Tips and Tools for a Successful Practice - South Carolina Bar ...

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Tips and Tools for a Successful Practice
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Robert Agacinski is the grievance 9:00- 9: 10 a.m. Introduction and welcome
administrator at the Attorney
Dawn Evans
Grievance Commission.
9:10 -10:30 a.m. Attorney-Client Relationships and Conflicts
Mark Armitage is the deputy of Interest: How to Establish and Maintain
director of the Michigan Attorney
Discipline Board.
Martha Burkett is the program 10:30 - 10:45 a.m. BREAK
administrator for the State Bar of
Michigan Lawyers and Judges
Assistance Program.
Diane Ebersole is a practice
management advisor with the
State Bar of Michigan Practice
Management Resource Center.
Mutually Beneficial Client Relationships
Michael Eberth
10:45 - 11 :45 a.m. Trust Accounts: Everything You Need to Know
About Types of Accounts, When to Use Them
and How to Manage Them
Unda Rexer'
11 :45 a.m. - 12:30 p.m. Ten Most Common Complaints from Clients
Stephen Vella
Michael Eberlh, a shareholder in
Nichols & Eberth P.c., practices 12:30 - 1:30 p.m. LUNCH'
primarily domestic relations and
family law.
(30 minutes)
. Dawn Evans is the division Martha Burkett
Stress Management for the Busy Lawyer
(~/ director of the State Bar of ) Michigan Professional Standards 1:30 - 2:15 p.m. Drafting Effective Fee Agreements: How
Division.
JoAnn Hathaway is a practice
the Rules Interface with the "Real World"
Ken Mogill/Mark Armitage
management advisor with the 2:15 - 3:00 p.m. Effective Law Office Management: Software
State, Bar of Michigan Practice
Management Resource Center.
Victoria Kremski is a visiting
Specifics and Creating Office Procedures
that Work
JoAnn Hathaway/Diane Ebersole
professor in professional
responsibility at Thomas M. 3:00 - 3:15 p.m. BREAK
Cooley Law School in Grand
Rapids, Michigan. 3:15 - 4:00 p.m. Common Questions on the Ethics
Ken Mogill is a partner in Mogill,
Posner & Cohen, practicing in the
Helpline
Victoria Kremski
areas of professional ethics and
criminal defense. 4:00 - 4:30 p.m. Beyond the Rules: Why Professionalism and
Linda Rexer is executive director
of the Michigan State Bar
Foundation.
Stephen Vella is senior associate
counsel with the Attorney
Grievance Commission.
CiVility Are Important
Robert Agacinski
Workshop Ddte: May 7,2008
'Workshop Fee: $75
Workshop Location: State Bar of Michigan
(
306 Townsend Street
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Lansing, MI 48933'

II.
ATTORNEY-CLIENT RELATIONSHIP - FORMATION TO TERMlNATION
A. BriefOverview of the Michigan Rule ofProfessional Conduct ­
Communication, Communication, Communication!
B. The formation ofthe Attorney-Client relationship
1. Defining who is the "client"- Anyone who knows you are an
attorney and asks you a question.
2. Initial Meeting
a. gather infonnation
b. give infonnation
c. conflict ofinterest
3. Client screening - avoiding the "problem" client
(Knowing when to say "No")
4. . Accepting Representation
a. Defming the scope ofrepresentation
b. Fee agreement - (covered in next session)
c. Explanation ofcosts and expenses
d. Communications about billings
C. Maintaining the Attorney-Client Relationship
1. Frequent communications - returning telephone calls
2. Scheduled billings - every month .
3. Confidentiality
D. Termination ofthe representation
1. Closure letters, fmal billing and file retention
2. Withdrawing from representation
a. At request ofclient
b. When required
c. Permission from court
LJ

II. B. "'fHE F0RMATION--OF-THE ATTORNEY ..
CLIENT RELATIONSHIP"
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Defining Who is the IIClient"
Exhibit:
- Potential client memorandum
(

To:
·From:
Date:
Re:
MDE
Karen
May 7, 2002
Potential New Client
MEMORANDUM
Mr. David Smith called today. He is 19 years old. He never
obtained a driver's license. Two years ago he was pulled over by
the police. His license (that he never had) was suspended until
2004. His probation officer told 'him if he gets an attorney, he
should be able to get a license now. ,Please advise.
Phone Number{s) 313-555-4444
To the secretary: Document below the results of the confirmation
call:
Left message
Cancelled
Rescheduled/will reschedule
Will be here for Appt.
To the attorney: Return all memos for potential new clients to
Karen with the following information:
This was a "no show"
This was rescheduled -----
Client retained us
Did not retain us
Other
To Karen:
recording.
For all no shows, give' this. form to Kellie after
To Kellie: Call the no show. Provide response from call below:
( )
"'---"
Left message
Rescheduled/will reschedule
not proceeding at this time
found other· attny
Other
Return form to CLN when completed.

II. B. "THE FORMATION OF THE ATTORNEY ­
CLIENT RELATIONSHIP"
(
. Initial Meeting, gather infonnation, and give
information
Exhibit:
Client intake form
Checklist ofpotential marital assets and liabilities
Child Custody Act of 1970
(
(

II. B. "THE FORMATION OF THE ATTORNEY ­
CLIENT RELATIONSHIP"
Exhibit:,
Initial Meeting and conflict ofinterest
MRPC 1.7 Conflict ofInterest: General Rule
Common Conflicts ofInterest in Estate
Administration
, /
)
MRPC 1.8 Conflict ofInterest: Prohibited
Transactions
MRPC 1.9 Conflict ofInterest: Former Client
( )
"--

MRPC 1.7
WEST'S MICIDGAN RULES OF COURT
MICIDGAN COURT RULES OF 1985
MICHIGAN RULES OF PROFESSIONAL CONDUCT
CLIENT-LAWYER RELATIONSHIP
Copr. © West Group 2003. All rights reserved..
Current with amendments received through January 1, 2003
(
RULE 1.7 CONFLICT OF INTEREST: GENERAL RULE
(a) A lawyer shall not represent a client ifthe representation ofthat client will be directly
adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship
with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a clientifthe representation ofthat client may be materially
limited by the lawyer's responsibilities to another client or to a third person, orby the lawyer's
own interests, unless:
(1) the lawyer reasonably believes the representation willnot be adversely affected; and
(2) the client consents after consultation. When representation ofmultiple clients in a single
matter is undertaken, the consultation shall include explanation ofthe implications ofthe
common representation and the advantages and risks involved. .
[Amended effective June 7, 1989.]
Comment
(
Loyalty to a Client. Loyaltyisan essentialelement in the lawyer's relationship to a client. An
impermissibleconfIict ofinterest may exist before representation is undertaken, in which event
the representation should be declined. The lawyer should adopt reasonable procedures,
appropriate for the size and type of:fum. and practice, to determine in both litigation and
nonlitigation matters the parties and issues involved and to determine whether there are actual or
potential conflicts ofinterest.
Ifsuch a conflict arises after representation has been undertaken, the lawyer should withdraw
from the representation. See Rule 1.16. Where more than one client is involved and the lawyer
withdraws because a conflict arises after representation, whether the lawyer may continue to
represent any ofthe clients is determined by Rule 1.9. See also. Rule 2.2(c). As to whether a
client-lawyer relationship exists or, having once been established, is continuing, see comment to
Rule 1.3 and Scope, ante. .
As a general proposition, loyalty to a client prohibits undertaking representation directly adverse
to that client without that client's consent. Paragraph (a) expresses that general rule. Thus, a
lawyer ordinarily may not act as advocate againsta person the lawyer represents in some other
matter, even ifit is wholly unrelated. On the other hand, simultaneous representation in unrelated
matters ofclients whose interests are only generally adverse, such as competing economic
enterprises, does not require consent ofthe respective clients. Paragraph (a) applies only when
the representation ofone client would be directly adverse to the other.
Loyalty to a client is. also impaired when a lawyer cannot consider, recommend, or carry out an
appropriate course ofaction for the client because ofthe lawyer's other responsibilities or
interests. The conflict in effect forecloses alternatives that would otherwise be available to the
client. Paragraph (b) addresses such situations. A possible conflict does not itselfpreclude the
representation. The critical questions are the likelihood that a conflict will eventuate and, ifit
(

does, whether it will materially interfere with the lawyer's independent professional judgment in
considering alternatives or foreclose courses ofaction that reasonably should be pursued on
behalfofthe client. Consideration should be given to whether the client wishes to accommodate
the other interest involved.
Consultation and Consent A client may consent to representation notwithstandiIig a conflict.
However, as indicated in paragraph (a)(l) with respect to representation directly adverse to a
client, and paragraph (b)(l) with respect to material limitations on representation ofa client,
when a disinterested lawyer would conclude'that the client should not agree to the representation
under the circumstances, the lawyer involved cannot properly ask for such·agreement or provide
representation on the basis ofthe client's consent. When more than one client is involved, the
question ofconflict must be resolved as to each client. Moreover, there may be circumstances
where it is impossible to make the disclosure necessary to obtain 'consent. For example, when the,
lawyer:represents different clients in related matters and one ofthe clients refuses to consent to
the disclosure necessary to permit the other client to make an informed decision, the lawyer
cannot properly ask the latter to consent.
Lawyer's Interests. TheJawyer's own interests should not be pennitted to have adverse effect
on representation ofa client. For example, a lawyer's need for income should not lead the lawyer
to undertake matters that cannot be handled competently and at a reasonable fee. See Rules 1.1
and 1.5. Ifthe probity ofa lawyer's own conduct in a transaction is in serious question, it maybe
difficult or impossible for the lawyer to give a client detached advice. A lawyer may not allow
related business interests to affect representation, for example, by referring clients to an
enterprise in which the lawyer has an undisclosed interest.
Conflicts in Litigation. Paragraph (a) prohibitS representation ofopposing parties in litigation.
Simultaneous representation ofparties whose interests in litigation may conflict, such as
coplaintiffs or codefendants, is governed by paragraph (b). An impermissible conflict may exist
by reason ofsubstantial discrepancy in the parties' testimony, incompatibility in positions in
relation to an opposing party, or the fact that there are substantially different possibilities of
settlement ofthe claims or liabilities in question. Such conflicts can arise in criminal cases as
well as civil. The potential for conflict ofinterest in representing multiple defendant$ in a
criminal case is so grave that ordinarily a lawyer should decline to represent more than one '
codefendant. On the other hand, common representation ofpersons having similar interests is
proper ifthe risk ofadverse effect is minimal and the requirements ofpara,graph (b) are met.
Compare Rule 2.2 involving intermediation between clients.
Ordinarily, a.lawyer may not act as advocate against a client the lawyer represents in some other
, matter, even ifthe other matter is wholly unrelated. However, there are circumstances in which a
lawyer may act as advocat~ against a client. For example, a lawyer representing an enterprise
with diverse operations may accept employment as an advocate against the enterprise in an
unrelated matter ifdoing so will not adversely affect the lawyer's relationship with the enterprise
or conduct ofthe suit and ifboth clients consent upon consultation. By the same token,
government lawyers in some circumstances mayrepresent government employees in proceedings
in which agovernment agency is the opposing party. The propriety ofconcurrent representation
can depend on the nature ofthe litigation. For example, a suit charging fraud entails conflict to a
degree not involved in a suit for a declaratory judgment concerning statutory interpretation.
Interest-'of Person Paying for a Lawyer's Service. A lawyer may be paid from a source other
than the client ifthe client is informed ofthat fact and consents and the arrangement does not
compromise the lawyer's duty ofloyalty to the client. See Rule 1.8(f). For example, when an
insurer and-its-insured have conflicting interests in a matter arising from a liability insurance
agreement, and the insurer is required to provide special counsel for the insured, the arrangement
should assure the special counsel's professional independence. So also, when a corporation and
its directors or employees are involved in a controversy in which they have conflicting interests,
the corporation may provide funds for separate legal representation ofthe directors or employees
ifthe clients consent after consultation and the arrangement ensures the lawyer's professional

·independence.
Other Conflict Situations. Conflicts ofinterest in contexts other than litigation sometimes may
be difficult to assess". Relevant factors in determining whether there is potential for adverse effect
include the duration and intimacy ofthe lawyer's relationship with the client or clients involved,
the ftmctions being perfonned by the laWyer, the likelihood that actual conflict will arise, and the
likely prejudice to the client from the conflict ifit does arise. The question is often one of "
proximity and degree.
For example, a lawyer may not represent multiple parties in a negotiation whose interests are
fundamentally antagonistic to each other, but common representation is permissible where the
clients are generally aligned in interest even though there is some difference ofinterest among
them.
Conflict questions !!lay also arise in estate planning and estate administration. A lawyermay be
called upon to prepare wills for several family m~mbers, such as husband and wife, and,
depending upon the circumstances, a conflict ofinterest may arise. In estate administration the
identity ofthe client may be a question oflaw. The lawyer should make clear the relationship to
the parties involved.
A lawyer for a corporation or other organization who is also a member ofits board ofdirectors
should determine whether the responsibilities ofthe two roles may conflict. The lawyer may be
called on to advise the corporation in matters involving actions ofthe directors. Consideration
should be given to the frequency with which such situations may arise, the potential intensity of
the conflict," the effect ofthe lawyer's resignation from the board, and the possibility ofthe
corporation's obtaining legal advice from another lawyer in such situations. Ifthere is material
risk that the dual role will compromise the lawyer's independence ofprofessional judgment, the
lawyer,should not serve as a director.
Conflict Charged by an Opposing Party. Resolving questions ofconflict ofinterest is
primarily the responsibility ofthe lawYer undertaking the representation. In litigation, a court
may raise the question when there is reason to infer that the lawyer has neglected the
responsibility. In a criminal case, inquiry by the court is generally required when a lawyer
represents multiple defendants. See MCR 6. 10HC)(4). Where the qonflict is such as clearly to
call in question the fair or efficient administration ofjustice, opposing counsel may properly
raise the question. Such an objection should be viewed with caution, however, for it can be
misused as a technique ofharassment. See Scope, ante.· "
(
(
StaffComment
The 1989 amendment inserts a phrase (lithe relationship with")that was part ofRule 1.7(a)(l) of
the American Bar Association's Model Rules, but which was omitted when Rule 1.7 was
originally promulgated by the Michigan Supreme Court.
Rules ofProf. Conduct, MRPC 1.7
MlRMRPC 1.7
END OF DOCUMENT
Copr. (C) West 2003 No Claim to Orig. U.S. Govt. Works
(

COMMON CONFLICTS OF INTEREST
IN ESTATE ADMINISTRATION
Most conflicts ofinterest arise in estate administration when
the personal representative has to make decisions regarding
expense allocations, tax deductions and distributions.
Other common situations resulting in actual or potential
conflicts ofinterest include:
a. The attorney also acts as the fiduciary.
b. The method ofallocating additional federal estate taxes
between beneficiaries.
(
" - .. ,,/
c. The timing ofthe distribution ofthe estate affecting the
beneficiaries' tax planning.
d. The distribution ofassets in equal amol.l.nts but of
dissimilar assets to equal beneficiaries.
e. The selection ofthe fiscal year for the estate, which
would have tax ramifications for both a surviving
spouse and the other beneficiaries.
f. The spouse's election to take his or her share under the
will, or the forced share.
g. The allocation ofadministrative expenses among the
decedent's fiduciary income tax or the estate tax return,
which would benefit the surviving spouse, the income
beneficiaries or the principal beneficiary..
c_ ..)

