[These FAQs are neither legal advice nor an ethics opinion, and are not a substitute for your obligation to adhere to the requirements of the Michigan Rules of Professional Conduct (MRPC), the Michigan Code of Judicial Conduct , statutes, court rules, and/or case law and to review ethics opinions. This document does not reflect the ethical implications of any updates, modifications, or added features.]
Unauthorized Practice of Law
How do I find an ethics opinion?
The State Bar of Michigan provides several options to search for Michigan ethics opinions using its 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.
For more information see the Ethics Topic Index Attorney-Client Relationship.
My client wants to make tactical decisions about their case; must I follow their directions if it is not in their best interest?
It depends. This question often arises when the client demands that the attorney take action that is not ethically permitted or is not in the client’s best interest. Clients have the right to make bad decisions, but they do not have the right to require the attorney to do something unethical, illegal, repugnant, or imprudent.1
MRPC 1.2 provides for the scope of representation, which states in part:
(a) . . . A lawyer shall abide by a client’s decision whether to accept an offer of settlement or mediation evaluation of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, with respect to a plea to be entered, whether to waive jury trial, and whether the client will testify. In representing a client, a lawyer may, where permissible, exercise professional judgment to waive or fail to assert a right or position of the client.
Comment: The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. Within those limits, a client also has the right to consult with the lawyer about the means to be used in pursuing those objectives. . .. In questions of means, the lawyer should assume responsibility for tactical issues but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.
The intent of the Rules of Professional Conduct is for the attorney to see to it that the client’s subjective desires and objectives are the goal of the lawyer, as long as they are not illegal or fraudulent, or involve the attorney in violations of the Rules of Professional Conduct.2 If the client continues to insist on moving forward with their direction that would place the attorney in a position where the resulting action would be unethical, illegal, repugnant, or imprudent, the attorney should then consider withdrawal under MRPC 1.16.
What is the difference between attorney-client privilege and confidences and secrets under MRPC 1.6?
The ethical duty to maintain a client’s confidences and secrets under MRPC 1.6 is much broader than the common law doctrine of attorney-client privilege. Attorney-client privilege encourages “full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.” Upjohn Co v United States, 449 US 383 (1981). It protects an attorney from being compelled to provide information regarding their client.
“Confidences and secrets” under MRPC 1.6 is much broader and makes disclosure of most information learned in the context of representation unethical. The rule defines “confidences” as “information protected by the client-lawyer privilege under applicable law, and ‘secrets’ refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” See RI-77.
The concept of “secrets” includes “other information,” which includes information learned from third parties, such as witnesses, and information learned far beyond that which may impact the subject of the representation. During representation, an attorney often learns facts about a client’s past, current issues outside of the representation, and other personal information. Unless that information is “generally known,” it is unethical to disclose. See Ethics Opinion RI-377 regarding what information is considered generally known. Moreover, the protections in MRPC 1.6 survive the death of the client. Ethics Opinion JI-32. “Upon receipt of a subpoena for privileged information about a client, a lawyer should appear and assert the lawyer-client privilege and await a ruling from the judge as to whether to disclose.” RI-106.
For more information, see the Ethics Topic Index under Confidences.
My client threatened suicide or threatened to harm someone else. What may I do?
There is no ethical obligation to act, “except in limited circumstances where failure to act constitutes assisting the client.”3 However, an attorney may act if the attorney’s knowledge may enable the attorney to prevent the crime.4 MRPC 1.6(c) states, in part, that an attorney may reveal the intent of a client to commit a crime and is free to disclose the information necessary to prevent the crime, even if that information would constitute a client confidence or secret.
If the attorney would like to act, the first step is determining whether the client actually intends to commit a crime. “Knows” is defined in the comments to MRPC 1.0 under Terminology as “actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances.” The comments to MRPC 1.6 provide some guidance:
It is arguable that the lawyer should have a professional obligation to make a disclosure in order to prevent homicide or serious bodily injury which the lawyer knows is intended by the client. However, it is very difficult for a lawyer to "know" when such a heinous purpose will actually be carried out, for the client may have a change of mind. To require disclosure when the client intends such an act, at the risk of professional discipline if the assessment of the client's purpose turns out to be wrong, would be to impose a penal risk that might interfere with the lawyer's resolution of an inherently difficult moral dilemma.
