Rule governing bar admission by motion amended

Lawyers seeking admission to the State Bar of Michigan without taking the Michigan bar examination will no longer be required to state a good-faith intention to maintain an office in the state under a rule change approved by the Michigan Supreme Court.

The Michigan Supreme Court, with one partial dissent, has amended Rule 5 of the Rules for the Board of Law Examiners to eliminate the requirement effective Jan. 1, 2013.

However, there’s a possible snag. The rule amendment is at odds with MCL 600.946, which has not been amended to mirror the newly amended rule.

That’s why Janet Welch, the state bar’s executive director, had asked the MSC to adopted the Jan. 1, 2013, effective date, “to allow the Legislature to act on a corresponding statutory change consistent with the proposed amendment.” Welch submitted the request on behalf of the bar’s Executive Committee.

Chief Justice Robert Young Jr. complained that the MSC majority acted too quickly.

I concur with amending Rule 5 of the Rules for the Board of Law Examiners to eliminate the requirement that an application for admission without examination assert the intent to maintain an office in Michigan for the practice of law.

However, I dissent from giving this change effect prior to the amendment of MCL 600.946, which provides the identical requirement. Therefore, until MCL 600.946 is amended, the adopted rule change will not solve the problem it is designed to cure and amounts to no more than a gesture by this Court.

Young didn’t identify the “problem” to which he referred.

But Welch, in her comments to the MSC, noted that at least one other jurisdiction has found an in-state office requirement unconstitutional, and that the U.S. Supreme Court has spoken on the matter.

We believe that proposed change is supported by federal case law, In Fraizer v. Heebe,  a 1987 U.S. Supreme Court case, [the Court] struck down a U.S, District Court local rule requiring either residency in the state where the court sat or the maintenance of an office in the state without reaching any of the constitutional questions, by concluding that the residency requirement was “unnecessary and arbitrarily discriminates against out-of-state lawyers” and that the in-state office requirement is “unnecessary and irrational.”

In September 2011, New York’s in-state office requirement was ruled unconstitutional in Schoenefeld v. New York. The opinion held that the rule was a violation of the privileges and immunities clause.

So, the MSC has amended a rule governing admission to the bar, presumably to eliminate a provision of questionable legality. Young has gone out of his way to opine that the MSC’s action doesn’t mean a thing until the Legislature brings the statute into line.

In the meantime, the Legislature is preparing for its summer break, so if anything is going to happen, it won’t be until later in the year.

Lest you think this is an academic point, the Michigan Board of Law Examiners gets more than 100 applications a year for admission under Rule 5.

If the Legislature doesn’t act until after Jan. 1, or decides to simply ignore the matter, the bar examiners will have an interesting choice to make when processing Rule 5 applications in 2013 and beyond.

MSC hearing on referral fee, pro bono rules

A proposed rule aimed at capping attorney referral fees in contingent fee cases is on the agenda of the Michigan Supreme Court’s September 28 public hearing.

The rule would apply to cases where the attorney’s compensation is an agreed-upon share of the case award or settlement.

Under the proposed amendment of Michigan Rule of Professional Conduct 1.5 (ADM File No. 2010-07), an attorney who refers a contingent fee case to another attorney could receive a referral fee, but the fee would be capped at “25 percent of the amount recovered.”

The rule change is aimed at discouraging attorneys from operating as brokering services and directing clients to lawyers who pay the highest referral fees.

A referring attorney who also contributes a “substantial input of time or cost, or assumption of risk” could receive a larger fee if the other attorney agrees and if the court approves.

The Court will also discuss whether to adopt one of two alternative proposals regarding an attorney’s ethical obligation to provide pro bono services (ADM File No. 2010-18; proposed amendments to of MRPC 6.1).

Alternative A would clarify that attorneys are not subject to disciplinary proceedings to enforce the pro bono rule. Alternative B would require Michigan attorneys to donate 30 hours of professional time or handle three pro bono cases per year, and/or contribute $300 or $500 per year to programs that provide legal services to the poor.

The Michigan Supreme Court periodically holds administrative hearings to allow interested persons to comment on proposed court rule changes and other administrative matters on the Court’s agenda.

Speakers will be allotted three minutes each to present their views, after which they may be questioned by the Justices.

To reserve a place on the agenda, please contact the Office of the Clerk of the Court in writing at P.O. Box 30052, Lansing, Michigan 48909, or by e-mail at MSC_clerk@courts.mi.gov, no later than Monday, September 26, 2011. Requests to speak should include the ADM file numbers for the agenda items the speaker wishes to discuss.

– Information provided by the Michigan Supreme Court.