MRPC1.8
WEST'S MICHIGAN RULES OF COURT
MICHIGAN COURT RULES OF 1985
MICIDGAN'RULES OF PROFESSIONAL CONDUCT
CLIENT-LAWYER RELATIONSIDP
Copr. © West Group 2003. All rights reserved.
Current with amendments received through January 1,2003
(
RULE 1.8 CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS
(a) A lawyer shall not enter into a business transaction with a client" or lmowingly acquire an
ownership, possessory, security, or other pecuniary interest adverse to a client unless:
(l) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to
the client and are fully disclosed and transmitted in writing to the client in a manner that can be
reasonably understood by the ,client;
(2) the client is given a reasonable opportunity to seek the advice ofindependent counsel in the
transaction; and
(3) the client consents in writing thereto.
(b) A lawyer shall notuse information relating to representation ofa client to the disadvantage of
the client unless the client consents after consultation, except as permitted or required by Rule
1.6 or Rule 3.3.
(c) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer
as parent, cIllld,·sibling, or spouse any substantial gift from a client, including a testamentary
gift, except where the client is related to the donee.
(d) Prior to the conclusion ofrepresentation ofa client, a lawyer shall not make or negotiate an ("
agreement giving the lawyer literary or media rights to a portrayal or account based in substan#al ' ,
part on information relating to the representation.
(e) A lawyer shall not provide financial assistance to a client in connection with pending or
contemplated.litigation, except that ' '
(1) a lawyer may advance court costs and expenses oflitigation, the repayment ofwhich shall
ultimately be the responsibility ofthe client; and
'
(2) a lawyer representing ali indigent client may pay court costs and expenses oflitigation on
behalfofthe client.
(I) A lawyer shall not accept compensation for representing a client from one other than the
client unless:
(l) the client consents after consultation;
(2) there is no interference with the lawyer's independence ofprofessional judgment or with the
client-lawyer relationship; and
(3) information relating to representation ofa client is protected as required by Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate
settlementofthe claims ofor against the clients, or, in a criminal case, an aggregated agreement
as to guilty or nolo contendere pleas, unless each client consents after consultation, including
disclosure ofthe existence and nature ofall the claims or pleas involved and ofthe participation
ofeach person in the settlement.
(h) A lawyer shall not:
(l) make an agreement prospectively limiting the lawyer's liability to a clientJor malpractice
unless permitted by law and the client is independently represented in making the agreement; or (
(2) settle a claim for such liability with an unrepresented client or former client without first .
advising that person in writing that independentrepreseiltation is appropriate in connection
therewith.
(i) A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a

client in a representation directly adverse to a person whom the lawyer mows is represented by
the other lawyer except upon consent by the client after consultation regarding the relationship.
G) A lawyer shall not acquire a proprietary interest in the cause ofaction or subject matter of
litigation the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a liengranted by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a· reasonable contingent fee in a civil case, as pennitted by Rille 1.5
and MCR 8.121.
Comment
l)
Transactions Between Client and Lawyer. As a general principle, all transactions between
client and lawyer should be fair and reasonable to the client. fu such transactions a review by
independent counsel on behalfofthe client is often advisable. Furthermore, a lawyer may not
exploit information relating to the representation to the client's disadvantage. For example, a
lawyer who has learned that the client is investing in specific real estate may not, without the
client's consent, seek to acquire nearby property where doing so would, adversely affect the
client's plan for investment. Paragraph (a) does not, however, apply to standard commercial
transactions between the lawyer and the client for products or services that the client generally
markets to others, for example, banking or brokerage services, medical services, products
manufactured or distributed by the client, and utilities' services. fu such transactions, the lawyer
has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary
and impracticable.
A lawyer may accept a gift from a client ifthe transaction meets gyneral standards offairness.
For example, a simple gift such as a present given at a holiday or as a token ofappreciation is
permitted. Ifeffectuation ofa substantial gift requires preparing a legal instrument such as a will
or conveyance, however, the client should have the detached advice that another lawyer can '
provide. Paragraph (c) recognizes an exception where the client is a relative ofthe donee or the
gift is not substantial.
Literary Rjghts. An agreement by which a lawyer acquires literary or media rights concerning
the conduct ofthe representation creates'a conflict between the interests ofthe client and the
personal interests ofthe lawyer. Measures suitable in the representation ofthe client may detract
from the publication value ofan account ofthe representation. Paragraph (d) does not prohibit a
lawyerrepresenting a client in a transaction concerning literary property from agreeing that the
lawyer's fee shall consist ofa share in ownership in the property, ifthe arrangement conforms to
Rule 1.5 and paragraph (j).
Person Paying for Lawyer's Services. Paragraph (f) requires disclosure ofthe factthat the
lawyer's services are being paid for by a third party. Such an arrangement must also conform"to
the requirements ofRule 1.6 concerning confidentiality and RUle 1.7 concerning conflict of
interest. Where the client is a class, consent may be obtained onbehalfofthe class by courtsupervised
procedure.
Limiting Liability. Paragraph (h) is not intended to apply to customary qualifications and
limitations in legal opinions and memoranda.
Family Relationships Between Lawyers. Paragraph (i) applies to related lawyers who are in
different firms. Related lawyers in the same finn are governed by Rules 1.7, 1.9, and .J.lO. The
disqualification stated in paragraph (i) is personal and is not imputed to members offirms with
whom the lawyers are associated.
Acquisition ofInterest in Litigation. Paragraph (j) states the traditional general rule that
lawyers are prohibited from acquiring a proprietary interest in litigation. This general rule, which
has its basis in common-law champerty and maintenance, is subject to specific exceptions
developed in decisional law and continued in these rules, such as the exception for reasonable
contingent fees set forth in Rule 1.5 and the exception for certain advances ofthe costs of
litigation set forth in paragraph (e).

Sexual Relations with Clients. After careful study, the Supreme Court declined in 1998 to adopt
a proposal to amend Rule 1.8 to limit sexual relationships between lawyers and clients. The
Michigan Rules ofProfessional Conduct adequately prohibit representation that lacks
competence or diligence, or that is shadowed by a conflict ofinterest. With regard to sexual
behavior, the Michigan Court Rules provide that a lawyer may be ~scjplinedfor "conduct that is
contrary to justice, ethics, honesty, or good morals;" MGR9.104f3).Further, theLegislature has
enacted criminal penalties for certain types ofsexual misconduct. In this regard, it should be
emphasized that a lawyer bears a fiduciary responsibility toward the client. A lawyer who has a
conflict ofinterest, whose actions interfere with effective representation, who takes advantage of
a client's vulnerability, or whose behavior is immoral risks severe sanctions under the existing
Michigan Court Rules and Michigan Rules ofProfessional Conduct.
(
[Comment amended effective October 15, 1998.]
Rules ofProf. Conduct, MRPC 1.8
:MI R MRPC 1.8
END OF DOCUMENT
Copr. (C) West 2003 No Claim to Orig. U.S. Govt. Works
(
(

MRPC 1.9
WEST'S MICHIGAN RULES OF COURT
MICHIGAN COURT RULES OF 1985
MICHIGAN RULES OF PROFESSIONAL CONDUCT
CLIENT-LAWYER RELATIONSHIP
Copr. © West Group 2003. All rights reserved.
Current with'amendments received through January 1,2003
RULE 1.9 CONFLICT OF INTEREST: FORMER CLIENT
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent
another person in the same or a substantially related matter in which that person's interests are
materially adverse to the interests ofthe former client unless the former client consents after
consultation.
(b) Unless the former client consents after consultation, a lawyer shall not lmowingly represent a
person in the same or a substantially related matter in which a firm with which the lawyer
formerly was associated has previously represented a client
(1) whose interests are materially adverse to that person, and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is
material to the matter.
(c) A lawyer who has formerly represented aclient in a matter orwhose present or former firm
has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage' ofthe' former client except
as Rule 1.6 or Rule 3.3 would permit cir require with respect to a client, or when the information
has become generally known; or
(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit
or require with respect to a client.
[Amended effective August 1, 1990.]
Comment
After termination ofa client-lawyer relati()nship, a lawyer may not represent another client
except in conformity with this rule. The principles in Rule 1.7 determine whether the interests of
the present and former client are adverse. Thus, a lawyer could not properly seek to rescind on
behalfofa new client a contract drafted on behalfofthe former client. So also a lawyerwho has
prosecuted an accused person could notproperly represent the accused in a subsequent civil
action against the government concerning the same transaction.
The scope ofa "matter" for purposes ofthis rule may depend on the facts ofa particular situation
or transaction. The lawyer's involvement in a matter can also be a question ofdegree. When a
lawyer has been directly involved in a specific transaction, subsequent representation ofother
clients with mat~riallyadverse interests clearly is prohibited. On the ,other hand, a lawyer who
recurrently handled a type ofproblem for a former client is not precluded from later representing
another client in a wholly distinct problem ofthat type even though the subsequent
representation involves a position adverse to the prior client. Similar considerations can apply to
thereassignment ofmilitary lawyers between defense and prosecution functions within the same
military jurisdiction. The underlying question is whether the lawyer was so involved in the
matter that the subsequent representation can be justly regarded as a changing ofsides in the
matter in question.

Lawyers Moving Between Firms. When lawyers have been associated in a firm but then end
their association, the problem is more complicated. First, the client previously represented must
be reasonably assured that the principle ofloyalty to the'client is not compromised'. Second, the (
rule ofdisqualification should not be so broadly cast as to.preclude other persons from having
reasonable choice oflegal counsel. Third, .the rule ofdisqualification should not unreasonably
hamper lawyers from forming new associations and taking on new clients after having left a
previous association. In this connection, it should be recognized that today many lawyers
practice in finns, that many, to some degree, limit their practice to one field or another, and that
many move from one association to another several times in their careers. Ifthe concept of
imputed disqualification were applied with unqualified rigor, the result would be radical ­
curtailment ofthe opportunity oflawyers to move from one practice setting to another and ofthe
opportunity ofclients to change counsel.
Reconciliation ofthese competing principles in the past has been attempted under two rubrics.
One approach has been to seek rules ofdisqualification per se. For example, it has been held that
a partner in' a law firm is conclusively presumed to have access to allconfidences concerning all
clients ofthe firm. Under this analysis, ifa lawyer has been a partner in one law fum and then
becomes a partner in another law finn, there is a presumption that all confidences mown by a
partner in the first firm are known to all partners in the second fum. This presumption might
properly be applied in some circumstances, especially where the client has been extensively
represented, but may be unrealistic where the client was represented only for limited pmposes.
Furthermore, such a rigid rule exaggerates the difference between a partIier and an associate in
modem law firms.
The other rubric .formerly used for dealing with vicarious disqualification is the appearance of
impropriety proscribed in Canon 9 ofthe Michigan Code ofProfessional Responsibility. Two
problems can arise under this rubric. First, the appearance ofimpropriety might be understood.to (
include any new client-lawyer relationship thatmight make a former client feel anxious. Ifthat
meaning were adopted, disqualification would become little more than a question ofsubjective
judgment by the former client. Second, since "impropriety" is undefined, the term "appearance of
impropriety" begs the question. Thus, the problem ofimputed disqualification cannot readilybe
resolved either by simple analogy to a lawyer practicing alone or by the very general concept of
appearance ofimpropriety. .
A rule based on a functional analysis' is more appropriate for determining the questi9n of
vicarious disqualification. Two functions are involved: preserving confidentiality and avoiding
positions adverse to a client.
Under Rule 1.1O(b), screening may be employed to preserve the confidences ofa client when a
lawyer has moved from one finn to another. Rule 1.1O(b) applies notjust to cases in which a
lawyer's present and former firms are involved on the date the lawyer moves. T4e paragraph also
applies where the lawyer's present firm later wishes to enter a case from which the lawyer is
barred because ofinformation acquired while associated with the prior firm.
Confidentiality. Preserving confidentiality is a question ofaccess to information. Access to
information, in tum, is essentially a question offact in particular circumstances. The
detennination ofthat question offact can be aided by inferences, deductions, or assumptions that .
reasonably may be made about the way in which lawyers work together. A lawyer may have
general access to files ofall clients ofa law firm and may regularly participate in discussions of
their affairs; it should be inferred that such .a lawyer in fact is privy to all infonnation about all
the fum's clients. In contrast, another lawyer may have access to the files ofonly a limited
number ofclients and participate in discussion ofthe affairs ofno other clients; in the.absence ~f (
infonnation to the contrary, it should be inferred that such a lawyer in fact is.privy to information .
about the clients actually served but not those ofother clients.
Application ofparagraph (b) depends on a situation's particular facts. In any such inquiry, the
burden ofproofshould rest upon the lawyer whose disqualification is sought.

Rule 1.1O(b), incorporating paragraph (b) ofthis rule, operates to .disqualify the firm only when
the lawyer involved has actuai knowledge ofinformation protected by Rules 1.6 and 1.9(c).
Thus, ifa lawyer while with one firm acquired no Imowledge ofinformation relating to a
particular client ofthe finn, and that lawyer laterjoined another firm, neither the lawyer
individually nor the second finn is disqualified from representing another client in the same or a .
related matter even though the interests ofthe two clients·conflict. See Rule 1.10(c) for the
restrictions on a firm once a lawyer has terminated association with the firm.
Independent ofthe question ofdisqualification ofa firm, a lawyer changing professional
association has a continuing duty to preserve confidentiality ofinformation about a client
formerly represented. See Rule 1.6.
Adverse Positions. The second aspect ofloyalty to a client is the lawyer's obligation to decline
subsequent representations involving positions adverse to a fonner client arising in substantially
related matters. This obligation requires abstention from' adverse representation by the individual
lawyer involved, but does not properly entailabstention ofother lawyers through imputed
disqualification. Thus, ifa lawyer left one firm for another, the new affiliation would not
preclude the firms involved from continuing to represent clients with adverse interests in the
same or related matters, so long as the conditions ofRule 1.1O(b) and (c) have been met.
Infonnation acquired by.the lawyer in the course ofrepresenting a client may not subsequently
be used or revealed by the lawyer to the disadvantage ofthe client. However, the fact that a
lawyer has once served a client does not preclude the lawyer from using generally mown
information about that client when later representing another client.
Disqualification from subsequent representation is for the protection ofclients and can be waived
by them. A waiver is effective only ifthere is disclosure ofthe circumstances, including the
lawyer's intended role in behalfofthe new client.
With regard to an opposing party raising a question ofconflict ofinterest, see comment to Rule
1.7. With regard to disqualification ofa finn with which a lawyer is or was formerly associated,
see Rule 1.10.
Rules ofProf. Conduct, MRPC 1.9
:MI R MRPC 1.9
END OF DOCUMENT
Copr. (C) West 2003 No Claim to Orig. U.S. Govt. Works
(
"--..

