trial when an immediate decision must be made, the exigency of the situation may
require the lawyer to act without prior consultation. In such cases, the lawyer must nonetheless
act reasonably to inform the client of actions the lawyer has taken on the client]'[s
behalf. Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably
informed about the status of the matter, such as significant developments affecting the timing
or the substance of the representation.
[4] A lawyer]'[s regular communication with clients will minimize the occasions on
which a client will need to request information concerning the representation. When a client
makes a reasonable request for information, however, paragraph (a)(4) requires prompt
compliance with the request, or if a prompt response is not feasible, that the lawyer, or a
member of the lawyer]'[s staff, acknowledge receipt of the request and advise the client
when a response may be expected. Client telephone calls should be promptly returned or
acknowledged.
Explaining Matters
[5] The client should have sufficient information to participate intelligently in decisions
concerning the objectives of the representation and the means by which they are to be pursued,
to the extent the client is willing and able to do so. Adequacy of communication depends in part
on the kind of advice or assistance that is involved. For example, when there is time to explain
a proposal made in a negotiation, the lawyer should review all important provisions with the
client before proceeding to an agreement. In litigation, a lawyer should explain the general
strategy and prospects of success and ordinarily should consult the client on tactics that are
likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer
ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding
principle is that the lawyer should fulfill reasonable client expectations for information
consistent with the duty to act in the client]'[s best interests, and the client]'[s
overall requirements as to the character of representation. In certain circumstances, such as
when a lawyer asks a client to consent to a representation affected by a conflict of interest, the
client must give informed consent, as defined in Rule 1.0(e).
[6] Ordinarily, the information to be provided is that appropriate for a client who is a
comprehending and responsible adult. However, fully informing the client according to this
standard may be impracticable, for example, where the client is a child or suffers from
diminished capacity. See Rule 1.14. When the client is an organization or group, it is often
impossible or inappropriate to inform every one of its members about its legal affairs;
ordinarily, the lawyer should address communications to the appropriate officials of the
organization. See Rule 1.13. Where many routine matters are involved, a system of limited or
occasional reporting may be arranged with the client.
Withholding Information
[7] In some circumstances, a lawyer may be justified in delaying transmission of information
when the client would be likely to react imprudently to an immediate communication. Thus, a
lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist
indicates that disclosure would harm the client. A lawyer may not withhold information to
serve the lawyer]'[s own interest or convenience or the interests or convenience of
another person. Rules or court orders governing litigation may provide that information
supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with
such rules or orders.
]
Staff Comment: This proposed rule adopts the ABA Model Rule over the current MRPC 1.4. Paragraph
(a)(6) is derived from the current MRPC 1.4(a).
RULE 1.5 FEES
(a) A lawyer shall not make an agreement for, charge, or collect an illegal or clearly
excessive fee or an unreasonable amount for expenses. A fee is clearly excessive when, after
a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm
conviction that the fee is in excess of a reasonable fee. The factors to be considered in
determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved,
and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the
services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which
the client will be responsible shall be communicated to the client, preferably in writing, before
or within a reasonable time after commencing the representation, except when the lawyer will
charge a regularly represented client on the same basis or rate. Any changes in the basis or rate
of the fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered,
except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A
contingent fee agreement shall be in a writing signed by the client and shall state the method by
which the fee is to be determined, including the percentage or percentages that shall accrue to
the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted
from the recovery; and whether such expenses are to be deducted before or after the contingent
fee is calculated. The agreement must clearly notify the client of any expenses for which the
client will be liable whether or not the client is the prevailing party. Upon conclusion of a
contingent fee matter, the lawyer shall provide the client with a written statement stating the
outcome of the matter and, if there is a recovery, showing the remittance to the client and the
method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is
contingent upon the securing of a divorce or upon the amount of alimony or support, or property
settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the attorney who will be representing the client advises the client of the
participation of all the lawyers involved and the client consents in writing; and
(2) the total fee is reasonable.
(f) A lawyer and a client may agree to a lump-sum or nonrefundable fee arrangement that
is earned by the lawyer at the time of engagement, provided that:
(1) the complexity of the case and its likelihood of preempting the lawyer from other
work is apparent to the client at the outset; and
(2) the retainer agreement is in a writing signed by the client, clearly identifies the
client's expectations in hiring the lawyer, and unambiguously articulates that the lump-sum
purchases something in addition to a fixed amount of lawyer hours; and
(3) the client is of sufficient intelligence, maturity, and sophistication to understand
the agreement and that the fee is nonrefundable; and
(4) the lawyer in fact sets aside a block of time, turns down other cases, and marshals
law firm resources in reliance on the fee agreement.
[Comment
Reasonableness of Fee and Expenses
[1] Paragraph (a) requires that lawyers charge fees that are reasonable under the
circumstances. The factors specified in (1) through (8) are not exclusive. Nor will each factor
be relevant in each instance. Paragraph (a) also requires that expenses for which the client will
be charged must be reasonable. A lawyer may seek reimbursement for the cost of services
performed in-house, such as copying, or for other expenses incurred in-house, such as
telephone charges, either by charging a reasonable amount to which the client has agreed in
advance or by charging an amount that reasonably reflects the cost incurred by the lawyer.
Basis or Rate of Fee
[2] When the lawyer has regularly represented a client, he or she ordinarily will have evolved
an understanding concerning the basis or rate of the fee and the expenses for which the client
will be responsible. In a new client-lawyer relationship, however, an understanding as to fees
and expenses must be promptly established. Generally, it is desirable to furnish the client with
at least a simple memorandum or copy of the lawyer]'[s customary fee arrangements
that states the general nature of the legal services to be provided, the basis, rate or total amount
of the fee, and whether and to what extent the client will be responsible for any costs, expenses
or disbursements in the course of the representation. A written statement concerning the terms
of the engagement reduces the possibility of misunderstanding.
[3] Contingent fees, like any other fees, are subject to the reasonableness standard of
paragraph (a) of this Rule. In determining whether a particular contingent fee is reasonable,
or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the
factors that are relevant under the circumstances. Applicable law may impose limitations on
contingent fees, such as a ceiling on the percentage allowable, or may require a lawyer to offer
clients an alternative basis for the fee. Applicable law also may apply to situations other than
a contingent fee, for example, government regulations regarding fees in certain tax matters.
Terms of Payment
[4] A lawyer may require advance payment of a fee, but is obliged to return any unearned
portion. See Rule 1.16(d). A lawyer may accept property in payment for services, such as an
ownership interest in an enterprise, providing this does not involve acquisition of a proprietary
interest in the cause of action or subject matter of the litigation contrary to Rule 1.8 (i).
However, a fee paid in property instead of money may be subject to the requirements of Rule
1.8(a) because such fees often have the essential qualities of a business transaction with the
client.
[5] An agreement may not be made whose terms might induce the lawyer improperly to curtail
services for the client or perform them in a way contrary to the client]'[s interest. For
example, a lawyer should not enter into an agreement whereby services are to be provided only
up to a stated amount when it is foreseeable that more extensive services probably will be
required, unless the situation is adequately explained to the client. Otherwise, the client might
have to bargain for further assistance in the midst of a proceeding or transaction. However,
it is proper to define the extent of services in light of the client]'[s ability to pay. A
lawyer should not exploit a fee arrangement based primarily on hourly charges by using
wasteful procedures.
Prohibited Contingent Fees
[6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic relations
matter when payment is contingent upon the securing of a divorce or upon the amount of
alimony or support or property settlement to be obtained. This provision does not preclude a
contract for a contingent fee for legal representation in connection with the recovery of post-
judgment balances due under support, alimony or other financial orders because such contracts
do not implicate the same policy concerns.
Division of Fee
[7] A division of fee is a single billing to a client covering the fee of two or more lawyers who
are not in the same firm. A division of fee facilitates association of more than one lawyer in a
matter in which neither alone could serve the client as well, and most often is used when the fee
is contingent and the division is between a referring lawyer and a trial specialist. The client
must agree to the fee sharing arrangement, and the agreement must be confirmed in writing.
Contingent fee agreements must be in a writing signed by the client and must otherwise comply
with paragraph (c) of this Rule. A lawyer should only refer a matter to a lawyer whom the
referring lawyer reasonably believes is competent to handle the matter. See Rule 1.1.
[8] Paragraph (e) does not prohibit or regulate division of fees to be received in the future for
work done when lawyers were previously associated in a law firm. The client must consent to
the fee division agreement, and the consent must be in writing.
Disputes over Fees
[9] If a procedure has been established for resolution of fee disputes, such as an arbitration or
mediation procedure established by the bar, the lawyer must comply with the procedure when
it is mandatory, and, even when it is voluntary, the lawyer should conscientiously consider
submitting to it. Law may prescribe a procedure for determining a lawyer]'[s fee, for
example, in representation of an executor or administrator, a class or a person entitled to a
reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a
lawyer representing another party concerned with the fee should comply with the prescribed
procedure.
]
Staff Comment: There are several major changes to this rule. The proposed MRPC 1.5(a) retains the
"illegal or clearly excessive" language over the "reasonableness" standard of the ABA Model Rules.
It replaces the definition of "clearly excessive fee" in the current rule with eight "reasonableness"
factors. The communication requirement of paragraph (b) is made more specific, as are the rules
regarding contingent fees (in paragraphs [c] and [d]). The only substantive change in paragraph (c) is
the requirement that all contingency fee agreements be signed by the client. The State Bar Ethics
Committee believes that the proposal to require the client to sign the agreement is sound and would
reinforce the duty for the lawyer to clearly communicate the terms of the contingency fee agreement to
the client, and more importantly, insure that the client has been clearly notified of the terms of the
agreement. Proposed paragraph (d) clarifies that contingent fees are also not appropriate in domestic
relations matters when alimony, child support or other property settlements are at stake. Proposed
paragraph (e) would require that the client consent in writing to any fee-sharing arrangement agreed upon
by attorneys of different firms. The burden to obtain the written consent is placed on the attorney who
will be representing the client. Proposed paragraph (e) reflects the current Michigan Rule that does not
require that fee sharing be in proportion to the amount of work done by each lawyer. It also adds a
requirement that the client must consent in writing to any fee sharing agreement. Paragraph (f) was
added by the State Bar Representative Assembly. It specifically allows lawyers, under specified
conditions (1) through (4), to charge a nonrefundable fee that is fully earned when received, even though
the lawyer may perform no additional work. The conditions for a non-refundable fee were taken from
Ethics Opinion RI-010.
RULE 1.6 CONFIDENTIALITY OF INFORMATION
(a) A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation, or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client:
(1) when permitted or required by these rules, or when required by law or by court
order;
(2) to the extent reasonably necessary to rectify the consequences of a client's illegal
or fraudulent act in the furtherance of which the lawyer's services have been used;
(3) regarding the intention of a client to commit a crime to the extent necessary to
prevent the crime;
(4) necessary to establish or collect a fee, or to defend the lawyer or the lawyer's
employees or associates against an accusation of wrongful conduct; and
(5) to secure legal advice about the lawyer's compliance with these rules.
[Comment
[1] This Rule governs the disclosure by a lawyer of information relating to the representation
of a client during the lawyer]'[s representation of the client. See Rule 1.18 for the
lawyer]'[s duties with respect to information provided to the lawyer by a prospective
client, Rule 1.9(c)(2) for the lawyer]'[s duty not to reveal information relating to the
lawyer]'[s prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for
the lawyer]'[s duties with respect to the use of such information to the disadvantage
of clients and former clients.
[2] A fundamental principle in the client-lawyer relationship is that, in the absence of the
client]'[s informed consent, the lawyer must not reveal information relating to the
representation. See Rule 1.0(e) for the definition of informed consent. This contributes to the
trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to
seek legal assistance and to communicate fully and frankly with the lawyer even as to
embarrassing or legally damaging subject matter. The lawyer needs this information to
represent the client effectively and, if necessary, to advise the client to refrain from wrongful
conduct. Almost without exception, clients come to lawyers in order to determine their rights
and what is, in the complex of laws and regulations, deemed to be legal and correct. Based
upon experience, lawyers know that almost all clients follow the advice given, and the law is
upheld.
[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the
attorney-client privilege, the work product doctrine and the rule of confidentiality established
in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial
and other proceedings in which a lawyer may be called as a witness or otherwise required to
produce evidence concerning a client. The rule of client-lawyer confidentiality applies in
situations other than those where evidence is sought from the lawyer through compulsion of
law. The confidentiality rule, for example, applies not only to matters communicated in
confidence by the client but also to all information relating to the representation, whatever its
source. A lawyer may not disclose such information except as authorized or required by the
Rules of Professional Conduct or other law. See also Scope.
[4] Paragraph (a) prohibits a lawyer from revealing information relating to the representation
of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves
reveal protected information but could reasonably lead to the discovery of such information by
a third person. A lawyer]'[s use of a hypothetical to discuss issues relating to the
representation is permissible so long as there is no reasonable likelihood that the listener will
be able to ascertain the identity of the client or the situation involved.
Authorized Disclosure
[5] Except to the extent that the client]'[s instructions or special circumstances limit
that authority, a lawyer is impliedly authorized to make disclosures about a client when
appropriate in carrying out the representation. In some situations, for example, a lawyer may
be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure
that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of
the firm]'[s practice, disclose to each other information relating to a client of the firm,
unless the client has instructed that particular information be confined to specified lawyers.
Disclosure Adverse to Client
[6] Although the public interest is usually best served by a strict rule requiring lawyers to
preserve the confidentiality of information relating to the representation of their clients, the
confidentiality rule is subject to limited exceptions. In becoming privy to information about a
client, a lawyer may foresee that the client intends to commit a crime. To the extent a lawyer
is prohibited from making a disclosure, the interests of the potential victim are sacrificed in
favor of preserving the client]'[s confidences even though the client]'[s
purpose is wrongful. To the extent a lawyer is required or permitted to disclose a
client]'[s purposes, the client may be inhibited from revealing facts which would enable
the lawyer to counsel against a wrongful course of action. A rule governing disclosure of
threatened harm thus involves balancing the interests of one group of potential victims against
those of another. On the assumption that lawyers generally fulfill their duty to advise against
the commission of deliberately wrongful acts, the public is better protected if full and open
communication by the client is encouraged than if it is inhibited.
[6a] Generally speaking, information relating to the representation must be kept
confidential as stated in paragraph (a). However, when the client is or will be engaged in
criminal conduct or the integrity of the lawyer]'[s own conduct is involved, the
principle of confidentiality may appropriately yield, depending on the lawyer]'[s
knowledge about and relationship to the conduct in question, and the seriousness of that
conduct. Several situations must be distinguished.
[6b] First, the lawyer may not counsel or assist a client in conduct that is illegal or
fraudulent. See Rule 1.2(d). Similarly, a lawyer has a duty under Rule 3.3(a)(3) not to use false
evidence. This duty is essentially a special instance of duty prescribed in Rule 1.2(d) to avoid
assisting a client in illegal or fraudulent conduct. The same is true of compliance with Rule 4.1
concerning truthfulness of a lawyer]'[s own representations.
[6c] Second, the lawyer may have been innocently involved in past conduct by the client
that was criminal or fraudulent. In such a situation, the lawyer has not violated Rule 1.2(d),
because to counsel or assist criminal or fraudulent conduct requires knowing that the conduct
is of that character. Even if the involvement was innocent, however, the fact remains that the
lawyer]'[s professional services were made the instrument of the client]'[s
crime or fraud. The lawyer, therefore, has a legitimate interest in being able to rectify the
consequences of such conduct, and has the professional right, although not a professional duty,
to rectify the situation. Exercising that right may require revealing information relating to the
representation. Paragraph (b)(2) gives the lawyer professional discretion to reveal such
information to the extent necessary to accomplish rectification. However, the constitutional
rights of defendants in criminal cases may limit the extent to which counsel for a defendant may
correct a misrepresentation that is based on information provided by the client. See comments
to Rule 3.3.
[6d] Third, the lawyer may learn that a client intends prospective conduct that is
criminal. Inaction by the lawyer is not a violation of Rule 1.2(d), except in the limited
circumstances where failure to act constitutes assisting the client. See comment to Rule 1.2(d).
However, the lawyer]'[s knowledge of the client]'[s purpose may enable the
lawyer to prevent commission of the prospective crime. If the prospective crime is likely to
result in substantial injury, the lawyer may feel a moral obligation to take preventive action.
When the threatened injury is grave, such as homicide or serious bodily injury, a lawyer may
have an obligation under tort or criminal law to take reasonable preventive measures. Whether
the lawyer]'[s concern is based on moral or legal considerations, the interest in
preventing the harm may be more compelling than the interest in preserving confidentiality of
information relating to the client. As stated in paragraph (b)(3), the lawyer has professional
discretion to reveal information in order to prevent a client]'[s criminal act.
[6e] It is arguable that the lawyer should have a professional obligation to make a
disclosure in order to prevent homicide or serious bodily injury which the lawyer knows is
intended by the client. However, it is very difficult for a lawyer to "know" when such a heinous
purpose will actually be carried out, for the client may have a change of mind. To require
disclosure when the client intends such an act, at the risk of professional discipline if the
assessment of the client]'[s purpose turns out to be wrong, would be to impose a penal
risk that might interfere with the lawyer]'[s resolution of an inherently difficult moral
dilemma.
[6f] The lawyer]'[s exercise of discretion requires consideration of such
factors as magnitude, proximity, and likelihood of the contemplated wrong; the nature of the
lawyer]'[s relationship with the client and with those who might be injured by the
client; the lawyer]'[s own involvement in the transaction; and factors that may
extenuate the conduct in question. Where practical, the lawyer should seek to persuade the
client to take suitable action. In any case, a disclosure adverse to the client]'[s interest
should be no greater than the lawyer reasonably believes necessary to the purpose. A
lawyer]'[s decision not to make a disclosure permitted by paragraph (b) does not
violate this rule. Paragraph (b)(2) does not apply where a lawyer is employed after a crime or
fraud has been committed to represent the client in matters ensuing therefrom.
[7] A lawyer]'[s confidentiality obligations do not preclude a lawyer from securing
confidential legal advice about the lawyer]'[s personal responsibility to comply with
these Rules. In most situations, disclosing information to secure such advice will be impliedly
authorized for the lawyer to carry out the representation. Even when the disclosure is not
impliedly authorized, paragraph (b)(5) permits such disclosure because of the importance of
a lawyer]'[s compliance with the Rules of Professional Conduct.
[8] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a
client]'[s conduct or other misconduct of the lawyer involving representation of the
client, the lawyer may respond to the extent the lawyer reasonably believes necessary to
establish a defense. The same is true with respect to a claim involving the conduct or
representation of a former client. Such a charge can arise in a civil, criminal, disciplinary, or
other proceeding and can be based on a wrong allegedly committed by the lawyer against the
client or on a wrong alleged by a third person, for example, a person claiming to have been
defrauded by the lawyer and client acting together. The lawyer]'[s right to respond
arises when an assertion of such complicity has been made. Paragraph (b)(4) does not require
the lawyer to await the commencement of an action or proceeding that charges such complicity,
so that the defense may be established by responding directly to a third party who has made
such an assertion. The right to defend also applies, of course, where a proceeding has been
commenced.
[9] A lawyer entitled to a fee is permitted by paragraph (b)(4) to prove the services rendered
in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of
a fiduciary relationship may not exploit it to the detriment of the fiduciary.
[10] Other law may require that a lawyer disclose information about a client. Whether such
a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When
disclosure of information relating to the representation appears to be required by other law,
the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If,
however, the other law supersedes this Rule and requires disclosure, paragraph (b)(1) permits
the lawyer to make such disclosures as are necessary to comply with the law.
[11] A lawyer may be ordered to reveal information relating to the representation of a client
by a court or by another tribunal or governmental entity claiming authority pursuant to other
law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer
should assert on behalf of the client all nonfrivolous claims that the order is not authorized by
other law or that the information sought is protected against disclosure by the attorney-client
privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult
with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review
is sought, however, paragraph (b)(1) permits the lawyer to comply with the court]'[s
order.
[12] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the
disclosure is necessary to accomplish one of the purposes specified. Where practicable, the
lawyer should first seek to persuade the client to take suitable action to obviate the need for
disclosure. In any case, a disclosure adverse to the client]'[s interest should be no
greater than the lawyer reasonably believes necessary to accomplish the purpose. If the
disclosure will be made in connection with a judicial proceeding, the disclosure should be made
in a manner that limits access to the information to the tribunal or other persons having a need
to know it and appropriate protective orders or other arrangements should be sought by the
lawyer to the fullest extent practicable.
[13] Paragraph (b) permits but does not require the disclosure of information relating to a
client]'[s representation to accomplish the purposes specified in paragraphs (b)(1)
through (b)(3). In exercising the discretion conferred by this Rule, the lawyer may consider
such factors as the nature of the lawyer]'[s relationship with the client and with those
who might be injured by the client, the lawyer]'[s own involvement in the transaction,
and factors that may extenuate the conduct in question. A lawyer]'[s decision not to
disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be required,
however, by other Rules. Some Rules require disclosure only if such disclosure would be
permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1, and 8.3. Rule 3.3, on the other hand,
requires disclosure in some circumstances regardless of whether such disclosure is permitted
by this Rule. See Rule 3.3(c).
Withdrawal
[14] If the lawyer]'[s services will be used by the client in materially furthering a
course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule
1.16(a)(1). After withdrawal, the lawyer is required to refrain from making disclosure of the
client]'[s confidences, except as otherwise permitted by Rule 1.6. Neither this Rule nor
Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal,
and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like.
Where the client is an organization, the lawyer may be in doubt whether contemplated conduct
will actually be carried out by the organization. Where necessary to guide conduct in
connection with this Rule, the lawyer may make inquiry within the organization as indicated
in Rule 1.13(b).
Acting Competently to Preserve Confidentiality
[15] A lawyer must act competently to safeguard information relating to the representation of
a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are
participating in the representation of the client or who are subject to the lawyer]'[s
supervision. See Rules 1.1, 5.1 and 5.3.
[16] When transmitting a communication that includes information relating to the
representation of a client, the lawyer must take reasonable precautions to prevent the
information from coming into the hands of unintended recipients. This duty, however, does not
require that the lawyer use special security measures if the method of communication affords
a reasonable expectation of privacy. Special circumstances, however, may warrant special
precautions. Factors to be considered in determining the reasonableness of the
lawyer]'[s expectation of confidentiality include the sensitivity of the information and
the extent to which the privacy of the communication is protected by law or by a confidentiality
agreement. A client may require the lawyer to implement special security measures not
required by this Rule or may give informed consent to the use of a means of communication that
would otherwise be prohibited by this Rule.
Former Client
[17] The duty of confidentiality continues after the client-lawyer relationship has terminated.
See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the
disadvantage of the former client.
]
Staff Comment: This proposed rule is a blend between the ABA Model Rule, which substitutes
"information relating to the representation of the client" for "client confidences and secrets" in paragraph
(a), and the current MRPC 1.6, which expresses Michigan's fairly permissive disclosure rules. The State
Bar Ethics Committee believes that this compromise rule blends the improvements offered by the ABA
with the current Michigan rule. Some perceive that Michigan's current rule has served Michigan
lawyers well and should be retained.
RULE 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of interest exists
if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client, a former client or a third
person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a),
a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent
and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
[Comment
General Principles
[1] Loyalty and independent judgment are essential elements in the lawyer]'[s
relationship to a client. Concurrent conflicts of interest can arise from the lawyer]'[s
responsibilities to another client, a former client, or a third person, or from the
lawyer]'[s own interests. For specific Rules regarding certain concurrent conflicts of
interest, see Rule 1.8. For former client conflicts of interest, see Rule 1.9. For conflicts of
interest involving prospective clients, see Rule 1.18. For definitions of "informed consent" and
"confirmed in writing," see Rule 1.0(e) and (b).
[2] Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly
identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether
the representation may be undertaken despite the existence of a conflict, i.e., whether the
conflict is consentable; and 4) if so, consult with the clients affected under paragraph (a) and
obtain their informed consent, confirmed in writing. The clients affected under paragraph (a)
include both of the clients referred to in paragraph (a)(1) and the one or more clients whose
representation might be materially limited under paragraph (a)(2).
[3] A conflict of interest may exist before representation is undertaken, in which event, the
representation must be declined, unless the lawyer obtains the informed consent of each client
under the conditions of paragraph (b). To determine whether a conflict of interest exists, a
lawyer should adopt reasonable procedures, appropriate for the size and type of firm and
practice, to determine in both litigation and non-litigation matters the persons and issues
involved. See also Comment to Rule 5.1. Ignorance caused by a failure to institute such
procedures will not excuse a lawyer]'[s violation of this Rule. As to whether a client-
lawyer relationship exists or, having once been established, is continuing, see Comment to Rule
1.3 and Scope.
[4] If a conflict arises after representation has been undertaken, the lawyer ordinarily must
withdraw from the representation, unless the lawyer has obtained the informed consent of the
client under the conditions of paragraph (b). See Rule 1.16. Where more than one client is
involved, whether the lawyer may continue to represent any of the clients is determined both by
the lawyer]'[s ability to comply with duties owed to the former client and by the
lawyer]'[s ability to represent adequately the remaining client or clients, given the
lawyer]'[s duties to the former client. See Rule 1.9. See also Comments [5] and [29].
[5] Unforeseeable developments, such as changes in corporate and other organizational
affiliations or the addition or realignment of parties in litigation, might create conflicts in the
midst of a representation, as when a company sued by the lawyer on behalf of one client is
bought by another client who is represented by the lawyer in an unrelated matter. Depending
on the circumstances, the lawyer may have the option to withdraw from one of the
representations in order to avoid the conflict. The lawyer must seek court approval where
necessary and take steps to minimize harm to the clients. See Rule 1.16. The lawyer must
continue to protect the confidences of the client from whose representation the lawyer has
withdrawn. See Rule 1.9(c).
Identifying Conflicts of Interest: Directly Adverse
[6] Loyalty to a current client prohibits undertaking representation directly adverse to that
client without that client]'[s informed consent. Thus, absent consent, a lawyer may not
act as an advocate in one matter against a person the lawyer represents in some other matter,
even when the matters are wholly unrelated. The client as to whom the representation is
directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer
relationship is likely to impair the lawyer]'[s ability to represent the client effectively.
In addition, the client on whose behalf the adverse representation is undertaken reasonably may
fear that the lawyer will pursue that client]'[s case less effectively out of deference to
the other client, i.e., that the representation may be materially limited by the lawyer]'[s
interest in retaining the current client. Similarly, a directly adverse conflict may arise when a
lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving
another client, as when the testimony will be damaging to the client who is represented in the
lawsuit. On the other hand, simultaneous representation in unrelated matters of clients whose
interests are only economically adverse, such as representation of competing economic
enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus
may not require consent of the respective clients. Where the lawyer and potential client have
addressed these issues prior to establishing a lawyer-client relationship by appropriate
agreement on future conflicts, as discussed below, these concerns are minimized.
[7] Directly adverse conflicts can also arise in transactional matters. For example, if a lawyer
is asked to represent the seller of a business in negotiations with a buyer represented by the
lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not
undertake the representation without the informed consent of each client.
Identifying Conflicts of Interest: Material Limitation
[8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant
risk that a lawyer]'[s ability to consider, recommend, or carry out an appropriate
course of action for the client will be materially limited as a result of the lawyer]'[s
other responsibilities or interests. For example, a lawyer asked to represent several individuals
seeking to form a joint venture is likely to be materially limited in the lawyer]'[s ability
to recommend or advocate all possible positions that each might take because of the
lawyer]'[s duty of loyalty to the others. The conflict in effect forecloses alternatives
that would otherwise be available to the client. The mere possibility of subsequent harm does
not itself require disclosure and consent. The critical questions are the likelihood that a
difference in interests will eventuate and, if it does, whether it will materially interfere with the
lawyer]'[s independent professional judgment in considering alternatives or foreclose
courses of action that reasonably should be pursued on behalf of the client.
Lawyer]'[s Responsibilities to Former Clients and Other Third Persons
[9] In addition to conflicts with other current clients, a lawyer]'[s duties of loyalty and
independence may be materially limited by responsibilities to former clients under Rule 1.9 or
by the lawyer]'[s responsibilities to other persons, such as fiduciary duties arising from
a lawyer]'[s service as a trustee, executor or corporate director.
Personal Interest Conflicts
[10] The lawyer]'[s own interests should not be permitted to have an adverse effect on
representation of a client. For example, if the probity of a lawyer]'[s own conduct in
a transaction is in serious question, it may be difficult or impossible for the lawyer to give a
client detached advice. Similarly, when a lawyer has discussions concerning possible
employment with an opponent of the lawyer]'[s client, or with a law firm representing
the opponent, such discussions could materially limit the lawyer]'[s representation of
the client. In addition, a lawyer may not allow related business interests to affect
representation, for example, by referring clients to an enterprise in which the lawyer has an
undisclosed financial interest. See Rule 1.8 for specific Rules pertaining to a number of
personal interest conflicts, including business transactions with clients. See also Rule 1.10
(personal interest conflicts under Rule 1.7 ordinarily are not imputed to other lawyers in a law
firm).
[11] When lawyers representing different clients in the same matter or in substantially related
matters are closely related by blood or marriage, there may be a significant risk that client
confidences will be revealed and that the lawyer]'[s family relationship will interfere
with both loyalty and independent professional judgment. As a result, each client is entitled to
know of the existence and implications of the relationship between the lawyers before the lawyer
agrees to undertake the representation. Thus, a lawyer related to another lawyer, e.g., as
parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that
lawyer is representing another party, unless each client gives informed consent. The
disqualification arising from a close family relationship is personal and ordinarily is not
imputed to members of firms with whom the lawyers are associated. See Rule 1.10.
Interest of Person Paying for a Lawyer]'[s Service
[13] A lawyer may be paid from a source other than the client, including a co-client, if the
client is informed of that fact and consents and the arrangement does not compromise the
lawyer]'[s duty of loyalty or independent judgment to the client. See Rule 1.8(f). If
acceptance of the payment from any other source presents a significant risk that the
lawyer]'[s representation of the client will be materially limited by the
lawyer]'[s own interest in accommodating the person paying the lawyer]'[s
fee or by the lawyer]'[s responsibilities to a payer who is also a co-client, then the
lawyer must comply with the requirements of paragraph (b) before accepting the
representation, including determining whether the conflict is consentable and, if so, that the
client has adequate information about the material risks of the representation.
Prohibited Representations
[14] Ordinarily, clients may consent to representation notwithstanding a conflict. However,
as indicated in paragraph (b), some conflicts are nonconsentable, meaning that the lawyer
involved cannot properly ask for such agreement or provide representation on the basis of the
client]'[s consent. When the lawyer is representing more than one client, the question
of consentability must be resolved as to each client.