Accordingly, if the attorney knows the client intends to commit homicide or great bodily harm, the attorney is free to disclose the information necessary to prevent the act, but to no greater extent than the attorney reasonably believes necessary and that the timing is imminent. Where practical, the attorney should seek to persuade the client to take suitable action. Factors that the attorney may weigh in determining whether to disclose include the magnitude of the impending threat, proximity and likelihood of the contemplated threat, and the imminence of threat coming to fruition. Other factors include the nature of the attorney’s relationship with the client and those who might be injured by the client; the attorney’s own involvement in the transaction; and factors that may extenuate the conduct in question. The attorney is given discretion because “whether the lawyer’s concern is based on moral or legal considerations, the interest in preventing the harm may be more compelling than the interest in preserving confidentiality of information.” [Comment to 1.6]
Note that this disclosure is permissive, not mandatory.5
Moreover, if the client has been diagnosed with a disability that affects their capacity, MRPC 1.14(b) provides that the lawyer may “take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.”
My client is not acting in his or her best interests due to a disability; what may I do to ensure effective representation?
Dealing with diminished capacity clients is one of the most challenging dynamics in the attorney-client relationship.
MRPC 1.14 states that the attorney must, “as far as reasonably possible, maintain a normal client-lawyer relationship with the client” whose ability to make decisions relating to the representation is impaired, whether by age, mental disability, or some other reason. The attorney must treat the client with dignity and respect.
How an attorney charts a course of representation with a diminished capacity client is always challenging because the duty of confidentiality must be honored; disclosure of the client’s condition can have a detrimental impact on the client’s position in the subject matter of the representation; conflicts of interest may arise; and the client can have varying types of, or temporally intermittent, capacity. [Comments to MRPC 1.14.] Moreover, disputes can arise between a protected individual and his or her representative, which can lead to a division in loyalty due to a divergence between the attorney’s obligation to the actual client and the fiduciary who has the legal right to make certain decisions on behalf of the protected individual. These questions involve the application of law to the specific facts and are beyond the scope of the answers that can be provided by this committee. As such, the attorney must make both ethical and legal determinations in how to proceed.
The comments to MRPC 1.14 state that the lawyer may seek guidance from an appropriate diagnostician in assessing the situation.
Only when the attorney reasonably believes that the client cannot adequately act in the client’s own interest may the attorney seek an appointment of a guardian or take other protective action. MRPC 1.14(b). “Other protective action” is broad and could include consulting with family members, contacting the client’s diagnostician, seeking conservatorship, or requested appointment of a guardian ad litem.
For examples of appropriate and inappropriate appointments of a lawyer seeking appointment of a guardian see Michigan Ethics Opinions RI-76, RI-51 and RI-176.
For more information, see the Ethics Topic Index under Disability.
How do I ethically withdraw from representation?
As the song goes, “Breaking up is hard to do.” One should be cautious in taking on a client, and an attorney should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest, and to completion. [Comments to MRPC 1.1.6]
Regardless of the analysis below, in a litigation proceeding, an attorney must seek permission from the tribunal to withdraw. Prior to an order allowing the attorney to withdraw, the attorney must continue representing the client and if the court does not allow the attorney to withdraw, the attorney must continue representation. RI-287, RI-98.
How and when an attorney requests to withdraw from representation depends on what standard in MRPC 1.16 is “triggered.”
An attorney must immediately request to withdraw from the representation if:
- Continuing to represent the client would result in a violation of the rules of professional conduct. An example would be if a conflict of interest arose.
- The client fires the attorney.[See MI Ethics Opinion RI-98 and its relation to conflicts of interest.]
- The attorney’s ability to represent the client is materially impaired by the attorney’s physical or mental condition.
An attorney may not withdraw from representing a client if doing so would have a material adverse effect on the interests of the client, except if:
- The client is using the attorney’s services in a way that the attorney reasonably believes is criminal or fraudulent.
- The client used the attorney’s services to perpetrate a crime or fraud.
- The client insists on a repugnant or imprudent course of action. [Michigan Ethics Opinion RI-348]
- The client fails to substantially fulfill an obligation to the attorney after the client has been provided with reasonable warning that attorney will withdraw.
- The representation has caused an unreasonable financial burden on the attorney or the client has rendered the representation unreasonably difficult.
- Other good cause.
Even if the attorney has been unfairly discharged, when withdrawing from representation an attorney must take reasonable steps to protect a client’s interest, including:
- Giving reasonable notice to the client.
- Allowing time for client to retain other counsel.
- Returning client’s papers and property.
- Refunding any advanced fee that has not been earned.
