August 1, 1990
A lawyer who appears in a representative capacity in administrative proceedings, for which a license to practice law is not a prerequisite, is not required by the Rules of Professional Conduct to affirmatively disclose, sua sponte, that the lawyer is so licensed.
A lawyer who appears in a representative capacity in administrative proceedings, for which a license to practice law is not a prerequisite, may not affirmatively claim nonlawyer status, and may not mislead the client, the tribunal, or any third person with respect to such professional status.
A lawyer's refusal to answer a question concerning possession of a license to practice law fully and truthfully, or providing a misleading answer, in the context of paragraph 2 is professional misconduct subject to discipline.
The Rules of Professional Conduct reach lawyer activities in addition to those which involve the "practice of law" and extend to the handling of "any legal matter," which is a broader and more inclusive category. Thus, where nonlawyers may appear in a representational capacity in administrative proceedings, such representation is not within the concept of the "practice of law" for which sanctions might be imposed but, when such representation is afforded by a person who is in fact a lawyer, it must be effectuated without violating the Rules of Professional Conduct.
References: MRPC 1.0(b), 1.1, 1.8(h)(1), 3.3(a), 4.1, 8.3, 8.4(b); CI-654. CI-1117 is superseded.
A lawyer is employed by an organization to represent clients in hearings before certain administrative agencies which allow claimants to be represented by a lawyer or by other nonlawyer agents. The executive authority of the organization wishes the lawyer to refrain from advising clients that the individual who represents them is, in fact, a lawyer, licensed to practice law in this state. Following those instructions, the lawyer files appearances and signs documents, specifically appending to that signature the term "nonlawyer."
The administrative adjudicator before whom the lawyer frequently appears inquires whether this lawyer, if continuing such conduct, will be violating ethics rules.
MCR 2.113(C)(1)(f) and (h) affirmatively require a lawyer to claim professional status and to append the lawyer's name and license number to every pleading. Thus the lawyer's duties in judicial proceedings are clear.
In nonjudicial proceedings further research is required. MRPC 1.1 states:
"A lawyer shall provide competent representation to a client. A lawyer shall not:
"(a) handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it;
"(b) handle a legal matter without preparation adequate in the circumstances; or
"(c) neglect a legal matter entrusted to the lawyer."
The concept of "legal matter" is not defined in the rule, nor is a denotation addressed in the comments. The adjective "legal" has numerous connotations, some of which would obviously not appropriately be applied in this context. For example, Black's Law Dictionary (4th ed) provides, among other definitions of "legal":
"3. Cognizable in courts of law, as distinguished from courts of equity; construed or governed by the rules and principles of law, in contradistinction to rules of equity."
Applying such a limiting definition in the context of the disciplinary rule would suggest that a Michigan lawyer, who by virtue of the license to practice law is an "attorney at law," "counsellor in chancery," and "proctor in admiralty," not be subject to discipline for incompetence or negligence in equitable or admiralty matters. This is so far outside the obvious intention of the Supreme Court that such a limiting construction must be rejected.
A more apt definition of "legal" is that appearing in Webster's Third New International Dictionary, "of or pertaining to law; arising out of, or by virtue of, or included in law; based on or governed by law." For purposes of MRPC 1.1, therefore, we determine that "legal matter" includes any business performed by a lawyer on behalf of a client, the principal basis for which is law, statutory, common, or constitutional.
There are certain services which lawyers may perform which are not "professional legal services" to which the disciplinary sanctions of the Michigan Rules of Professional Conduct would apply. See, MRPC 1.0(b). A lawyer who undertakes activities a nonlawyer may perform does not cease to become a lawyer merely because a nonlawyer could perform the same service. A lawyer who is incompetent to engage in an activity, but who undertakes to do so, or who neglects the activity, or handles the matter incompetently because of inadequate preparation in the circumstances, is subject to discipline under MRPC 1.1, notwithstanding that the same service might have been rendered by a nonlawyer, because MRPC 1.1 reaches the handling of any "legal matter."
