[These FAQs are neither legal advice nor an ethics opinion, and are not a substitute for your obligation to adhere to the requirements of the Michigan Rules of Professional Conduct (MRPC), the Michigan Code of Judicial Conduct , statutes, court rules, and/or case law and to review ethics opinions. This document does not reflect the ethical implications of any updates, modifications, or added features.]
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How do I find an ethics opinion?
The State Bar of Michigan provides several options to search for Michigan ethics opinions using its online service:
- If you know the opinion number, click on Quick Find by opinion number and enter it in the "get opinion" box.
- If you would like to search the text of the ethics opinions, click on Search full text of ethics opinion collection and insert key word text in the search criteria box.
- If you would like to search for ethics opinions by subject matter click on online index to review the topic index and tables of opinions.
- If you would like to search for ethics opinions interpreting specific rules of the Michigan Rules of Professional Conduct (MRPC) or specific canons of the Michigan Code of Judicial Conduct, click on Opinions interpreting MRPC or Opinions interpreting MCJC to review the tables of opinions.
What do the numbered citations mean when reviewing ethics opinions?
All published ethics opinions are numbered and cited with a code. Each code abbreviation has a specific meaning, which is as follows:
- C: Formal ethics opinions interpreting the former Michigan Code of Professional Conduct. These should be read with caution as they have not been updated to reflect the current Michigan Rules of Professional Conduct.
- CI: Informal ethics opinions interpreting the former Michigan Code of Professional Conduct. These should be read with caution as they have not been updated to reflect the current Michigan Rules of Professional Conduct.
- R: Formal ethics opinions interpreting the Michigan Rules of Professional Conduct.
- RI: Informal ethics opinions interpreting the Michigan Rules of Professional Conduct.
Informal and formal ethics opinions are researched and drafted for specific inquiries relating to a particular set of facts by the Professional Ethics Committee. Informal opinions are then voted upon and published by the Professional Ethics Committee. Formal opinions are reviewed by the Professional Standards Committee and Board of Commissioners who then vote on whether to make the informal opinion a formal opinion based on the general interest to the Bar at the time of the vote. It should be noted that current rules should be reviewed when reading opinions to ensure the current applicability of the ethics opinion.
When practicing in the Eastern District of Michigan, what rules of professional conduct apply?
L.R. 83.20(j) of the Local Rules of the Eastern District of Michigan provide that the Michigan Rules of Professional Conduct are applicable in the District and that “[a]n attorney admitted to” practice in the District “or who practices in” the District explicitly “consents to the jurisdiction of … the Michigan Attorney Grievance Commission and Michigan Attorney Discipline Board for purposes of disciplinary proceedings.
When may a lawyer advertise that they are certified or specialize in a specific practice area of law?
A lawyer who has completed a program of certification administered by a recognized certification program granted by an appropriate regulatory authority or by an organization which has been approved by the appropriate regulatory authority to grant such a certification may advertise that they are certified and/or specialize in a specific practice area of law. See RI-142.
For more information see the Ethics Topic Index Attorney-Client Relationship.
My client wants to make tactical decisions about their case; must I follow their directions if it is not in their best interest?
It depends. This question often arises when the client demands that the attorney take action that is not ethically permitted or is not in the client’s best interest. Clients have the right to make bad decisions, but they do not have the right to require the attorney to do something unethical, illegal, repugnant, or imprudent.[1]
MRPC 1.2 provides for the scope of representation, which states in part:
(a) . . . A lawyer shall abide by a client’s decision whether to accept an offer of settlement or mediation evaluation of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, with respect to a plea to be entered, whether to waive jury trial, and whether the client will testify. In representing a client, a lawyer may, where permissible, exercise professional judgment to waive or fail to assert a right or position of the client.
Comment: 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 the right to consult with the lawyer about the means to be used in pursuing those objectives. . .. In questions of means, the lawyer should assume responsibility for 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.
The intent of the Rules of Professional Conduct is for the attorney to see to it that the client’s subjective desires and objectives are the goal of the lawyer, as long as they are not illegal or fraudulent, or involve the attorney in violations of the Rules of Professional Conduct.[2] If the client continues to insist on moving forward with their direction that would place the attorney in a position where the resulting action would be unethical, illegal, repugnant, or imprudent, the attorney should then consider withdrawal under MRPC 1.16.
What is the difference between attorney-client privilege and confidences and secrets under MRPC 1.6?
The ethical duty to maintain a client’s confidences and secrets under MRPC 1.6 is much broader than the common law doctrine of attorney-client privilege. Attorney-client privilege encourages “full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.” Upjohn Co v United States, 449 US 383 (1981). It protects an attorney from being compelled to provide information regarding their client.
“Confidences and secrets” under MRPC 1.6 is much broader and makes disclosure of most information learned in the context of representation unethical. The rule defines “confidences” as “information protected by the client-lawyer privilege under applicable law, and ‘secrets’ refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” See RI-77.
The concept of “secrets” includes “other information,” which includes information learned from third parties, such as witnesses, and information learned far beyond that which may impact the subject of the representation. During representation, an attorney often learns facts about a client’s past, current issues outside of the representation, and other personal information. Unless that information is “generally known,” it is unethical to disclose. See Ethics Opinion RI-377 regarding what information is considered generally known. Moreover, the protections in MRPC 1.6 survive the death of the client. Ethics Opinion JI-32. “Upon receipt of a subpoena for privileged information about a client, a lawyer should appear and assert the lawyer-client privilege and await a ruling from the judge as to whether to disclose.” RI-106.
For more information, see the Ethics Topic Index under Confidences.
My client threatened suicide or threatened to harm someone else. What may I do?