Legal program wins 2010 Michigan Emmy Award

Birmingham, Mich (June 8, 2010) – Due Process, a long-running weekly legal program airing on PBS, has won an Emmy Award for best Public/Current/Community Affairs program for its “Treatment Court” episode. The award was announced at the National Academy of Television Arts and Sciences 2010 Michigan Emmy Awards on Saturday, June 5, 2010 at the Royal Oak Music Theatre.

Due Process is hosted by attorney Henry Baskin and produced by Mitch Jacobs, Jacobs Productions. The program has been on the air for 26 seasons, making it one of the longest running programs in Michigan television history. This is the first Emmy Award for the program as well as the first time Due Process submitted a nomination for the award.

“Everyone involved with Due Process strives to produce quality and informative shows that will  provide the public with simple and helpful information about common legal issues, so it is a true honor to receive this award,” said Henry Baskin, host of Due Process. “Many thanks go to Due Process producer Mitch Jacobs, PBS and to our underwriters Meade Lexus and Newsradio WWJ-950.”

“Treatment Court”, the Emmy Award winning episode, was an in-depth look at the adult treatment court and its effectiveness at addressing adult felony offenders. In this powerful program, host Henry Baskin was joined by the Honorable Wendy Potts, Chief Circuit Judge of the 6th Judicial Circuit Court and Shea Pounder, an ex-addict who received assistance through treatment court and is helping others transition to a successful life.

Attorneys honored for prosecution of spam, torture cases

“U.S. Attorney Terrence Berg and assistant U.S. attorneys Julie Beck and Christopher Graveline, of the United States Attorney’s Office — Eastern District of Michigan, were honored this week in Washington, D.C. for their prosecution of Alan Ralsky, called the spam king, and another case,” reports the Detroit Free Press.

“The prosecutors were honored Tuesday at the 2009 Assistant Attorney General Awards at the Robert F. Kennedy Main Justice Building in Washington, D.C.”

U of M Law School 2nd in Super Lawyers ranking

The University of Michigan Law School is second on Super Lawyers magazine’s first annual ranking of U.S. law schools.

Harvard Law School topped the 180-school list.

The rankings were based on the number of graduates from each school selected for inclusion in Minneapolis-based Super Lawyers, which uses peer nominations and third-party research in its selection process.

Explains Super Lawyers publisher Bill White:

Most law school rankings look at things like bar passage rates, professor-to-student ratios and the number of books in the library, but ignore the end product – the quality of lawyers produced.

It’s like ranking football teams based on athletic facilities, player size and equipment without considering who wins the games.

White acknowledged that the rankings are a “trailing” indicator, in that attorneys named to Super Lawyers typically graduated years ago.

“It’s true that past performance does not guarantee future results but it’s an important factor that up until now has been largely ignored,” according to White.

White also conceded that schools with smaller graduating classes may get short-changed in the ranking but maintained that a “large class size is not an advantage if you don’t produce great lawyers.”

Here’s how Michigan’s other law schools fared in the Super Lawyers ranking:

Wayne State University Law School – 37
University of Detroit Mercy Law School – 92
Michigan State University College of Law – 120
The Thomas M. Cooley Law School – 146

Ex-bidder wants to halt sale of Silverdome

“A Bloomfield Hills attorney who offered $20 million for the Pontiac Silverdome two years ago will be in court today to ask a judge to block its sale this week for $583,000,” reports The Detroit News.

“The 80,300-seat Silverdome and adjacent 127 acres were sold Monday in a closed-door auction attended by only a few city officials and four invited bidders. A still-unidentified Toronto group was chosen to take over the Silverdome, built in 1975 at a cost of $55.7 million. The group said it hopes to bring a soccer league to the venue.

“‘We believe we have strong grounds to challenge this sale,’ said attorney H. Wallace Parker of Silver Stallion Corp., whose efforts to buy the stadium stalled last year over disputes about repair work, lost property and a city-required fee.”

Hitting the books

“Having removed about 5,000 outdated law books from the Wexford County Law Library on Saturday, Oct. 24, Wexford County commissioner Terry Beck said his next step is to find a place to put the books,” reports cadillacnews.com.

“‘They were going to go the dumpster and be taken to the landfill,’ Beck said. ‘I figured if we could find some way of utilizing them to benefit from them, we should.’

“Considering that statutes have changed and the information in the texts are now inaccurate, the books no longer hold any value to the Wexford County Courthouse. After about three months of discussion, Beck said the Recreations and Buildings Committee decided to dispose of the out-dated books as a way to free up space in the courthouse.”

DNA Results: Body Not Missing Lawyer

WXYZ is reporting, “Two families who had been hoping for closure in a boating mystery are still facing uncertainty.

“Police have never solved the mystery of what happened out on Lake Huron to two lawyers from Grosse Pointe Farms.

“So when human remains were discovered last spring along the coast – many people wondered if they might belong to Chuck Rutherford Jr.

“Today we learned – they do not. And now police have a new mystery on their hands.”

