Ethics Opinion Topic Index

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Abuse of Judicial Office

Abuse of contempt power
  •  Matter of Hague,
  •  412 Mich 532 (1982),
  •  In Re Seitz,
  •  441 Mich 590 (1993),
Advancing business interests of others
Advancing personal interests of others
Family relationships influencing judicial judgment
  •  Matter of Tschirhart,
  •  420 Mich 1201 (1984),
Humiliating Chief Judge Pro Tem and other court personnel
  •  In Re Seitz,
  •  441 Mich 590 (1993),
Improper termination of public defender contract
  •  Matter of Bennett,
  •  403 Mich 178 (1978),
Jury records used for judges election mailings
Perpetual recusal due to animosity toward advocate
Vulgar and discourteous behavior while serving as judge
  •  Matter of Frankel,
  •  414 Mich 1109 (1982) in Re Seitz,
  •  441 Mich 590 (1993),

Administration of Justice, Conduct Prejudicial to

Abuse of contempt power
  •  Matter of Hague,
  •  412 Mich 532 (1982),
  •  In Re Seitz,
  •  441 Mich 590 (1993),
Accepting and soliciting bribes
  •  Matter of Jenkins,
  •  437 Mich 15 (1991),
Disobeying orders of higher court
  •  Matter of Hague,
  •  412 Mich 532 (1982),
Humiliating another judge and other court personnel
  •  In Re Seitz,
  •  441 Mich 590 (1993),
Improper disqualification of advocates
  •  Matter of Hague,
  •  412 Mich 532 (1982),
Irascibility and irrational behavior
  •  In Re Crowell,
  •  379 So2d 107 (Fla 1979),
  •  In Re Seitz,
  •  441 Mich 590 (1993),
Public comment by judge about arrest and acquittal
  •  Matter of Tschirhart,
  •  420 Mich 1201 (1984),
Recusal in order to negotiate employment
Unauthorized practice of law, duty to prevent
Administrative proceedings, lawyer's truthfulness concerning professional status
Agreement not to report misconduct
Appearance of collusion between parties
Contacts with presiding judge off the record
Copying presiding judge on substantive matters
Inconsistent testimony of client
Negotiating settlement with represented party
Pretrial discovery proceedings, lawyer's duty to reveal false nature of evidence
Rejecting court appointment
Substantive contacts with presiding judge off the record
Withdrawal as next friend when sued by ward
Judge consulting with other judges about pending case

Administrative Agency Practice

City attorney acting as hearing officer
Confidentiality of consultation under agency program
Contacting employees and former employees of opposing party in workers' compensation case
Duties of nonlawyer advocates
File data not in official record
Government program advocate
Interference with advocate's independent professional judgment
Judge representing or consulting for party
  •  A/O 10,
Lawyer appearing as nonlawyer representative of party
Lawyer's duties when employee legal assistant appears on behalf of parties
Lawyer's spouse elected to municipality
Lawyer's truthfulness as to professional status
Legal assistant appearing on behalf of party
Nonlawyer advocates held to lawyer ethics rules
Nonlawyer assistance to party
  •  RI-103,
  •  C-239,
  •  State Bar of Mi v. Galloway,
  •  124 Mich App 271 (1983),
  •  422 Mich 188 (1985),
Nonlawyer representative before agency
  •  RI-103,
  •  C-239,
  •  State Bar of Mi v. Galloway,
  •  124 Mich App 271 (1983),
  •  422 Mich 188 (1985),
Person appearing on behalf of party disclosing lawyer status
Prejudice to case when hearing officer exposed to data outside the official record

Administrative Duties of Judicial Officers

Administrative Hearing Officer

File data not in official record, effect on disqualification
Grievance filing necessitates recusal
"Issuing support order—subsequent representation"
Law practice by
Letterhead showing public office
"Matters" affecting ability to negotiate employment
Negotiating employment with firm which is a party before hearing officer
"Personal and substantial" participation in matter limits private practice
"Personal and substantial" participation in matter results in disqualification
Presiding in cases in which employee of law firm's client appear
  •  In Re Schlossberg v. State Bar Grievance Bd.,
  •  388 Mich 389 (1972),
Preventing unauthorized practice of law
Recusal when officer files grievance against lawyer
"Representing client—issued support order"
Tainted by access to data outside the record
Withdrawal from case to negotiate employment