There is no ethical obligation to act, “except in limited circumstances where failure to act constitutes assisting the client.”[3] However, an attorney may act if the attorney’s knowledge may enable the attorney to prevent the crime.[4] MRPC 1.6(c) states, in part, that an attorney may reveal the intent of a client to commit a crime and is free to disclose the information necessary to prevent the crime, even if that information would constitute a client confidence or secret.
If the attorney would like to act, the first step is determining whether the client actually intends to commit a crime. “Knows” is defined in the comments to MRPC 1.0 under Terminology as “actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances.” The comments to MRPC 1.6 provide some guidance:
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.
Accordingly, if the attorney knows the client intends to commit homicide or great bodily harm, the attorney is free to disclose the information necessary to prevent the act, but to no greater extent than the attorney reasonably believes necessary and that the timing is imminent. Where practical, the attorney should seek to persuade the client to take suitable action. Factors that the attorney may weigh in determining whether to disclose include the magnitude of the impending threat, proximity and likelihood of the contemplated threat, and the imminence of threat coming to fruition. Other factors include the nature of the attorney’s relationship with the client and those who might be injured by the client; the attorney’s own involvement in the transaction; and factors that may extenuate the conduct in question. The attorney is given discretion because “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.” [Comment to 1.6]
Note that this disclosure is permissive, not mandatory.[5]
Moreover, if the client has been diagnosed with a disability that affects their capacity, MRPC 1.14(b) provides that the lawyer may “take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.”
My client is not acting in his or her best interests due to a disability; what may I do to ensure effective representation?
Dealing with diminished capacity clients is one of the most challenging dynamics in the attorney-client relationship.
MRPC 1.14 states that the attorney must, “as far as reasonably possible, maintain a normal client-lawyer relationship with the client” whose ability to make decisions relating to the representation is impaired, whether by age, mental disability, or some other reason. The attorney must treat the client with dignity and respect.
How an attorney charts a course of representation with a diminished capacity client is always challenging because the duty of confidentiality must be honored; disclosure of the client’s condition can have a detrimental impact on the client’s position in the subject matter of the representation; conflicts of interest may arise; and the client can have varying types of, or temporally intermittent, capacity. [Comments to MRPC 1.14.] Moreover, disputes can arise between a protected individual and his or her representative, which can lead to a division in loyalty due to a divergence between the attorney’s obligation to the actual client and the fiduciary who has the legal right to make certain decisions on behalf of the protected individual. These questions involve the application of law to the specific facts and are beyond the scope of the answers that can be provided by this committee. As such, the attorney must make both ethical and legal determinations in how to proceed.
The comments to MRPC 1.14 state that the lawyer may seek guidance from an appropriate diagnostician in assessing the situation.
Only when the attorney reasonably believes that the client cannot adequately act in the client’s own interest may the attorney seek an appointment of a guardian or take other protective action. MRPC 1.14(b). “Other protective action” is broad and could include consulting with family members, contacting the client’s diagnostician, seeking conservatorship, or requested appointment of a guardian ad litem.
For examples of appropriate and inappropriate appointments of a lawyer seeking appointment of a guardian see Michigan Ethics Opinions RI-76, RI-51 and RI-176.
For more information, see the Ethics Topic Index under Disability.
How do I ethically withdraw from representation?
As the song goes, “Breaking up is hard to do.” One should be cautious in taking on a client, and an attorney should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest, and to completion. [Comments to MRPC 1.1.6]
Regardless of the analysis below, in a litigation proceeding, an attorney must seek permission from the tribunal to withdraw. Prior to an order allowing the attorney to withdraw, the attorney must continue representing the client and if the court does not allow the attorney to withdraw, the attorney must continue representation. RI-287, RI-98.
How and when an attorney requests to withdraw from representation depends on what standard in MRPC 1.16 is “triggered.”
An attorney must immediately request to withdraw from the representation if:
- Continuing to represent the client would result in a violation of the rules of professional conduct. An example would be if a conflict of interest arose.
- The client fires the attorney.[See MI Ethics Opinion RI-98 and its relation to conflicts of interest.]
- The attorney’s ability to represent the client is materially impaired by the attorney’s physical or mental condition.
An attorney may not withdraw from representing a client if doing so would have a material adverse effect on the interests of the client, except if:
- The client is using the attorney’s services in a way that the attorney reasonably believes is criminal or fraudulent.
- The client used the attorney’s services to perpetrate a crime or fraud.
- The client insists on a repugnant or imprudent course of action. [Michigan Ethics Opinion RI-348]
- The client fails to substantially fulfill an obligation to the attorney after the client has been provided with reasonable warning that attorney will withdraw.
- The representation has caused an unreasonable financial burden on the attorney or the client has rendered the representation unreasonably difficult.
- Other good cause.
Even if the attorney has been unfairly discharged, when withdrawing from representation an attorney must take reasonable steps to protect a client’s interest, including:
- Giving reasonable notice to the client.
- Allowing time for client to retain other counsel.
- Returning client’s papers and property.
- Refunding any advanced fee that has not been earned.
An attorney may retain papers as security for a fee only to the extent permitted by law. An attorney may not assert a lien if the client needs the property to pursue the client's legal rights or when a refusal to turn over the file would prejudice the client's case. MI Ethics Opinion RI-203.
If the attorney is withdrawing per the client’s request, the attorney may charge the client for the time spent preparing the motion to withdraw. If the withdrawal was precipitated by the attorney, the attorney may not bill the client for the time spent preparing the motion to withdraw. The attorney may not charge the time spent responding to a request in reviewing the file to bring the successor lawyer up to date. MI Ethics Opinion RI-296.
For more information, see the Ethics Topic Index under Withdrawal.
Does a client have the right to receive a second opinion when already represented?