Retired circuit judge, lawyers team up to start new law firm

Crain’s Detroit Business is reporting that “Lawrence Charfoos of Detroit-based Charfoos & Christensen P.C. has moved to join retired Wayne County Chief Circuit Judge William Giovan and immigration attorney Robert Birach to open Charfoos, Giovan & Birach L.L.P. in the Penobscot building.”

On-line lawyer rating service says Michigan Lawyer’s test drive ‘wasn’t typical’

By purest coincidence, last Tuesday, the day after I posted The Michigan Lawyer: On-line lawyer rating service hits Michigan, Rebecca Green, who handles public relations for Avvo, the subject of the post, called my editor, Todd Berg, to ask about possible press coverage.

She had not seen the post. Berg referred her to it.

On Wednesday and Thursday, Berg and Green traded e-mails, culminating in the following “Letter to the Editor” by Avvo’s CEO Mark Britton, which was e-mailed to Berg. Berg passed it on to me. The letter is reproduced in full below.

To the Editor:

“We here at Avvo are sorry Ed Wesoloski had a negative experience using our service. However, his user experience wasn’t typical of the thousands of consumers who visit our site daily looking for legal information and representation. It appears that Mr. Wesoloski has two main issues with Avvo’s Michigan coverage: 1) He could not immediately find the attorney profiles he was looking for and 2) the majority of Michigan lawyers do not currently have a numerical rating. Allow me to address each of these issues in turn.

“First, we ran a search and quickly found the profiles of all attorneys Mr. Wesoloski searched for. It is possible that inputting the middle initial of each attorney’s name into either the ‘First name’ or ‘Last name’ boxes caused Mr. Wesoloski’s searches to fail. However, it is important to note that he was able to reach the attorney profiles he was seeking through Avvo’s ‘similar names’ prompt.

“With respect to numerically-rated Michigan lawyers, Mr. Wesoloski should note that Avvo has numerical ratings for nearly four thousand Michigan attorneys – despite the fact that Avvo launched in Michigan only last week. Moreover, it is important for Mr. Wesoloski to put himself in a consumer’s shoes. Avvo was built to help consumers, by providing more information and better guidance than they have ever had access to before. From a typical consumer’s standpoint – say someone who was involved in an auto accident – we have a wealth of numerically rated Michigan attorneys for the consumer to choose from. For example, a search for a Michigan personal injury lawyer yields 923 numerically-rated lawyers: [search results here]. Before Avvo launched, the typical consumer looking for this type of representation was reduced to sorting through the yellow pages or online search results – basing their decision on who has the biggest ad or who paid the most for a keyword.

“Finally, it’s not surprising that Mr. Wesoloski didn’t find numerical ratings for Michigan Supreme Court justices or in-house counsel. Avvo concentrates its data entry and ratings efforts on lawyers practicing in areas of most interest to consumers. Let’s face it – the typical consumer isn’t looking to hire a state supreme court justice or in-house counsel for help with a divorce or business formation!

“Avvo”

Mr. Britton, you’ve made some fair points. But you have also answered issues I didn’t raise while not addressing some that I did.

And when evaluating my previous post, it’s equally important to put yourself in a lawyer’s shoes.

You’ve characterized one of my “two main issues with Avvo’s Michigan coverage” as being that I “could not immediately find the attorney profiles [I] was looking for.” Actually, I was complaining about erratic search results, which included the message, “We did not find any lawyers named …”

You’ve suggested that incorrect inputting of the search targets’ names may have caused the problem.

Point well taken, to a point.

I used first names and middle initials in the “first name” search field for all three of my searches. Twice I was told lawyers with those names were not found, even though listings for the search targets appeared farther down the page. In one instance, incorrect input did take me directly to the intended search target’s listing without the scary (to a lawyer) message, “We did not find any lawyers named …”

Happily, when I inputted just the first and last names of all three of my test names, Avvo’s search engine took me directly to their listings.

It is entirely possible that I am the only person on the planet who will ever attempt to use Avvo’s search feature by putting two parts of a lawyer’s name in a single search field, but I wouldn’t bet the farm on that. Why? Because another lawyer lookup service, the one provided by the State Bar of Michigan, offers only a first and last name field and has a fairly detailed usage note designed to forestall exactly what I did:

“Spelling must be exact, no middle initials, extra spaces, or tabs. If unsure of or unsuccessful with first name search, please use last name field only.”

I’m suggesting that similar information on your search page might be helpful. When I got the “not found” messages, I knew to keep looking because I knew the test names were indeed lawyers. But if consumers looking for a particular lawyer happen to goof up the input, they might not get past the “not found” message and draw an incorrect conclusion.

But having said all of this, we’ll see, in just a bit, how using a middle initial sometimes produces better results than just sticking to the first and last name only. As I said, my complaint was erratic results.

