SBM Blog

SBM Solicits Member Comments on Proposed Ethics Advisory Opinion

The growth of online for-profit matching services raises questions about attorney ethics. A proposed advisory opinion by the State Bar of Michigan Professional Ethics Committee concludes that participation in a for-profit online matching service that matches prospective clients with lawyers for a fee is not ethically permissible if the attorney’s fee is paid to and controlled by a non-lawyer and the cost for the online matching service is based on a percentage of the attorney’s fee paid for the legal services provided by the lawyer.

The proposed advisory opinion says that a Michigan lawyer participating in this business model:

• Violates Rule 6.3(b), which prohibits a lawyer from participating in for-profit lawyer referral services;
• Violates Rule 5.4, which prohibits a lawyer from sharing fees with a non-lawyer;
• Violates Rule 7.2(c), which prohibits a lawyer from giving anything of value to recommend a lawyer’s services unless it is a reasonable payment for advertising the lawyer’s services, the usual charges for a not-for-profit lawyer referral service, or payment for the sale of a law practice;
• Subverts compliance with Rule 1.15, which requires a lawyer to safeguard legal fees and expenses paid in advance by depositing them into a client trust account until the fee is earned and the expense is incurred;
• Impedes compliance with Rule 1.16(d) and its requirement that any unearned prepaid fees and unexpended advances on costs must be refunded;
• Assists in the unauthorized practice of law in violation of Rule 5.5(a) to the extent the online service holds itself out as a provider of legal services and guarantees satisfaction; and
• Violates Rule 5.3 to the extent that the conduct of the matching service when performing administrative “back office” services traditionally done through the law firm does not comport with the professional obligations of the lawyer.

As the proposed opinion describes, a number of other states have addressed this issue.

Members of the State Bar of Michigan and the public are encouraged to submit comments on the proposed opinion and on whether the current rules should be modified by filling out an online form located at https://www.michbar.org/opinions/membercomments.

Comments should be submitted by July 16. After the period for comment has closed, the State Bar Board of Commissioners will consider whether to approve or modify the opinion.

Background

The Michigan Rules of Professional Conduct (MRPC) were adopted effective Oct. 1, 1988, by the Michigan Supreme Court. The MRPC comprise the Supreme Court’s authoritative statement of a Michigan lawyer’s ethical obligations.

Consistent with its jurisdictional mandate and rules, the SBM Professional Ethics Committee drafts ethics opinions when requested to do so by the SBM president, the Board of Commissioners, the Representative Assembly, the Attorney Discipline Board, the Attorney Grievance Commission, the SBM executive director, or individual members of the State Bar inquiring about their own contemplated conduct. The committee may also draft opinions on ethical matters its research indicates need clarification or resolution.

Informal advisory ethics opinions, designated with an “RI” before the opinion number, are issued by the committee without review and approval by the Board of Commissioners and are intended to provide informal guidance on the MRPC. Informal advisory opinions must be approved by at least two-thirds of the committee membership.

The committee may also draft proposed formal advisory ethics opinions, designated with an “R” before the opinion number, for consideration by the Board of Commissioners. These proposed formal opinions must be approved by at least two-thirds of the committee membership before they are presented to the Board of Commissioners. Formal advisory ethics opinions are intended to deal with matters of general and substantial interest to the public, address situations which affect a significant number of members of the Bar, or modify or reverse prior formal opinions. The Board of Commissioners may approve or modify the proposed formal opinion and direct its release as an informal or formal advisory ethics opinion, or it may reject the opinion and direct that no opinion be issued on the matter.

Neither informal opinions of the SBM Professional Ethics Committee nor formal advisory ethics opinions have the force and effect of law. They provide guidance only and may not be relied upon as an absolute defense to a charge of ethical misconduct.

Trust Accounts Seminar Set for June 27 in Lansing

The State Bar of Michigan will present a seminar, “Lawyer Trust Accounts: Management Principles and Recordkeeping Resources,” from 1:15-4:45 p.m. on Tuesday, June 27 at the State Bar of Michigan Michael Franck Building, located at 306 Townsend Street in Lansing.  

This half-day ethics seminar will feature presentations on how to ethically manage lawyer trust accounts and effectively use forms, checklists and other recordkeeping resources. The seminar, open to lawyers and their staff members, is an excellent way to learn more about Michigan Rules of Professional Conduct 1.15 and 1.15A.

