At the core of legal practice are the ethical principles that guide the conduct of attorneys and judges, setting the standards they are expected to uphold throughout their careers. While adhering to these standards may seem straightforward, there are moments when the ethical boundaries are less clear.
This is where the State Bar of Michigan Standing Committees on Judicial Ethics and Professional Ethics comes in. These committees assist members in interpreting and applying the Michigan Rules of Professional Conduct (MRPC) through ethics opinions, frequently asked questions, articles, and other resources. During the 2023-2024 Bar year, both committees published several opinions and other resources for SBM members.
STANDING COMMITTEE ON PROFESSIONAL ETHICS
Prosecutors’ offices must refer prosecution of an employee or intern to a special prosecutor or request transfer of the case to another prosecutor’s office.
The Standing Committee on Professional Ethics published Ethics Opinion RI-389, which clarifies that a prosecutor’s office should not represent the people when charges are brought against an employee or intern employed within that prosecutor’s own office because there is an inherent conflict of interest. The office should either appoint a special prosecutor or request that the case be transferred to another county when charges are filed against an employee or intern to maintain the integrity of both the prosecutor’s office and the criminal justice system.
Lawyers should use caution when accepting client property for safeguarding.
For years, lawyers have grappled with the ethical and legal challenges surrounding their responsibilities when handling clients’ physical property, especially when it involves items that are illegal to possess. Therefore, the Standing Committee on Professional Ethics published Ethics Opinion RI-390, which advises that lawyers and their staff should only accept client property that is both legal to possess and directly related to the underlying representation. Lawyers should not accept illegal property from a client without first discussing confidentiality, their obligations to the court and opposing parties, and the duty to turn over illegal property to the appropriate authorities. Before accepting any property, lawyers must educate clients on the legal implications of possessing it and clearly explain the risks and consequences of retaining it to allow clients to make informed decisions about how to handle the property in question.
It is important to note that lawyers are not required to hold client property. If a lawyer chooses to do so, they must conduct a thorough inquiry into the nature of the property. Lawyers should analyze and research the issue as thoroughly as possible before thoughtfully applying their findings to the specific situation.
In light of this analysis, the committee concluded in RI-390 that lawyers and their staff should only accept property that is legal to possess and directly relevant to the representation. If a client requests that the lawyer hold illegal property, the lawyer should refuse and inform the client of the risks and potential liabilities associated with possessing such property as well as the option of turning it over to the authorities, all while maintaining client confidentiality. If the lawyer agrees to hold illegal property, they must inform the client that the property will be promptly handed over to the authorities with an effort to maintain confidentiality. If the lawyer chooses to retain property unrelated to the representation, they must inform the client that doing so may create an additional, independent representation.
STANDING COMMITTEE ON JUDICIAL ETHICS
Judicial security
In response to recent events that have raised concerns about the safety and security of judicial officers, the Standing Committee on Judicial Ethics issued Ethics Opinion JI-157, which clarifies that judicial officers should assess the need for disqualification if they or their family are threatened or physically attacked. It is important to note that filing a grievance against an attorney who has threatened or attacked a judicial officer does not automatically result in the judge being disqualified from overseeing the case. The judicial officer must conduct a disqualification analysis to determine whether the incident has affected their impartiality. Given that such incidents affect judicial officers in different ways, a case-specific disqualification analysis should be conducted under Michigan Code of Judicial Conduct 3 and Michigan Court Rule 2.003 to determine if recusal is necessary.
ADDRESSING LAW FIRM EVENTS
Both the Standing Committee on Professional Ethics and the Standing Committee on Judicial Ethics determined that guidance was essential on a topic that often challenges judges and lawyers alike — how to ethically approach law firm social events. The SBM Ethics Helpline regularly fields questions from legal professionals about navigating ethical concerns at these events including issues around confidentiality, interactions with opposing counsel, and the extent to which networking or socializing may influence professional relationships.
The committees released Ethics Opinions RI-391 and JI-156 and one related FAQ to provide guidance. Ethics Opinion RI-391 provides detailed guidance for lawyers hosting social events, ensuring they stay within ethical boundaries. Key rules include MRPC 7.2 prohibiting valuable items in exchange for referrals, and MRPC 7.3 restricting solicitation for financial gain without a preexisting relationship. Lawyers should avoid direct solicitations for legal services at events and invitations should be generalized, not targeted to individuals with known legal needs. As far as invitations to judges, details such as event hosts, sponsors, gifts, and media presence should be provided to help them comply with judicial ethics requirements.
Ethics Opinion JI-156 further clarifies that judges and judicial candidates must be cautious when attending social events hosted by lawyers and law firms to avoid any appearance of impropriety. Canon 4(E)(4)(b) allows for “ordinary social hospitality,” but judges should evaluate factors such as event exclusivity, host affiliations, and the potential for gifts or promotional purposes. Ethical considerations under Canon 2 also require judges to avoid actions that might suggest favoritism. Events that imply a special relationship, involve sponsors likely to appear in court, or risk impartiality may compromise judicial integrity, potentially necessitating recusal.
The Judicial Ethics Committee also published an FAQ regarding law firm social events in hopes of providing fast access to specific advice for judges and judicial candidates.
MORE ETHICS ADVICE FROM THE STATE BAR
The Professional Ethics Committee and Judicial Ethics Committee not only issue formal opinions but also offer guidance through FAQs and guidebooks, all available on the SBM ethics homepage at michbar.org/opinions/ethicsopinions.
Both committees issue advisory, nonbinding written ethics opinions. Any attorney may ask for an ethics opinion; details on how to submit a request are available at michbar.org/generalinfo/ethics/request. The committees research and draft each opinion. To promote openness and encourage members to seek advice, all requests for written ethics opinions — along with the identity of the requester, relevant facts, and draft opinions — remain confidential.
Further, with the help of several members from the Professional Ethics and Judicial Ethics committee, seven Ethical Perspective columns were published in the Michigan Bar Journal last year. These articles addressed issues on topics ranging from judicial appointments to the duty to report potential misconduct to the evolving role of law students in the legal profession. Each column is designed to provide insights and guidance on navigating complex ethical considerations in practice.
Lastly, within the past Bar year, the State Bar offered members five ethics webinars to support attorneys in maintaining high ethical standards. Two of these sessions, titled “Tips and Tools,” covered general ethics guidance for attorneys. The remaining three sessions, titled “Lawyer Trust Accounting,” focused on addressing the ethical responsibilities and best practices for managing client funds in accordance with the Michigan Rules of Professional Conduct.
CONCLUSION
Ethics rules provide the foundation for the legal profession in today’s culturally diverse and complex society. Navigating these challenges requires clear guidance, and ethics opinions play a vital role in helping legal professionals address the intricate situations they encounter daily. As the practice of law becomes increasingly multifaceted, it is essential to create frameworks that support decision-making aligned with the core principles of law. To achieve this, SBM members must stay informed about the Rules of Professional Conduct and their application. One of the most effective ways to do so is by relying on ethics opinions drafted by attorneys and judges who face these issues firsthand.