ADM File No. 2020-15
Amendment of Rule 2 and Addition of Rule 21 of the Rules Concerning the State Bar of Michigan and Amendment of Rule 9.119 and Addition of Subchapter 9.300 of the Michigan Court Rules
To read ADM File No. 2020-15, dated June 15, 2022, visit http://courts.michigan.gov/courts/michigansupremecourt and click “Administrative Matters & Court Rules” and “Proposed & Recently Adopted Orders on Admin Matters.”
ADM File No. 2021-26
ADM File No. 2021-42
Adoption of Administrative Order No. 2022-3
Increase in Attorney Dues for the State Bar of Michigan Operations and the Attorney Discipline System
On order of the Court, notice of the proposed changes and an opportunity for comment in writing and at a public hearing having been provided, and consideration having been given to the comments received, Administrative Order No. 2022-3 is adopted, effective October 1, 2022.
Administrative Order No. 2022-3 — Increase in Attorney Dues for State Bar of Michigan Operations and the Attorney Discipline System
Under Rule 4 of the Rules Concerning the State Bar of Michigan, dues for active members of the State Bar of Michigan are “to be set by the Supreme Court to fund: (1) the Attorney Grievance Commission and the Attorney Discipline Board, (2) the client security fund administered by the State Bar, and (3) other State Bar expenses.” The State Bar of Michigan Representative Assembly and the Attorney Discipline System (comprising the Attorney Grievance Commission and the Attorney Discipline Board) have submitted requests for dues increases for the fiscal year beginning October 1, 2022.
In light of the fact that the State Bar has not had a dues increase since 2003, and to continue the valuable services and resources the Bar provides for its members, the Court hereby establishes the State Bar portion of annual bar dues at $260, an increase of $80. In addition, the Court establishes the ADS portion of annual bar dues at $140, an increase of $20. Dues for the client protection fund remain at the level of $15 per year.
This change will be reflected in the dues notice for the 2022-23 fiscal year that is distributed to all bar members under Rule 4 of the Rules Concerning the State Bar.
Staff Comment: This administrative order increases the State Bar’s dues for most members by $100 for a total of $415 per year.
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.
Welch, J. (concurring). I write to explain my reasons for supporting the State Bar of Michigan (SBM) dues increase approved by this Court. While Justice Viviano’s statement posits that the lack of a dues increase for 18 years supports the notion of a more gradual increase, that result would punish the SBM for being an excellent steward of its resources. I suspect it is a rarity that a membership organization has maintained the same dues level for 18 years. The SBM provides excellent resources for its members. These include free access to online research, an ethics hotline, a lawyer referral service, and the Lawyers & Judges Assistance Program. The SBM is continually exploring new offerings to benefit its membership and the public. And, like all organizations, the SBM is affected by inflationary pressure and increased overall costs to provide necessary services to its member attorneys. Although Justice Viviano suggests that today’s dues increase will be burdensome for solo practitioners and attorneys at small firms, many solo and small-firm attorneys testified during our public hearing about the benefit the SBM provides them, making repeated reference to the online journal, ethics hotline, and the lawyer referral program. While larger firms have in-house resources to support their attorneys, solo attorneys and small firms can rely upon the SBM to assist them with ethics concerns. The SBM has historically used a long-term budgeting process. In keeping with this practice, the SBM projects that this increase will allow it to sustain current programming and plan for future programming through at least fiscal year 2030-2031. It also bears noting that this dues increase will not bring Michigan out of step with other state bar dues rates. According to data from the American Bar Association’s 2021 State and Local Bar Benchmarks Survey, Michigan was ranked thirty-first among the 50 states and Washington, D.C., for licensing costs. This dues increase would bring Michigan to the twenty-first slot, still within the middle tier nationwide, with this ranking expected to fall as other states raise their own bar dues. For these reasons, I join the majority in supporting the approved increase in dues.
Zahra, J. (concurring in part and dissenting in part).
