Michigan Legal Ethics

II. COUNSELOR

2.1   Rule 2.1 Advisor

2.1:100   Comparative Analysis of MI Rule

¥ Primary Michigan References: MI Rule 2.1
¥ Background References: ABA Model Rule 2.1, Other Jurisdictions
¥ Commentary:

2.1:101      Model Rule Comparison

Michigan adopted MR 2.1 exactly.

2.1:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

2.1:200   Exercise of Independent Judgment

¥ Primary Michigan References: MI Rule 2.1
¥ Background References: ABA Model Rule 2.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:701, ALI-LGL ¤ 151, Wolfram ¤ 4.3
¥ MI Commentary: Dubin and Schwartz MRPC 2.1

There appear to be no Michigan cases or State Bar of Michigan ethics opinions interpreting this topic. However, the Comment to MRPC 2.1 provides as follows: ÒA client is entitled to straightforward advice expressing a lawyerÕs honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the clientÕs morale and put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.Ó

2.1:300   Non-Legal Factors in Giving Advice

¥ Primary Michigan References: MI Rule 2.1
¥ Background References: ABA Model Rule 2.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:701, ALI-LGL ¤ 94, Wolfram ¤ 4.3
¥ MI Commentary: Dubin and Schwartz MRPC 2.1

The Comment to MRPC 2.1 provides as follows:

It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge on most legal questions and may decisively influence how the law will be applied....

Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology, or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyerÕs advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts.

2.2   Rule 2.2 Intermediary

2.2:100   Comparative Analysis of MI Rule

¥ Primary Michigan References: MI Rule 2.2
¥ Background References: ABA Model Rule 2.2, Other Jurisdictions
¥ Commentary:

2.2:101      Model Rule Comparison

Except for minor wording changes, MRPC 2.2 is substantially identical to the Model Rule.

2.2:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

2.2:200   Relationship of Intermediation to Joint Representation

¥ Primary Michigan References: MI Rule 2.2
¥ Background References: ABA Model Rule 2.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:1501, Wolfram ¤¤ 8.7, 13.6
¥ MI Commentary: Dubin and Schwartz MRPC 2.2

Unlike joint representation where the lawyer normally represents two or more parties with common objectives, a lawyer acting as an intermediary represents two or more parties with potentially conflicting interests. In an intermediation the lawyer seeks to resolve those potentially conflicting interests by developing the partiesÕ mutual interests so that the parties do not have to obtain separate representation, incur additional costs or resort to litigation. For example, a law firm may undertake representation to document a sales transaction which has been independently negotiated between a seller and purchaser who are both current clients of the law firm if the relationship with the clients will not be adversely affected and both clients consent after consultation. Informal opinion RI-237. If, on the other hand, the relationship between the two clients is substantially adverse, the lawyer may not undertake to act as intermediary. Informal opinion RI-176.

2.2:300   Preconditions to Becoming an Intermediary

¥ Primary Michigan References: MI Rule 2.2
¥ Background References: ABA Model Rule 2.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:1501, ALI-LGL ¤ 153, Wolfram ¤ 8.7, 13.6
¥ MI Commentary: Dubin and Schwartz MRPC 2.2

In determining whether intermediation is appropriate, the lawyer must consider its effect on client- lawyer confidentiality and the client-lawyer privilege. Intermediation is improper if the lawyer cannot maintain impartiality between commonly-represented clients. See Comment to Rule 2.2. An absolute precondition to intermediation is that the lawyer must consult with the clients on the implications of acting as intermediary and proceed only upon consent by them based on such a consultation. Rule 2.2 (a)(1).

2.2:400   Communication During Intermediation

¥ Primary Michigan References: MI Rule 2.2
¥ Background References: ABA Model Rule 2.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:1501, ALI-LGL ¤ 153, Wolfram ¤ 8.7, 13.6
¥ MI Commentary: Dubin and Schwartz MRPC 2.2

While acting as an intermediary, the lawyer must consult with each client concerning the decisions to be made and the considerations relevant in making them so that each client can make adequately informed decisions. Rule 2.2(b). The client-lawyer privilege does not normally attach as between commonly represented clients; thus, it must be assumed if litigation eventuates between the clients, the privilege will not protect any communications, and the clients should be so advised. See Comment to Rule 2.2.

2.2:500   Consequences of a Failed Intermediation

¥ Primary Michigan References: MI Rule 2.2
¥ Background References: ABA Model Rule 2.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 51:1501,ALI-LGL ¤ 153, Wolfram ¤ 8.7, 13.6
¥ MI Commentary: Dubin and Schwartz MRPC 2.2

Each client in an intermediation retains the right to receive loyal and diligent representation and to discharge the lawyer as stated in Rule 1.16. Each client is also entitled to the protection of Rule 1.9 concerning obligations to a former client. The lawyer should keep in mind that if intermediation fails, the result can be additional cost, embarrassment and recrimination. Consequently, the lawyer should be extremely careful to undertake intermediation only where a relationship can be established or adjusted between clients on an amicable and mutually advantageous basis with minimal possibility of antagonism or contentious negotiations.

2.3   Rule 2.3 Evaluation for Use by Third Persons

2.3:100   Comparative Analysis of MI Rule

¥ Primary Michigan References: MI Rule 2.3
¥ Background References: ABA Model Rule 2.3, Other Jurisdictions
¥ Commentary:

2.3:101      Model Rule Comparison

Except for minor wording changes, MRPC 2.3 is substantially identical to the Model Rule.

2.3:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

2.3:200   Undertaking an Evaluation for a Client

¥ Primary Michigan References: MI Rule 2.3
¥ Background References: ABA Model Rule 2.3, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 71:701, ALI-LGL ¤ 95, Wolfram ¤ 13.4
¥ MI Commentary: Dubin and Schwartz MRPC 2.3

This Rule permits the lawyer to perform an evaluation at the clientÕs direction for the primary purpose of establishing information for the benefit of third parties. It is common, for example, for a vendor of property to prepare an opinion regarding the title of property for the information of a prospective purchaser; or for a borrowerÕs attorney to perform an evaluation of information for a prospective lender. In so doing, the lawyer must be satisfied that making such an evaluation is compatible with the lawyerÕs relations with the client. The lawyer must also obtain the clientÕs consent after consultation.

2.3:300   Duty to Third Persons Who Rely on Lawyer's Opinion [see also 1.1:420]

¥ Primary Michigan References: MI Rule 2.3
¥ Background References: ABA Model Rule 2.3, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 71:701, ALI-LGL ¤ 95, Wolfram ¤ 13.4.4
¥ MI Commentary: Dubin and Schwartz MRPC 2.3

When the evaluation is intended for the information or use of a third person, a legal duty to that person may or may not arise. See Comment to Rule 2.3.

For further discussion of this topic, see 1.1:400 above.

2.3:400   Confidentiality of an Evaluation

¥ Primary Michigan References: MI Rule 2.3
¥ Background References: ABA Model Rule 2.3, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 71:704, ALI-LGL ¤ 95, Wolfram ¤ 13.4.3
¥ MI Commentary: Dubin and Schwartz MRPC 2.3

The Rule specifically provides in subsection (b) that information relating to the evaluation is protected by Rule 1.6, except to the extent disclosure is required in connection with a report of an evaluation.