Rule 1.0 Scope and Applicability of Rules and Commentary

The rules and comments were largely drawn from the American Bar Association’s Model Rules

of Professional Conduct. Prior to submission of those Model Rules to the Michigan Supreme

Court, the State Bar of Michigan made minor changes in the rules and the comments to conform

them to Michigan law and preferred practice. The Supreme Court then adopted the rules, with

such substantive changes as appeared proper to the Court. Additional changes in the comments

were then made by staff to conform the comments to the rules as adopted by the Supreme Court.

The Supreme Court has authorized publication of the comments as an aid to the reader, but the

rules alone comprise the Supreme Court’s authoritative statement of a lawyer’s ethical

obligations.

Preamble: A Lawyer’s Responsibilities

This preamble is part of the comment to Rule 1.0, and provides a general introduction to the

Rules of Professional 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.

As a representative of clients, a lawyer performs various functions. As advisor, a lawyer

provides a client with an informed understanding of the client’s legal rights and obligations and

explains their practical implications. As advocate, a lawyer zealously asserts the client’s position

under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to

the client but consistent with requirements of honest dealing with others. As intermediary

between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a

limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a

client’s legal affairs and reporting about them to the client or to others.

In all professional functions a lawyer should be competent, prompt and diligent. A lawyer

should maintain communication with a client concerning the representation. A lawyer should

keep in confidence information relating to representation of a client except so far as disclosure is

required or permitted by the Rules of Professional Conduct or other law.

A lawyer’s conduct should conform to the requirements of the law, both in professional service

to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s

procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should

demonstrate respect for the legal system and for those who serve it, including judges, other

lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the

rectitude of official action, it is also a lawyer’s duty to uphold legal process.

As a public citizen, a lawyer should seek improvement of the law, the administration of justice

and the quality of service rendered by the legal profession. As a member of a learned profession,

a lawyer should cultivate knowledge of the law beyond its use for clients, employ that

knowledge in reform of the law and work to strengthen legal education. A lawyer should be

mindful of deficiencies in the administration of justice and of the fact that the poor, and

sometimes persons who are not poor, cannot afford adequate legal assistance, and should

therefore devote professional time and civic influence in their behalf. A lawyer should aid the

legal profession in pursuing these objectives and should help the bar regulate itself in the public

interest.

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.

A lawyer’s responsibilities as a representative of clients, an officer of the legal system, and a

public citizen are usually harmonious. Thus, when an opposing party is well represented, a

lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is

being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the

public interest because people are more likely to seek legal advice, and thereby heed their legal

obligations, when they know their communications will be private.

In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all

difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the

legal system, and to the lawyer’s own interest in remaining an upright person while earning a

satisfactory living. The Rules of Professional Conduct prescribe terms for resolving such

conflicts. Within the framework of these rules many difficult issues of professional discretion

can arise. Such issues must be resolved through the exercise of sensitive professional and moral

judgment guided by the basic principles underlying the rules.

The legal profession is largely self-governing. Although other professions also have been

granted powers of self-government, the legal profession is unique in this respect because of the

close relationship between the profession and the processes of government and law enforcement.

This connection is manifested in the fact that ultimate authority over the legal profession is

vested largely in the courts.

To the extent that lawyers meet the obligations of their professional calling, the occasion for

government regulation is obviated. Self-regulation also helps maintain the legal profession’s

independence from government domination. An independent legal profession is an important

force in preserving government under law, for abuse of legal authority is more readily challenged

by a profession whose members are not dependent on government for the right to practice.

The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in

the public interest and not in furtherance of parochial or self-interested concerns of the bar.

Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer

should also aid in securing their observance by other lawyers. Neglect of these responsibilities

compromises the independence of the profession and the public interest which it serves.

Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an

understanding by lawyers of their relationship to our legal system. The Rules of Professional

Conduct, when properly applied, serve to define that relationship.

Scope

The Rules of Professional Conduct are rules of reason. They should be interpreted with

reference to the purposes of legal representation and of the law itself. Some of the rules are

imperatives, cast in the terms “shall” or “shall not.” These define proper conduct for purposes of

professional discipline. Others, generally cast in the term “may,” are permissive and define areas

under the rules in which the lawyer has professional discretion. No disciplinary action should be

taken when the lawyer acts or chooses not to act within the bounds of such discretion. Other

rules define the nature of relationships between the lawyer and others. The rules are thus partly

obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer’s

professional role. Many of the comments use the term “should.” Comments do not add

obligations to the rules, but provide guidance for practicing in compliance with the rules.

The rules presuppose a larger legal context shaping the lawyer’s role. That context includes

court rules and statutes relating to matters of licensure, laws defining specific obligations of

lawyers, and substantive and procedural law in general. Compliance with the rules, as with all

law in an open society, depends primarily upon understanding and voluntary compliance,

secondarily upon reinforcement by peer and public opinion, and finally, when necessary, upon

enforcement through disciplinary proceedings. The rules do not, however, exhaust the moral and

ethical considerations that should inform a lawyer, for no worthwhile human activity can be

completely defined by legal rules. The rules simply provide a framework for the ethical practice

of law.

