Public Policy Update from the State Bar of Michigan
November 23–29, 2009
Volume 7 Issue 48

In the Capitol
Committee Meetings of Interest for the Week of November 30
12/1 Senate Judiciary
Agenda: SB 750 Establish procedure for demolition of certain seized properties, and allow property to be donated to certain nonprofit and governmental organizations.

12/2 House Judiciary
Agenda: HB 5176 Include corrections identification card forms of identification necessary to apply for a state identification card and allow access to certain department of corrections data; HB 5177 Require certain prisoner reentry programs, including issuance of identification card and copies of other identifying documents, and require prisoners to obtain certain records; HB 5178 Include corrections identification card forms of identification necessary to apply for driver license; HB 5179 Assist convicted persons in obtaining certain records necessary to obtain identification documents; HB 5180 Provide for issuance of debit card to access the prisoner's institutional account upon release; HB 5515 Protect breastfeeding in public places as civil right; and any other business properly before this committee.
SBM Position on HB 5176–HB 5179: Support

12/3 House Judiciary: Mental Health
Agenda: Agenda: HB 5175 Clarify juvenile competency and culpability; HB 5482 Clarify restoration of juvenile to competency to proceed; HB 5483 Clarify restoration of juvenile to competency to proceed; HB 5484 Clarify certain statements made during juvenile competency evaluation; HB 5485 Clarify juvenile competency definitions; HB 5486 Require juvenile competency hearing; HB 5487 Clarify juvenile competency and evaluation; HB 5488 Require juvenile competency evaluation to use a qualified examiner; HB 5489 Clarify juvenile competency evaluation and report.

Complete Committee Meeting List

New Public Acts

In the Hall of Justice
The Michigan Supreme Court has a Public Administrative Conference scheduled for Thursday, December 10.

Rule Amendments
2009-04—Amendment of Rule 2.003 of the Michigan Court Rules
Issued: November 25, 2009
Effective: November 25, 2009

Proposed Amendments
2009-06—Proposed Amendment of Rules 1.5, 1.7, 1.8, 3.1, 3.3, 3.4, 3.5, 3.6, 5.4, 5.5, and 8.5 of the Michigan Rules of Professional Conduct, and the addition of Rules 2.4, 5.7, and 6.6
Alternative A is similar to the proposed revision of MRPC 1.5 that was published for comment on July 2, 2004, in ADM File No. 2003-62. It differs from the current rule in several ways (indicated by overstriking and underlining). For example, paragraph (b) would require a written communication regarding fees and expenses, and paragraphs (c) and (d) contain more specific requirements regarding contingent fees, including the requirement that all contingency fee agreements be signed by the client. Under paragraph (e), a lawyer and a client could agree to payment of a nonrefundable fee that is fully earned when received and is for the sole purpose of committing the lawyer to represent the client, even though the lawyer may perform no additional work. Proposed paragraph (f) would require that the client be given written notice of any fee-sharing arrangement agreed upon by attorneys from different firms, that the client consent in writing, and that the total fee not be increased solely because of the division of fees.

Alternative B is a new revision of MRPC 1.5 that has been proposed by the Attorney Grievance Commission. Changes in the existing rule are indicated by overstriking and underlining. The accompanying comment from the commission explains the proposed changes.

The proposed changes in current MRPC 1.7 are similar in many respects to the version of MRPC 1.7 that was published for comment on July 2, 2004, in ADM File No. 2003-62. The additions to the current rule and the expanded commentary (indicated by overstriking and underlining) are intended to provide additional guidance to lawyers and to make the conflict-of-interest doctrine less difficult to understand and apply with regard to current clients. For example, proposed paragraph (b) contains more specific requirements regarding the circumstances in which a lawyer may represent a client despite the existence of a conflict of interest, including the requirement of written consent.

Proposed MRPC 1.8 is a similar but shorter version of the proposal that was published for comment on July 2, 2004, in ADM File No. 2003-62. The proposed rule is substantially similar to current MRPC 1.8, although the title has been changed and the accompanying commentary has been expanded considerably. In addition, proposed paragraph (a)(2) would require that a client be advised in writing of the desirability of seeking the advice of independent legal counsel in a transaction, and paragraph (j) clarifies that a prohibition that applies to one lawyer in a firm applies to all lawyers in the firm.

There is no equivalent to proposed MRPC 2.4 in the current Michigan Rules of Professional Conduct. The proposal is virtually identical to the version that was published for comment on July 2, 2004, in ADM File No. 2003-62. The proposed rule is designed to help parties involved in alternative dispute resolution to better understand the role of a lawyer serving as a third-party neutral.

Proposed MRPC 3.1 is similar to the proposed revision that was published for comment on July 2, 2004, in ADM File No. 2003-62. The proposal makes no changes in the current rule, but modifies the accompanying commentary to clarify that a lawyer is not responsible for a client's subjective motivation.

