Mich. R. Prof'l. Cond. 1.1 - 1.18
Rule: 1.1 Competence
A lawyer shall provide competent representation to a client. A lawyer shall not:
Comment:
LEGAL KNOWLEDGE AND SKILL
In determining whether a lawyer is able to provide competent representation 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.
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 the association of a lawyer of established competence in the field in question.
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.
A lawyer may offer 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
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 elaborate treatment than matters of lesser consequence.
MAINTAINING COMPETENCE
To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including the knowledge and skills regarding existing and developing technology that are reasonably necessary to provide competent representation for the client in a particular matter. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances.
Rule: 1.2 Scope of Representation
Comment:
SCOPE OF REPRESENTATION
Both the lawyer and the client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.
In a case in which the client appears to be suffering mental disability, 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
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, 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.
SERVICES LIMITED IN OBJECTIVES OR MEANS
The objectives or scope of services 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. For example, a retainer may be for a specifically defined purpose. Representation provided through a legal-aid agency may be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage. The terms upon which representation is undertaken may exclude specific objectives or means. Such limitations may exclude objectives or means that the lawyer regards as repugnant or imprudent.
An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law. Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1, or to surrender the right to terminate the lawyer's services or the right to settle litigation that the lawyer might wish to continue.
REASONABLE UNDER THE CIRCUMSTANCES.
Factors to weigh in deciding whether the limitation is reasonable under the circumstances according to the facts communicated to the attorney include the apparent capacity of the person to proceed effectively with the limited scope assistance given the complexity and type of matter and other self-help resources available. For example, some self-represented persons may seek objectives that are inconsistent with an attorney's obligation under the Rules of Professional Conduct, or assert claims or defenses pursuant to pleadings or motions that would, if signed by an attorney, violate MCR 1.109. Attorneys must be reasonably diligent to ensure a limited scope representation does not advance improper objectives, and the commentary should help inform lawyers of these considerations.
ILLEGAL, FRAUDULENT AND PROHIBITED TRANSACTIONS
A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct. The fact that a client uses advice in a course of action that is illegal or fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not knowingly assist a client in illegal or fraudulent conduct. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which an illegal act or fraud might be committed with impunity.
When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is not permitted to reveal the client's wrongdoing, except where permitted by Rule 1.6. However, the lawyer is required to avoid furthering the purpose, for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is illegal or fraudulent. Withdrawal from the representation, therefore, may be required.
Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.
Paragraph (c) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer should not participate in a sham transaction; for example, a transaction to effectuate criminal or fraudulent escape of tax liability. Paragraph (c) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of paragraph (c) 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.
Rule: 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment: A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. However, a lawyer is not bound to press for every advantage that might be realized for a client. A lawyer has professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. A lawyer's workload should be controlled so that each matter can be handled adequately.
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.
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 but has not been specifically instructed concerning pursuit of an appeal, the lawyer should advise the client of the possibility of appeal before relinquishing responsibility for the matter.
Rule: 1.4 Communication
Comment:
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. For example, a lawyer negotiating on behalf of a client should provide the client with facts relevant to the matter, inform the client of communications from another party, and take other reasonable steps that permit the client to make a decision regarding an offer from another party. A lawyer who receives an offer of settlement or a mediation evaluation in a civil controversy, or a proffered plea bargain in a criminal case, must promptly inform the client of its substance. See Rule 1.2(a). Even when a client delegates authority to the lawyer, the client should be kept advised of the status of the matter.
Adequacy of communication depends in part on the kind of advice or assistance involved. For example, in negotiations where there is time to explain a proposal, 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 might injure or coerce others. On the other hand, a lawyer ordinarily cannot 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 consistent with the client's overall requirements as to the character of representation.
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 mental disability. 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. Practical exigency may also require a lawyer to act for a client without prior consultation.
WITHHOLDING INFORMATION
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. 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: These amendments update cross-references and make other nonsubstantive revisions to clarify the rules.
The staff comment is not an authoritative construction by the Court. In addition, adoption of a new rule or amendment in no way reflects a substantive determination by this Court.
Rule: 1.5 Fees
Comment:
BASIS OR RATE OF FEE
When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee. In a new client-lawyer relationship, however, an understanding as to the fee should be promptly established. It is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, or to identify the factors that may be taken into account in finally fixing the fee. When developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. A written statement concerning the fee reduces the possibility of misunderstanding. Furnishing the client with a simple memorandum or a copy of the lawyer's customary fee schedule is sufficient if the basis or rate of the fee is set forth.
PROHIBITED CONTINGENT FEES
Paragraph (d) prohibits a lawyer from charging a 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. The amount of alimony, support or property awarded to a client shall not be used by a lawyer as a basis for enhancing the fee. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of postjudgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.
TERMS OF PAYMENT
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(j). However, a fee paid in property instead of money may be subject to special scrutiny because it involves questions concerning both the value of the services and the lawyer's special knowledge of the value of the property.
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. When there is doubt whether a contingent fee is consistent with the client's best interest, the lawyer should offer the client alternative bases for the fee and explain their implications. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage. See MCR 8.121.
DIVISION OF FEE
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. Paragraph (e) permits the lawyers to divide a fee on agreement between the participating lawyers if the client is advised and does not object. It does not require disclosure to the client of the share that each lawyer is to receive.
DISPUTES OVER FEES
If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the bar, 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, of a class, or of 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.
Rule: 1.6 Confidentiality of Information
Comment: The lawyer is part of a judicial system charged with upholding the law. One of the lawyer's functions is to advise clients so that they avoid any violation of the law in the proper exercise of their rights.
The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client, but also encourages people to seek early legal assistance.
Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the maze of laws and regulations, deemed to be legal and correct. The common law recognizes that the client's confidences must be protected from disclosure. Upon the basis of experience, lawyers know that almost all clients follow the advice given and that the law is upheld.
A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.
The principle of confidentiality is given effect in two related bodies of law, the client-lawyer privilege (which includes the work-product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The client-lawyer privilege applies 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 applies to confidences and secrets as defined in the rule. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope, ante, p M 1-18.
The requirement of maintaining confidentiality of information relating to representation applies to government lawyers who may disagree with the policy goals that their representation is designed to advance.
AUTHORIZED DISCLOSURE
A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client's instructions or special circumstances limit that authority. In litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed, or, in negotiation, by making a disclosure that facilitates a satisfactory conclusion.
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, or unless the disclosure would breach a screen erected within the firm in accordance with Rules 1.10(b), 1.11(a), or 1.12(c).
DISCLOSURE ADVERSE TO CLIENT
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 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.
Generally speaking, information relating to the representation must be kept confidential as stated in paragraph (b). 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.
First, the lawyer may not counsel or assist a client in conduct that is illegal or fraudulent. See Rule 1.2(c). Similarly, a lawyer has a duty under Rule 3.3(a)(4) not to use false evidence. This duty is essentially a special instance of the duty prescribed in Rule 1.2(c) 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.
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(c), 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 (c)(3) 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 comment to Rule 3.3.
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(c), except in the limited circumstances where failure to act constitutes assisting the client. See comment to Rule 1.2(c). 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 (c)(4), the lawyer has professional discretion to reveal information in order to prevent a client's criminal act.
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.
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 (c) does not violate this rule.
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 should make an inquiry within the organization as indicated in Rule 1.13(b).
Paragraph (c)(3) does not apply where a lawyer is employed after a crime or fraud has been committed to represent the client in matters ensuing therefrom.
WITHDRAWAL
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 provided in 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.
DISPUTE CONCERNING LAWYER'S CONDUCT
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. The lawyer's right to respond arises when an assertion of complicity or other misconduct has been made. Paragraph (c)(5) does not require the lawyer to await the commencement of an action or proceeding that charges complicity or other misconduct, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend, of course, applies where a proceeding has been commenced. Where practicable and not prejudicial to the lawyer's ability to establish the defense, the lawyer should advise the client of the third party's assertion and request that the client respond appropriately. In any event, disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the disclosure should be made in a manner which 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.
If the lawyer is charged with wrongdoing in which the client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge. Such a charge can arise in a civil, criminal, or professional disciplinary 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.
A lawyer entitled to a fee is permitted by paragraph (c)(5) 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. As stated above, the lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure.
DISCLOSURES OTHERWISE REQUIRED OR AUTHORIZED
The scope of the client-lawyer privilege is a question of law. If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, paragraph (b)(1) requires the lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.
The Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. See Rules 2.2, 2.3, 3.3 and 4.1. In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client. Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these rules, but a presumption should exist against such a supersession.
FORMER CLIENT
The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9.
Confidentiality of Information
When transmitting a communication that contains confidential and/or privileged information relating to the representation of a client, the lawyer should take reasonable measures and act competently so that the confidential and/or privileged client information will not be revealed to unintended third parties.
Rule: 1.7 Conflict of Interest: General Rule
Comment:
LOYALTY TO A CLIENT
Loyalty is an essential element in the lawyer's relationship to a client. An impermissible conflict of interest may exist before representation is undertaken, in which event the representation should be declined. The lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and nonlitigation matters the parties and issues involved and to determine whether there are actual or potential conflicts of interest.
If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. See Rule 1.16. Where more than one client is involved and the lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to represent any of the clients is determined by Rule 1.9. See also Rule 2.2(c). As to whether a client-lawyer relationship exists or, having once been established, is continuing, see comment to Rule 1.3 and Scope, ante, p M 1-18.