I agree with the $20 increase in the portion of bar dues dedicated to the Attorney Discipline System, but I do not believe that the Court should increase the portion of the dues dedicated to the State Bar of Michigan by $80 at this time. Given the current state of the economy, including the high inflation rates, I would increase the State Bar’s dues for the 2022-2023 fiscal year by only $50, which is the amount required for it to maintain its existent operational expenses. I would subsequently increase the State Bar’s dues by $10 for each of the next three years, reaching the requested $80 dues increase by the 2025-2026 fiscal year. This more gradual increase in dues should be sufficient to adequately fund the State Bar, while partially easing the sting of the significant dues increase for its members.
Viviano, J. (concurring in part and dissenting in part).
The Court today increases the annual bar dues that Michigan attorneys must pay by $100, a 32% increase. I agree with the $20 increase dedicated to the Attorney Discipline System, but I believe the $80 increase for the portion of dues dedicated to the State Bar of Michigan (SBM) is too high. Because bar dues have not been increased for many years, I believe a modest increase in bar dues is appropriate. But I would not impose such a dramatic increase in the current economic climate, when historically high inflation rates are affecting every household and business.1 The increase will be particularly burdensome on solo practitioners and other attorneys who pay their own bar dues — as opposed to those who are fortunate enough to have their bar dues paid by their employers.2 The SBM performs many important functions, some of which are mandatory (i.e., required by statute or court rule) and some of which are discretionary. It undoubtedly needs sufficient funding to perform the tasks assigned to it. But I would require it to do more belt-tightening before increasing its dues by the full amount it has requested.
1. See Smialek, Consumer Prices Are Still Climbing Rapidly, New York Times (May 11, 2022), (accessed June 1, 2022) [https://perma.cc/D58U-QVL6].
2. The number of solo practitioners and firms with limited resources is not insignificant. As of 2021, just over 32% of active SBM members who reside in Michigan were either solo practitioners or working in a small firm (defined as 2 to 10 attorneys). State Bar of Michigan, State & County Demographics: 2021-2022, p 8 https://www.michbar.org/file/opinions/statewidedemographics2021.pdf (accessed May 27, 2022).
ADM File No. 2021-07
Addition of Rule 1.19 of the Michigan Rules of Professional Conduct and Official Comment
On order of the Court, notice of the proposed changes and an opportunity for comment in writing and at a public hearing having been provided, and consideration having been given to the comments received, new Rule 1.19 of the Michigan Rules of Professional Conduct and its Official Comment are adopted, effective September 1, 2022.
Rule 1.19. Lawyer-Client Representation Agreements: Arbitration Provisions
A lawyer shall not enter into an agreement for legal services with a client requiring that any dispute between the lawyer and the client be subject to arbitration unless the client provides informed consent in writing to the arbitration provision, which is based on being
(a) reasonably informed in writing regarding the scope and the advantages and disadvantages of the arbitration provision, or
(b) independently represented in making the agreement.
Official Comment:
MRPC 1.19 is designed to ensure that a client entering into an arbitration agreement with a lawyer has sufficient information to make an informed decision or is independently represented by counsel in making the agreement. This paragraph applies to agreements entered into at the onset of an attorney-client relationship as well as to agreements entered into during the course of the attorney-client relationship.
