Pro Bono Fair 2011 coming soon to a place near you

A partnership of law firms, local bar associations, legal aid clinics and the Thomas M. Cooley School is presenting Pro Bono Fair 2011 at four locations across the state in October.

The events are designed to connect attorneys and legal services organizations in their community and to explore volunteer opportunities.

The inaugural event is the Oakland and Macomb Pro Bono Fair on Thursday, Oct. 6 at the Thomas M. Cooley Law School’s Auburn Hills Campus, 2630 Featherstone, Auburn Hills from 4:30 p.m. to 6:30 p.m. Dickinson Wright is sponsoring the event.

The keynote speaker will be Julie I. Fershtman, President, State Bar of Michigan.

Fershtman, along with Peter M. Alter, Oakland County Bar Association President; Gail Pamukov-Miller, Macomb County Bar Association President; Stephanie D. Jones, Straker Bar Association President and David S. Maquera, Hispanic Bar Association President say:

The Oakland and Macomb Pro Bono Fair is a practical and expedient way for you to learn more about legal services organizations and the programs that help the thousands who are in urgent need of civil legal aid. The need has grown, as funding for legal services has been dwindling.

Michigan’s legal community has been generous with its time and financial support, but more help is needed. All Oakland and Macomb area attorneys are urged to attend the pro bono fair. You are under no obligation to take a case or to make a time commitment. The fair is meant to be a chance to learn more, network with colleagues, and consider new ways to provide pro bono service.

Other Pro Bono Fairs are scheduled for later in the month. Here’s a list:

  • October 11, 2011
    Grand Rapids Pro Bono Fair
    11:30 a.m. – 1:30 p.m.
    Thomas M. Cooley Law School
    Grand Rapids Campus
  • October 11, 2011
    Detroit Pro Bono Fair
    4:00 p.m. – 6:30 p.m.
    Dykema
  • October 17, 2011
    Lansing Pro Bono Fair
    4:00 p.m. – 6:00 p.m.
    Thomas M. Cooley Law School
    Lansing Campus

For more information, and to RSVP (requested but not required), please contact Robert Mathis, SBM Pro Bono Service Counsel, at
rmathis@mail.michbar.org or call (517) 346-6412.

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MSC proposes referral fee, juror challenge changes; names chief judge in Barry County

Referral fees would be limited to 25 percent under a proposed amendment of Rule 1.5 of the Michigan Rules of Professional Conduct.

The Michigan Supreme Court’s proposed 25 percent cap would be lifted

if the referring attorney participates in the case to an extent that a greater percentage of the amount recovered should be allowed as a reflection of the referring attorney’s substantial input of time or cost, or assumption of risk, the referring attorney’s share of fees may exceed the maximum referral fee as agreed by the receiving attorney and as approved by the court in which the proceeding takes place.

The proposal would also require that contigent-fee agreements disclose “the amount or percentage of fees to be divided or shared among or between lawyers who are not in the same firm.”

Under the proposed amendment, clients would have to approve “the amount or percentage of fees to be divided or shared among or between lawyers who are not in the same firm.” ADM File No. 2010-07.

Under a proposed amendment of MCR 2.511, courts would be required to excuse to discharge a juror upon learning that the juror is unqualified, rather than waiting for a party to challenge the juror for cause. The staff comment to the proposal explains that

[b]ecause MCL 600.1337 requires a court to discharge an unqualified juror regardless whether a party challenges the juror for cause, the proposed amendment of MCR 2.511 would eliminate the provision from the list of challenges that may be made for cause, and instead would clarify that the discharge must be made when the court learns that the juror is not qualified to serve.

This clarification would foreclose the possibility that an unqualified juror could be allowed to sit because no one challenged his or her qualification.

ADM File No. 2011-10.

The Michigan Supreme Court issued the proposed amendments in orders released yesterday. The comment period for both proposals is open until Sept. 1, 2011.

In another order released yesterday, the MSC appointed Judge William M. Doherty as chief judge of the Barry County Trial Court for a term ending Dec. 31, 2011.

Western District proposes attorney admission, discipline rule changes

The U.S. District Court for the Western District of Michigan is thinking about beefing-up its local rules governing admission to the court’s bar, attorney discipline and reinstatement proceedings.

