Mich. Ct. R. 6.005

As amended through April 3, 2024

Rule 6.005 - Right to Assistance of Lawyer; Advice; Appointment for Indigents; Waiver; Joint Representation; Grand Jury Proceedings

(A) Advice of Right. At the arraignment on the warrant or complaint, the court must advise the defendant

(1) of entitlement to a lawyer's assistance at all court proceedings, and

(2) that the defendant is entitled to a lawyer at public expense if the defendant wants one and is financially unable to retain one.

The court must ask the defendant whether the defendant wants a lawyer and, if so, whether the defendant is financially unable to retain one.

(B) Questioning Defendant About Indigency. If the defendant requests a lawyer and claims financial inability to retain one, the court must determine whether the defendant is indigent unless the court's local funding unit has designated an appointing authority in its compliance plan with the Michigan Indigent Defense Commission. If there is an appointing authority, the court must refer the defendant to the appointing authority for indigency screening. If there is no appointing authority, or if the defendant seeks judicial review of the appointing authority's determination concerning indigency, the court's determination of indigency must be guided by the following factors:

(1) present employment, earning capacity and living expenses;

(2) outstanding debts and liabilities, secured and unsecured;

(3) whether the defendant has qualified for and is receiving any form of public assistance;

(4) availability and convertibility, without undue financial hardship to the defendant and the defendant's dependents, of any personal or real property owned;

(5) the rebuttable presumptions of indigency listed in the MIDC's indigency standard; and

(6) any other circumstances that would impair the ability to pay a lawyer's fee as would ordinarily be required to retain competent counsel.

The ability to post bond for pretrial release does not make the defendant ineligible for appointment of a lawyer. The court reviews an appointing authority's determination of indigency de novo and may consider information not presented to the appointing authority.

(C) Partial Indigency. If a defendant is able to pay part of the cost of a lawyer, the court may require contribution to the cost of providing a lawyer and may establish a plan for collecting the contribution.

(D) Appointment or Waiver of a Lawyer. Where the court makes the determination that a defendant is financially unable to retain a lawyer, it must promptly refer the defendant to the local indigent criminal defense system's appointing authority for appointment of a lawyer. The court may not permit the defendant to make an initial waiver of the right to be represented by a lawyer without first

(1) advising the defendant of the charge, the maximum possible prison sentence for the offense, any mandatory minimum sentence required by law, and the risk involved in self-representation, and

(2) offering the defendant the opportunity to consult with a retained lawyer or, if the defendant is indigent, the opportunity to consult with an appointed lawyer.

The court should encourage any defendant who appears without counsel to be screened for indigency and potential appointment of counsel.

(E) Advice at Subsequent Proceedings. If a defendant has waived the assistance of a lawyer, the record of each subsequent proceeding (e.g., preliminary examination, arraignment, proceedings leading to possible revocation of youthful trainee status, hearings, trial or sentencing) need show only that the court advised the defendant of the continuing right to a lawyer's assistance (at public expense if the defendant is indigent) and that the defendant waived that right. Before the court begins such proceedings,

(1) the defendant must reaffirm that a lawyer's assistance is not wanted; or

(2) if the defendant requests a lawyer and is financially unable to retain one, the court must refer the defendant to the local indigent criminal defense system's appointing authority for the appointment of one; or

(3) if the defendant wants to retain a lawyer and has the financial ability to do so, the court must allow the defendant a reasonable opportunity to retain one.

The court may refuse to adjourn a proceeding for the appointment of counsel or allow a defendant to retain counsel if an adjournment would significantly prejudice the prosecution, and the defendant has not been reasonably diligent in seeking counsel.

(F) Multiple Representation. When two or more indigent defendants are jointly charged with an offense or offenses or their cases are otherwise joined, the local indigent criminal defense system must appoint separate lawyers unassociated in the practice of law for each defendant. Whenever two or more defendants who have been jointly charged or whose cases have been joined are represented by the same retained lawyer or lawyers associated in the practice of law, the court must inquire into the potential for a conflict of interest that might jeopardize the right of each defendant to the undivided loyalty of the lawyer. The court may not permit the joint representation unless:

(1) the lawyer or lawyers state on the record the reasons for believing that joint representation in all probability will not cause a conflict of interests;

(2) the defendants state on the record after the court's inquiry and the lawyer's statement, that they desire to proceed with the same lawyer; and

(3) the court finds on the record that joint representation in all probability will not cause a conflict of interest and states its reasons for the finding.

(G) Unanticipated Conflict of Interest. If, in a case of joint representation, a conflict of interest arises at any time, including trial, the lawyer must immediately inform the court. If the court agrees that a conflict has arisen, it must afford one or more of the defendants the opportunity to retain separate lawyers. The court should on its own initiative inquire into any potential conflict that becomes apparent, and take such action as the interests of justice require.

(H) Scope of Trial Lawyer's Responsibilities.