II.B. "THE·FORMATION OF THE ATTORNEY;;.·
CLIENT RELATIONSHIP"
(
Client screening.- avoiding the "problem" client-
(Knowing·when to say "No") .
Exhibit:
Clients to avoid
(
(

(
CLIENTS TO AVOID
AVOID ANY POTENTIAL CLIENT THAT:
• Avoid the "I want to get even" client
• Avoid the "I must win" client
• Avoid the "It's the principle" client
• Avoid the "My lastlawyer was a bum!" client
• Avoid the client who wants to be "hands on" and manage the case
for you
• Avoid the lYing client
• Avoid the client who basicallyjust needs a secretary or a trust
account
• Avoid the client whose expectations cannot be controlled
• Avoid the client who cannot or will not pay you
• Avoid any client that your instincts tell you to avoid

II. B. "THE FORMATION OF THE ATTORNEY ­
CLIENT RELATIONSHIP"
(
Accepting Representation and Defming the scope
ofrepresentation
Exhibit:
~ MRPC.l.2 Scope ofRepresentation .
Divorce filing checklist
(
c

MRPC1.5
RULE 1.5 FEES
WEST'S MICHIGAN RULES OFCOURT
MICIDGAN COURT RULES OF 1985
MICIDGAN RULES OF PROFESSIONAL CONDUCT
CLIENT-LAWYER RELATIONSHIP
Copr. © West Group 2003. All rights-reserved.
Current with amendments received through January 1, 2003
(a) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly
excessive fee. A fee is clearly excessive when, after a review ofthe facts, a lawyer ofordinary
prudence would be left with a definite -and finn conviction that the fee is in excess ofa
reasonable fee. The factors to be considered in determining the reasonableness ofa fee include
the following:
(1) the time and labor required, the novelty and difficultY ofthe questions involved, and the skill
requisite to perform the legal service properly; .
(2) the likelihood, ifapparent to the client, that the acceptance ofthe particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal seryices;
(4) the amount involved and the results obtained;
(5.) the time limitations imposed by the client orby the circumstances;
(6) the nature and length ofthe professional relationship with the client;
(7) the experience, reputation, and ability ofthe lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) When the lawyer has not regularly represented the client, the basis orrate ofthe fee shall be
communicated to the client, preferably in writing, before or within a reasonable time after
commencing the representation.
(c) A fee may be contingent on the outcome ofthe matter for which the service is rendered;
except in a matter in which a contingent fee is prohibited by paragraph (d) orby other law. A
contingent-fee agreement shall be in writing and shall_state the method by which the fee is to be
determined. Upon conclusion ofa contingent-fee matter, the lawyer shall provide the client with
a written statement ofthe outcome ofthe matter and, ifthere is a recovery, show the remittance
. to the client and the method ofits determination. See also MCR 8.121 for additional
requirements applicable to_ some contingent-fee agreements.
(d) A lawyer shall not enter into an arrangement for, charge, or collect a contirigent fee in a .
domestic relations matter or in a criminal matter. .
(e) A division ofa fee between lawyers who are not in the same :fum may be made only if:
(1) the client is advised ofand does not object to the participation ofall the lawyers involved;
artd
(2) the total fee is reasonable.
[Amended effective April 1, 1998.]
Comment
(
'---
Basis or Rate ofFee. When the lawyer has-regularlyrepresented a client, they ordinarily will
have evolved an understanding concerning the basis or rate ofthe fee. In a new client-lawyer
relationship, however, an understanding as to the fee should be promptly established. It.is not
necessary to recite all the factors that underlie the basis ofthe fee, but only those that are directly
involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly
charge or a fixed amount or an estimated amount, or to identify the factors that may be taken into

account in finally fixing the fee. When developments occur during the representation that render
an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. A
written statement concerning the fee redl,lc~S the possibility ofmisunderstanding. Furnishing the
client with a simple memorandum or a cqpy ofthe lawyer's customary fee schedule is sufficient
ifthe basis or rate ofthe fee is set forth.
Terms ofPayment. A lawyer may require advance payment ofa fee, but is obliged to return any
unearned portion. See Rule 1.16(d). A lawyer may accept property in payment for services, such
as an ownership interest in an enterprise, providing this does not involve acquisition ofa
proprietary'interest in the cause ofaction or subject matter ofthe litigation contrary to Rule
1.8(j). However, a fee paid in property instead ofmoney may be subject to special scrutiny
because it involves questions concerning both the value ofthe services and the lawyer's special
lmowledge' ofthe value ofthe property. '
An agreement may not be made whose terms might induce the lawyer improperly to curtail
services for the client or perform them in a way contrary to the client's interest.. For example, a
lawyer should not enter into an agr,eement whereby services are to be provided only up to a
stated amount when it is fore~eeablethat more extensive services probablywill be required,
unless the situation is adequately explained to the client. Otherwise, the client mighthave to
bargain for further assistance in the midst ofa proceeding or transaction. However, it is proper to
define the extent ofservices in light ofthe client's ability,to pay. A lawyer should not exploit a '
fee arrangement based primarily on hourly charges by using wasteful procedures. When thereis
doubt whether a contingent fee is consistent withtheclient's best interest, the lawyer,should offer
the client alternative bases for the. fee and explain their implications. ApplicableJaw may impose
limitations on contingent fees, such as a ceiling on the percentage. See MCR 8.121.
Division ofFee. A division offee is a single billing toa client covering the fee oftwo or more,
,lawyers who are not in the same fum. A division. offee facilitates aSsociation ofmore than one
lawyer in a matter in which neither alone could serve the client as well, and most often is, used
when the fee is contingent and the division is between a refening lawyer and a trial specialist.
Paragraph (e) permits the lawyers to divide a fee on agreement between the participating lawyers
ifthe client is advised and does not object. It does not require disclo~ureto the client ofthe share
that each lawyer is to receive.
(
c'·
Disputes Over Fees. Ifa procedure has been established for resolution offee disputes, such as
, an arbitration or mediation procedure established by the bar, the lawyer should conscientiously
consider submitting to it. Law may prescribe a procedure for determining a lawyer's fee, for.
example, in representation ofan executor or administrator, ofa class,or ofa person entitled to a
reasonable fee as part ofthe measure ofdamages. Thelawyer entitled to such a fee and a lawyer
representing another party concerned with the fee should comply with the· prescribed procedure.
StaffComment to 1998 Amendment
The amendment ofparagraph c, adopted February 5, 1998, and effective April 1, 1998, clarified
that this rule's provisions apply to all contingent fee agreements, notjust to those covered by
MCR 8.121.
Rules ofProf Conduct, :MRPC 1.5
MIRMRPC 1.5
END OF DOCUMENT
(
Copra (C) West 2003 No Claim to Orig. U.S. Govt. Works

TYPICAL PROVISIONS
IN A RETAINER AGREEMENT
The undersigned, hereinafter "the client", hereby retains Nichols & Eberth, P.C.,
hereinafter "the attorney" and/or "the firm", as his or her legal counsel in the following
domestic relations matter:
The client aclmowledges that this Hourly Retainer Agreement has been entered
into prior to the attorney accepting the client's case.
It is agreed that the attorney shall be.compensated for services rendered upon an
hourly basis as follows:
Initial Retainer Fee: $ payable immediately, which shall be
credited to the client's account and the client agrees and understands that the Initial
Retainer Fee is a down payment from which the attorney shall draw his fees at the hourly
rate set forth below. Unless otherwise specifically agreed in writing, the Initial Retainer
Fee is not intended to cover all ofthe fees that may be charged by the attorney in his or
her representation of the client with regard to the above stated matter. In fact, it is
anti

the attorney, legal assistant and law clerk including telephone conferences with the client is 0.20
hours (12 minutes).
(
Payment ofFees: Itis further agreed and understood by the client that the attorney shall
draw his hourly fee against the Initial Retainer Fee. The attorney shall furnish the client with a
monthly statement for services rendered. After the initial retainer has been exhausted the client
agrees to pay said statement in full within five days ofreceipt ofsame. Should the clie~t have
any questions or concerns regarding the monthly statement, the client hereby agrees to contact
the attorney within ten days ofthe client's receipt ofthe monthly statement
Costs and Expenses: Any and all costs and expenses incurred by the attorney in the
above matter, including,· but not limited to, filing fees, service· fees, expert witness fees,
deposition fees, transcript fees, employment record fees, messenger fees, copying, postage, fax,
telephone and mileage expenses, shall be paid by the client to the attorney upon receipt of a
statement from the attorney's office. The client hereby acknowledges the receipt. ofa listing of
some ofthe typical costs and expenses incurred by the attorney and· further acknowledges that
these costs and expenses are subject to change without notice. .
Withdrawal: The client .further hereby agrees to pay the reasonable attorney fees
incurred and the costs expended by the attorney to withdraw as the attorney ofrecord from this
matter should it become necessary for the attorney to do so.
Increase in Hourly Rate: The client hereby also agrees to an increase in the ho~lyrate
of$S.OOper hour effective upon each six month anniversary ofthe date ofthis agreement.
(
Additional Services: It is hereby understood and agreed by the client that ifthe case is
contested in any respect, or if it nf?cessitates any legal services which are in addition to those
hereinabove specified, that the attorney shall be entitled to compensation at the hourly rate stated
above for all services rendered.
Specific Attom~y:
The client understands and agrees that the client has retained
Nichols & Eberth,P.C. to represent him or her in this matter and not a specific attorney in this
firm. Although the fum will endeavor to have one attorney handle this matter throughout until it
is resolved, there are occasions (such as trial, vacation, etc.) when an attorney with this firm
other than the usual attorney will be handling various aspects ofthis matter.
Appeals: The client understands and agrees that the provisions of this retainer
agreement relative to fees and costs are limited to the prosecution oflitigation ofthis matter at
the trial court level. fu the event an appeal from any judicial determination is required, further
agreement shall be made between the parties as to fees and costs.
Cooperation of Client: The client agrees to keep the attorney advised ofhislher c~ent ('.
address, phone number, and any additional facts relating to the client's case.. The client further .
agrees to cooperate in the preparation and completion ofthis matter for which the attorney has
been retained. .
2

,
I
Consensual Lien to Insure Payment: The Client hereby gives the :firm a consensual
lien on all assets and support (except child support) awarded to the client in any settlement
and/or judgment of divorce and/or judgment for separate maintenance in the full amount owed
to the:firm by the client including all fees and costs associated with the firm's pre-judgment and
post-judgment collection efforts as described in paragraph (g) and (h) above.
This Retainer Agreement constitutes the entire agreement between the client and ~e firm
and no verbal agreements or addendums, modifications or revisions shall have any force or
effect unless in writing and signed by the client and ~e attorney. The failure of the :fum to
enforce any rights to which it is entitled pursuant to this Retainer Agreement against the client in
the event of any breach shall not be deemed a waiver by the firm of its right to subsequent
enforcement ofits rights to said breach or to any subsequent or future breach.
Acknowledgement: By signature ofthis agreement, the client aclmowledges that he/she
has read and understands each and every word of this Domestic Relations Hourly Retainer
Agreement prior to signing it and further aclmowledges the receipt of a copy ofthis Domestic
Relations Hourly Retainer Agreement.
Dated on this day of -', 200_.
CLIENT:
ATTORNEY AND FORTHE FIRM:
Receipt ofRetainer Fee
________---:hereby aclmowledges the receipt ofa retainer fee of
$ , paid as follows:
_ Cash; _ Check (# );
_ Credit Card (Type & # ).
Date: By: _
( .
"-. __.-
3

NICHOLS & EBERTH, P.C.
ATTORNEYS AND COUNSELORS ATLAW
----------------I(
DEARBORN OFFICE".
22374 GARRISON
DEARBORN, MICIDGAN 48124
(313) 561-5700 (Telephone)
(313) 562-1100 (Facsimile)
E-Mail: N&E@MichiganAttorney.com
CHARLES L. NICHOLS
MICHAEL D. EBERTIr
MICHAEL R. SHAFFER
GINA E. POLLEY
• Also Admitted in New York
BIRMINGHAM OFFICE
401 s. WOODWARD, STE 430
BIRMINGHAM, MICHIGAN 48009
(248) 952-1700 (Telephone)
(313) 562-1100 (Facsimile)
E-Mail: N&E@Mic!JiganAttorney.com
LISTING OF COSTS & EXPENSES"
Subject to Change Without Notice
Mileage
$' per mile to _
Messenger Charge
$_-"per hour plus mileage and parking
Copying
$ per page for documents over five ,
pages;,
$ 0.00 No charge for documents five pages
or less;
C'
Facsimile
$__for first page
$ for each additional page
Long Distance
$ 0.00 No charge for area codes 313, 734,
248 and 810;
$ per minute for all other area codes
I, the undersigned, hereby,aclmowledge the receipt of a copy of this Listing of Costs &
Expenses. ,
Date:
_
(Client Name)
(

II. B. "THE FORMATION OF THE ATTORNEY ­
CLIENT RELATIONSHIP"
Exhibit(s)..;.
Accepting· Representation and
Communication about billing
Example ofStatement ofAttorney Services,
Costs and Expenses
Reminder letter
Timesheet

Example
··of
STATEMENT FOR ATTORNEY SERVICES
COSTS AND EXPENSES
(

11-26 Meeting with client. Reviewed draft ofConsent Judgment ofDivorce
and noted changes/revisions. Made changes and revisions to document. .50
11-27 Review ofcompleted Consent Judgment ofDivorce. Drafted letter
to Plaintiffs counsel regarding Consent Judgment. .60
12-09 Received notice ofsettlement conference/trial for 12/17. Copy sent to
client with cover letter. .20
12-10 Receipt and review ofletter from opposing counsel regarding ourproposed
Consent Judgment. Discussed proposed changes with client. .40
12-17 Traveled to Circuit Court. Met with client. Then met with opposing
counsel and Plaintiff Resolved all issuesexcept for two. Met with
Judge and opposing counsel in chambers. Judge suggested resolution
oftwo remaining issues. Further negotiations with client and opposing
counsel. Agreement reached. Settlement placed on the record. 3.5
/~-
(
\
12-22 Revised Consent Judgment ofDivorce to confOlm with settlement
placed on the record. Sent a copy to opposing counsel via facsimile.
Telephone conference with opposing counsel. Revised judgment is
acceptable. ' 1.0
12-23 Met with client in office. Reviewed final Judgment with client. We both
signed it. Sent signed copies to opposing counsel. .50
12-27 Received completely signed copies ofConsent Judgment ofDivorce.
. Gaveto messenger for entry. .20
12-28 Messenger: Traveled to Circuit Court. Had Consent Judgment entered.,
Return travel to office with true copies. 1.0
12-29 Sent true c~pies ofConsent Judgment to opposing counsel and to client.
Closed this matter. .40
Expenses:
10-10 Mileage to Circuit Court to file divorce answer and objections to ex parte
orders $14.40
Parking $ 11.00
'l)
11-27 Postage: mailing ofproposed Consent Judgment ofDivorce $ 2.00
12-17 Mileage to County Circuit Court $14.40
"