This analogy clarifies the status of a lawyer in representing clients in "legal matters" for which the license to practice law is not a prerequisite to representation. A lawyer cannot undertake representation of a client in a legal matter, yet claim to be acting as a layperson. For a lawyer, the handling of a "legal matter" is within the purview of MRPC 1.1, whether or not it involves the "practice of law."
Purporting to represent a client in the capacity of a nonlawyer, when one is a lawyer, also implicates MRPC 1.8(h)(1), which prohibits a lawyer from making an arrangement prospectively limiting the lawyer's liability to a client for malpractice, unless permitted by the law and the client is independently represented in making the agreement.
It is one thing for the lawyer to say nothing concerning professional status. No provision of the Michigan Rules of Professional Conduct has been discovered which suggests that the lawyer must take affirmative steps to disclose that professional status as a precondition to engaging in commerce, business or social.
However, the lawyer may not make a false statement of material fact or law to a tribunal, MRPC 3.3(a), or to a third person, MRPC 4.1. In proceedings before the Hearings Division of the Social Security Administration, the fact that a client representative is a lawyer may be a "material fact," because, although that status is not a prerequisite to the representation, it may be relevant to the adjudicator's fulfillment of the mandate of MRPC 8.3(a), a lawyer "shall inform the Attorney Grievance Commission" of knowledge that another lawyer has violated the Michigan Rules of Professional Conduct.
Affirmative misrepresentations, either in response to questions from the client or others, or using a designator such as "nonlawyer" in filing pleadings, represents an attempt to thwart the administration of justice at an incipient stage. If clients are misled as to the representative's professional status, and induced to believe that the representative is not licensed to practice law, when the truth is to the contrary, they are impeded from filing complaints with the Attorney Grievance Commission for any violation of the Michigan Rules of Professional Conduct that might have arisen in the course of the representation, or from seeking reimbursement from the Client Security Fund in the event the lawyer engages in misconduct.
This is the evil which the false representation of "nonlawyer" status accomplishes, and which therefore violates the general prohibition against any public communication that is false, fraudulent, misleading or deceptive, MRPC 7.1(a). Such conduct also appears to come within the prohibitory ambit of MRPC 8.4, as conduct involving "dishonesty, . . . deceit, [or] misrepresentation," since such conduct reflects adversely on the "lawyer's honesty, trustworthiness, or fitness as a lawyer," because the lawyer is attempting to avoid oversight by the disciplinary authorities duly appointed over the profession.
CI-654 advocated requiring a lawyer to always disclose the existence of professional status affirmatively when appearing in a representational capacity. The opinion used the precatory "should" to describe the lawyer's duty, rather than the mandatory "must" or "shall." By this opinion, the Committee does not renounce that moral statement, but we recognize that it does not impose a legally enforceable obligation.
CI-1117 indicated that a lawyer acting as a layperson in administrative proceedings could avoid indicating lawyer status by making clear to the client that the lawyer "is not providing legal services or practicing law," thereby protecting the client from "any possible misunderstanding." That opinion references no language in the former Michigan Code of Professional Responsibility which, like MRPC 1.1, extends the reach of the Michigan Rules of Professional Conduct beyond the confines of the "practice of law" to the handling of any "legal matter." Because the Rules contain provisions which contradict the underlying rationale of CI-1117, and CI-1117 overlooked applicable language from the predecessors to MRPC 1.1, 4.1, 7.1(a), and 8.4(a), it is superseded.
The conclusion, therefore, is that the lawyer is under no affirmative obligation to sua sponte disclose, in all employment undertaken, the possession of licensed professional status. However, any affirmative misrepresentation, or deliberate concealment, such as by failing to respond to inquiries as to professional status, done in conjunction with any "legal matter" on which the lawyer has been employed, is a violation of the Michigan Rules of Professional Conduct, and subjects the lawyer to disciplinary sanction.