In order to ensure that client consent to an arbitration provision is informed consent, at a minimum the agreement should advise the client of the practical advantages and disadvantages of arbitration. Inclusion of the following information is presumed to be sufficient to enable a client to give informed consent:
(1) By agreeing to arbitration, the client is
(a) waiving the right to a jury trial,
(b) potentially waiving the right to take discovery to the same extent as is available in a case litigated in a court,
(c) waiving or limiting the right to appeal the result of the arbitration proceeding to specific circumstances established by law, and
(d) agreeing to be financially responsible for at least a share of the arbitrator’s compensation and the administrative fees associated with the arbitration;
(2) whether the agreement to arbitrate includes arbitration of legal malpractice claims against the lawyer;
(3) identification of the organization or person(s) that will administer the arbitration;
(4) if the client declines to agree to arbitration at the onset of the attorney-client relationship, there is no prohibition against the lawyer and the client agreeing to arbitrate the matter at a later date;
(5) arbitration may be conducted as a private proceeding, unlike litigation in a court;
(6) the parties can select an arbitrator who is experienced in the subject matter of the dispute;
(7) depending on the circumstances, arbitration can be more efficient, expeditious and inexpensive than litigation in a court; and
(8) the client’s ability to report unethical conduct by the lawyer is not restricted.
Staff Comment: The addition of new MRPC 1.19 and its Official Comment clarify that a lawyer may only include an arbitration provision in a lawyer-client representation agreement if the client provides informed consent in writing to the provision after being reasonably informed about the scope, advantages, and disadvantages of the provision, or being independently represented.
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.
Viviano, J. (dissenting). The majority today adopts MRPC 1.19, which establishes that an attorney-client agreement cannot contain an arbitration clause unless the client is either “reasonably informed” about the provision or is “independently represented in making the agreement.” The rule thus tips the scale against arbitration by placing procedural hurdles to entering these agreements. I have no doubt that the rule represents a well-intentioned effort to protect clients. But good intentions do not justify needless, ineffective, and potentially deleterious rules. I believe the present rule is all of these.
Today’s rule change is a classic solution in search of a problem: no evidence has been produced that arbitration agreements between lawyers and clients in Michigan are currently a problem.1 Even if such a problem did exist, I do not believe this new requirement would be effective in solving it. To be sure, we must be concerned with a lawyer’s asymmetrical information advantage over a client, who often lacks the training and knowledge to fully understand legal matters. See Griffith, Ethical Rules and Collective Action: An Economic Analysis of Legal Ethics, 63 U Pitt L Rev 347, 365-366 (2002). But informed-consent laws such as the one here are often poor tools for ensuring that the intended beneficiary of the additional information makes better decisions; in fact such rules might lead to worse outcomes for the beneficiary.2 Even when disclosures are potentially helpful, their form and content must be carefully crafted. See Sunstein, Nudges.gov: Behaviorally Informed Regulation, in The Oxford Handbook of Behavioral Economics and the Law (New York: Oxford University Press, 2014), p 729. The rule today does nothing to ensure that the disclosures are produced in a comprehensible and useful fashion.
And, lastly, I fear the new rule could be more harmful than helpful for clients. Paying yet another lawyer to review the agreement does not bode much better for the client. What is the client to do if that additional lawyer, too, has an arbitration clause — hire a third lawyer? The probable result of the new rule will not be better-informed clients — more likely, it will be clients who come to court seeking to avoid arbitration by capitalizing on the new rule’s vague language. What does it mean for the client to be “reasonably informed”? What are the “advantages” or “disadvantages” of an arbitration provision?
Courts and ethics bodies will be busy deciphering these vague standards, without any discernable benefit to the client, who will now be dealing with (and funding) more extensive and time-consuming satellite litigation.
