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Ethics
Supreme Court Closes File on Some and Publishes for Comment Other Changes to Lawyer Advertising Rule On December 8, 2011, the Michigan Supreme Court closed the file on proposed changes to Rule 7.3 of the Michigan Rules of Professional Conduct that would have imposed a 30-day prohibition on targeted written solicitations following an injury, death, or accident that may give rise to a claim and required the labeling of letters and circulars, whether targeted or non-targeted, as advertising material. View the order closing the file. View the proposed changes that were not adopted and view the Bar's comments on this proposal. Amendments to Pro Hac Vice Rule Effective September 1 Changes to MCR 8.126 effective September 1 require payment of a fee for each pro hac vice motion filed, require the motion to include a current certificate of good standing from a jurisdiction where the out-of-state lawyer is licensed and proof of payment of the fee, and clarify that the rule applies to arbitrations. View the full text of the order. View the revised rule. For a more complete discussion of the pro hac vice rule, see below. Michigan Supreme Court Amends Michigan Rules of Professional Conduct On January 1, 2011, amendments to Rules 3.1, 3.3, 3.4, 3.5, 3.6, 5.5, and 8.5 of the Michigan Rules of Professional Conduct and the addition of new Rules 2.4, 5.7, and 6.6 became effective. Read the Michigan Supreme Court’s October 26, 2010, implementation order. Rule 5.4 of the Michigan Rules of Professional Conduct was amended September 1, 2010. View the Michigan Supreme Court’s June 8, 2010, implementation order. A more in-depth discussion of the changes can be found here. View a complete copy of the revised Michigan Rules of Professional Conduct. Rule 1.15A, Trust Account Overdraft Notification (TAON), took Effect Sept. 15 On September 15, 2010, Michigan Rule of Professional Conduct 1.15, also known as the Trust Account Overdraft Notification (TAON) rule, took effect. The TAON rule requires lawyers to keep their client and third person trust accounts in financial institutions approved by the State Bar of Michigan (SBM) to serve as a depository for lawyer trust accounts. Lawyers may review the TAON Quick Reference Guide provided below for a summary of their ethical obligations under the TAON rule and may also obtain standardized forms and more detailed information regarding TAON by visiting the TAON webpage. View MRPC 1.15A PDF New Judicial Ethics Opinion Approves Judicial Association Charging a Vendor Fee A new opinion by the Judicial Ethics Committee (JI-136) discusses the propriety of a judicial association charging a vendor a fee for making space available at a judicial conference as well as a judge’s handling of the funds as treasurer of the judicial association. New Judicial Ethics Opinion Limits Display of For-profit Course Materials A new opinion by the Judicial Ethics Committee (JI-135) discusses use of a court clerk’s office to display materials advertising a for-profit course, concluding they should not be displayed in any area the public might perceive is under the court’s control. Lawyer Practicing With District Character and Fitness Member Is Not Per Se Disqualified from Representing Bar Applicants A new ethics opinion (RI-352) concludes that it is not per se unethical for any partner, shareholder, employee, or other associate of a law firm to represent a private client in character and fitness proceedings when another lawyer in the same firm is a member of a district character and fitness committee, replacing an earlier opinion on the subject, RI-194. Family Law Mediators Cannot Prepare All Documents Incident to a Divorce, Including Pleadings, Without Invoking Conflicts Rules A new ethics opinion (RI-351) concludes a lawyer mediator who prepares all documentation necessary to effectuate divorce, including all pleadings, is delivering legal services and is subject to the conflict of interest rules, which would prevent representing opposing parties. Opinion Clarifies Earlier Opinions Pertaining to Representing a Fiduciary A new ethics opinion (RI-350), acknowledging that defining who is the client is a matter for substantive law not ethics, revisits two earlier opinions (R-10 and RI-342) that discussed different aspects of a lawyer’s representation of a fiduciary. In re-examining and limiting those portions of the opinions that discuss determining who is the client, the new opinion focuses on the ethical questions raised, which are the duty to render candid advice, conflicts of interest, and fees. Pro Hac Vice Admission Out-of-state attorneys seeking to appear in a Michigan case or proceeding, whether before a court, administrative tribunal or agency, or arbitration proceeding, must comply with Michigan’s pro hac vice rule. Lawyers seeking temporary admission should review MCR 8.126, MCR 9.108, and Rule 15 of the Rules Concerning the State Bar of Michigan to fully understand the requirements and procedure. Every lawyer seeking admission under the pro hac vice rule subjects himself or herself to the jurisdiction of Michigan’s attorney discipline system. MCR 8.126 provides that an out-of-state attorney is permitted to appear and practice in no more than five cases in a 365-day period. For the privilege of practicing in Michigan, the out-of-state attorney must pay a fee of $135 for each motion filed. That fee is payable to the State Bar of Michigan, 306 Townsend St., Lansing, MI 48933, and should be sent to the attention of the Finance Department, with a notation that it is a pro hac vice fee being paid on behalf of the out-of-state attorney, and include that attorney’s name and address. The State Bar will provide a letter acknowledging receipt of payment within three business days from receipt of payment. A Michigan attorney who is associated with the out-of-state attorney must file the pro hac vice motion, to which must be attached a current certificate of good standing from a jurisdiction where the out-of-state attorney is licensed and eligible to practice; an affidavit by the out-of-state lawyer verifying certain information set forth in the rule pertaining to licensure, disciplinary history, and verifying a current familiarity with Michigan court rules; and a copy of an acknowledgment letter from the State Bar of Michigan evidencing payment of the required fee. The Michigan attorney must attest that he or she has read the affidavit, has made a reasonable inquiry concerning its contents, believes the out-of-state attorney’s representations are true, and agrees to ensure that the procedures in the rule are followed. A copy of the motion and attachments must also be submitted to the Attorney Grievance Commission by mail to Attn: Pro Hac Vice, Attorney Grievance Commission, 535 Griswold, Suite 1700, Detroit, MI 48226 or by e-mail to ProHacVice@agcmi.com. The Attorney Grievance Commission must, within seven days of receipt of the motion and affidavit, notify the tribunal, the Michigan attorney, and the out-of-state attorney whether that out-of-state attorney has been admitted in Michigan in the past 365 days, if so, how many times. For additional questions regarding this process, call the Attorney Grievance Commission at (313) 961-6585 or e-mail questions to ProHacVice@agcmi.com. For additional questions about how and where to file the fee, contact Carol Peterson at the State Bar of Michigan by phone at (517) 346-6377 or e-mail at cpeterson@mail.michbar.org.
Michigan Ethics Opinions The State Bar of Michigan is pleased to provide this service to our membership to assist Michigan lawyers in researching ethics inquiries free of charge. This service provides the full index to Michigan ethics opinions, both professional and judicial, with links to all ethics opinions released since October 1988. There are four ways to search for Michigan ethics opinions using our 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. If you would like to request a written ethics opinion regarding a particular issue, click on written Ethics Opinion to obtain instructions for submitting your written request. Notice to Lawyers: Members may contact the SBM Ethics Helpline at (877) 558-4760 to receive an informal, advisory opinion from a staff attorney regarding an ethics issue pertaining to the inquirer’s prospective conduct. This number is reserved for lawyers and judges only. Staff counsel will not advise on past conduct of the inquirer, the conduct of another attorney or judge, on questions of law, or hypotheticals. The opinions of staff counsel are non-binding and advisory only. Ethics Rules
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