Addressing the gray areas


by Robinjit K. Eagleson   |   Michigan Bar Journal

What is ethics? At the nucleus of legal ethics are the principles that govern the con duct of members of the legal profession (attorneys and judges alike) that they are expected to observe throughout their legal career. Or, as so eloquently stated by Chief Justice John Marshall, “The fundamental aim of legal ethics is to maintain the honour and dignity of the law profession, to secure a spirit of friendly cooperation between the bench and the bar in promotion of highest standards of justice, to establish honour able and fair dealings of the counsel with his client.”1

At times, it seems simple enough to live up to this standard of honor and dignity. How ever, there are times when it is not so clear, especially when the issue falls into the gray area. That is where the State Bar of Michigan Judicial Ethics Committee and the SBM Standing Committee on Professional Ethics assist members with application of the Rules of Professional Conduct through ethics opinions.

The Standing Committee on Professional Ethics recognized that, especially in light of remote work, Michigan lawyers need guidance on how to ethically interact with attorneys who are not licensed in the state. In response, it published ethics opinion RI382.2 The State Bar of Michigan Ethics Helpline routinely receives calls from attorneys inquiring about specific conduct that would require reporting potential unauthorized practice of law or asking whether their own conduct would constitute the unauthorized practice of law. Michigan attorneys have a duty to report known unauthorized practice of law activity under MRPC 5.5. Whether specific conduct actually constitutes the unauthorized practice of law is determined by the legislature and courts. RI382 provides guidance on identifying and reporting the unauthorized practice of law, referral relationships, employment of and joint firm ownership with out-of-state attorneys, assisting an out-of-state attorney with a Michigan matter, and negotiating with out-of-state attorneys.

The Judicial Ethics Committee recently reviewed a topic that falls into the grey area in judicial ethics, specifically regarding referral fees when on the bench. A number of judges have asked whether they can accept a referral fee earned prior to assuming the bench and inquired about requirements regarding notification and disqualification. Part of this inquiry was answered in ethics opinion CI1079, but the committee recently published JI150 to update the analysis. It provides additional clarity by including cur rent judicial canons, ethics opinions, and changes regarding when referral fees are earned. Specifically, JI150 provides guidance for when judges may accept referral fees earned prior to assuming the bench — if they disqualify themselves from all matters involving the firm or lawyer to which the case was referred until final payment is made, with limited exceptions.

The Professional Ethics Committee and Judicial Ethics Committee provide advice in the form of nonbinding written ethics opinions, and requests for these opinions may be made by any attorney. Information on how to request an ethics opinion can be found at How to Request an Ethics Opinion on the SBM website [].

Judicial and attorney ethics opinions are re searched and drafted by the committee. As a way to encourage members to seek guidance and facilitate open deliberations on the issues, requests for written ethics opinions — including the identity of the inquirer, identifying facts, and draft opinions — are confidential pursuant to Rule 6 under the rules of both committees.

There is no denying that the practice of law is becoming increasingly complex with the increased use of technology and other advances. Navigating the world of ethics can seem daunting at times, but ethical rules set the foundation for professionals and the profession in a modern, culturally complex society. It is important to develop frameworks to ensure we are making consistent decisions that are aligned with the core of the practice of law. To accomplish this, SBM members must be aware of the Rules of Professional Conduct and how to apply them. The simplest way to do that is through the ethics opinions written by the attorneys and judges who face these issues every day.

  1. Professional Ethics for Lawyers, (January 30, 2021) [] (website accessed January 7, 2022).
  2. To review this and other opinions issued by bothcommittees, please see Ethics, SBM [https://perma. cc/UW49-ZLH6] (website accessed January 8, 2022).