In Administrative Order 11-041, the court tentatively approved amendments to its local court rules.

Key changes:

  • Admission applications could be granted or denied by the chief judge.
  • The chief judge could refer applications to a three-judge panel. The proposed change provides for broader participation of the court’s senior judges and further provides that bankruptcy judges could sit on the panels.
  • The proposal also conforms the local rules to the disciplinary and contempt power granted to magistrate judges by statute. 28 U.S.C. sec. 636(e).

The court is seeking comments by May 23 before promulgating a final version of the proposed changes.

MSC considering revamp of discipline rules

The Michigan Supreme Court has released for comment a wholesale revision of the court rules pertaining to attorney misconduct.

ADM File 2006-38 is the result of a proposal from the Attorney Grievance Commission and input from the State Bar of Michigan. The Court notes that the proposal has been in the works for four years, and, in some instances, there are competing versions of the proposed changes.

The Attorney Grievance Commission submitted its proposal to the Court in 2006. The Court considered various provisions within the proposal, and before final review for purposes of publication, invited the State Bar of Michigan to convene a workgroup to review the proposal and submit preliminary feedback on it. The SBM did so, and the Court proceeded to final review of the proposal with the benefit of the input from both the AGC and the SBM. Thus, in several places there are alternative versions of language offered that reflect differing suggestions of the AGC and the SBM on a particular issue. In addition, the AGC submitted updated language in early 2010, some of which is reflected in the order.

The Court has provided some assistance for working through the 71-page proposal.

In addition to the order for publication, the Court is releasing two documents that may be helpful in understanding the proposed changes. One document is a jointly submitted AGC/SBM memo that describes the main points of difference in the proposals.

Another document is a three-column chart that compares the current rule with the AGC proposal and any alternative language recommended by the SBM. The Court’s order in several places varies from the language offered by either the AGC or SBM, and where it does so, the staff comment describes why the Court chose the language it did.

A significant proposed change to MCR 9.104 has placed the AGC and SBM at odds.

The AGC’s version, Alternative A, would expand the list of acts or omissions that would be considered misconduct and grounds for discipline. Under the AGC’s proposal, attorneys could not make an agreement or attempt to obtain an agreement that:

(a) the professional misconduct or the
terms of a settlement of a claim for professional misconduct shall not be reported to the administrator;

(b) the plaintiff shall withdraw a request for investigation or shall not cooperate with the investigation or prosecution of misconduct by the administrator; or

(c) the record of any civil action for professional misconduct shall be sealed from review by the administrator.

(B) It is also misconduct and a ground for discipline if, through multiple acts and omissions, a lawyer demonstrates the absence of fitness to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and counselor and as an officer of the court. MCR 9.103(A). This is misconduct for which discipline can be imposed for the protection of the public, the courts, and the legal profession. MCR 9.105. In proceedings brought under this subrule, prior acts and omissions of the lawyer are admissible.

The SBM’s proposal, Alternative B, does not include the AGC’s proposed changes and eliminates four grounds for discipline that exist in the current rule, for which there is no counterpart in the current Michigan Rules of Professional Conduct. Under the SBM’s proposal, the following acts or omission would be struck from MCR 9.104:

(1) conduct prejudicial to the proper administration of justice;

(2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach;

(3) conduct that is contrary to justice, ethics, honesty, or good morals; …

(5) conduct that violates a criminal law of a state or of the United States; …

The SBM’s Alternative B drew a strong rebuke from Justice Maura Corrigan, so much so that she would not even have published Alternative B for comment.

Under Alternative B, the State Bar would circumscribe the existing grounds for attorney discipline and impinge on the Judicial Tenure Commission’s ability to discipline judges. By contrast, the Attorney Grievance Commission’s cogent proposed amendment of MCR 9.104 (Alternative A) not only lacks the flaws of Alternative B, but it also maintains or in certain cases expands the existing grounds for discipline. Consequently, I support publishing Alternative A for public comment, but I oppose publishing Alternative B at this juncture. …

[T]he State Bar tends to ignore the practical effect of Alternative B – that is, Alternative B narrows significantly rather than maintains the existing grounds for discipline. For example, one ground for discipline under the current rule is “conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach.” MCR 9.104(A)(2).