Yes. A client has the right to receive a second opinion and a lawyer providing this second opinion does not violate MRPC 4.2, which prohibits opposing counsel from communicating with a party represented by counsel. When a client requests a second opinion, the advising lawyer is not representing the client, but instead communicating with a potential client. The retained attorney should encourage a second opinion if the client is uncomfortable with the suggested course of action or wishes to hear a different perspective to ensure the client has all relevant information to make an informed decision.
May a lawyer withdraw and seek law enforcement assistance and/or a protective order if their client engages in acts of violence against the lawyer, the firm, or the lawyer or firm’s property?
First and foremost, if the lawyer believes that there is a risk of harm, the lawyer should take legal steps to protect themselves, their family, and the firm, including contacting law enforcement. The lawyer should also seek withdrawal. The lawyer may contact law enforcement and seek a protective order, which the lawyer has the right to do as this type of conduct is considered outside the attorney-client relationship. Attorney-client privilege is not invoked for crimes the client commits or threatens to commit against the lawyer.
May an attorney who represents a client negotiate with another attorney who has a pending grievance against them that stems from the subject of the pending litigation or dispute?
An attorney may not negotiate the issue of a pending grievance or the client’s right to file a grievance. Per RI-296, “[l]awyers may not bargain with a client’s right to file a grievance, RI-88, RI-257.” Further, RI-88 states “[a] lawyer may not offer or make an agreement restricting a party or counsel for a party from bringing information concerning a lawyer’s ethical misconduct to the attention of the Attorney Grievance Commission.”
However, in accordance with MCR 9.130(B), the client and the attorney may elect to resolve a fee dispute through a binding arbitration through the Attorney Grievance Commission. The arbitration process is voluntary to participate in by both the client and the attorney. The request to participate in the arbitration may be discussed but only to determine whether the attorney and/or the client would agree to participate in such a process.
If an attorney requests records from a public body through Michigan’s Freedom of Information Act (FOIA), does the attorney violate MRPC 4.2 when
1) the attorney submits the request on their or an organization’s behalf,
2) it is likely that the FOIA Coordinator who handles the request for the public body is not an attorney, and
3) it is likely that the public body is represented by a counsel?
No, the attorney does not violate MRPC 4.2 when communicating with a FOIA Coordinator when submitting a FOIA request. RI-316 provides that “[a] lawyer may communicate with a caseworker for the Family Independence Agency (FIA) in a case in which the FIA is a petitioner in Family court, not withstanding an appearance having been filed by an attorney indicating that FIA is represented by counsel.” This opinion notes that MRPC 4.2 only prohibits “those contact that are not authorized by law.” The FOIA provides that any Person[9] can request Public Records through a FOIA Request. The FOIA also allows for an appeal of a FOIA Request denial to the head of the public body.
Therefore, a FOIA request may be transmitted to the FOIA Coordinator under the statute as provided in the Act. However, once the attorney for the public body becomes involved with the FOIA request, the requesting attorney must communicate with the attorney of the public body as required under MRPC 4.2
How should a lawyer respond if a judge attempts to appoint them from the bench for a party that does not have a lawyer or whose retained or appointed lawyer fails to appear?
Lawyers should respectfully refuse the appointment informing the court that they are not able to provide competent representation in such an immediate fashion in accordance with MRPC 1.1 especially where the client has retained or appointed counsel as the lawyer would not wish to interfere the client’s right to choose their own counsel and to not interfere with the client’s chosen lawyer’s legal strategy. The lawyer should further request the court either attempt to contact the retained or appointed lawyer as to their whereabouts and/or reschedule the matter.
However, if the lawyer chooses to accept the appointment due to no lawyer being retained or appointed, the lawyer should request an adjournment and accept the appointment contingent on performing a proper conflict-of-interest check in accordance with MRPCs 1.7, 1.8, and 1.9 as well as to have the time to consult with the client.
Is there a time limit when a lawyer does not have to think about conflicts of interest with a prior client?
No. There is no time limit on conflict-of-interest analyses. A lawyer must always consider any potential conflicts under MRPC 1.7, 1.8, 1.9, and 1.18 before representing a potential client no matter how long it has been since representing the former client. For example, a lawyer represented Client A in 2009 on a personal protection order case. Client B, who is Client A’s spouse, comes to the lawyer’s office in 2022 requesting that the lawyer represent the Client B in a divorce against Client A. It has been 12 years since the lawyer has represented Client A. The lawyer must still do a conflict-of-interest analysis to determine if they may take Client B’s case. Ethics Opinion RI-282 outlines the ethical considerations that a lawyer should use in determining if a conflict remains. The analysis in based upon the information provided by the client, not the passage of time or what the lawyer remembers about the representation. See also RI-53, RI-161, RI-046, RI-248, RI-35, RI-46, RI-95, RI-174, RI-192, RI-248.
Is a public defender’s office treated similarly to a law firm for purposes of conflict of interests issues?
Yes. According to the Michigan Rules of Professional Conduct, a “firm” or a “law firm” is defined as “a lawyer or lawyers in a private firm, lawyers employed in the legal department of a corporation or other organization, and lawyers employed in a legal services organization. See comment, Rule 1.10.” Public defender offices should review the following ethical opinions on this topic:
- ABA Formal Opinion 06-441 (2006)
- ABA Informal Opinion 1418 (1978)
- ABA Information Opinion 1428 (1979)
- National Association for Public Defense’s Formal Ethics Opinion 19-1.
Must a firm provide client names to a departing law clerk in order for them to conduct conflict of interest checks with their next employment?
Yes, but only the cases on which the law clerk has substantially worked on. RI-284 provides “[w]here the former secretary has been exposed to confidences or secrets in the course of the secretary’s firm employment, the secretary must be screened from any involvement or contact with the litigation upon hire by the second law firm.” As the information is necessary for an assistant, the same holds true for a law clerk. The client list is essential for the law clerk to conduct the proper conflict of interest checks with their immediate subsequent employment at a law firm. However, it is noted that if the law clerk does not transfer to a new firm that takes on clients or is in practice, there may be a question as to whether the client lists should be supplied as conflict of interest checks are not required.