As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client's consent. Paragraph (a) expresses that general rule. Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not require consent of the respective clients. Paragraph (a) applies only when the representation of one client would be directly adverse to the other.
Loyalty to a client is also impaired when a lawyer cannot consider, recommend, or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. Paragraph (b) addresses such situations. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict 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. Consideration should be given to whether the client wishes to accommodate the other interest involved.
CONSULTATION AND CONSENT
A client may consent to representation notwithstanding a conflict. However, as indicated in paragraph (a)(1) with respect to representation directly adverse to a client, and paragraph (b)(1) with respect to material limitations on representation of a client, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent. When more than one client is involved, the question of conflict must be resolved as to each client. Moreover, there may be circumstances where it is 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.
LAWYER'S INTERESTS
The lawyer's own interests should not be permitted to have adverse effect on representation of a client. For example, a lawyer's need for income should not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee. See Rules 1.1 and 1.5. 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. 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 interest.
CONFLICTS IN LITIGATION
Paragraph
Ordinarily, a lawyer may not act as advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated. However, there are circumstances in which a lawyer may act as advocate against a client. For example, a lawyer representing an enterprise with diverse operations may accept employment as an advocate against the enterprise in an unrelated matter if doing so will not adversely affect the lawyer's relationship with the enterprise or conduct of the suit and if both clients consent upon consultation. By the same token, government lawyers in some circumstances may represent government employees in proceedings in which a government agency is the opposing party. The propriety of concurrent representation can depend on the nature of the litigation. For example, a suit charging fraud entails conflict to a degree not involved in a suit for a declaratory judgment concerning statutory interpretation.
INTEREST OF PERSON PAYING FOR A LAWYER'S SERVICE
A lawyer may be paid from a source other than the client if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty to the client. See Rule 1.8(f). For example, when an insurer and its insured have conflicting interests in a matter arising from a liability insurance agreement, and the insurer is required to provide special counsel for the insured, the arrangement should assure the special counsel's professional independence. So also, when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees if the clients consent after consultation and the arrangement ensures the lawyer's professional independence.
OTHER CONFLICT SITUATIONS
Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is potential for adverse effect 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 actual conflict will arise, and the likely prejudice to the client from the conflict if it does arise. The question is often one of proximity and degree.
For example, a lawyer may not represent multiple parties in 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 of interest among them.
Conflict questions may also arise in estate planning and estate administration. 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 arise. In estate administration the identity of the client may be a question of law. The lawyer should make clear the relationship to the parties involved.
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.
CONFLICT CHARGED BY AN OPPOSING PARTY
Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. In litigation, a court may raise the question when there is reason to infer that the lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. See MCR 6.101(C)(4). Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment. See Scope, ante, p M 1-18.
Rule: 1.8 Conflict of Interest: Prohibited Transactions
Assistance may be provided under this subrule even if the indigent client's representation is eligible for a fee under a fee-shifting statute.
Comment:
TRANSACTIONS BETWEEN CLIENT AND LAWYER
As a general principle, all transactions between client and lawyer should be fair and reasonable to the client. In such transactions a review by independent counsel on behalf of the client is often advisable. Furthermore, a lawyer may not exploit information relating to the representation to the client's disadvantage. For example, a lawyer who has learned that the client is investing in specific real estate may not, without the client's consent, seek to acquire nearby property where doing so would adversely affect the client's plan for investment. Paragraph (a) does not, however, 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.
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 effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance, however, the client should have the detached advice that another lawyer can provide. Paragraph (c) recognizes an exception where the client is a relative of the donee or the gift is not substantial.
LITERARY RIGHTS
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 paragraph (j).
PERSON PAYING FOR LAWYER'S SERVICES
Paragraph (f) requires disclosure of the fact that the lawyer's services are being paid for by a third party. Such an arrangement must also conform to the requirements of Rule 1.6 concerning confidentiality and Rule 1.7 concerning conflict of interest. Where the client is a class, consent may be obtained on behalf of the class by court-supervised procedure.
LIMITING LIABILITY
Paragraph (h) is not intended to apply to customary qualifications and limitations in legal opinions and memoranda.
FAMILY RELATIONSHIPS BETWEEN LAWYERS
Paragraph (i) applies to related lawyers who are in different firms. Related lawyers in the same firm are governed by Rules 1.7, 1.9, and 1.10. The disqualification stated in paragraph (i) is personal and is not imputed to members of firms with whom the lawyers are associated.
ACQUISITION OF INTEREST IN LITIGATION
Paragraph (j) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in litigation. This general rule, which has its basis in common-law champerty and maintenance, is subject to specific exceptions developed in decisional law and continued in these rules, such as the exception for reasonable contingent fees set forth in Rule 1.5 and the exception for certain advances of the costs of litigation set forth in paragraph (e).
SEXUAL RELATIONS WITH CLIENTS
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.
Humanitarian Exception.
Paragraph (e)(3) serves as a humanitarian exception. The lawyer can assist the client with needs that frustrate the client's access to the justice system in the specific matter for which the representation was undertaken, while still preserving the nature of the attorney-client relationship. For purposes of this rule, indigent is defined as people who are unable, without substantial financial hardship to themselves and their dependents, to obtain competent, qualified legal representation on their own.
Staff Comment (ADM File No. 2020-31): The amendment of MRPC 1.8(e) allows attorneys to provide certain assistance to indigent clients they are serving on a pro bono basis.
The staff comment is not an authoritative construction by the Court. In addition, adoption of a new rule or amendment in no way reflects a substantive determination by this Court.
CAVANAGH, J. (concurring). I concur with the Court's adoption of this amendment to Rule 1.8 of the Michigan Rules of Professional Conduct (MRPC). This modest change will further the critical goal of providing greater access to justice to Michiganders who lack the means to incur incidental costs associated with navigating our legal system.
By way of background, the adopted rule stems from a State Bar of Michigan (SBM) proposal to amend MRPC 1.8(e) to allow modest financial living assistance to indigent clients to aid them in fully accessing justice. SBM highlighted the lopsidedness of the current rule, which prohibits lawyers from providing gifts to pro bono, indigent clients but permits lawyers to, for example, provide financial assistance, advance litigation costs, and offer social hospitality to litigation or transactional clients in some circumstances. The originally proposed rule paralleled amendments adopted by the American Bar Association (ABA) House of Delegates to the Model Rules of Professional Conduct. It broadly allowed modest gifts of food, rent, transportation, medicine, and other basic living expenses to indigent clients provided that the lawyer rendered services pro bono. Concerned by the breadth of this proposal, which was also opposed by Legal Services Association of Michigan (LSAM), the Court requested that SBM consider and resubmit a more nuanced, limited proposal. One concern was that the sweeping language would create unreasonable expectations from indigent clients and place associated undue pressure on attorneys.
SBM submitted a revised proposal providing that a lawyer representing an indigent client "may provide assistance to the client that facilitates the client's access to the justice system." The proposal was not limited to pro bono representation. SBM also proposed a comment that specified examples of needs that frustrate access to the justice system, including transportation to and from court proceedings, meals during long court sessions, and appropriate clothing for court. LSAM supported the revised proposal. The Court built upon SBM's two proposals and commentary from LSAM and published a further revised proposal for comment. We received robust feedback during the comment period from SBM, LSAM, the Michigan State Planning Body (SPB), and others who unanimously supported the addition of a humanitarian exception to the general rule barring financial assistance to clients. In response to the comments received, the Court further refined the rule to accommodate and balance stakeholder desires with ethical concerns.
The final product is a narrow, but meaningful, change that allows lawyers representing indigent clients on a pro bono basis to provide only specific types of financial assistance to "facilitate the client's access to the justice system in the matter." MPRC 1.8(e). That is, the limiting principle is that the assistance must be tied to the matter for which the attorney is retained such that the client's participation is enhanced. The types of permitted financial assistance are further limited within the rule to transportation, lodging (if it is less costly than providing transportation for multiple days), meals, and clothing. Id. The proposed restriction tying assistance to "court proceedings" was removed in response to feedback that representation is broader than simply going to and from the courthouse. For example, indigent clients may need transportation to attorney offices and other locations for meetings, depositions, mediations, and more as part of holistic, effective representation. Lack of transportation in particular can be a barrier to the indigent client's full participation in the justice system. The restriction on the use of legal services organization funds was also removed from the published-for-comment rule in response to feedback from LSAM and SPB that their members would be hamstrung by the restriction. Without the participation of legal aid organizations, the rule would have little utility for the vast majority of indigent clients.
Civil legal aid in Michigan handled 8,400 divorce, separation, or annulment cases, 25,000 housing cases, and 5,300 public-benefits cases in 2019-2020 alone. Justice For All Commission, Michigan's Legal Aid Organizations: Social Economic Impact and Social Return on Funding Investment 2019-2020https://www.courts.michigan.gov/4a9445/siteassets/court-administration/resources/mi_sroi_final-opt.pdf(accessed December 13, 2023) [https://perma.cc/H3RP-KZTB].