Admission to the Bar

Character and fitness determinations
  •  75 MBJ 682 (Jul 1996),
Discipline imposed when admission misconduct discovered
  •  Matter of Del Rio,
  •  407 Mich 336 (1979),
Duty to report law student misconduct
False information submitted to admission authority
  •  Matter of Del Rio,
  •  407 Mich 336 (1979),
Imputed disqualification of hiring firm when transferring from nonlaw employment
Pro hac vice admission for a particular matter
  •  70 MBJ 1074 (Oct 1991),
Recertification
  •  Yashinsky v. Board of Law Exam'Rs,
  •  539 Nw2d 378 (1995),
Reporting law student activity
Representing bar applicants while serving on admissions committee
Unlicensed graduates
  •  71 MBJ 1061 (Oct 1992),
Out-of-state lawyer located in Michigan who has applied for a Michigan license and is practicing in jurisdiction where licensed
Temporary legal services

Advancing Funds to Client

Advancing client proceeds from operating account
Advancing court-imposed fines and costs
Agreement with venture capital company
Allocating attorney fees to class action clients
Attorney fees allocated to class action clients
By lawyers employed in legal service organizations
Charging lien
Departing lawyer's responsibility for
Disbursement from operating account to avoid trust account
Financing costs via loan
Fines and costs advanced by law
Indigent client
Living and medical expenses to indigent client
Loan from third-party vendor
Referring client to third-party lender
Security for court costs for indigent client
Venture capital company advancing funds

Adverse Parties

Client contact with opposing party
Complaining witness in criminal case contacted by defense attorneys
Contact with former corporate employees
Contact with lower level corporate employees
Contacting by letter with copy to lawyer
Copy of letter to lawyer
Counseling client to contact opposing party
Defense attorney contacting complaining witness
Duty to reveal assistance of pro se litigant without appearance is limited
Interviewing employees of corporate party
Judge presiding in unrelated matter in which party opponent appears as advocate
Lawyer as witness for
Prosecutor not allowing complaining witness to talk with defense attorneys
Public defender may ethically establish separate offices to represent defendants with adverse interests
Scope of corporation "party"
Settlement discussions between parties

Advertising

City employees displaying campaign signs
  •  A/O 57,
Criticism of sitting judges
Criticism of existing law
Discussing position on political or legal issues
Endorsement from sitting judge
Incumbency, inference when not fact
  •  A/O 51,
  •  A/O 104,
In political party ad book
Listing in non-approved directories
  •  C-209,
Literature at political candidate's event
Misleading campaign ad placing decision-making blame
Name recognition
Picture in robes when not incumbent
  •  A/O 51,
Placing advertisement in nonjudicial candidate's literature
  •  A/O 20,
Pledges in judicial campaign
Political candidate's literature at judicial candidate event
Political endorsement of judge's candidacy
Space donated in nonjudicial candidate's literature
  •  A/O 20,
Sponsorship of youth sports team
"Strict sentencing philosophy" slogan
Academic credentials
"Affiliation" must be defined for clarity
"Affordable" services
Ancillary services
Announcements sent to former firm's clients
  •  RI-049,
  •  76 MBJ 84 (Jan 1997),
  •  69 MBJ 154 (Feb 1990),
Areas of practice
Bankruptcy specialty designation
Booth outside co-sponsored seminar
Computer technology
Consultation charges
Coupons for legal services
Credentials of lawyers
Direct mail
Discounts for special services
Donation of fee for charitable service
Dual professions
Duty to review referral service marketing plan
Failure to remove lawyer listings from phone directory after discipline
  •  In The Matter of Freedman,
  •  406 Mich 256 (1979),
Fee information
Firm name as part of franchise
Firm name including historical building where firm located
Firm name including out-of-state lawyer
Firm name including retired shareholder
Firm name inferring multiple offices
Firm name, PLLC designation
Former judge status, description of
Free legal seminar
Group advertising plan
Internet use
"Law Offices" inferring more than one office
Lawyer communications regarding "specialties"
  •  70 MBJ 72 (Jan 1991),
Lawyer named “Super Lawyer” may advertise it
Lawyer Referral Service vs. advertising
lawyer's name not required in ad
Letter regarding lawyer's services in "newcomer" packets
Listing on out-of-state firm website for referrals as advertising
Marketing by independent contractor
Misleading ads
Misleading ads, inferring more than one lawyer
Name of lawyer in group ad
"No fee unless recovery"
"Of counsel" relationships
Office presence without staffing
Patent law practice
Prosecutor's appearance as public official in pro bonocase
Public official in law firm
Referral service participation
  •  70 MBJ 146 (Feb 1991),
"Specialties"
Status as former judge
SuperLawyer
Telephone directory listings after discipline imposed
  •  In The Matter of Freedman,
  •  406 Mich 256 (1979),
Television ads
Third party advertising lawyer's services as incentive to members
Trade name
Welcome Wagon participation
Unassociated lawyers
Advertising lawyer discount as incentive for membership
Ancillary services
Announcement of nonlawyer appraiser joining law firm
Appraiser employed at law firm
Chamber of Commerce advertising lawyer discount
Church advertising lawyer discount
Duty to review advertising
Lawyer discount used as membership incentive
Insurance customers
Recommending services of particular lawyer
Telephone listing separate from law firm prohibited
Domain Name