Further, the new firm should be aware of RI-115 which provides “[w]here a nonlawyer employee has had access during prior employment to confidential or secret information concerning the legal matter substantially related and material adverse to a matter in which the law firm’s employer is representing a client, these same screening rules apply. The law firm must promptly and adequately screen he lawyer from the matter to avoid disqualification.”
If an attorney is unable to take a case due to a conflict of interest, may the conflicted attorney, who cannot accept a referral fee, still provide the potential client with names of other attorneys they may contact for representation?
If the conflict is a current conflict under MRPC 1.7, a referral may not be made, as it would be tantamount to choosing opposing counsel.
However, if the conflict arises from representation of a prior client under MRPC 1.9, the lawyer may provide the potential client with the names of attorneys known to practice in the specific practice area unless there are other ethical considerations. Lawyers providing the information should list more than one attorney and may consider including lawyer referral services, legal services, and other similar entities.
In a referral fee arrangement, what information must the attorney, who has received the funds subject to a referral fee arrangement, provide to the referring attorney?
Ethics opinion RI-224 provides “[a] lawyer who receives fees which are subject to a claim for a referral fee by another lawyer must notify the other lawyer of receipt of the fees, provide an accounting of the fees received, and keep the disputed fees segregated in a trust account pending resolution of the dispute.”
Notification ensures transparency in the referral process and allows the referring attorney awareness of the status of the referral fee. Additionally, the lawyer receiving the referral must provide an accounting of the fees received. This ensures that the referring attorney understands how the fees were calculated. Lastly, disputed fees should be segregated in a trust account pending resolution of any dispute. Adhering to these guidelines ensures that both parties are fully informed and that the referral fee is transferred in a manner that satisfies both parties’ ethical obligations.
Publication date: 11/19/24
May a lawyer participate in a program for a company to loan a client money to pay for the attorney’s fees?
Lawyers may refer clients to fee financing companies if they have no ownership or other financial interests within the financing company and provided they comply with MRPC 1.4(b), 1.5(a), 1.6, 1.7, and 1.9. If a lawyer does have a financial interest in the finance company, the lawyer would be entering into a business transaction with a client or obtaining a security or pecuniary interest adverse to the client, or both and in this situation, the lawyer must comply with MRPC 1.8(a) and may cause an unwaivable conflict, see RI-356 and RI-321. See also RI-336.
May a lawyer charge a monthly administrative fee instead of delineating each expense item such as copying costs, legal research fees, mailing expenses, and similar items?
Per Michigan Ethics Opinion RI-364, a lawyer may not add a surcharge to a client’s bill over the lawyer’s actual cost for the services rendered. “MRPC 1.5(a) and (b) apply to all charges a lawyer may seek to impose in connection with representing a client, including fees for the delivery of legal services and costs for which the lawyer seeks reimbursement, such as filing fees, court reporter fees, and copying charges.” Id. Further, Michigan Ethics Opinion RI-2411 determined that a surcharge could not be added to a client’s bill over the lawyer’s actual cost unless there was a written fee agreement between the parties expressly providing for a surcharge after consultation and an opportunity to obtain independent advice concerning the additional surcharge provision.
1 This opinion is modified and rescinded in part by RI-364.
May a lawyer charge nonrefundable fees?
Ethics opinions allow nonrefundable retainers if the lawyer and the client reach that understanding and agreement. Per Michigan Ethics Opinion RI-10, the ethical requirements for an enforceable non-refundable retainer contract are as follows:
(a) “The complexity of the case and its likelihood of preempting the lawyer from other work is apparent to the client at the outset; and
(b) the retainer agreement is in writing, clearly identifies the client's expectations in hiring the lawyer, and unambiguously articulates that the lump sum purchases something in addition to a fixed amount of lawyer hours; and(c) the client is of sufficient intelligence, maturity, and sophistication to understand the agreement and that the fee is nonrefundable; and
(d) the lawyer in fact sets aside a block of time, turns down other cases, and marshals law firm resources in reliance on the fee agreement.”
Once a lawyer receives a non-refundable retainer, the lawyer is considered to have “earned” the fee. Therefore, the earned fee should not be deposited in the lawyer’s trust account, but instead, should be deposited into the lawyer’s operational account. See RI-69 and R-007. It should be noted that operating nonrefundable retainers must be clearly titled “nonrefundable” within the retainer agreement. A fixed or flat fee is not the same as a nonrefundable fee/retainer. See also Michigan Supreme Court Order, Grievance Administrator v Cooper.
May an attorney pass along credit card surcharges to clients or third parties?
Lawyers may charge a client for expenses incurred by the lawyer for providing services only if the amount reflects the actual cost to provide the service. See ethics opinions RI-364, RI-2412, and RI-168. Clients should be fully informed of the firm’s billing practices, including surcharges or late fees. See also MRPC 1.5(b) and ethics opinion RI-344. To ensure no violation of law, lawyers should also review statutes, case law, court rule, and contract provisions.
2 This opinion is modified and rescinded in part by RI-364.
Can a lawyer donate their services for a silent auction?
No. A lawyer would not be able to conduct a proper conflict of interest check as required by MRPC 1.7, 1.8, and 1.9 before agreeing to provide the service. Further, this would be considered fee sharing with a non-lawyer as an organization is receiving payment for the services being provided by the lawyer, which is prohibited by MRPC 5.4(a), that states “a lawyer or law firm shall not share legal fees with a nonlawyer.”1 See Ethics Opinion RI-366.