An attorney may retain papers as security for a fee only to the extent permitted by law. An attorney may not assert a lien if the client needs the property to pursue the client's legal rights or when a refusal to turn over the file would prejudice the client's case. MI Ethics Opinion RI-203.
If the attorney is withdrawing per the client’s request, the attorney may charge the client for the time spent preparing the motion to withdraw. If the withdrawal was precipitated by the attorney, the attorney may not bill the client for the time spent preparing the motion to withdraw. The attorney may not charge the time spent responding to a request in reviewing the file to bring the successor lawyer up to date. MI Ethics Opinion RI-296.
For more information, see the Ethics Topic Index under Withdrawal.
Someone is impersonating me and using my bar license to threaten people. What should I do?
Impersonation is a crime and should be reported to the Federal Trade Commission, the Michigan Cyber Command Center at firstname.lastname@example.org, and the State Bar of Michigan at email@example.com. In many situations, it may also be appropriate to report to local law enforcement or the FBI. Attorneys are also encouraged to review the scams website maintained by the State Bar.6
If the attorney determines that the impersonator is a current or former client, the attorney must consider the confidentiality provisions of MRPC 1.6 and disclose only that information necessary to rectify the consequences of the client’s actions. The comments to MRPC 1.6 provide that the principal of confidentially may yield where the “client engaged in criminal conduct or the integrity of the lawyer’s own conduct is involved.” In this scenario, the impersonation implicates the attorney’s conduct because regardless of a potential client relationship, under MRPC 4.1, the attorney cannot make false statements of fact or law even to someone who is trading on the attorney’s name. As importantly, impersonating an attorney is not allowed under MRPC 5.5, which provides for steps that must be taken to protect against the unauthorized practice of law. Moreover, the threats made may violate MRPC 6.5, which requires that the attorney treat all persons in the legal process with courtesy and respect.
I think another attorney violated the rules of professional conduct. What are my reporting obligations?
An attonrey may report another attorney to the Michigan Attorney Grievance Commission except when reporting would violate MRPC 1.6. However, an attorney has an ethical obligation under MRPC 8.3, to report a violation by another attorney when the attorney knows “that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.” This reporting obligation is limited only by MRPC 1.6.
“Knows” is defined in the comments to MRPC 1.0 under Terminology as “actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances.” The term “significant” is not defined and therefore is somewhat subjective. A mistake may not require reporting, particularly if the offending attorney rectifies the situation, but even minor repeated offenses may rise to the level of being significant. The comment to MRPC 8.3 states: “The term ‘substantial' refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware."
Examples of when a report to the Attorney Grievance Commission is required, unless protected by MRPC 1.6, include, but are not limited to, an attorney practicing law while their license is suspended (RI-101); agreements to refrain from reporting violations of the rules of professional misconduct (RI-220); and repeated failures to meet filing deadlines and timely communicating with clients (RI-149).
In reporting misconduct, the attorney has an obligation to protect client confidential information under MRPC 1.6 unless one of the exceptions applies. Further, the attorney may not submit a report that requires the attorney to disclose information protected by MRPC 1.6 without first obtaining client consent. See comments to MRPC 8.3 and RI-314.
For more information, see the Ethics Topic Index under Reporting Duties.
For more information, see the Ethics Topic Index under Unauthorized Practice of Law and the State Bar of Michigan website under Unauthorized Practice of Law.
I am not licensed in Michigan, but I am in-house counsel. What may I do without committing the unauthorized practice of law?
Michigan Rule of Professional Conduct 5.5 addresses the unauthorized practice of law and the multijurisdictional practice of law.7 Pursuant to MRPC 5.5(d)(1), “a lawyer admitted and in good standing in another jurisdiction of the United States may provide legal services in Michigan that are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission.”
The comments to MRPC 5.5 provide that this section permits in-house counsel to perform limited legal services in Michigan for an employer because the lawyer's ability to represent the employer outside the jurisdiction in which the lawyer is licensed generally (1) serves the interests of the employer and (2) does not create an unreasonable risk to the client and others because the employer is well situated to assess the lawyer's qualifications and the quality of the lawyer's work.
The comments to MRPC 5.5 provide additional, specific guidance regarding the acceptable parameters of such in-house counsel work. The comments clarify that in-house counsel is not authorized to provide personal legal services to the employer's officers or employees. In addition, in-house counsel cannot provide services for which pro hac vice admission is required, so court advocacy, signing pleadings, and participating in depositions (among other things) are not permitted. [See Michigan Court Rule 8.126 for more information on temporary admission to practice in a Michigan court, administrative tribunal, or arbitration.] Finally, if in-house counsel establishes an office or other systematic presence in Michigan for the purpose of rendering legal services to the employer, the attorney may be subject to registration or other requirements, including assessments for client protection funds and mandatory continuing legal education.