Moreover, the exception prohibits attorneys with a financial interest in the litigation from using it. Instead, it allows for limited humanitarian assistance in pro bono cases only. As my dissenting colleague notes, pro bono attorneys can recover attorney fees when attorney-fee shifting provisions are applicable, see Woodman v Dep't of Corrections, 511 Mich 427 (2023). However, the circumstances in which attorney-fee shifting applies are limited. Nonprofit groups are clearly not permitted to distribute profits to private shareholders or individuals from attorney-fee recoupment. Moreover, because the scope of assistance is restricted to facilitating the client's access to justice in the matter, concerns about nonprofit impact litigation groups competing over potential clients with perks are unlikely to materialize. Allowing the rule to be utilized even in fee-shifting scenarios also parallels the ABA's recent amendment of Model Rule of Professional Conduct 1.8(e).
See 26 USC 501(c)(3); 26 CFR 1.501(a)-1(c) (2017) ("The words private shareholder or individual in section 501 refer to persons having a personal and private interest in the activities of the organization.").
This rule change is also consistent with the Michigan Justice for All Commission's goal of providing "100% access to justice." See Administrative Order No. 2021-1, 507 Mich lxxxv (2021). The Commission's duties include working to improve the civil legal justice system by identifying and assessing gaps, barriers, and strategies to improve access, especially for low- and moderate-income Michigan residents. Id. The rule of professional conduct adopted today goes toward removing barriers to access for low-income individuals, especially for the overwhelming majority who are necessarily pulled into the legal system because of critical concerns burdening their families, including child custody and support, debt collection, eviction, access to public benefits, and more.
My dissenting colleague notes that the phrase "facilitating . . . access to justice" is undefined and vague. However, the commonly understood phrase "access to justice" does not require an express definition to meaningfully guide the Commission's work. Indeed, there is no indication that the lack of a definition has prevented the Commission from doing its work since its creation in 2021.
I disagree with my dissenting colleague that this very limited rule will "incentiviz[e] dependency and personal attachment within the attorney-client relationship[.]" The rule is limited to specific types of assistance, provided that the assistance facilitates access to justice in the matter for which the attorney is retained. I do not see how providing transportation to an attorney's office or food during long meetings will create general dependency. Nor do I see how providing lodging in cases where it is less expensive than providing transportation over multiple days is problematic. This exception will by its terms apply in rare cases-such as if the client's presence is required at a multiday trial far from their home-the rule does not permit attorneys to subsidize client housing generally. In sum, the modest nature of the permitted expenditures makes the rule amendment unlikely to create conflicts of interest or invite abuse.
As with all administrative matters that the Court handles, we welcome feedback to ensure that the rule is working as intended. If further changes to the amended rule are desired, I hope that SBM, legal aid organizations, and others follow up with their comments to enable potential adjustments based on lived experience with the rule. For now, I support the adoption of this incremental change to MRPC 1.8 to allow limited financial assistance to clients in pro bono matters that is directly related to facilitating access to justice in the matter.
ZAHRA, J. (dissenting).
Attorneys are not social service providers, and when representing clients, their job is not to provide for the material and financial well-being of needy clients. The job of an attorney is to uphold the law and represent clients as an officer of the court. This longstanding and traditional understanding of the role of counsel is being turned on its head by this Court. Through adoption of this amendment, this Court embarks on a form of experiment by altering attorneys' professional behavior. Specifically, the broad rules adopted by the Court allow attorneys in a "pro bono" capacity to pay for an array of clients' life expenses, from travel and food to housing and clothing. No caps on aggregate costs, duration, or occurrences of expenditures are included. This deregulation of attorney ethics is novel to this state and in our nation, as similar changes have only recently been undertaken in a limited number of jurisdictions. Consequently, the Court has little to no quality information as to how this amendment of basic attorney ethical responsibilities can affect the practice of law in the long term. This reality is exacerbated by this Court's recent approval of the collection of a profit through "pro bono" attorney fees, which would extend even to nonprofits, which legally can earn income from individual transactions. Instead of drafting new rules that rescind decades, if not centuries, of legal practice, I would retain the language of Michigan Rule of Professional Conduct 1.8 that this state and its legal profession have long relied upon. This Court should at least pause until it has a more complete understanding of the long-term effects of these rules in the few jurisdictions that have adopted them.
Woodman v Dep't of Corrections, 511 Mich 427, 454 (2023) (concluding that trial courts have no discretion to consider whether attorneys holding themselves out to the public and clients as working "pro bono" can collect full attorney fees from a fee-shifting provision, with no limitations on how those funds are used).
By definition, nonprofit organizations can earn operational income and profits so long as the ultimate corporate purpose is not for profit. See, e.g., MCL 450.2301(5) ("A corporation whose lawful activities include the charging of fees or prices for its services or products may receive the income and may make a profit as a result of its receipt."); 26 USC 501(c)(3) (exempting from taxation the income of nonprofits); Corewell Health, Consolidated Financial Statements (Sep 30, 2023), https://assets.contentstack.io/v3/assets/blt7b132cfc09cf5e18/bltdfc7aff559296935/consolidated-financial-statements-sh.pdf(accessed January 8, 2024) [https://perma.cc/9JMW-XKZ4] (major healthcare network in Michigan listing an operational profit prior to direct government funding of $72.9 million in 2022 and $11 million in 2023 up to September).
Legal aid and financial assistance for the indigent are admirable goals, and I strongly support attorneys and other individuals who financially contribute to our state's legal aid system, as well as numerous other funds established by state and nonprofit entities for those in need. But the potential costs of replacing existing attorney ethics rules are high, and such changes are not the most efficient or worthwhile method of mitigating the deleterious effects of poverty. Because the amendments enacted by the Court risk undermining the arm's-length representation that stands at the center of legal ethics, and in so doing incentivizing dependency and personal attachment within the attorney-client relationship, I dissent.
See, e.g., Michigan Legal Help, Make a Donationhttps://michiganlegalhelp.org/make-donation(accessed November 15, 2023) [https://perma.cc/4W8M-8XD8]; The Salvation Army, Great Lakes Division https://centralusa.salvationarmy.org/greatlakes/(accessed November 2, 2023) [https://perma.cc/6YTY-473N]; Catholic Charities of Southeast Michigan https://www.ccsem.org/(accessed November 15, 2023) [https://perma.cc/7ZVW-7NM4]; Crossroads of Michigan https://www.crossroadsofmichigan.org/(accessed November 15, 2023) [https://perma.cc/WHN7-2KSZ]; State of Michigan, Health & Human Services, Family Independence Programhttps://www.michigan.gov/mdhhs/assistance-programs/cash/fip(accessed November 15, 2023) [https://perma.cc/72EU-8REN]; State of Michigan, Health & Human Services, Food Assistance https://www.michigan.gov/mdhhs/assistance-programs/food(accessed November 15, 2023) [https://perma.cc/ME3Y-LFMY]; Benefits.gov, Housing Choice Voucher Program (Section 8)https://www.benefits.gov/benefit/710(accessed November 15, 2023) [https://perma.cc/U42W-8VVC]; see also MI Bridges, Welcome to MI Bridges https://newmibridges.michigan.gov/s/isd-landing-page?language=en_US(accessed November 15, 2023) (providing an accessible portal of social services and resources available for those in need).
Rules prohibiting attorneys from getting financially involved in their clients' wellbeing have existed from time immemorial. The rule at issue was included in the state's first rules of professional conduct adopted over 30 years ago, but the principle underlying it has existed for centuries. Prohibitions on financial investment in or support of litigants derive from common-law principles of champerty and maintenance. Common-law maintenance disallowed "maintaining, supporting, or promoting the litigation of another." Champerty was a form of maintenance and prohibited a "bargain by a stranger with a party to a suit, by which such third person undertakes to carry on the litigation at his own cost and risk, in consideration of receiving, if successful, a part of the proceeds or subject sought to be recovered." "The doctrines of champerty and maintenance were developed at common law to prevent officious intermeddlers from stirring up strife and contention by vexatious and speculative litigation." When third parties paid for or got involved in the material benefits of a litigant for the purpose of litigation, the law recognized inherent perverse incentives and conflicts in the natural and objective progression of litigation.
See State Bar of Michigan, Role of Nonlawyers in Law Practice: Guidelines for Utilization of Legal Assistant Services, available at https://www.michbar.org/opinions/ethics/utilization#:~:text=Effective%20October%201%2C%201988%2C%20the,Conduct%2C%20superseding%20the%20prior%20Code(accessed November 15, 2023) [https://perma.cc/7AUR-JBWW] (explaining that the first Rules of Professional Conduct replaced the Code of Professional Responsibility that existed before that).
Prior to the modern rules, the Michigan Code of Professional Responsibility, which was based on the 1969 model code promulgated by the American Bar Association, included the same prohibition under Disciplinary Rule (DR) 5-103(B). Compare Model Code of Professional Responsibility 5-103(B) ("While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to his client, except that . . . [a] lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses."), with State Bar of Michigan, Ethics Opinion CI-572 (1980) ("DR 5-103(B) clearly states that during representation of a client, in connection with contemplated or pending litigation, no advances for 'financial assistance' are permissible except for the litigation related expenses enumerated in the Rule and then only to the extent the client remains ultimately responsible for payment. Litigation expanses [sic] are generally understood to refer to court costs, fees of witness, and expenses incurred by the client because of the wrongful act that resulted in the litigation.").
Black's Law Dictionary (4th ed) (defining "maintenance").