12-22
12-28
12-29
Parking
Facsimile
Mileage to County Circuit Court
Parking
Postage: mailing six copies ofentered Consent Judgment ofDivorce
FEES & EXPENSES:
Attorney Time: 15.85 hours @ $185.00 per hour =
Messenger Time: 3.00 hours @ $60.00 per hour =
Expenses:
TOTAL AMOUNT:
$11.00 (
$12.50
$14.40
$ 11.00
$12.00
$ 2,932.25
$ 180.00
$ 102.70
$ 3,214.95
FEES & EXPENSES
Attorney Time: 15.85 hours @ $230.00 per hour=
Messenger Time: 3.00 hours @ $60.00 per hour =
Expenses:
TOTAL AMOVNT:
$ 3,645.50
$ 180.00
$ 102.70
$ 3.928.20
(
(

Dear Mr./Ms.
_
As you will recall, important provisions ofthe retainer agreement that you signed are as follows:
"After the initial retainer has been exhausted the client agrees to pay
said statement in full within five days ofreceipt ofsame."
"If the client does not pay said statement in full within five days as
agreed, the attorney, in his or her sole discretion, may withdraw from
representation of the client or may require that the client pay an
additional retainer fee before providing further legal services."
. More than five days have passed since you received our invoice. However, we have yet to
receive your. payment. Accordingly and pursuant to the retainer agreement, a $ overdue
~, processing charge and a late fee. As such, you now owe this firm $
/ ", ---
\, )
Ifyour full payment is on its way to us, then please disregard the rest of this letter and we
thank you for your payment. However, ifthis is not the case, then be advised that we have found that
it is not in your best interest for us to allow an unpaid balance to continue. Accordingly and
unfortunately, if we do not receive full payment from you by , then we wiil be forced to
discontinue providing legal services to you and if necessary, file a motion to withdraw as your
attorney ofrecord.
If you should have any questions regarding this, you are welcome to call me at
(313) _
Sincerely,
1

CLN_·
CLN*_
CN
CLNC_
·.CLNA_
Date:
MDE
MDE*
ME
MDEC
MDEA
MRS
MRS*
-
MRSC'
. MRSA
'GEP
GEP.*
-
-GEPC
GEPA
-
Pot New C/lnitial·Personnel
Cont..Legal Ed .. ' - Bar Activities
Organizational Redwood Assoc.
P.ersonal
KAS KLL 'MRR . HI MG
-
KAS* KLL*· MRR* HI* MG*
- -
:RASC KLLC Mimc HIC
KASA KLLA MRRA RIA
Co~unity Service
Secretarial·
E'inancia1
Marketing'
Miscellaneous
C' ",
Mediation
Pro Bono
Collection
Case Conf
------------------Time:------------------
Client Name: Matter: ---:. --...;. _
Activity Descrlp,tion:
See 'other side
__ ~ Receipt and review of financial,.biliing and/or collection reports.
RX ·Rec. and rev of daily phone reports.
-- '.
ED Retrieved. and .distributed em~ils.
EX Rec and rev.of ernails from Family Law Section/State'Bar/Lawyers Wkly
RL Receipt and review of Detr~it' Legal News and/or LaWyers We~kly.·
AL Revised activity. list.
BC Birthday cards.
NC NO CHARGE.
__ RR Receipt and review of -------------.......:.----------~---,-/.
. TC Telephone conference with
TP Telephone c.onference with potential client,
TCC Telephone call from client.
TCT T.elephone call to client.
_ TO Telephone conference with 'opposing atty. -------------...;..-----
_ LEFT Telephoned and left message for _--'- ~ __'_ _
_ . IN Initial meeting with potential client __~~----------------------
_ MEET Meeting held with client in office -----------------
M Memo to __-:- ..:....- _
DL Drafted ......:... _
TRAV Traveled to --'- _
IOC In office conference
------------------..:.------_--:._-
At 'home work and/or after hours work
C'
_______-'-- -----1(' .L

Date:
~.I . """'fent came in via:
__Yellow pages
NICHOLS & EBERTH, P.C. File #
TV Ad
Client is a fonner client.
__ WebPage*
Name ofClient:
__ Referred by a client (name :-- -»
, __ Referred by Judge (name....;.:...· )
__ Referred by Lawyer (name )
__ Other (explain )
*Route to our web page: __ directly;__Lawyers.com;__attomeylocate.com; __attomeyfind.com;
__ divorcesource.com;__other .:.... _
'*YourMAILING address:
Residence Address:
(if different than
mailing address)
Number and Street:
City, State and Zip: .
Number & Street:
City, State and Zip:
Your Telephone Numbers:
Home:
Mobil: . ..:...- _
Pager:
_
Work:
. Fax: -'-_-'-- _
E-Mail:
Your date ofbirth: ---'-. Your present age:_' _
Your Social Security Number: Your driver's license number: ...,... _
Your employer's name: _. :-- _
~
Your employer's address: __~I ''--' "-- _
(~QUSE'S INFORMATION: Spouse's name:
_
I" Iuse's address: . _
Spouse's Telephone Numbers:
Home:
Mobil:
Pager:
Spouse's date ofbirtb:
Spouse's Social Security Number:
Spouse's employer's name:
_
_
_
_
Present age:
Worle
Fax:
E-Mail:
Spouse's driver:'s license number.
Spouse's employer's address: ._. _
~ CONTACT PERSON other than spouse: Name:
Contact person's relationsWp to you:
Contact person's address:
Contact person's teleplione: Home: Work: _
CHILDREN'S names and dates ofbirth: .
_
_
_
_
_
_
Is Marriage Counseling, Relationship Assessment or Divorce Mediation appropriate?
_
Name ofMatter:
THIS PORTION TO BE COMPLETED BY THE ATTORNEY
TIlis matter assigned to: CLN_'_._; MDE~ MRS. ; GEP _
:r-o, Cards & M List as :Mr. _ yes ~ no; Ms.:..... yes _no; Mr. & Mrs. _ yes
U y list for client: _ yes _ no; B-day list for spouse: _ yes _no.
Hourly rate quoted: ; Retainer quoted: _
Contingency case: SOL: _
~ Potential Defendants:
Arbitration Agreement: (signed? not signed? revoked?):
Referred out to
nn
no

DEARBORN OFFICE
22374 GARRISON
DEARBORN, MICHIGAN 48124
(313) 561-5700 (Telephone)
(313) 562-1100 (Facsimile)
E-MAIL N&E@MichiganAttomey.com
NICHOLS & EBERTH p.e
AITORNEY'S AND COUNSELORS AT LAW
CHARLES L. NICHOLS
MICHAEL D, EBERTH*
MICHAEL R. SHAFFER
GINA E. POLLEY
*Also Admitted in New York
Checklist of Potential Marital Assets and Liabilities
BIRMINGHAM OFFICE C.
401 S. OLD WOODWORD, STE 430
BIRMINGHAM, MICHIGAN 48009
(248) 952-1700 (Telephone)
(313) 562-1100 (Facsimile)
E-MAIL N&E@MichiganAttomey.com
Name:
____________________Date Completed:
_
Assets:
1. Bank accounts (list the type of account (checking, savings, etc), the institutions, account
numbers, in whose name the accountis held and current balances)
2. Certificates of Deposit, Treasury Bills, Savings Bonds, etc. (list institutions, account C
numbers, in whose name the account is held and current balances/values)
3. Stocks, bonds, mutual funds (list name of securities, number of shares, current values,
stock brokers)
4. Insurance policies, annuities (list companies, policy numbers, name of insured and present
cash values)
5. Trust funds C·

(
6. Cash
7. Real estate (including time sharing vacation condos) (list addresses, approximate values)
8. Automobiles, boats, aircraft, firearms, snowmobiles, motorcycles (describe item, ego
make, model, year, condition, name ofperson on title and approxiriJate'value)
9. Personal property, including pe~ona1 property ofparticular value, such as:
a) jewelry
b) rare coins, stamps, rugs
c) works ofart
d) antiques (furniture, automobiles, toys, etc.)
e)
f)
memorabilia (photographs and home movies of children, presents made by
children) .
other

10. Pensions (including 401K accounts)
(
11. Stock in company stock sharing plan
12. lR.A accounts (list. institutions, account n~bers, name of person.on the account and
current balances)
13. Loans (Where others owe you and/or your husband money)
(
14. Accounts receivable
15. Work in process
16. Work completed but not billed
(
17. Business interests

18. Patent rights
19. Copyright interests
20. Tax refunds
21. Judgments
22. Lawsuits
23. Damage/security deposits
24. Undergraduate/graduate degrees
. 25. All transfers ofproperty for the last five years, including gifts
26. Inheritances, including those likely to be received in the future

Liabilities: (list the person or entity to whom the debt is owed, the account number, whether (
the debt is in the husband's naD;le, the wife's name or joint, the account number and the current
balance owed)
1. Mortgages
2. Homee~~loans
3. .Land contracts
4. Personal loans
5. Auto loans
6. Promissory notes
7. Judgments
c

I
I
8. Child support arrearages
9. Alimony arrearages
10. Line of credit
11. Other debt (not including credit card or charge card - see next page for listing credit card
debt)
12. Credit card/charge card debt (For each credit card and charge card, list the nam~ of the .
account (Visa with Comerica), the person ~ whose name the account is registered
(husband, wife, joint), the account number and the balance owed. Please list all. credit card
and charge card accounts even if there is no balance owed and even if you haven't used
the account in years.
IN THE NAME
NAME OF BANK ACCOUNT OF BALANCE OWED
CREDITCARD NUMBER HUSBAND, WIFE
OR JOINT
/ ,
~,

IN THE NAME
-
NAME OF BANK ACCOUNT OF BALANCE OWED
CREDIT CARD NUMBER HUSBAND, WIFE
OR JOINT
(
..
DivorceJHandours to Clients/Asset-Liability List
L

NICHOLS & E:BERTH, P.C.
ATIORNEYS AND COUNSELORS AT LAW
(
DEARBORN OFFICE
22374 GARRISON
DEARBORN, MICBIGAN 48124
(313) 561-5700 (Telephone)
(313) 562-1100 (Facsimile)
. E-Mail: N&E@MichiganAttomey.com
CHARLES L. NICHOLS
MICHAEL D. EBERTIf
MICHAEL R. SHAFFER
GINA E. POI.J..EY
• Also AdmiUed in New York
BIRMlNGHAM OFFlCE
401 S. WOODWARD, SI'E 430
BIRMlNGHAM, MICHIGAN 48009
(248) 952-1700 (Telephone)
(313) 562-1100 (Facsimile)
E-Mail: N&E@MichiganAttomey.com ..
Child Custody Act of 1970
722.21 Short title 25.312(1)
Sec. 1: This act shall be known and may be cited as the "Child Custody Act of1970".
722.22 Dermitions
25.312(2)
Sec. 2: As used in this act:
(a)
(b)
(c)
"Child" means minor child and children.
."Agency" means any legally authorized, public or private organization, or
governmental until or official, whether ofthis state or county, concerned in
the welfare ofminor children, including a licensed child placement agency.
"Third person" means any individual other than a parent
722.23 Best interests ofthe child, factors 25.31~(3)
Sec. 3. "Best interest of the child" means the sum total of the following factors to be
considered, evaluated, and detennined by the court:
(a)
(b)
The love, affection, and other emotional ties existing between the parties
involved and the child.
The capacity and disposition ofthe parties involved to give the child love,
affection, and guidance and continuation ofthe educating and raising ofthe
child in its religion or creed, ifany. -
1

DIVORCEiHANDOUISIOIJU)CUSTODYAcr
(
2

MRPC 1.2
WEST'S MICIDGAN RULES OF COURT
MICIDGAN COURT RULES OF 1985
MICIDGAN RULES OF PROFESSIONAL CONDUCT
CLIENT-LAWYER RELATIONSHIP
, Copr. © West Group 2003. All rights reserved.
Current with amendments received through January 1, 2003
RULE 1.2 SCOPE OF REPRESENTATION
(a) A lawyer shall seek the lawful objectives ofa client through reasonably available means
permitted by law and these rules. A lawyer does not violate this rule by acceding to reasonable
requests ofopposing counsel that do not prejudice the rights ofthe client, by being punctual in
fulfilling all professional commitments, or by avoiding offensive tactics. A lawyer shall abide by
a client's decision whether to accept an offer ofsettlement ormediation evaluation ofa matter. In
a'criminal case, the lawyer sl!all abide by the client's decision, after consultation with the lawyer,
with respect to a plea to be entered, whether to waivejwy trial, and whether the client will
testify. In representing a client, a lawyer may, where permissible, exercise professional judgment
to waive or fail to assert a right or position ofthe client.
(b} A lawyer may limit the objectives oftbe repr.eseatatioD jfthe client consents aft~
consultation. I
(c) A lawyer shall not counsel a, client to engage, or assist a client, in conduct that the lawyer
knows is illegal or fraudulent, but a lawyer may discuss the legal consequences ofany proposed
course ofconduct with a client and may counselor assist a client to make a good-faith effort to '
determine the validity, scope, meaning, or application ofthe law. ,
(d) When a lawyer knows that a client expects assistance not permitted by the Rules 'of
Professional C~>nduct or other law, the lawyer shall consult with the client regarding the relevant
limitations on the lawyer's conduct
[Amended effective October 1, 1993.]
Comment
Scope ofRepresentation. Both the lawyer and the client have authority and responsibility in the
objectives and means ofrepresentation. The client has ultimate authority to determine the
pUIposes to be served by legal representation, within the limits imposed by law and the lawyer's
professional obligations. Within those limits, a client also has a right to consult with thelawyer
about the means to be used in pursuing those objectives. At the same time, a lawyer is not
required to pursue objectives or employ means,simply because a client may wish that the lawyer
do so. A clear distinction between objectives and means sometimes cannot be drawn, and in
many cases the client-lawyer relationship partakes ofajoint undertaking. In questions ofmeans, '
the lawyer should assume responsibility for technical and legal tactical issues, but should defer to
the client regarding such questionsas.the expense to be incurred and concern for third persons
who mightbe adversely affected. ,
In a case in which the client appears to be suffering mental disability, the lawyer's duty to abide
by the client's decisions is to be guided by reference to Rule 1.14.