[15] Consentability is typically determined by considering whether the interests of the clients
will be adequately protected if the clients are permitted to give their informed consent to
representation burdened by a conflict of interest. Thus, under paragraph (b)(1), representation
is prohibited if, in the circumstances, the lawyer cannot reasonably conclude that the lawyer
will be able to provide competent and diligent representation. See Rule 1.1 (competence) and
Rule 1.3 (diligence).
[16] Paragraph (b)(2) describes conflicts that are nonconsentable because the representation
is prohibited by applicable law. For example, in some states, substantive law provides that the
same lawyer may not represent more than one defendant in a capital case, even with the consent
of the clients, and under federal criminal statutes, certain representations by a former
government lawyer are prohibited, despite the informed consent of the former client. In
addition, decisional law in some states limits the ability of a governmental client, such as a
municipality, to consent to a conflict of interest.
[17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the institutional
interest in vigorous development of each client]'[s position when the clients are aligned
directly against each other in the same litigation or other proceeding before a tribunal.
Whether clients are aligned directly against each other within the meaning of this paragraph
requires examination of the context of the proceeding. Although this paragraph does not
preclude a lawyer]'[s multiple representation of adverse parties to a mediation
(because mediation is not a proceeding before a "tribunal" under Rule 1.0(m)), such
representation may be precluded by paragraph (b)(1).
Informed Consent
[18] Informed consent requires that each affected client be aware of the relevant circumstances
and of the material and reasonably foreseeable ways that the conflict could have adverse effects
on the interests of that client. See Rule 1.0(e) (informed consent). The information required
depends on the nature of the conflict and the nature of the risks involved. When representation
of multiple clients in a single matter is undertaken, the information must include the
implications of the common representation, including possible effects on loyalty, confidentiality,
and the attorney-client privilege and the advantages and risks involved. See Comments [30]
and [31] (effect of common representation on confidentiality).
[19] Under some circumstances, it may be impossible to make the disclosure necessary to
obtain consent. For example, when the lawyer represents different clients in related matters
and one of the clients refuses to consent to the disclosure necessary to permit the other client
to make an informed decision, the lawyer cannot properly ask the latter to consent. In some
cases the alternative to common representation can be that each party may have to obtain
separate representation with the possibility of incurring additional costs. These costs, along
with the benefits of securing separate representation, are factors that may be considered by the
affected client in determining whether common representation is in the client]'[s
interests.
Consent Confirmed in Writing
[20] Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed
in writing. Such a writing may consist of a document executed by the client or one that the
lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0(b).
See also Rule 1.0(n) (writing includes electronic transmission). If it is not feasible to obtain or
transmit the writing at the time the client gives informed consent, then the lawyer must obtain
or transmit it within a reasonable time thereafter. See Rule 1.0(b). The requirement of a
writing does not supplant the need in most cases for the lawyer to talk with the client, to explain
the risks and advantages, if any, of representation burdened with a conflict of interest, as well
as reasonably available alternatives, and to afford the client a reasonable opportunity to
consider the risks and alternatives and to raise questions and concerns. Rather, the writing is
required in order to impress upon clients the seriousness of the decision the client is being
asked to make and to avoid disputes or ambiguities that might later occur in the absence of a
writing.
Revoking Consent
[21] The client]'[s consent to an existing or future conflict is two-fold, constituting both
consent to the lawyer]'[s representation of the client, and consent to the
lawyer]'[s representation of the other existing or future client. The client is free to
revoke consent as to the lawyer]'[s representation of the client, and may terminate the
lawyer]'[s representation at any time. Whether a client who has given consent to a
conflict may revoke the consent as to the lawyer]'[s other existing or future clients is
determined by contract law where the lawyer has relied upon the client]'[s consent to
a conflict of interest when undertaking or continuing representation of that client, and the
consent is a material term of the representation. In other circumstances, whether revoking
consent to the client]'[s own representation precludes the lawyer from continuing to
represent other clients depends on the circumstances, including the nature of the conflict,
whether the client revoked consent because of a material change in circumstances, the
reasonable expectations of the other client and whether material detriment to the other clients
or the lawyer would result.
Consent to Future Conflict
[22] Whether a lawyer may properly request a client to consent to waive conflicts that might
arise in the future is subject to the test of paragraph (b). The effectiveness of such consents is
generally determined by the extent to which the client reasonably understands the material risks
and benefits of the requested consent. The more comprehensive the explanation of the types of
future representations that might arise and the actual and reasonably foreseeable adverse
consequences of those representations, the greater the likelihood that the client will have the
requisite understanding of the risks. Benefits may accrue to a potential client who, by giving
an informed advance consent, is able to engage a lawyer who would otherwise have declined
the proposed representation. For example, if the client agrees to consent to a particular type
of conflict with which the client is already familiar, then the consent ordinarily will be effective
with regard to that type of conflict. On the other hand, if the consent is general and open-ended
and is given by an unsophisticated client without the advice of independent counsel, then the
consent ordinarily will be ineffective, because it is not reasonably likely that the client will have
understood the material risks involved. If the client is an experienced user of the legal services
involved and is reasonably informed regarding the risk that a conflict may arise, such consent
is more likely to be effective, particularly if, e.g., the client is independently represented by other
counsel in giving consent and the consent is limited to future conflicts unrelated to the subject
of the representation. In any case, advance consent cannot be effective if the circumstances that
materialize in the future are such as would make the conflict nonconsentable under paragraph
(b).
Conflicts in Litigation
[23] Paragraph (b)(3) prohibits representation of opposing parties in the same litigation,
regardless of the clients]'[ consent. On the other hand, simultaneous representation
of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is
governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the
parties]'[ testimony, incompatibility in positions in relation to an opposing party or the
fact that there are substantially different possibilities of settlement of the claims or liabilities
in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict
of interest in representing multiple defendants in a criminal case is so grave that ordinarily a
lawyer should decline to represent more than one codefendant. On the other hand, common
representation of persons having similar interests in civil litigation is proper if the requirements
of paragraph (b) are met.
[24] Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different
times on behalf of different clients. The mere fact that advocating a legal position on behalf of
one client might create precedent adverse to the interests of a client represented by the lawyer
in an unrelated matter does not create a conflict of interest. A conflict of interest exists,
however, if there is a significant risk that a lawyer]'[s action on behalf of one client
will materially limit the lawyer]'[s effectiveness in representing another client in a
different case; for example, when a decision favoring one client will create a precedent likely
to seriously weaken the position taken on behalf of the other client. Factors relevant in
determining whether the clients need to be advised of the risk include: where the cases are
pending, whether the issue is substantive or procedural, the temporal relationship between the
matters, the significance of the issue to the immediate and long-term interests of the clients
involved and the clients]'[ reasonable expectations in retaining the lawyer. If there is
significant risk of material limitation, then absent informed consent of the affected clients, the
lawyer must refuse one of the representations or withdraw from one or both matters.
[25] When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a
class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients
of the lawyer for purposes of applying paragraph (a)(1) of this Rule. Thus, the lawyer does not
typically need to get the consent of such a person before representing a client suing the person
in an unrelated matter. Similarly, a lawyer seeking to represent an opponent in a class action
does not typically need the consent of an unnamed member of the class whom the lawyer
represents in an unrelated matter.
Nonlitigation Conflicts
[26] Conflicts of interest under paragraphs (a)(1) and (a)(2) arise in contexts other than
litigation. For a discussion of directly adverse conflicts in transactional matters, see Comment
[7]. Relevant factors in determining whether there is significant potential for material
limitation include the duration and intimacy of the lawyer]'[s relationship with the
client or clients involved, the functions being performed by the lawyer, the likelihood that
disagreements will arise and the likely prejudice to the client from the conflict. The question
is often one of proximity and degree. See Comment [8].
[27] Conflict questions may arise in estate planning and estate administration. For example,
a lawyer may be called upon to prepare wills for several family members, such as husband and
wife, and, depending upon the circumstances, a conflict of interest may be present. In estate
administration the identity of the client may be unclear under the law of a particular
jurisdiction. Under one view, the client is the fiduciary; under another view the client is the
estate or trust, including its beneficiaries. In order to comply with conflict of interest rules, the
lawyer should make clear the lawyer]'[s relationship to the parties involved.
[28] Whether a conflict is consentable depends on the circumstances. For example, a lawyer
may not represent multiple parties to a negotiation whose interests are fundamentally
antagonistic to each other, but common representation is permissible where the clients are
generally aligned in interest even though there is some difference in interest among them. Thus,
a lawyer may seek to establish or adjust a relationship between clients on an amicable and
mutually advantageous basis; for example, in helping to organize a business in which two or
more clients are entrepreneurs, working out the financial reorganization of an enterprise in
which two or more clients have an interest or arranging a property distribution in settlement
of an estate. The lawyer seeks to resolve potentially adverse interests by developing the
parties]'[ mutual interests. Otherwise, each party might have to obtain separate
representation, with the possibility of incurring additional cost, complication, or even litigation.
Given these and other relevant factors, the clients may prefer that the lawyer act for all of them.
Special Considerations in Common Representation
[29] In considering whether to represent multiple clients in the same matter, a lawyer should
be mindful that if the common representation fails because the potentially adverse interests
cannot be reconciled, the result can be additional cost, embarrassment and recrimination.
Ordinarily, the lawyer will be forced to withdraw from representing all of the clients if the
common representation fails. In some situations, the risk of failure is so great that multiple
representation is plainly impossible. For example, a lawyer cannot undertake common
representation of clients where contentious litigation or negotiations between them are
imminent or contemplated. Moreover, because the lawyer is required to be impartial between
commonly represented clients, representation of multiple clients is improper when it is unlikely
that impartiality can be maintained. Generally, if the relationship between the parties has
already assumed antagonism, the possibility that the clients]'[ interests can be
adequately served by common representation is not very good. Other relevant factors are
whether the lawyer subsequently will represent both parties on a continuing basis and whether
the situation involves creating or terminating a relationship between the parties.
[30] A particularly important factor in determining the appropriateness of common
representation is the effect on client-lawyer confidentiality and the attorney-client privilege.
With regard to the attorney-client privilege, the prevailing rule is that, as between commonly
represented clients, the privilege does not attach. Hence, it must be assumed that if litigation
eventuates between the clients, the privilege will not protect any such communications, and the
clients should be so advised.
[31] As to the duty of confidentiality, continued common representation will almost certainly
be inadequate if one client asks the lawyer not to disclose to the other client information
relevant to the common representation. This is so because the lawyer has an equal duty of
loyalty to each client, and each client has the right to be informed of anything bearing on the
representation that might affect that client]'[s interests and the right to expect that the
lawyer will use that information to that client]'[s benefit. See Rule 1.4. The lawyer
should, at the outset of the common representation and as part of the process of obtaining each
client]'[s informed consent, advise each client that information will be shared and that
the lawyer will have to withdraw if one client decides that some matter material to the
representation should be kept from the other. In limited circumstances, it may be appropriate
for the lawyer to proceed with the representation when the clients have agreed, after being
properly informed, that the lawyer will keep certain information confidential. For example, the
lawyer may reasonably conclude that failure to disclose one client]'[s trade secrets to
another client will not adversely affect representation involving a joint venture between the
clients and agree to keep that information confidential with the informed consent of both clients.
[32] When seeking to establish or adjust a relationship between clients, the lawyer should make
clear that the lawyer]'[s role is not that of partisanship normally expected in other
circumstances and, thus, that the clients may be required to assume greater responsibility for
decisions than when each client is separately represented. Any limitations on the scope of the
representation made necessary as a result of the common representation should be fully
explained to the clients at the outset of the representation. See Rule 1.2(c).
[33] Subject to the above limitations, each client in the common representation has the right
to loyal and diligent representation and the protection of Rule 1.9 concerning the obligations
to a former client. The client also has the right to discharge the lawyer as stated in Rule 1.16.
Organizational Clients
[34] A lawyer who represents a corporation or other organization does not, by virtue of that
representation, necessarily represent any constituent or affiliated organization, such as a parent
or subsidiary. See Rule 1.13(a). Thus, the lawyer for an organization is not barred from
accepting representation adverse to an affiliate in an unrelated matter, unless the circumstances
are such that the affiliate should also be considered a client of the lawyer, there is an
understanding between the lawyer and the organizational client that the lawyer will avoid
representation adverse to the client]'[s affiliates, or the lawyer]'[s obligations
to either the organizational client or the new client are likely to limit materially the
lawyer]'[s representation of the other client.
[35] A lawyer for a corporation or other organization who is also a member of its board of
directors should determine whether the responsibilities of the two roles may conflict. The
lawyer may be called on to advise the corporation in matters involving actions of the directors.
Consideration should be given to the frequency with which such situations may arise, the
potential intensity of the conflict, the effect of the lawyer]'[s resignation from the board
and the possibility of the corporation]'[s obtaining legal advice from another lawyer
in such situations. If there is material risk that the dual role will compromise the
lawyer]'[s independence of professional judgment, the lawyer should not serve as a
director or should cease to act as the corporation]'[s lawyer when conflicts of interest
arise. The lawyer should advise the other members of the board that in some circumstances
matters discussed at board meetings while the lawyer is present in the capacity of director
might not be protected by the attorney-client privilege and that conflict of interest
considerations might require the lawyer]'[s recusal as a director or might require the
lawyer and the lawyer]'[s firm to decline representation of the corporation in a matter.
[36] A lawyer who is asked to represent a corporate fiduciary in connection with a fiduciary
estate should consider discussing with the fiduciary the extent to which the representation might
preclude the lawyer from representing an adverse party in an unrelated matter. In the absence
of a contrary agreement, a lawyer who represents a corporate fiduciary in connection with the
administration of a fiduciary estate should not be treated as representing the fiduciary generally
for purposes of applying Rule 1.7 with regard to a wholly unrelated matter. In particular, the
representation of a corporate fiduciary in a representative capacity should not preclude the
lawyer from representing an adverse party in connection with a wholly unrelated matter, such
as a real estate transaction or labor negotiation or another estate or trust administration.
]
Staff Comment: The current MRPC 1.7, modeled after the former ABA Model Rule, is perceived to be
difficult to understand and apply. The State Bar Ethics Committee agreed with the ABA Ethics 2000
Commission that the conflict of interest doctrine is complicated, and that lawyers are in need of
additional guidance. The Representative Assembly also added Comment [36], which was proposed by
the State Bar Probate and Estate Planning Council, in order to help clarify conflict of interest issues
involving corporate fiduciaries.
RULE 1.8 CONFLICT OF INTEREST: CURRENT CLIENTS:
SPECIFIC RULES
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire
an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and
reasonable to the client and are fully disclosed and transmitted in writing in a manner that can
be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a
reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential
terms of the transaction and the lawyer's role in the transaction, including whether the lawyer
is representing the client in the transaction.
(b) A lawyer shall not use information relating to representation of a client to the
disadvantage of the client, unless the client gives informed consent, in a writing signed by the
client, except as permitted or required by these Rules.
(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift,
or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer
any substantial gift unless the lawyer or other recipient of the gift is related to the client. For
purposes of this paragraph, related persons include a spouse, child, grandchild, parent,
grandparent or other relative or individual with whom the lawyer or the client maintains a close,
familial relationship.
(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate
an agreement giving the lawyer literary or media rights to a portrayal or account based in
substantial part on information relating to the representation.
(e) A lawyer shall not provide financial assistance to a client in connection with pending or
contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of
which may be contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of
litigation on behalf of the client.
(f) A lawyer shall not accept compensation for representing a client from one other than the
client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional judgment
or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule
1.6.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate
settlement of the claims of or against the clients, or in a criminal case an aggregated agreement
as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing
signed by the client. The lawyer's disclosure shall include the existence and nature of all the
claims or pleas involved and of the participation of each person in the settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for
malpractice unless the client is independently represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or
former client unless that person is advised in writing of the desirability of seeking and is given
a reasonable opportunity to seek the advice of independent legal counsel in connection
therewith.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter
of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
(j) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs that
applies to any one of them shall apply to all of them.
[Comment
Business Transactions Between Client and Lawyer
[1] A lawyer]'[s legal skill and training, together with the relationship of trust and
confidence between lawyer and client, create the possibility of overreaching when the lawyer
participates in a business, property, or financial transaction with a client, for example, a loan
or sales transaction or a lawyer investment on behalf of a client. The requirements of
paragraph (a) must be met even when the transaction is not closely related to the subject matter
of the representation, as when a lawyer drafting a will for a client learns that the client needs
money for unrelated expenses and offers to make a loan to the client. The Rule applies to
lawyers engaged in the sale of goods or services related to the practice of law, for example, the
sale of title insurance or investment services to existing clients of the lawyer's legal practice.
See Rule 5.7. It also applies to lawyers purchasing property from estates they represent. It
does not apply to ordinary fee arrangements between client and lawyer, which are governed
by Rule 1.5, although its requirements must be met when the lawyer accepts an interest in the
client]'[s business or other nonmonetary property as payment of all or part of a fee.
In addition, the Rule does not apply to standard commercial transactions between the lawyer
and the client for products or services that the client generally markets to others, for example,
banking or brokerage services, medical services, products manufactured or distributed by the
client, and utilities]'[ services. In such transactions, the lawyer has no advantage in
dealing with the client, and the restrictions in paragraph (a) are unnecessary and
impracticable.
[2] Paragraph (a)(1) requires that the transaction itself be fair to the client and that its
essential terms be communicated to the client, in writing, in a manner that can be reasonably
understood. Paragraph (a)(2) requires that the client also be advised, in writing, of the
desirability of seeking the advice of independent legal counsel. It also requires that the client
be given a reasonable opportunity to obtain such advice. Paragraph (a)(3) requires that the
lawyer obtain the client]'[s informed consent, in a writing signed by the client, both to
the essential terms of the transaction and to the lawyer]'[s role. When necessary, the
lawyer should discuss both the material risks of the proposed transaction, including any risk
presented by the lawyer]'[s involvement, and the existence of reasonably available
alternatives and should explain why the advice of independent legal counsel is desirable. See
Rule 1.0(e) (definition of informed consent).
[3] The risk to a client is greatest when the client expects the lawyer to represent the client in
the transaction itself or when the lawyer]'[s financial interest otherwise poses a
significant risk that the lawyer]'[s representation of the client will be materially limited
by the lawyer]'[s financial interest in the transaction. Here the lawyer]'[s role
requires that the lawyer must comply, not only with the requirements of paragraph (a), but also
with the requirements of Rule 1.7. Under that Rule, the lawyer must disclose the risks
associated with the lawyer]'[s dual role as both legal adviser and participant in the
transaction, such as the risk that the lawyer will structure the transaction or give legal advice
in a way that favors the lawyer]'[s interests at the expense of the client. Moreover, the
lawyer must obtain the client]'[s informed consent. In some cases, the
lawyer]'[s interest may be such that Rule 1.7 will preclude the lawyer from seeking the
client]'[s consent to the transaction.
[4] If the client is independently represented in the transaction, paragraph (a)(2) of this Rule
is inapplicable, and the paragraph (a)(1) requirement for full disclosure is satisfied either by
a written disclosure by the lawyer involved in the transaction or by the client]'[s
independent counsel. The fact that the client was independently represented in the transaction
is relevant in determining whether the agreement was fair and reasonable to the client as
paragraph (a)(1) further requires.
Use of Information Related to Representation
[5] Use of information relating to the representation to the disadvantage of the client violates
the lawyer]'[s duty of loyalty. Paragraph (b) applies when the information is used to
benefit either the lawyer or a third person, such as another client or business associate of the
lawyer. For example, if a lawyer learns that a client intends to purchase and develop several
parcels of land, the lawyer may not use that information to purchase one of the parcels in
competition with the client or to recommend that another client make such a purchase. The
Rule does not prohibit uses that do not disadvantage the client. For example, a lawyer who
learns a government agency]'[s interpretation of trade legislation during the
representation of one client may properly use that information to benefit other clients.
Paragraph (b) prohibits disadvantageous use of client information unless the client gives
informed consent, except as permitted or required by these Rules. See Rules 1.2(d), 1.6, 1.9(c),
3.3, 4.1(b), 8.1 and 8.3.
Gifts to Lawyers
[6] A lawyer may accept a gift from a client, if the transaction meets general standards of
fairness. For example, a simple gift such as a present given at a holiday or as a token of
appreciation is permitted. If a client offers the lawyer a more substantial gift, paragraph (c)
does not prohibit the lawyer from accepting it, although such a gift may be voidable by the
client under the doctrine of undue influence, which treats client gifts as presumptively
fraudulent. In any event, due to concerns about overreaching and imposition on clients, a
lawyer may not suggest that a substantial gift be made to the lawyer or for the
lawyer]'[s benefit, except where the lawyer is related to the client as set forth in
paragraph (c).
[7] If effectuation of a substantial gift requires preparing a legal instrument such as a will or
conveyance the client should have the detached advice that another lawyer can provide. The
sole exception to this Rule is where the client is a relative of the donee.
[8] This Rule does not prohibit a lawyer from seeking to have the lawyer or a partner or
associate of the lawyer named as executor of the client]'[s estate or to another
potentially lucrative fiduciary position. Nevertheless, such appointments will be subject to the
general conflict of interest provision in Rule 1.7 when there is a significant risk that the
lawyer]'[s interest in obtaining the appointment will materially limit the
lawyer]'[s independent professional judgment in advising the client concerning the
choice of an executor or other fiduciary. In obtaining the client]'[s informed consent
to the conflict, the lawyer should advise the client concerning the nature and extent of the
lawyer]'[s financial interest in the appointment, as well as the availability of
alternative candidates for the position.
Literary Rights
[9] An agreement by which a lawyer acquires literary or media rights concerning the conduct
of the representation creates a conflict between the interests of the client and the personal
interests of the lawyer. Measures suitable in the representation of the client may detract from
the publication value of an account of the representation. Paragraph (d) does not prohibit a
lawyer representing a client in a transaction concerning literary property from agreeing that
the lawyer]'[s fee shall consist of a share in ownership in the property, if the
arrangement conforms to Rule 1.5 and paragraphs (a) and (i).
Financial Assistance
[10] Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of
their clients, including making or guaranteeing loans to their clients for living expenses,
because to do so would encourage clients to pursue lawsuits that might not otherwise be
brought and because such assistance gives lawyers too great a financial stake in the litigation.
These dangers do not warrant a prohibition on a lawyer lending a client court costs and
litigation expenses, including the expenses of medical examination and the costs of obtaining
and presenting evidence, because these advances are virtually indistinguishable from
contingent fees and help ensure access to the courts. Similarly, an exception allowing lawyers
representing indigent clients to pay court costs and litigation expenses regardless of whether
these funds will be repaid is warranted.
Person Paying for a Lawyer]'[s Services
[11] Lawyers are frequently asked to represent a client under circumstances in which a third
person will compensate the lawyer, in whole or in part. The third person might be a relative
or friend, an indemnitor (such as a liability insurance company) or a co-client (such as a
corporation sued along with one or more of its employees). Because third-party payers
frequently have interests that differ from those of the client, including interests in minimizing
the amount spent on the representation and in learning how the representation is progressing,
lawyers are prohibited from accepting or continuing such representations unless the lawyer
determines that there will be no interference with the lawyer]'[s independent
professional judgment and there is informed consent from the client. See also Rule 5.4(c)
(prohibiting interference with a lawyer]'[s professional judgment by one who
recommends, employs or pays the lawyer to render legal services for another).
[12] Sometimes, it will be sufficient for the lawyer to obtain the client]'[s informed
consent regarding the fact of the payment and the identity of the third-party payer. If, however,
the fee arrangement creates a conflict of interest for the lawyer, then the lawyer must comply
with Rule. 1.7. The lawyer must also conform to the requirements of Rule 1.6 concerning
confidentiality. Under Rule 1.7(a), a conflict of interest exists if there is significant risk that the
lawyer]'[s representation of the client will be materially limited by the
lawyer]'[s own interest in the fee arrangement or by the lawyer]'[s
responsibilities to the third-party payer (for example, when the third-party payer is a co-client).
Under Rule 1.7(b), the lawyer may accept or continue the representation with the informed
consent of each affected client, unless the conflict is nonconsentable under that paragraph.
Under Rule 1.7(b), the informed consent must be confirmed in writing.
Aggregate Settlements
[13] Differences in willingness to make or accept an offer of settlement are among the risks of
common representation of multiple clients by a single lawyer. Under Rule 1.7, this is one of the
risks that should be discussed before undertaking the representation, as part of the process of
obtaining the clients]'[ informed consent. In addition, Rule 1.2(a) protects each
client]'[s right to have the final say in deciding whether to accept or reject an offer of
settlement and in deciding whether to enter a guilty or nolo contendere plea in a criminal case.
The rule stated in this paragraph is a corollary of both these Rules and provides that, before
any settlement offer or plea bargain is made or accepted on behalf of multiple clients, the
lawyer must inform each of them about all the material terms of the settlement, including what
the other clients will receive or pay if the settlement or plea offer is accepted. See also Rule
1.0(e) (definition of informed consent). Lawyers representing a class of plaintiffs or defendants,
or those proceeding derivatively, may not have a full client-lawyer relationship with each
member of the class; nevertheless, such lawyers must comply with applicable rules regulating
notification of class members and other procedural requirements designed to ensure adequate
protection of the entire class.
Limiting Liability and Settling Malpractice Claims
[14] Agreements prospectively limiting a lawyer]'[s liability for malpractice are
prohibited unless the client is independently represented in making the agreement because they
are likely to undermine competent and diligent representation. Also, many clients are unable
to evaluate the desirability of making such an agreement before a dispute has arisen,
particularly if they are then represented by the lawyer seeking the agreement. This paragraph
does not, however, prohibit a lawyer from entering into an agreement with the client to
arbitrate legal malpractice claims, provided such agreements are enforceable and the client is
fully informed of the scope and effect of the agreement. Nor does this paragraph limit the
ability of lawyers to practice in the form of a limited-liability entity, where permitted by law,
provided that each lawyer remains personally liable to the client for his or her own conduct and
the firm complies with any conditions required by law, such as provisions requiring client
notification or maintenance of adequate liability insurance. Nor does it prohibit an agreement
in accordance with Rule 1.2 that defines the scope of the representation, although a definition
of scope that makes the obligations of representation illusory will amount to an attempt to limit
liability.
[15] Agreements settling a claim or a potential claim for malpractice are not prohibited by this
Rule. Nevertheless, in view of the danger that a lawyer will take unfair advantage of an
unrepresented client or former client, the lawyer must first advise such a person in writing of
the appropriateness of independent representation in connection with such a settlement. In
addition, the lawyer must give the client or former client a reasonable opportunity to find and
consult independent counsel.
Acquiring Proprietary Interest in Litigation
[16] Paragraph (i) states the traditional general rule that lawyers are prohibited from
acquiring a proprietary interest in litigation. Like paragraph (e), the general rule has its basis
in common law champerty and maintenance and is designed to avoid giving the lawyer too
great an interest in the representation. In addition, when the lawyer acquires an ownership
interest in the subject of the representation, it will be more difficult for a client to discharge the
lawyer if the client so desires. The Rule is subject to specific exceptions developed in decisional
law and continued in these Rules. The exception for certain advances of the costs of litigation
is set forth in paragraph (e). In addition, paragraph (i) sets forth exceptions for liens
authorized by law to secure the lawyer]'[s fees or expenses and contracts for
reasonable contingent fees. The law of each jurisdiction determines which liens are authorized
by law. These may include liens granted by statute, liens originating in common law, and liens
acquired by contract with the client. When a lawyer acquires by contract a security interest in
property other than that recovered through the lawyer]'[s efforts in the litigation, such
an acquisition is a business or financial transaction with a client and is governed by the
requirements of paragraph (a). Contracts for contingent fees in civil cases are governed by
Rule 1.5.
Client-Lawyer Sexual Relationships
[17] After careful study, the Supreme Court declined in 1998 to adopt a proposal to amend
Rule 1.8 to limit sexual relationships between lawyers and clients. The Michigan Rules of
Professional Conduct adequately prohibit representation that lacks competence or diligence,
or that is shadowed by a conflict of interest. With regard to sexual behavior, the Michigan
Court Rules provide that a lawyer may be disciplined for "conduct that is contrary to justice,
ethics, honesty, or good morals." MCR 9.104(3). Further, the Legislature has enacted
criminal penalties for certain types of sexual misconduct. In this regard, it should be
emphasized that a lawyer bears a fiduciary responsibility toward the client. A lawyer who has
a conflict of interest, whose actions interfere with effective representation, who takes advantage
of a client's vulnerability, or whose behavior is immoral risks severe sanctions under the
existing Michigan Court Rules and Michigan Rules of Professional Conduct.
Imputation of Prohibitions
[18] Under paragraph (j), a prohibition on conduct by an individual lawyer in paragraphs (a)
through (i) also applies to all lawyers associated in a firm with the personally prohibited
lawyer. For example, one lawyer in a firm may not enter into a business transaction with a
client of another member of the firm without complying with paragraph (a), even if the first
lawyer is not personally involved in the representation of the client.
]
Staff Comment: The proposed rule is substantially similar to the current MRPC 1.8, except for the
change of title and the addition of the paragraph (a)(2) requirement that would require a client to be
advised in writing of the desirability of seeking the advice of independent legal counsel on the
transaction. The State Bar Ethics Committee agreed with the ABA Model Rule recommendations to add
this requirement, as well as the requirement that the client be afforded a reasonable opportunity to seek
such counsel. The Committee believes these additional requirements are necessary for the protection
of clients. The proposed rule clarifies what type of writing is required, particularly whether the writing
needs to be signed by the client. Certain terms are defined in Rule 1.0, including the term "writing."
RULE 1.9 DUTIES TO FORMER CLIENTS
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent
another person in the same or a substantially related matter in which that person's interests are
materially adverse to the interests of the former client unless the former client gives informed
consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related
matter in which a firm with which the lawyer formerly was associated had previously
represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and
1.9(c) that is material to the matter; unless the former client gives informed consent,
confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former
firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former
client except as these Rules would permit or require with respect to a client, or when the
information has become generally known; or
(2) reveal information relating to the representation except as these Rules would
permit or require with respect to a client.
[Comment
[1] After termination of a client-lawyer relationship, a lawyer has certain continuing duties
with respect to confidentiality and conflicts of interest and thus may not represent another client
except in conformity with this Rule. Under this Rule, for example, a lawyer could not properly
seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So
also a lawyer who has prosecuted an accused person could not properly represent the accused
in a subsequent civil action against the government concerning the same transaction. Nor
could a lawyer who has represented multiple clients in a matter represent one of the clients
against the others in the same or a substantially related matter after a dispute arose among the
clients in that matter, unless all affected clients give informed consent. See Comment [9].