1 Lawyers may share legal fees with registered, not-for-profit lawyer referral agencies. See Ethics Opinion RI-75.
What happens to a referral fee if the lawyer who was to receive the referral fee is deceased?
Ethics opinion RI-216 states that an estate of a deceased lawyer may properly receive legal fees that are paid after the death of the lawyer. In that opinion, the committee noted that the “…rationale for these limited exceptions is that they do not aid in the practice of law by nonlawyers and they present very little opportunity for interference with the independent professional judgment of the lawyer.” Moreover, Ethics Opinions RI-270, RI-030, and RI-019 provide that referral fees are earned when the referral is made, thus, if the referral was made during the attorney’s lifetime, the attorney’s estate is entitled to those fees as provided for in RI-216. Pursuant to MRPC 5.4(a), to avoid sharing fees with a non-lawyer, the funds should be remitted to the lawyer’s estate. If an estate is not open, the funds may be paid to any other legal representative of the decedent’s estate, such as a trustee. However, unless the agreement provides payment to other “specified persons,” an estate will likely need to be opened to accept the funds. MRPC 5.4
May an attorney ethically record an expired judgment lien with the register of deeds?
No. Judgment liens are used by courts to provide security that the individual who won the judgment (the creditor) gets what he or she is owed. A judgment lien gives the creditor the right to be paid a certain amount of money from proceeds from the sale of the debtor’s property. However, an attorney attempting to cloud the title of a property by re-recording an expired judgment lien contrary to MCL 600.2809 is in violation of MRPC 8.4, specifically that it is considered “professional misconduct for a lawyer to: (b) engage in conduct involving dishonesty, fraud, deceit, misrepresentation …” Negligence of not reviewing the statute or attempting to subvert the statute by re-recording an expired judgement lien is tantamount to engaging in dishonesty and/or fraud.
Furthermore, MRPC 1.3 states “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” An attorney must abide by the law and orders of the court and to take action that unlawfully obstructs or conceals known property or documents at issue in a proceeding is unethical. A lawyer, therefore, may not record or re-record an expired judgment lien after the timeframe allowed within statute, and would be responsible for the repercussions. Attempting to subvert the law may result in possible disciplinary action.
What must a lawyer do in order to receive a referral fee when referring a case to another lawyer?
A referral fee may be paid to a lawyer, who is not in the same firm, or of counsel to the firm, only if the client is advised of and does not object to the participation of all the lawyers involved and the total fee is reasonable (see MRPC 1.5(e)). See RI-124 and RI-234.10 It is strongly recommended that the lawyer obtain the client’s consent in writing.
Prior to referring the case, lawyers should note that the participating lawyers must establish a professional relationship with the client. Therefore, the “referring lawyer must [at the very least] actually consult with the client” directly or indirectly “(i.e. through the client’s agent)” as the consultation “is sufficient to create an attorney-client relationship, if the parties so intend” prior to referring the case to a subsequent lawyer. See Sherbow v Fieger, 507 Mich 272 (2021).
May a lawyer who is on inactive status, resigned status, or emeritus status with the State Bar of Michigan receive a referral fee?
No. Only an active lawyer may earn a referral fee. Inactive, resigned, and emeritus members of the State Bar of Michigan may not ethically receive a referral fee from an active member. Inactive and emeritus attorneys are no longer authorized to practice law or receive referral fees in Michigan and receiving a referral fee would violate MRPC 5.4(a) as concluded in Doherty v Lockwood, 259 Mich App 38; 672 NW2d 884 (2003). However, if a referral is provided during the time the lawyer is an active member and all criteria are met under MRPC 1.5(e) and as concluded by Sherbow v Fieger, 507 Mich 272; 68 NW2d 367 (2021), but the referral fee is not available until after the lawyer becomes an inactive, resigned, or an emeritus member, the referral fee may then be received by the inactive, resigned, or emeritus member.
In the event of a dispute over a referral fee, where should the disputed funds be held?
Ethics opinion RI-224 provides that the attorney should “keep the disputed fees segregated in a trust account pending resolution of the dispute.
What information should be reviewed when a lawyer has a client that requires language access assistance?
The State Bar of Michigan Standing Committee on Professional Ethics recommends review of the American Bar Association’s Standing Committee on Ethics and Professional Responsibility Ethics Formal Opinion 500 dated October 6, 2021. Additional resources that may be reviewed are as follows:
What information should be reviewed when considering using a lending broker to fund litigation?
The State Bar of Michigan Standing Committee on Professional Ethics recommends review of the American Bar Association Best Practices for Third-Party Litigation Funding dated August 2020.
How long must I retain client files?
The Michigan Rules of Professional Conduct do not provide a set time frame for the retention of client files with the exception of records regarding client funds. Michigan Ethics Opinions R-53, R-124, and which was reiterated in Ethics Opinion R-19, provide that lawyers must have record retention policies that should be provided to the client at the time of the lawyer’s retention of services. “In determining the length of time for retention or disposition of a file, a lawyer should exercise discretion. The nature and contents of some files may indicate a need for longer retention than do the nature and contents of other files, based upon their obvious relevance and materiality to matters that can be expected to arise in the future.” See R-12. When drafting record retention policies, the lawyer should review any relevant case law, statute, or court rule that would provide a required retention of the file as well as contact their malpractice insurance carriers to ensure what policy must be followed in order to receive services from the carrier. However, it should be noted that MRPC 1.15 requires lawyers to keep records of client funds (i.e., trust account records and client “property”) for five years after termination of the representation.
Additional information and resources regarding record retention may be found on the State Bar of Michigan’s Record Retention Kit website.
3 This opinion has been questioned and modified in ethics opinion R-19, effective August 4, 2020.
4 This opinion has been questioned and modified in ethics opinion R-19, effective August 4, 2020.
How long must a lawyer retain a client’s unclaimed money or property?