The State Bar proposes deleting this ground for discipline although MRPC 8.4 has no parallel provision. I would not circumscribe the existing grounds for attorney discipline. Insofar as the State Bar supports such efforts, I think that its proposal offends the underlying purpose of disciplinary proceedings, which this Court enacted not “as punishment for wrongdoing, but for the protection of the public, the courts, and the legal profession.” MCR 9.105.

Want to weigh in on the proposal? The comment period closes March 1, 2011. Address your comments to the Supreme Court Clerk, Box 30052, Lansing, Mich. 48909 or e-mail the clerk at MSC_clerk@courts.mi.gov.

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Belaboring the obvious

Last week, the Michigan Supreme Court released for comment a proposed amendment to Rule 7.3 of the Michigan Rules of Professional Conduct.

If adopted, it would affect lawyers who solicit employment from prospective clients via print, recorded and electronic advertising.

You might need to become well-acquainted with the phrase “Advertising Materials.” The proposed amendment would require those words to appear on any self-mailing brochure, pamphlet or postcard. It would also be required at the beginning and end of every written, recorded or electronic communication.

Now, I can understand why that might be a good idea for something sent through the mail. A written communication in your mailbox from a lawyer you’re not familiar might be important. Labeling a solicitation letter as “Advertising Materials” helps you make a quick decision about whether it goes into the stuff-to-be-opened pile, or directly to the trash or recycling bin.

Too bad someone isn’t thinking about a similar regulation for mailbox solicitations from insurers, credit card comanies and the like.

But commercials on the television? Come on. Anyone who’s watched the tube for more than an hour can figure out when there’s a pause in the show, and that it’s time to hit the mute button, the bathroom or the kitchen.

The alternative is to be bombarded with ads selling everything under the sun, including earnest lawyers eager to help you with your difficulties, some of which you may have never thought you had.

Requiring lawyers to label their television ads as “Advertising Materials” needlessly belabors the obvious.

ADB’s dismissal of alcohol-related reprimand upheld

The Michigan Supreme Court has refused to review the Attorney Discipline Board’s decision to vacate a hearing panel’s reprimand, with conditions, of Dianne L. Baker, who pleaded guilty to driving while visibly impaired and faced the discipline process as a result.

As reported in our Feb. 22 issue, the Attorney Grievance Commission wanted to put Baker through the wringer. The AGC offered to back off if Baker agreed to contractual probation, which required Baker to swear off alcohol, attend counseling or submit to alcohol monitoring, and to file quarterly progress reports.

The AGC wanted all of this because it perceived that Baker had a drinking problem and was not doing anything about it. Baker declined the offer and told the AGC to prove its case.

A hearing panel agreed with the AGC’s assessment and issued a reprimand that contained substantially the same conditions Baker rejected when she turned down the contractual probation offer.

On review, the Attorney Discipline Board said the evidence just didn’t add up against Baker and vacated the reprimand. The ADB pointed to Baker’s negative alcohol tests, the hearing panel’s adverse determination of Baker’s credibility without citing any supporting evidence and Baker’s voluntary counseling sessions.

What’s more, said the ADB in its opinion:

Even if the record indicates what could be deemed excessive alcohol consumption at certain points in [Baker’s] life, we must also consider the evidence of [her] voluntary cessation or reduction of alcohol use during most periods of her life, which include consistent employment in responsible positions, childbirth and child-rearing years, and graduation cum laude from law school while working.

There’s no justification for Baker to be involved with the discipline process, the ADB said.

[W]e find clear evidence that respondent drove while impaired by alcohol on one occasion. This criminal conduct was appropriately dealt with by the district court.

The other evidence marshaled fails to demonstrate the existence of a problem for the attorney discipline system to address.

Late last month, a four-justice majority denied the AGC’s application for leave to appeal. Justices Maura D. Corrigan and Robert P. Young Jr. would have granted leave.

Justice Elizabeth A. Weaver sat this one out, explaining:

I abstain from voting on any items dealing with the Judicial Tenure Commission (JTC) and/or the Attorney Grievance Commission (AGC) to avoid any appearance that I could be trying to affect the outcome of the referrals of me to the JTC and AGC by Justices Corrigan, Young and Markman.

See, The Michigan Lawyer, “Weaver, Corrigan, Young and Markman: Supreme Court potboiler,” for more about this topic.