Current and former government lawyers must comply with this Rule to the extent required by
Rule 1.11.
[2] The scope of a "matter" for purposes of this Rule depends on the facts of a particular
situation or transaction. The lawyer]'[s involvement in a matter can also be a question
of degree. When a lawyer has been directly involved in a specific transaction, subsequent
representation of other clients with materially adverse interests in that transaction clearly is
prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a
former client is not precluded from later representing another client in a factually distinct
problem of that type even though the subsequent representation involves a position adverse to
the prior client. Similar considerations can apply to the reassignment of military lawyers
between defense and prosecution functions within the same military jurisdictions. The
underlying question is whether the lawyer was so involved in the matter that the subsequent
representation can be justly regarded as a changing of sides in the matter in question.
[3] Matters are "substantially related" for purposes of this Rule if they involve the same
transaction or legal dispute or if there otherwise is a substantial risk that confidential factual
information as would normally have been obtained in the prior representation would materially
advance the client]'[s position in the subsequent matter. For example, a lawyer who
has represented a businessperson and learned extensive private financial information about
that person may not then represent that person]'[s spouse in seeking a divorce.
Similarly, a lawyer who has previously represented a client in securing environmental permits
to build a shopping center would be precluded from representing neighbors seeking to oppose
rezoning of the property on the basis of environmental considerations; however, the lawyer
would not be precluded, on the grounds of substantial relationship, from defending a tenant of
the completed shopping center in resisting eviction for nonpayment of rent. Information that
has been disclosed to the public or to other parties adverse to the former client ordinarily will
not be disqualifying. Information acquired in a prior representation may have been rendered
obsolete by the passage of time, a circumstance that may be relevant in determining whether
two representations are substantially related. In the case of an organizational client, general
knowledge of the client]'[s policies and practices ordinarily will not preclude a
subsequent representation; on the other hand, knowledge of specific facts gained in a prior
representation that are relevant to the matter in question ordinarily will preclude such a
representation. A former client is not required to reveal the confidential information learned
by the lawyer in order to establish a substantial risk that the lawyer has confidential
information to use in the subsequent matter. A conclusion about the possession of such
information may be based on the nature of the services the lawyer provided the former client
and information that would in ordinary practice be learned by a lawyer providing such
services.
Lawyers Moving Between Firms
[4] When lawyers have been associated within a firm but then end their association, the
question of whether a lawyer should undertake representation is more complicated. There are
several competing considerations. First, the client previously represented by the former firm
must be reasonably assured that the principle of loyalty to the client is not compromised.
Second, the rule should not be so broadly cast as to preclude other persons from having
reasonable choice of legal counsel. Third, the rule should not unreasonably hamper lawyers
from forming new associations and taking on new clients after having left a previous
association. In this connection, it should be recognized that today many lawyers practice in
firms, that many lawyers to some degree limit their practice to one field or another, and that
many move from one association to another several times in their careers. If the concept of
imputation were applied with unqualified rigor, the result would be radical curtailment of the
opportunity of lawyers to move from one practice setting to another and of the opportunity of
clients to change counsel.
[5] Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has actual
knowledge of information protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with one
firm acquired no knowledge or information relating to a particular client of the firm, and that
lawyer later joined another firm, neither the lawyer individually nor the second firm is
disqualified from representing another client in the same or a related matter even though the
interests of the two clients conflict. See Rule 1.10 (c) for the restrictions on a firm once a
lawyer has terminated association with the firm.
[6] Application of paragraph (b) depends on a situation]'[s particular facts, aided by
inferences, deductions, or working presumptions that reasonably may be made about the way
in which lawyers work together. A lawyer may have general access to files of all clients of a
law firm and may regularly participate in discussions of their affairs; it should be inferred that
such a lawyer in fact is privy to all information about all the firm]'[s clients. In
contrast, another lawyer may have access to the files of only a limited number of clients and
participate in discussions of the affairs of no other clients; in the absence of information to the
contrary, it should be inferred that such a lawyer in fact is privy to information about the clients
actually served but not those of other clients. In such an inquiry, the burden of proof should
rest upon the firm whose disqualification is sought.
[7] Independent of the question of disqualification of a firm, a lawyer changing professional
association has a continuing duty to preserve confidentiality of information about a client
formerly represented. See Rules 1.6 and 1.9(c).
[8] Paragraph (c) provides that information acquired by the lawyer in the course of
representing a client may not subsequently be used or revealed by the lawyer to the
disadvantage of the client. However, the fact that a lawyer has once served a client does not
preclude the lawyer from using generally known information about that client when later
representing another client.
[9] The provisions of this Rule are for the protection of former clients and can be waived if the
client gives informed consent, which consent must be confirmed in writing under paragraphs
(a) and (b). See Rule 1.0(e). With regard to the effectiveness of an advance waiver, see
Comment [22] to Rule 1.7. With regard to disqualification of a firm with which a lawyer is or
was formerly associated, see Rule 1.10.]
Staff Comment: The proposed rule substitutes "unless the former client gives informed consent,
confirmed in writing" for "unless the former client consents after consultation" in both paragraphs (a)
and (b). This language is highlighted in the proposed MRPC 1.9 because, as noted above under Rule
1.0, the Representative Assembly voted to eliminate all references to "confirmed in writing."
RULE 1.10 IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client
when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9,
unless the prohibition is based on a personal interest of the prohibited lawyer and does not
present a significant risk of materially limiting the representation of the client by the remaining
lawyers in the firm.
(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent
a person in the same or a substantially related matter in which that lawyer, or a firm with which
the lawyer was associated, is disqualified under Rule 1.9(b), unless:
(1) the disqualified lawyer is screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate tribunal to enable it to ascertain
compliance with the provisions of this rule.
(c) When a lawyer has terminated an association with a firm, the firm is not prohibited from
thereafter representing a person with interests materially adverse to those of a client represented
by the formerly associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly
associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and
1.9(c) that is material to the matter.
(d) A disqualification prescribed by this rule may be waived by the affected client under the
conditions stated in Rule 1.7.
(e) The disqualification of lawyers associated in a firm with former or current government
lawyers is governed by Rule 1.11.
[Comment
Definition of "Firm"
[1] For purposes of the Rules of Professional Conduct, the term "firm" denotes lawyers in a
law partnership, professional corporation, sole proprietorship or other association engaged
in the practice of law; or lawyers employed in a legal services organization or the legal
department of a corporation or other organization. See Rule 1.0(c). Whether two or more
lawyers constitute a firm within this definition can depend on the specific facts. See Rule 1.0,
Comments [2] - [4].
Principles of Imputed Disqualification
[2] The rule of imputed disqualification stated in paragraph (a) gives effect to the principle of
loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be
considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the
rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound
by the obligation of loyalty owed by each lawyer with whom the lawyer is associated.
Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer
moves from one firm to another, the situation is governed by Rules 1.9(b) and 1.10(c).
[3] The rule in paragraph (a) does not prohibit representation where neither questions of client
loyalty nor protection of confidential information are presented. Where one lawyer in a firm
could not effectively represent a given client because of strong political beliefs, for example, but
that lawyer will do no work on the case and the personal beliefs of the lawyer will not
materially limit the representation by others in the firm, the firm should not be disqualified. On
the other hand, if an opposing party in a case were owned by a lawyer in the law firm, and
others in the firm would be materially limited in pursuing the matter because of loyalty to that
lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm.
[4] The rule in paragraph (a) also does not prohibit representation by others in the law firm
where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal
or legal secretary. Nor does paragraph (a) prohibit representation if the lawyer is prohibited
from acting because of events before the person became a lawyer, for example, work that the
person did while a law student. Such persons, however, ordinarily must be screened from any
personal participation in the matter to avoid communication to others in the firm of confidential
information that both the nonlawyers and the firm have a legal duty to protect. See Rules 1.0(k)
and 5.3.
[5] Rule 1.10(c) operates to permit a law firm, under certain circumstances, to represent a
person with interests directly adverse to those of a client represented by a lawyer who formerly
was associated with the firm. The Rule applies regardless of when the formerly associated
lawyer represented the client. However, the law firm may not represent a person with interests
adverse to those of a present client of the firm, which would violate Rule 1.7. Moreover, the
firm may not represent the person where the matter is the same or substantially related to that
in which the formerly associated lawyer represented the client and any other lawyer currently
in the firm has material information protected by Rules 1.6 and 1.9(c).
[6] Rule 1.10(d) removes imputation with the informed consent of the affected client or former
client under the conditions stated in Rule 1.7. The conditions stated in Rule 1.7 require the
lawyer to determine that the representation is not prohibited by Rule 1.7(b) and that each
affected client or former client has given informed consent to the representation, confirmed in
writing. In some cases, the risk may be so severe that the conflict may not be cured by client
consent. For a discussion of the effectiveness of client waivers of conflicts that might arise in
the future, see Rule 1.7, Comment [22]. For a definition of informed consent, see Rule 1.0(e).
[7] Where a lawyer has joined a private firm after having represented the government,
imputation is governed by Rule 1.11(b) and (c), not this Rule. Under Rule 1.11(d), where a
lawyer represents the government after having served clients in private practice,
nongovernmental employment or in another government agency, former-client conflicts are not
imputed to government lawyers associated with the individually disqualified lawyer.
[8] Where a lawyer is prohibited from engaging in certain transactions under Rule 1.8,
paragraph (k) of that Rule, and not this Rule, determines whether that prohibition also applies
to other lawyers associated in a firm with the personally prohibited lawyer.
[9] Rule 1.10(b) operates to permit a law firm, under certain circumstances, to represent a
person with interests directly adverse to those of a client represented by a lawyer who formerly
was associated with the firm. The rule applies regardless of when the formerly associated
lawyer represented the client. However, the law firm may not represent a person with interests
adverse to those of a present client of the firm, which would violate Rule 1.7. Moreover, the
firm may not represent the person where the matter is the same or substantially related to that
in which the formerly associated lawyer represented the client and any other lawyer currently
in the firm has material information protected by Rules 1.6 and 1.9(c), unless the
rule]'[s provisions are followed. ]
Staff comment: The proposed MRPC 1.10 and the Model Rule add this language to the current
paragraph (a): "unless the prohibition is based on a personal interest of the prohibited lawyer and
does not present a significant risk of materially limiting the representation of the client by the
remaining lawyers in the firm." The proposed rule deviates from the Model Rule by including
current paragraph (b), which allows a new lawyer's firm to continue representation even if the new
lawyer has a conflict of interest as long as the firm screens the new lawyer from any participation in
the matter. The Commentary is largely new. Comment [9] was carried over from the current
Michigan rule to clarify the import of paragraph (b).
RULE 1.11 SPECIAL CONFLICTS OF INTEREST FORFORMER AND
CURRENT GOVERNMENTOFFICERS AND EMPLOYEES
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served or is
serving as a public officer or employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the
lawyer participated personally and substantially as a public officer or employee, unless the
appropriate government agency gives its informed consent, confirmed in writing, to the
representation.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a
firm with which that lawyer is associated may knowingly undertake or continue representation
in such a matter unless:
(1) the disqualified lawyer is screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable
it to ascertain compliance with the provisions of this rule.
(c) Except as law may otherwise expressly permit, a lawyer having information about a
person acquired when the lawyer was a public officer or employee, may not represent a private
client whose interests are adverse to that person in a matter in which the information could be
used to the material disadvantage of that person unless the lawyer reasonably believes, after
diligent inquiry and careful consideration, that the information is not confidential government
information. As used in this Rule, the term "confidential government information" means
information that has been obtained under governmental authority and which, at the time this
Rule is applied, the government is prohibited by law from disclosing to the public or has a legal
privilege not to disclose and which is not otherwise available to the public. A firm with which
that lawyer is associated may undertake or continue representation in the matter only if the
disqualified lawyer is screened from any participation in the matter and is apportioned no part
of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public
officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated or is participating
personally and substantially while in private practice or nongovernmental employment, unless
the appropriate government agency gives its informed consent, confirmed in writing;
(ii) negotiate for private employment with any person who is involved as a
party or as lawyer for a party in a matter in which the lawyer is participating personally and
substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer
or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to
the conditions stated in Rule 1.12(b); or
(iii) participate in a matter knowing that another lawyer currently employed in
the same agency or office is disqualified from participation in the matter pursuant to Rule 1.7,
Rule 1.9 or paragraph (2)(i) of this rule unless the disqualified lawyer is screened from any
participation in the matter or screening is impractical.
(e) As used in this Rule, the term "matter" includes:
(1) any judicial or other non-legislative proceeding, application, request for a ruling
or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or
other particular matter involving a specific party or parties, and
(2) any other matter covered by the conflict of interest rules of the appropriate
government agency.
(f) A lawyer who serves part time as a government officer or employee but not as an
adjudicative officer and also represents or counsels nongovernmental client(s) must comply with
paragraph (d) of this rule when acting as a government officer or employee and with paragraphs
(a) and (c) of this rule when representing or counseling nongovernmental client(s). Other
lawyers in a firm with which such a lawyer is associated must comply with paragraph (b) of this
rule and with the screening and fee apportionment provision in paragraph (c) of this rule. Other
lawyers in the government agency or office in which such a lawyer works part time must comply
with paragraph (d)(2)(iii) of this rule.
[Comment
[1] A lawyer who has served or is currently serving as a public officer or employee is
personally subject to the Rules of Professional Conduct, including the prohibition against
concurrent conflicts of interest stated in Rule 1.7. In addition, such a lawyer may be subject
to statutes and government regulations regarding conflict of interest. Such statutes and
regulations may circumscribe the extent to which the government agency may give consent
under this Rule. See Rule 1.0(e) for the definition of informed consent.
[2] Paragraphs (a)(1), (a)(2) and (d)(1) restate the obligations of an individual lawyer who has
served or is currently serving as an officer or employee of the government toward a former
government or private client. Rule 1.10 is not applicable to the conflicts of interest addressed
by this Rule. Rather, paragraph (b) sets forth a special imputation rule for former government
lawyers that provides for screening and notice. Because of the special problems raised by
imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer
currently serving as an officer or employee of the government to other associated government
officers or employees, although ordinarily it will be prudent to screen such lawyers.
[3] Paragraphs (a)(2) and (d)(2) apply regardless of whether a lawyer is adverse to a former
client and are thus designed not only to protect the former client, but also to prevent a lawyer
from exploiting public office for the advantage of another client. For example, a lawyer who
has pursued a claim on behalf of the government may not pursue the same claim on behalf of
a later private client after the lawyer has left government service, except when authorized to do
so by the government agency under paragraph (a). Similarly, a lawyer who has pursued a
claim on behalf of a private client may not pursue the claim on behalf of the government, except
when authorized to do so by paragraph (d). As with paragraphs (a)(1) and (d)(1), Rule 1.10
is not applicable to the conflicts of interest addressed by these paragraphs.
[4] This Rule represents a balancing of interests. On the one hand, where the successive clients
are a government agency and another client, public or private, the risk exists that power or
discretion vested in that agency might be used for the special benefit of the other client. A
lawyer should not be in a position where benefit to the other client might affect performance
of the lawyer]'[s professional functions on behalf of the government. Also, unfair
advantage could accrue to the other client by reason of access to confidential government
information about the client]'[s adversary obtainable only through the
lawyer]'[s government service. On the other hand, the rules governing lawyers
presently or formerly employed by a government agency should not be so restrictive as to
inhibit transfer of employment to and from the government. The government has a legitimate
need to attract qualified lawyers as well as to maintain high ethical standards. Thus a former
government lawyer is disqualified only from particular matters in which the lawyer participated
personally and substantially. The provisions for screening and waiver in paragraph (b) are
necessary to prevent the disqualification rule from imposing too severe a deterrent against
entering public service. The limitation of disqualification in paragraphs (a)(2) and (d)(2) to
matters involving a specific party or parties, rather than extending disqualification to all
substantive issues on which the lawyer worked, serves a similar function.
[5] When a lawyer has been employed by one government agency and then moves to a second
government agency, it may be appropriate to treat that second agency as another client for
purposes of this Rule, as when a lawyer is employed by a city and subsequently is employed by
a federal agency. However, because the conflict of interest is governed by paragraph (d), the
latter agency is not required to screen the lawyer as paragraph (b) requires a law firm to do.
The question of whether two government agencies should be regarded as the same or different
clients for conflict of interest purposes is beyond the scope of these Rules. See Rule 1.13
Comment [6].
[6] Paragraphs (b), (c) and (d)(2)(i) and (iii) contemplate a screening arrangement. See Rule
1.0(k) (requirements for screening procedures). These paragraphs do not prohibit a lawyer
from receiving a salary or partnership share established by prior independent agreement, but
that lawyer may not receive compensation directly relating the lawyer]'[s
compensation to the fee in the matter in which the lawyer is disqualified.
[7] Notice, including a description of the screened lawyer]'[s prior representation and
of the screening procedures employed, generally should be given as soon as practicable after
the need for screening becomes apparent.
[8] Paragraph (c) operates only when the lawyer in question has knowledge of the information,
which means actual knowledge; it does not operate with respect to information that merely
could be imputed to the lawyer.
[9] Paragraph (d) does not prohibit a lawyer from jointly representing a private party and a
government agency when doing so is permitted by Rule 1.7 and is not otherwise prohibited by
law.
[10] For purposes of paragraph (e) of this Rule, a "matter" may continue in another form. In
determining whether two particular matters are the same, the lawyer should consider the extent
to which the matters involve the same basic facts, the same or related parties, and the time
elapsed.
[11] Paragraph (f) addresses the situations where a lawyer serves part time as a government
officer or employee but not as an adjudicative officer and also represents or counsels
nongovernmental clients.]
Staff Comment: Proposed MRPC 1.11 treats the topic of conflicts of interest involving government
lawyers and former government lawyers in a more detailed fashion than the current rule. It clarifies that
this rule supplants, rather than supplements Rule 1.9 regarding former-client conflicts. Rule 1.11(a)(1)
clarifies that Rule 1.9(c) applies to government lawyers, but that Rule 1.9(a) and (b) do not. The
proposed rule contains a few provisions not found in the Model Rule. In paragraph (c), the standard of
knowledge necessary for disqualification has been changed from "actual knowledge" to "reasonable
belief." Paragraph (d)(2)(iii), concerning two government lawyers who are involved in the same action,
and paragraph (f), dealing with part-time government lawyers, are not in the Model Rule and are new
to the Michigan version of the rule.
RULE 1.12 FORMER JUDGE, ARBITRATOR, MEDIATOR, OR OTHER
THIRD-PARTY NEUTRAL
(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with
a matter in which the lawyer participated personally and substantially as a judge or other
adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-
party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person who is involved as a party
or as lawyer for a party in a matter in which the lawyer is participating personally and
substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-
party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may
negotiate for employment with a party or lawyer involved in a matter in which the clerk is
participating personally and substantially, but only after the lawyer has notified the judge or
other adjudicative officer.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer
is associated may knowingly undertake or continue representation in the matter unless:
(1) the disqualified lawyer is screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the parties and any appropriate tribunal to
enable them to ascertain compliance with the provisions of this rule.
(d) An arbitrator, mediator or other case evaluator selected as a partisan of a party in a
multimember alternate dispute resolution panel is not prohibited from subsequently representing
that party, unless confidential information is received from the other party.
[Comment
[1] This Rule generally parallels Rule 1.11. The term "personally and substantially" signifies
that a judge who was a member of a multimember court, and thereafter left judicial office to
practice law, is not prohibited from representing a client in a matter pending in the court, but
in which the former judge did not participate. So also the fact that a former judge exercised
administrative responsibility in a court does not prevent the former judge from acting as a
lawyer in a matter where the judge had previously exercised remote or incidental administrative
responsibility that did not affect the merits. Compare the Comment to Rule 1.11. The term
"adjudicative officer" includes such officials as judges pro tempore, referees, special masters,
hearing officers and other parajudicial officers, and also lawyers who serve as part-time
judges.
[2] Like former judges, lawyers who have served as arbitrators, mediators or other third-party
neutrals may be asked to represent a client in a matter in which the lawyer participated
personally and substantially. This Rule forbids such representation unless all of the parties to
the proceedings give their informed consent, confirmed in writing. See Rule 1.0(e) and (b).
Other law or codes of ethics governing third-party neutrals may impose more stringent
standards of personal or imputed disqualification. See Rule 2.4.
[3] Although lawyers who serve as third-party neutrals do not have information concerning the
parties that is protected under Rule 1.6, they typically owe the parties an obligation of
confidentiality under law or codes of ethics governing third-party neutrals. Thus, paragraph
(c) provides that conflicts of the personally disqualified lawyer will be imputed to other lawyers
in a law firm unless the conditions of this paragraph are met.
[4] Requirements for screening procedures are stated in Rule 1.0(k). Paragraph (c)(1) does
not prohibit the screened lawyer from receiving a salary or partnership share established by
prior independent agreement, but that lawyer may not receive compensation directly related
to the matter in which the lawyer is disqualified.
[5] Notice, including a description of the screened lawyer]'[s prior representation and
of the screening procedures employed, generally should be given as soon as practicable after
the need for screening becomes apparent.
]
Staff Comment: This proposed rule is substantially the same as the current rule, except that arbitrators,
mediators and other third-party neutrals are added to the list of persons to whom the rule is applicable.
Also, "informed consent, confirmed in writing" is substituted for "consent after consultation," and the
qualification, "unless confidential information is received from the other party" is added to the rule of
paragraph (d), which allows an arbitrator to subsequently represent a party. The additional third-party
neutrals of "mediator or other case evaluator" have been added to paragraph (d), and that paragraph now
specifies that third-party neutrals would be prohibited from representing a party in the ADR proceeding
if confidential information is received from a party during the ADR process.
RULE 1.13 ORGANIZATION AS CLIENT
(a) A lawyer employed or retained by an organization represents the organization as distinct
from its directors, officers, employees, members, shareholders, or other constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person associated
with the organization is engaged in action, intends to act or refuses to act in a matter related to
the representation that is a violation of a legal obligation to the organization, or a violation of
law which reasonably might be imputed to the organization, and is likely to result in substantial
injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest
of the organization. In determining how to proceed, the lawyer shall give due consideration to
the seriousness of the violation and its consequences, the scope and nature of the lawyer's
representation, the responsibility in the organization and the apparent motivation of the person
involved, the policies of the organization concerning such matters and any other relevant
considerations. Any measures taken shall be designed to minimize disruption of the
organization and the risk of revealing information relating to the representation to persons
outside the organization. Such measures may include among others:
(1) asking for reconsideration of the matter;
(2) advising that a separate legal opinion on the matter be sought for presentation to
appropriate authority in the organization; and
(3) referring the matter to higher authority in the organization, including, if warranted
by the seriousness of the matter, referral to the highest authority that can act on behalf of the
organization as determined by applicable law.
(c) If, despite the lawyer's efforts in accordance with paragraph (b), the highest authority that
can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a
violation of a legal obligation to the organization or of law and is likely to result in substantial
injury to the organization, the lawyer may resign in accordance with Rule 1.16, and may
disclose information either:
(1) when permitted by Rule 1.6, or
(2) when the lawyer reasonably believes that:
(i) the highest authority in the organization has acted to further the personal
or financial interests of members of that authority which are in conflict with the interests of the
organization; and
(ii) revealing the information is necessary in the best interests of the
organization.
(d) In dealing with an organization's directors, officers, employees, members, shareholders
or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or
reasonably should know that the organization's interests are adverse to those of the constituents
with whom the lawyer is dealing.
(e) A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7.
If the organization's consent to the dual representation is required by Rule 1.7, the consent shall
be given by an appropriate official of the organization other than the individual who is to be
represented, or by the shareholders.
[Comment
The Entity as the Client
[1] An organizational client is a legal entity, but it cannot act except through its officers,
directors, employees, shareholders and other constituents. Officers, directors, employees, and
shareholders are the constituents of the corporate organizational client. The duties defined in
this Comment apply equally to unincorporated associations. "Other constituents" as used in
this Comment means the positions equivalent to officers, directors, employees and shareholders
held by persons acting for organizational clients that are not corporations.
[2] When one of the constituents of an organizational client communicates with the
organization]'[s lawyer in that person]'[s organizational capacity, the
communication is protected by Rule 1.6. Thus, by way of example, if an organizational client
requests its lawyer to investigate allegations of wrongdoing, interviews made in the course of
that investigation between the lawyer and the client]'[s employees or other constituents
are covered by Rule 1.6. This does not mean, however, that constituents of an organizational
client are the clients of the lawyer. The lawyer may not disclose to such constituents
information relating to the representation except for disclosures explicitly or impliedly
authorized by the organizational client in order to carry out the representation or as otherwise
permitted by Rule 1.6.
[3] When constituents of the organization make decisions for it, the decisions ordinarily must
be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning
policy and operations, including ones entailing serious risk, are not as such in the
lawyer]'[s province. However, different considerations arise when the lawyer knows
that the organization may be substantially injured by action of a constituent that is in violation
of law. In such a circumstance, it may be reasonably necessary for the lawyer to ask the
constituent to reconsider the matter. If that fails, or if the matter is of sufficient seriousness and
importance to the organization, it may be reasonably necessary for the lawyer to take steps to
have the matter reviewed by a higher authority in the organization. Clear justification should
exist for seeking review over the head of the constituent normally responsible for it. The stated
policy of the organization may define circumstances and prescribe channels for such review,
and a lawyer should encourage the formulation of such a policy. Even in the absence of
organization policy, however, the lawyer may have an obligation to refer a matter to higher
authority, depending on the seriousness of the matter and whether the constituent in question
has apparent motives to act at variance with the organization]'[s interest. Review by
the chief executive officer or by the board of directors may be required when the matter is of
importance commensurate with their authority. At some point it may be useful or essential to
obtain an independent legal opinion.
[4] The organization]'[s highest authority to which a matter may be referred ordinarily
will be the board of directors or similar governing body. However, applicable law may
prescribe that under certain conditions the highest authority reposes elsewhere, for example,
in the independent directors of a corporation.
Relation to Other Rules
[5] The authority and responsibility provided in this Rule are concurrent with the authority and
responsibility provided in other Rules. In particular, this Rule does not limit or expand the
lawyer]'[s responsibility under Rule 1.8, 1.16, 3.3 or 4.1. If the lawyer]'[s
services are being used by an organization to further a crime or fraud by the organization, Rule
1.2(d) can be applicable.
Government Agency
[6] The duty defined in this Rule applies to governmental organizations. Defining precisely the
identity of the client and prescribing the resulting obligations of such lawyers may be more
difficult in the government context and is a matter beyond the scope of these Rules. See Scope
[18]. Although in some circumstances the client may be a specific agency, it may also be a
branch of government, such as the executive branch, or the government as a whole. For
example, if the action or failure to act involves the head of a bureau, either the department of
which the bureau is a part or the relevant branch of government may be the client for purposes
of this Rule. Moreover, in a matter involving the conduct of government officials, a government
lawyer may have authority under applicable law to question such conduct more extensively than
that of a lawyer for a private organization in similar circumstances. Thus, when the client is
a governmental organization, a different balance may be appropriate between maintaining
confidentiality and assuring that the wrongful act is prevented or rectified, for public business
is /involved. In addition, duties of lawyers employed by the government or lawyers in military
service may be defined by statutes and regulation. This Rule does not limit that authority. See
Scope.
Clarifying the Lawyer]'[s Role
[7] There are times when the organization]'[s interest may be or becomes adverse to
those of one or more of its constituents. In such circumstances the lawyer should advise any
constituent, whose interest the lawyer finds adverse to that of the organization, of the conflict
or potential conflict of interest, that the lawyer cannot represent such constituent, and that such
person may wish to obtain independent representation. Care must be taken to assure that the
individual understands that, when there is such adversity of interest, the lawyer for the
organization cannot provide legal representation for that constituent individual, and that
discussions between the lawyer for the organization and the individual may not be privileged.
[8] Whether such a warning should be given by the lawyer for the organization to any
constituent individual may turn on the facts of each case.
Dual Representation
[9] Paragraph (e) recognizes that a lawyer for an organization may also represent a principal
officer or major shareholder.
Derivative Actions
[10] Under generally prevailing law, the shareholders or members of a corporation may bring
suit to compel the directors to perform their legal obligations in the supervision of the
organization. Members of unincorporated associations have essentially the same right. Such
an action may be brought nominally by the organization, but usually is, in fact, a legal
controversy over management of the organization.
[11] The question can arise whether counsel for the organization may defend such an action.
The proposition that the organization is the lawyer]'[s client does not alone resolve the
issue. Most derivative actions are a normal incident of an organization]'[s affairs, to
be defended by the organization]'[s lawyer like any other suit. However, if the claim
involves serious charges of wrongdoing by those in control of the organization, a conflict may
arise between the lawyer]'[s duty to the organization and the lawyer]'[s
relationship with the board. In those circumstances, Rule 1.7 governs who should represent
the directors and the organization.]
Staff Comment: This proposed rule follows the Model Rule, but makes two additions. First,
paragraph (a) is amended to clarify, as the current MRPC does, that a lawyer who represents an
organization does not automatically represent directors, officers, employees, members, shareholders,
or other constituents of the organization. Second, paragraph (c) clarifies (as do the current Michigan
rules) that a lawyer may reveal client information about organizational clients when that disclosure is
permitted by Rule 1.6 or when the lawyer reasonably believes that the disclosure of information is
necessary to protect the best interests of the organization.
RULE 1.14 CLIENT WITH DIMINISHED CAPACITY
(a) When a client's capacity to make adequately considered decisions in connection with a
representation is diminished, whether because of minority, mental impairment or for some other
reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer
relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of
substantial physical, financial or other harm unless action is taken and cannot adequately act in
the client's own interest, the lawyer may take reasonably necessary protective action, including
consulting with individuals or entities that have the ability to take action to protect the client
and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or
guardian.
(c) Information relating to the representation of a client with diminished capacity is protected
by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly
authorized under Rule 1.6(a) to reveal information about the client, but only to the extent
reasonably necessary to protect the client's interests.
[Comment
[1] The normal client-lawyer relationship is based on the assumption that the client, when
properly advised and assisted, is capable of making decisions about important matters. When
the client is a minor or suffers from a diminished mental capacity, however, maintaining the
ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely
incapacitated person may have no power to make legally binding decisions. Nevertheless, a
client with diminished capacity often has the ability to understand, deliberate upon, and reach
conclusions about matters affecting the client]'[s own well-being. For example,
children as young as five or six years of age, and certainly those of ten or twelve, are regarded
as having opinions that are entitled to weight in legal proceedings concerning their custody.
So also, it is recognized that some persons of advanced age can be quite capable of handling
routine financial matters while needing special legal protection concerning major transactions.