The proposed changes in MRPC 3.3 are similar to those in the proposal that was published for comment on July 2, 2004, in ADM File No. 2003-62. The manner in which the current rule would be modified (indicated by overstriking and underlining) includes specifying in paragraph (a)(1) that a lawyer shall not knowingly "fail to correct a false statement of material fact or law," and substituting proposed paragraph (b) for current paragraph (a)(2), which deals with a disclosure that is "necessary to avoid assisting a criminal or fraudulent act by the client."

Proposed MRPC 3.4 and the accompanying commentary are nearly identical to the current Michigan rule and to the proposed revision that was published for comment on July 2, 2004, in ADM File No. 2003-62. One difference is the clarification in proposed paragraph (f)(1) that a lawyer may not ask someone other than a client to refrain from voluntarily giving relevant information to another party unless the person is "an employee or other agent of a client for the purposes of MRE 801(d)(2)(D)."

Proposed MRPC 3.5 is similar to the proposed revision that was published for comment on July 2, 2004, in ADM File No. 2003-62. It differs from the current rule primarily because of the addition of paragraph (c), which addresses the issue of lawyers contacting jurors and prospective jurors after the jury is discharged.

Alternative A is a similar but abbreviated version of the proposed revision of MRPC 3.6 that was published for comment on July 2, 2004, in ADM File No. 2003-62. It expands the current rule considerably by moving substantial portions of the current commentary into the rule itself. See, for example, proposed paragraph (b). Paragraph (a) is substantially the same as the current rule, except that the "reasonable lawyer" standard is substituted for the "reasonable person" standard.

Alternative B is the proposed revision of MRPC 3.6 that was submitted by the State Bar of Michigan and published for comment on July 2, 2004, in ADM File No. 2003-62. The proposed changes in the current rule are indicated by overstriking and underlining. Alternative B is longer than Alternative A and includes several additional provisions, including proposed paragraph (c), which specifically would allow a statement "that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client," and proposed paragraph (d), which specifies that a lawyer associated with a lawyer subject to paragraph (a) may not make a statement prohibited by paragraph (a). Alternative B also includes longer accompanying commentary than Alternative A.

Proposed MRPC 5.4 is similar to the proposed revision that was published for comment on July 2, 2004, in ADM File No. 2003-62. It differs from the current rule primarily because of the addition of proposed paragraph (a)(4), which specifically allows a lawyer to "share court-awarded legal fees with a nonprofit organization that employed, retained, or recommended employment of the lawyer in the matter."

Proposed MRPC 5.5 is essentially the same proposal that was published for comment on July 2, 2004, in ADM File No. 2003-62. Both the rule and the accompanying commentary are much longer than the current rule and commentary. The rule sets specific guidelines for out-of-state lawyers who are appearing temporarily in Michigan, and is intended to work in conjunction with MRPC 8.5. See, also, MCR 8.126 and MCR 9.108(E)(8).

There is no equivalent to proposed MRPC 5.7 in the current Michigan Rules of Professional Conduct. The proposal is substantially the same as the version that was published for comment on July 2, 2004, in ADM File No. 2003-62. The underlying presumption of the proposed rule is that the MRPCs apply whenever a lawyer performs law-related services or controls an entity that does so. The accompanying commentary explains that the presumption may be rebutted only if the lawyer carefully informs the consumer which services are which and clarifies that no client-lawyer relationship exists with respect to ancillary services.

There is no equivalent to proposed MRPC 6.6 in the current Michigan Rules of Professional Conduct. The proposal is substantially the same as the proposal that was published for comment as MRPC 6.5 on July 2, 2004, in ADM File No. 2003-62. The proposed rule addresses concerns that a strict application of conflict-of-interest rules may deter lawyers from volunteering to provide short-term legal services through nonprofit organizations, court-related programs, and similar other endeavors such as legal-advice hotlines.

Proposed MRPC 8.5 is similar to the proposed revision that was published for comment on July 2, 2004, in ADM File No. 2003-62. It differs considerably from the current rule, primarily by the addition of a separate section on choice of law. The proposed rule specifically gives discipline authorities jurisdiction to investigate and prosecute the ethics violations of attorneys temporarily admitted to practice in Michigan. The rule is intended to work in conjunction with MRPC 5.5. See, also, MCR 8.126 and MCR 9.108(E)(8).
Issued: November 24, 2009
Comment period expires: March 1, 2010
Public hearing: To be scheduled

At the Bar
Judicial Crossroads Task Force Media Kit

Real Property Law Section to Host 2010 Winter Conference on "Being an Agent of Change" in Arizona

Federal News
Right and Left Join Forces on Criminal Justice
(New York Times, 11/23/09)

State News
Michigan Has Most Generous Senior Tax Breaks in U.S.
(Detroit News, 11/28/09)

New Ethics Rule Divides Michigan Supreme Court
(Detroit News, 11/27/09)

Lawmaker Calls for State Taxes Overhaul
(Lansing State Journal, 11/25/09)

Links of Interest
Public Policy Resource Center | Michigan Supreme Court | Michigan Legislature | MCL Search Engines