Black's Law Dictionary (5th ed).
14 Am Jur 2d, Champerty and Maintenance, § 1; see also Fetters v Wittmer Oil & Gas Props, 258 Mich 310, 315 (1932) ("At the common law, champerty was regarded as an offense of a high grade, as malum in se, and all contracts tainted with it were held to be void.").
Various states took action to reform the ancient common law of maintenance, with many retaining its core application. Michigan focused its concerns about the financial intermixing of law and personal benefits on the legal profession. In this state, limitations on financial maintenance of legal processes applied only in the cases of attorneys representing their clients. And Michigan's professional code has long prohibited financial benefits to or support of clients, outside prepayment of litigation-related expenses. Given that attorneys are the central actors in indigent litigation and are the ones most at risk of taking a personal interest in the outcome of litigation, Michigan's focus on the practice of maintenance by attorneys was understandable.
For instance, Illinois still prohibits maintenance for the general public in certain circumstances. See 720 ILCS 5/32-12 ("If a person officiously intermeddles in an action that in no way belongs to or concerns that person, by maintaining or assisting either party, with money or otherwise, to prosecute or defend the action, with a view to promote litigation, he or she is guilty of maintenance and upon conviction shall be fined and punished as in cases of common barratry. It is not maintenance for a person to maintain the action of his or her relative or servant, or a poor person out of charity."); see also Rancman v Interim Settlement Funding Corp, 99 Ohio St 3d 121, 123 (2003) (explaining that "[t]he ancient practices of champerty and maintenance have been vilified in Ohio since the early years of our statehood" and holding that a third-party promise to front money for litigation in the interest of a favorable result created perverse incentives unacceptable under the common law).
Smith v Childs, 198 Mich App 94, 98 (1993) ("[T]he defense of champerty does not exist in Michigan except as specified by statute with regard to attorneys."); see also MCL 600.919(2) (prohibiting the collection of fees when done through solicitation from a member of the bar).
See footnote 6.
The concerns underlying centuries of common law and the current rules of ethics remain strong. Attorneys, as officers of the court, have significant and deeply entrenched influences in the initiation and progression of lawsuits. Perhaps unlike other service providers for hire, attorneys are not "merely advocates" who pursue without limitation the interests and wishes of their clients. Instead, through private representation, they uphold the rule of law and the "integrity of the legal process," for both their clients and society at large. They advise clients on when to bring claims, how to bring them, and when to settle. While clients retain ultimate control over whether claims are settled and defining the lawful objectives of the attorney, attorneys retain preeminent control over litigation strategy and procedure. No matter how much it may help their client's cause, attorneys must make reasonable arguments understanding the established law, cannot give advice to clients which is used to violate the law, and must advise clients to take actions in the client's best interests accepting the bounds of recognized law.
Grievance Administrator v Fieger, 476 Mich 231, 243 (2006).
Id. at 252; see also In re Snyder, 472 US 634, 644-645 (1985) ("As an officer of the court, a member of the bar enjoys singular powers that others do not possess; by virtue of admission, members of the bar share a kind of monopoly granted only to lawyers. Admission creates a license not only to advise and counsel clients but to appear in court and try cases; as an officer of the court, a lawyer can cause persons to drop their private affairs and be called as witnesses in court, and for depositions and other pretrial processes that, while subject to the ultimate control of the court, may be conducted outside courtrooms. The license granted by the court requires members of the bar to conduct themselves in a manner compatible with the role of courts in the administration of justice."); People ex rel Karlin v Culkin, 248 NY 465, 470-471 (1928) (Cardozo, J.) ("The appellant was received into that ancient fellowship for something more than private gain. He became an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice."); Penson v Ohio, 488 US 75, 84 (1988) ("The paramount importance of vigorous representation follows from the nature of our adversarial system of justice. This system is premised on the well-tested principle that truth-as well as fairness-is best discovered by powerful statements on both sides of the question.") (quotation marks and citation omitted).
MRPC 1.2(a).
Id.; see also MRPC 1.2, comment ("At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so.").
MRPC 3.1, comment ("The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also has a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed."); MRPC 3.3 (explaining that attorneys cannot make false statements of law or fact on a client's behalf and must disclose fraud by the client if "reasonably necessary to remedy" any misleading statement); MRPC 3.3, comment (stating that while attorneys may "present the client's case with persuasive force," performance of that responsibility "is qualified . . . by the advocate's duty of candor to the tribunal" as an "officer[] of the court").
MRPC 3.3(b) (requiring remedial action by an attorney if they learn of criminal or fraudulent conduct during a proceeding); MRPC 1.2(c) (prohibiting the rendering of advice that "assist[s]" the commission of a crime or fraud); MRPC 1.16(a)(1) (requiring withdrawal from representation where representation will result in violations of law); MRPC 1.6(c)(4) (allowing attorneys to release confidential information "to prevent [a] crime"); Clark v United States, 289 US 1, 15 (1933) (noting the crime or fraud exception to the attorney-client privilege and explaining that "[a] client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law" and that "[h]e must let the truth be told").
MRPC 2.1 ("In representing a client, a lawyer shall exercise independent professional judgment and shall render candid advice."); see also footnotes 17 and 18.
When an attorney becomes financially involved in the client's personal and material well-being during litigation, there are concerns on both sides of the relationship. The attorney is now moving beyond the role of disinterested and objective advisor and into the position of a de facto commercial relationship (e.g., I pay you now, you pay me somehow, in some way, later), a social-support provider, or somewhere in the murky middle. An attorney's personal investments in the client only increases the cost of providing services and places the attorney in a position of oversight and care over the client. The more an attorney or a firm has provided financially for a client, the more the attorney has "put in," and the greater incentive there is to shape advice for gain whether reputational or financial, notwithstanding the client's wishes or best interests. This is only exacerbated by this Court's recent conclusion that attorneys working "pro bono" can recoup a profit through attorney fees, and trial courts have no discretion to consider the attorney's "pro bono" status when awarding fees. In fact, the adopted rule expressly recognizes that attorneys can recoup a profit at the same time they provide direct financial aid through "pro bono" services. In all, the more that lawyers are invested in the lifestyle and material state of their clients, the more the risk of a personal and nonprofessional attachment to those clients.
See MRPC 1.2(a) ("A lawyer shall seek the lawful objectives of a client through reasonably available means permitted by law and these rules."); MRPC 1.2, comment ("In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected."); MRPC 1.4(b) ("A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."); MRPC 1.7(b) ("A lawyer shall not represent a client if the representation of that client may be materially limited by . . . the lawyer's own interests ....").
Woodman, 511 Mich at 454 (concluding that trial courts have no discretion to consider whether attorneys holding themselves out to the public and client as working "pro bono" can collect full attorney fees through fee-shifting provisions, with no limitations on how those funds are used).
This extends to nonprofit corporations as well, who by definition can earn an income on individual transactions. See footnote 4.
See adopted amendment 1.8(e)(3) ("Assistance may be provided under this subrule even if the indigent client's representation is eligible for a fee under a fee-shifting statute.").
Specifically, when an attorney is tasked with providing basic food and shelter needs, clear-eyed objectivity on the needs and status of the case, including the client's prospects for success, may be undermined by personal attachment. This is the reverse side of monetary interests. When an attorney is involved not only in arguing the client's best case but also providing the client basic sustenance, charitable instincts and attachment in the form of deep personal empathy risk taking an outsized role. That is why so many ethics rules have been skeptical of personal interests affecting attorney representation, whether it be through representation implicating former clients, familial relations, sexual activity, or the attorney's "personal interests." Furthermore, the client may choose to select an attorney, whether to pursue certain legal approaches to life problems, and whether to involve themselves or continue in a legal proceeding at all, on the basis of whether and to what extent the attorney provides them compensation for personal costs. Needless to say, selecting an attorney and a legal strategy on the basis of who provides the most extensive benefits, instead of who offers the best legal advice and the need for and/or value of legal proceedings in the first place, is not a superior, efficient, or desired system of justice. Attorneys operate as private entities within an open system of consumer choice, but they are very different from insurance providers offering to bundle discount travel and hotels.
MRPC 1.7(b); MRPC 1.7, comment ("Loyalty to a client is also impaired when a lawyer cannot consider, recommend, or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests.... The critical questions [in determining whether representation is precluded under this rule] are the likelihood that a conflict 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."); MRPC 1.8(c), (d), and (i); MRPC 1.8, comment (describing principles behind prohibition on certain media rights contracts and noting that ethics rules can apply to sexual relationships, considering the prohibitions on "representation that lacks competence or diligence" or is "shadowed by a conflict of interest"); MRPC 1.9(a).
Almost certainly after this new amendment is adopted, the choice of what legal representation to select, even between traditional for-profit attorneys and "pro bono" institutions, will be colored by the array of personal financial benefits clients can receive. Nonprofit impact-litigation groups almost certainly will use Michigan's new rule to improve client recruitment and retainment, whether or not hiring those attorneys is the best choice for the individual client. And this result can be achieved passively or unknowingly on the part of the attorneys as the community and client pool builds greater information on the assistance lawyers can offer. The idea that limitations on advertisements directly to prospective clients will stop or keep restrained the public understanding of the direct financial benefits clients can receive through representation approaches wishful thinking. Nothing in the amended rules would prevent nonlawyers, clients, or even disinterested lawyers who do not provide the "pro bono" services from publicly discussing the financial assistance offered by other lawyers. Known policies of publicly facing firms are highly unlikely to remain a trade secret. Just by the mere demands of prospective clients, smaller firms or other attorneys with low capitalization may experience greater difficulty affording entry into the pro bono "market," specifically for clients of interest to more well-financed firms.