A lawyer holding unclaimed money or other items of value1 may treat the property as abandoned property in accordance with the Uniformed Unclaimed Property Act. The attorney must maintain the client’s unclaimed money or other items of value and make reasonable efforts to locate the client until the statutory period elapses in which event the lawyer may then deliver the funds or the items of value to the state in accordance with statute. See ethics opinion RI-38.
1 See what qualifies as unclaimed property here.
What should an attorney consider when the attorney wants to share an office with another attorney who is not in the same firm?
Many lawyers, especially solo practitioners, find it advantageous to office-share. While office sharing is not prohibited under the ethics rules, care should be taken to avoid ethical pitfalls. When sharing office space with another lawyer, a lawyer must diligently protect the independence of the practices. For example, each firm should have its own telephone line and the phones may not be answered as “Lawyer A and Lawyer B” when the two lawyers are not actually practicing together. See MRPC 7.1. Unassociated office sharers must have procedures in place to ensure compliance with ethics rules. Steps to consider are as follows:
(1) Lawyers should take affirmative steps to preserve the confidences and secrets of clients. MRPC 1.6. Confidential files of one lawyer may not be accessible by other office sharers, and must be securely stored to maintain all confidences.
(2) Lawyers must accurately communicate the lawyer’s status. No advertisement, sign, or telephone should be established in any way that would lead a potential client to believe that the lawyer is in a partnership, is “associated,” or is “affiliated” with the other lawyer(s) sharing office space.
(3) Lawyers should ensure that there is no improper solicitation of clients or referrals to or from other independent occupants of the office. See MRPC 7.2(c) and 7.3. For example, subject to MRPC 1.5(e), a lawyer may refer a case to another lawyer and receive a referral fee, a nonlawyer may pay a referral fee to a lawyer, but a lawyer cannot pay a referral fee to a nonlawyer as this is prohibited conduct under MRPC 5.4(a).
(4) Lawyers not in the same law firm may not share an IOLTA. RI-107.
In RI-249, three lawyers were practicing separately under their individual names, but shared office space, the services of a receptionist, a fax line, and secretaries. They maintained separate telephone numbers. The Ethics Committee opined that the sharing of a fax line may compromise confidentiality and found the practice to be unethical. This analysis would be the same with sharing electronic storage or practice management software. With that modification, however, the committee opined that when one office sharer has a conflict of interest prohibiting representation of a private client, the conflict is not per se imputed to other office sharers. If a lawyer is ultimately disqualified from acting as trial counsel for a client, another lawyer who is an office with the original attorney is not disqualified from acting as subsequent counsel, provided that the new counsel is not independently disqualified from acting as counsel under MRPC 1.7 or 1.9. See RI-299, RI-082, and RI-355.
Unassociated lawyers who share office space are also faced with issues of disqualification and conflict of interest when dealing with clients whose adversaries are represented by another office sharer. As long as office sharers are truly independent entities and all confidences and secrets are protected, there is no per se conflict of interest by sharing office space. MRPC 1.7, 1.9, and 1.10(a). However, if the unassociated lawyers regularly “cover” for each other or if they frequently appear as co-counsel, conflict of interest disqualification may be unavoidable.
It should also be noted that a lawyer must also exercise independent professional judgment regarding the legal representation and not be influenced by the office sharing status. MRPC 5.4(c).
RI-338 Association Legal Counsel and Association Staff Sharing Office Space
RI-355 Sharing Alternate Law Office
RI-249 Lawyer’s Sharing Office Space, Receptionist, Secretary
RI-133 Rent Based upon Lawyer’s Gross Income
RI-082 Landlord and Tenant Appearing Opposite Each Other in Cases
RI-107 Lawyer’s not in the Same Firm Cannot Share IOLTA
What is included in the client file?
The contents of what qualifies within the client file should be articulated with the firm’s retention policy and the same information should be within the engagement/retainer contract or the retention policy should be attached to each engagement/retainer contract. See Ethics: Record Retention Kit (michbar.org) for more information.
Are attorney-mediators/arbitrators subject to the Rules of Professional Conduct?
All attorneys are subject to the Rules of Professional Conduct. Arbitrators and mediators should also refer to the Mediator Standards of Conduct, pertinent Court Rules, and should also contact their malpractice carriers for additional resources. Additional resources may be found on the State Court Administrative Office’s Office of Dispute Resolution website.
May a military spouse attorney who is licensed in another jurisdiction practice in the state of Michigan?
Please see MCL 600.947 and MCL 600.947a, which provide that a military spouse who is licensed to practice in another jurisdiction and in good standing, and whose service member spouse is assigned to a duty station in Michigan, may apply for admission without an additional bar examination and may practice in Michigan until (1) the service member spouse is no longer on active duty; (2) the military spouse attorney is no longer married to the service member spouse; or (3) the service member spouse receives a permanent duty transfer out of state.
Does a civil infraction need to be reported to AGC and ADB under MCR 9.120?
See MCR 9.120 provides that a lawyer who is “convicted of a crime, the lawyer, the prosecutor or other authority who prosecuted the lawyer, and the defense attorney who represented the lawyer must notify the grievance administrator and the board of conviction” which must be provided within 14 days of the conviction. A civil infraction is not considered a criminal conviction under MCR 9.120 (see MCL 600.8827(1)).
May a lawyer charge a client to respond to a grievance?
No. RI-296 provides that a lawyer cannot charge a client to respond to a grievance, which is directly taken from MCR 9.103(B): “An attorney shall not charge or collect a fee in connection with answering a request for investigation unless he or she is acting as counsel for a respondent in connection with a disciplinary investigation or proceeding.” Therefore, the attorney cannot charge for responding whether the grievance is filed by the client or even opposing party, except in limited circumstances where the attorney is acting on behalf of the court, see RI-330.