Independence from Client's Views or Activities. Legal representation should not be denied to
people who are unable to afford legal services or whose cause is controversial or the subject of (
popular disapproval. By the same token, representation ~f a client, including representation by .
appointment, does not constitute an endorsement ofthe client's' political, economic, social, or
moral views or activities.
Services Limited in Objectives or Means. The objectives or scope ofservices provided by a
lawyer may be limited by agreement with the client orby the terms under which the lawyer's ,
services are made available to the client. For example, a retainer may be for a specifically
defined purpose. Representation provided through a legal-aid agency may be subject to
limitations on the types ofcases the agency handles. When a lawyer has been retained by an
insurer to represent an insured, the representation may be limited to matters related to the
insurance coverage. The terms,upon which representation is undertaken may exclude specific
objectives or means.. Such liriritations may exclude objectives or means that the lawyer reg~ds as
repugnant or imprudent.
An agreement concerning the scope ofrepresentation must accord with the Rules ofProfessional
Conduct and other law. Thus, the client may not be asked'to agreeto representation so limited in
scope as to violate Rule 1.1, or to surrender the right to terminate the lawyers services or the
rightto settle litigation that the lawyer might wish to continue.'
Illegal, Fraudulentand ProhibitedTransactions. A lawyer is required to gi:ve an honest
,opinion about the actual consequences that appear likely to result from a client's conduct. Tlle
factthat a clientUSes advice in a course ofaction that is illegal or fraudulent does not, ofitself, (~
make a lawyer aparty to the course ofaction. However, a lawyer may not knowingly assist a
client in illegal or fraudulent conduct. There is a critical distinction between presenting an
analysis oflegal aspects ofquestionable conduct andrecommending the means by which an
illegal act or fraud might be committed with impunity.
When the client's course ofaction has already begun and is continuing,the lawyers
responsibility is especially delicate. The lawyer is not permitted toreveal the client's
wrongdoing, except where permitted by Rule 1.6. However, the lawyer is required to avoid
furthering the purpose, for example, by suggesting how it might be concealed. A lawyer may not
continue assisting a client in conduct that the lawyer originally supposes is legally proper but
then discovers is illegal or fraudulent. Withdhi.walfrom the representation, therefore, may be
required.
Where the client is a fiduciary, the lawyer may be charged with special obligatiollS in dealings
with a beneficiary.
Paragraph (c) applies whether or not the defrauded party is a party to the transaction. Hence, a
lawyer should not participate in a sham transaction; for example, a transaction to effectuate
criminal or fraudulent escape oftax liability. Paragraph (c) does not preclude undertaking a
criminal defense incident to a general retainer for legal services to a lawful enterprise. The last
clause ofparagraph (c) recognizes that determining the, validity or interpretation ofa statute or
regulation may require a course ofaction involving disobedience ofthe statute orregulation or of
the interpretation placed upon it by governmental authorities.
Rules ofProf. Conduct, MRPC 1.2
MIR:MRPC 1.2 (
END OF DOCUMENT .
Copr. (C) West 2003 No Claim to Orig. U.S. Go~. Works

NICHOLS & EBERTH, p.e.
AlTONEYS AND COUNSELORS ATLAW .
-(
Di1~ORN OFFICE
22374 GARRISON
DEARBORN,MICIDGAN 48124
(313) 561-5700 (felephone) .
(313) 562-1100 (Facsimile)
. E-Mail: N&E@MichigaDAttorney~com
CHARLES L. NICHOLS
MICHAEL D: EBERrn"
MICHAEL R. SHAFFER
GINA E. POLLEY
"Also Admitted in New York
BIRMINGHAM OFFICE
401 s. WOODWRD, STE. 430
BIRMINGHAM, MICHIGAN 48009
(248) 952-1700 (Telephone)
(313) 562-1100 (Facsimile)
E-Mail: N&E@MichiganAttorney.com
DIVORCE FILING CHECKLIST
WHEN REPRESENTING PLAINTIFF
Date:
---------
Matter:
.Minor Children?
Yes
No
Yes No
Completed
.Complaint
\.
Summons (Wayne County generates its own)
Verified Statement
Friend ofthe Court Investigation to Determine Child Support
Motion for Ex Parte Personal Protection Order
Ex Parte Personal Protection Order
Ex Parte Order Restraining Both Parties from Depleting Assets
Ex Parte Order for InterimSupport
Ex Parte Order for Attorney Fees
First Set ofInterrqgatories & Request to Produce
Notice ofDuces Tecum Deposition with List Attached
Subpoena Oefendant's Employment Records (include in subpoena .
a request for accrued sick time and vacation time)

· ,
Subpoena Defendant'5Pension Records (ifnot included in
employment records; also prior employers were there is a vested (
pension) . .
Subpoena credit card/charge account applications and credit
card/charge account statements for last 18 months or as appropriate
Order TRW and other national credit reports/credit profiles (have
client sign authorization
"
Subpoena transaction records for any account which client does
not have records
Have marital home appraised
Have other real estate appraised
Have contents ofhome appraised
Have vehicles appraised
Have other valuables appraised (e.g, jewelry; motor home; classic
·car; collections i.e. basebaifcardS, dolls, paintings and antiques)
Retain a QDROIEDRO expert to evaluate a current value of ,
pensions and/or other deferred compensation plans and/or draft.
QDROsIEDROs.
(
Hire a private investigator
Send in hair samples for drug testing
Provide client with Child Custody Act
Advise client to keep a photograph ofthe other parent in child's
room - and other relationship'encouraging measures
Emoll the client in parenting classes
Provide client with Client's Guide to Divorce
Provide client with Checklist ofAssets & Liabilities
Provide cllent with Budget
Client reviewed and signed ffiV/AIDS advice fonn
(~

Provide client with a sample invoice for an uncontested div~rce.
Provide client with File Retention-Des~ctionAgreement
P.rovide client with a copy ofNichols & Eberth, P.C. web page
Provide client with eavesdropping guide
Client received and signed Aclrnowledgment ofReceipt ofAdvice
and Recommendations Regarding Communications with Spouse
Provide client with Client Guide Regarding Payments from
. Pension Plans and Profit-Sharing Plans
Provide client with Social Security-& Diyorce
Offer client the opportunity to view video ''Mending Broken
Hearts"
.Provide client with list ofdivorce support groups/counselors
Provide Wayne Cotmty client with minor children information
regarding the "Kids First Program" .
Provide Oakland County client with. minor children information
regarding the "SMILE" program
Provide the client with the materials from First Step regarding
domestic violence and sexual assault
Provide client with MiSDU brochur~regarding centralized
processingofchild support in Lansing
Provide client with "Steps to Take IfYou Are Concerned That
Your Spouse May Take Your Child Out ofthe Country"
Provide client with "Ten Tips for Divorcing Parents"
I, the undersigned, hereby acknowledge receiving a copy ofthis checklist.
Signature
DIVORCElHANDOUTS to CLIENTIDIVORCE FILING CHECICLlST {pLAINTIFF}: Revised 04/05102

II. "B. "THE FORMATION OF THE ATTORNEY ­
CLIENT RELATIONSHIP"
(
ExhibitW;.
Accepting Representation, Fee Agreement,- "
and Explanation ofcosts and expenses
MRPC 1.5 - Fees
Typical ProvisionS in a Retainer Agreement
Listing ofCosts and Expenses
(
(

(
,
II. C. "MAINTAINING THE ATTORNEY-CLIENT
RELATIONSHIP"
ExhibitW1
Frequent.communic.ations - retupring
telephone calls, and scheduled billings ­
every--month
MRPC 1.3 Diligence
MRPC 1.4 Communication
Message fonn
Calendar
Client infonnation change fonn

l\1RPC 1.3
WEST'SMICIDGANRULESOF COURT
MICIDGAN·COURT RULES OF 1985
MICIDGAN RULES OF PROFESSIONAL CONDUCT
CLIENT-LAWYER RELATIONSIDP
Copr. © West Group.2003. All rights reserved.
Current with amendments received through January 1, 2003
(
RULE 1.3 DILIGENCE
A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment
A lawyer should pursue a matter on behalfofa client despite opposition, obstruction or personal
inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to
vindicate a client's cause or endeavor. A laWyer should act with ~ommitmentand dedication to
the interests ofthe client and with zeal in advocacy upon the client's behalf. However, a lawyer is
not bound to press for every advantage that might be realizedfor.aclient. A lawyer has
professional discretion in determining the means by which a matter should be pursued. See Rule
1.2. A lawyer's workload should be controlled so that each matter can be handled adequately.
Perhaps no professional shortcoming is more widely resented-than procrastination. A client's
interests often can be adversely affected by the passage oftime or the change ofconditions; in
extreme instances, as when a lawyer overlooks a statute oflimitations, the client's legal position
may be destroyed. Even when the client's interests are not affected insubstance, however,
unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyers
trustworthiness.
Unless the relationship is terminated·~ provided in Rule 1.16, a·lawyer should carry through to
. conclusion all matters undertaken for a client. Ifa lawyer's employment is limited to.a specific
matter, the relationship terminates when the matter has been resolved. Ifa lawyer has served a
client over a substantial period ina variety ofmatters, the client sometimes may assume that the
lawyer will continue to serve on a continuing basis unless the lawyer gives notice ofwithdrawal.
Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer,
preferably in writing, so that the client will not mistakenly suppose the lawyer.is looking after
the client's affairs when the lawyer has ceased to do so. For example, ifa lawyer has handled a .
judicial oradministrative proceeding that produced a result adverse to the client but has not been
specifically instructed concerning pursuit ofan appeal, the lawyer should advise the client ofthe
possibility ofappeal before relinquishing responsibility for the matter.
Rules ofPro£ Conduct,.:MR.PC 1.3
:MI R MRPC 1.3
END OF DOCUMENT
Copr. (C) West 2003 No Claim to Ori~. U.S. Govt. Works (

DAT~F TIME
A.M.
P.M.
M
'WhUe You 'Were'Out
_
OF.:....-
_
PHONE_~:_:_:==__--.....,..,,==::::_---==~--
AREA CODE NUMBER EXTENSION
;~~:~J.9;·~~E;Y,qili~~~~~~ tiHi~;:i ~~i~S~~:iGAi·~ ....
i~§fpJ~~E.J;i,~¥~u~i:g,A,;i¥.~f1:~?~i i~yJ~:Jt9{rE~!.~9Y~:% ~f:,~~,k~·:
MESSAGE
--'-_----'
SIGNED
ath.....
9711

U~I .l.'::J1 U..J
8:37a ..
Nichols & Eberth
CALENDAR-- SHORT FORMAT
02/19/03 to 12/31/99
Day when Time Last,fir What· Who Note
Page 1
(
Wed 02/19/03
9:00a
10:00a
11:30a
2 :.30p
3:00p
7:00p
TO-DO
TO-DO
TO-DO
TO":'DO'
TO-DO
TO-DO
TO-DO
TO-'DO
TO-DO
TO-DO
TO-DO
TO-DO
TO-DO
TO-DO
i' TO-DO
TO-DO
T0':"DO
TO-DO.
TO-DO
TO-DO
TO..;, DO
TO-DO
TO-DO
TO-DO
TO-DO
TO":DO
TO-DO
TO-DO
TO-DO
TO-DO
TO.,. DO
Thu 02/20/03
Fri 02/21/03
2:00p
2:00p
2:30p
·4: OOp
4:15p
TO-DO
9:00a
9:00a
2:30p
2: 45p
Personal
.Potentia
I
Out
Potentia
Teach cl
Personne
~
PERSONA CLN CLN in by 11:30;
CONF GEP Status/Settlement conference
MEET MDE - trust
MEET CLN Review purchase agreement
OUT CLN'CLN leaving .at 2:30
MEET GEP '- real estate
TEACH 'CLN how to stay married Dbn high'
REMINDE MDE 10/30 MH's review 11/11/02
REMINDE KLL 02/15 run. 15 day invoice
DEADLIN' KAS 02/05' File sworn closing statement.
DEADLIN KAS 02/05/03 file sworn closing statemer
DEADLIN 'CLN 02/03 cltsans to rogs due·
I li
I
..~ DEADLIN GEP 02/14'name experts.
~::~.DEADLIN GEP 02/14/03 witness list exchange
t.I
REMINDE CLN 02/01 med month
DEADLIN MDE 01/24 Subp. due Great At~antic Paci1
aR· DEADLIN MDE 01/24 Subp. due from Fidelity Inv.
DEADLIN MDE'Ol/24 Subp. due T. Rowe' Price
..... DEADLIN MDE 02/05 Plaintiff's' Rags due back to. t
.....a..... REMINDE MDE 02/19 Exchange deed for .check (
REMINDE MDE 02/15 Discovery cut-qff is 2/2
DEADLIN MDE 02/07 Subp. due - Mass Mutual .
-
DEADLIN MDE '02/07 Subp. due - CIGNA
DEADLIN MDE '02/07 Subp. due - MetLife
DEADLIN MDE 02/28 Subp. due - Hartford Life'
DEADLIN MDE 02/07 Subp. due - Charter One
£ DEADLIN MDE 02/07 Subp. due - Wells Fargo Bank
__ . . REMINDE CLN 02/.19 Clerk to call for status confl
....... DEADLIN MRS 02/14 Subpoena due - QVC
DEADLIN MRS 02/14 Subp. due - Saks
....... DEADLIN MRS 02/14 Subp. due - Neiman Marcus
....6 DEADLIN MRS 02/14 Subp. due - Target
~ DEADLIN MRS 02/14 Subp. due US Bank
-......., DEADLIN MRS 02/14 Subp. due - MBNA America
liliiii DEADLIN MRS 02/14 Subp. due - Wells Fargo Bank
...- DEADLIN MDE 02/17 ·Ans. to rogs due back from cl:
& a DEADLIN GEP 02/17 File def .. if no answer
Potentia
Probate
Out
g.
Therapy"
I
Out
"-3d'
Out OUT
~ Es.MEET
MEET GEP r J? 3
PROBATE KAS 7 7 7 ;;
OUT CLN CLN leaving at 2:30
MEET MRS Meet wi client - execute deed
Working at home
Depostion of•.••••••
CLN leaVing a
Leave to m/.....
par.rights
- meet w/anal:
THERAPY GEP Occupational therapy
DEADLIN MDE 02/20 Submit mediation brief
OUT
DEPO
(