Advice to Client

Alternate dispute resolution options
Asking for appointment as personal representative
Discharge of lawyer
  •  74 MBJ 822 (Aug 1995),
Duties owed when assisting pro se litigant
Duty to advise of judicial candidacy
Duty to advise on ADR options
Initial consultation triggering disqualification
Lawyer fiduciary making legal decisions for ward
lawyer's nonlaw business agent
Legal services staff reduction
Limited by lawyer's contract with presiding court
Limited by third party payor of fee
"Living will" and health care directive information presented at seminar
Not to discuss litigation with adverse party
On advisability of arbitration clause in fee agreement
Pursuit of cause of action for minor
Representing client on unrelated matters when client is fugitive
Successor counsel's conduct

Advice to Third Person

Advising interested persons to seek independent counsel
Corporate employees not to discuss litigation
Duty to convey offer to resolve through
Negotiating settlement with opposing party
Parent consulted when representing minor child
Requesting employees not to discuss litigation

Alcohol Abuse

By judicial officer
  •  N Re Somers,
  •  384 Mich 320 (1971),
  •  In The Matter of Sobotka,
  •  421 Mich 1201 (1985),

Alternate Dispute Resolution

Adjudicators representing former parties in matter
Advising unrepresented party
Advocacy by adjudicator
Arbitrator is retired judge
Conciliation proceedings handled by judge
Conflicts of arbitrators
Disclosures to parties
Ex parte contacts with adjudicators
Judge participating
Judge serving on "Commission to Take Testimony"
  •  A/O 2,
Mediator drafting parties' agreement
Mediator subsequently representing party
Mediator subsequently serving as arbitrator in same matter
Party-nominated adjudicator
Retired judge serving as arbitrator
Duty to advise on ADR option
Duty to convey offer to resolve through ADR
Limiting liability of lawyer
Party represented by matter's former mediator
Testimony from
Withdrawal when clients dispute acceptance of mediation award
Calculation of mediation sanctions
  •  Bennett,
  •  et al v. Weitz et al (Dec 1996),
  •  73 MBJ 1085 (Oct 1994),
Coercing civil settlements
Decisions about settlement
Forcing settlement on disabled client
Mediation award, multiple clients
Multiple clients, accepting mediation award
Negotiating settlement of merits and attorney fee concurrently
Plea bargain, defense counsel duty to remind prosecutor
Settlement offers, client decision on
Independent of law practice
Materially limiting service to law clients
Nonlaw business owned by lawyer
Servicing clients of lawyer/owner
Servicing clients of opponents of lawyer/owner
Waiver of liability clause
Eligibility of adjudicators
Ex parte contacts with adjudicators
Record retention of arbitrator not governed by ethics rules
Advocacy by adjudicator
Disclosures of adjudicator outside interest
Duty to convey offer to resolve through ADR
Ex parte contacts with adjudicators
Recordkeeping
Agreement requiring client/lawyer dispute arbitration
Agreement requiring fee arbitration
Arbitration of attorney fees
Duty to advise on ADR options
Fee arbitration as condition of representation
Fees, negotiating as part of settlement
Independent advice on accepting arbitration clause
Limiting advice to specific settlement proposal
Requirement in attorney/client fee agreement
Statutory attorney fees
Client/lawyer disputes
Fees
Environmental law class action matter
Arbitration clause in fee agreement

