Public Policy Update from the State Bar of Michigan
October 25–November 1, 2010
Volume 8 Issue 44

Vote Tuesday! 2010 General Election
Visit the Michigan Voter Information Center provided by the Secretary of State at www.michigan.gov/vote.

In the Capitol
The Senate is in session November 3 at 12.00 p.m. and November 4 at 10:00 a.m. The House is in session November 4 at 12:00 p.m.
House Schedule
Senate Schedule

Committee Meetings of Interest for the Week of 11/1
11/3 Senate Judiciary
Agenda: SB 39 Provide immunity liability of a peace officer for injuries caused while rendering assistance outside jurisdiction; SB 223 Establish forfeiture provisions, and increase penalties for identity theft; SB 224 Amend penal code to include identity theft protection act as predicate offense underlying racketeering activity; SB 225 Expand prosecutorial jurisdiction for certain counterfeit debit, credit card, and driver license offenses; SB 226 Enact sentencing guidelines for increased penalties for certain identity theft protection act violations; SB 1382 Modify procedure for continuation of a surety bond under certain circumstances; SB 1434 Require motor carrier officers to be trained and certified as law enforcement officers; SB 1475 Regarding liability for a defect in a sidewalk, clarify that inference regarding a defect of less than 2 inches applies to any sidewalk maintained by a municipal corporation.

Complete Committee Meeting List

New Public Acts

In the Hall of Justice
Don't be Fooled by Bogus Phone Calls, State Court Administrative Office Warns; Scammers Pose as Court Officials, Seek Information

Attorney Jerome Kole of Sanford Named New Region IV Administrator for State Court Administrative Office

John O. Juroszek of Haslett Named Reporter of Decisions for Michigan Supreme Court, Michigan Court of Appeals

Attorney Grievance Commission Appointments Announced by Michigan Supreme Court

Rule Amendments
2009-06 Amendments of Rules 3.1, 3.3, 3.4, 3.5, 3.6, 5.5, and 8.5 of the Michigan Rules of Professional Conduct and Adoption of New Rules 2.4, 5.7, and 6.6 of the Michigan Rules of Professional Conduct
There is no equivalent to MRPC 2.4 in the current Michigan Rules of Professional Conduct. The rule is designed to help parties involved in alternative dispute resolution to better understand the role of a lawyer serving as a third party neutral.

The amendments of MRPC 3.1 make no changes in the current rule, but modify the accompanying commentary to clarify that a lawyer is not responsible for a client's subjective motivation.

The changes in MRPC 3.3 specify in paragraph (a)(1) that a lawyer shall not knowingly "fail to correct a false statement of material fact or law," and substitute paragraph (b) for current paragraph (a)(2), which deals with a disclosure that is "necessary to avoid assisting a criminal or fraudulent act by the client." In addition, several paragraphs from the comment relating to remedial actions a lawyer must take upon learning that false testimony has been offered have been combined and inserted into the body of the rule as new subsection (e).

The amendments of MRPC 3.4 clarify in paragraph (f)(1) that a lawyer may not ask someone other than a client to refrain from voluntarily giving relevant information to another party unless the person is "an employee or other agent of a client for the purposes of MRE 801(d)(2)(D)."

The amendments of MRPC 3.5 add paragraph (c), which clarifies the rule regarding lawyers' contact of jurors and prospective jurors after the jury is discharged.

The amendments in this rule expand the current rule considerably by moving substantial portions of the current commentary into the rule itself. See, for example, paragraph (b), and the latter portion of paragraph (a). The initial part of paragraph (a) is substantially the same as the current rule, except that the "reasonable lawyer" standard is substituted for the "reasonable person" standard.

The amended rule sets specific guidelines for out-of-state lawyers who are appearing temporarily in Michigan, and is intended to work in conjunction with MRPC 8.5. See, also, MCR 8.126 and MCR 9.108(E)(8).

This is a new rule. The underlying presumption of the rule is that the Michigan Rules of Professional Conduct apply whenever a lawyer performs lawrelated services or controls an entity that performs law-related services. The accompanying commentary explains that the presumption may be rebutted only if the lawyer carefully informs the consumer and identifies the services that are law related and clarifies that no client-lawyer relationship exists with respect to ancillary services.

MRPC 6.6 is a new rule. The rule addresses concerns that a strict application of conflict-of-interest rules may deter lawyers from volunteering to provide short-term legal services through nonprofit organizations, court-related programs, and similar other endeavors such as legal-advice hotlines.

The amendments of MRPC 8.5 add a separate section on choice of law. The rule specifically gives discipline authorities jurisdiction to investigate and prosecute the ethics violations of attorneys temporarily admitted to practice in Michigan. The rule is intended to work in conjunction with MRPC 5.5. See, also, MCR 8.126 and MCR 9.108(E)(8).
Issued: October 26, 2010
Effective: January 1, 2011

Proposed Amendments
2004-08 Proposed Amendment of Rule 8.126 of the Michigan Court Rules
Michigan's updated pro hac vice rule, MCR 8.126, has been in place since 2008, and several changes to the rule have been recommended. Those changes include a requirement that the fee be charged for each request for pro hac vice admission, that the court that grants the motion send a copy of the order to the AGC (instead of requiring that the Michigan attorney send the copy to the AGC), that the rule specifically include an attorney's temporary admission for arbitration proceedings, and that the fee be required to be paid before an order enters.
Issued: October 26, 2010
Comment period expires: February 1, 2011
Public Hearing: To be scheduled

2007-17 Proposed Amendment of Rule 8.121 of the Michigan Court Rules
This proposed amendment of MCR 8.121was submitted to the Court to address a situation in which attorneys charge more than the one-third contingency fee that is the allowable fee limit charged in wrongful death and personal injury actions.
Issued: October 26, 2010
Comment period expires: February 1, 2011
Public Hearing: To be scheduled

Other Actions
2010-01 Supreme Court Appointment of Chief Judge in Oakland County Probate Court
Issued: October 26, 2010
Effective: From January 1, 2011, through December 31, 2011.

2010-01 Supreme Court Appointments to the Attorney Grievance Commission
Issued: October 26, 2010
Effective: Appointment of members through October 1, 2013; appointment of chairperson and vice-chair through October 1, 2011.

At the Bar
Sections and Committees
The Appellate Practice Section submitted a Public Policy position on 2010-21 Proposed Amendment of Rule 8.110 of the Michigan Court Rules. This proposal would exclude cases that are stayed during an interlocutory appeal from being included in the group of cases that a chief judge must report to the State Court Administrator that are delayed beyond the time guidelines.

The Negligence Law Section submitted a Public Policy position on 2002-24 Proposed Amendment of Rule 7.3 of the Michigan Rules of Professional Conduct. The proposed addition of subrule (c) of MRPC 7.3 would require a lawyer who seeks professional employment from a prospective client to designate the writing as an advertisement by prominently displaying the words "Advertising Materials" on the outside envelope (or brochure, pamphlet, or postcard) and at the beginning and end of every written, recorded, or electronic communication.

State News
Michigan's New Governor Must be Ready on Day 1
(Detroit Free Press, 10/31/10)

Links of Interest
Public Policy Resource Center | Michigan Supreme Court | Michigan Legislature | MCL Search Engines