Notably, the new amendment seemingly prohibits advertisements only to the extent they seek to attract "prospective clients." The surrounding provisions are clearly directed toward limiting direct statements or promises to prospective clients, and the amendment appears to state that advertisements on the provision of aid cannot be made "to prospective clients." Neither the language nor comments of the rule appear to bar law firms, impact litigation groups, or other attorneys from describing and reiterating to others the financial and life assistance provided to clients, whether for reputational benefits, fundraising, or other reasons. Further, while the new amendment may prevent advertisements or inducements directly targeted at prospective clients, attorneys certainly would not be in the position to lie or misrepresent facts to prospective clients who ask directly about financial assistance. See MRPC 4.1, 7.1, and 8.4(b) (stating the numerous rules prohibiting misleading or false statements). There remain serious questions as to how any limitation on "imply[ing] the availability of assistance" to prospective clients would be enforceable and effected in practice.
The vague and broadly worded requirement that funds be used to "facilitate . . . access to the justice system" poses even less of an obstacle to personal benefit expenditures, as discussed more fully below.
To the extent an attorney declines to provide financial assistance when it is known that financial assistance is permissible and provided by other "pro bono" attorneys, that decision may provoke bitterness or distrust from the client, thereby undermining the attorney-client relationship. Such a decision may also lead the client to decline or terminate representation. That very issue was initially noted by the Legal Services Association of Michigan, which is discussed in more detail below.
The potential consequences of this rule change are disconcerting, to say the least. What if, in providing personal benefits to the client, the client and attorney get into a dispute? What if lunch money or hotel money is used for purposes which the attorney does not approve? What happens when the attorney and client get into a disagreement as to how much money is provided and for what services? There are no set limitations or rules for how, when, and how much money should be spent, so long as they fit within the categories described (e.g., housing during a trial). A seemingly charitable arrangement can quickly turn into a contentious one. Placing attorneys in positions traditionally occupied by social service providers, churches, and other charities down plays the enormous difficulties such service providers address on a daily basis in performing their specialized work. Balancing the immeasurable moral choice between humanitarian interest in a fellow human being and combating abuse, neglect, and perverse incentives would try the resolve and independence of any person, let alone someone who operates within a duty-bound, licensed profession. An attorney who has to deal with financial squabbles with a client, in effect personal issues totally unrelated to the attorney's representation or the case, risks undermining the quality of services provided by that attorney. That is why our ethics rules are so exacting for any commercial transactions with clients.
MRPC 1.8(a), (j).
On the other side of the relationship, clients who are given basic and fundamental benefits, going to the heart of basic standards of life, may be left more reliant, both materially and mentally, upon their attorneys. The professional rules are designed to facilitate clients' exercise of their free and uninhibited choices on major decisions involving the law, notwithstanding their personal life and finances. The rules require upfront and consistent communication to allow clients to "participate intelligently in decisions concerning the objectives of the representation ...." And the ethics rules are replete with provisions requiring attorneys to obtain the knowledgeable consent of the client before attorneys take actions that may affect the direction of legal representation. For instance, clients in their independent judgment must determine the "purposes of litigation," whether to accept a settlement, and whether to accept a plea deal. The rules governing conflicts of interest are not designed for attorneys; the rules are designed to protect clients by ensuring they are given the best, clearest, and most accurate advice possible. That is why major conflicts are permitted only by the consent of the client, after being properly informed of the choice. When a client has received the roof over his head, the food in his stomach, and the clothes on his back from his attorney, there is a real concern that the client will feel a sense of debt to and dependence upon the attorney. That may very well impact clients' decisions on major matters, e.g., whether to settle or proceed to trial, if and when an attorney's advice runs against what the client may otherwise choose. To the extent this Court or others believe those populations should be relieved of financial stress, that may be best accomplished through measures designed to alleviate poverty in society; if this Court believes that there should be greater or more extensive litigation, that is best accomplished through changing the substantive law.
MRPC 1.4, comment.
MRPC 1.2(a); MRPC 1.2, comment.
MRPC 1.7(a), (b); MRPC 1.8(a); MRPC 1.9(a); see also MRPC, Terminology (" 'Consult' or 'consultation' denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.").
There is a reason why the instant prohibition is included within a rule on specific transactions that raise conflicts of interest. The same rule also establishes significant restrictions on business arrangements with clients (no matter how financially favorable those transactions are to the client), receipt of gifts through legal instruments, obtaining media rights, and obtaining any proprietary interest in the subject matter of litigation. Sexual relations with clients are mentioned in the comments section and are governed by general rules of conflicts of interest. All these circumstances involve similar risks of moving attorneys away from being disinterested legal advisors and moving clients away from being careful guardians of their own interests and desires.
MRPC 1.8(a).
MRPC 1.8(c).
MRPC 1.8(d).
MRPC 1.8(j).
MRPC 1.8, comment.
That is the case even though the rules currently permit covering litigation costs for indigent parties. MRPC 1.8(e)(2). Those costs are administrative, are basic to the operation of litigation, are controlled entirely by the attorney, and in large part go unnoticed by the client. They are part and parcel of day-to-day operations of the litigation, which are decisively in the ethical realm of the attorney. That is a world of difference from basic elements of sustenance, such as food, shelter, and clothing. It should be of little surprise that advancing the direct costs of litigation has long been permitted under ethics rules, while supporting nonlegal life expenses is entirely novel. MRPC 1.8(e)(2); see also footnote 6.
Ultimately, the arrangement undermines the arm's-length professional relationship that has defined attorney-client associations. And this is not a new concern. Law and ethics have long recognized that financial interests undermine "the lawyer's undivided loyalty to the client . . . in an effort to protect the lawyer's personal financial investment in the outcome." Such relationships also threaten to "interfere with settlement efforts," with clients either materially benefiting from continued litigation or being personally attached to the attorney's decision. While those issues could theoretically arise in the context of business transactions, they have long been understood to be especially acute in the pursuit of lawsuits and judgments, and among those who may become financially dependent on the continued pursue of legal actions.
State Bar of Michigan, Ethics Opinion RI-14 (1989); see also, e.g., Illinois Rules of Professional Conduct 1.8, comment 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."); 14 Am Jur 2d, Champerty and Maintenance, § 1 (explaining that illicit financial involvement in lawsuits threatened to "give nonparties impermissible interests in suits, impede settlement of underlying cases, and promote speculation in lawsuits").
Ethics Opinion RI-14.
See footnotes 6-10, 36-37, and 39. While ethical rules tightly regulate attorney agreements of a commercial nature with the client, attorney fees, provision of gifts, and conflicts of interest, if there was any indication or evidence demonstrating that business clients were at risk of dependency or inherent conflicts of interest as are clients involved in litigation, I would certainly consider amendment of the ethical rules to prohibit facially problematic transactions. See ante at 3 (noting the purported unfairness in allowing attorneys to make limited social and hospitality spending with certain business clients); MRPC 1.8(a), 1.8(c), 1.7, 1.7 comment (prohibiting conflicts that interfere with an attorney's ability to provide and for the client to consider "appropriate course[s] of action"), 1.5(a) (requiring reasonable fees), and 1.2 (describing the client's unfettered responsibility in determining the "objectives" of representation). Unlike the centuries of common practice in the field of litigation, no such evidence has been presented in the context of standard business contacts. That is likely due in no small part to the fact that attorney services are an inherent and necessary part of doing business, as opposed to the more selective and strategic choice to pursue litigation, and the fact that business transactions do not result in settlements or judgments, which are obtainable only through legal proceedings and can produce attorney-fee awards and contingency fees. In business contexts, clients primarily pay hourly attorney fees, and are accustomed to doing so; attorneys in business contexts generally are not compensated by devising claims, continuing lawsuits, and obtaining monetary payment from the opposing party. Notably, the new amendment still focuses the rule on litigation clients. There are pronounced reasons for doing so.
Financial involvement in a client's personal well-being, whether for a short or extended period of time, has never been permitted. Every neighboring state has a blanket rule to guard against such involvement. And this amendment to substantially loosen limits on attorney financial involvement in clients' personal lives has been advanced only in the very recent past. Very few jurisdictions have adopted comparable amendments (Alaska, Colorado, Connecticut, Massachusetts, Missouri, New York, New Jersey), and they have done so only very recently. After this amendment, Michigan remains an outlier, not only among our Midwest sister states but in the country at large. In essence, this is a novel amendment of foundational ethical principles, taken on without substantial experience or long-term understanding of its impact on the practice of law. Such actions should be taken with caution and restraint, yet today's amendment is a far cry from broad based and consensus decision-making.
See Ohio Rules of Professional Conduct 1.8(e); Indiana Rules of Professional Conduct 1.8(e); Illinois Rules of Professional Conduct 1.8(e); Wisconsin Supreme Court Rule 20:1.8(e).