Furthermore, for purposes of determining the lawyer’s authority and responsibility, principles of

substantive law external to these rules determine whether a client-lawyer relationship exists.

Most of the duties flowing from the client-lawyer relationship attach only after the client has

requested the lawyer to render legal services and the lawyer has agreed to do so. But there are

some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer

agrees to consider whether a client-lawyer relationship shall be established. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be

a question of fact.

Under various legal provisions, including constitutional, statutory and common-law, the

responsibilities of government lawyers may include authority concerning legal matters that

ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a

government agency may have authority on behalf of the government to decide upon settlement or

whether to appeal from an adverse judgment. Such authority in various respects is generally

vested in the attorney general and the prosecuting attorney in state government, and their federal

counterparts, and the same may be true of other government law officers. Also, lawyers under

the supervision of these officers may be authorized to represent several government agencies in

intragovernmental legal controversies in circumstances where a private lawyer could not

represent multiple private clients. They also may have authority to represent the “public

interest” in circumstances where a private lawyer would not be authorized to do so. These rules

do not abrogate any such authority.

As indicated earlier in this comment, a failure to comply with an obligation or prohibition

imposed by a rule is a basis for invoking the disciplinary process. The rules presuppose that

disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and

circumstances as they existed at the time of the conduct in question and in recognition of the fact

that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover,

the rules presuppose that whether or not discipline should be imposed for a violation, and the

severity of a sanction, depend on all the circumstances, such as the wilfulness and seriousness of

the violation, extenuating factors and whether there have been previous violations.

As also indicated earlier in this comment, a violation of a rule does not give rise to a cause of

action, nor does it create any presumption that a legal duty has been breached. The rules are

designed to provide guidance to lawyers and to provide a structure for regulating conduct

through disciplinary agencies. They are not designed to be a basis for civil liability.

Furthermore, the purposes of the rules can be subverted when they are invoked by opposing

parties as procedural weapons. The fact that a rule is a just basis for a lawyer’s self-assessment,

or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply

that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of

the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal

duty of lawyers or the extradisciplinary consequences of violating such a duty.

Moreover, these rules are not intended to govern or affect judicial application of either the client-lawyer or work-product privilege. Those privileges were developed to promote compliance with

law and fairness in litigation. In reliance on the client-lawyer privilege, clients are entitled to

expect that communications within the scope of the privilege will be protected against compelled

disclosure. The client-lawyer privilege is that of the client and not of the lawyer. The fact that in

exceptional situations the lawyer under the rules has a limited discretion to disclose a client

confidence does not vitiate the proposition that, as a general matter, the client has a reasonable

expectation that information relating to the client will not be voluntarily disclosed and that

disclosure of such information may be judicially compelled only in accordance with recognized

exceptions to the client-lawyer and work-product privileges.

The lawyer’s exercise of discretion not to disclose information under Rule 1.6 should not be

subject to reexamination. Permitting such reexamination would be incompatible with the general

policy of promoting compliance with law through assurances that communications will be

protected against disclosure.

The comment accompanying each rule explains and illustrates the meaning and purpose of the

rule. The Preamble and this note on scope provide general orientation. The comments are

intended as guides to interpretation, but the text of each rule is authoritative.

Terminology

“Belief” or “believes” denotes that the person involved actually supposed the fact in question to

be true. A person’s belief may be inferred from circumstances.

“Confirmed in writing,” when used in reference to the informed consent of a person, denotes

informed consent that is given in writing confirming an oral informed consent. If it is not

feasible to obtain or transmit the writing at the time the person gives informed consent, then the

lawyer must obtain or transmit it within a reasonable time thereafter.

“Consult” or “consultation” denotes communication of information reasonably sufficient to

permit the client to appreciate the significance of the matter in question.

“Firm” or “law firm” denotes a lawyer or lawyers in a private firm, lawyers employed in the

legal department of a corporation or other organization, and lawyers employed in a legal services

organization. See comment, Rule 1.10.

“Fraud” or “fraudulent” denotes conduct having a purpose to deceive and not merely negligent

misrepresentation or failure to apprise another of relevant information.

“Informed consent” denotes the agreement by a person to a proposed course of conduct after the

lawyer has communicated adequate information and explanation about the material risks of and

reasonably available alternatives to the proposed course of conduct.

“Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question.

person’s knowledge may be inferred from circumstances.

A

“Partner” denotes a member of a partnership and a shareholder in a law firm organized as a

professional corporation.

“Reasonable” or “reasonably,” when used in relation to conduct by a lawyer, denotes the conduct

of a reasonably prudent and competent lawyer.

“Reasonable belief” or “reasonably believes,” when used in reference to a lawyer, denotes that

the lawyer believes the matter in question and that the circumstances are such that the belief is

reasonable.

“Reasonably should know,” when used in reference to a lawyer, denotes that a lawyer of

reasonable prudence and competence would ascertain the matter in question.

“Substantial,” when used in reference to degree or extent, denotes a material matter of clear and

weighty importance.

RULES 1.1–1.17. CLIENT-LAWYER RELATIONSHIP