[2] The fact that a client suffers a disability does not diminish the lawyer]'[s obligation
to treat the client with attention and respect. Even if the person has a legal representative, the
lawyer should as far as possible accord the represented person the status of client, particularly
in maintaining communication.
[3] The client may wish to have family members or other persons participate in discussions with
the lawyer. When necessary to assist in the representation, the presence of such persons
generally does not affect the applicability of the attorney-client evidentiary privilege.
Nevertheless, the lawyer must keep the client]'[s interests foremost and, except for
protective action authorized under paragraph (b), must to look to the client, and not family
members, to make decisions on the client]'[s behalf.
[4] If a legal representative has already been appointed for the client, the lawyer should
ordinarily look to the representative for decisions on behalf of the client. In matters involving
a minor, whether the lawyer should look to the parents as natural guardians may depend on
the type of proceeding or matter in which the lawyer is representing the minor. If the lawyer
represents the guardian as distinct from the ward, and is aware that the guardian is acting
adversely to the ward]'[s interest, the lawyer may have an obligation to prevent or
rectify the guardian]'[s misconduct. See Rule 1.2(d).
Taking Protective Action
[5] If a lawyer reasonably believes that a client is at risk of substantial physical, financial or
other harm unless action is taken, and that a normal client-lawyer relationship cannot be
maintained as provided in paragraph (a) because the client lacks sufficient capacity to
communicate or to make adequately considered decisions in connection with the representation,
then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such
measures could include: consulting with family members, using a reconsideration period to
permit clarification or improvement of circumstances, using voluntary surrogate
decisionmaking tools such as durable powers of attorney or consulting with support groups,
professional services, adult-protective agencies or other individuals or entities that have the
ability to protect the client. In taking any protective action, the lawyer should be guided by
such factors as the wishes and values of the client to the extent known, the client]'[s
best interests and the goals of intruding into the client]'[s decisionmaking autonomy
to the least extent feasible, maximizing client capacities and respecting the client]'[s
family and social connections.
[6] In determining the extent of the client]'[s diminished capacity, the lawyer should
consider and balance such factors as: the client]'[s ability to articulate reasoning
leading to a decision, variability of state of mind and ability to appreciate consequences of a
decision; the substantive fairness of a decision; and the consistency of a decision with the
known long-term commitments and values of the client. In appropriate circumstances, the
lawyer may seek guidance from an appropriate diagnostician.
[7] If a legal representative has not been appointed, the lawyer should consider whether
appointment of a guardian ad litem, conservator or guardian is necessary to protect the
client]'[s interests. Thus, if a client with diminished capacity has substantial property
that should be sold for the client]'[s benefit, effective completion of the transaction may
require appointment of a legal representative. In addition, rules of procedure in litigation
sometimes provide that minors or persons with diminished capacity must be represented by a
guardian or next friend if they do not have a general guardian. In many circumstances,
however, appointment of a legal representative may be more expensive or traumatic for the
client than circumstances in fact require. Evaluation of such circumstances is a matter
entrusted to the professional judgment of the lawyer. In considering alternatives, however, the
lawyer should be aware of any law that requires the lawyer to advocate the least restrictive
action on behalf of the client.
Disclosure of the Client]'[s Condition
[8] Disclosure of the client]'[s diminished capacity could adversely affect the
client]'[s interests. For example, raising the question of diminished capacity could,
in some circumstances, lead to proceedings for involuntary commitment. Information relating
to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer
may not disclose such information. When taking protective action pursuant to paragraph (b),
the lawyer is impliedly authorized to make the necessary disclosures, even when the client
directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c)
limits what the lawyer may disclose in consulting with other individuals or entities or seeking
the appointment of a legal representative. At the very least, the lawyer should determine
whether it is likely that the person or entity consulted with will act adversely to the
client]'[s interests before discussing matters related to the client. The
lawyer]'[s position in such cases is an unavoidably difficult one.
Emergency Legal Assistance
[9] In an emergency where the health, safety or a financial interest of a person with seriously
diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal
action on behalf of such a person even though the person is unable to establish a client-lawyer
relationship or to make or express considered judgments about the matter, when the person or
another acting in good faith on that person]'[s behalf has consulted with the lawyer.
Even in such an emergency, however, the lawyer should not act unless the lawyer reasonably
believes that the person has no other lawyer, agent or other representative available. The
lawyer should take legal action on behalf of the person only to the extent reasonably necessary
to maintain the status quo or otherwise avoid imminent and irreparable harm. A lawyer who
undertakes to represent a person in such an exigent situation has the same duties under these
Rules as the lawyer would with respect to a client.
[10] A lawyer who acts on behalf of a person with seriously diminished capacity in an
emergency should keep the confidences of the person as if dealing with a client, disclosing them
only to the extent necessary to accomplish the intended protective action. The lawyer should
disclose to any tribunal involved and to any other counsel involved the nature of his or her
relationship with the person. The lawyer should take steps to regularize the relationship or
implement other protective solutions as soon as possible. Normally, a lawyer would not seek
compensation for such emergency actions taken.]
Staff Comment: This proposed rule has been expanded and the terminology updated. The comment
section has also been expanded. The proposed MRPC 1.14 is identical with the Model Rule.
RULE 1.15 SAFEKEEPING PROPERTY
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession
in connection with a representation separate from the lawyer's own property. Funds shall be
kept in a separate account maintained in the state where the lawyer's office is situated, or
elsewhere with the consent of the client or third person. Other property shall be identified as
such and appropriately safeguarded. Complete records of such account funds and other property
shall be kept by the lawyer and shall be preserved for a period of five years after termination of
the representation.
(b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole
purpose of paying bank service charges on that account, but only in an amount necessary for
that purpose.
(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been
paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
Nonrefundable fees that comply with Rule 1.5(f) are fully earned when received and should not
be deposited in a client trust account.
(d) Upon receiving funds or other property in which a client or third person has an interest,
a lawyer shall promptly notify the client or third person. Except as stated in this rule or
otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to
the client or third person any funds or other property that the client or third person is entitled to
receive and, upon request by the client or third person, shall promptly render a full accounting
regarding such property.
(e) When in the course of representation a lawyer is in possession of property in which two
or more persons (one of whom may be the lawyer) claim interests, the property shall be kept
separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all
portions of the property as to which the interests are not in dispute.
(f) Interest on Lawyers' Trust Accounts
(1) Except as set forth in paragraph (f)(2), a lawyer who or a law firm which receives
client funds shall maintain a pooled interest-bearing trust account for the deposit of client funds,
which at the time of receipt and deposit the lawyer or law firm reasonably anticipates will
generate $50 or less in interest during the period for which it is anticipated such funds are to be
held. Such an account shall comply with the following:
(i) No interest from the account shall be made available to the lawyer or law
firm.
(ii) The account shall include all client funds which are not expected to earn
more than $50 in interest during the period it is anticipated such funds are to be held unless such
funds are deposited in an interest-bearing account specified in paragraph (f)(2). The good-faith
decision by the lawyer as to whether funds are expected to earn this amount is not reviewable
by a disciplinary body.
(iii) Funds deposited with a bank, savings and loan association, or credit union
shall be subject to withdrawal upon request and without delay, and shall be insured by an
agency of the federal government.
(iv) The interest paid on the account shall not be less than the rate paid by the
bank, savings and loan association, or credit union to any other nonlawyer customers on
accounts of the same class within the institution.
(v) The lawyer or law firm shall direct the bank, savings and loan association,
or credit union to:
(A) remit the interest, less reasonable service charges, at least
quarterly to the Michigan State Bar Foundation;
(B) transmit, with each remittance to the Michigan State Bar
Foundation, a report which shall identify each lawyer or law firm and the amount of the
remittance attributable to each account maintained by each lawyer or law firm; and
(C) transmit to the depositing lawyer or law firm, in accordance
with normal procedures for reporting to depositors, a report which shall indicate account
balances, the rate of interest applied, interest earned, service charges, and the amount remitted
to the Michigan State Bar Foundation.
(2) All client funds shall be deposited in the account specified in paragraph (f)(1)
unless they are deposited in:
(i) a separate interest-bearing trust account for the particular client or client's
matter on which the interest will be paid to the client; or
(ii) a pooled interest-bearing trust account with sub-accounting by the financial
institution or by the lawyer or law firm that will provide for computation of interest earned by
each client's funds and the payment thereof to the client.
[Comment
[1] A lawyer should hold property of others with the care required of a professional fiduciary.
Securities should be kept in a safe deposit box, except when some other form of safekeeping is
warranted by special circumstances. All property that is the property of clients or third
persons, including prospective clients, must be kept separate from the lawyer]'[s
business and personal property and, if monies, in one or more trust accounts. Separate trust
accounts may be warranted when administering estate monies or acting in similar fiduciary
capacities. A lawyer should maintain on a current basis books and records in accordance with
generally accepted accounting practice and comply with any recordkeeping rules established
by law or court order. See, e.g., ABA Model Financial Recordkeeping Rule.
[2] While normally it is impermissible to commingle the lawyer]'[s own funds with
client funds, paragraph (b) provides that it is permissible when necessary to pay bank service
charges on that account. Accurate records must be kept regarding which parts of the funds are
the lawyer]'[s.
[3] Lawyers often receive funds from which the lawyer]'[s fee will be paid. The lawyer
is not required to remit to the client funds that the lawyer reasonably believes represent fees
owed. However, a lawyer may not hold funds to coerce a client into accepting the
lawyer]'[s contention. The disputed portion of the funds must be kept in a trust account
and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration.
The undisputed portion of the funds shall be promptly distributed.
[4] Paragraph (e) also recognizes that third parties may have lawful claims against specific
funds or other property in a lawyer]'[s custody, such as a client]'[s creditor
who has a lien on funds recovered in a personal injury action. A lawyer may have a duty under
applicable law to protect such third-party claims against wrongful interference by the client.
In such cases, when the third-party claim is not frivolous under applicable law, the lawyer must
refuse to surrender the property to the client until the claims are resolved. A lawyer should not
unilaterally assume to arbitrate a dispute between the client and the third party, but, when there
are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file
an action to have a court resolve the dispute.
[5] The obligations of a lawyer under this Rule are independent of those arising from activity
other than rendering legal services. For example, a lawyer who serves only as an escrow agent
is governed by the applicable law relating to fiduciaries even though the lawyer does not render
legal services in the transaction and is not governed by this Rule.
[6] The Michigan Client Protection Fund provides a means through the collective efforts of the
bar to reimburse persons who have lost money or property as a result of dishonest conduct of
a lawyer.]
Staff Comment: Proposed MRPC 1.15(b) and (c) are new, and paragraph (e) has been clarified. This
proposed rule adopts the Model Rule, with the addition of paragraph (f), which is Michigan's specific
rule on IOLTA accounts. The only substantive changes from the current MRPC are that a lawyer may
deposit de minimus amounts in a trust account to cover bank charges [paragraph (b)] and that advances
for expenses, as well as for fees, must be deposited in the trust account [paragraph (c)]. The last
sentence in paragraph (c) was added by the State Bar Representative Assembly to clarify that non-
refundable retainers are earned when received and should not be deposited in a trust account.
RULE 1.16 DECLINING OR TERMINATING REPRESENTATION
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or
other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability
to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests
of the client;
(2) the client persists in a course of action involving the lawyer's services that the
lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with
which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the
lawyer's services and has been given reasonable warning that the lawyer will withdraw unless
the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer
or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal
when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue
representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client's interests, such as giving reasonable notice to the client, allowing
time for employment of other counsel, surrendering papers and property to which the client is
entitled and refunding any advance payment of fee or expense that has not been earned or
incurred. The lawyer may retain papers relating to the client to the extent permitted by law.
[Comment
[1] A lawyer should not accept representation in a matter unless it can be performed
competently, promptly, without improper conflict of interest, and to completion. Ordinarily, a
representation in a matter is completed when the agreed-upon assistance has been concluded.
See Rules 1.2(c) and 6.5. See also Rule 1.3, Comment [4].
Mandatory Withdrawal
[2] A lawyer ordinarily must decline or withdraw from representation if the client demands that
the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or
other law. The lawyer is not obliged to decline or withdraw simply because the client suggests
such a course of conduct; a client may make such a suggestion in the hope that a lawyer will
not be constrained by a professional obligation.
[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires
approval of the appointing authority. See also Rule 6.2. Similarly, court approval or notice
to the court is often required by applicable law before a lawyer withdraws from pending
litigation. Difficulty may be encountered if withdrawal is based on the client]'[s
demand that the lawyer engage in unprofessional conduct. The court may request an
explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts
that would constitute such an explanation. The lawyer]'[s statement that professional
considerations require termination of the representation ordinarily should be accepted as
sufficient. Lawyers should be mindful of their obligations to both clients and the court under
Rules 1.6 and 3.3.
Discharge
[4] A client has a right to discharge a lawyer at any time, with or without cause, subject to
liability for payment for the lawyer]'[s services. Where future dispute about the
withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the
circumstances.
[5] Whether a client can discharge appointed counsel may depend on applicable law. A client
seeking to do so should be given a full explanation of the consequences. These consequences
may include a decision by the appointing authority that appointment of successor counsel is
unjustified, thus requiring self-representation by the client.
[6] If the client has severely diminished capacity, the client may lack the legal capacity to
discharge the lawyer, and in any event the discharge may be seriously adverse to the
client]'[s interests. The lawyer should make special effort to help the client consider
the consequences and may take reasonably necessary protective action as provided in Rule
1.14.
Optional Withdrawal
[7] A lawyer may withdraw from representation in some circumstances. The lawyer has the
option to withdraw if it can be accomplished without material adverse effect on the
client]'[s interests. Withdrawal is also justified if the client persists in a course of
action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required
to be associated with such conduct even if the lawyer does not further it. Withdrawal is also
permitted if the lawyer]'[s services were misused in the past even if that would
materially prejudice the client. The lawyer may also withdraw where the client insists on taking
action that the lawyer considers repugnant or with which the lawyer has a fundamental
disagreement.
[8] A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating
to the representation, such as an agreement concerning fees or court costs or an agreement
limiting the objectives of the representation.
Assisting the Client upon Withdrawal
[9] Even if the lawyer has been unfairly discharged by the client, a lawyer must take all
reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as
security for a fee only to the extent permitted by law. See Rule 1.15.]
Staff Comment: Proposed MRPC 1.16 adopts, verbatim, the Model Rule. There are no substantive
changes in the current Michigan Rule, but the language of the Model Rule has been found by the State
Bar Ethics Committee to be superior to the current rule.
RULE 1.17 SALE OF LAW PRACTICE
(a) A lawyer or a law firm may sell or purchase a private law practice or an area of law
practice, including good will, pursuant to this rule.
(b) The fees charged clients shall not be increased by reason of the sale, and a purchaser shall
not pass on the cost of good will to a client. The purchaser may, however, refuse to undertake
the representation unless the client consents to pay fees regularly charged by the purchaser for
rendering substantially similar services to other clients prior to the initiation of the purchase
negotiations.
(c) Actual written notice of pending sale shall be given at least 91 days prior to the date of
the sale to each of the seller's clients, unless circumstances require shorter notice, and the notice
shall include:
(1) notice of the fact of the proposed sale;
(2) the identity of the purchaser;
(3) the terms of any proposed change in the fee agreement permitted under paragraph
(b);
(4) notice of the client's right to retain other counsel or to take possession of the file;
and
(5) notice that the client's consent to the transfer of the client's file to the purchaser
will be presumed if the client does not retain other counsel or otherwise object within 90 days
of receipt of the notice.
If the purchaser has identified a conflict of interest that the client cannot waive and that
prohibits the purchaser from undertaking the client's matter, the notice shall advise that the
client should retain substitute counsel to assume the representation and arrange to have the
substitute counsel contact the seller.
(d) If a client cannot be given actual notice as required in paragraph (c), the representation
of that client may be transferred to the purchaser only upon entry of an order so authorizing by
a judge of the judicial circuit in which the seller maintains the practice. The seller or the
purchaser may disclose to the judge in camera information relating to the representation only
to the extent necessary to obtain an order authorizing the transfer of a file.
(e) The sale of the good will of a law practice may be conditioned upon the seller ceasing
to engage in the private practice of law for a reasonable period of time within the geographical
area in which the practice had been conducted.
[Comment
[1] This rule permits a selling lawyer or law firm to obtain compensation for the reasonable
value of a private law practice in the same manner as withdrawing partners of law firms. See
Rules 5.4 and 5.6. This rule does not apply to the transfer of responsibility for legal
representation from one lawyer or firm to another when such transfers are unrelated to the sale
of a practice; for transfer of individual files in other circumstances, see Rules 1.5(e) and 1.16.
Admission to or retirement from a law partnership or professional association, retirement plans
and similar arrangements, and a sale of tangible assets of a law practice, do not constitute a
sale or purchase governed by this rule.
[2] A lawyer participating in the sale of a law practice is subject to the ethical standards that
apply when involving another lawyer in the representation of a client. These include, for
example, the seller]'[s obligation to act competently in identifying a purchaser
qualified to assume the representation of the client and the purchaser]'[s obligation
to undertake the representation competently, Rule 1.1, the obligation to avoid disqualifying
conflicts and to secure client consent after consultation for those conflicts that can be waived,
Rule 1.7, and the obligation to protect information relating to the representation, Rules 1.6 and
1.9.
[3] If approval of the substitution of the purchasing lawyer for the selling lawyer is required
by the rules of any tribunal in which a matter is pending, such approval must be obtained
before the matter can be included in the sale, Rule 1.16. See also MCR 2.117(C).
[4] All the elements of client autonomy, including the client]'[s absolute right to
discharge a lawyer and transfer the representation to another, survive the sale of the practice.
Selling Entire Practice
[5] When a lawyer is closing a private practice, the lawyer may negotiate with a purchaser for
the reasonable value of the practice that has been developed by the seller. A seller may agree
to transfer matters in one legal field to one purchaser, while transferring matters in another
legal field to a separate purchaser. However, a lawyer may not sell individual files piecemeal.
A seller closing a practice to accept employment with another firm may take certain matters to
the new employer while selling the remainder of the practice.
[6] Although the rule contemplates the sale of substantially all of the law practice, a seller
retiring from private practice generally may continue to represent a small number of clients
while transferring the balance of the practice. The seller remains responsible for handling all
client matters until the files are transferred under this rule.
Termination of Practice by the Seller
[7] The rule allows the parties to agree that the seller cease practice in the geographical area
for a reasonable time as a condition of the sale. In certain situations, a blanket prohibition on
the seller]'[s practice would not be appropriate or warranted, such as a judicial
appointee who might subsequently be defeated for reelection, or a seller elected full-time
prosecutor. The parties should be allowed to negotiate, for instance, whether any geographical
or duration restrictions apply to the seller]'[s employment as a lawyer on the staff of
a public agency or of a legal services entity that provides legal services to the poor, or as inside
counsel to a business.
Conflicts
[8] The practice may be sold to one or more lawyers or firms, provided that the seller assures
that all clients are afforded competent representation. Since the number of client matters and
their nature directly bear on the valuation of good will and therefore directly relate to selling
the law practice, conflicts that cannot be waived by the client and that prevent the prospective
purchaser from undertaking the client]'[s matter should be determined promptly. If
the purchaser identifies a conflict that the client cannot waive, information should be provided
to the client to assist in locating substitute counsel. If the conflict can be waived by the client,
the purchaser should explain the implications and determine whether the client consents to the
purchaser undertaking the representation. Initial screening with regard to conflicts, for the
purpose of determining the good will of the practice, need be no more intrusive than conflict
screening of a walk-in prospective client at the purchaser]'[s firm.
Client Confidences, Consent and Notice
[9] Negotiations between the seller and prospective purchaser prior to disclosure of
information relating to a specific representation of an identifiable client can be conducted in
a manner that does not violate the confidentiality provisions of Rule 1.6, just as preliminary
discussions are permissible concerning the possible association of another lawyer or mergers
between firms, with respect to which client consent is not required. Providing the purchaser
access to client-specific information relating to the representation and to the file, however,
requires client consent. The rule provides that before such information can be disclosed by the
seller to the purchaser the client must be given actual written notice of the fact of the
contemplated sale, including the identity of the purchaser, and must be told that the decision
to consent or make other arrangements must be made within 90 days, unless circumstances
require a shorter notice. If nothing is heard from the client within that time, consent to the
transfer of the client]'[s file to the identified purchaser is presumed.
[10] A lawyer or law firm ceasing to practice cannot be required to remain in practice because
some clients cannot be given actual notice or the proposed purchase. Since these clients are
not available to consent to the purchase or direct any other disposition of their files, the rule
requires an order from a judge or the judicial circuit in which the seller maintains the practice,
authorizing their transfer or other disposition. The court can be expected to determine whether
the absent client]'[s legitimate interests will be served by authorizing the transfer of
the file so that the purchaser may continue the representation. Preservation of client
confidences may require that the petition for a court order be considered in camera.
[11] The client should be told the identity of the purchaser before being asked to consent to
disclosure of information relating to the representation of the client or to consent to transfer
of the file.
Fee Arrangements Between Client and Purchaser
[12] Paragraph (b) is intended to prohibit a purchaser from charging the former clients of the
seller a higher fee than the purchaser is charging the purchaser]'[s existing clients.
The sale may not be financed by increases in fees charged the clients of the practice that is
purchased. Existing agreements between the seller and the client as to fees and the scope of the
work must be honored by the purchaser, unless the client consents after consultation.
[13] Adjustments for differences in the fee schedules of the seller and the purchaser should be
made between the seller and purchaser in valuing good will, and not between the client and the
purchaser. The purchaser may, however, advise the client that the purchaser will not undertake
the representation unless the client consents to pay the higher fees the purchaser usually
charges. To prevent client financing of the sale, the higher fee the purchaser may charge must
not exceed the fees charged by the purchaser for substantially similar service rendered prior
to the initiation of the purchase negotiations.
Deceased Lawyer
[14] Even though a nonlawyer seller representing the estate of a deceased lawyer is not subject
to the Michigan Rules of Professional Conduct, a lawyer who participates in a sale of a law
practice must conform to this rule. Therefore, the purchasing lawyer can be expected to see
that its requirements are met.
[15] MCR 9.119(G) provides a mechanism for handling client matters when a lawyer dies and
there is no one else at the firm to take responsibility for the file.]
Staff Comment: The State Bar Ethics Committee and Representative Assembly recommend
retaining the current MRPC, rather than adopting the Model Rule. They made two changes it to it,
though: paragraph (a) permits the sale of "an area of law practice," and paragraph(c) allows less than
91 days' notice of a pending sale when "circumstances require shorter notice."
RULE 1.18 DUTIES TO PROSPECTIVE CLIENT
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer
relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with
a prospective client shall not use or reveal information learned in the consultation, except as
Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially
adverse to those of a prospective client in the same or a substantially related matter if the lawyer
received information from the prospective client that could be significantly harmful to that
person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from
representation under this paragraph, no lawyer in a firm with which that lawyer is associated
may knowingly undertake or continue representation in such a matter, except as provided in
paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c),
representation is permissible if:
(1) both the affected client and the prospective client have given informed consent,
confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid
exposure to more disqualifying information than was reasonably necessary to determine whether
to represent the prospective client; and
(i) the disqualified lawyer is screened from any participation in the matter and
is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
[Comment
[1] Prospective clients, like clients, may disclose information to a lawyer, place documents or
other property in the lawyer]'[s custody, or rely on the lawyer]'[s advice. A
lawyer]'[s discussions with a prospective client usually are limited in time and depth
and leave both the prospective client and the lawyer free (and sometimes required) to proceed
no further. Hence, prospective clients should receive some but not all of the protection afforded
clients.
[2] Not all persons who communicate information to a lawyer are entitled to protection under
this Rule. A person who communicates information unilaterally to a lawyer, without any
reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-
lawyer relationship, is not a "prospective client" within the meaning of paragraph (a).
[3] It is often necessary for a prospective client to reveal information to the lawyer during an
initial consultation prior to the decision about formation of a client-lawyer relationship. The
lawyer often must learn such information to determine whether there is a conflict of interest
with an existing client and whether the matter is one that the lawyer is willing to undertake.
Paragraph (b) prohibits the lawyer from using or revealing that information, except as
permitted by Rule 1.9, even if the client or lawyer decides not to proceed with the
representation. The duty exists regardless of how brief the initial conference may be.
[4] In order to avoid acquiring disqualifying information from a prospective client, a lawyer
considering whether or not to undertake a new matter should limit the initial interview to only
such information as reasonably appears necessary for that purpose. Where the information
indicates that a conflict of interest or other reason for non-representation exists, the lawyer
should so inform the prospective client or decline the representation. If the prospective client
wishes to retain the lawyer and if consent is possible under Rule 1.7, then consent from all
affected present or former clients must be obtained before accepting the representation.
[5] A lawyer may condition conversations with a prospective client on the person]'[s
informed consent that no information disclosed during the consultation will prohibit the lawyer
from representing a different client in the matter. See Rule 1.0(e) for the definition of informed
consent. If the agreement expressly so provides, the prospective client may also consent to the
lawyer]'[s subsequent use of information received from the prospective client.
[6] Even in the absence of an agreement, under paragraph (c), the lawyer is not prohibited
from representing a client with interests adverse to those of the prospective client in the same
or a substantially related matter unless the lawyer has received from the prospective client
information that could be significantly harmful if used in the matter.
[7] Under paragraph (c), the prohibition in this Rule is imputed to other lawyers as provided
in Rule 1.10, but, under paragraph (d)(1), imputation may be avoided if the lawyer obtains the
informed consent, confirmed in writing, of both the prospective and affected clients. In the
alternative, imputation may be avoided if the conditions of paragraph (d)(2) are met and all
disqualified lawyers are timely screened and written notice is promptly given to the prospective
client. See Rule 1.0(k) (requirements for screening procedures). Paragraph (d)(2)(i) does not
prohibit the screened lawyer from receiving a salary or partnership share established by prior
independent agreement, but that lawyer may not receive compensation directly related to the
matter in which the lawyer is disqualified.
[8] Notice, including a general description of the subject matter about which the lawyer was
consulted, and of the screening procedures employed, generally should be given as soon as
practicable after the need for screening becomes apparent.
[9] For the duty of competence of a lawyer who gives assistance on the merits of a matter to
a prospective client, see Rule 1.1. For a lawyer]'[s duties when a prospective client
entrusts valuables or papers to the lawyer]'[s care, see Rule 1.15.]
Staff Comment: This proposed rule is not found in either the current rules or the former Model Rules.
The State Bar Ethics Committee proposed that this rule be adopted, but the State Bar Representative
Assembly voted against it. Because it is anticipated that this Rule will be the subject of debate, it is
included with the other proposed rules.
COUNSELOR
RULE 2.1 ADVISOR
In representing a client, a lawyer shall exercise independent professional judgment and render
candid advice. In rendering advice, a lawyer may refer not only to law but to other
considerations such as moral, economic, social and political factors that may be relevant to the
client's situation.
[Comment
Scope of Advice
[1] A client is entitled to straightforward advice expressing the lawyer]'[s honest
assessment. Legal advice often involves unpleasant facts and alternatives that a client may be
disinclined to confront. In presenting advice, a lawyer endeavors to sustain the
client]'[s morale and may put advice in as acceptable a form as honesty permits.
However, a lawyer should not be deterred from giving candid advice by the prospect that the
advice will be unpalatable to the client.
[2] Advice couched in narrow legal terms may be of little value to a client, especially where
practical considerations, such as cost or effects on other people, are predominant. Purely
technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to
refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not
a moral advisor as such, moral and ethical considerations impinge upon most legal questions
and may decisively influence how the law will be applied.
[3] A client may expressly or impliedly ask the lawyer for purely technical advice. When such
a request is made by a client experienced in legal matters, the lawyer may accept it at face
value. When such a request is made by a client inexperienced in legal matters, however, the
lawyer]'[s responsibility as advisor may include indicating that more may be involved
than strictly legal considerations.
[4] Matters that go beyond strictly legal questions may also be in the domain of another
profession. Family matters can involve problems within the professional competence of
psychiatry, clinical psychology, or social work; business matters can involve problems within
the competence of the accounting profession or of financial specialists. Where consultation
with a professional in another field is itself something a competent lawyer would recommend,
the lawyer should make such a recommendation. At the same time, a lawyer]'[s advice
at its best often consists of recommending a course of action in the face of conflicting
recommendations of experts.
Offering Advice
[5] In general, a lawyer is not expected to give advice until asked by the client. However, when
a lawyer knows that a client proposes a course of action that is likely to result in substantial
adverse legal consequences to the client, the lawyer]'[s duty to the client under Rule
1.4 may require that the lawyer offer advice if the client]'[s course of action is related
to the representation. Similarly, when a matter is likely to involve litigation, it may be
necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute
reasonable alternatives to litigation. A lawyer ordinarily has no duty to initiate investigation
of a client]'[s affairs or to give advice that the client has indicated is unwanted, but a
lawyer may initiate advice to a client when doing so appears to be in the client]'[s
interest.]
Staff Comment: This proposed rule is the same as the current MRPC 2.1 and the Model Rule.
RULE 2.2 [RESERVED FOR FUTURE USE]
RULE 2.3 EVALUATION FOR USE BY THIRD PERSONS
(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone
other than the client if the lawyer reasonably believes that making the evaluation is compatible
with other aspects of the lawyer's relationship with the client.(b) When the lawyer knows
or reasonably should know that the evaluation is likely to affect the client's interests materially
and adversely, the lawyer shall not provide the evaluation unless the client gives informed
consent.
(c) Except as disclosure is authorized in connection with a report of an evaluation,
information relating to the evaluation is otherwise protected by Rule 1.6.
[Comment
Definition
[1] An evaluation may be performed at the client]'[s direction or when impliedly
authorized in order to carry out the representation. See Rule 1.2. Such an evaluation may be
for the primary purpose of establishing information for the benefit of third parties; for example,
an opinion concerning the title of property rendered at the behest of a vendor for the
information of a prospective purchaser, or at the behest of a borrower for the information of
a prospective lender. In some situations, the evaluation may be required by a government
agency; for example, an opinion concerning the legality of the securities registered for sale
under the securities laws. In other instances, the evaluation may be required by a third person,
such as a purchaser of a business.
[2] A legal evaluation should be distinguished from an investigation of a person with whom the
lawyer does not have a client-lawyer relationship. For example, a lawyer retained by a
purchaser to analyze a vendor]'[s title to property does not have a client-lawyer
relationship with the vendor. So also, an investigation into a person]'[s affairs by a
government lawyer, or by special counsel by a government lawyer, or by special counsel
employed by the government, is not an evaluation as that term is used in this Rule. The question
is whether the lawyer is retained by the person whose affairs are being examined. When the
lawyer is retained by that person, the general rules concerning loyalty to client and
preservation of confidences apply, which is not the case if the lawyer is retained by someone
else. For this reason, it is essential to identify the person by whom the lawyer is retained. This
should be made clear not only to the person under examination, but also to others to whom the
results are to be made available.