Participants will receive practical information as well as materials prepared by the presenters: SBM Professional Standards Division Director Danon Goodrum-Garland, SBM Assistant General Counsel Nkrumah Johnson-Wynn, Professional Standards Assistant Counsel Alecia Ruswinckel and Attorney Grievance Commission Senior Associate Counsel Rhonda Pozehl.

View the event agenda or register for the event. The registration fee is $50 for lawyers and $25 for non-lawyers. Payment and the completed registration form must be received by Friday, June 23. No walk-in registrations will be accepted. For more information contact Karen Spohn with the State Bar of Michigan Professional Standards Division at (517) 346-6309 or via e-mail at [email protected].

Join the State Bar for a Town Hall Meeting

Join the leaders of the SBM 21st Century Practice Task Force from 1-4 p.m. on Friday January 29 to discuss the future of the legal profession at a town hall meeting.

The 21st Century Practice Task Force was created in March 2015 to make recommendations on how the State Bar can best serve the public and support lawyers' professional development in a rapidly changing legal marketplace. Since then, over 150 SBM members have developed more than 100 ideas to move Michigan forward toward the best possible legal future.

Now it's your turn!

The State Bar invites you to attend, in person or virtually, a town hall meeting to learn more about why the task force was formed, and offer your insights, ideas, and concerns. If you want to attend in person, make a reservation by e-mailing [email protected]. The State Bar is also arranging live-streaming and virtual participation. If you are interested in virtual participation, e-mail [email protected].

Michigan Supreme Court Appoints New Grievance Administrator

The Michigan Supreme Court has appointed Alan M. Gershel administrator of the Michigan Attorney Grievance Commission. Gershel will assume his new post Oct. 13.

Prior to taking on his new role of grievance administrator, Gershel served as a professor at Thomas M. Cooley Law School in Lansing and as an attorney with the U.S. Attorney's Office for the Eastern District of Michigan in Detroit.

He will oversee a staff of 28, including 13 attorneys and 15 support staffers.

Read the order.

Posted by Samantha Meinke

 

Michigan Supreme Court seeks a new grievance administrator

The Michigan Supreme Court is currently seeking applicants for a grievance administrator, to oversee administrative and legal actions for the Michigan Attorney Grievance Commission.

The grievance administrator is appointed by the Supreme Court and supervised by the Commission.

For more information, visit the official job posting on the Michigan Supreme Court website.

Posted by Samantha Meinke

What to do now that you've passed the bar exam

Congratulations again on passing the bar exam!

Here's what you need to do next:

All persons who are licensed to practice law in Michigan must be members of the State Bar of Michigan. In order to become a member of the State Bar, you must first take steps to become admitted to the State Bar. If you've recently passed the bar exam, the Board of Law Examiners has mailed you a certificate of qualification. A current, active member of the State Bar must file this certificate and a motion seeking your admission to the State Bar in the Supreme Court or a circuit court. You must also appear personally in open court to be administered the oath of office. View the rule describing the steps to follow in taking the oath of office as a lawyer. View a schedule of swearing-in ceremonies around Michigan.

After being sworn in to one of the circuit courts or the Supreme Court of Michigan, you will need to complete a membership application to join the State Bar of Michigan and pay your membership dues.

To complete the State Bar of Michigan new member application online and pay your member dues with a Visa or MasterCard credit or debit card, please visit the Bar's Member Area and create an account as a "Prospective New Member & Non-Member" and continue with the membership application if you have already been sworn in. Do not create an account online until you have been sworn in. If you wish to complete the paper application and pay your member dues with a check, download new member application form.

After completing the new member application form and payment of the required dues, a true or certified copy of the Order of Admission certified by the County Clerk will need to be provided to the State Bar of Michigan. Some courts provide the Order of Admission directly to the State Bar. If you wish, you may mail your true or certified copy of the Order of Admission signed by the County Clerk to the State Bar of Michigan, Attention Finance, 306 Townsend St., Lansing, MI 48933.

As soon as the State Bar of Michigan has issued you a P number, you will be a member in good standing and eligible to practice law.

Posted by Samantha Meinke

John Van Bolt Named Interim Attorney Grievance Administrator

The Michigan Supreme Court has appointed John Van Bolt interim grievance administrator of the Attorney Grievance Commission.