See Alaska Rules of Professional Conduct 1.8(e)(3); Colorado Rules of Professional Conduct 1.8(e)(3); Connecticut Rules of Professional Conduct 1.8(e)(3); Massachusetts Rules of Professional Conduct 1.8(e)(3); Missouri Supreme Court Rule 004, Rules of Professional Conduct 4-1.8(e)(3); New Jersey Rules of Professional Conduct 1.8(e)(3); New York Rules of Professional Conduct 1.8(e)(3). All named jurisdictions have adopted this amendment only after 2020, with New Jersey being the exception, having adopted its amendment in 2015. New Jersey Rules of Professional Conduct 1.8(e) (historical notes). Several jurisdictions, located primarily in the lower south, have rules with longer vintage that permit direct financial assistance. However, those rules are expressly tailored to extraordinary and highly unusual circumstances, and ultimately, financial liability is retained by the client. Alabama Rules of Professional Conduct 1.8(e), comment (permitting "the lawyer either to advance a loan to the client or to guarantee the repayment of a loan by a third party to the client," recognizing the serious and inherent conflicts of interests, and stating that it is permissible only in the "narrowest and most compelling of circumstances"); Louisiana Rules of Professional Conduct 1.8(e)(4) and (5) (allowing certain financial assistance to the client in "necessitous circumstances" but setting forth several restrictions on such assistance and providing detailed financial terms and interest rates for the personal loans permitted by the rule); see also Ciolino, Louisiana Legal Ethics, Rule 1.8. Conflict of Interest: Current Clients-Specific Ruleshttps://lalegalethics.org/louisiana-rules-of-professional-conduct/article-1-client-lawyer-relationship/rule-1-8-conflict-of-interest-current-clients-specific-rules/(accessed November 17, 2023) [https://perma.cc/BWK2-48GL] (describing the current Rule 1.8 as allowing financial assistance "only under tightly-regulated circumstances" and explaining that the legal community in the state had a past practice of advancing loans to clients despite the fact that it arguably violated the previous version of Rule 1.8, which "flatly prohibited lawyers from advancing living expenses to clients"); Mississippi Rules of Professional Conduct 1.8(e)(2) (permitting attorney advances, explaining that such loans can be issued only under "dire and necessitous circumstances," capping total amount of potential loans, and requiring immediate reporting of any personal loan to the state bar for review); Texas Disciplinary Rules of Professional Conduct 1.08(d) (allowing attorneys to issue loans in similar circumstances). By contrast, the instant amendment condones direct financial support, at the expense of the attorney or firm, so long as it supports "access to justice."
It should not be a surprise that the Legal Services Association of Michigan, which represents legal aid programs throughout the state, initially filed a paper opposing the first proposal underlying this amendment in May 2021. The initial proposal was substantially similar, although different in some respects, to the amendment adopted today. Legal Services noted in 2021, rationally, that allowing nonprofit attorneys to pay personal expenses for clients would put untoward pressure on (often strained) attorneys to provide financial assistance, even if they do not wish to. Whether for moral, personal, or legal reasons, attorneys working for a nonprofit would feel pressured to provide the assistance, lest as a result the client declines representation; develops bitter feelings or animus, which could threaten the effectiveness of the attorney-client relationship; or falls into concerning economic circumstances with which any person would naturally sympathize. In addition, the proposal would undermine the proper boundaries attorneys as legal professionals have with their clients. After the instant rule was published for public comment, however, Legal Services changed its position and apparently is now in complete agreement that the rule should be changed, using the broadest language possible. Legal Services provided no explanation for this change in direction. The concurring statement provides a somewhat convoluted history of this amendment which may imply to some readers that the initial proposal was amended, in an homage to pragmatism, as a result of the proposal's initial "breadth," that opposing positions and concerns were acknowledged in a final compromise, and that Legal Services' change in position was not especially marked. To dispel any potential confusion, the rule adopted today is almost identical to the initial proposal, about which Legal Services expressed serious reservations prior to this Court's request for public comments.
Legal Services of course supports other social safety nets, and in fact, has a policy to refer potential clients to those established resources.
See ante at 3 (noting the "broadly allowed" payments authorized in the initial proposal, Legal Services' opposition to the "breadth" of the initial proposal, the Court's interest in adopting a "more nuanced, limited proposal," the several alterations to the proposal, and the eventual adoption of the final amendment, which was drafted to "accommodate and balance stakeholder desires with ethical concerns").
This is the initial State Bar proposal in full, which Legal Services fiercely opposed:
(3) a lawyer representing an indigent client may provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses provided that the lawyer represents the indigent client pro bono, pro bono through a nonprofit legal services or public interest organization, or pro bono through a law school clinical or pro bono program. The legal services must be delivered at no fee to the indigent client and the lawyer:
(i) may not promise, assure or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention;
(ii) may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client; and
(iii) may not publicize or advertise a willingness to provide such financial gifts to prospective clients.
Financial assistance provided under (3) may be provided even if the indigent client's representation is eligible for a fee under a fee-shifting statute.
Other than removing the requirement that "gifts" be "modest" and the permission to spend the gifts on "medicine," there is little to no material difference between this proposal and the proposal eventually adopted by this Court. Further, as discussed further below, Legal Services in its subsequent letter to this Court argued for the removal of certain limitations on client expenses, such as restrictions on expenditures to costs directly associated with court proceedings and limits on the use of public funds raised for the provision of legal services. This made the rule substantially more in line with the initial proposal offered by the State Bar. Legal Services offered no explanation for this 180-degree turn.
Legal Services' initial position is exactly what the analysis should be here. The Court should not outsource social services programs to attorneys, who may not be able to afford that investment, may become increasingly dependent on the outcome of the litigation, or may become personally attached to the client and the client's lifestyle to the extent it negatively affects proper judgment. Clients themselves may seek out and demand attorney services, not considering the best representation or the need for representation for any given issue, but to the extent direct financial support is provided for the client's personal life. Once the client's personal finances and the existence of litigation or representation are intermixed, the client may struggle to make objective decisions based on what is in their best interests, notwithstanding the position of their attorney or the material aid provided. To the extent there is a need for greater food, clothing, or housing for individuals with low income, that should be provided by general funds or charities that are not attached or dependent on a specific lawsuit or a specific legal representation.
A final note on the language adopted, as compared to the language proposed in the public comment period. Initially, the proposal included many notable basic backstops and protections. The proposal tied the financial assistance to needs directly and proximately associated with litigation or the costs of representation: travel to or from court proceedings, meals during court proceedings, and clothing for court proceedings. Further, the proposal limited the amount of funds that could be drawn from already stressed and financially burdened legal aid providers. This would have addressed the serious issues raised by Michigan's legal aid providers prior to public comments, and it would have ensured that public funding intended to provide legal services would not be taken up instead by personal and life expenses, which are covered by a panoply of social service programs not conditioned on an attorney-client relationship. While large firms, nonprofits, or impact-litigation organizations could perhaps better afford reimbursement of a client's life expenditures, it is abundantly reasonable to not place similar pressures and demands on the state's legal aid system and other funds raised specifically to provide legal representation. The argument presented in the concurrence that there would be greater "utility" in allowing funds specifically raised for legal representation to be diverted to personal life expenses, due in large part to the number of indigent individuals in society, amounts to a policy argument about the need for greater social services. In addition, the individual workers in such legal aid institutions would of course have the ability to decline similar assistance out of their incomes pursuant to the express and rule-bound policy of their organizing institutions, if for no other reason than that their salaries are paid solely for providing legal representation. New York's version of the amendment contained a similar safeguard to the initial proposal here. Finally, the initial proposal stated what should be a basic and fundamental principle of any personal financial aid: it cannot be given if it makes the client "financially beholden to the provider of the assistance." The New York version also contains this foundational limitation.
Legal Services, in its new position, argued that such limitations would be difficult to understand and apply. "[T]ransportation to and from court proceedings," "meals during long court proceedings," and "clothing for court appearances" are not ambiguous terms, with the possible exception of the term "long" in reference to court proceedings. And such express limitations are no less uncertain than many basic ethics rules, such as those requiring "reasonable diligence," a "reasonable fee," and withdrawal for personal conflicts, to name three prominent examples. MRPC 1.3, 1.5, and 1.7. Further, such limitations are certainly less amorphous and uncertain than the freewheeling standard actually adopted, which permits payment for meals, transportation, and clothing so long as they "facilitate . . . access to the justice system ...."
While much of the concern is utilizing limited resources expressly directed for legal representation, such limits also provide important guardrails on how charitable funds are used. Funds were appropriated from the public fisc and through donations for a specific purpose: providing legal representation to the poor. Expanding those purposes to personal welfare and financial assistance can present a materially different charitable project, which implicates significant differences in values on means and ends as compared to basic legal representation. Many individuals who may support legal representation may have a different view if they knew such funds would be used to provide financial assistance for other life expenditures, without predefined conditions or systems of oversight. The amendment could very well create divergence from the original intent of the donors who supplied the funds.
Ante at 3-4; see also footnote 5 (listing the panoply of social services and private charity funds that have been established over decades to serve low-income individuals). Of course, such an argument would be appropriate when petitioning the Legislature or developing fundraising campaigns for charities, but not for materially altering well-established ethical rules for attorneys.
See New York Rules of Professional Conduct 1.8(e)(4) ("Funds raised for any legal services or public interest organization for purposes of providing legal services will not be considered useable for providing financial assistance to indigent clients[.]").
Id.
