It’s Friday at 10 p.m. You have just discovered that your client has provided false evidence which was submitted to the court. You know that the State Bar of Michigan Ethics Helpline is closed1, but you try to call anyway to no avail. What do you do?
We’ve all been there. We try to navigate the complexities of the ethical world while balancing our duties to our clients. But what happens when you need to find an answer sooner rather than later, if for no other reason than to get some sleep?
First, start at the SBM ethics homepage.2 Here, you will find links to all the ethics resources to help you with your query. To help you navigate the website, let’s break it down a bit.
Next, review the Michigan Rules of Professional Conduct or, for judicial officers, the Michigan Code of Judicial Conduct. Links to both can be found on the left side of the ethics page. Once you find the rule you need to help with your query, you may have additional questions regarding how to apply the rule.
Then, search ethics opinions. You can:
Find an opinion by number using three digits. For example, if you are searching for ethics opinion R-4, you would enter it as “R-004.”
Perform a full-text search using keywords or if you would like to “Shepardize” a search, use the short form of the opinion number (for example, R-4.)
Search by topic, which allows you to choose a topic (for example, conflicts of interest.) It will generate a list of relevant opinions with short descriptions.
Look for several opinions under a particular rule by searching for opinions under that rule — “opinions interpreting MJCJ” or “opinions interpreting MRPC.” This is good place to start since opinions are divided under each rule the opinion addresses.
Additional information may also be found under the SBM ethics frequently asked questions page and the ethics resources at the bottom of the ethics homepage. Further, ethics-related materials including information regarding managing a practice — records retention policies, succession planning materials, limited scope representation materials, non-engagement letters, and more — can be found under the SBM Practice Management Resource Center webpage at www.michbar.org/pmrc/content [https://perma.cc/4T84-YEN6] and the SBM Unauthorized Practice of Law page at www.michbar.org/professional/upl [https://perma.cc/WC4A-P8Y3].
If you need additional assistance, the American Bar Association ethics opinions are at www.americanbar.org/groups/professional_responsibility/publications/ethics_opinions [https://perma.cc/V2L3-PLM9].It should be noted that the ABA model rules are not the same as the Michigan Rules of Professional Conduct and, therefore, the ABA ethics opinions, while helpful, should be used with caution and reviewed alongside the Michigan Rules of Professional Conduct.
The SBM ethics webpage offers a wide variety of resources including samples, FAQs, opinions, rules, and more. These resources will help you determine your next steps in navigating your ethical conundrum and may assist in the late-night turmoil and help you get some much-needed, peaceful sleep.
So, now that you have found ethical guidance, what is the result? The Michigan Rules of Professional Conduct and Code of Judicial Conduct provide a framework for attorney and judicial ethics. Violating these rules may result in discipline, but what effect does that have on your pending case?
MRPC 1.0 provides:
(b) Failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. The rules do not, however, give rise to a cause of action for enforcement of a rule or for damages caused by failure to comply with an obligation or prohibition imposed by a rule. In a civil or criminal action, the admissibility of the Rules of Professional Conduct is governed by the Michigan Rules of Evidence and other provisions of law.
You may recall several years ago that an attorney drafted an estate plan in violation of MRPC 1.8(c), which prohibits an attorney from preparing an estate plan for a non-relative that provides a substantial gift to the attorney or the attorney’s close family members. The attorney was disciplined by the Attorney Discipline Board, but the estate plan remained in full force and effect despite the ethical breach. The court determined that the violation of MRPC 1.8 was not the basis to invalidate otherwise valid estate planning documents; it was only the basis for discipline. This case upheld the notion that violating rules of professional conduct does not give rise to a cause of action for violation of the rules.3
The ethics helpline often receives calls questioning the enforceability of the MRPC or the Judicial Code. The attorney calling with the question is exasperated about the conduct of another attorney and wants to know how to enforce the rules against opposing counsel in pending litigation. Ethics counsel explains that the only recourse under the rules is filing a complaint with the Attorney Grievance Commission or Judicial Tenure Commission, a process that takes a very long time and is unlikely to affect the current litigation. Unless there is a conflict of interest or similar reason to disqualify an attorney, the proper course may be filing a motion.
However, there are numerous occasions when the MRPC can and should be used to represent a client in litigation proceedings. Most often this is within the context of necessitating withdrawal,4 candor to the tribunal,5 and lawyers as witnesses.6
The point of ethics opinions and the ethics helpline is helping you avoid disciplinable action. The first step to ensuring that is helping you determine your conduct is ethical and providing sound reasoning for how to proceed given the set of circumstances. If you are unable to find the answer or are in doubt, call the ethics helpline!
Calls to the ethics helpline are returned by members of the ethics team, all of whom are licensed attorneys employed by the State Bar of Michigan. It is important to note that the helpline is not a hotline. The Ethics Helpline is open 9 a.m. to 5 p.m. Monday through Friday, excluding holidays. Callers are asked to leave a message and a staff member will generally return the call within one business day. The helpline is completely confidential, and we do not maintain records of calls. When an attorney calls, we liken the confidentially to protecting secrets under MRPC 1.67: Unless you threaten to commit an action for which it doesn’t apply, everything you tell us is completely confidential.8 Be honest and open to ensure proper guidance. It is preferred that when you leave a message, provide a few details about the circumstance that prompted your call so staff attorneys may begin research before calling you back.
There are additional limitations to what we may discuss, especially pertaining to matters pending before the Attorney Grievance Commission or a legal proceeding against a lawyer. In these situations, it is recommended that the attorney retain independent counsel. Limitations as to what staff counsel cannot advise on may be found at www.michbar.org/opinions/ethicsopinions#helpline [https://perma.cc/QVC5-BGCL].
The SBM ethics team cannot substitute its opinion for that of a judicial officer or disciplinary officer. If a judge has rendered a decision, neither the ethics helpline nor the Professional Ethics Committee will provide you with an opinion regarding your conduct.
Moreover, we cannot address questions of law, only those related to the rules of professional conduct. If you have a question of law that sways into the ethics realm, it is recommended that if you have malpractice insurance, you should contact your carrier. Carriers often have ethics helplines that assist with both legal and ethical guidance.
Still, the State Bar of Michigan Ethics Helpline remains a valuable resource available to provide guidance to help you navigate your ethical responsibilities. Please do not hesitate to call!