Van Bolt has served as president of the National Council of Lawyer Disciplinary Boards and served for more than 25 years as the executive director and general counsel of the Michigan Attorney Discipline Board. Prior to holding that position, Van Bolt investigated and prosecuted charges of attorney misconduct for six years as an associate counsel at the Attorney Grievance Commission.

Read the full announcement.

Posted by Samantha Meinke

 

New York's Top Judge On Non-Lawyer Legal Assistance

Another sign for lawyers everywhere that the world is changing. The chief judge of New York's top court, the New York Court of Appeals, delivered an address this week at NYU Law School on "The Judiciary as the Leader of the Access to Justice Revolution that says this:

[N]ot every new idea receives a universally warm welcome – - especially if we think more creatively about ways to solve the justice gap. And that’s exactly what we are doing when we venture into areas that seemed off limits in the past. One such area for the New York Judiciary is the work of non-lawyer advocates in our courtrooms to support unrepresented litigants. We know that there are many functions that only a lawyer is qualified to perform. Only lawyers have the education, training, examination standards, and ethical mandates that go hand in hand with full legal representation. But there are people without a law degree who nonetheless are more than capable of assisting unrepresented litigants. At a time when millions of litigants can neither afford to pay a lawyer nor are fortunate enough to have the services of a legal services provider, we need to look to others to step in. This is already done in the medical profession. There is no substitute for a medical degree, but that community has recognized for many years that people with health care needs can be served in some measure by practitioners with lesser qualifications – like midwives or home health care aides — providing specified services at lower rates.

If I Wanted To Do This Job, I Would Have Gone To Med School

Andrew Cohen at The Atlantic writes about the ethical dilemma posed by an 8th Circuit case, Baze v. Rees, that suggests that in order to challenge a method of execution, defense lawyers must propose an alternative means to execute their clients.  Read "Should a Defense Lawyer Have to Decide How His Client Should Die?"

Free Speech and Judicial Bias Free-for-All On Idaho Supreme Court

A medical malpractice case in Idaho has caused a justice of that state's Supreme Court to pointedly question his colleague's impartiality in a dissent to the Court's decision in favor of the plaintiff. Justice Daniel Eismann :

Courts decide cases in one of two ways: (a) they apply the law to the facts and thereby arrive at the result or (b) they determine the desired result and then twist the law and/or the facts to justify it. The error made by the district judge was applying the law to the facts, which produced a result that the majority does not like.

A dissenting colleague who "entirely concurs" with the Eismann's legal reasoning nevertheless writes:

I am sad that Justice Eismann’s dissenting opinion lowers itself to personal attacks more suited to a school yard argument among teenagers than to a professional legal discourse that should be expected in a judicial opinion.

All of this prompts an Idaho lawyer who has just filed to run for a seat on the Supreme Court to note in an Idaho Statesman guest opinion that Justice Eismann had accused three other justices of being “untruthful” and questioned their impartiality and that the Idaho Supreme Court has sanctioned at least one attorney for far less offensive statements:

Make no mistake about it; the heat that is obvious from reading the Nield opinion smolders beneath every medical negligence case. The Topp case and Idaho’s ethical rules prevent judicial candidates from discussing their views on how special interests may have an effect on the outcome of medical negligence cases as a result of subtle political influence exercised upon the judicial appointment process.

Similarly, judicial candidates would risk sanctions under Idaho’s Code of Judicial Conduct by questioning whether the Nield dissenters’ interpretation of the law violates the Idaho and United States constitutions by applying an arbitrary and unreasonably strict standard to the admissibility of expert testimony that infringes upon the role of the jury. What constitutes the “appearance” of a “commitment” to a position is clearly in the mind of the beholder, adding vagueness to the constitutional problems with Idaho’s “announce clause.”

Meanwhile, it's interesting that the Court's opinion is a "substitute" opinion, and that the original issued the same day was "withdrawn."  One can't help but wonder, what it more -- or less-- provocative?

Read more here: http://www.idahostatesman.com/2014/03/02/3057494/free-speech-rules-cost-ua-good.html#storylink=cpy

Meanwhile, it's interesting to note that the opinion prompting the furor is a "substitute" opinion, and that the original issued on the same day has been "withdrawn." One can't help but wonder -- was the original more, or less, controversial?