I am not licensed in Michigan, but I am in the process of getting my license. What may I do without committing the unauthorized practice of law?
Michigan Rule of Professional Conduct 8.1 governs admissions to the bar. However, this Rule provides limited guidance regarding what specific activities an applicant to the bar may engage in and only generally states that an applicant for admission to the bar shall not engage in the unauthorized practice of law. MRPC 8.1(b)(1).
Additional guidance for attorneys in good standing and licensed in another jurisdiction, awaiting admission in Michigan, is found in MRPC 5.5, MCR 8.126, and Michigan Ethics Opinions.
Michigan Rule of Professional Conduct 5.5 addresses the unauthorized practice of law. Pursuant to this Rule, an attorney who is not admitted to practice in Michigan shall not establish an office or other systematic and continuous presence in Michigan for the practice of law or hold out to the public or otherwise represent that the lawyer is admitted to practice law in Michigan. MRPC 5.5(b). This Rule also provides guidance regarding what type of legal services an attorney in good standing admitted in another U.S. jurisdiction can provide.
Michigan Court Rule 8.126 addresses pro hac vice admission. This rule details the procedure, timing, and fees for an out-of-state attorney to seek temporary admission to practice in Michigan.
The State Bar of Michigan Ethics Opinion RI-380 addresses the issue of whether an out-of-state attorney who moves to Michigan and applies for admission to the State Bar of Michigan may continue to practice law in the jurisdictions where the attorney is already licensed while the lawyer’s State Bar of Michigan application is pending.
It is noted that if an attorney practices federal law and is admitted to practice within the federal courts, they may do so under In re Ernest J. Desilets, 291 F.3d 925 (2002).
Additional guidance for recent law school graduates who are not yet admitted to the bar is found in Michigan Court Rule 8.120. In general, MCR 8.120(A) and (B) allow recent law graduates, under supervision by a member of the State Bar, to work in public and nonprofit defender offices, legal aid clinics, and legal training programs organized in the offices of county prosecuting attorneys, county corporation counsel, city attorneys, the Attorney Grievance Commission, and the Attorney General’s Office. Note that a graduate may not appear in a case in a Michigan court without the approval of the judge or a majority of the panel of judges to which the case is assigned. MCR 8.120(D)(3).
If I am not yet licensed to practice law, may I use the term “esquire” after my name?
The Rules of Professional Conduct do not specifically address use of the term “esquire” by an individual not yet admitted to practice law. Individuals aspiring to become members of the State Bar of Michigan, however, should be aware of MRPC 7.1, which addresses communications regarding a lawyer’s services. This rule states that an attorney may “use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive.” MRPC 7.1 (emphasis added). This rule also prohibits statements that “contain a material misrepresentation of fact,” are misleading, or may create “an unjustified expectation” regarding an individual’s services.MRPC 7.1(a) and (b).8
Although the term “esquire” does not specifically mean “lawyer” or “attorney,” the use of this title may lead members of the public to believe that the individual using this title is an attorney. For example, a Michigan Bar Journal article has examined the use of the title “esquire” in light of the fact that “so many American lawyers [are] using the word esquire both as a title implying a law education and most recently as a noun meaning lawyer.” Esquire Does Not Mean Lawyer, Michigan Bar Journal, (March 1988). In addition, an ABA Journal article stated that “the injudicious use of designations such as Esq., lawyer or attorney at law may trigger application of the legal ethics rules because their use suggests that the lawyer is holding herself out as a legal practitioner even in a field outside the practice of law.” Tussle Over Titles, ABA Journal, (January 8, 2006). Similarly, the Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline held that an attorney who was not licensed to practice law in the state could not append “Esq.” to his signature on business correspondence because it was deemed to connote bar licensure. Ohio S. Ct. Opinion 91-24 (1991).
1. Commentary to MRPC 1.2 and 1.16.
3. See Comments to MRPC 1.6, Disclosure Adverse to Client.
5. See also: MI Ethics Opinion RI-345, and MRPC 1.13 “discussing the disclosure of intended harm to a corporate client.” MI Ethics Opinion RI-160 discussing what an attorney may/must disclose if their client is a fugitive from justice.
7. BLE Rule 5(D) provides for options to obtain a limited license. Please note that this rule is specific to the employer.
Last updated: May 2021