Ancillary Services

Advertising
Alternate dispute resolution services
Confidentiality of communications from users of law firm nonlaw services
Consulting arrangement with nonlawyer tax appeals expert
Document preparation service
Financial services
Insurance sales
Lobbyist employee of law firm
Psychology and law practice
Telephone listing separate from law firm
Title insurance business

Appeals

Charging For
Client refuses to pay for appeal or accept settlement, seeking protective order for client
Client's untruthful trial testimony
Consolidation of conflicting cases on appeal
Continuing representation—now employed by Prosecutor's office
Criminal representation—lawyer now at Prosecutor's office
Disclosure of Client's fraudulent acts to retrial counsel
Duty to take appeal when agreement silent

Appearance of Impropriety

Advancing business interests of particular company
  •  A/O 47,
Appearance by judge's personal lawyer in unrelated matter
Bias in assignment of indigent cases
  •  Matter of Lawrence,
  •  417 Mich 248 (1983),
Campaign contributions, unusually large
Character reference from judge
Disqualification of part-time domestic relations referee
Disqualification of judge—firm purchasing judge's former practice
Disqualification of judge when cohabiting with or dating advocate or party
Disqualification of judge for personal acquaintance with advocate or party
Disqualification of judge who was former prosecutor
  •  People v. Hampton,
  •  184 Mich App 434 (1990),
Favoritism by judge in remitting bail bond money
  •  In The Matter of Laster,
  •  404 Mich 449 (1979),
Financial interest between presiding judge and advocate
Free legal services, judge accepting
  •  Matter of Lawrence,
  •  417 Mich 248 (1983),
Investment club membership by judge
Judge as host of commercially-sponsored program
Judge as member of honorary committee on behalf of charitable organization
Judge as member of investment club with lawyers
Judge as officer, director, trustee, or nonlegal advisor of charitable or non-profit organization
Judge attending political party fundraiser
Judge encouraging pro bono activities
Judge participating in grant approval as a member, officer, or director of an organization or governmental agency devoted to improvement of the law
Judge participating in "lockup for charity"
Judge present in courtroom as moral support for party
Judge presiding over case with judicial opponent representing a party
Judge serving as moderator at debate
Judge setting "bail for charity"
Law firm buying judge's former practice appearing before judge
Lawyer who could be called as witness
Lawyers asked to participate in pro bono activities
Leasing space to lawyers, judge as landlord
Liquor license, interest held by judge
  •  Matter of Lawrence,
  •  417 Mich 248 (1983),
Negotiating employment with advocate's firm
Part-time referee engaging in law practice
Part-time referee hearing matters presented by former law firm
"Perpetual recusal" of judge for personal dislike of advocate
Personal acquaintance of judge requiring disqualification
Political party inviting judge to attend dinner
Pro bono solicitation by judge
Potential of lawyer as witness
Presiding over matters presented by appointee
Referee who also practices law before own court
Referrals to organization of which judge is board member
Representing client—issued support order as magistrate
Solicitation of funds by judge for charity
Soliciting pro bono participation
Spouse of judge is assistant prosecutor
Spouse of judge leasing space to lawyers
Spouse of judge preparing income tax returns for others in judge's former office
  •  A/O 5,
Under the influence of alcohol on the bench
  •  In Re Somers,
  •  384 Mich 320 (1971),
Unusually large campaign contributions
Using office to benefit friends
  •  Matter of Del Rio,
  •  400 Mich 665 (1977),
Vulgar and obscene language used by judge
  •  Matter of Bennett,
  •  403 Mich 178 (1978),

Appointments

Commissioner representing indigent defendants in courts within budget control
Contract for defense services
Contract for public guardian or conservator
County establishing two public defender offices
Court appointments of lawyer/tenants of judge
  •  A/O 40,
Court appointment of former prosecutor for defense services
Defense contract bid by former prosecutor
Guardian ad litem related to public employees
Guardian ad litem subsequent representation in matter
Public defender-county establishing two groups
Recommendation to governor on judicial appointment
  •  A/O 55,
Rejecting court appointment to represent client
Relatives of guardian ad litem in justice system
Withdrawing from court appointed case