Notwithstanding these concerns, the version adopted by this Court today removes all of these limits contained in the initial proposal. The permitted expenses are no longer limited or tied to direct costs of legal representation or court appearances. In fact, no qualification on the source or basis for the expenses is provided at all. So long as the expenses fall within the categories of need, for instance, of transportation, meals, or clothing, the expenses are permitted. Housing is especially problematic because it is permitted so long as it "less costly" than "providing transportation for multiple days." No definition of "cost" is provided, and it could include housing or facilities already paid for or expensed notwithstanding the litigation, such as the properties owned by an attorney or a public-facing charity. Given that there is no limitation to the use of the expenditures for court proceedings, it is possible that housing of indigent clients could continue for a notable period of time, so long as it "facilitate[s] . . . access to the justice system." Added all together, these categories of expenses can be personally and financially significant for attorneys, especially when they are multiplied by several clients whom an attorney may represent. From an indigent client's perspective, the value of such services can be even more compelling.
The adopted rule also removes the basic protection given to the legal aid system and other funds raised for legal services, as opposed to personal expenditures for low-income individuals. And most strikingly, the adopted version removes the express limitation on such aid creating dependency. There is no reasonable justification for eliminating express and clear limitations on financial assistance creating unacceptable conflicts of interest, and no such explanation is included in the adopted comments. It imposes no additional burden on the readability, coherence, or public accessibility of the ethics rules to state what should be a fundamental principle: assistance cannot cause the client to become "financially beholden to the provider of the assistance." If the rule actually permitted only sporadic and very small payments, as statements included in the concurrence may imply, the rule could have included caps on aggregate expenditures, duration, or occurrences. It could have also expressly clarified that the expenditures cannot create financial dependency. The rule includes no such language, while also eliminating traditional ethical restrictions on attorney involvement in clients' personal lives.
See ante at 5 (providing the example of an attorney paying for transportation and a meal for a client during a "long meeting[]" as the example of permitted expenditures).
Now, so long as the expenditures are given to facilitate the "access to the justice system," "pro bono" expenses under the rule are permitted. Of course, the rule provides no definition of the phrase "facilitate . . . access to the justice system." And the phrase on its face is vague, generalized, and potentially applicable to a wide array of life expenditures. If an attorney believes paying for the client's transportation to work would alleviate financial stress and facilitate continued litigation, would that be permissible under the rules? Given the language chosen by this Court, that is quite possible. The definition offered by the concurrence for "facilitat[ing] . . . access to the justice system"- "[enhancing the] client's participation" in the representation-offers little comfort that the language will be construed narrowly. In attempting to alleviate immediate and direct burdens from litigation, this Court may instead condone massive expansions of attorney involvement in the personal and financial lives of clients. The term "attorney" may receive a new meaning for many indigent clients.
Ante at 3.
In all, I would not undertake a material deregulation of Michigan's legal ethics rules, made in conflict with decades if not centuries of practice, undertaken by a distinct minority of jurisdictions, and completed without full understanding of the amendment's long-term effects. For the foregoing reasons, I dissent.
VIVIANO, J., joins the statement of ZAHRA, J.
Rule: 1.9 Conflict of Interest: Former Client
Comment: After termination of a client-lawyer relationship, a lawyer may not represent another client except in conformity with this rule. The principles in Rule 1.7 determine whether the interests of the present and former client are adverse. Thus, 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.
The scope of a "matter" for purposes of this rule may depend 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 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 wholly 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 jurisdiction. 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.
LAWYERS MOVING BETWEEN FIRMS
When lawyers have been associated in a firm but then end their association, the problem is more complicated. First, the client previously represented must be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule of disqualification should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the rule of disqualification 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, 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 imputed disqualification 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.
Reconciliation of these competing principles in the past has been attempted under two rubrics. One approach has been to seek rules of disqualification per se. For example, it has been held that a partner in a law firm is conclusively presumed to have access to all confidences concerning all clients of the firm. Under this analysis, if a lawyer has been a partner in one law firm and then becomes a partner in another law firm, there is a presumption that all confidences known by a partner in the first firm are known to all partners in the second firm. This presumption might properly be applied in some circumstances, especially where the client has been extensively represented, but may be unrealistic where the client was represented only for limited purposes. Furthermore, such a rigid rule exaggerates the difference between a partner and an associate in modern law firms.
The other rubric formerly used for dealing with vicarious disqualification is the appearance of impropriety proscribed in Canon 9 of the former Michigan Code of Professional Responsibility. Two problems can arise under this rubric. First, the appearance of impropriety might be understood to include any new client-lawyer relationship that might make a former client feel anxious. If that meaning were adopted, disqualification would become little more than a question of subjective judgment by the former client. Second, since "impropriety" is undefined, the term "appearance of impropriety" begs the question. Thus, the problem of imputed disqualification cannot readily be resolved either by simple analogy to a lawyer practicing alone or by the very general concept of appearance of impropriety.
A rule based on a functional analysis is more appropriate for determining the question of vicarious disqualification. Two functions are involved: preserving confidentiality and avoiding positions adverse to a client.
Under Rule 1.10(b), screening may be employed to preserve the confidences of a client when a lawyer has moved from one firm to another. Rule 1.10(b) applies not just to cases in which a lawyer's present and former firms are involved on the date the lawyer moves. The paragraph also applies where the lawyer's present firm later wishes to enter a case from which the lawyer is barred because of information acquired while associated with the prior firm.
CONFIDENTIALITY
Preserving confidentiality is a question of access to information. Access to information, in turn, is essentially a question of fact in particular circumstances. The determination of that question of fact can be aided by inferences, deductions, or assumptions 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 discussion 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.
Application of paragraph (b) depends on a situation's particular facts. In any such inquiry, the burden of proof should rest upon the lawyer whose disqualification is sought.
Rule 1.10(b), incorporating paragraph (b) of this rule, operates to disqualify the firm 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 of 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.
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 Rule 1.6.
ADVERSE POSITIONS
The second aspect of loyalty to a client is the lawyer's obligation to decline subsequent representations involving positions adverse to a former client arising in substantially related matters. This obligation requires abstention from adverse representation by the individual lawyer involved, but does not properly entail abstention of other lawyers through imputed disqualification. Thus, if a lawyer left one firm for another, the new affiliation would not preclude the firms involved from continuing to represent clients with adverse interests in the same or related matters, so long as the conditions of Rule 1.10(b) and (c) have been met.
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.
Disqualification from subsequent representation is for the protection of clients and can be waived by them. A waiver is effective only if there is disclosure of the circumstances, including the lawyer's intended role in behalf of the new client.
With regard to an opposing party raising a question of conflict of interest, see comment to Rule 1.7. With regard to disqualification of a firm with which a lawyer is or was formerly associated, see Rule 1.10.
Rule: 1.10 Imputed Disqualification: General Rule
Comment:
DEFINITION OF "FIRM"
For purposes of these rules, the term "firm" includes lawyers in a private firm and lawyers employed in the legal department of a corporation or other organization or in a legal services organization. Whether two or more lawyers constitute a firm within this definition 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 suggesting 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 confidential 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.
With respect to the law department of an organization, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. However, there can be uncertainty 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.
Similar questions can also arise with respect to lawyers in legal aid. Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as being associated with each other can depend on the particular rule that is involved and on the specific facts of the situation.
Where a lawyer has joined a private firm after having represented the government, the situation is governed by Rule 1.11(a) and (b); where a lawyer represents the government after having served private clients, the situation is governed by Rule 1.11(c)(1). The individual lawyer involved is bound by the rules generally, including Rules 1.6, 1.7, and 1.9.
PRINCIPLES OF IMPUTED DISQUALIFICATION
The rule of imputed disqualification stated in paragraph
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), unless the provisions of this rule are followed.
[amended effective May 22, 2007]
Rule: 1.11 Successive Government and Private Employment
Comment: This rule prevents a lawyer from exploiting public office for the advantage of a private client. It is a counterpart of Rule 1.10(b), which applies to lawyers moving from one firm to another.
A lawyer representing a government agency, whether employed or specially retained by the government, is subject to the Rules of Professional Conduct, including the prohibition against representing adverse interests stated in Rule 1.7 and the protections afforded former clients in Rule 1.9. In addition, such a lawyer is subject to Rule 1.11 and 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.
Where the successive clients are a public agency and a private client, the risk exists that power or discretion vested in public authority might be used for the special benefit of a private client. A lawyer should not be in a position where benefit to a private client might affect performance of the lawyer's professional functions on behalf of public authority. Also, unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. However, 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. The provisions for screening and waiver are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service.
When the client is an agency of one government, that agency should be treated as a private client for purposes of this rule if the lawyer thereafter represents an agency of another government, as when a lawyer represents a city and subsequently is employed by a federal agency.
Paragraphs
Paragraph
Paragraph (b) 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.
Paragraphs
Paragraph (c) does not disqualify other lawyers in the agency with which the lawyer in question has become associated.
Rule: 1.12 Former Judge or Arbitrator
Comment: 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.
Rule: 1.13 Organization as Client
Comment:
THE ENTITY AS THE CLIENT
In transactions with their lawyers, clients who are individuals can speak and decide for themselves, finally and authoritatively. In transactions between an organization and its lawyer, however, the organization can speak and decide only through agents, such as its officers or employees. In effect, the client-lawyer relationship is maintained through an intermediary between the client and the lawyer. This fact requires the lawyer under certain conditions to be concerned whether the intermediary legitimately represents the client.