One potential source of litigation will be whether this rule is enforceable at all. Michigan’s Uniform Arbitration Act, MCL 691.1686(1), provides that arbitration agreements are “valid, enforceable, and irrevocable except on a ground that exists at law or in equity for the revocation of a contract,” and the Federal Arbitration Act (FAA), 9 USC 2, echoes this provision almost verbatim. This “establishes an equal-treatment principle: A court may invalidate an arbitration agreement based on ‘generally applicable contract defenses,’ but not on legal rules that ‘apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue[.]’” Kindred Nursing Ctrs Ltd Partnership v Clark, 581 US__ , __; 137 S Ct 1421, 1426 (2017) (citation omitted). Accordingly, the FAA “preempts any state rule that discriminates on its face against arbitration” or that “disfavor[s]” such agreements. Id. An argument could be made that the new rule violates the statute by creating a potential defense unique to arbitration agreements when the client was not “reasonably informed” or did not have independent representation. Cf. In re Mardigian Estate, 502 Mich 154, 199 (2018) (McCormack, J., opinion for reversal) (“[W]e have endorsed the view that it is nonsensical for courts to uphold unethical fee agreements when those agreements will subject the attorney to discipline for violating our professional rules.”); but see Delaney v Dickey, 244 NJ 466, 495-496 (2020) (holding that an informed-consent requirement for attorney-client arbitration agreements did not violate the FAA or the state arbitration statute); Snow v Bernstein, Shur, Sawyer & Nelson, PA, 176 A3d 729 (Me, 2017) (same). Regardless of whether the argument prevails, it will certainly produce litigation, again with little benefit to the client.
The rule adopted today thus promises few benefits and many costs, all to address a nonissue. I therefore would decline to adopt the rule and instead would allow attorneys and their clients to freely enter arbitration agreements without any special requirements. The Court of Appeals has upheld the enforceability of such agreements, and I would not put these decisions in doubt by creating a vague and unnecessary rule of professional conduct. See Tinsley v Yatooma, 333 Mich App 257, 264 (2020); Watts v Polaczyk, 242 Mich App 600, 604-606 (2000). For these reasons, I dissent.
Zahra, J., joins the statement of Viviano, J.
1. Although we received comments containing generalized statements about clients’ unfamiliarity with arbitration agreements, none of the comments identified any particular instances of this confusion or resulting problems for clients.
2. See generally Ben-Shahar & Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure (Princeton: Princeton University Press, 2014), pp 43-47 (noting research showing that information-disclosure requirements across subjects are ineffective); Nahmias, The Limitations of Information: Rethinking Soft Paternalistic Interventions in Copyright Law, 37 Cardozo Arts & Ent L J 373, 376, 392-407 (2019) (arguing that disclosure requirements often prove ineffective and sometimes even harmful); Klick & Mitchell, Government Regulation of Irrationality: Moral and Cognitive Hazards, 90 Minn L Rev 1620, 1636 (2006) (arguing that ex ante paternalistic measures like disclosure requirements “reduce[] the incentive to search for information, carefully evaluate decision options, or develop good decision-making strategies”).
ADM File No. 2022-09
Proposed Amendment of Rule 3.703 of the Michigan Court Rules
On order of the Court, this is to advise that the Court is considering an amendment of Rule 3.703 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter will also be considered at a public hearing. The notices and agendas for public hearing are posted on the Public Administrative Hearings page.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]
Rule 3.703 Commencing a Personal Protection Action.
(A) Filing. A personal protection action is an independent action commenced by filing a petition and submitting a proposed order with a court. The proposed order shall be prepared on a form approved by the State Court Administrative Office. The petitioner shall complete in the proposed order only the case caption and the fields with identifying information, including protected personal identifying information, that are required for LEIN entry. The personal identifying information form required by MCR 1.109(D)(9)(b)(iii) shall not be filed under this rule. There are no fees for filing a personal protection action and no summons is issued. A personal protection action may not be commenced by filing a motion in an existing case or by joining a claim to an action.
(B)-(G) [Unchanged.]
Staff Comment: The proposed amendment of MCR 3.703 is necessary for design and implementation of the statewide electronic-filing system, will provide the court with necessary PPII in an appropriate format, and will reduce workload preparing personal protection orders. This particular amendment aligns with the Court’s recent amendment of MCR 1.109(D)(9)(b)(iii), allowing proposed orders submitted to the court to contain protected personal identifying information (PPII), which the courts will continue to protect as if prepared or issued by the court under MCR 8.119(H)(5).
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.