Duties Owed to Third Person and Client
[3] When the evaluation is intended for the information or use of a third person, a legal duty
to that person may or may not arise. That legal question is beyond the scope of this Rule.
However, since such an evaluation involves a departure from the normal client-lawyer
relationship, careful analysis of the situation is required. The lawyer must be satisfied as a
matter of professional judgment that making the evaluation is compatible with other functions
undertaken in behalf of the client. For example, if the lawyer is acting as advocate in defending
the client against charges of fraud, it would normally be incompatible with that responsibility
for the lawyer to perform an evaluation for others concerning the same or a related transaction.
Assuming no such impediment is apparent, however, the lawyer should advise the client of the
implications of the evaluation, particularly the lawyer]'[s responsibilities to third
persons and the duty to disseminate the findings.
Access to and Disclosure of Information
[4] The quality of an evaluation depends on the freedom and extent of the investigation upon
which it is based. Ordinarily a lawyer should have whatever latitude of investigation seems
necessary as a matter of professional judgment. Under some circumstances, however, the terms
of the evaluation may be limited. For example, certain issues or sources may be categorically
excluded, or the scope of search may be limited by time constraints or the noncooperation of
persons having relevant information. Any such limitations that are material to the evaluation
should be described in the report. If after a lawyer has commenced an evaluation, the client
refuses to comply with the terms upon which it was understood the evaluation was to have been
made, the lawyer]'[s obligations are determined by law, having reference to the terms
of the client]'[s agreement and the surrounding circumstances. In no circumstances
is the lawyer permitted to knowingly make a false statement of material fact or law in providing
an evaluation under this Rule. See Rule 4.1.
Obtaining Client]'[s Informed Consent
[5] Information relating to an evaluation is protected by Rule 1.6. In many situations,
providing an evaluation to a third party poses no significant risk to the client; thus, the lawyer
may be impliedly authorized to disclose information to carry out the representation. See Rule
1.6(a). Where, however, it is reasonably likely that providing the evaluation will affect the
client]'[s interests materially and adversely, the lawyer must first obtain the
client]'[s consent after the client has been adequately informed concerning the
important possible effects on the client]'[s interests. See Rules 1.6(a) and 1.0(e).
Financial Auditors]'[ Requests for Information
[6] When a question concerning the legal situation of a client arises at the instance of the
client]'[s financial auditor and the question is referred to the lawyer, the
lawyer]'[s response may be made in accordance with procedures recognized in the
legal profession. Such a procedure is set forth in the American Bar Association Statement of
Policy Regarding Lawyers]'[ Responses to Auditors]'[ Requests for
Information, adopted in 1975.]
Staff Comment: This proposed rule is identical with the ABA Model Rule. Only stylistic changes have
been made to the current Michigan Rule.
RULE 2.4 LAWYER SERVING AS THIRD-PARTY NEUTRAL
(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who
are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen
between them. Service as a third-party neutral may include service as an arbitrator, a mediator
or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the
lawyer is not representing them. When the lawyer knows or reasonably should know that a
party does not understand the lawyer's role in the matter, the lawyer shall explain the difference
between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a
client.
[Comment
[1] Alternative dispute resolution has become a substantial part of the civil justice system.
Aside from representing clients in dispute-resolution processes, lawyers often serve as third-
party neutrals. A third-party neutral is a person, such as a mediator, arbitrator, conciliator,
or evaluator, who assists the parties, represented or unrepresented, in the resolution of a
dispute or in the arrangement of a transaction. Whether a third-party neutral serves primarily
as a facilitator, evaluator, or decisionmaker depends on the particular process that is either
selected by the parties or mandated by a court.
[2] The role of a third-party neutral is not unique to lawyers, although, in some court-
connected contexts, only lawyers are allowed to serve in this role or to handle certain types of
cases. In performing this role, the lawyer may be subject to court rules or other law that apply
either to third-party neutrals generally or to lawyers serving as third-party neutrals. Lawyer-
neutrals may also be subject to various codes of ethics, such as the Code of Ethics for
Arbitration in Commercial Disputes prepared by a joint committee of the American Bar
Association and the American Arbitration Association or the Model Standards of Conduct for
Mediators jointly prepared by the American Bar Association, the American Arbitration
Association and the Society of Professionals in Dispute Resolution.
[3] Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may
experience unique problems as a result of differences between the role of a third-party neutral
and a lawyer]'[s service as a client representative. The potential for confusion is
significant when the parties are unrepresented in the process. Thus, paragraph (b) requires a
lawyer-neutral to inform unrepresented parties that the lawyer is not representing them. For
some parties, particularly parties who frequently use dispute-resolution processes, this
information will be sufficient. For others, particularly those who are using the process for the
first time, more information will be required. Where appropriate, the lawyer should inform
unrepresented parties of the important differences between the lawyer]'[s role as third-
party neutral and a lawyer]'[s role as a client representative, including the
inapplicability of the attorney-client evidentiary privilege. The extent of disclosure required
under this paragraph will depend on the particular parties involved and the subject matter of
the proceeding, as well as the particular features of the dispute-resolution process selected.
[4] A lawyer who serves as a third-party neutral subsequently may be asked to serve as a
lawyer representing a client in the same matter. The conflicts of interest that arise for both the
individual lawyer and the lawyer]'[s law firm are addressed in Rule 1.12.
[5] Lawyers who represent clients in alternative dispute-resolution processes are governed by
the Rules of Professional Conduct. When the dispute-resolution process takes place before a
tribunal, as in binding arbitration (see Rule 1.0(m)), the lawyer]'[s duty of candor is
governed by Rule 3.3. Otherwise, the lawyer]'[s duty of candor toward both the third-
party neutral and other parties is governed by Rule 4.1.
]
Staff Comment: This proposed rule is not found in either the current Michigan Rules or the former
Model Rules. It is identical with the ABA Model Rule.
ADVOCATE
RULE 3.1 MERITORIOUS CLAIMS AND CONTENTIONS
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless
there is a basis for doing so that is not frivolous. A lawyer may offer a good faith argument for
an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal
proceeding, or the respondent in a proceeding that could result in incarceration, may so defend
the proceeding as to require that every element of the case be established.
[Comment
[1] The advocate has a duty to use legal procedure for the fullest benefit of the
client]'[s cause, but also a duty not to abuse legal procedure. The law, both
procedural and substantive, establishes the limits within which an advocate may proceed.
However, the law is not always clear and is never static. Accordingly, in determining the
proper scope of advocacy, account must be taken of the law]'[s ambiguities and
potential for change.
[2] 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. What is required of lawyers, however, is that they
inform themselves about the facts of their clients]'[ cases and the applicable law and
determine that they can make good faith arguments in support of their clients]'[
positions. 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
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.
[3] The lawyer]'[s obligations under this Rule are subordinate to federal or state
constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in
presenting a claim or contention that otherwise would be prohibited by this Rule.]
Staff Comment: Proposed MRPC 3.1 is the same as the current rule. It differs slightly from the Model
Rule.
RULE 3.2 EXPEDITING LITIGATION
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the
client.
[Comment
[1] Dilatory practices bring the administration of justice into disrepute. Although there will
be occasions when a lawyer may properly seek a postponement for personal reasons, it is not
proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the
advocates. Nor will a failure to expedite be reasonable if done for the purpose of frustrating
an opposing party]'[s attempt to obtain rightful redress or repose. It is not a
justification that similar conduct is often tolerated by the bench and bar. The question is
whether a competent lawyer acting in good faith would regard the course of action as having
some substantial purpose other than delay. Realizing financial or other benefit from otherwise
improper delay in litigation is not a legitimate interest of the client.]
Staff Comment: This rule is identical with both the current Michigan Rule and the Model Rule.
RULE 3.3 CANDOR TOWARD THE TRIBUNAL
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known
to the lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client,
or a witness called by the lawyer, has offered material evidence and the lawyer comes to know
of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of
a defendant in a criminal matter that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a
person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related
to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure
to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding,
and apply even if compliance requires disclosure of information otherwise protected by Rule
1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known
to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts
are adverse.
[Comment
[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings
of a tribunal. See Rule 1.0(m) for the definition of "tribunal." It also applies when the lawyer
is representing a client in an ancillary proceeding conducted pursuant to the
tribunal]'[s adjudicative authority, such as a deposition. Thus, for example, paragraph
(a)(3) requires a lawyer to take reasonable remedial measures if the lawyer comes to know that
a client who is testifying in a deposition has offered evidence that is false.
[2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct
that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an
adjudicative proceeding has an obligation to present the client]'[s case with persuasive
force. Performance of that duty while maintaining confidences of the client, however, is
qualified by the advocate]'[s duty of candor to the tribunal. Consequently, although
a lawyer in an adversary proceeding is not required to present an impartial exposition of the
law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal
to be misled by false statements of law or fact or evidence that the lawyer knows to be false.
Representations by a Lawyer
[3] An advocate is responsible for pleadings and other documents prepared for litigation, but
is usually not required to have personal knowledge of matters asserted therein, for litigation
documents ordinarily present assertions by the client, or by someone on the client]'[s
behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting
to be on the lawyer]'[s own knowledge, as in an affidavit by the lawyer or in a
statement in open court, may properly be made only when the lawyer knows the assertion is true
or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances
where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The
obligation prescribed in Rule 1.2(d) not to counsel a client to commit or assist the client in
committing a fraud applies in litigation. Regarding compliance with Rule 1.2(d), see the
Comment to that Rule. See also the Comment to Rule 8.4(b).
Legal Argument
[4] Legal argument based on a knowingly false representation of law constitutes dishonesty
toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but
must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph
(a)(2), an advocate has a duty to disclose directly adverse authority in the controlling
jurisdiction that has not been disclosed by the opposing party. The underlying concept is that
legal argument is a discussion seeking to determine the legal premises properly applicable to
the case.
Offering Evidence
[5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to
be false, regardless of the client]'[s wishes. This duty is premised on the
lawyer]'[s obligation as an officer of the court to prevent the trier of fact from being
misled by false evidence. A lawyer does not violate this Rule if the lawyer offers the evidence
for the purpose of establishing its falsity.
[6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce
false evidence, the lawyer should seek to persuade the client that the evidence should not be
offered. If the persuasion is ineffective and the lawyer continues to represent the client, the
lawyer must refuse to offer the false evidence. If only a portion of a witness]'[s
testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise
permit the witness to present the testimony that the lawyer knows is false.
[7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel
in criminal cases. In some jurisdictions, however, courts have required counsel to present the
accused as a witness or to give a narrative statement if the accused so desires, even if counsel
knows that the testimony or statement will be false. The obligation of the advocate under the
Rules of Professional Conduct is subordinate to such requirements. See also Comment [9].
[8] The prohibition against offering false evidence only applies if the lawyer knows that the
evidence is false. A lawyer]'[s reasonable belief that evidence is false does not
preclude its presentation to the trier of fact. A lawyer]'[s knowledge that evidence is
false, however, can be inferred from the circumstances. See Rule 1.0(f). Thus, although a
lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the
client, the lawyer cannot ignore an obvious falsehood.
[9] Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows
to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer
reasonably believes is false. Offering such proof may reflect adversely on the
lawyer]'[s ability to discriminate in the quality of evidence and thus impair the
lawyer]'[s effectiveness as an advocate. Because of the special protections historically
provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the
testimony of such a client where the lawyer reasonably believes but does not know that the
testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must
honor the client]'[s decision to testify. See also Comment [7].
Remedial Measures
[10] Having offered material evidence in the belief that it was true, a lawyer may subsequently
come to know that the evidence is false. Or, a lawyer may be surprised when the
lawyer]'[s client, or another witness called by the lawyer, offers testimony the lawyer
knows to be false, either during the lawyer]'[s direct examination or in response to
cross-examination by the opposing lawyer. In such situations or if the lawyer knows of the
falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable
remedial measures. In such situations, the advocate]'[s proper course is to
remonstrate with the client confidentially, advise the client of the lawyer]'[s duty of
candor to the tribunal and seek the client]'[s cooperation with respect to the
withdrawal or correction of the false statements or evidence. If that fails, the advocate must
take further remedial action. If withdrawal from the representation is not permitted or will not
undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as
is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal
information that otherwise would be protected by Rule 1.6. It is for the tribunal then to
determine what should be done making a statement about the matter to the trier of fact,
ordering a mistrial, or perhaps nothing.
[11] The disclosure of a client]'[s false testimony can result in grave consequences to
the client, including not only a sense of betrayal but also loss of the case and perhaps a
prosecution for perjury. But the alternative is that the lawyer cooperates in deceiving the court,
thereby subverting the truth-finding process that the adversary system is designed to implement.
See Rule 1.2(d). Furthermore, unless it is clearly understood that the lawyer will act upon the
duty to disclose the existence of false evidence, the client can simply reject the
lawyer]'[s advice to reveal the false evidence and insist that the lawyer keep silent.
Thus the client could in effect coerce the lawyer into being a party to fraud on the court.
Preserving Integrity of Adjudicative Process
[12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent
conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating
or otherwise unlawfully communicating with a witness, juror, court official or other participant
in the proceeding, unlawfully destroying or concealing documents or other evidence, or failing
to disclose information to the tribunal when required by law to do so. Thus, paragraph (b)
requires a lawyer to take reasonable remedial measures, including disclosure, if necessary,
whenever the lawyer knows that a person, including the lawyer]'[s client, intends to
engage, is engaging, or has engaged, in criminal or fraudulent conduct related to the
proceeding.
Duration of Obligation
[13] A practical time limit on the obligation to rectify false evidence or false statements of law
and fact has to be established. The conclusion of the proceeding is a reasonably definite point
for the termination of the obligation. A proceeding has concluded within the meaning of this
Rule when a final judgment in the proceeding has been affirmed on appeal or the time for
review has passed.
Ex Parte Proceedings
[14] Ordinarily, an advocate has the limited responsibility of presenting one side of the matters
that a tribunal should consider in reaching a decision; the conflicting position is expected to
be presented by the opposing party. However, in any ex parte proceeding, such as an
application for a temporary restraining order, there is no balance of presentation by opposing
advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just
result. The judge has an affirmative responsibility to accord the absent party just
consideration. The lawyer for the represented party has the correlative duty to make
disclosures of material facts that are known to the lawyer and that the lawyer reasonably
believes are necessary to an informed decision.
Withdrawal
[15] Normally, a lawyer]'[s compliance with the duty of candor imposed by this Rule
does not require that the lawyer withdraw from the representation of a client whose interests
will be or have been adversely affected by the lawyer]'[s disclosure. The lawyer may,
however, be required by Rule 1.16(a) to seek permission of the tribunal to withdraw if the
lawyer]'[s compliance with this Rule]'[s duty of candor results in such an
extreme deterioration of the client-lawyer relationship that the lawyer can no longer
competently represent the client. Also see Rule 1.16(b) for the circumstances in which a lawyer
will be permitted to seek a tribunal]'[s permission to withdraw. In connection with a
request for permission to withdraw that is premised on a client]'[s misconduct, a
lawyer may reveal information relating to the representation only to the extent reasonably
necessary to comply with this Rule or as otherwise permitted by Rule 1.6.]
Staff Comment: There are some changes to this rule. Proposed paragraph (a)(1) includes "fail[ing] to
correct a false statement of fact or law," as well as making the same. The Model Rule does not use the
word "material" in this sentence. Current paragraph (a)(2), dealing with a disclosure that is "necessary
to avoid assisting a criminal or fraudulent act by the client," is replaced with proposed paragraph (b).
Proposed paragraph (a)(3) expands on the concept of offering "material evidence" while knowing of its
falsity.
RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or
conceal a document or other material having potential evidentiary value. A lawyer shall not
counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to
a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably
diligent effort to comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that
will not be supported by admissible evidence, assert personal knowledge of facts in issue except
when testifying as a witness, or state a personal opinion as to the justness of a cause, the
credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused;
or
(f) request a person other than a client to refrain from voluntarily giving relevant
information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely
affected by refraining from giving such information.
[Comment
[1] The procedure of the adversary system contemplates that the evidence in a case is to be
marshalled competitively by the contending parties. Fair competition in the adversary system
is secured by prohibitions against destruction or concealment of evidence, improperly
influencing witnesses, obstructive tactics in discovery procedure, and the like.
[2] Documents and other items of evidence are often essential to establish a claim or defense.
Subject to evidentiary privileges, the right of an opposing party, including the government, to
obtain evidence through discovery or subpoena is an important procedural right. The exercise
of that right can be frustrated if relevant material is altered, concealed or destroyed.
Applicable law in many jurisdictions makes it an offense to destroy material for purpose of
impairing its availability in a pending proceeding or one whose commencement can be
foreseen. Falsifying evidence is also generally a criminal offense. Paragraph (a) applies to
evidentiary material generally, including computerized information. Applicable law may permit
a lawyer to take temporary possession of physical evidence of client crimes for the purpose of
conducting a limited examination that will not alter or destroy material characteristics of the
evidence. In such a case, applicable law may require the lawyer to turn the evidence over to
the police or other prosecuting authority, depending on the circumstances.
[3] With regard to paragraph (b), it is not improper to pay a witness]'[s expenses or
to compensate an expert witness on terms permitted by law. The common law rule in most
jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that
it is improper to pay an expert witness a contingent fee.
[4] Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving
information to another party, for the employees may identify their interests with those of the
client. See also Rule 4.2.
]
Staff Comment: The proposed rule is identical to the current Michigan rule and to the Model Rule.
RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited
by law;
(b) communicate ex parte with such a person concerning a pending matter unless authorized
to do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment;
or
(d) engage in conduct intended to disrupt a tribunal.
[Comment
[1] Many forms of improper influence upon a tribunal are proscribed by criminal law. Others
are specified in the Michigan Code of Judicial Conduct, with which an advocate should be
familiar. A lawyer is required to avoid contributing to a violation of such provisions.
[2] During a proceeding a lawyer may not communicate ex parte with persons serving in an
official capacity in the proceeding, such as judges, masters or jurors, unless authorized to do
so by law or court order.
[3] A lawyer may on occasion want to communicate with a juror or prospective juror after the
jury has been discharged. The lawyer may do so, unless the communication is prohibited by
law or a court order, but must respect the desire of the juror not to talk with the lawyer. The
lawyer may not engage in improper conduct during the communication.
[4] The advocate]'[s function is to present evidence and argument so that the cause
may be decided according to law. Refraining from abusive or obstreperous 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 no less effectively
by patient firmness than by belligerence or theatrics.
[5] The duty to refrain from disruptive conduct applies to any proceeding of a tribunal,
including a deposition. See Rule 1.0(m).]
Staff Comment: The proposed rule is substantially the same as the current rule, except that proposed
paragraph (d) replaces the language in current paragraph (c) "undignified or discourteous conduct
toward the tribunal" with "conduct intended to disrupt a tribunal." The proposed rule also adds a new
paragraph (c) that addresses the issue of lawyers contacting jurors and prospective jurors after discharge
of the jury. The proposed rule is identical with the Model Rule, except that the term "concerning a
pending matter" is substituted for "during the proceeding" in paragraph (b).
RULE 3.6 TRIAL PUBLICITY
(a) A lawyer who is participating or has participated in the investigation or litigation of a
matter shall not make an extrajudicial statement that the lawyer knows or reasonably should
know will be disseminated by means of public communication and will have a substantial
likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the
identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is
reason to believe that there exists the likelihood of substantial harm to an individual or to the
public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in
apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the
length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer
would believe is required to protect a client from the substantial undue prejudicial effect of
recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant
to this paragraph shall be limited to such information as is necessary to mitigate the recent
adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph
(a) shall make a statement prohibited by paragraph (a).
[Comment
[1] It is difficult to strike a balance between protecting the right to a fair trial and safeguarding
the right of free expression. Preserving the right to a fair trial necessarily entails some
curtailment of the information that may be disseminated about a party prior to trial,
particularly where trial by jury is involved. If there were no such limits, the result would be the
practical nullification of the protective effect of the rules of forensic decorum and the
exclusionary rules of evidence. On the other hand, there are vital social interests served by the
free dissemination of information about events having legal consequences and about legal
proceedings themselves. The public has a right to know about threats to its safety and measures
aimed at assuring its security. It also has a legitimate interest in the conduct of judicial
proceedings, particularly in matters of general public concern. Furthermore, the subject matter
of legal proceedings is often of direct significance in debate and deliberation over questions of
public policy.
[2] Special rules of confidentiality may validly govern proceedings in juvenile, domestic
relations, mental disability proceedings, and perhaps other types of litigation. Rule 3.4(c)
requires compliance with such rules.
[3] The Rule sets forth a basic general prohibition against a lawyer]'[s making
statements that the lawyer knows or should know will have a substantial likelihood of materially
prejudicing an adjudicative proceeding. Recognizing that the public value of informed
commentary is great and the likelihood of prejudice to a proceeding by the commentary of a
lawyer who is not involved in the proceeding is small, the rule applies only to lawyers who are,
or who have been, involved in the investigation or litigation of a case, and their associates.
[4] Paragraph (b) identifies specific matters about which a lawyer]'[s statements
would not ordinarily be considered to present a substantial likelihood of material prejudice,
and should not in any event be considered prohibited by the general prohibition of paragraph
(a). Paragraph (b) is not intended to be an exhaustive listing of the subjects upon which a
lawyer may make a statement, but statements on other matters may be subject to paragraph (a).
[5] There are, on the other hand, certain subjects that are more likely than not to have a
material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable
to a jury, a criminal matter, or any other proceeding that could result in incarceration. These
subjects relate to:
(1) the character, credibility, reputation, or criminal record of a party, suspect in a
criminal investigation, or witness; the identity of a witness; or the expected testimony of a party
or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of
a plea of guilty to the offense; the existence or contents of any confession, admission, or
statement given by a defendant or suspect; or that person]'[s refusal or failure to make
a statement;
(3) the performance or results of any examination or test, the refusal or failure of a
person to submit to an examination or test, or the identity or nature of physical evidence
expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case
or proceeding that could result in incarceration;
(5) information that the lawyer knows or reasonably should know is likely to be
inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of
prejudicing an impartial trial; or
(6) the fact that a defendant has been charged with a crime, unless there is included
therein a statement explaining that the charge is merely an accusation and that the defendant
is presumed innocent until and unless proven guilty.
[6] Another relevant factor in determining prejudice is the nature of the proceeding involved.
Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less
sensitive. Non-jury hearings and arbitration proceedings may be even less affected. The Rule
will still place limitations on prejudicial comments in these cases, but the likelihood of prejudice
may be different depending on the type of proceeding.
[7] Finally, extrajudicial statements that might otherwise raise a question under this Rule may
be permissible when they are made in response to statements made publicly by another party,
another party]'[s lawyer, or third persons, where a reasonable lawyer would believe
a public response is required in order to avoid prejudice to the lawyer]'[s client. When
prejudicial statements have been publicly made by others, responsive statements may have the
salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. Such
responsive statements should be limited to contain only such information as is necessary to
mitigate undue prejudice created by the statements made by others.
[8] See Rule 3.8(f) for additional duties of prosecutors in connection with extrajudicial
statements about criminal proceedings.]
Staff Comment: Proposed paragraph (a) is substantially the same as the current rule, except that
the "reasonable lawyer" standard is substituted for the "reasonable person" standard. The
proposed rule provides additional guidance in paragraphs (b), (c), and (d).
RULE 3.7 LAWYER AS WITNESS
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary
witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case;
or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in 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.
[Comment
[1] Combining the roles of advocate and witness can prejudice the tribunal and the opposing
party and can also involve a conflict of interest between the lawyer and client.
Advocate-Witness Rule
[2] The tribunal has proper objection when the trier of fact may be confused or misled by a
lawyer serving as both advocate and witness. The opposing party has proper objection where
the combination of roles may prejudice that party]'[s rights in the litigation. A witness
is required to testify on the basis of personal knowledge, while an advocate is expected to
explain and comment on evidence given by others. It may not be clear whether a statement by
an advocate-witness should be taken as proof or as an analysis of the proof.
[3] To protect the tribunal, paragraph (a) prohibits a lawyer from simultaneously serving as
advocate and necessary witness except in those circumstances specified in paragraphs (a)(1)
through (a)(3). Paragraph (a)(1) recognizes that if the testimony will be uncontested, the
ambiguities in the dual role are purely theoretical. Paragraph (a)(2) recognizes that where the
testimony concerns the extent and value of legal services rendered in the action in which the
testimony is offered, permitting the lawyers to testify avoids the need for a second trial with new
counsel to resolve that issue. Moreover, in such a situation the judge has firsthand knowledge
of the matter in issue; hence, there is less dependence on the adversary process to test the
credibility of the testimony.
[4] Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is required
between the interests of the client and those of the tribunal and the opposing party. Whether
the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on
the nature of the case, the importance and probable tenor of the lawyer]'[s testimony,
and the probability that the lawyer]'[s testimony will conflict with that of other
witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be
disqualified, due regard must be given to the effect of disqualification on the lawyer]'[s
client. It is relevant that one or both parties could reasonably foresee that the lawyer would
probably be a witness. The conflict of interest principles stated in Rules 1.7, 1.9 and 1.10 have
no application to this aspect of the problem.
[5] Because the tribunal is not likely to be misled when a lawyer acts as advocate in a trial in
which another lawyer in the lawyer]'[s firm will testify as a necessary witness,
paragraph (b) permits the lawyer to do so except in situations involving a conflict of interest.
Conflict of Interest
[6] In determining if it is permissible to act as advocate in a trial in which the lawyer will be
a necessary witness, the lawyer must also consider that the dual role may give rise to a conflict
of interest that will require compliance with Rules 1.7 or 1.9. For example, if there is likely to
be substantial conflict between the testimony of the client and that of the lawyer, the
representation involves a conflict of interest that requires compliance with Rule 1.7. This would
be true even though the lawyer might not be prohibited by paragraph (a) from simultaneously
serving as advocate and witness because the lawyer]'[s disqualification would work
a substantial hardship on the client. Similarly, a lawyer who might be permitted to
simultaneously serve as an advocate and a witness by paragraph (a)(3) might be precluded
from doing so by Rule 1.9. The problem can arise whether the lawyer is called as a witness on
behalf of the client or is called by the opposing party. Determining whether or not such a
conflict exists is primarily the responsibility of the lawyer involved. If there is a conflict of
interest, the lawyer must secure the client]'[s informed consent, confirmed in writing.
In some cases, the lawyer will be precluded from seeking the client]'[s consent. See
Rule 1.7. See Rule 1.0(b) for the definition of "confirmed in writing" and Rule 1.0(e) for the
definition of "informed consent."
[7] Paragraph (b) provides that a lawyer is not disqualified from serving as an advocate
because a lawyer with whom the lawyer is associated in a firm is precluded from doing so by
paragraph (a). If, however, the testifying lawyer would also be disqualified by Rule 1.7 or Rule
1.9 from representing the client in the matter, other lawyers in the firm will be precluded from
representing the client by Rule 1.10 unless the client gives informed consent under the
conditions stated in Rule 1.7.
]
Staff Comment: This rule is identical with the current Michigan Rule and the Model Rule.
[]
RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable
cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and
the procedure for obtaining, counsel and has been given reasonable opportunity to obtain
counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights,
such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in
connection with sentencing, disclose to the defense and to the tribunal all unprivileged
mitigating information known to the prosecutor, except when the prosecutor is relieved of this
responsibility by a protective order of the tribunal;
(e) exercise reasonable care to prevent investigators, law enforcement personnel, employees,
or other persons assisting or associated with the prosecutor in a criminal case from making an
extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6.
[Comment
[1] A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate. This responsibility carries with it specific obligations to see that the defendant is
accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.
Precisely how far the prosecutor is required to go in this direction is a matter of debate and
varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of
Criminal Justice Relating to the Prosecution Function, which in turn are the product of
prolonged and careful deliberation by lawyers experienced in both criminal prosecution and
defense. Applicable law may require other measures by the prosecutor and knowing disregard
of those obligations or a systematic abuse of prosecutorial discretion could constitute a
violation of Rule 8.4.
[2] Paragraph (c) does not apply to an accused appearing pro se with the approval of the
tribunal. Nor does it forbid the lawful questioning of an uncharged suspect who has knowingly
waived the rights to counsel and silence.
[3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate
protective order from the tribunal if disclosure of information to the defense could result in
substantial harm to an individual or to the public interest.
[4] In paragraphs (b) and (e), this rule imposes on a prosecutor an obligation to make
reasonable efforts and to take reasonable care to assure that a defendant]'[s rights are
protected. Of course, not all of the individuals who might encroach upon those rights are under
the control of the prosecutor. The prosecutor cannot be held responsible for the actions of
persons over whom the prosecutor does not exercise authority. The prosecutor]'[s
obligation is discharged if the prosecutor has taken reasonable and appropriate steps to assure
that the defendant]'[s rights are protected. ]
Staff Comment: No changes to this rule are proposed. The proposed rule is the same as the Model
Rule's paragraphs (a), (b), (c), and (d), but it eliminates paragraphs (e) and (f) of the Model Rule.
RULE 3.9ADVOCATE IN NONADJUDICATIVE PROCEEDINGS
A lawyer representing a client before a legislative body or administrative agency in a
nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and
shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.
[Comment
[1] In representation before bodies such as legislatures, municipal councils, and executive and
administrative agencies acting in a rule-making or policy-making capacity, lawyers present
facts, formulate issues, and advance argument in the matters under consideration. The
decision-making body, like a court, should be able to rely on the integrity of the submissions
made to it. A lawyer appearing before such a body must deal with it honestly and in conformity
with applicable rules of procedure. See Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.
[2] Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do before
a court. The requirements of this Rule therefore may subject lawyers to regulations
inapplicable to advocates who are not lawyers. However, legislatures and administrative
agencies have a right to expect lawyers to deal with them as they deal with courts.
[3] This Rule only applies when a lawyer represents a client in connection with an official
hearing or meeting of a governmental agency or a legislative body to which the lawyer or the
lawyer]'[s client is presenting evidence or argument. It does not apply to
representation of a client in a negotiation or other bilateral transaction with a governmental
agency or in connection with an application for a license or other privilege or the
client]'[s compliance with generally applicable reporting requirements, such as the
filing of income-tax returns. Nor does it apply to the representation of a client in connection
with an investigation or examination of the client]'[s affairs conducted by government
investigators or examiners. Representation in such matters is governed by Rules 4.1 through
4.4.]
