1.6Attorney Conduct
“A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Preamble to the Michigan Rules of Professional Conduct. “Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.” Id. “Every lawyer is responsible for observance of the Rules of Professional Conduct[, and a] lawyer should also aid in securing their observance by other lawyers.” Id. “Neglect of these responsibilities compromises the independence of the profession and public interest in which it serves. Id.
“The license to practice law in Michigan is, among other things, a continuing proclamation by the Supreme Court that the holder is fit 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. It is the duty of every attorney to conduct himself or herself at all times in conformity with standards imposed on members of the bar as a condition of the privilege to practice law. These standards include, but are not limited to, the rules of professional responsibility and the rules of judicial conduct that are adopted by the Supreme Court.” MCR 9.103(A). Grounds for discipline are set forth in MCR 9.104.
The authority to supervise and discipline Michigan attorneys derives from the state constitution and rests with the Michigan Supreme Court. Schlossberg v State Bar Grievance Bd, 388 Mich 389, 395 (1972), citing Const 1963, art 6 § 5. This constitutional responsibility is discharged, in turn, by the Attorney Grievance Commission (acting as the Supreme Court’s prosecution arm) and the Attorney Discipline Board (acting as the Supreme Court’s adjudicative arm). MCR 9.100 et seq.
“Michigan has a long tradition of judicial oversight of the ethical conduct of its court officers.” Evans & Luptak, PLC v Lizza, 251 Mich App 187, 194 (2002). All Michigan judges have an independent responsibility to supervise the ethical conduct of attorneys who appear in their courtrooms. Attorney Gen v Mich Pub Serv Comm, 243 Mich App 487, 491-492 (2000). This tradition is reflected in the Michigan Code of Judicial Conduct; MCJC 3(B)(3) provides that “[a] judge should take or institute appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.” The Michigan Rules of Professional Conduct require lawyers to report attorney misconduct. MRPC 8.3.
B.Motion to Disqualify Attorney
Although not specifically addressed by court rule, caselaw suggests that the court has the authority to consider a motion to disqualify counsel. Rymal v Baergen, 262 Mich App 274, 316-322 (2004); Evans & Luptak, PLC v Lizza, 251 Mich App 187, 193-203 (2002). Typically, a motion to disqualify is based on an alleged conflict of interest. See MRPC 1.7; MRPC 1.8; MRPC 1.9. Another potential ground for disqualification may arise if the lawyer is a potential witness. MRPC 3.7.
To disqualify an attorney based on MRPC 1.7(a) (prohibiting a lawyer from representing two clients with directly adverse interests), the court must undertake a two-step analysis. Avink v SMG, 282 Mich App 110, 117-118 (2009). First, it must “determine whether a lawyer’s representation of a client will be ‘directly adverse’ to the interest of another client.” Id. at 117. The Court explained that “[c]lients’ interests are directly adverse when one client sues another client.” Id. Second, the court must evaluate reasonable belief and consent. Id. at 118. If the court concludes that a directly adverse interest exists, it must disqualify the lawyer unless “(a) the attorney reasonably believes the dual representation will not adversely affect the attorney-client relationship with the other client and (b) both clients consent after consultation.” Id.
Whether a conflict of interest exists is a question of fact that is reviewed for clear error. Avink v SMG, 282 Mich App 110, 116 (2009). “A trial court’s findings of fact are clearly erroneous only if [the Court] is left with a definite and firm conviction that a mistake was made.” Id. The application of “ethical norms” to a decision whether to disqualify counsel is reviewed de novo. Id.