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Professional Responsibility
Wayne State University Law School
Mogill, Kenneth M.

PR—Mogill
Fall 2008
 
Common questions/issues
What is an integrated bar association?
-An association where anyone who wants to be a lawyer in the state has to be a member of the association (pay dues).
Does Michigan have an integrated bar association?
-Yes.
May an attorney in Michigan be disciplined for behavior in his or her personal life that has nothing to do with the way that attorney practices law?
-Yes, an attorney can be disciplined for personal conduct – drunk driving for example.
Is it a violation of the Michigan Rules of Professional Conduct for an attorney to have sex with a client?
-No, however many attorneys think this should be changed.
LegalZoom.com sells fill-in-the-blank form wills over the internet. The company will not only help you prepare a will on-line, it will review your completed document for “consistency and completeness.” Is LegalZoom.com practicing law without a license?
-In this particular case no, however, it would depend on what the company is doing in their review of consistency and completeness. For example, if they are checking the spelling and making sure the address on page 1 matches the address on page 3, this is not practicing law. If the company is suggesting language for a tax advantage (substantive), this is practicing law.
In the course of formulating your strategy in a case, you discuss with another attorney in your office certain confidential information you have received from your client. Have you violated the attorney-client privilege?
-If a client has not instructed you to keep everything private, it is assumed that colleagues and staff within the office may be able to hear confidential information without breaking the privilege.
After you represent a client in a losing cause, the client files a grievance with the Attorney Grievance Commission alleging that you were ineffective. In responding to the grievance, you want to reveal certain confidential information from the client. May you do so without violating the attorney-client privilege? If your answer is “yes”, is it because you are no longer representing the client when the grievance is filed?
-You are allowed to defend yourself. If you must use confidential information to do so, you may; this is one of the big exceptions of the attorney-client privilege under Rule 1.6.
Your client tells you of her plan to rob a bank. She cautions you that you are bound by the attorney-client privilege not to reveal her plan to anyone. Is she correct?
-No, under Michigan rules if you can prevent the crime by revealing the information you may do so.
Is every Michigan attorney required to perform at least some pro bono services each year?
-No, although it is encouraged and many attorneys and firms do provide pro bono service.
A lawyer’s advertisement in the yellow pages of the local telephone directory includes the following: “I am a bankruptcy. Don’t even think of asking me to represent you in any matter not involving bankruptcy.” Does this advertisement violate any rule of professional conduct?
-No. Many attorneys are specialized in a certain area of law. If you are not competent to represent a client, not only may you tell them no, you are required under Rule 1.1 not to take that client.
 
Once in practice, are there going to be circumstances under which you are bound by the ABA rules?
No, you are bound by the rules of the state in which you practice.
 
MRPC 1.1 Competence
A lawyer shall provide competent representation to a client. A lawyer shall not:
Handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it;
Handle a legal matter without preparation adequate in the circumstances; or
Neglect a legal matter entrusted to the lawyer.
Comment:
Legal Knowledge and Skill: In determining whether a lawyer is able to provide competent representation in a particular matter, relevant factors include:
Relative complexity and specialized nature of the matter,
The lawyer’s general experience, the lawyer’s training and experience in the field in question,
The preparation and study the lawyer is able to give the matter,
And whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.
In many instances, the required proficiency is that of a general practitioner.
Expertise in a particular field of law may be required in some circumstances
 
*6th Amendment means right to competentcounsel, therefore failure to meet above requirements means that a lawyer can be held to be ineffective under 6th Amendment (attorney can also be sued for malpractice).
 
How is an Attorney-Client Relationship Formed? 
Perez v. Kirk and Carrigan:
Facts: A Coca-Cola truck went through a stop sign and hit a school bus tipping it into a water-filled pit. Twenty one students died and more than 60 people were injured. Ruben Perez, the driver of the truck, claimed that his brakes failed. When the counsel for Coca-Cola (Kirk and Carrigan) came to see Perez in the hospital, they told him that they were his lawyers and anything that he revealed to them would be privileged. Subsequently, the attorneys gave his sworn statement to the prosecutor who charged him with manslaughter.
The court found that the attorneys were bound by

the advantage of the lawyer or of a third person, unless the client consents after full disclosure.
A lawyer may reveal:
Confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
Confidences or secrets when permitted or required by these rules, or when required by law or by court order;
Confidences and secrets to the extent reasonably necessary to rectify the consequences of a client’s illegal or fraudulent act in the furtherance of which the lawyer’s services have been used;
The intention of a client to commit a crime and the information necessary to prevent the crime; and
Confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer’s employees or associates against an accusation of wrongful conduct.
A lawyer shall exercise reasonable care to prevent employees, associates, an others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by paragraph (c) through an employee.
 
**NOTE: Rule 1.6(c) differs from MI under the ABA Model Rules.
 
Comment:
Authorized Disclosure: Lawyers in a firm, in the course of the firm’s practice may disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers, or unless the disclosure would breach a screen erected within the firm.
Withdrawal: If the lawyer’s services willbe used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16 (a) (1).
After withdrawal the lawyer is required to refrain from making disclosure of the client’s confidences.
Dispute Concerning Lawyer’s Conduct: If the lawyer is charged with wrongdoing in which the client’s conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge.
If a third-party is present during an attorney-client interview the attorney-client privilege of confidence is waived.