MlU'C1.4
WEST'S MICHIGAN RULES OF COURT
MICHIGAN COURT RULES OF 1985
:MICHIGAN RULES OF PROFESSIONAL CONDUCT
CLIENT-LAWYER RELATIONSHIP
Copr. © West Group 2003. All rights reserved.
Current with amendments received through January 1, 2003
RULE 1.4 COMMUNICATION
(a) A lawyer shall keep a client reasonably informed about the status ofa matter and comply promptly
with reasonable requests for information. A lawyer shall notify the client promptly ofall settlement
offers, mediation evaluations, and proposed plea bargains.
(b) A lawyer shall explain-a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.
Comment
The client should have sufficient information to participate intelligently in decisions concerning the
objectives ofthe representation and the means by which they are to be pursued to the extent the client is
willing and able to do so. For example, a lawyer negotiating on behalfofa client should provide the client
with facts relevant to the matter, inform the client ofcommunications from another party, and take other
reasonable steps that permit the client to make a decision regarding an offer from anotherparty. A lawyer
who receives an offer ofsettlement or a mediation 'evaluation in a civil controversy, or a proffered plea
bargain in a criminal case,.must promptly inform the client ofits substance. See Rule 1.2(a). Even when a
client delegates authority to the lawyer, the client should be kept advised ofthe status ofthe matter.
Adequacy ofcommunication depends in part on the kind ofadvice or assista:nce involved. For example, in .
negotiations where there is time to explain a proposal, the lawyer should review all important provisions
With the client before proceeding to an agreement In litigation, a lawyer should explain the general .
strategy and prospects ofsuccess and ordinarily should consult the client on tactics that might injure or
coerce others. On the other hand, a lawyer ordinarily cannot be expected to describe trial ornegotiation
strategy in detail. The guiding principle is :that the lawyer should fulfill reasonable client expectations for
information consistent with the duty to act in the client's best interests and consistent with the client's
overall requirements as to the character ofrepresentation.
Ordinarily, the information to be provided is that appropriate for a client who .is a comprehending and
responsible adult. However, fully informing the client according to this standard may be impracticable,
for ex~ple,where the client is a child or suffers from mental disability. See Rule 1.14. When the client
is an organization or group, it is often impossible or inappropriate to inform every one ofits members
about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of
the organization. See Rule 1.13. Where many routine matters are involved, a system oflimited or
occasional reporting may be arranged with the client. Practical exigency may also require a lawyer to act
for a client without prior consultation.
Withholding Information. In some circumstances, a lawyer may bejustified in delaying transmission of .
information when the client would be likely to react imprudently to an immediate commtmication. Thus, a
lawyer might withhold a psychiatric diagnosis ofa client when the examining psychiatrist indicates that
disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own
interest or convenience;' Rules or court orders governing litigation may provide that information supplied
to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.
l)
Rules ofPr9f. Conduct,..MRPC 1.4
MIRMRPC 1.4
END OF DOCUMENT
Copr. (C) West 2003 No Claim to Orig. u.S. Govt. Works

MRPC1.4
WEST'S MICIDGAN RULES OF COURT
MICffiGAN COURT RULES OF 1985
MICmGAN RULES OF PROFESSiONAL CONDUCT
CLIENT-LAWYER RELATIONSHIP
Copr. © West Group 2003. All rights reserved.
Current with amendments received through January1, 2003
(
RULE 1.4 COMMUNICATION
(a) A lawyer shall keep a client reasonably infOimed about the status ofa matter and comply promptly
with reasonable requests for information. A lawyer shall notify the client promptly ofall settlement
offers, mediation evaluations, and proposed plea bargains.
(b) A lawyer shall explain a matter to the extent reasonably necessary to pennit the client to make
informed decisions regarding the representation.
Comment
The client should have sufficient information to participate intelligently in decisions concerning the
objectives ofthe representation and the means by which they are to be pursued to the extent the client is
willing and ableto do so. For example, a lawyer negotiating on behalfofa client should provide the client
with facts relevant to the matter, inform the client ofcommunications from another party, and take other
reasonable steps thatpermit the client to make a decision regarding an: offer from another party. A lawyer
who receives an offer ofsettlement or a mediation evaluation in a civil controversy, or a proffered plea
bargain in a criminalcase, must promptly inform the client ofits substance. See Rule 1.2(a). Evenwhen a
client delegates authoritY to the lawyer, the client should be kept advised ofthe status ofthe matter.
Adequacy ofcommunication depends in part on the kind ofadvice or assistance involved.'For example, in
negotiations where there istime to explain a proposal, the lawyer should review all important provisions
with the client before proceeding to an agreement. In litigation, a lawyer should explain the general
strategy and prospects ofsuccess and ordinarily should consult the client on tactics that might injure or
coerce others. On the other hand, a lawyer ordinarily cannot be expected to describe trial ornegotiation
strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for
information consistent with the duty to act in the client's best interests and consistent with the client's
overall requirements as to the character ofrepresentation.
Ordinarily, the information to be provided is that appropriate for a client who isacomprehending and
responsible adult. However, fully informing the client according to this standard may be impracticable,
for example, where the client is a child or suffers from mental disability. See Rule 1.14. When the client
is an organization or group, it is often impossible or inappropriate to inform every one ofits members
about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of
the organization. See Rule 1.13. Where many routine matters are involved, a syStem oflimited or
occasional reporting may be arranged With the client. Practical exigency may also require a lawyer to act
for a client without prior consultation.
Withholding Information. In some circumstances, a lawyer may be justified in delaying transmission of
information when the client would be likely to react imprudently to an immediate communication. Thus, a
lawyer might ~thhold a psychiatric diagnosis ofa client when the examining psychiatriSt indicates that
disclosure would harm the client A lawyer may not withhold information to serve the lawyer's own
interest or convenience. Rules or court orders governing litigationmay provide that information supplied
to a lawyer may not be disclosedto the client. Rule 3.4(c) directs compliance with such rules or orders.
('
Rules ofProf. Conduct, MRPC 1.4 (
MIRMRPC 1.4
END OF DOCUMENT

Rev. 01/08/03
CLIENT INFORMATION CHANGE
( Includes Change in Client's Address, Telephone #, Etc.)
Date: _ SubntirtedBy: _
Client:
_
New Name:
_
New Address: ---' _
NewTelephone: Home: ~; Work: _
Fax: --'; Mobil: -..,.--'
Beeper ; Other: _
Other Change:
_
To Marian: Incorporate the changes noted above to the following: .
Yes
Yes
No
No
Master List (completed by on )
PC DMC News
Birthday card list (completed by__on__-,)
Marian: Forward this form to Mary when above has been completed.
To Mary: Check the Will List. Ifthis person is on the list, please change the address.
Person is not on the Will List.
Person is on the Will list and change was made on
_
.Mary: Forward this form to Karen when above is completed.
To Karen:
Please incorporate the changes noted above to all ofthe following:
.Timeslips client file (completed by on ....J)
RETURN THIS FORM TO CLIENT'S LEGAL FILE WHEN COMPLETED
FonnslAddress.chg

II.
C. "MAINTAINING THE ATTORNEY-CLIENT
RELATIONSHIP"
Confidentiality
(
Exhibit~
MRPC 1.6 Confidentiality ofInfonnation
(
(

MRPC 1.6
WEST'S MICIDGAN RULES OF COURT
MICIDGAN COURT RULES 'OF 1985
MICHIGAN RuLES OF PROFESSIONAL CONDUCT
CLIENT-LAWYER RELATIONSHIP
Copr. © West Group 2003. All rights reserved.
Current with amendments received through January 1, 2003
RULE 1.6 CONFIDENTIALITY OF INFORMATION
(a) "Confidence" refers to information protected by the client-lawyer privilege under applicable
, law, and "secret" refers to other information gained in the professional relationship that the client
has requested be held inviolate or the disclosure ofwhich would be embarrassing orwould be
likely to be detrimental to the client.
(b) Except when permitted under paragraph (c), a lawyer shall not lmowingly:
(1) reveal a confidence or secret ofa client;
(2) use a confidence or secret ofa client to the disadvantage ofthe client; or
(3) use a confidence or secret ofa client for the advantage ofthe lawyer or ofa third person,
unless the client consents after full disclosure. '
(c) A lawyer may reveal:
(1) confidences or secrets with the consent ofthe client or clients affected, but only after full
disclosure to them;
(2) confidences or secrets when permitted or required by these rules, or when required by law or
by court order;
(3) confidences and secrets to the extent reasonably necessary to rectify the consequences ofa
client's illegal or fraudulent act in the furtherance ofwhich the lawyer's services have been used;
(4) the intention ofa client to commit a crime and the information necessary to prevent the
crime; and .
,(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the
lawyer's employees or associates against an accusation ofwrongful cond,uct.
(d) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose
services are utilized by the lawyer from disclosiilg or using confidences or secrets ofa client,
except that a lawyer may r:eveal the information allowed by paragraph (c) through an employee.
'Comment
The lawyer is part ofa judicial system charged with upholding the law. One ofthe lawyer's
. .
functions is to advise clients so that they avoid any violation ofthe law in the proper exercise of
their rights.
The observance ofthe ethical obligation ofa lawyer to hold inviolate confidential information of
the client not only facilitates the full development offacts essential to proper representation of
the client, but al~o encourages people to seek early legal assistance.
Almost without exception, clients come to lawyers in order to determine what their rights are and
what is, in the maze oflaws and regulations, deemed to be legal and correct. The common law
recognizes that the client's confidences must be protected fr~m disclosure. Upon the basis of
experience, lawyers lmow that almost all clients follow the advice given and that the law is
upheld.
A fundamental principle in the client-lawyer relationshipis that the lawyer maintain
confidentiality ofinformation relating to the representation. The client is thereby encouraged to
communicate fully and frankly with the lawyer even as to embarrassing or legally damaging
subject matter.

'The principle ofconfidentiality is given effect in two related bodies oflaw, the.client-lawyer
privilege (which includes the work-product doctrine) in the. law ofevidence and the rule of
confidentiality established in professional ethics. The client-lawyer privilege applies injudicial (
and other proceedings in which a lawyer may be called as a witness or otherwise required to
produce evidence concerning a client. 'The rule ofclient-lawyer confidentiality applies in
situations other than those where evidence is sought from the lawyer through compulsion oflaw.
'The confidentiality rule applies to·confidences and secrets as defined in the rule. A lawyer may
not disclose such information except as authorized or required by the Rules ofProfessional
Conduct or other law. See also Scope, ante.
'The requirement ofmaintaining confidentiality ofinformation relating to representation applies
to government lawyers who may disagree with the policy goals that their representation is
designed to advance.
Authorized Disclosure. A lawyer is impliedly authorized to make disclosures about a client
when appropriate in carrying out the representation, except to the extent that the client's
instructions or special circumstances limit that authority. In litigation, for example, a lawyer may
disclose information by admitting a fact that cannot properly be disputed, or, in negotiation, by
making a disclosure that facilitates a satisfactory conclusion.
Lawyers in a fum may, in the course ofthe finn's practice, disclose to each other information
relating to a client ofthe fum, unless the client has instructed that particular information be
confined to specified lawyers, or unless the disclosure would breach a screen erected within the
firm in accordance with Rules l.IO(b), l.l1(a), or l.12(c).
Disclosure Adverse to Client. The confidentiality rule is subject to limited exceptions. In
becoming privy to information about a client, a lawyer may foresee that the client intends to
commit a crime. To the extent a lawyer is prohibited from making disclosure, the interests ofthe
potential victim are sacrificed in'favor ofpreserving the client's confidences even though the
client's purpose is wrongful. To the extent a lawyer is required orpermitted to disclose a clienfs (
purposes, the client may be inhibited from revealing facts which would enable the lawyer to
counsel against a wrongful'course ofaction. A rule governing disclosure ofthreatened harinthus
involves balancing the interests ofone group ofpotential victims against those ofanother. On the
assumption that lawyers generally fiilfill their duty to advise against the commission of
deliberately wrongful acts, the public is better protected iffull and open communication by the'
client is encouraged than ifit is inhibited. .
Generally speaking, information relating to the representation must be kept confidential as stated
in paragraph (b). However, when the client.is or will be engaged in criminal conduct or the
integrity ofthe lawyer's own conduct is involved, the principle ofconfidentiality may
appropriately yield, depending on the lawyer's knowledge about and relationship to the conduct
in question, and the seriousness ofthat conduct. Several' situations must be distinguished."
First, the lawyer may not' counselor assist a client in conduct that is illegal Of fraudulent. See
Rule l.2(c). Similarly, a lawyer has a duty under Rule 3.3(a)(4) not to use false evidence. This
duty is essentially a special instance ofthe duty prescribed in Rule l.2(c) to avoid assisting a
client in illegal or fraudulent conduct. The same is true ofcompliance with Rule 4.1 concerning
truthfulness ofa lawyer's own representations.
Second, the lawyer may have been innocently involved in past conduct by the client that was
criminal or fraudulent.'In such a situation the lawyer has not violated Rule 1.2(c), because' to
"counselor assist" criminal or fraudulent conduct requires knowing that the conduct is ofthat
character. Even ifthe involvement was innocent, however, the fact remains that the lawyer's
professional'services were made the instrument ofthe client's crime or fraud. The lawyer,
therefore, has a legitimate interest in being able to rectify the consequences ofsuch conduct, and(
has the professional right,although not a professional duty, to rectify the situation. Exercising
that right may require revealing information relating to the representation. Paragraph (c)(3) gives
the lawyer professional discretion to reveal such information to"the extent necess3IY to
accomplish rectification. However, the constitutional rights ofdefendants in criminal cases may .

l)
limit the extent to which counsel for a defendant may correct a misrepresentation that is"based on
information provided by the client. See comment to Rule 3.3.
Third, the lawyer may learn that a client intends prospective conduct that is criminal. Inaction by .
the lawyer is not a violation ofRule 1,2(c), except in the limited circumstances where failure to
act constitutes assisting the client. See comment to Rule 1.2(c). However, the lawyer's
lmowledge ofthe client's purpose may enable the lawyer to prevent commission ofthe
prospective crime.- Ifthe prospective crime is likely to result in substantial injury, the lawyer may
feel a moral obligation to take preventive action. When the threatened injury is grave, such as
. homicide or serious bodily injury, a lawyer may have an obligation under tort or criminal law to
take reasonable preventive measures. Whether the lawyer's concern is based on moral or ll?gal
considerations, the mterest in preventing the harm may be more compelling than the interest in
preserving confidentiality ofinformation relating to the ~lient. As stated in paragraph (c)(4), the
lawyer has professional discretion to reveal information in order to prevent a client's criminal. act.
It is arguable that the lawyer should have a professional obligation to make a disclosure in order
to prevent homicide or serious bodily injury which the lawyer lmows is intended by the client.
However, it is very difficult for a lawyer to "know" when such a heinous purpose will actually be
carried out, for the client may have a change ofmind. To require disclosure when the client
intends such an act, at the risk ofprofessional discipline ifthe assessment ofthe client's purpose
turns out to be wrong, would be to impose a penal risk that·might interfere with the lawyer's
resolution ofan inherently difficult moral dilemma
The lawyer's exercise ofdiscretion requires consideration ofsuch factors as magnitude,
proximity, and likelihood ofthe contemplated wrong; the nature ofthe lawyer's relationship with
the client and with those who might be injured by the client; the lawyer's own involvementin the
transaction; and factors that may extenuate the conduct in question. Where practical, theJawyer
should seek to persuade the client tq take suitable action. In any case, a disclosure adverse to the
client's interest should be no greater than the lawyer reasonably believes necessary to the .
purpose. A lawyer's decision not to make a disclosure permitted by paragraph (c) does not
violate this rule.
Where the client is an organization, the lawyer may be in doubt whether contemplated conduct
will actually be carried out by the organization. Where necessary to guide conduct in connection
with this rule, the lawyer should make an inquiry within the organization as indicated in Rule
. 1.13(b).
Paragraph (c)(3) does not apply where a lawyer is employed after a crirD.e or fraud has been
committed to represent the client in matters ensuing therefrom.
Withdrawal.Ifthe lawyer's services will be used by the client in materially furthering a course
ofcriminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1).
After withdrawal the lawyer is required to refrain from making disclosure ofthe client's
confidences, except as otherwise provided in Rule 1.6. Neither this rule nor Rule 1.8(b) nor Rule
1.16(d) prevents the lawyer from giving notice ofthe fact ofwithdrawal, and the lawyer may
also withdraw or disaffirm any opinion, document, affirmation, or the like.
Dispute Concerning Lawyer's Conduct. Where a legal claim or disciplinary charge alleges
complicity ofthe lawyer in a client's conduct or other misconduct ofthe lawyer involving
representation ofthe client, the lawyer may respond to the extent the lawyer reasonably believes
necessary to establish a defense. The same is true with respect to a claim involving the conduct
or representation ofa former client. The lawyer's right to respond arises when an assertion of
complicity or other misconduct has been made. Paragraph (c)(5) does not require the lawyer to
await the commencement ofan action or proceeding that charges complicity or other
misconduct, so that the defense may be established by responding directly to a third party who
has made such an assertion. The right to defend, ofcourse, applies where a proceeding has been
commenced. Where practicable and not prejudicial to the lawyer's ability to establish the
defense, the lawyer should advise the client ofthe third party's assertion and request that the
client respond appropriately. In any event, disclosure should be no greater than the lawyer

