Public Policy Update from the State Bar of Michigan
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July 24, 2017
Volume 15, Issue 29

In the Capitol

Tentative session days have been scheduled for Wednesday, August 16 in both the House of Representatives and Senate.
House Schedule
Senate Schedule

At the Bar

The Board of Commissioners met on July 21, 2017 at which time the State Bar of Michigan adopted the following public policy positions:
ADM File No. 2015-15 – Proposed Amendment of Rule 6.425 of the Michigan Court Rules
The proposed amendments of MCR 6.425 would expressly provide for a procedure under which appointed counsel may withdraw in light of a frivolous appeal in a way that protects a plea-convicted criminal defendant's right to due process. This amendment would ensure that a plea-convicted defendant could obtain the type of protections expressed in Anders v California, 386 US 738 (1967), even if the defendant's appeal proceeds by application and not by right. In such a case, a motion to withdraw may be filed in the trial court, which does not currently have a rule establishing the procedure like that in the Court of Appeals at MCR 7.211(C)(5). The timing of the procedure is intended to ensure that if an attorney's motion to withdraw is granted, the defendant would have sufficient time to file an application for leave to appeal under MCR 7.205(G).
SBM Position: Support the position of the Michigan Appellate Assigned Counsel System in their letter to the Court dated May 17, 2017 to instead modify MCR 7.211(C)(5).

ADM File No. 2017-06 – Proposed Amendment of Rule 7.300 et seq. of the Michigan Court Rules
The proposed amendment of MCR 7.300 et seq. would clarify certain practices and procedures in the Supreme Court, especially as they pertain to electronic filing by parties and electronic notification of the Court's opinions and orders, as well as require only the signed originals of documents to be filed in hard copy.
SBM Position: Support the intent to modify the Court rules to reflect the electronic filing process; however, recommend that the Court appoint a workgroup to address drafting issues raised by SBM committees and sections.

ADM File No. 2016-41 – Proposed Amendment of Rules 1.0, 1.2, 4.2, and 4.3 of the Michigan Rules of Professional Conduct, and Rules 2.107, 2.117, and 6.001 of the Michigan Court Rules
Proposed amendments of Rules 1.0, 1.2, 4.2, and 4.3 of the Michigan Rules of Professional Conduct and Rules 2.107, 2.117, and 6.001 of the Michigan Court Rules were submitted to the Court by the State Bar of Michigan Representative Assembly. The proposed rules are intended to provide guidance for attorneys and clients who would prefer to engage in a limited scope representation. The proposal, which limits these types of "unbundled" arrangements to civil proceedings, describes how such an agreement is made known to the court and other parties, what form of communication should be conducted with clients in a limited scope representation, and how the agreement is terminated. The proposed rules also would explicitly allow attorneys to provide document preparation services for a self-represented litigant without having to file an appearance with the court.
The proposal submitted by the Representative Assembly provides for a limited scope representation where the "client gives informed consent, preferably confirmed in writing," at MRPC 1.2(b). The Court included this language in the order publishing the proposal for comment, but also provided an alternative formulation for this particular provision that would require such an arrangement to be confirmed in writing, unless the relationship falls within several typical scenarios in which a writing would be unnecessary or impracticable. 
SBM Position: Support the proposed rule changes with proposed Alternative A for MRPC 1.2(B).

ADM File No. 2015-11 – Proposed Amendment of Rule 404(b) of the Michigan Rules of Evidence
This proposed amendment would require the prosecution to provide reasonable notice of other acts evidence in writing at least 14 days before trial or orally in open court on the record.
SBM Position: Support.

Proposed Amendments of Local Rule 4.1 of the United States District Court for the Eastern District of Michigan
This rule implements Federal Rule of Civil Procedure 4(c)(3). When a plaintiff who qualifies for pauper status is represented by an attorney, the attorney must arrange for service of process.
SBM Position: Support with a friendly amendment to change the title to "Local Rule 4."

MCJI 10.8, 10.8a-b
The Committee proposes new instructions M Crim JI 10.8, 10.8a and 10.8b, for violations found in MCL 750.159f, 750.159g, 750.159h, 750.159i and 750.159j, the continuing-criminal-enterprise/racketeering statute, seeking public comment. The instructions are entirely new.
SBM Position: Support.

MCJI 31.4 – 31.10
The Committee proposes amendments to several of the arson instructions, M Crim JI 31.4, M Crim JI 31.5, M Crim JI 31.6, M Crim JI 31.7, M Crim JI 31.8, M Crim JI 31.9, M Crim JI 31.10, for violations of MCL 750.74, et seq.  The amendments are intended conform the instructions to the statutes, which include destruction by explosion (in addition to burning), and to provide "plain language" substitutes for the legal terms "curtilage" and "appurtenant" found in the current instructions.  Deletions are in strike-through; new language is underlined.
SBM Position: Support.

SB 0435 (Schuitmaker) Courts; drug court; certification of drug treatment courts by the state court administrative office; require. Amends secs. 1062 & 1084 of 1961 PA 236 (MCL 600.1062 & 600.1084).
SBM Position: Support.

SB 0436 (Schuitmaker) Courts; drug court; certification of DWI/sobriety court by the state court administrative office; amend the vehicle code to reflect. Amends sec. 304 of 1949 PA 300 (MCL 257.304).
SBM Position: Support.

SB 0437 (Schuitmaker) Courts; other; certification of mental health courts by the state court administrative office; require. Amends sec. 1091 of 1961 PA 236 (MCL 600.1091).
SBM Position: Support.

SB 0438 (Schuitmaker) Courts; other; certification of veterans courts by the state court administrative office; require. Amends sec. 1201 of 1961 PA 236 (MCL 600.1201) & amends heading of ch. 12.
SBM Position: Support.

Links of Interest

SBM Public Policy Resource Center
Public Acts
Michigan Supreme Court
Michigan Legislature
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