When may an attorney contact a potential client following receipt of a police report for a motor vehicle accident?
MRPC 7.3 prohibits solicitation except in limited circumstances or as allowed by statute, case law, or court rule. In regards to solicitation following access to a police report involving a motor vehicle accident, please refer to MCL 257.503.
Does conviction of any crime need to be reported to AGC and ADB under MCR 9.120?
MCR 9.120 provides that a lawyer who is “convicted of a crime, the lawyer, the prosecutor or other authority who prosecuted the lawyer, and the defense attorney who represented the lawyer must notify the grievance administrator and the board” within 14 days of the conviction. A civil infraction is not considered a criminal conviction under MCR 9.120 (see MCL 600.8827(1)). However, all misdemeanors and felonies must be reported.
May an attorney use the title “esquire” once the attorney moves to emeritus or inactive status?
An attorney may use the title “esquire” once moved to emeritus status only if the term “retired” is placed afterwards, i.e. “esquire, retired” or, abbreviated, “Esq. Ret.” An attorney may use the title “esquire” once moved to inactive status only if the term “inactive” is placed afterwards, i.e. “esquire, inactive” or, abbreviated, “Esq. Inactive.” If the attorney has retired and has moved to inactive status instead of retired, the attorney may use the esquire, retired designation as noted above.
I think another attorney violated the rules of professional conduct. What are my reporting obligations?
An attonrey may report another attorney to the Michigan Attorney Grievance Commission except when reporting would violate MRPC 1.6. However, an attorney has an ethical obligation under MRPC 8.3, to report a violation by another attorney when the attorney knows “that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.” This reporting obligation is limited only by MRPC 1.6.
“Knows” is defined in the comments to MRPC 1.0 under Terminology as “actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances.” The term “significant” is not defined and therefore is somewhat subjective. A mistake may not require reporting, particularly if the offending attorney rectifies the situation, but even minor repeated offenses may rise to the level of being significant. The comment to MRPC 8.3 states: “The term ‘substantial' refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware."
Examples of when a report to the Attorney Grievance Commission is required, unless protected by MRPC 1.6, include, but are not limited to, an attorney practicing law while their license is suspended (RI-101); agreements to refrain from reporting violations of the rules of professional misconduct (RI-220); and repeated failures to meet filing deadlines and timely communicating with clients (RI-149).
In reporting misconduct, the attorney has an obligation to protect client confidential information under MRPC 1.6 unless one of the exceptions applies. Further, the attorney may not submit a report that requires the attorney to disclose information protected by MRPC 1.6 without first obtaining client consent. See comments to MRPC 8.3 and RI-314.
For more information, see the Ethics Topic Index under Reporting Duties.
Someone is impersonating me and using my bar license to threaten people. What should I do?
Impersonation is a crime and should be reported to the Federal Trade Commission, the Michigan Cyber Command Center at m3@michigan.gov, and the State Bar of Michigan at upl@michbar.org. In many situations, it may also be appropriate to report to local law enforcement or the FBI. Attorneys are also encouraged to review the scams website maintained by the State Bar.[6]
If the attorney determines that the impersonator is a current or former client, the attorney must consider the confidentiality provisions of MRPC 1.6 and disclose only that information necessary to rectify the consequences of the client’s actions. The comments to MRPC 1.6 provide that the principal of confidentially may yield where the “client engaged in criminal conduct or the integrity of the lawyer’s own conduct is involved.” In this scenario, the impersonation implicates the attorney’s conduct because regardless of a potential client relationship, under MRPC 4.1, the attorney cannot make false statements of fact or law even to someone who is trading on the attorney’s name. As importantly, impersonating an attorney is not allowed under MRPC 5.5, which provides for steps that must be taken to protect against the unauthorized practice of law. Moreover, the threats made may violate MRPC 6.5, which requires that the attorney treat all persons in the legal process with courtesy and respect.
For more information, see the Ethics Topic Index under Unauthorized Practice of Law and the State Bar of Michigan website under Unauthorized Practice of Law.
I am not licensed in Michigan, but I am in-house counsel. What may I do without committing the unauthorized practice of law?
Michigan Rule of Professional Conduct 5.5 addresses the unauthorized practice of law and the multijurisdictional practice of law.[7] Pursuant to MRPC 5.5(d)(1), “a lawyer admitted and in good standing in another jurisdiction of the United States may provide legal services in Michigan that are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission.”
The comments to MRPC 5.5 provide that this section permits in-house counsel to perform limited legal services in Michigan for an employer because the lawyer's ability to represent the employer outside the jurisdiction in which the lawyer is licensed generally (1) serves the interests of the employer and (2) does not create an unreasonable risk to the client and others because the employer is well situated to assess the lawyer's qualifications and the quality of the lawyer's work.
The comments to MRPC 5.5 provide additional, specific guidance regarding the acceptable parameters of such in-house counsel work. The comments clarify that in-house counsel is not authorized to provide personal legal services to the employer's officers or employees. In addition, in-house counsel cannot provide services for which pro hac vice admission is required, so court advocacy, signing pleadings, and participating in depositions (among other things) are not permitted. [See Michigan Court Rule 8.126 for more information on temporary admission to practice in a Michigan court, administrative tribunal, or arbitration.] Finally, if in-house counsel establishes an office or other systematic presence in Michigan for the purpose of rendering legal services to the employer, the attorney may be subject to registration or other requirements, including assessments for client protection funds and mandatory continuing legal education.
I am not licensed in Michigan, but I am in the process of getting my license. What may I do without committing the unauthorized practice of law?
Michigan Rule of Professional Conduct 8.1 governs admissions to the bar. However, this Rule provides limited guidance regarding what specific activities an applicant to the bar may engage in and only generally states that an applicant for admission to the bar shall not engage in the unauthorized practice of law. MRPC 8.1(b)(1).