.reasonably believes is necessary to vindicate innocence, the disclosure should·be made in a
manner which limits access to the infonnation to the tribunal or other persons having a need to
knowit, and appropriate protective orders or other arrangements should be sought by the lawyer
.to the fullest extent practicable.
Ifthe lawyer is charged with wrongdoing in which the client's conduct is implicated, the role of
confidentiality should not prevent the lawyer from defending against the charge. Such a charge
can arise in a civil, criminal, or professional disciplmary proceeding, and can be based on a
wrong allegedly committed by the lawyer against the client, or on a wrong alleged by a third
person, for example, a person claiming to have been defrauded by the lawyer and client acting
together.
A lawyer entitled to a fee is pennitted.by paragraph (c)(5) to prove the services rendered in -an
action to collect it This aspect ofthe rule expresses the principle that the beneficiary ofa
fiduciary relationship may not exploit it.to the detriment ofthe fiduciary. As stated above, the
.lawyer rimst make every effort practicable to avoid unnecessary disclosure ofinformation
relating to a representation; to limit disclosure to those having the need to know it, and to obtain
protective orders ormake other arrangements minimizing the risk ofdisclosure.
Disclosures Otherwise Required or Authorized. The scope ofthe client- lawyer privilege is a
question oflaw. Ifa lawyer is called as a witness to give testimony ~onceming a client, absent
waiver by the client, paragraph (b)(1) requires the lawyer to invoke the privilege when it is
applicable. The lawyer must comply with the final orders of a court or other tribunal of
competent jurisdiction requiring the lawy~to give information about the client.
The Rules ofProfessional Conduct in various circumstances permit or require a lawyer to
disclose information rehiring to the representation. See Rules 2.2, 2.3, 3.3 and 4.1. In addition to
these provisions, a lawyer may be obligated or permitted by other provisions oflaw to give
infonnation about a client. Whether another provision oflaw supersedes Rule 1.6 is a matter of
interpretation beyond the scope ofthese rules, but a presumption should exist against such a
supersession.
Fonner Client. The duty ofconiidentiality continues after the client- lawyer relationship has
tenninated. See Rule 1.9.
(
(
Rules ofProf. Conduct, MRPC 1.6
MIRMRPC 1.6
END OF DOCUMENT .
Copr. (C) West 2003 No Claim to Orig. U.S. Govt. Works
(

II.
D. "TERMINATION OF THE REPRESENTATION"
Closure letters, Final Billing and File Retention
. Exhibitf&
TeIn1inating the representation in writing
Closure letter
Legal file retention·- destruction
acknowledgment

TERMINATING THE REPRESENTATION IN WRITING
+. !tcOp:1pletes the cycle ofcommunication and reminds the client that the matter
is conchided..
(
+ This is often an opportunity to send the final bill it encourages the client to
call upon you again or recommend you and your services.
+ Will allow you to return file material to the client and therefore, the file will
take up less space when you close and ~tore it.
+ It puts you in the habit oftying up loose ends and actually_moving a file from
"active" to "closed".
+ It provides a "psychological" closure to the matter.
+ In the event that the client would like to believe that there is some ongoing
representation, it provides you with an opportunity to clarify that such is not
the case.
(
i.
(

NICHOLS & EBERTH, P.C.
ATIORNEYS AND COUNSELORS AT LAW
DEARBORN OFFICE
22374 GARRISON
DEARBORN, MICHIGAN 48124
(313) 561-5700 (Telephone)
(313) 562-1100 (Facsimile)
E-Mail: N&E@MichiganAttomey.com .
CHARLES L. NICHOLS
MICHAEL D. EBERTH*
MICHAEL R. SHAFFER
GINA E. POLLEY
-A1so Admitttdi. Nf'I't' 'York
BIRMINGHAM OFFICE
401 S. OLD WOODWARD, STE 430
BIRMINGHAM, MICIDGAN 48009
(248) 952-1700 (Telephone)
(313) 562-1100 (Facsimile)
E-Mail: N&E@MichiganAttomey.com
Client Name
Client Address
February 5, 2003
Re:
Dear ------
______- vs.
Case No.:
_
_
As you know, the above matter is concluded. I recommend that you call my office and arrange to
remove your property from our file as soon as possible. I will be closing your file. Enclosed please find your
final invoice in the amount of $ , and due by__. Should you have any questions or comments
regarding this matter ormy representation ofyou, please contact me at (313) 561-5700.
Our finn is grateful for having had the opportunity to represent you in this matter, and we would
welcome the opportunity to serve you again in the future. We also feel honored that many ofour past clients
have referred family and friends to Nichols & Eberth, P.C. Accordingly, listed below are the areas oflaw in
which we could be ofassistance to you or to anyone you refer to us.
- Auto Negligence
- Banlauptcy
- Business Law
. - Business Incorporation
- Collection Matters
- Conswner Law
- Contracts
- Contract Dispute Litigation
- Criminal Defense
- Custody & Support
- Debtor Creditor
- Discrimination
- Drunk Driving
- Divorce
- Divorce Mediation
- ElderLaw
- Worker's Compensation
-' Employment Law
- Environmental Matters
- Estate Plamring
- License Restoration.
- Medical Malpractice
- Paternity
- Personal Injury
- Prenuptial Agreements
- Probate
- Products Liability
- Real Estate,
- Sexual Harassment
- Slip & Fall
- Social Security
- Traffic Violations
- Wills & Trust
Please feel free to call ifI can assist you with any ofthese matters or otherwise be ofhelp to you. I
also welcome your comments concerning any aspect ofmy pastrepresentation ofyour interests.
( Thankyou again for allowing me and Nichols & Eberth, P.C. to represent you.
'---
Sincerely,

NICHOLS & EBERTH, P.C.
ATIORNEYS AND COUNSELORS AT LAW
------:-----~------{(
DEARBORN OFFICE
22374 GARRISON
DEARBORN, MICHIGAN 48124
(313) 561-5700 (Telephone)
(313) 562-1100 (Facsimile)
E-Mail: N&Etw.Michi!!llllAttomev.com
CHARLES L. NICHOLS
MICHAEL D. EBERTIf'
MlCHAELR. SHAFFER
GINA E. POU..EY
• Also Admitted in New York
BIRMINGHAMOFFICE- .
401 S. WOODWARD, STE 430
BIRMINGHAM, MICBlGAN 48009
(248) 952-1700 (Telephone)
(313) 562-1100 (Facsimile)
E-Mail: N&E(a)Michi2anAttomey.com
i
I
I
MATTER:
LEGAL FILE RETENTION-DESTRUCTION ACKNOWLEDGMENT
_
I
IIi!
I
IT IS FURTHER AGREED AND UNDERSTOOD by the client that not withstanding the above, tlu
after .this matter is resolved, the finn may maintain its legal file in storage for three years after which the :fil
may be destroyed. However, prior to destruction, the firm may send a letter via regular mail to the client at tb
client's last known address advising the client ofthe firm's intention to.destroy the file. Should n~ resC....:ie b
I
I
forwarding address, then the file may be destroyed with the fum making no further efforts to contact the clien
received from .the client within 14 days of the date of the letter or should the le~er
be returned with n
However, should the client contact the firm within 14 days ofthe date ofthe letter and ~equest his or her leg
file, then the file may be made available to the client for pick up by the client. Should the client not pick up tl
file within 14 days after contacting the firm, then the file may be destroyed.
The client hereby acknowledges the receipt ofa copy ofthis acknowledgment.
Dated:
---------
CLIENT
CLIENT
ATTORNEY
(

(
II.
D. "TERMINATION OF THE REPRESENTATION"
Withdrawing from representation, at request of
client, when required, and pennission from court
Exhibit~
MRPC 1.16 - Declining or Tenninating
Representation
i I
\ .
"---"

MRPC 1.16
WEST'S MICHIGAN RULES OF COURT
MICmGAN COURT RULES OF. 1985
MICHIGAN RULES OF PRQEESSIQN~CONDUCT
CLIENT-LAWYER RELATIONSHIP
Copr. © West Group 2003. AIl rights reserved.
Current with amendments received through January 1, 2003
(
RULE 1.16 DECLINING OR TERMINATING REPRESENTATION
I I
I
I
I
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has.commenced, shall withdraw from the representation ofa client if:
(1) the representation will result in violation ofthe Rules ofProfessional Conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent
the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may Withdraw from representing a client if
withdrawal can be accomplished without material adverse effect on the interests ofthe client, or
if:
(1) the client persists in a course of action involving the lawyer's services that the lawyer
reasonably believes is criminal or fraudulent;
(2) the client has used the lawyer's services to perpetrate a crime or fraud;
(3) the client insists upon pursuing an objective that the lawyer considers repugnant or
imprudent; .
(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's C
services and has beel! given reasonable warning that the lawyer will withdraw unless the
obligation is fulfilled; .
(5) the representation will result in an unreasonable financial burden on the lawyer or has been
rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
(e) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding
good cause for tenninating the representation.
(d) Upon termination ofrepresentation, a lawyer shall take reasonable steps to protect a client's
interests, such as giving reasonable notice to the client, allowing time for employment ofother
counsel, surrendering papers and property to which the client is entitled, and refunding any
advance payment of fee that has not been earned. The lawyer may retain papers relating to the
client to the extent pennitted by law.
Comment
A lawyer should not accept representation in a matter unless it can be performed competently,
promptly, without improper conflict ofinterest and to completion.
Mandatory Withdrawal. A lawyer ordinarily must decline or withdraw from representationif
the client demands that the lawyer engage. in conduct that is illegal or violates the Rules of
Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply
because the client suggests such a course ofconduct; a client may make such a" suggestion in the_
hope. that a lawyer will not be constrained by a professional obligation. (
When a lawyer has JJeen appointed to represent a client, withdrawal ordinarily requires approvar
ofthe appointing authority. See also Rule 6.2. Difficulty may be encountered ifwithdrawal is
based oil the client's demand that the lawyer engage in unprofessional conduct The court may
wish an explanation for the withdrawal, while the lawyer may be bound to keep confidential the

facts that would constitute such an explanation. The lawyer's statement that professional
considerations require tennmation ofthe representation ordinarily should be accepted as
.sufficient.
Discharge. A client lias a right to discharge a lawyer at any time, with or without cause, subject
to liability for payment for the lawyer's services. Where future dispute about the withdrawal may
be anticipated, it may be advisable to prepare a written statement reciting the circumstances.
Whether a client can discharge appointed counsel may depend on applicable law. A client
seeking to do so should be given a full explanation ofthe consequences. These consequences
may include a decision by the appointing authority that appointment ofsuccessor counsel is
unjustified, thus requiring the client to represent himself.
Ifthe client is mentally incompetent, the client may lack the legal capacity·to discharge the
lawyer, and in any event the discharge may be seriously adverse to the client's interests. The
lawyer should make special effort to help the client consider the consequences and, in an extreme
case, may initiate proceedings for a conservatorship or similar protection ofthe client. See Rule
1.14.
Optional Withdrawal. A lawyer may withdraw fromrepresentation in some circumstances. The
lawyer has the option to withdraw ifit can be accomplished without material adverse effect on
the client's interests. Withdrawal is also justified ifthe client persists in a course ofaction that
the lawyer reasonably believes is illegal or fraudulent, for a lawyer is not required to be
associated with such conduct even ifthe lawyer does not further it. Withdrawal ~s also permitted
ifthe lawyer's services were misu~edin the past even ifthat would materially prejudice the
client. The lawyer also may withdraw where the client insists on a repugnant or imprudent
objective.
A lawyer may withdraw ifthe client refuses to abide by the terms ofan agreement relating to the
representation, such as an agreement concerning fees or court costs, or an agreement limiting the
objectives ofthe representation.
Assisting the Client Upon Withdrawal. Even ifthe lawyer has been unfairly discharged by the
client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The
.lawyer may retain papers as security for a fee only to the extent permitted by law.
Wh~ther a lawyer for an organization may under certain unusual circumstances have a legal
obligation t6 the organization after withdrawing or being discharged by the organization's
highest authority is beyond the scope ofthese rules.
Rules ofProf. Conduct, MRPC 1.16
:MIRMRPC 1.16
END OF DOCUMENT
Copr. (C) West 2003 No Claim to Orig. U.S.. Govt. Works

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Two Types of Trust Accounts
• IOlTA - Interest on
Lawyers Trus.t
Account
G Non-tOlTA - Interest
earned is payable to
client or third party
@
Net interest earned is
remitted to Michigan
State Bar Foundation
~ Tax I.D. on IOLTA
account is MSBF's
t~ Separate Account
@
(for a client or matter)
Pooled Account
• Calculation and
payment of proportionate
share of interest
responsibility of lawyer
or financial institution
•••••m.f~l5m ~!~GF~§jIh _ r{K~fifi§.l~~21E.VJ!. m~ ?T12m.Tf?f"1i:ECT;~ m~w;,~ [;-zJSIT~m:~j:_.tr~-•••••