(1) The responsibilities of the trial lawyer who represents the defendant include

(a) representing the defendant in all trial court proceedings through initial sentencing,

(b) filing of interlocutory appeals the lawyer deems appropriate, and

(c) responding to any preconviction appeals by the prosecutor. Unless an appellate lawyer has been appointed or retained, the defendant's trial lawyer must either:

(i) file a response to any application for leave to appeal, appellant's brief, or substantive motion; or

(ii) notify the Court of Appeals in writing that the defendant has knowingly elected not to file a response.

(2) Unless an appellate lawyer has been appointed or retained, or if retained trial counsel withdraws, the trial lawyer who represents the defendant is responsible for filing postconviction motions the lawyer deems appropriate, including motions for new trial, for a directed verdict of acquittal, to withdraw plea, or for resentencing.

(3) When an appellate lawyer has been appointed or retained, the trial lawyer is responsible for promptly making the defendant's file, including all discovery material obtained and exhibits in the trial lawyer's possession, reasonably available upon request of the appellate lawyer. The trial lawyer must retain the materials in the defendant's file for at least five years after the case is disposed in the trial court.

(I) Assistance of Lawyer at Grand Jury Proceedings.

(1) A witness called before a grand jury or a grand juror is entitled to have a lawyer present in the hearing room while the witness gives testimony. A witness may not refuse to appear for reasons of unavailability of the lawyer for that witness. Except as otherwise provided by law, the lawyer may not participate in the proceedings other than to advise the witness.

(2) The prosecutor assisting the grand jury is responsible for ensuring that a witness is informed of the right to a lawyer's assistance during examination by written notice accompanying the subpoena to the witness and by personal advice immediately before the examination. The notice must include language informing the witness that if the witness is financially unable to retain a lawyer, the chief judge in the circuit court in which the grand jury is convened will on request refer the witness to the local indigent criminal defense system for appointment of an attorney at public expense.

Mich. Ct. R. 6.005

Rule 6.005 amended February 1, 2012, effective 5/1/2012; amended June 9, 2021, effective 6/9/2021; amended September 22, 2021, effective 1/1/2022.

Staff comment: The proposed amendment of MCR 6.005 would clarify the duties of attorneys in preconviction appeals.

The staff comment is not an authoritative construction by the Court. In addition, adoption of an amendment in no way reflects a substantive determination by this 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 the proposal may be sent to the Supreme Court Clerk in writing or electronically by October 1, 2021, at P.O. Box 30052, Lansing, MI 48909, or ADMcomment@courts.mi.gov. When filing a comment, please refer to ADM File No. 2020-13. Your comments and the comments of others will be posted under the chapter affected by this proposal at Proposed & Recently Adopted Orders on Admin Matters page.

WELCH, J. (concurring). I concur in the Court's order publishing for comment proposed changes to MCR 6.005 that are designed to clarify a criminal-defense trial attorney's responsibilities in handling preconviction appeals. I write separately because, while I recognize several longstanding problems linked to defendants being unrepresented before the Court of Appeals during preconviction appeals, I am concerned that the proposed amendments may not get to the root of the problem and may have unintended consequences. Currently, a criminal-defense trial attorney can withdraw from representing his or her client in a preconviction appeal, MCR 6.005(H)(4), or simply "notify the Court of Appeals that the lawyer will not be filing a brief in response to the application." MCR 6.005(H)(3)(ii). While I support a higher level of responsibility than what is set forth in our current rule, I question whether the proposed amendment may create additional problems. For example:

(1) Can an attorney, who has only been paid to handle trial court proceedings and whose client is unwilling to pay more for the preconviction appeal (but who is not indigent), withdraw as counsel and notify the Court of Appeals that the lawyer or the defendant will not file a response?

(1) Can an attorney, who has only been paid to handle trial court proceedings and whose client is unwilling to pay more for the preconviction appeal (but who is not indigent), withdraw as counsel and notify the Court of Appeals that the lawyer or the defendant will not file a response?

(2) What if an attorney petitions the trial court for extra funding to handle an appeal for a retained but poor client and the trial court rejects the request? Is that attorney still required to handle the appeal?

(3) Can an attorney (whether court-appointed or retained) make a referral to appellate counsel and opt out of handling the appeal even if the client decides not to hire the recommended appellate counsel? Would this be a basis to notify the Court of Appeals that the defendant has knowingly elected to not file a response?

(4) Can an attorney, who prefers to focus on trial-level work only, make it clear in an engagement agreement that the attorney does not handle appeals and will refer such matters out if needed? If so, would such an agreement be enforceable in light of the proposed amendments?

As a final matter, it is not clear to me how the proposed rule would mesh with MRPC 1.1, which states that an attorney has an ethical obligation not to litigate matters he or she is not competent to handle, or with MRPC 1.16, which discusses an attorney's obligation to withdraw in certain circumstances and discretion to withdraw in others (including a client's failure to abide by payment terms in a retention agreement).

I applaud the Court's efforts to help ensure that defendants in criminal cases will have representation during preconviction appeals. While I recognize that in most cases a transition to or partnership with appellate counsel will likely occur, it also seems predictable that there will be situations in which one of the scenarios I have outlined above could arise. I hope that the public comment process will, at a minimum, address and clarify the concerns that I have outlined above.