A copy of this order will be given to the secretary of the State Bar and to the state court administrator so that they can make the notifications specified in MCR 1.201. Comments on the proposal may be submitted by October 1, 2022 by clicking on the “Comment on this Proposal” link under this proposal on the Court’s Proposed & Adopted Orders on Administrative Matters page. You may also submit a comment in writing at P.O. Box 30052, Lansing, MI 48909 or via email at ADMcomment@courts.mi.gov. When filing a comment, please refer to ADM File No. 2022-09. Your comments and the comments of others will be posted under the chapter affected by this proposal.
ADM File No. 2021-29
Proposed Amendment of Rule 6.201 of the Michigan Court Rules
On order of the Court, this is to advise that the Court is considering an amendment of Rule 6.201 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter will also be considered at a public hearing. The notices and agendas for each public hearing are posted on the Public Administrative Hearings page.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]
Rule 6.201 Discovery
(A) [Unchanged.]
(B) Discovery of Information Known to the Prosecuting Attorney. Upon request, the prosecuting attorney must provide each defendant:
(1) [Unchanged.]
(2) any police report and interrogation records concerning the case, except so much of a report as concerns a continuing investigation or contains the address, telephone or cell phone number, or any personal identifying information protected by MCR 1.109(9)(a), which may be redacted;
(3)-(5) [Unchanged.]
(C)-(K) [Unchanged.]
Staff Comment: The proposed amendment of MCR 6.201 would require redaction of certain information contained in a police report or interrogation record before providing it to the defendant.
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.
A copy of this order will be given to the secretary of the State Bar and to the state court administrator so that they can make the notifications specified in MCR 1.201. Comments on the proposal may be submitted by October 1, 2022 by clicking on the “Comment on this Proposal” link under this proposal on the Court’s Proposed & Adopted Orders on Administrative Matters page. You may also submit a comment in writing at P.O. Box 30052, Lansing, MI 48909 or via email at ADMcomment@courts.mi.gov. When filing a comment, please refer to ADM File No. 2021-29. Your comments and the comments of others will be posted under the chapter affected by this proposal.
ADM File No. 2021-48
Proposed Amendment of Rule 6.502 of the Michigan Court Rules
On order of the Court, this is to advise that the Court is considering an amendment of Rule 6.502 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter will also be considered at a public hearing. The notices and agendas for each public hearing are posted on the Public Administrative Hearings page.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]
Rule 6.502 Motion for Relief from Judgment
(A)-(F) [Unchanged.]
(G) Successive Motions.
(1) [Unchanged.]
(2) A defendant may file a second or subsequent motion based on any of the following:
(a) based on a retroactive change in law that occurred after the first motion for relief from judgment was filed,
(b) or a claim of new evidence that was not discovered before the first such motion was filed, or.
(c) a final court order vacating one or more of the defendant’s convictions either described in the judgment from which the defendant is seeking relief or upon which the judgment was based.
The clerk shall refer a successive motion to the judge to whom the case is assigned for a determination whether the motion is within one of the exceptions.
The court may waive the provisions of this rule if it concludes that there is a significant possibility that the defendant is innocent of the crime. For motions filed under both (G)(1) and (G)(2), the court shall enter an appropriate order disposing of the motion.
(3) [Unchanged.]
Staff Comment: The proposed amendment of MCR 6.502 would allow a third exception to the “one and only one motion” rule based on a final court order vacating one or more of a defendant’s convictions either described in the judgment or upon which the judgment was based.
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.
A copy of this order will be given to the secretary of the State Bar and to the state court administrator so that they can make the notifications specified in MCR 1.201. Comments on the proposal may be submitted by October 1, 2022 by clicking on the “Comment on this Proposal” link under this proposal on the Court’s Proposed & Adopted Orders on Administrative Matters page. You may also submit a comment in writing at P.O. Box 30052, Lansing, MI 48909 or via email at ADMcomment@courts.mi.gov. When filing a comment, please refer to ADM File No. 2021-48. Your comments and the comments of others will be posted under the chapter affected by this proposal.