At the nucleus of legal ethics are the principles that govern the conduct of members of the legal profession — attorneys and judges alike — that they are expected to observe throughout their legal career. Or, in other words, as so eloquently stated by former U.S. Supreme Court Associate Justice Potter Stewart, “Ethics is knowing the difference between what you have the right to do and what is the right thing to do.”1
At times, it seems simple enough to live up to this standard of honor and dignity. However, there are times when the issue is not so clear, especially when the issue falls into the gray area. That is where the State Bar of Michigan’s Judicial Ethics Committee and the Standing Committee on Professional Ethics assist members of the Bar with application of the Rules of Professional Conduct through ethics opinions.
The Standing Committee on Professional Ethics recognized that as the use of technology grows, so does the use of online reviews by consumers. To help Michigan lawyers with how to ethically interact with clients and non-clients online without violating Michigan Rule of Professional Conduct 1.6, it published Ethics Opinion R-26 (Feb. 25, 2022).2 The State Bar of Michigan Ethics Helpline routinely receives calls from attorneys inquiring about how to respond to negative online reviews without violating MRPC 1.6; at the same time, correcting false or unfair statements while also protecting the attorney’s business is important, as the legal profession continues to rely on word-of-mouth referrals. Michigan attorneys have a duty to protect client confidences and secrets under MRPC 1.6, which includes any comment made by a client or former client on an online forum. The opinion provides guidance on appropriate responses for various scenarios and provides examples of effective language to use when responding to online reviews. Examples include when a review is written by a client, opposing party, or a third party not affiliated with the attorney through any case.
The Standing Committee on Professional Ethics was also asked to explore and provide an analysis on measures that must be taken by lawyers who are supervised in legal services programs by lawyers or non-lawyers, which it did in Ethics Opinion RI-383 (May 20, 2022). Callers to the helpline inquire about management and oversight, program management, and confidentiality. This opinion seeks to provide guidance on organizational structures, analyzes MRPC rules 5.4 and 1.8, and offers direction regarding access to client confidences, secrets, and other information. It further provides guidance about the overall policies that legal service programs should have in place and the roles that should not be part of the entity’s governing body or administration.
The Judicial Ethics Committee reviewed various topics in 2022. It published three ethics opinions addressing simultaneous employment as a quasi-judicial officer and law clerk, participation on an election planning committee, and disclosure to all parties of prior relationships and children in common.
Referees and magistrates inquired whether they may be employed as a part-time, quasi-judicial officer and as a full-time staff attorney or law clerk, a scenario analyzed in Ethics Opinion JI-151 (May 13, 2022). This opinion provides an analysis regarding people employed within the same jurisdiction and those employed in different jurisdictions. The opinion affirms that a quasi-judicial officer is subject to the Michigan Code of Judicial Conduct and, therefore, must avoid the appearance of impropriety and maintain the independence of the judiciary.
During election years, the helpline receives numerous inquiries on a variety of campaign issues. One issue that the committee wanted to clarify was whether a judge may participate on their own election planning committee. Specifically, Ethics Opinion JI-14 (Oct. 12, 1989) made it clear that a judicial candidate may not be a member of another judge’s or candidate’s election planning committee but did not address whether a judicial candidate may be a member of their own election planning committee. Ethics Opinion JI-152 (Aug. 24, 2022) removes this confusion by providing that a judicial candidate may be a member of their own election planning committee and provides clarification of membership on their own campaign committee, a scenario that was not addressed in JI-14.
One judge asked whether a lawyer appearing before a judicial officer who has divorced or terminated a prior dating relationship must disclose that prior relationship to all parties. Further inquiry was made regarding whether disclosure is required if the lawyer and the judicial officer have a child in common. Both issues were analyzed in Ethics Opinion JI-153 (Nov. 4, 2022). The opinion analyzes the divorce and termination of a relationship without children, with children, and how the elapse of time affects that disclosure. In order to avoid the appearance of impropriety and ensure the neutrality of the bench, disclosure is required, and the judicial officer must consider disqualification under MCR 2.003.
The Professional Ethics Committee and Judicial Ethics Committee provide advisory, nonbinding, written ethics opinions. Requests for ethics opinions may be made by any attorney. Information on requesting an opinion is available at the State Bar of Michigan website on the “How to Request an Ethics Opinion” page at michbar.org/generalinfo/ethics/request. Ethics opinions are researched and drafted by the committees. As a way to encourage members to seek guidance and facilitate open deliberations on issues, requests for written ethics opinions — including the identity of the inquirer, identifying facts, and draft opinions — are confidential pursuant to Rule 6 of the rules governing both committees.
Navigating the complex world of ethics can seem daunting at times. However, ethics rules create a foundation for professionals and the profession in a modern society. Navigating these issues requires guidance and ethics opinions assist us in understanding how to apply the complexities of situations the Bar may face on a day-to-day basis. There is no denying that the practice of law is becoming more complex with the increased use of technology and other systems; it is important to develop frameworks to ensure we are making consistent decisions aligned with the core of the practice of law. To accomplish this, Bar members must be aware of the Rules of Professional Conduct and how to apply them. The simplest way to do so is through the ethics opinions written by attorneys and judges who face these issues every day.