Staff Comment: No changes to this rule are proposed. The proposed rule is identical with the Model
Rule.
TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
RULE 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS
In the course of representing a client a lawyer shall not knowingly make a false statement of
material fact or law to a third person.
[Comment
Misrepresentation
[1] A lawyer is required to be truthful when dealing with others on a client]'[s behalf,
but generally has no affirmative duty to inform an opposing party of relevant facts. A
misrepresentation can occur if the lawyer incorporates or affirms a statement of another person
that the lawyer knows is false. Misrepresentations can also occur by partially true but
misleading statements or omissions that are the equivalent of affirmative false statements. For
dishonest conduct that does not amount to a false statement or for misrepresentations by a
lawyer other than in the course of representing a client, see Rule 8.4.
Statements of Fact
[2] This Rule refers to statements of fact. Whether a particular statement should be regarded
as one of fact can depend on the circumstances. Under generally accepted conventions in
negotiation, certain types of statements ordinarily are not taken as statements of material fact.
Estimates of price or value placed on the subject of a transaction and a party]'[s
intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the
existence of an undisclosed principal, except where nondisclosure of the principal would
constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid
criminal and tortious misrepresentation.]
Staff Comment: This proposed rule is identical to the current Michigan rule. It adopts paragraph (a) of
the Model Rule, but the State Bar Representative Assembly voted to reject paragraph (b) of the Model
Rule, which adds the concept of knowingly failing to disclose a material fact "when disclosure is
necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by
Rule 1.6."
RULE 4.2 COMMUNICATION WITH PARTY REPRESENTED
BY COUNSEL [2 ALTERNATIVE PROPOSALS]
ALTERNATIVE (A):
In representing a client, a lawyer shall not communicate about the subject of the representation
with a party whom the lawyer knows to be represented by another lawyer in the matter, unless
the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
[Comment
[1] This Rule contributes to the proper functioning of the legal system by protecting a party
who has chosen to be represented by a lawyer in a matter against possible overreaching by
other lawyers who are participating in the matter, interference by those lawyers with the client-
lawyer relationship, and the uncounselled disclosure of information relating to the
representation.
[2] This Rule applies to communications with any party who is represented by counsel
concerning the matter to which the communication relates.
[3] The Rule applies even though the represented party initiates or consents to the
communication. A lawyer must immediately terminate communication with a party if, after
commencing communication, the lawyer learns that the party is one with whom communication
is not permitted by this Rule.
[4] This Rule does not prohibit communication with a represented party, or an employee or
agent of such a party, concerning matters outside the representation. For example, the
existence of a controversy between a government agency and a private party, or between two
organizations, does not prohibit a lawyer for either from communicating with nonlawyer
representatives of the other regarding a separate matter. Nor does this Rule preclude
communication with a represented party who is seeking advice from a lawyer who is not
otherwise representing a client in the matter. A lawyer may not make a communication
prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may
communicate directly with each other, and a lawyer is not prohibited from advising a client
concerning a communication that the client is legally entitled to make. Also, a lawyer having
independent justification or legal authorization for communicating with a represented
party is permitted to do so.
[5] Communications authorized by law may include communications by a lawyer on behalf of
a client who is exercising a constitutional or other legal right to communicate with the
government. Communications authorized by law may also include investigative activities of
lawyers representing governmental entities, directly or through investigative agents, prior to
the commencement of criminal or civil enforcement proceedings. When communicating with
the accused in a criminal matter, a government lawyer must comply with this Rule in addition
to honoring the constitutional rights of the accused. The fact that a communication does not
violate a state or federal constitutional right is insufficient to establish that the communication
is permissible under this Rule.[6] A lawyer who is uncertain whether a communication with a
represented party is permissible may seek a court order. A lawyer may also seek a
court order in exceptional circumstances to authorize a communication that would otherwise
be prohibited by this Rule, for example, where communication with a party
represented by counsel is necessary to avoid reasonably certain injury.
[7] In the case of a represented organization, this Rule prohibits communications with a
constituent of the organization who supervises, directs or regularly consults with the
organization's lawyer concerning the matter, who has authority to obligate the organization
with respect to the matter, or whose act or omission in connection with the matter may be
imputed to the organization for purposes of civil or criminal liability. Consent of the
organization's lawyer is not required for communication with a former constituent unless that
former constituent supervises, directs or regularly consults with the organization's lawyer
concerning the matter; has authority to obligate the organization with respect to the matter; has
a continuing relationship with the former employer as a director or member of the corporate-
control group; has participated in the litigation or was otherwise exposed to privileged or
confidential information concerning the organization or the case during the term of
employment; or has performed acts or made omissions in connection with the matter that may
be imputed to the organization for purposes of civil or criminal liability. If a constituent of the
organization is represented in the matter by his or her own counsel, the consent by that counsel
to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f). In
communicating with a current or former constituent of an organization, a lawyer must not use
methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4.
[8] The prohibition on communications with a represented party only applies in circumstances
where the lawyer knows that the party is in fact represented in the matter to be discussed. This
means that the lawyer has actual knowledge of the fact of the representation, but such actual
knowledge may be inferred from the circumstances. See Rule 1.0(f). Thus, the lawyer cannot
evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.
[9] In the event the party with whom the lawyer communicates is not known to be represented
by counsel in the matter, the lawyer]'[s communications are subject to Rule 4.3.
[10] By virtue of its exemption of communications authorized by law, this rule permits a
prosecutor or a government lawyer engaged in a criminal or civil law enforcement investigation
to communicate with, or direct investigative agents to communicate with, a represented person
prior to the represented person being arrested, indicted, charged, or named as a defendant in
a criminal or civil law enforcement proceeding against the represented person. A civil law
enforcement investigation is one conducted under the government]'[s police or
regulatory power to enforce the law. Once a represented person has been arrested, indicted,
charged, or named as a defendant in a criminal or civil law enforcement proceeding, however,
prosecutors and government lawyers must comply with this Rule. A represented
person]'[s waiver of the constitutional right to counsel does not exempt the prosecutor
from the duty to comply with this Rule.]
Staff Comment: The proposed rule is substantially similar to the current rule. The words
"or a court order" are added to the phrase "unless the lawyer . . . is authorized to do so by law
. . . ." In the new Model Rule, the term "party" is replaced with "person." The new proposed
MRPC does not adopt that change, however, because the State Bar Representative Assembly
voted to retain the current language. "Party" is also used in the Comment, where
appropriate. The Representative Assembly also voted to add a "law enforcement"
clarification, which is included as Comment [10]. (Comment [10] is identical to the comment
adopted by the State of Tennessee.)
ALTERNATIVE (B):
[Shown as Alternative A with strikeouts and underlining.]
In representing a client, a lawyer shall not communicate about the subject of the representation
with a party whom the lawyer knows to be represented by another lawyer in the matter, unless
the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
This Rule does not apply to otherwise lawful investigative actions of lawyers employed by the
government who are engaged in investigating and/or prosecuting violations of civil or criminal
law.
[Comment
[1] This Rule contributes to the proper functioning of the legal system by protecting a party
who has chosen to be represented by a lawyer in a matter against possible overreaching by
other lawyers who are participating in the matter, interference by those lawyers with the client-
lawyer relationship, and the uncounselled disclosure of information relating to the
representation.
[2] Unless the law enforcement exception is applicable, tThis Rule applies to communications
with any party who is represented by counsel concerning the matter to which the
communication relates.
[3] The Rule applies even though the represented party initiates or consents to the
communication. A lawyer must immediately terminate communication with a party if, after
commencing communication, the lawyer learns that the party is one with whom communication
is not permitted by this Rule.
[4] This Rule does not prohibit communication with a represented party, or an employee or
agent of such a party, concerning matters outside the representation. For example, the
existence of a controversy between a government agency and a private party, or between two
organizations, does not prohibit a lawyer for either from communicating with nonlawyer
representatives of the other regarding a separate matter. Nor does this Rule preclude
communication with a represented party who is seeking advice from a lawyer who is not
otherwise representing a client in the matter. A lawyer may not make a communication
prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may
communicate directly with each other, and a lawyer is not prohibited from advising a client
concerning a communication that the client is legally entitled to make. Also, a lawyer having
independent justification or legal authorization for communicating with a represented party is
permitted to do so.
[5] Communications authorized by law may include communications by a lawyer on behalf of
a client who is exercising a constitutional or other legal right to communicate with the
government. Communications authorized by law may also include investigative activities of
lawyers representing governmental entities, directly or through investigative agents, prior to
the commencement of criminal or civil enforcement proceedings. When communicating with
the accused in a criminal matter, a government lawyer must comply with this Rule in addition
to honoring the constitutional rights of the accused. The fact that a communication does not
violate a state or federal constitutional right is insufficient to establish that the communication
is permissible under this Rule.
[6] A lawyer who is uncertain whether a communication with a represented party is permissible
may seek a court order. A lawyer may also seek a court order in exceptional circumstances to
authorize a communication that would otherwise be prohibited by this Rule, for example, where
communication with a party represented by counsel is necessary to avoid reasonably certain
injury.
[7] In the case of a represented organization, this Rule prohibits communications with a
constituent of the organization who supervises, directs or regularly consults with the
organization's lawyer concerning the matter, who has authority to obligate the organization
with respect to the matter, or whose act or omission in connection with the matter may be
imputed to the organization for purposes of civil or criminal liability. Consent of the
organization's lawyer is not required for communication with a former constituent unless that
former constituent supervises, directs or regularly consults with the organization's lawyer
concerning the matter; has authority to obligate the organization with respect to the matter; has
a continuing relationship with the former employer as a director or member of the corporate-
control group; has participated in the litigation or was otherwise exposed to privileged or
confidential information concerning the organization or the case during the term of
employment; or has performed acts or made omissions in connection with the matter that may
be imputed to the organization for purposes of civil or criminal liability. If a constituent of the
organization is represented in the matter by his or her own counsel, the consent by that counsel
to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f). In
communicating with a current or former constituent of an organization, a lawyer must not use
methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4.
[8] The prohibition on communications with a represented party only applies in circumstances
where the lawyer knows that the party is in fact represented in the matter to be discussed. This
means that the lawyer has actual knowledge of the fact of the representation, but such actual
knowledge may be inferred from the circumstances. See Rule 1.0(f). Thus, the lawyer cannot
evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.
[9] In the event the party with whom the lawyer communicates is not known to be represented
by counsel in the matter, the lawyer]'[s communications are subject to Rule 4.3.
[10] By virtue of its exemption of communications authorized by law, this rule permits a
prosecutor or a government lawyer engaged in a criminal or civil law enforcement investigation
to communicate with, or direct investigative agents to communicate with, a represented person
prior to the represented person being arrested, indicted, charged, or named as a defendant in
a criminal or civil law enforcement proceeding against the represented person. A civil law
enforcement investigation is one conducted under the government]'[s police or
regulatory power to enforce the law. Once a represented person has been arrested, indicted,
charged, or named as a defendant in a criminal or civil law enforcement proceeding, however,
prosecutors and government lawyers must comply with this Rule. A represented
person]'[s waiver of the constitutional right to counsel does not exempt the prosecutor
from the duty to comply with this Rule.]
Staff Comment: The proposed rule is similar to the current rule. The words "or a court
order" are added to the phrase "unless the lawyer . . . is authorized to do so by law . . . ."
In the new Model Rule, the term "party" is replaced with "person." The new proposed MRPC
does not adopt that change, however, because the State Bar Representative Assembly voted to
retain the current language. "Party" is also used in the Comment, where appropriate.
The Representative Assembly also voted to add a "law enforcement" clarification. An
express exception for otherwise lawful investigative actions of lawyers employed by the
government, who are engaged in investigating or prosecuting violations of civil or criminal law,
is included in the body of the rule.
RULE 4.3 DEALING WITH UNREPRESENTED PERSON
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall
not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should
know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer
shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal
advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows
or reasonably should know that the interests of such a person are or have a reasonable possibility
of being in conflict with the interests of the client.
[Comment]
[[1] An unrepresented person, particularly one not experienced in dealing with legal
matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority
on the law even when the lawyer represents a client. In order to avoid a misunderstanding, a
lawyer will typically need to identify the lawyer]'[s client and, where necessary, explain
that the client has interests opposed to those of the unrepresented person. For
misunderstandings that sometimes arise when a lawyer for an organization deals with an
unrepresented constituent, see Rule 1.13(d).
[2] The Rule distinguishes between situations involving unrepresented persons whose interests
may be adverse to those of the lawyer]'[s client and those in which the
person]'[s interests are not in conflict with the client]'[s. In the former
situation, the possibility that the lawyer will compromise the unrepresented person]'[s
interests is so great that the Rule prohibits the giving of any advice, apart from the advice to
obtain counsel. Whether a lawyer is giving impermissible advice may depend on the experience
and sophistication of the unrepresented person, as well as the setting in which the behavior and
comments occur. This Rule does not prohibit a lawyer from negotiating the terms of a
transaction or settling a dispute with an unrepresented person. So long as the lawyer has
explained that the lawyer represents an adverse party and is not representing the person, the
lawyer may inform the person of the terms on which the lawyer]'[s client will enter into
an agreement or settle a matter, prepare documents that require the person]'[s
signature, and explain the lawyer]'[s own view of the meaning of the document or the
lawyer]'[s view of the underlying legal obligations.]
Staff Comment: The proposed rule is identical to the current rule, with the addition of the last sentence,
which was recommended by the State Bar Ethics Committee. The proposed rule is identical to the
Model Rule.
RULE 4.4 RESPECT FOR RIGHTS OF THIRD PERSONS
(a) In representing a client, a lawyer shall not use means that have no substantial purpose
other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence
that violate the legal rights of such a person.
(b) A lawyer who receives a document relating to the representation of the lawyer's client
and knows or reasonably should know that the document was inadvertently sent shall promptly
notify the sender.
[Comment
[1] Responsibility to a client requires a lawyer to subordinate the interests of others to those
of the client, but that responsibility does not imply that a lawyer may disregard the rights of
third persons. It is impractical to catalogue all such rights, but they include legal restrictions
on methods of obtaining evidence from third persons and unwarranted intrusions into
privileged relationships, such as the client-lawyer relationship.
[2] Paragraph (b) recognizes that lawyers sometimes receive documents that were mistakenly
sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should
know that such a document was sent inadvertently, then this Rule requires the lawyer to
promptly notify the sender in order to permit that person to take protective measures. Whether
the lawyer is required to take additional steps, such as returning the original document, is a
matter of law beyond the scope of these Rules, as is the question whether the privileged status
of a document has been waived. Similarly, this Rule does not address the legal duties of a
lawyer who receives a document that the lawyer knows or reasonably should know may have
been wrongfully obtained by the sending person. For purposes of this Rule, "document"
includes e-mail or other electronic modes of transmission subject to being read or put into
readable form.
[3] Some lawyers may choose to return a document unread, for example, when the lawyer
learns before receiving the document that it was inadvertently sent to the wrong address.
Where a lawyer is not required by applicable law to do so, the decision to voluntarily return
such a document is a matter of professional judgment ordinarily reserved to the lawyer. See
Rules 1.2 and 1.4.]
Staff Comment: Proposed paragraph (a) is the same as the current rule. Paragraph (b), dealing with the
inadvertent disclosure of confidential information, requires a lawyer who has inadvertently received a
document to "promptly notify the sender." This rule is identical with the Model Rule. The State Bar
Ethics Committee recommended the addition of this new paragraph to the Michigan rules.
LAW FIRMS AND ASSOCIATIONS
RULE 5.1 RESPONSIBILITIES OF A PARTNER OR
SUPERVISORY LAWYER
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure
that the firm has in effect measures giving reasonable assurance that all lawyers in the firm
conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable
efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional
Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct
involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in
which the other lawyer practices, or has direct supervisory authority over the other lawyer, and
knows of the conduct at a time when its consequences can be avoided or mitigated but fails to
take reasonable remedial action.
[Comment
[1] Paragraph (a) applies to lawyers who have managerial authority over the professional
work of a firm. See Rule 1.0(c). This includes members of a partnership, the shareholders in
a law firm organized as a professional corporation, and members of other associations
authorized to practice law; lawyers having comparable managerial authority in a legal services
organization or a law department of an enterprise or government agency; and lawyers who
have intermediate managerial responsibilities in a firm. Paragraph (b) applies to lawyers who
have supervisory authority over the work of other lawyers in a firm.
[2] Paragraph (a) requires lawyers with managerial authority within a firm to make reasonable
efforts to establish internal policies and procedures designed to provide reasonable assurance
that all lawyers in the firm will conform to the Rules of Professional Conduct. Such policies
and procedures include those designed to detect and resolve conflicts of interest, identify dates
by which actions must be taken in pending matters, account for client funds and property and
ensure that inexperienced lawyers are properly supervised.
[3] Other measures that may be required to fulfill the responsibility prescribed in paragraph
(a) can depend on the firm]'[s structure and the nature of its practice. In a small firm
of experienced lawyers, informal supervision and periodic review of compliance with the
required systems ordinarily will suffice. In a large firm, or in practice situations in which
difficult ethical problems frequently arise, more elaborate measures may be necessary. Some
firms, for example, have a procedure whereby junior lawyers can make confidential referral of
ethical problems directly to a designated senior partner or special committee. See Rule 5.2.
Firms, whether large or small, may also rely on continuing legal education in professional
ethics. In any event, the ethical atmosphere of a firm can influence the conduct of all its
members and the partners may not assume that all lawyers associated with the firm will
inevitably conform to the Rules.
[4] Paragraph (c) expresses a general principle of personal responsibility for acts of another.
See also Rule 8.4(a).
[5] Paragraph (c)(2) defines the duty of a partner or other lawyer having comparable
managerial authority in a law firm, as well as a lawyer who has direct supervisory authority
over performance of specific legal work by another lawyer. Whether a lawyer has supervisory
authority in particular circumstances is a question of fact. Partners and lawyers with
comparable authority have at least indirect responsibility for all work being done by the firm,
while a partner or manager in charge of a particular matter ordinarily also has supervisory
responsibility for the work of other firm lawyers engaged in the matter. Appropriate remedial
action by a partner or managing lawyer would depend on the immediacy of that
lawyer]'[s involvement and the seriousness of the misconduct. A supervisor is required
to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the
misconduct occurred. Thus, if a supervising lawyer knows that a subordinate misrepresented
a matter to an opposing party in negotiation, the supervisor as well as the subordinate has a
duty to correct the resulting misapprehension.
[6] Professional misconduct by a lawyer under supervision could reveal a violation of
paragraph (b) on the part of the supervisory lawyer even though it does not entail a violation
of paragraph (c) because there was no direction, ratification or knowledge of the violation.
[7] Apart from this Rule and Rule 8.4(a), a lawyer does not have disciplinary liability for the
conduct of a partner, associate or subordinate. Whether a lawyer may be liable civilly or
criminally for another lawyer]'[s conduct is a question of law beyond the scope of these
Rules.
[8] The duties imposed by this Rule on managing and supervising lawyers do not alter the
personal duty of each lawyer in a firm to abide by the Rules of Professional Conduct. See Rule
5.2(a).]
Staff Comment: This proposed rule is identical with the current Michigan rule, except for the addition
of the clause, "and a lawyer who individually or together with other lawyers possesses comparable
managerial authority in a law firm . . . " and the deletion of the words "of the relevant facts" in
subparagraph (c) (1). The proposed rule is identical to the Model Rule.
RULE 5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer
acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer
acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question
of professional duty.
[Comment
[1] Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer
acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer
had the knowledge required to render his or her conduct a violation of the Rules. For example,
if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate
would not be guilty of a professional violation unless the subordinate knew of the
document]'[s frivolous character.
[2] When lawyers in a supervisor-subordinate relationship encounter a matter involving
professional judgment as to ethical duty, the supervisor may assume responsibility for making
the judgment. Otherwise, a consistent course of action or position could not be taken. If the
question can reasonably be answered only one way, the duty of both lawyers is clear and they
are equally responsible for fulfilling it. However, if the question is reasonably arguable,
someone has to decide upon the course of action. That authority ordinarily reposes in the
supervisor, and a subordinate may be guided accordingly. For example, if a question arises
whether the interests of two clients conflict under Rule 1.7, the supervisor]'[s
reasonable resolution of the question should protect the subordinate professionally if the
resolution is subsequently challenged.]
Staff Comment: This rule is identical with the current Michigan rule and with the Model Rule.
RULE 5.3 RESPONSIBILITIES REGARDING NONLAWYER
ASSISTANTS
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a lawyer partner in a firm, and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a firm shall make reasonable efforts to ensure that
the firm has in effect measures giving reasonable assurance that the nonlawyer's conduct is
compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable
efforts to ensure that the nonlawyer's conduct is compatible with the professional obligations
of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a nonlawyer that would be a violation of
the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the
conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in
which the nonlawyer is employed, or has direct supervisory authority over the nonlawyer, and
knows of the conduct at a time when its consequences can be avoided or mitigated but fails to
take reasonable remedial action.
The providing of otherwise lawful advice to persons having independent obligations to conduct
investigations does not make a lawyer responsible for the conduct of those persons.
[Comment
[1] Lawyers generally employ assistants in their practice, including secretaries, investigators,
law student interns, and paraprofessionals. Such assistants, whether employees or independent
contractors, act for the lawyer in rendering the lawyer]'[s professional services. A
lawyer must give such assistants appropriate instruction and supervision concerning the ethical
aspects of their employment, particularly regarding the obligation not to disclose information
relating to representation of the client, and should be responsible for their work product. The
measures employed in supervising nonlawyers should take account of the fact that they do not
have legal training and are not subject to professional discipline. This Rule also applies to any
nonlawyers in a firm that provides legal as well as nonlegal services who are involved in the
delivery of legal services.
[2] Paragraph (a) requires lawyers with managerial authority within a law firm to make
reasonable efforts to establish internal policies and procedures designed to provide reasonable
assurance that nonlawyers in the firm will act in a way compatible with the Rules of
Professional Conduct. See Comment [1] to Rule 5.1 and Rule 8.4(a). Paragraph (b) applies
to lawyers who have supervisory authority over the work of a nonlawyer. Paragraph (c)
specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that
would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.
[3] The last sentence of this Rule applies when lawyers give advice or instruction to persons
having independent obligations to conduct investigations, such as when a prosecutor gives legal
advice to a police officer. If the investigator chooses not to follow the advice or instruction
given, the lawyer does not incur responsibility under this Rule or Rule 8.4(a).
[4] The duty and responsibility of a lawyer with respect to the conduct of nonlawyers is parallel
to the duty and responsibility of a lawyer under Rule 5.1.]
Staff Comment: The proposed rule is substantially similar to the current rule. The "comparable
managerial authority" concept of proposed MRPC 5.1 is added here also, and the final sentence is new.
Since this rule imposes new ethical responsibilities on law firms and individuals, the State Bar Ethics
Committee found it prudent to add the last sentence. Two additional comments ([3] and [4]) were also
added to help clarify this rule. In addition, the proposed rule makes two other slight modifications to
the Model Rule: the term "partner" is expanded to read "lawyer partner in a firm," to help clarify that
this rule deals with that type of partner only, and the term "person" was changed to "nonlawyer" to
specify that the term applies to persons other than lawyers.
RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide
for the payment of money, over a reasonable period of time after the lawyer's death, to the
lawyer's estate or to one or more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared
lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of
that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or
retirement plan, even though the plan is based in whole or in part on a profit-sharing
arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that
employed, retained or recommended employment of the lawyer in the matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the
partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to
render legal services for another to direct or regulate the lawyer's professional judgment in
rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or
association engaged in the practice of law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the
estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during
administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of
similar responsibility in any form of association other than a corporation; or
(3) a nonlawyer has the right to direct or control the professional judgment of a
lawyer.
[Comment
[1] The provisions of this Rule express traditional limitations on sharing fees. These limitations
are to protect the lawyer]'[s professional independence of judgment. Where someone
other than the client pays the lawyer]'[s fee or salary, or recommends employment of
the lawyer, that arrangement does not modify the lawyer]'[s obligation to the client.
As stated in paragraph (c), such arrangements should not interfere with the lawyer]'[s
professional judgment.
[2] This Rule also expresses traditional limitations on permitting a third party to direct or
regulate the lawyer]'[s professional judgment in rendering legal services to another.
See also Rule 1.8(f) (lawyer may accept compensation from a third party as long as there is no
interference with the lawyer]'[s independent professional judgment and the client gives
informed consent).]
Staff Comment: No substantive changes to the current rule are proposed. (The term "engaged in the
practice of law" is used instead of "authorized to practice law" in paragraph [d].)
RULE 5.5 UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL
PRACTICE OF LAW
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal
profession in that jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other
systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice
law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended
from practice in any jurisdiction, may provide legal services on a temporary basis in this
jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this
jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal
in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by
law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or
other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise
out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is
admitted to practice and are not services for which the forum requires pro hac vice admission;
or
(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related
to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended
from practice in any jurisdiction, may provide legal services in this jurisdiction that:
(1) are provided to the lawyer's employer or its organizational affiliates and are not
services for which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized by federal or other law to provide in this
jurisdiction.
[Comment
[1] A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to
practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may
be authorized by court rule or order or by law to practice for a limited purpose or on a
restricted basis. Paragraph (a) applies to unauthorized practice of law by a lawyer, whether
through the lawyer]'[s direct action or by the lawyer assisting another person.
[2] The definition of the practice of law is established by law and varies from one jurisdiction
to another. Whatever the definition, limiting the practice of law to members of the bar protects
the public against rendition of legal services by unqualified persons. This Rule does not
prohibit a lawyer from employing the services of paraprofessionals and delegating functions
to them, so long as the lawyer supervises the delegated work and retains responsibility for their
work. See Rule 5.3.
[3] A lawyer may provide professional advice and instruction to nonlawyers whose employment
requires knowledge of the law; for example, claims adjusters, employees of financial or
commercial institutions, social workers, accountants and persons employed in government
agencies. Lawyers also may assist independent nonlawyers, such as paraprofessionals, who
are authorized by the law of a jurisdiction to provide particular law-related services. In
addition, a lawyer may counsel nonlawyers who wish to proceed pro se.
[4] Other than as authorized by law or this Rule, a lawyer who is not admitted to practice
generally in this jurisdiction violates paragraph (b) if the lawyer establishes an office or other
systematic and continuous presence in this jurisdiction for the practice of law. Presence may
be systematic and continuous even if the lawyer is not physically present here. Such a lawyer
must not hold out to the public or otherwise represent that the lawyer is admitted to practice
law in this jurisdiction. See also Rules 7.1(a) and 7.5(b).
[5] There are occasions in which a lawyer admitted to practice in another United States
jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide
legal services on a temporary basis in this jurisdiction under circumstances that do not create
an unreasonable risk to the interests of their clients, the public or the courts. Paragraph (c)
identifies four such circumstances. The fact that conduct is not so identified does not imply that
the conduct is or is not authorized. With the exception of paragraphs (d)(1) and (d)(2), this
Rule does not authorize a lawyer to establish an office or other systematic and continuous
presence in this jurisdiction without being admitted to practice generally here.
[6] There is no single test to determine whether a lawyer]'[s services are provided on
a "temporary basis" in this jurisdiction, and may therefore be permissible under paragraph (c).
Services may be "temporary" even though the lawyer provides services in this jurisdiction on
a recurring basis, or for an extended period of time, as when the lawyer is representing a client
in a single lengthy negotiation or litigation.
[7] Paragraphs (c) and (d) apply to lawyers who are admitted to practice law in any United
States jurisdiction, which includes the District of Columbia and any state, territory or
commonwealth of the United States. The word "admitted" in paragraph (c) contemplates that
the lawyer is authorized to practice and is in good standing to practice in the jurisdiction in
which the lawyer is admitted and excludes a lawyer who while technically admitted is not
authorized to practice, because, for example, the lawyer is on inactive status or is suspended
for non-payment of dues.
[8] Paragraph (c)(1) recognizes that the interests of clients and the public are protected if a
lawyer admitted only in another jurisdiction associates with a lawyer licensed to practice in this
jurisdiction. For this paragraph to apply, however, the lawyer admitted to practice in this
jurisdiction must actively participate in and share responsibility for the representation of the
client.
[9] Lawyers not admitted to practice generally in a jurisdiction may be authorized by law or
order of a tribunal or an administrative agency to appear before the tribunal or agency. This
authority may be granted pursuant to formal rules governing admission pro hac vice or
pursuant to informal practice of the tribunal or agency. Under paragraph (c)(2), a lawyer does
not violate this Rule when the lawyer appears before a tribunal or agency pursuant to such
authority. To the extent that a court rule or other law of this jurisdiction requires a lawyer who
is not admitted to practice in this jurisdiction to obtain admission pro hac vice before appearing
before a tribunal or administrative agency, this Rule requires the lawyer to obtain that
authority.
[10] Paragraph (c)(2) also provides that a lawyer rendering services in this jurisdiction on a
temporary basis does not violate this Rule when the lawyer engages in conduct in anticipation
of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law
or in which the lawyer reasonably expects to be admitted pro hac vice. Examples of such
conduct include meetings with the client, interviews of potential witnesses, and the review of
documents. Similarly, a lawyer admitted only in another jurisdiction may engage in conduct
temporarily in this jurisdiction in connection with pending litigation in another jurisdiction in
which the lawyer is or reasonably expects to be authorized to appear, including taking
depositions in this jurisdiction.
[11] When a lawyer has been or reasonably expects to be admitted to appear before a court or
administrative agency, paragraph (c)(2) also permits conduct by lawyers who are associated
with that lawyer in the matter, but who do not expect to appear before the court or
administrative agency. For example, subordinate lawyers may conduct research, review
documents, and attend meetings with witnesses in support of the lawyer responsible for the
litigation.
[12] Paragraph (c)(3) permits a lawyer admitted to practice law in another jurisdiction to
perform services on a temporary basis in this jurisdiction if those services are in or reasonably
related to a pending or potential arbitration, mediation, or other alternative dispute resolution
proceeding in this or another jurisdiction, if the services arise out of or are reasonably related
to the lawyer]'[s practice in a jurisdiction in which the lawyer is admitted to practice.
The lawyer, however, must obtain admission pro hac vice in the case of a court-annexed
arbitration or mediation or otherwise if court rules or law so require.
[13] Paragraph (c)(4) permits a lawyer admitted in another jurisdiction to provide certain legal
services on a temporary basis in this jurisdiction that arise out of or are reasonably related to
the lawyer]'[s practice in a jurisdiction in which the lawyer is admitted but are not
within paragraphs (c)(2) or (c)(3). These services include both legal services and services that
nonlawyers may perform but that are considered the practice of law when performed by
lawyers.