You characterized my second of “two main issues” as being “the majority of Michigan lawyers do not currently have a numerical rating.” This was actually a minor issue. I ran a search and calculated that roughly one in 10 Michigan attorneys had a numeric rating. You’ve noted that when you launched in Michigan, about two weeks ago, “nearly” 4,000 attorneys had a numeric rating. The State Bar of Michigan’s Membership Services department tells me there are nearly 40,000 attorneys eligible to practice in Michigan – 37,600 to be exact. We’re still talking roughly 10 percent.

I thought that Michigan’s legal community, which is the primary intended audience of this blog, might be interested in how many of their colleagues have acquired a numeric rating at this early stage of the game.

Now, about those Michigan Supreme Court justices: I never complained, in my previous post, about the lack of numeric ratings for them.

And, while a typical consumer certainly wouldn’t be looking at them to take their divorce, business or personal injury case, a typical lawyer might be curious to see what Avvo has to say about members of the state’s top court.

Here’s what they would have found on June 24, as of approximately 8 a.m. EDT (all searches were first and last name only except where noted):

Clifford Taylor – “We did not find any lawyers named Clifford Taylor. To help you, we have expanded your search to include lawyers with the last name Taylor.” Seventy-nine names were provided, including Hon. Clifford W. Taylor. Viewing his profile revealed this information: “Hon. Clifford W. Taylor has not claimed this profile so information may not be current. Here are similar lawyers that may interest you. These lawyers have claimed profiles and provided up-to-date information.” Immediately below this message was the name of Toni Jean Beatty, a Lansing lawyer with an Avvo numeric rating.

Michael Cavanagh – A solitary listing appeared: Southfield attorney Michael D. Cavanagh. A search for Michael F. Cavanagh (note the problematic middle initial, which I included in the first name field) returned the “did not find – we have expanded your search” message. Eight names were provided, including Hon. Michael F. Cavanagh. Justice Cavanagh hasn’t claimed his profile, either. Toni Jean Beatty was listed as a similar lawyer.

Marilyn Kelly – Listings for two lawyers named Mary Kelly appeared. A search for Marilyn J. Kelly (note that middle initial) returned the “did not find – we have expanded your search” message. Fifty-eight names showed up on the expanded search, including Hon. Marilyn J. Kelly. She hasn’t claimed her profile, and below that message, the name of Livonia attorney Shalini Nangia appeared as a “similar lawyer.”

Elizabeth Weaver- The “did not find – we have expanded the search” message appeared. Eight names appeared as part of the expanded search, including Hon. Elizabeth A. Weaver. No “similar lawyers” were listed.

Maura Corrigan – This search took me directly to Hon. Maura D. Corrigan’s profile. Like Justice Kelly, Justice Corrigan hasn’t claimed her profile. Shalini Nangia is listed as a “similar lawyer.”

Robert Young – Listings for three lawyers named Robert Young appeared. Searching for Robert P. Young (there’s that middle initial, again) produced 51 listings, including Hon. Robert P. Young. He hasn’t claimed his profile and Shalini Nangia is listed as a “similar lawyer.”

Stephen Markman – The “did not find – we have expanded the search” message appeared. Four names appeared as part of the expanded search, including Hon. Stephen J. Markman. Toni Jean Beatty is listed as a “similar lawyer.”

Six of the seven justices’ profiles contained links to “similar lawyers.” Let me be very clear: I’m not suggesting anything untoward by anyone, including Avvo, the “similar lawyers” or the justices.

But I’m having trouble understanding how a lawyer can be “similar” to a supreme court justice, particularly so when there is no apparent information on the justice’s profile to justify the linkage. And you have to allow for the possibility that a consumer who happens upon this information might make an unwarranted, unsavory assumption.

Postscript: As I was putting the finishing touches on this post, I received a call from Mr. Britton. Some highlights:

I learned that I’ve been mispronouncing his company’s name when he introduced himself. It’s Ah-vo. There’s no long “a” at the beginning.

Mr. Britton was able to replicate the search results I obtained for Michigan Supreme Court Justice Robert Young. He remarked that Avvo has been in operation in other states for more than a year and that I was the first person to detect this problem. It clearly concerned him, and his feeling was that something in the Michigan database – the “Hon.” in front of the judges’ names, perhaps? – was skewing the results. I’m confident that his tech team will be taking a look at this.

He was receptive to the idea of putting a note on the search page to educate visitors how to best use the system.

Mr. Britton also spent a long time talking about how Avvo can be a great marketing tool for lawyers, especially small-firm and solo practitioners who would like a presence on the web but don’t have the resources to maintain a website.

And about those Avvo numeric ratings: he stressed that the numeric rating is merely one of several tools that consumers can use to evaluate lawyers, and that lawyers can use to distinguish themselves. Peer reviews and client reviews are also part of the package.