Arbitration

Retainer or advance payments for ADR services

Association With Nonlawyer

Attorney-Client Privilege

Access to computer records by technical support personnel
Accounts receivable of law firm for bank loan
By corporate employees to corporate counsel
Client behavior
Client fee information
Client identity
Client location
Computer-stored information access by technical support
Corporate employee home addresses
Death of client, survival of privilege
  •  77 MBJ 1222 (Nov 1998),
Disclosure of client information to credit reporting agency
Disclosure of client information to legal services corporation
Disclosure of information to regulatory authorities
Disclosure to successor counsel of Client's fraudulent acts
Duty to rectify suspected client perjury
Employee home addresses
Fee information
False pleadings prepared from client information
Former client information
Fraud or illegal act
Guardian ad litem report to court
Identity of former client
Illegal act of client
Illegal act of former client
Inaccurate, truthful testimony of client
Inadvertent disclosure
  •  75 MBJ 418 (May 1996),
Inconsistent testimony of client
Information in settlement negotiations
In house counsel giving recommendations to CEO
Legal services corporation-disclosing client information
Misconduct by lawyer, duty to report
Misconduct of lawyer obtained in client relationship
Observations of client conduct
Perjury of client
Perjury, suspicion insufficient for disclosure
Preparing written guardian ad litem report to court
Privileged information concerning former client
Privileged information concerning lawyer misconduct
Reporting client information to legal services corporation
Reporting lawyer misconduct
Reporting to court on representation as guardian ad litem
Security interest in firm's accounts receivable
Subordinate lawyer disclosing information to supervising lawyer
Supervising lawyer who is subject to review by subordinate lawyer
Survival of privilege after death of client
  •  77 MBJ 1222 (Nov 1998),
Suspicion of client perjury insufficient
Suspicion of client fraud insufficient
Technical support personnel access to computer records
Title defects when drafting quitclaim deeds
Truthful, inaccurate testimony of client
Volunteering information about former client
Wrongful discharge suit, lawyer employee
  •  74 MBJ 54 (Jan 1995),
Corporate employees and inside counsel
Death of client, survival of privilege
  •  77 MBJ 1222 (Nov 1998),
Deposition response
Effect of discharge of lawyer on client perjury
Firm of transferring lawyer, duty to protect
Initial interview conducted by nonlawyer employee
Judge asked for privileged information concerning former client
Rectifying client misconduct
Services used in furtherance of client illegal act
Subpoena for client information
Survival of privilege after death of client
  •  77 MBJ 1222 (Nov 1998),
Transferring lawyer's duty to protect
Waiver to defend lawyer in grievance proceedings

Attorney-Client Relationship

Accepting fee but not performing services
Appeal included in agreement to represent at trial
Appointment as personal representative when preparing will
Assisting pro se litigant by unbundling legal services
Charging fees for withdrawal
Charging fees to answer grievance from debtor
Client agreeing to pay lawyer's malpractice premium
Client naming lawyer drafting will as personal representative
Contingency fee—re-negotiating with client
Contingent fee—sharing with health care provider
Corporate entity as "client"
County as client of prosecuting attorney/county corporation counsel
Court-appointed receiver charging to defend grievance
Created by activities of legal assistant
Created at initial conference
Divorce consultation triggering disqualification
Drafting documents without direct client contact
Drafting lawyer named as personal representative without bond
Employee legal assistant providing assistance in administrative agency proceedings
Established to raise privilege
Failure to personally contact client
Fees paid by third party
File is property of lawyer
Group legal services plan
Inadvertent disclosure
  •  75 MBJ 418 (May 1996),
Independent judgment—fees paid by third party
Initial consultation triggering disqualification
Insurer retaining lawyer for insured
Insurance benefits of client shared with nonlawyer
Law firm "leasing" lawyer employees
Lawyer representing insured may receive fixed fee
"Leased" lawyers working for law firm
Legal services agency conducting pro se clinic
Limited by conditions imposed by payor of attorney fee
Limiting liability in retainer agreement
Minor child as client
Negotiating settlement with represented party
No-fault representation, duties to medical providers
Ownership of representation file
Personal representative of estate as "client"
Personal representative retaining lawyer for wrongful death action
Probate court-appointed lawyers
Pro se clinic conducted by legal services agency
Prospective Client's case not undertaken
Receiver charging fees to defend grievance
Recording conversations with client
Reduced billing for limiting liability of lawyer
Re-negotiating contingency fee agreement
Scope of corporation "party"
Secretly recording conversations
Self help clinics conducted by legal services agency
Temporary lawyers working for law firm
Termination of a fixed fee arrangement
Testifying concerning Client's fees
Trust kit sales
Unbundling legal services
Using door-to-door salespeople as agents
Using employee as intermediary
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