[14] Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably related
to the lawyer]'[s practice in a jurisdiction in which the lawyer is admitted. A variety
of factors evidence such a relationship. The lawyer]'[s client may have been previously
represented by the lawyer, or may be resident in or have substantial contacts with the
jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions,
may have a significant connection with that jurisdiction. In other cases, significant aspects of
the lawyer]'[s work might be conducted in that jurisdiction or a significant aspect of
the matter may involve the law of that jurisdiction. The necessary relationship might arise
when the client]'[s activities or the legal issues involve multiple jurisdictions, such as
when the officers of a multinational corporation survey potential business sites and seek the
services of their lawyer in assessing the relative merits of each. In addition, the services may
draw on the lawyer]'[s recognized expertise developed through the regular practice
of law on behalf of clients in matters involving a particular body of federal, nationally uniform,
foreign, or international law.
[15] Paragraph (d) identifies two circumstances in which a lawyer who is admitted to practice
in another United States jurisdiction, and is not disbarred or suspended from practice in any
jurisdiction, may establish an office or other systematic and continuous presence in this
jurisdiction for the practice of law as well as provide legal services on a temporary basis.
Except as provided in paragraphs (d)(1) and (d)(2), a lawyer who is admitted to practice law
in another jurisdiction and who establishes an office or other systematic or continuous presence
in this jurisdiction must become admitted to practice law generally in this jurisdiction.
[16] Paragraph (d)(1) applies to a lawyer who is employed by a client to provide legal services
to the client or its organizational affiliates, i.e., entities that control, are controlled by, or are
under common control with the employer. This paragraph does not authorize the provision of
personal legal services to the employer]'[s officers or employees. The paragraph
applies to in-house corporate lawyers, government lawyers and others who are employed to
render legal services to the employer. The lawyer]'[s ability to represent the employer
outside the jurisdiction in which the lawyer is licensed generally serves the interests of the
employer and does not create an unreasonable risk to the client and others because the
employer is well situated to assess the lawyer]'[s qualifications and the quality of the
lawyer]'[s work.
[17] If an employed lawyer establishes an office or other systematic presence in this jurisdiction
for the purpose of rendering legal services to the employer, the lawyer may be subject to
registration or other requirements, including assessments for client protection funds and
mandatory continuing legal education.
[18] Paragraph (d)(2) recognizes that a lawyer may provide legal services in a jurisdiction in
which the lawyer is not licensed when authorized to do so by federal or other law, which
includes statute, court rule, executive regulation or judicial precedent.
[19] A lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) or
otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5(a).
[20] In some circumstances, a lawyer who practices law in this jurisdiction pursuant to
paragraphs (c) or (d) may have to inform the client that the lawyer is not licensed to practice
law in this jurisdiction. For example, that may be required when the representation occurs
primarily in this jurisdiction and requires knowledge of the law of this jurisdiction. See Rule
1.4(b).
[21] Paragraphs (c) and (d) do not authorize communications advertising legal services to
prospective clients in this jurisdiction by lawyers who are admitted to practice in other
jurisdictions. Whether and how lawyers may communicate the availability of their services to
prospective clients in this jurisdiction is governed by Rules 7.1 to 7.5.]
Staff Comment: The proposed rule represents a substantial revision of the current rule. The proposed
rule is identical with the Model Rule, and is part of the multijurisdictional practice' (MJP) package that
was presented to the ABA by the Special Task Force on Multijurisdictional Practice. This rule has been
extensively rewritten to allow the states to gain disciplinary jurisdiction over lawyers licensed in other
states who are temporarily appearing in Michigan and sets specific guidelines for lawyers practicing in
this state without being licensed here, and works in conjunction with Rule 8.5 and another package of
proposals to fully implement the ABA MJP proposals. See MCL 600.916 and 600.946.
RULE 5.6 RESTRICTIONS ON RIGHT TO PRACTICE
A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar type of agreement
that restricts the right of a lawyer to practice after termination of the relationship, except an
agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer's right to practice is part of the
settlement of a client controversy.
[Comment
[1] An agreement restricting the right of lawyers to practice after leaving a firm not only limits
their professional autonomy but also limits the freedom of clients to choose a lawyer.
Paragraph (a) prohibits such agreements except for restrictions incident to provisions
concerning retirement benefits for service with the firm.
[2] Paragraph (b) prohibits a lawyer from agreeing not to represent other persons in
connection with settling a claim on behalf of a client.
[3] This Rule does not apply to prohibit restrictions that may be included in the terms of the
sale of a law practice pursuant to Rule 1.17.]
Staff Comment: This proposed rule is substantially similar to the current Michigan Rule and identical
to the Model Rule.
RULE 5.7 RESPONSIBILITIES REGARDING LAW-RELATED SERVICES
(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the
provision of law-related services, as defined in paragraph (b), if the law-related services are
provided:
(1) by the lawyer in circumstances that are not distinct from the lawyer's provision
of legal services to clients; or
(2) in other circumstances by an entity controlled by the lawyer individually or with
others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-
related services knows that the services are not legal services and that the protections of the
client-lawyer relationship do not exist.
(b) The term "law-related services" denotes services that might reasonably be performed in
conjunction with and in substance are related to the provision of legal services, and that are not
prohibited as unauthorized practice of law when provided by a nonlawyer.
[Comment
[1] When a lawyer performs law-related services or controls an organization that does so, there
exists the potential for ethical problems. Principal among these is the possibility that the person
for whom the law-related services are performed fails to understand that the services may not
carry with them the protections normally afforded as part of the client-lawyer relationship. The
recipient of the law-related services may expect, for example, that the protection of client
confidences, prohibitions against representation of persons with conflicting interests, and
obligations of a lawyer to maintain professional independence apply to the provision of law-
related services when that may not be the case.
[2] Rule 5.7 applies to the provision of law-related services by a lawyer even when the lawyer
does not provide any legal services to the person for whom the law-related services are
performed and whether the law-related services are performed through a law firm or a separate
entity. The Rule identifies the circumstances in which all of the Rules of Professional Conduct
apply to the provision of law-related services. Even when those circumstances do not exist,
however, the conduct of a lawyer involved in the provision of law-related services is subject to
those Rules that apply generally to lawyer conduct, regardless of whether the conduct involves
the provision of legal services. See, e.g., Rule 8.4.
[3] When law-related services are provided by a lawyer under circumstances that are not
distinct from the lawyer]'[s provision of legal services to clients, the lawyer in
providing the law-related services must adhere to the requirements of the Rules of Professional
Conduct as provided in paragraph (a)(1). Even when the law-related and legal services are
provided in circumstances that are distinct from each other, for example through separate
entities or different support staff within the law firm, the Rules of Professional Conduct apply
to the lawyer as provided in paragraph (a)(2) unless the lawyer takes reasonable measures to
assure that the recipient of the law-related services knows that the services are not legal
services and that the protections of the client-lawyer relationship do not apply.
[4] Law-related services also may be provided through an entity that is distinct from that
through which the lawyer provides legal services. If the lawyer individually or with others has
control of such an entity]'[s operations, the Rule requires the lawyer to take reasonable
measures to assure that each person using the services of the entity knows that the services
provided by the entity are not legal services and that the Rules of Professional Conduct that
relate to the client-lawyer relationship do not apply. A lawyer]'[s control of an entity
extends to the ability to direct its operation. Whether a lawyer has such control will depend
upon the circumstances of the particular case.
[5] When a client-lawyer relationship exists with a person who is referred by a lawyer to a
separate law-related service entity controlled by the lawyer, individually or with others, the
lawyer who complies with Rule 5.7 is not required to comply with Rule 1.8(a).
[6] In taking the reasonable measures referred to in paragraph (a)(2) to assure that a person
using law-related services understands the practical effect or significance of the inapplicability
of the Rules of Professional Conduct, the lawyer should communicate to the person receiving
the law-related services, in a manner sufficient to assure that the person understands the
significance of the fact, that the relationship of the person to the business entity will not be a
client-lawyer relationship. The communication should be made before entering into an
agreement for provision of or providing law-related services, and preferably should be in
writing.
[7] The burden is upon the lawyer to show that the lawyer has taken reasonable measures
under the circumstances to communicate the desired understanding. For instance, a
sophisticated user of law-related services, such as a publicly held corporation, may require a
lesser explanation than someone unaccustomed to making distinctions between legal services
and law-related services, such as an individual seeking tax advice from a lawyer-accountant
or investigative services in connection with a lawsuit.
[8] Regardless of the sophistication of potential recipients of law-related services, a lawyer
should take special care to keep separate the provision of law-related and legal services in
order to minimize the risk that the recipient will assume that the law-related services are legal
services. The risk of such confusion is especially acute when the lawyer renders both types of
services with respect to the same matter. Under some circumstances, the legal and law-related
services may be so closely entwined that they cannot be distinguished from each other, and the
requirement of disclosure and consultation imposed by paragraph (a)(2) of the Rule cannot be
met. In such a case a lawyer will be responsible for assuring that both the lawyer]'[s
conduct and, to the extent required by Rule 5.3, that of nonlawyer employees in the distinct
entity that the lawyer controls, comply in all respects with the Rules of Professional Conduct.
[9] A broad range of economic and other interests of clients may be served by
lawyers]'[ engaging in the delivery of law-related services. Examples of law-related
services include providing title insurance, financial planning, accounting, trust services, real
estate counseling, legislative lobbying, economic analysis, social work, psychological
counseling, tax preparation, and patent, medical, or environmental consulting.
[10] When a lawyer is obliged to accord the recipients of such services the protections of those
Rules that apply to the client-lawyer relationship, the lawyer must take special care to heed the
proscriptions of the Rules addressing conflict of, and to scrupulously adhere to the
requirements of Rule 1.6 relating to disclosure of confidential information. The promotion of
the law-related services must also in all respects comply with Rules 7.1 through 7.3, dealing
with advertising and solicitation. In that regard, lawyers should take special care to identify
the obligations that may be imposed as a result of a jurisdiction]'[s decisional law.
[11] When the full protections of all of the Rules of Professional Conduct do not apply to the
provision of law-related services, principles of law external to the Rules, for example, the law
of principal and agent, govern the legal duties owed to those receiving the services. Those
other legal principles may establish a different degree of protection for the recipient with
respect to confidentiality of information, conflicts of interest, and permissible business
relationships with clients. See also Rule 8.4 (Misconduct).]
Staff Comment: This proposed rule has no counterpart in the current Michigan rules. It is identical to
the Model Rule.
PUBLIC SERVICE
RULE 6.1 VOLUNTARY PRO BONO PUBLICO SERVICE
Every lawyer has a professional responsibility to provide legal services to those unable to pay.
A lawyer should aspire to render at least 30 hours or 3 cases of pro bono publico legal services
per year, or contribute $300 per year to entities performing pro bono publico services. In
fulfilling this responsibility, the lawyer should:
(a) provide a substantial majority of the 30 hours (or 3 cases) of legal services without fee
or expectation of fee to:
(1) persons of limited means or
(2) charitable, religious, civic, community, governmental and educational
organizations in matters that are designed primarily to address the needs of persons of limited
means; and
(b) provide any additional services through:
(1) delivery of legal services at no fee or substantially reduced fee to individuals,
groups or organizations seeking to secure or protect civil rights, civil liberties or public rights,
or charitable, religious, civic, community, governmental and educational organizations in
matters in furtherance of their organizational purposes, where the payment of standard legal fees
would significantly deplete the organization's economic resources or would be otherwise
inappropriate;
(2) delivery of legal services at a substantially reduced fee to persons of limited
means; or
(3) participation in activities for improving the law, the legal system or the legal
profession.
In addition, a lawyer should voluntarily contribute financial support to organizations that
provide legal services to persons of limited means.
[Comment
[1] Every lawyer, regardless of professional prominence or professional work load, has a
responsibility to provide legal services to those unable to pay, and personal involvement in the
problems of the disadvantaged can be one of the most rewarding experiences in the life of a
lawyer. It is recognized that in some years a lawyer may render greater or fewer hours than
the annual standard specified, but during the course of his or her legal career, each lawyer
should render on average per year, the number of hours set forth in this Rule. Services can be
performed in civil matters or in criminal or quasi-criminal matters for which there is no
government obligation to provide funds for legal representation, such as post-conviction death
penalty appeal cases.
[2] Paragraphs (a)(1) and (2) recognize the critical need for legal services that exists among
persons of limited means by providing that a substantial majority of the legal services rendered
annually to the disadvantaged be furnished without fee or expectation of fee. Legal services
under these paragraphs consist of a full range of activities, including individual and class
representation, the provision of legal advice, legislative lobbying, administrative rule making
and the provision of free training or mentoring to those who represent persons of limited means.
The variety of these activities should facilitate participation by government lawyers, even when
restrictions exist on their engaging in the outside practice of law.
[3] Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify
for participation in programs funded by the Legal Services Corporation and those whose
incomes and financial resources are slightly above the guidelines utilized by such programs but
nevertheless, cannot afford counsel. Legal services can be rendered to individuals or to
organizations such as homeless shelters, battered women]'[s centers and food pantries
that serve those of limited means. The term "governmental organizations" includes, but is not
limited to, public protection programs and sections of governmental or public sector agencies.
[4] Because service must be provided without fee or expectation of fee, the intent of the lawyer
to render free legal services is essential for the work performed to fall within the meaning of
paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if
an anticipated fee is uncollected, but the award of statutory attorneys]'[ fees in a case
originally accepted as pro bono would not disqualify such services from inclusion under this
section. Lawyers who do receive fees in such cases are encouraged to contribute an
appropriate portion of such fees to organizations or projects that benefit persons of limited
means.
[5] While it is possible for a lawyer to fulfill the annual responsibility to perform pro bono
services exclusively through activities described in paragraphs (a)(1) and (2), to the extent that
any hours of service remained unfulfilled, the remaining commitment can be met in a variety
of ways as set forth in paragraph (b). Constitutional, statutory or regulatory restrictions may
prohibit or impede government and public sector lawyers and judges from performing the pro
bono services outlined in paragraphs (a)(1) and (2). Accordingly, where those restrictions
apply, government and public sector lawyers and judges may fulfill their pro bono
responsibility by performing services outlined in paragraph (b).
[6] Paragraph (b)(1) includes the provision of certain types of legal services to those whose
incomes and financial resources place them above limited means. It also permits the pro bono
lawyer to accept a substantially reduced fee for services. Examples of the types of issues that
may be addressed under this paragraph include First Amendment claims, Title VII claims, and
environmental protection claims. Additionally, a wide range of organizations may be
represented, including social service, medical research, cultural, and religious groups.
[7] Paragraph (b)(2) covers instances in which lawyers agree to and receive a modest fee for
furnishing legal services to persons of limited means. Participation in judicare programs and
acceptance of court appointments in which the fee is substantially below a lawyer]'[s
usual rate are encouraged under this section.
[8] Paragraph (b)(3) recognizes the value of lawyers engaging in activities that improve the
law, the legal system or the legal profession. Serving on bar association committees, serving
on boards of pro bono or legal services programs, taking part in Law Day activities, acting as
a continuing legal education instructor, a mediator, or an arbitrator and engaging in legislative
lobbying to improve the law, the legal system, or the profession are a few examples of the many
activities that fall within this paragraph.
[9] Because the provision of pro bono services is a professional responsibility, it is the
individual ethical commitment of each lawyer. Nevertheless, there may be times when it is not
feasible for a lawyer to engage in pro bono services. At such times a lawyer may discharge the
pro bono responsibility by providing financial support to organizations providing free legal
services to persons of limited means. Such financial support should be reasonably equivalent
to the value of the hours of service that would have otherwise been provided. In addition, at
times it may be more feasible to satisfy the pro bono responsibility collectively, as by a
firm]'[s aggregate pro bono activities.
[10] Because the efforts of individual lawyers are not enough to meet the need for free legal
services that exists among persons of limited means, the government and the profession have
instituted additional programs to provide those services. Every lawyer should financially
support such programs, in addition to either providing direct pro bono services or making
financial contributions when pro bono service is not feasible.
[11] Law firms should act reasonably to enable and encourage all lawyers in the firm to
provide the pro bono legal services called for by this Rule.
[12] The responsibility set forth in this Rule is not intended to be enforced through disciplinary
process.]
Staff Comment: This proposed rule is new. The current rule is amended to provide more specific
guidance regarding the number of hours, the number of cases, or the amount of money that a lawyer in
Michigan "should aspire to render" annually. The State Bar Representative Assembly recommended
adopting the Model Rule with Michigan's traditional standard of pro bono publico service a voluntary
"3/30/300" standard, which was adopted in 1990, instead of the 50 hours stipulated by the Model Rule.
RULE 6.2 ACCEPTING APPOINTMENTS
A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good
cause, such as:
(a) representing the client is likely to result in violation of the Rules of Professional Conduct
or other law;
(b) representing the client is likely to result in an unreasonable financial burden on the
lawyer; or
(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-
lawyer relationship or the lawyer's ability to represent the client.
[Comment
[1] A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer
regards as repugnant. The lawyer]'[s freedom to select clients is, however, qualified.
All lawyers have a responsibility to assist in providing pro bono publico service. See Rule 6.1.
An individual lawyer fulfills this responsibility by accepting a fair share of unpopular matters
or indigent or unpopular clients. A lawyer may also be subject to appointment by a court to
serve unpopular clients or persons unable to afford legal services.
Appointed Counsel
[2] For good cause a lawyer may seek to decline an appointment to represent a person who
cannot afford to retain counsel or whose cause is unpopular. Good cause exists if the lawyer
could not handle the matter competently, see Rule 1.1, or if undertaking the representation
would result in an improper conflict of interest, for example, when the client or the cause is so
repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the
lawyer]'[s ability to represent the client. A lawyer may also seek to decline an
appointment if acceptance would be unreasonably burdensome, for example, when it would
impose a financial sacrifice so great as to be unjust.
[3] An appointed lawyer has the same obligations to the client as retained counsel, including
the obligations of loyalty and confidentiality, and is subject to the same limitations on the client-
lawyer relationship, such as the obligation to refrain from assisting the client in violation of the
Rules.
]
Staff Comment: This rule is identical to the current Michigan rule and to the Model Rule.
RULE 6.3 LEGAL SERVICES ORGANIZATIONS AND LAWYER REFERRAL
SERVICES
(a) A lawyer may serve as a director, officer, or member of a legal services organization,
apart from the law firm in which the lawyer practices, notwithstanding that the organization
serves persons having interests adverse to a client of the lawyer. The lawyer shall not
knowingly participate in a decision or action of the organization:
(1) if participating in the decision or action would be incompatible with the lawyer's
obligations to a client under Rule 1.7; or
(2) where the decision or action could have a material adverse effect on the
representation of a client of the organization whose interests are adverse to a client of the
lawyer.
(b) A lawyer may participate in and pay the usual charges of a not-for profit lawyer referral
service that recommends legal services to the public if that service:
(1) maintains registration as a qualified service with the State Bar, under such rules
as may be adopted by the State Bar, consistent with these rules;
(2) is operated in the public interest for the purpose of referring prospective clients
to lawyers; pro bono and public service legal programs; and government, consumer or other
agencies that can best provide the assistance needed by clients, in light of their financial
circumstances, spoken language, any disability, geographical convenience, and the nature and
complexity of their problems;
(3) is open to all lawyers licensed and eligible to practice in this state who maintain
an office within the geographical area served, and who:
(i) meet reasonable and objective requirements of experience, as established
by the service;
(ii) pay reasonable registration and membership fees not to exceed an amount
established by the State Bar to encourage widespread lawyer participation; and
(iii) maintain a policy of errors and omissions insurance, or provide proof of
financial responsibility, in an amount at least equal to the minimum established by the State Bar;
(4) ensures that the combined fees and expenses charged a prospective client by a
qualified service and a lawyer to whom the client is referred not exceed the total charges the
client would have incurred had no referral service been involved; and
(5) makes no fee-generating referrals to any lawyer who has an ownership interest in,
or who operates or is employed by, the qualified service, or who is associated with a law firm
that has an ownership interest in, or operates or is employed by, a qualified service.
(c) The requirements of paragraph (b) do not apply to:
(1) a plan of prepaid legal services insurance authorized to operate in the state, or a
group or prepaid legal plan, whether operated by a union, trust, mutual benefit or aid
association, corporation or other entity or person, which provides unlimited or a specified
amount of telephone advice or personal communications at no charge to the members or
beneficiaries, other than a periodic membership or beneficiary fee, and furnishes to or pays for
legal services for its members or beneficiaries;
(2) individual lawyer-to-lawyer referrals;
(3) lawyers jointly advertising their services in a manner that discloses that such
advertising is solely to solicit clients for themselves; or
(4) any pro bono legal assistance program that does not accept fees from lawyers or
clients for referrals.
(d) The State Bar or any aggrieved person may seek an injunction in the circuit court to
enjoin violations of paragraph (b). In the event the injunction is granted, the petitioner shall be
entitled to reasonable costs and attorney fees.
(e) A lawyer may participate in and pay the usual charges of a plan or organization defined
in paragraph (c)(1), if that plan or organization:
(1) has filed with the State Bar of Michigan a written plan disclosing the name under
which it operates; the name, address, and telephone number of its chief operating officer; and
the plan terms, conditions of eligibility, schedule of benefits, subscription charges and
agreements with counsel;
(2) updates its filings within 30 days of any material change;
(3) in January of each year following its inception files a statement representing that
it continues to do business under the terms and conditions reflected in its filings as amended to
date.
These filing requirements shall not apply to not-for-profit legal aid associations.
[Comment
[1] Lawyers should be encouraged to support and participate in legal service organizations.
A lawyer who is an officer or a member of such an organization does not thereby have a client-
lawyer relationship with persons served by the organization. However, there is potential
conflict between the interests of such persons and the interests of the lawyer]'[s clients.
If the possibility of such conflict disqualified a lawyer from serving on the board of a legal
services organization, the profession]'[s involvement in such organizations would be
severely curtailed.
[2] It may be necessary in appropriate cases to reassure a client of the organization that the
representation will not be affected by conflicting loyalties of a member of the board.
Established, written policies in this respect can enhance the credibility of such
assurances.]
Staff Comment: No changes to this rule are proposed. This has been Michigan's rule regarding legal
service organizations and lawyer referral services since 1998, and the State Bar Ethics Committee and
Representative Assembly recommended that the rule be continued unchanged and that the Model Rule
be rejected.
RULE 6.4 LAW REFORM ACTIVITIESAFFECTING CLIENT INTERESTS
A lawyer may serve as a director, officer or member of an organization involved in reform of
the law or its administration notwithstanding that the reform may affect the interests of a client
of the lawyer. When the lawyer knows that the interests of a client may be materially benefited
by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not
identify the client.
[Comment]
[[1] Lawyers involved in organizations seeking law reform generally do not have a client-
lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not
be involved in a bar association law reform program that might indirectly affect a client. See
also Rule 1.2(b). For example, a lawyer specializing in antitrust litigation might be regarded
as disqualified from participating in drafting revisions of rules governing that subject. In
determining the nature and scope of participation in such activities, a lawyer should be mindful
of obligations to clients under other Rules, particularly Rule 1.7. A lawyer is professionally
obligated to protect the integrity of the program by making an appropriate disclosure within
the organization when the lawyer knows a private client might be materially benefited.]
Staff Comment: This rule is identical to the current Michigan rule and to the Model Rule.
RULE 6.5 NONPROFIT AND COURT-ANNEXED LIMITED LEGAL
SERVICES PROGRAMS
(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization
or court, provides short-term limited legal services to a client without expectation by either the
lawyer or the client that the lawyer will provide continuing representation in the matter:
(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation
of the client involves a conflict of interest; and
(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated
with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation
governed by this Rule.
[Comment
[1] Legal services organizations, courts and various nonprofit organizations have established
programs through which lawyers provide short-term limited legal services such as advice or
the completion of legal forms that will assist persons to address their legal problems without
further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-
only clinics, or pro se counseling programs, a client-lawyer relationship is established, but
there is no expectation that the lawyer]'[s representation of the client will continue
beyond the limited consultation. Such programs are normally operated under circumstances
in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is
generally required before undertaking a representation. See, e.g., Rules 1.7, 1.9 and 1.10.
[2] A lawyer who provides short-term limited legal services pursuant to this Rule must secure
the client]'[s informed consent to the limited scope of the representation. See Rule
1.2(c). If a short-term limited representation would not be reasonable under the circumstances,
the lawyer may offer advice to the client but must also advise the client of the need for further
assistance of counsel. Except as provided in this Rule, the Rules of Professional Conduct,
including Rules 1.6 and 1.9(c), are applicable to the limited representation.
[3] Because a lawyer who is representing a client in the circumstances addressed by this Rule
ordinarily is not able to check systematically for conflicts of interest, paragraph (a) requires
compliance with Rules 1.7 or 1.9(a) only if the lawyer knows that the representation presents
a conflict of interest for the lawyer, and with Rule 1.10 only if the lawyer knows that another
lawyer in the lawyer]'[s firm is disqualified by Rules 1.7 or 1.9(a) in the matter.
[4] Because the limited nature of the services significantly reduces the risk of conflicts of
interest with other matters being handled by the lawyer]'[s firm, paragraph (b)
provides that Rule 1.10 is inapplicable to a representation governed by this Rule except as
provided by paragraph (a)(2). Paragraph (a)(2) requires the participating lawyer to comply
with Rule 1.10 when the lawyer knows that the lawyer]'[s firm is disqualified by Rules
1.7 or 1.9(a). By virtue of paragraph (b), however, a lawyer]'[s participation in a
short-term limited legal services program will not preclude the lawyer]'[s firm from
undertaking or continuing the representation of a client with interests adverse to a client being
represented under the program]'[s auspices. Nor will the personal disqualification of
a lawyer participating in the program be imputed to other lawyers participating in the program.
[5] If, after commencing a short-term limited representation in accordance with this Rule, a
lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 1.7, 1.9(a)
and 1.10 become applicable.]
Staff Comment: This proposed rule is new. It is identical with the Model Rule and is intended to offer
short-term legal services entities (such as Help Desks in courthouses) the ability to offer basic legal
services and advice without doing conflict of interest checks or waivers. The State Bar Ethics
Committee recommended this proposed rule in order to improve the provision of basic legal services
to the public.
RULE 6.6PROFESSIONAL CONDUCT
(a) A lawyer shall treat with courtesy and respect all persons involved in the legal process.
A lawyer shall take particular care to avoid treating such a person discourteously or
disrespectfully because of the person's race, gender, or other protected personal characteristic.
To the extent possible, a lawyer shall require subordinate lawyers and nonlawyer assistants to
provide such courteous and respectful treatment.
(b) A lawyer serving as an adjudicative officer shall, without regard to a person's race,
gender, or other protected personal characteristic, treat every person fairly, with courtesy and
respect. To the extent possible, the lawyer shall require staff and others who are subject to the
adjudicative officer's direction and control to provide such fair, courteous, and respectful
treatment to persons who have contact with the adjudicative tribunal.
[Comment
[1] A lawyer is an officer of the court who has sworn to uphold the federal and state
constitutions, to proceed only by means that are truthful and honorable, and to avoid offensive
personality. It follows that such a professional must treat clients and third persons with
courtesy and respect. For many citizens, contact with a lawyer is the first or only contact with
the legal system. Respect for law and for legal institutions is diminished whenever a lawyer
neglects the obligation to treat persons properly. It is increased when the obligation is met.
[2] A lawyer must pursue a client]'[s interests with diligence. This often requires the
lawyer to frame questions and statements in bold and direct terms. The obligation to treat
persons with courtesy and respect is not inconsistent with the lawyer]'[s right, where
appropriate, to speak and write bluntly. Obviously, it is not possible to formulate a rule that
will clearly divide what is properly challenging from what is impermissibly rude. A
lawyer]'[s professional judgment must be employed here with care and discretion.
[3] A lawyer must take particular care to avoid words or actions that appear to be improperly
based upon a person]'[s race, gender, or other protected personal characteristic.
Legal institutions, and those who serve them, should take leadership roles in assuring equal
treatment for all.
[4] A judge must act ]"[[a]t all times]"[ in a manner that promotes public
confidence in the impartiality of the judiciary. Canon 2(B) of the Code of Judicial Conduct.
See also Canon 5. By contrast, a lawyer]'[s private conduct is largely beyond the
scope of these rules. See Rule 8.4. However, a lawyer]'[s private conduct should not
cast doubt on the lawyer]'[s commitment to equal justice under law.
[5] A supervisory lawyer should make every reasonable effort to ensure that subordinate
lawyers and nonlawyer assistants, as well as other agents, avoid discourteous or disrespectful
behavior toward persons involved in the legal process. Further, a supervisory lawyer should
make reasonable efforts to ensure that the firm has in effect policies and procedures that do not
discriminate against members or employees of the firm on the basis of race, gender, or other
protected personal characteristic. See Rules 5.1 and 5.3.
Duties of Adjudicative Officers
[6] The duties of an adjudicative officer are included in these rules, since many legislatively
created adjudicative positions, such as administrative hearing officer, are not covered by the
Code of Judicial Conduct. For parallel provisions for judges, see the Code of Judicial Conduct.
]
Staff Comment: The proposed rule is current Rule 6.5. There is no comparable Model Rule.
INFORMATION ABOUT LEGAL SERVICES
RULE 7.1 COMMUNICATIONS CONCERNING A LAWYER'S
SERVICES
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's
services. A communication is false or misleading if it:
(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the
statement considered as a whole not materially misleading;
(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states
or implies that the lawyer can achieve results by means that violate the Rules of Professional
Conduct or other law; or
(c) compares the lawyer's services with other lawyers' services, unless the comparison can
be factually substantiated.
[Comment
[1] This Rule governs all communications about a lawyer]'[s services, including
advertising permitted by Rule 7.2. Whatever means are used to make known a
lawyer]'[s services, statements about them must be truthful.
[2] Truthful statements that are misleading are also prohibited by this Rule. A truthful
statement is misleading if it omits a fact necessary to make the lawyer]'[s
communication considered as a whole not materially misleading. A truthful statement is also
misleading if there is a substantial likelihood that it will lead a reasonable person to formulate
a specific conclusion about the lawyer or the lawyer]'[s services for which there is no
reasonable factual foundation.
[3] An advertisement that truthfully reports a lawyer]'[s achievements on behalf of
clients or former clients may be misleading if presented so as to lead a reasonable person to
form an unjustified expectation that the same results could be obtained for other clients in
similar matters without reference to the specific factual and legal circumstances of each
client]'[s case. Similarly, an unsubstantiated comparison of the lawyer]'[s
services or fees with the services or fees of other lawyers may be misleading if presented with
such specificity as would lead a reasonable person to conclude that the comparison can be
substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude
a finding that a statement is likely to create unjustified expectations or otherwise mislead a
prospective client.