Additional guidance for attorneys in good standing and licensed in another jurisdiction, awaiting admission in Michigan, is found in MRPC 5.5, MCR 8.126, and Michigan Ethics Opinions.
Michigan Rule of Professional Conduct 5.5 addresses the unauthorized practice of law. Pursuant to this Rule, an attorney who is not admitted to practice in Michigan shall not establish an office or other systematic and continuous presence in Michigan for the practice of law or hold out to the public or otherwise represent that the lawyer is admitted to practice law in Michigan. MRPC 5.5(b). This Rule also provides guidance regarding what type of legal services an attorney in good standing admitted in another U.S. jurisdiction can provide.
Michigan Court Rule 8.126 addresses pro hac vice admission. This rule details the procedure, timing, and fees for an out-of-state attorney to seek temporary admission to practice in Michigan.
The State Bar of Michigan Ethics Opinion RI-380 addresses the issue of whether an out-of-state attorney who moves to Michigan and applies for admission to the State Bar of Michigan may continue to practice law in the jurisdictions where the attorney is already licensed while the lawyer’s State Bar of Michigan application is pending.
It is noted that if an attorney practices federal law and is admitted to practice within the federal courts, they may do so under In re Ernest J. Desilets, 291 F.3d 925 (2002).
Additional guidance for recent law school graduates who are not yet admitted to the bar is found in Michigan Court Rule 8.120. In general, MCR 8.120(A) and (B) allow recent law graduates, under supervision by a member of the State Bar, to work in public and nonprofit defender offices, legal aid clinics, and legal training programs organized in the offices of county prosecuting attorneys, county corporation counsel, city attorneys, the Attorney Grievance Commission, and the Attorney General’s Office. Note that a graduate may not appear in a case in a Michigan court without the approval of the judge or a majority of the panel of judges to which the case is assigned. MCR 8.120(D)(3).
If I am not yet licensed to practice law, may I use the term “esquire” after my name?
The Rules of Professional Conduct do not specifically address use of the term “esquire” by an individual not yet admitted to practice law. Individuals aspiring to become members of the State Bar of Michigan, however, should be aware of MRPC 7.1, which addresses communications regarding a lawyer’s services. This rule states that an attorney may “use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive.” MRPC 7.1 (emphasis added). This rule also prohibits statements that “contain a material misrepresentation of fact,” are misleading, or may create “an unjustified expectation” regarding an individual’s services.MRPC 7.1(a) and (b).[8]
Although the term “esquire” does not specifically mean “lawyer” or “attorney,” the use of this title may lead members of the public to believe that the individual using this title is an attorney. For example, a Michigan Bar Journal article has examined the use of the title “esquire” in light of the fact that “so many American lawyers [are] using the word esquire both as a title implying a law education and most recently as a noun meaning lawyer.” Esquire Does Not Mean Lawyer , Michigan Bar Journal, (March 1988). In addition, an ABA Journal article stated that “the injudicious use of designations such as Esq., lawyer or attorney at law may trigger application of the legal ethics rules because their use suggests that the lawyer is holding herself out as a legal practitioner even in a field outside the practice of law.” Tussle Over Titles, ABA Journal, (January 8, 2006). Similarly, the Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline held that an attorney who was not licensed to practice law in the state could not append “Esq.” to his signature on business correspondence because it was deemed to connote bar licensure. Ohio S. Ct. Opinion 91-24 (1991).
What titles may be utilized for inactive members of the bar and nonlawyer employees?
“A law firm may note on its letterhead certain nonlawyer job titles and who performs those services provided that the information is not misleading, false, fraudulent or deceptive as to the fact that the nonlawyers are performing nonlawyer functions.” RI-34. See also RI-105, both opinions provide examples of acceptable titles. Further, the Unauthorized Practice of Law statute, MCL 600.916, states, in pertinent part, that “[a] person shall not practice law or engage in the law business, shall not in any manner whatsoever lead others to believe that he or she is authorized to practice law or to engage in the law business …” (emphasis added).
An inactive member of the State Bar may not suggest that he or she is an attorney. “[M]embers of the state bar of Michigan ... have the exclusive right to designate themselves as ‘attorneys and counselors,’ or ‘attorneys at law,’ or ‘lawyers.’” See Morris v Doherty, PC v Lockwood, 259 Mich App 38 (2003), citing MCL 600.901. In Morris, the Court of Appeals held that any person who is not an active member of the State Bar, is prohibited from suggesting that he or she is an attorney, lawyer, etc. “MCL 600.916(1), which provides that a person shall not represent or designate himself or herself as a lawyer when they are not ‘authorized to practice law in this state,’ appears to clearly coincide with the SBR 3 provision stating that when an inactive member practices law it is considered ‘unauthorized practice.’” Morris at 50. For more information about what services a suspended or disbarred attorney may provide to clients, see Disqualified Lawyers FAQs—lawyers who are suspended, disbarred, inactive, or have resigned from membership.
[1] Commentary to MRPC 1.2 and 1.16.
[3] See Comments to MRPC 1.6, Disclosure Adverse to Client.
[5] See also: MI Ethics Opinion RI-345, and MRPC 1.13 “discussing the disclosure of intended harm to a corporate client.” MI Ethics Opinion RI-160 discussing what an attorney may/must disclose if their client is a fugitive from justice.
[7] BLE Rule 5(D) provides for options to obtain a limited license. Please note that this rule is specific to the employer.
[9] "Person" means an individual, corporation, limited liability company, partnership, firm, organization, association, governmental entity, or other legal entity. Person does not include an individual serving a sentence of imprisonment in a state or county correctional facility in this state or any other state, or in a federal correctional facility. MCL 15.232(g).
Last updated: May 2024