When officers or employees 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 an officer or employee that is in violation of law. In such a circumstance, it may be reasonably necessary for the lawyer to ask the officer, employee, or other agent 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 officer or employee normally responsible for it. The stated policy of the organization may define circumstances and prescribe channels for such review, and a lawyer should encourage 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 officer 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.
In an extreme case, it may be reasonably necessary for the lawyer to refer the matter to the organization's highest authority. Ordinarily, that is the board of directors or similar governing body. However, applicable law may prescribe that under certain conditions highest authority reposes elsewhere, for example, in the independent directors of a corporation. The ultimately difficult question is whether the lawyer should be permitted to circumvent the organization's highest authority when it persists in a course of action that is clearly violative of law or a legal obligation to the organization and that is likely to result in substantial injury to the organization.
In such a situation, if the lawyer can take remedial action without a disclosure of information that might adversely affect the organization, the lawyer as a matter of professional discretion may take such actions as the lawyer reasonably believes to be in the best interest of the organization. For example, a lawyer for a close corporation may find it reasonably necessary to disclose misconduct by the board to the shareholders. However, taking such action could entail disclosure of information relating to the representation with consequent risk of injury to the client. When such is the case, the organization is threatened by alternative injuries: the injury that may result from the governing board's action or refusal to act, and the injury that may result if the lawyer's remedial efforts entail disclosure of confidential information. The lawyer may pursue remedial efforts even at the risk of disclosure in the circumstances stated in subparagraphs (c)(1) and (c)(2).
RELATION TO OTHER RULES
The authority and responsibility provided in Rules 1.13(b) and (c) are concurrent with the authority and responsibility provided in other rules. In particular, this rule does not limit the lawyer's authority under Rule 1.6, the responsibilities to the client under Rules 1.8 and 1.16 and the responsibilities of the lawyer under Rule 3.3 or 4.1. If the lawyer's services are being used by an organization to further an illegal act or fraud by the organization, Rule 1.2(c) can be applicable. In connection with complying with Rule 1.2(c), 3.3 or 4.1, or exercising the discretion conferred by Rule 1.6(c), a lawyer for an organization may be in doubt whether the conduct will actually be carried out by the organization. To guide conduct in such circumstances, the lawyer ordinarily should make inquiry within the organization as indicated in Rule 1.13(b).
When the lawyer involved is a member of a firm, the firm's procedures may require referral of difficult questions to a superior in the firm. In that event, Rule 5.2 may be applicable.
UNINCORPORATED ASSOCIATIONS
The duty defined in this rule applies to unincorporated associations.
GOVERNMENTAL AGENCY
The duty defined in this rule applies to governmental organizations. However, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful official act is prevented or rectified because public business is involved. In addition, duties of lawyers employed by the government or lawyers in military service may be defined by statutes and regulations. Therefore, defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context. In some circumstances, it may be a specific agency, but in others it may be the government as a whole. For example, if the action or failure to act involves the head of a bureau, the department of which the bureau is a part may be the client for purpose of this rule. With these qualifications, the lawyer's substantive duty to the client and reasonable courses of action are essentially the same as when the client is a private organization.
CLARIFYING THE LAWYER'S ROLE
The fact that the organization is the client may be quite unclear to the organization's officials and employees. An organization official accustomed to working with the organization's lawyer may forget that the lawyer represents the organization and not the official. The result of such a misunderstanding can be embarrassing or prejudicial to the individual if, for example, the situation is such that the client-lawyer privilege will not protect the individual's communications to the lawyer. The lawyer should take reasonable care to prevent such consequences. The measures required depend on the circumstances. In routine legal matters, a lawyer for a large corporation does not have to explain to a corporate official that the corporation is the client. On the other hand, if the lawyer is conducting an inquiry involving possible illegal activity, a warning might be essential to prevent unfairness to a corporate employee. See also Rule 4.3.
DUAL REPRESENTATION
Paragraph (e) recognizes that a lawyer for an organization may also represent a principal officer or major shareholder. Such common representation, although often undertaken in practice, can entail serious potential conflicts of interest.
DERIVATIVE ACTIONS
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.
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 whether independent counsel should represent the directors.
Rule: 1.14 Client Under a Disability
Comment: 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 mental disorder or disability, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, an incapacitated person may have no power to make legally binding decisions. Nevertheless, a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence. 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.
The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. If the person has no guardian or legal representative, the lawyer often must act de facto as guardian. Even if the person does have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.
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. If a legal representative has not been appointed, the lawyer should see to such an appointment where it would serve the client's best interests. Thus, if a disabled client has substantial property that should be sold for the client's benefit, effective completion of the transaction ordinarily requires appointment of a legal representative. In many circumstances, however, appointment of a legal representative may be expensive or traumatic for the client. Evaluation of these considerations is a matter of professional judgment on the lawyer's part.
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(c).
If the lawyer seeks the appointment of a legal representative for the client, the filing of the request itself, together with the facts upon which it is predicated, may constitute the disclosure of confidential information which could be used against the client. If the court to whom the matter is submitted thereafter determines that a legal representative is not necessary, the harm befalling the client as the result of the disclosure may be irreparable. Consequently, consideration should be given to initially filing the petition seeking the appointment of a legal representative ex parte so that the court can decide how best to proceed to minimize the potential adverse consequences to the client by, for example, issuing a protective order limiting the disclosure of the confidential information upon which the request is predicated.
DISCLOSURE OF THE CLIENT'S CONDITION
Rules of procedure in litigation generally provide that minors or persons suffering mental disability shall be represented by a guardian or next friend if they do not have a general guardian. However, disclosure of the client's disability can adversely affect the client's interests. For example, raising the question of disability could, in some circumstances, lead to proceedings for involuntary commitment. The lawyer's position in such cases is an unavoidably difficult one. The lawyer may seek guidance from an appropriate diagnostician.
Rule: 1.15 Safekeeping Property
Comment: 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 which is the property of a client or a third person should be kept separate from the lawyer's business and personal property and, if funds, should be kept in one or more trust accounts. Separate trust accounts may be warranted when administering estate funds or acting in similar fiduciary capacities.
Lawyers often receive from third persons funds from which the lawyer's fee will be paid. If there is risk that the client may divert the funds without paying the fee, the lawyer is not required to remit the portion from which the fee is to be paid. However, a lawyer may not hold funds to coerce a client into accepting the lawyer's contention. The disputed portion of the funds should be kept in trust 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.
A third person, such as a client's creditors, may have a just claim against funds or other property in a lawyer's custody. A lawyer may have a duty under applicable law to protect such a third-party claim against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third person.
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 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.
Rule: 1.16 Declining or Terminating Representation
Comment: A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion.
MANDATORY WITHDRAWAL
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.
When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. See also Rule 6.2. Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may wish 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.
DISCHARGE
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.
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 the client to represent himself.
If the client is mentally incompetent, 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, in an extreme case, may initiate proceedings for a conservatorship or similar protection of the client. See Rule 1.14.
OPTIONAL WITHDRAWAL
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 illegal 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 also may withdraw where the client insists on a repugnant or imprudent objective.
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
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.
Whether a lawyer for an organization may under certain unusual circumstances have a legal obligation to the organization after withdrawing or being discharged by the organization's highest authority is beyond the scope of these rules.
Staff Comment: The [September 1, 2018] amendment of MRPC 1.16 addresses the concern raised during the Court's consideration of People v Townsend, docket 153153, to ensure that criminal defendants are made aware of the fact that an attorney cannot withdraw without the court's permission.
Rule: 1.17 Sale of a Law Practice
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.
SELLING ENTIRE PRACTICE
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.
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
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
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
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 MRPC 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. 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.
A lawyer or law firm ceasing to practice cannot be required to remain in practice because some clients cannot be given actual notice of 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 of the judicial circuit in which the seller maintains the practice, authorizing their transfer or other disposition. The court can be expected to determine whether reasonable efforts to locate the client have been exhausted, and 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 requires that the petition for a court order be considered in camera.
The client should be told the identity of the purchaser before being asked to consent to disclosure of confidences and secrets or to consent to transfer of the file.
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.
FEE ARRANGEMENTS BETWEEN CLIENT AND PURCHASER
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.
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
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.
Rule: 1.18 Duties to Prospective Client
Comments:
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 consultations 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.
A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer's advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer's obligations, and a person provides information in response. In contrast, a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer's education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person 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, and is thus not a "prospective client." Moreover, a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a "prospective client."
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.
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 consultation 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.
A lawyer may condition a consultation 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. 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.
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.
Under paragraph (c), the prohibition in this Rule is imputed to other lawyers as provided in Rule 1.10, but, under paragraph (d)(l), 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. 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.
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.
Mich. R. Prof'l. Cond. 1.1 - 1.18
Comment: 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 MRPC 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 MRPC 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.
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, MRPC 1.1, the obligation to avoid disqualifying conflicts and to secure client consent after consultation for those conflicts that can be waived, MRPC 1.7, and the obligation to protect information relating to the representation, MRPC 1.6 and 1.9.
If approval of the substitution of the purchasing attorney for the selling attorney 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, MRPC 1.16. See also MCR 2.117(C).
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.