[4] See also Rule 8.4(e) for the prohibition against stating or implying an ability to influence
improperly a government agency or official or to achieve results by means that violate the Rules
of Professional Conduct or other law.
]
Staff Comment: This proposed rule is substantially similar to the current MRPC, with some
simplification of the language in the introductory paragraph. The Model Rule is does not contain the
text at paragraphs (b) and (c). The State Bar Ethics Committee found these paragraphs to be helpful
additions to the advertising rules, which follow.
RULE 7.2 ADVERTISING
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through
written, recorded or electronic communication, including public media.
(b) A lawyer shall not give anything of value to a person for recommending the lawyer's
services except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted by this
Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer
referral service. A qualified lawyer referral service is a lawyer referral service that has been
approved by an appropriate regulatory authority;
(3) pay for a law practice in accordance with Rule 1.17; and
(4) refer clients to another lawyer or a nonlawyer professional pursuant to an
agreement not otherwise prohibited under these Rules that provides for the other person to refer
clients or customers to the lawyer, if
(i) the reciprocal referral agreement is not exclusive, and
(ii) the client is informed of the existence and nature of the agreement.
(c) Any communication made pursuant to this rule shall include the name and office address
of at least one lawyer or law firm responsible for its content.
[Comment
[1] To assist the public in obtaining legal services, lawyers should be allowed to make known
their services not only through reputation but also through organized information campaigns
in the form of advertising. Advertising involves an active quest for clients, contrary to the
tradition that a lawyer should not seek clientele. However, the public]'[s need to know
about legal services can be fulfilled in part through advertising. This need is particularly acute
in the case of persons of moderate means who have not made extensive use of legal services.
The interest in expanding public information about legal services ought to prevail over
considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices
that are misleading or overreaching.
[2] This Rule permits public dissemination of information concerning a lawyer]'[s
name or firm name, address and telephone number; the kinds of services the lawyer will
undertake; the basis on which the lawyer]'[s fees are determined, including prices for
specific services and payment and credit arrangements; a lawyer]'[s foreign language
ability; names of references and, with their consent, names of clients regularly represented; and
other information that might invite the attention of those seeking legal assistance.
[3] Questions of effectiveness and taste in advertising are matters of speculation and subjective
judgment. Some jurisdictions have had extensive prohibitions against television advertising,
advertising going beyond specified facts about a lawyer, or "undignified" advertising.
Television is now one of the most powerful media for getting information to the public,
particularly to persons of low and moderate income; prohibiting television advertising,
therefore, would impede the flow of information about legal services to many sectors of the
public. Limiting the information that may be advertised has a similar effect and assumes that
the bar can accurately forecast the kind of information that the public would regard as relevant.
Similarly, electronic media, such as the Internet, can be an important source of information
about legal services, and lawful communication by electronic mail is permitted by this Rule.
But see Rule 7.3(a) for the prohibition against the solicitation of a prospective client through
a real-time electronic exchange that is not initiated by the prospective client.
[4] Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as notice
to members of a class in class action litigation.
Paying Others to Recommend a Lawyer
[5] Lawyers are not permitted to pay others for channeling professional work. Paragraph
(b)(1), however, allows a lawyer to pay for advertising and communications permitted by this
Rule, including the costs of print directory listings, on-line directory listings, newspaper ads,
television and radio airtime, domain-name registrations, sponsorship fees, banner ads, and
group advertising. A lawyer may compensate employees, agents, and vendors who are engaged
to provide marketing or client-development services, such as publicists, public-relations
personnel, business-development staff, and website designers. See Rule 5.3 for the duties of
lawyers and law firms with respect to the conduct of nonlawyers who prepare marketing
materials for them.
[6] A lawyer may pay the usual charges of a legal service plan or a not-for-profit or qualified
lawyer referral service. A legal service plan is a prepaid or group legal service plan or a
similar delivery system that assists prospective clients to secure legal representation. A lawyer
referral service, on the other hand, is any organization that holds itself out to the public as a
lawyer referral service. Such referral services are understood by laypersons to be consumer-
oriented organizations that provide unbiased referrals to lawyers with appropriate experience
in the subject matter of the representation and afford other client protections, such as complaint
procedures or malpractice insurance requirements. Consequently, this Rule only permits a
lawyer to pay the usual charges of a not-for-profit or qualified lawyer referral service. A
qualified lawyer referral service is one that is approved by an appropriate regulatory authority
as affording adequate protections for prospective clients. See, e.g., the American Bar
Association]'[s Model Supreme Court Rules Governing Lawyer Referral Services and
Model Lawyer Referral and Information Service Quality Assurance Act (requiring that
organizations that are identified as lawyer referral services (i) permit the participation of all
lawyers who are licensed and eligible to practice in the jurisdiction and who meet reasonable
objective eligibility requirements as may be established by the referral service for the protection
of prospective clients; (ii) require each participating lawyer to carry reasonably adequate
malpractice insurance; (iii) act reasonably to assess client satisfaction and address client
complaints; and (iv) do not refer prospective clients to lawyers who own, operate, or are
employed by the referral service.)
[7] A lawyer who accepts assignments or referrals from a legal service plan or referrals from
a lawyer referral service must act reasonably to assure that the activities of the plan or service
are compatible with the lawyer]'[s professional obligations. See Rule 5.3. Legal
service plans and lawyer referral services may communicate with prospective clients, but such
communication must be in conformity with these Rules. Thus, advertising must not be false or
misleading, as would be the case if the communications of a group advertising program or a
group legal services plan would mislead prospective clients to think that it was a lawyer
referral service sponsored by a state agency or bar association. Nor could the lawyer allow
in-person, telephonic, or real-time contacts that would violate Rule 7.3.
[8] A lawyer also may agree to refer clients to another lawyer or a nonlawyer professional, in
return for the undertaking of that person to refer clients or customers to the lawyer. Such
reciprocal referral arrangements must not interfere with the lawyer]'[s professional
judgment as to making referrals or as to providing substantive legal services. See Rules 2.1 and
5.4(c). Except as provided in Rule 1.5(e), a lawyer who receives referrals from a lawyer or
nonlawyer professional must not pay anything solely for the referral, but the lawyer does not
violate paragraph (b) of this Rule by agreeing to refer clients to the other lawyer or nonlawyer
professional, so long as the reciprocal referral agreement is not exclusive and the client is
informed of the referral agreement. Conflicts of interest created by such arrangements are
governed by Rule 1.7. Reciprocal referral agreements should not be of indefinite duration and
should be reviewed periodically to determine whether they comply with these Rules. This Rule
does not restrict referrals or divisions of revenues or net income among lawyers within firms
comprised of multiple entities.
]
Staff Comment: This proposed rule is a new rule that is identical to the Model Rule. The text of
paragraph (b) prohibiting the giving of anything of value in exchange for a recommendation, with
several exceptions was formerly in paragraph (c). The second exception has been amended to make
it more in keeping with ABA policy on lawyer referral services. The fourth exception is new. It allows
lawyers to have referral agreements, as long as the arrangement is not exclusive and the client is
informed of the existence and nature of the agreement. The State Bar Ethics Committee felt that the
proposed rule provides a clearer definition of constitutionally permitted advertising for lawyers.
RULE 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENTS
(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit
professional employment from a prospective client when a significant motive for the lawyer's
doing so is the lawyer's pecuniary gain, unless the person contacted:(1) is a lawyer; or
(2) has a family, close personal, or prior professional relationship with the lawyer.
(b) A lawyer shall not solicit professional employment from a prospective client by written,
recorded or electronic communication or by in-person, telephone or real-time electronic contact
even when not otherwise prohibited by paragraph (a), if:
(1) the prospective client has made known to the lawyer a desire not to be solicited
by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.
(c) Every written, recorded or electronic communication from a lawyer soliciting
professional employment from a prospective client known to be in need of legal services in a
particular matter shall include the words "Advertising Material" on the outside of a mailing, if
mail is used, and at the beginning and ending of any recorded, electronic, or written
communication, unless the recipient of the communication is a person specified in paragraphs
(a)(1) or (a)(2).
(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a
prepaid or group legal service plan operated by an organization not owned or directed by the
lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the
plan from persons who are not known to need legal services in a particular matter covered by
the plan.
[Comment
[1] There is a potential for abuse inherent in direct in-person, live telephone, or real-time
electronic contact by a lawyer with a prospective client known to need legal services. These
forms of contact between a lawyer and a prospective client subject the layperson to the private
importuning of the trained advocate in a direct interpersonal encounter. The prospective client,
who may already feel overwhelmed by the circumstances giving rise to the need for legal
services, may find it difficult to fully evaluate all available alternatives with reasoned judgment
and appropriate self-interest in the face of the lawyer]'[s presence and insistence upon
being retained immediately. The situation is fraught with the possibility of undue influence,
intimidation, and over-reaching.
[2] This potential for abuse inherent in direct in-person, live telephone or real-time electronic
solicitation of prospective clients justifies its prohibition, particularly since lawyer advertising
and written and recorded communication permitted under Rule 7.2 offer alternative means of
conveying necessary information to those who may be in need of legal services. Advertising
and written and recorded communications which may be mailed or autodialed make it possible
for a prospective client to be informed about the need for legal services, and about the
qualifications of available lawyers and law firms, without subjecting the prospective client to
direct in-person, telephone or real-time electronic persuasion that may overwhelm the
client]'[s judgment.
[3] The use of general advertising and written, recorded or electronic communications to
transmit information from lawyer to prospective client, rather than direct in-person, live
telephone or real-time electronic contact, will help to assure that the information flows cleanly
as well as freely. The contents of advertisements and communications permitted under Rule 7.2
can be permanently recorded so that they cannot be disputed and may be shared with others
who know the lawyer. This potential for informal review is itself likely to help guard against
statements and claims that might constitute false and misleading communications, in violation
of Rule 7.1. The contents of direct in-person, live telephone, or real-time electronic
conversations between a lawyer and a prospective client can be disputed and may not be
subject to third-party scrutiny. Consequently, they are much more likely to approach (and
occasionally cross) the dividing line between accurate representations and those that are false
and misleading.
[4] There is far less likelihood that a lawyer would engage in abusive practices against an
individual who is a former client, or with whom the lawyer has close personal or family
relationship, or in situations in which the lawyer is motivated by considerations other than the
lawyer]'[s pecuniary gain. Nor is there a serious potential for abuse when the person
contacted is a lawyer. Consequently, the general prohibition in Rule 7.3(a) and the
requirements of Rule 7.3(c) are not applicable in those situations. Also, paragraph (a) is not
intended to prohibit a lawyer from participating in constitutionally protected activities of public
or charitable legal-service organizations or bona fide political, social, civic, fraternal,
employee, or trade organizations whose purposes include providing or recommending legal
services to their members or beneficiaries.
[5] But even permitted forms of solicitation can be abused. Thus, any solicitation that contains
information that is false or misleading within the meaning of Rule 7.1, that involves coercion,
duress or harassment within the meaning of Rule 7.3(b)(2), or that involves contact with a
prospective client who has made known to the lawyer a desire not to be solicited by the lawyer
within the meaning of Rule 7.3(b)(1) is prohibited. Moreover, if, after sending a letter or other
communication to a client as permitted by Rule 7.2, the lawyer receives no response, any further
effort to communicate with the prospective client may violate the provisions of Rule 7.3(b).
[6] This Rule is not intended to prohibit a lawyer from contacting representatives of
organizations or groups that may be interested in establishing a group or prepaid legal plan
for their members, insureds, beneficiaries or other third parties for the purpose of informing
such entities of the availability of and details concerning the plan or arrangement that the
lawyer or lawyer]'[s firm is willing to offer. This form of communication is not
directed to a prospective client. Rather, it is usually addressed to an individual acting in a
fiduciary capacity seeking a supplier of legal services for others who may, if they choose,
become prospective clients of the lawyer. Under these circumstances, the activity that the
lawyer undertakes in communicating with such representatives and the type of information
transmitted to the individual are functionally similar to, and serve the same purpose as,
advertising permitted under Rule 7.2.
[7] The requirement in Rule 7.3(c) that certain communications be marked "Advertising
Material" does not apply to communications sent in response to requests of potential clients
or their spokespersons or sponsors. General announcements by lawyers, including changes in
personnel or office location, do not constitute communications soliciting professional
employment from a client known to be in need of legal services within the meaning of this Rule.
[8] Paragraph (d) of this Rule permits a lawyer to participate with an organization that uses
personal contact to solicit members for its group or prepaid legal service plan, provided that
the personal contact is not undertaken by any lawyer who would be a provider of legal services
through the plan. The organization must not be owned by or directed (whether as manager or
otherwise) by any lawyer or law firm that participates in the plan. For example, paragraph (d)
would not permit a lawyer to create an organization controlled directly or indirectly by the
lawyer and use the organization for the in-person or telephone solicitation of legal employment
of the lawyer through memberships in the plan or otherwise. The communication permitted by
these organizations also must not be directed to a person known to need legal services in a
particular matter, but is to be designed to inform potential plan members generally of another
means of obtaining affordable legal services. Lawyers who participate in a legal service plan
must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2, and
7.3(b). See 8.4(a).]
Staff Comment: This is a new rule, generally prohibiting "live" solicitation of clients, including "real-
time electronic contact" (chat rooms), "when a significant motive for the lawyer's doing so is the
lawyer's pecuniary gain." There is an exception if the person who is contacted is a lawyer, or has a
family, close personal, or prior professional relationship with the lawyer, as long as the person has not
communicated a desire not to be contacted and as long as the communication does not involve coercion,
duress, or harassment. The rule allows written, recorded, or electronic communication unless, again,
the recipient has communicated a desire not to be contacted or the communication involves coercion,
duress or harassment. Paragraph (c) requires the inclusion of the words "Advertising Material" in a
solicitation, unless the communication is to a lawyer or related person. Paragraph (d) is a special
exception for prepaid or group legal services plans. It allows the use of in-person or telephone contact
to solicit memberships or subscriptions for the plan, as long as contacts are made with persons who are
not known to need legal services. The proposed rule is substantially similar to the new Model Rule.
RULE 7.4 COMMUNICATION OF FIELDS OF PRACTICE AND
SPECIALIZATION
(a) A lawyer may communicate the fact that the lawyer does or does not practice in particular
fields of law.
(b) A lawyer admitted to engage in patent practice before the United States Patent and
Trademark Office may use the designation "Patent Attorney" or a substantially similar
designation.
(c) A lawyer engaged in Admiralty practice may use the designation "Admiralty," "Proctor
in Admiralty" or a substantially similar designation.
(d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular
field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been
approved by an appropriate state authority or that has been accredited by the American Bar
Association; and
(2) the name of the certifying organization is clearly identified in the communication.
[
Comment
[1] Paragraph (a) of this Rule permits a lawyer to indicate areas of practice in communications
about the lawyer]'[s services. If a lawyer practices only in certain fields, or will not
accept matters except in a specified field or fields, the lawyer is permitted to so indicate. A
lawyer is generally permitted to state that the lawyer is a "specialist," practices a "specialty,"
or "specializes in" particular fields, but such communications are subject to the "false and
misleading" standard applied in Rule 7.1 to communications concerning a lawyer]'[s
services.
[2] Paragraph (b) recognizes the long-established policy of the Patent and Trademark Office
for the designation of lawyers practicing before the Office. Paragraph (c) recognizes that
designation of Admiralty practice has a long historical tradition associated with maritime
commerce and the federal courts.
[3] Paragraph (d) permits a lawyer to state that the lawyer is certified as a specialist in a field
of law if such certification is granted by an organization approved by an appropriate state
authority or accredited by the American Bar Association or another organization, such as a
state bar association, that has been approved by the state authority to accredit organizations
that certify lawyers as specialists. Certification signifies that an objective entity has recognized
an advanced degree of knowledge and experience in the specialty area greater than is
suggested by general licensure to practice law. Certifying organizations may be expected to
apply standards of experience, knowledge and proficiency to insure that a lawyer]'[s
recognition as a specialist is meaningful and reliable. In order to insure that consumers can
obtain access to useful information about an organization granting certification, the name of
the certifying organization must be included in any communication regarding the certification.
]
Staff Comment: This proposed rule is a significantly expanded version of the current rule, which is
paragraph (a) of the proposed rule. The additional provisions clarify that a lawyer may use the
designations "patent attorney" or "proctor in admiralty," and that a lawyer may state or imply that she
is a specialist in a particular field, under certain conditions. This rule is identical with the Model Rule,
except to add the words "and Specialization" to the title.
RULE 7.5 FIRM NAMES AND LETTERHEADS
(a) A lawyer shall not use a firm name, letterhead or other professional designation that
violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply
a connection with a government agency or with a public or charitable legal services organization
and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the same name or other
professional designation in each jurisdiction, but identification of the lawyers in an office of the
firm shall indicate the jurisdictional limitations on those not licensed to practice in the
jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in the name of a law firm,
or in communications on its behalf, during any substantial period in which the lawyer is not
actively and regularly practicing with the firm.
(d) Lawyers may state or imply that they practice in a partnership or other organization only
when that is the fact.
[Comment
[1] A firm may be designated by the names of all or some of its members, by the names of
deceased members where there has been a continuing succession in the firm]'[s
identity, or by a trade name such as the "ABC Legal Clinic." A lawyer or law firm may also
be designated by a distinctive website address or comparable professional designation.
Although the United States Supreme Court has held that legislation may prohibit the use of
trade names in professional practice, use of such names in law practice is acceptable so long
as it is not misleading. If a private firm uses a trade name that includes a geographical name
such as "Springfield Legal Clinic," an express disclaimer that it is a public legal aid agency
may be required to avoid a misleading implication. It may be observed that any firm name
including the name of a deceased partner is, strictly speaking, a trade name. The use of such
names to designate law firms has proven a useful means of identification. However, it is
misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm,
or the name of a nonlawyer.
[2] With regard to paragraph (d), lawyers who are sharing office facilities, but who are not in
fact associated with each other in a law firm, may not denominate themselves as, for example,
"Smith and Jones," for that title suggests that they are practicing law together in a firm.
]
Staff Comment: This proposed rule is identical to the current Michigan rule and to the Model Rule.
[MODEL RULE 7.6 POLITICAL CONTRIBUTIONS TO OBTAIN LEGAL
ENGAGMENTS OR APPOINTMENTS BY JUDGES]
[Staff Comment: The Representative Assembly voted to eliminate this Model Rule from the proposed
Michigan rules. The Model Rule is controversial around the country and is being rejected by many of
the states that have considered it.]
MAINTAINING THE INTEGRITY OF THE PROFESSION
RULE 8.1 BAR ADMISSION AND DISCIPLINARY MATTERS
(a) An applicant for admission to the bar, or a lawyer in connection with a bar admission
application or in connection with a disciplinary matter, shall not:
(1) knowingly make a false statement of material fact; or
(2) fail to disclose a fact necessary to correct a misapprehension known by the person
to have arisen in the matter, or knowingly fail to respond to a lawful demand for information
from an admission or disciplinary authority, except that this rule does not require disclosure of
information protected by Rule 1.6.
(b) An applicant for admission to the bar
(1) shall not engage in the unauthorized practice of law (this does not apply to
activities permitted under MCR 8.120), and
(2) has a continuing obligation, until the date of admission, to inform the standing
committee on character and fitness, in writing, if any answers in the applicant's affidavit of
personal history change or cease to be true.
[Comment
[1] The duty imposed by this Rule extends to persons seeking admission to the bar as well as
to lawyers. Hence, if a person makes a material false statement in connection with an
application for admission, it may be the basis for subsequent disciplinary action if the person
is admitted, and, in any event, may be relevant in a subsequent admission application. The duty
imposed by this Rule applies to a lawyer]'[s own admission or discipline as well as that
of others. Thus, it is a separate professional offense for a lawyer to knowingly make a
misrepresentation or omission in connection with a disciplinary investigation of the
lawyer]'[s own conduct. Paragraph (b) of this Rule also requires correction of any
prior misstatement in the matter that the applicant or lawyer may have made and affirmative
clarification of any misunderstanding on the part of the admissions or disciplinary authority
of which the person involved becomes aware.
[2] This Rule is subject to the provisions of the Fifth Amendment of the United States
Constitution and corresponding provisions of state constitutions. A person relying on such a
provision in response to a question, however, should do so openly and not use the right of
nondisclosure as a justification for failure to comply with this Rule.
[3] A lawyer representing an applicant for admission to the bar, or representing a lawyer who
is the subject of a disciplinary inquiry or proceeding, is governed by the rules applicable to the
client-lawyer relationship, including Rule 1.6 and, in some cases, Rule 3.3.
]
Staff Comment: Paragraph (a) is identical with the current Michigan rule (and the Model Rule).
Paragraph (b) continues the Michigan rule that was adopted by the Court in 2001 to address the issue
of bar applicants who engage in the practice of law before they are licensed.
RULE 8.2 JUDICIAL AND LEGAL OFFICIALS
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless
disregard as to its truth or falsity concerning the qualifications or integrity of a judge,
adjudicatory officer or public legal officer, or of a candidate for election or appointment to
judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable
provisions of the Code of Judicial Conduct.
[Comment
[1] Assessments by lawyers are relied on in evaluating the professional or personal fitness of
persons being considered for election or appointment to judicial office and to public legal
offices, such as attorney general, prosecuting attorney, and public defender. Expressing honest
and candid opinions on such matters contributes to improving the administration of justice.
Conversely, false statements by a lawyer can unfairly undermine public confidence in the
administration of justice.
[2] When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations
on political activity. See In Re Chmura, 464 Mich 58 (2001), for additional guidance on
"political speech" during judicial campaigns.
[3] To maintain the fair and independent administration of justice, lawyers are encouraged to
continue traditional efforts to defend judges and courts unjustly criticized.
]
Staff Comment: This rule is identical to the current Michigan rule and to the Model Rule. The last
sentence to Comment [2] has been added for additional guidance on the issue of political speech during
a judicial campaign.
RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of
Professional Conduct that raises a substantial question as to that lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects, shall inform the Attorney Grievance
Commission or the Judicial Tenure Commission.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of
judicial conduct that raises a substantial question as to the judge's fitness for office shall inform
the Attorney Grievance Commission or the Judicial Tenure Commission.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or
information gained by a lawyer or judge while participating in an approved lawyers assistance
program.
[Comment
[1] Self-regulation of the legal profession requires that members of the profession initiate
disciplinary investigation when they know of a violation of the Rules of Professional Conduct.
Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated
violation may indicate a pattern of misconduct that only a disciplinary investigation can
uncover. Reporting a violation is especially important where the victim is unlikely to discover
the offense.
[2] A report about misconduct is not required where it would involve violation of Rule 1.6.
However, a lawyer should encourage a client to consent to disclosure where prosecution would
not substantially prejudice the client]'[s interests.
[3] 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. A measure of
judgment is, therefore, required in complying with the provisions of this Rule. The term
"substantial" refers to the seriousness of the possible offense and not the quantum of evidence
of which the lawyer is aware. A report should be made to the bar disciplinary agency unless
some other agency, such as a peer review agency, is more appropriate in the circumstances.
Similar considerations apply to the reporting of judicial misconduct.
[4] The duty to report professional misconduct does not apply to a lawyer retained to represent
a lawyer whose professional conduct is in question. Such a situation is governed by the Rules
applicable to the client-lawyer relationship.
[5] Information about a lawyer]'[s or judge]'[s misconduct or fitness may be
received by a lawyer in the course of that lawyer]'[s participation in an approved
lawyers or judges assistance program. In that circumstance, providing for an exception to the
reporting requirements of paragraphs (a) and (b) of this Rule encourages lawyers and judges
to seek treatment through such a program. Conversely, without such an exception, lawyers and
judges may hesitate to seek assistance from these programs, which may then result in additional
harm to their professional careers and additional injury to the welfare of clients and the public.
These Rules do not otherwise address the confidentiality of information received by a lawyer
or judge participating in an approved lawyers assistance program; such an obligation,
however, may be imposed by the rules of the program or other law.
]
Staff Comment: The proposed rule is substantially similar to the current MRPC, and the same as the
Model Rule, except for the addition of the Michigan-specific terms.
RULE 8.4 MISCONDUCT
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or
induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or
fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects
adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to
achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or adjudicative officer in conduct that is a violation of
applicable rules of judicial conduct or other law.
[Comment
[1] Lawyers are subject to discipline when they violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do so or do so through the acts of
another, as when they request or instruct an agent to do so on the lawyer]'[s behalf.
Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action
the client is legally entitled to take.
[2] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses
involving fraud and the offense of willful failure to file an income tax return. However, some
kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms
of offenses involving "moral turpitude." That concept can be construed to include offenses
concerning some matters of personal morality, such as adultery and comparable offenses,
which have no specific connection to fitness for the practice of law. Although a lawyer is
personally answerable to the entire criminal law, a lawyer should be professionally answerable
only for offenses that indicate lack of those characteristics relevant to law practice. Offenses
involving violence, dishonesty, breach of trust, or serious interference with the administration
of justice are in that category. A pattern of repeated offenses, even ones of minor significance
when considered separately, can indicate indifference to legal obligation.
[3] A lawyer who, in the course of representing a client, knowingly manifests by words or
conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual
orientation, or socioeconomic status, violates paragraph (d) when such actions are prejudicial
to the administration of justice. Legitimate advocacy respecting the foregoing factors does not
violate paragraph (d). A trial judge]'[s finding that peremptory challenges were
exercised on a discriminatory basis does not alone establish a violation of this rule.
[4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief
that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge
to the validity, scope, meaning, or application of the law apply to challenges of legal regulation
of the practice of law.
[5] Lawyers holding public office assume legal responsibilities going beyond those of other
citizens. A lawyer]'[s abuse of public office can suggest an inability to fulfill the
professional role of lawyers. The same is true of abuse of positions of private trust such as
trustee, executor, administrator, guardian, agent and officer, director, or manager of a
corporation or other organization.
]
Staff Comment: The proposed rule is substantially similar to the current MRPC. The commission of
a criminal act has been separated from current paragraph (b) and made the focus of proposed paragraph
(b). The phrase "or to achieve results by means that violate the Rules of Professional Conduct or other
law" has been added to current paragraph (d) proposed paragraph (e). The proposed rule is identical
with the Model Rule, except the phrase "that reflects adversely on the lawyer's honesty, trustworthiness
or fitness as a lawyer in other respects" is added to the end of paragraph (c), which tracks with the
language currently found in MRPC 8.4(b). The other minor change is to substitute "adjudicative" for
"judicial" in paragraph (f).
RULE 8.5 DISCIPLINARY AUTHORITY; CHOICE OF LAW
(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the
disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A
lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this
jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A
lawyer may be subject to the disciplinary authority of both this jurisdiction and another
jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules
of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of the
jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the lawyer's conduct
occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of
that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if
the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably
believes the predominant effect of the lawyer's conduct will occur.
[Comment
Disciplinary Authority
[1] It is longstanding law that the conduct of a lawyer admitted to practice in this jurisdiction
is subject to the disciplinary authority of this jurisdiction. Extension of the disciplinary
authority of this jurisdiction to other lawyers who provide or offer to provide legal services in
this jurisdiction is for the protection of the citizens of this jurisdiction. Reciprocal enforcement
of a jurisdiction]'[s disciplinary findings and sanctions will further advance the
purposes of this Rule. See, Rules 6 and 22, ABA Model Rules for Lawyer Disciplinary
Enforcement. A lawyer who is subject to the disciplinary authority of this jurisdiction under
Rule 8.5(a) appoints an official to be designated by this Court to receive service of process in
this jurisdiction. The fact that the lawyer is subject to the disciplinary authority of this
jurisdiction may be a factor in determining whether personal jurisdiction may be asserted over
the lawyer for civil matters.
Choice of Law
[2] A lawyer may be potentially subject to more than one set of rules of professional conduct
that impose different obligations. The lawyer may be licensed to practice in more than one
jurisdiction with differing rules, or may be admitted to practice before a particular court with
rules that differ from those of the jurisdiction or jurisdictions in which the lawyer is licensed
to practice. Additionally, the lawyer]'[s conduct may involve significant contacts with
more than one jurisdiction.
[3] Paragraph (b) seeks to resolve such potential conflicts. Its premise is that minimizing
conflicts between rules, as well as uncertainty about which rules are applicable, is in the best
interest of both clients and the profession (as well as the bodies having authority to regulate the
profession). Accordingly, it takes the approach of (i) providing that any particular conduct of
a lawyer shall be subject to only one set of rules of professional conduct, (ii) making the
determination of which set of rules applies to particular conduct as straightforward as possible,
consistent with recognition of appropriate regulatory interests of relevant jurisdictions, and (iii)
providing protection from discipline for lawyers who act reasonably in the face of uncertainty.
[4] Paragraph (b)(1) provides that as to a lawyer]'[s conduct relating to a proceeding
pending before a tribunal, the lawyer shall be subject only to the rules of the jurisdiction in
which the tribunal sits unless the rules of the tribunal, including its choice of law rule, provide
otherwise. As to all other conduct, including conduct in anticipation of a proceeding not yet
pending before a tribunal, paragraph (b)(2) provides that a lawyer shall be subject to the rules
of the jurisdiction in which the lawyer]'[s conduct occurred, or, if the predominant
effect of the conduct is in another jurisdiction, the rules of that jurisdiction shall be applied to
the conduct. In the case of conduct in anticipation of a proceeding that is likely to be before
a tribunal, the predominant effect of such conduct could be where the conduct occurred, where
the tribunal sits, or in another jurisdiction.
[5] When a lawyer]'[s conduct involves significant contacts with more than one
jurisdiction, it may not be clear whether the predominant effect of the lawyer]'[s
conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long
as the lawyer]'[s conduct conforms to the rules of a jurisdiction in which the lawyer
reasonably believes the predominant effect will occur, the lawyer shall not be subject to
discipline under this Rule.
[6] If two admitting jurisdictions were to proceed against a lawyer for the same conduct, they
should, applying this rule, identify the same governing ethics rules. They should take all
appropriate steps to see that they do apply the same rule to the same conduct, and in all events
should avoid proceeding against a lawyer on the basis of two inconsistent rules.
[7] The choice of law provision applies to lawyers engaged in transnational practice, unless
international law, treaties or other agreements between competent regulatory authorities in the
affected jurisdictions provide otherwise.
]
Staff Comment: This proposed rule is substantively different from the current Michigan rule but is
identical to the Model Rule. The proposed rule contains another component of the multijurisdictional
practice rules (see Staff Comment to Rule 5.5), and specifically gives the discipline authorities
jurisdiction to investigate and prosecute the ethical violations of attorneys temporarily admitted to
practice in this state.