TRUST ACCOUNT CERTIFICATION
Attorney signature certifying trust account
compliance is required on annual State Bar dues
statement.
**********
WHICH TRUST ACCOUNT WHEN?
When do I use an IOlTA Trust Account?
-
And when do I U·se a Trust Account with interest
. payable to the client?
f""\
.r-'\
~ i:8m;gf'i'l0;~' ~~ E'f-&Bj;iQ~~ ~~ m~i).1§:m< §'~ ~l'lm~:i2Y~

IOLTA Trust Account
Client Funds
-Unearned fees
-Advances of costs & expenses
Third Party Funds
Settlement Funds
Mixed Funds (e.g. check including client and attorney funds)
Attorney's Funds (to cover/eliminate bank fees)
An IOlTA trust account should be used when the funds cannot
earn income for client/third party in excess of costs incurred to
secure such income while the funds are held.
•••••~~ ~_~5~KQ;;n~:· ~ ffg~~0;;:~:l1lfI ~~~~ ITiF:lJi;1£11?X;:;F7 _~~~ rm;~:;~Fif.~i:•••••

Interest-BearinglGeneral
Client Funds
-Unearned fees
-Advances of costs and expenses
Third Party Funds
Settlement Funds
Mixed Funds (e.g. check including client and attorney funds)
Attorney's Funds (to cover/eliminate bank fees)
A non-IOLTA trust account should be used where funds would earn
income for.the client or third party in excess of the costs incurred to
secure such income while the funds are held
!\ f'.. I
•••_~~ f,ii!£,s"Efi);,,:C':i" ~ ~~J1.J1!!"fl,L~ j ~~ E\rt.1'1ii~;;;rJ ~~ !.f.ill!.m;;:,i;'¥f:if:~

Yes, You Have to Do "Math"
~ Factors set forth in MRPC 1.15 (e)
" Amount of funds, expected duration of
deposit, rates of interest
fl. Cost of administering account - including
bank service fees and lawyer's time/costs
~ Any other relevant factors
c. Client waiver not permissible - IOLTA can
only contain funds that won't earn a net return
G Periodic review to determine if should move
from IOLTA to a ge"neral trust account
G Good faith decision where to deposit funds is
not reviewable by disciplinary body
_~ ~IEIE~ls?ff;{% ~~ fl?:nsH§rTi~IFl !G.:~ f1:TiIfi~i~}db~:· ~ [!(j;R.f,I~if;'D!.;j~;-i:_·-

Interest Rate Example: 2.25% APR
• $50,000
f. No fees
f~ 60 days
f., 50,000 X 2.25% =
$1 ,125 divided
by 365 =$3.08
fri 60 days X $3.08/day =
fi
G
$184.80
Net return for client
NON-IOLTA ACCOUNT
«iF $2,000
$ Fees - $5
fir
30 days
f~ 2,000 X 2.250/0 == $45
divided by 365 ==
$·.12/day·
«p .• 30 days X .12 = $3.60
fi $3.60 - $5.00 =-$1.40
fF No net return for client
~. IOlTA ACCOUNT
~ .
......II••~ !'.{01lSili1'iQiBI ~~1i t?01\'!ifi;I~;g;"" ,~ ~~ f£:;;iXif;ii::;g;;,,~".: lii1!ir'~~ g~mmrr:fifti'~

.~
OTHER IOLTA FACTS
fi Michigan State Bar Foundation works with
banks on nevv requirement for com- parable
rates on IOlT1-\ accounts and use of
permissible account products
" No lawyers have had to change IOLTA
accounts under the new rule
fi Honor Roll of banks waiving fees at
f "'...... if':"'''\1
11'''-1 t
~~ ~_~~:"rL~.§.:2,!.:_Y.,!-~:l
., IOLTA revenue supports civil legal aid and
other law-related charitable projects
•••••~~~:~ gfJif1.G5I7TIt& ~~ ~;~?;:~~s)1KEr8:~ :~~m!1 1!;.?f;tt:~j}&1Dim: ;tt~~.9 fiB;lf?;FglB~'1•••III!.

('­
en cz
:J
'LL
I­
ZW
-...I
U
w0::

: I-
::I z

:
~~
~: ... ~~~;J~~,:~rY;1
The Refund~able "Non­
Refundable"Retainer
tv
If the retainer is for services to be performed in the future
(unearned fees) then it must go into a trustaccount
~ Non-refundable retainers are subject to requirement that the fee
be reasonable. If services tenninated early, or under the totality
of the circumstances the fee would be unreasonable, then you
should refund whatever amount necessary to make the fee
"reasonable"
fj
Difficult to refund money if you've put the money in your
operating account and already spent the money
$'
Mixed funds - lawyerhas a share'--deposit into trust account
and promptly disburse lawyer's portion
(\, (\ .....
...;W'~m giIi1fB2if&~T:ti= ~~ tT~'l&~fE ~~ [,,.';lrrc';~i.~] 1ft~E

J;-:?~~:~~fu';'
What to Do:
fjj Graduated schedules in retainer =­
works well in criminal cases RI-069
f. Designate a portion of fee. non~ .
refundable (but must be tied to services
performed - must be "reasonable")
•••••~~ fff~5JfI;~'~r~1lliX~~ 3E~~ B;!tif~~:1~].n~!~.! ~j~:;r~JE1.1 iGJ;?JT:~}'~~~~~:t~J ~~ ff,;r{f~~~:J.~~~:"Sz'III•••111

·~._N~.p,,_ ••_:;;.'~:~_-f?ir{,'{?i'i,:·(;}
I ..
~~~:-~~~!:~~
~"'!''''~---''-'''~..-'.'''''.-''''''-~
DISPUTED FUNDS
- Holding Funds That Other Parties or
You Have a. Claim To
o. Notify client or third party that you. are
holding funds in trust account·
o Distribute all funds as to which the
, -
interests are not in dispute
• Promptly render a full accounting·if
requestedR..007, .
f"\ f"1 . '.'
...~ ~'.c';';";![~T'il"Z'ir ~ ffi}i2&H;:;"'1;i~' ' ~Jt!!1 2]?fii..'i£'~:ct';;; r!'Ji;!i\\ji~~ i%;rrill.rill~~·

YOU ARE YOUR STAFF
• You are responsible for your staff's actions
~ Attorneys have been disciplined for sins of staff
handling financial matters .
G
Non-lawyer signatories on trust accounts - unclear,
recommend against it until matter decided (RI-107)
•••••~~;:;~~ ~11?~~Itc;:t:~~; H£~~ f_;.[)§~~~:2;t;.~ ~~ ~.:;.'~8?'flW:.i12¥i.1 irdZ,m.ft.~ mr:::ii~-r:2Ts~.II•••

MISCELLANEOUS ISSUES
G Attorney funds in account - may deposit own funds
ONLY in an amount reasonably necessary to
pay/prevent bank fees
6 Must preserve all trust account records for five years
AFTER the termination 'of representation
" Accepting payments/retainers by credit card? S8M
Ethics Committee will be issuing a· new opi'nion
shortly.
" No rule or opinion prohibiting use of debit card on
client trust account in MI but written records needed
f""'1 ~ ..
.~
.....~~~ f4t~~~%~;Z~7i ~ ~~:!~~~~1t1g; & ~:m~- g~?J{;'"0I{ftfIf.illf ~~ hBr~b:ig~;f ...

(~!
~-;0PT:r:;:>:.~~
OTHER
G Valuables other than cash
f. Cannot avoid Ilavirlg a trust account if you
really should have one RI-O·93
$ No sharing your trust account with a lawyer
not in your firm
•••••~~&~ lIf1l:zf:~2f1.is,{fJ.~ ~~'I~ f~j!2'(;fE,?Jf.m;;:i !m?1~~~]n rJ:ill)27;;Em§~ ~&~ rt~:~'~~~2~Jrtq!I•••••

Michigan State Bar Foundation
ATTORNEY IOLTA GUIDELINES BROCHURE
Michigan Rules ofProfessional Conduct 1.15, as amended October 18,2005
\.
IOLTA Brochure
This brochure has been approved by the
Michigan Supreme Court. It is designed to
assist with compliance with IOLTA under
Michigan Rules ofProfessional Conduct 1.15
("the Rule"), as amended (October 18, 2005).
What is IOLTA?
IOLTA (Interest on Lawyers Trust Accounts)
allows lawyers to deposit nominal and short-term
client or third party funds into pooled interest- or
dividend-bearing trust accounts when the
deposits could not eam net income (income over
costs) for the client or third party. (References in
this brochure to "client" include "client or third
party" and references to "lawyer" include
"lawyer or law firm or other organization with
which the lawyer is professionally associated.")
Before IOLTA, these funds were idle in noninterest
bearing accounts.
The net interest or dividends generated on
IOLTA funds is forwarded to the Michigan State
Bar Foundation ("the Foundation"), an IRS taxexempt
charity. It employs the income to
support civil legal services for the poor and
improvements in the administration ofjustice.
All fifty states have IOLTA programs.
What about larger trust deposits?
Ifa deposit is large enough or held long enough
to eam net income, it must be deposited for the
benefit ofthe client. Such monies cannot be
placed in an IOLTA account.
How does IOLTA affect how client
funds are deposited?
Nothing is changed; the money goes either to an
IOLTA account or to a trust account benefiting
the client. It has long been prohibited to mix
lawyer funds with client funds, but the Rule
permits a lawyer's own funds to be placed in a
trust account only in an amount needed to payor
prevent financial institution fees.
As between the two types oftrust accounts,
lawyers will continue to make the fiduciary
decision whether a given trust deposit is of
sufficient size or duration to be invested for the
benefit ofthe client.
How does a lawyer know when to place
trust funds in an IOLTA account?
The old brighHine rule ofa $50 interest
threshold is gone. It is replaced by the following
at MRPC 1.15(a)(3): "An IOLTA account shall
include only client or third person funds that
cannot eam income for the client or third person
in excess ofthe costs incurred to secure such
income while the funds are held." In
determining whether client or third person funds
should be deposited to an IOLTA account or a
non-IOLTA ac;count, a lawyer shall base the
de'cision solely on whether the funds could be
invested to provide a positive net return for the
client or third person. A short list offactors
provided in the Rule which the lawyer should
use in making this determination follows:
(i) the amount ofinterest or dividends the funds
would eam during the period they are expected
to be deposited in light of(a) the amount ofthe
funds to be deposited; (b) the expected duration
ofthe deposit, including the likelihood ofdelay
in the matter for which the funds are held; and
(c) the rates ofinterest or yield at financial
institutions where the funds are to be deposited;
(ii) the cost ofestablishing and administering
non-IOLTA accounts for the client or third
person's benefit, including service charges or
Page 1 of4

fees, the lawyer's services, preparation oftax
reports or other associated costs;
(iii) the capability offinancial institutions or
lawyers to calculate and pay income to
individual clients or third persons; and
(iv) any other circumstances that affect the
ability ofthe funds to earn a net return for the
client or third person.
The rule also provides that a lawyer's good faith
decision to deposit or hold such funds in an
IOLTA account is not reviewable by a
disciplinary body. However, lawyers should
periodically review IOLTA deposits to determine
ifchanged circumstances warrant moving the
funds from the IOLTA account to invest them
prospectively in anon-IOLTA trust account for
the client. .
What effect does IOLTA have on
clients?
None. IOLTA only involves funds that a lawyer
would not otherwise invest on the client's behalf
becau'se those funds would not produce net
income over the cost ofinvesting them.
How does IOLTA affect financial
institutions?
Nearly all Michigan banks and savings and loan
associations that offer commercial accounts to
their lawyer customers already participate. A
lawyer cannot keep a pooled client trust account
at a financial institution that chooses not to
participate or does not meet the Rule's
requirements. (As used in this brochure, the
term "financial institution" includes banks,
savings and loan associations and open-end
investment companies.)
What effect will IOLTA have on
lawyers?
Very little lawyer ti:\lle is needed. The mechanics
ofestablishing an IOLTA account are simple.
(See "How Do I Comply with IOLTA?" below).
Nothing changes in the lawyer's handling of
client trust funds. The financial institution
calculates interest on IOLTA accounts remits
the interest to the Foundation and sends all
required reports to the lawyer and the
Foundation.
Which financial institutions are eligible
to offer IOLTA accounts?
Lawyers must keep IOLTA accounts at banks or
savings and loan associations or open-end
investment companies which qualify as "Eligible
Institutions." Banks and savings and loan
associations must be authorized to do business in
Michigan, with their deposits insured by an
agency ofthe federal government. Open-end
investment companies must be registered with
the Securities and Exchange Commission and
meet certain capital guidelines defined in the
next section. All mustpay IOLTA accounts no
less than the highest rate they pay to their own
non-IOLTA customers. Funds must be subject
to withdrawal upon request and without delay as
soon as permitted by law.
What type of accounts are IOLTA
accounts?
Under MRPC 1.15(a)(3), an IOLTA account is
an "interest- or dividend-bearing account as
defined by the Michigan State Bar Foundation."
The Foundation's definitions related to IOLTA
accounts follow.
An IOLTA account is: I) an interest-bearing
checking account; 2)a money market account
with or tied to check-writing; 3) a sweep account
which is a money market fund or daily overnight
financial institution repurchase agreement
invested solely in or fully collateralized by U.S.
Government Securities; or 4)an open-end money
market fund solely invested in or fully
collateralized by U.S. Government securities. A
financial institution may choose to pay the
higher sweep or money market account rates on
a qualifying IOLTA checking account. Financial
institutions that do not offer the higher rate
products to non-IOLTA customers do not have
to do so for IOLTA accounts.
(
(
Page 2 of4

()
Additional definitions related to IOLTA
accounts include: (i) A daily overnight financial
institution repurchase agreement may be
established only with an institution that is
deemed to be "well capitalized" or "adequately
capitalized" as defined by applicable federal
statutes and regulations. (ii) An eligible
institution is not required to offer sweep products
for IOLTA accounts ifit does not offer them to
non-IOLTA customers or ifthe institution elects
to pay its sweep account rate or a higher rate on
IOLTA checking accounts which meet relevant
minimum balance and other requirements. (iii)
An open-end money market fund must hold itself
out as a money market fund as defined by
applicable federal statutes and regulations under
the Investment Company Act of 1940, and, at the
time ofthe investment, have total assets of at
least $250,000,000. (iv) "U.S. Government
Securities" refers to U.S. Treasury obligations'
and obligations issued or guaranteed as to
principal and interest by the United States or any
agency or instrumentality thereof.
Does the rule require lawyers to
contact their banks to assure proper
rates are being paid?
No. The Foundation attends to implementation
by financial institutions. Ifthere is an issue, the
Foundation will contact the lawyers affected and
provide assistance and information to them.
Who calculates and remits the interest
on IOLTA accounts?
The financial institution does. Instructions on
how to calculate, remit and report the interest are
included in the "Financial Institutions IOLTA
Handbook," available at www.msbf.org/iolta.
Who pays the IOLTA account fees and
service charges?
Financial institutions may deduct only those
reasonable service charges specified in the rule.
Many waive all fees and charges on IOLTA
accounts to benefit the charitable purposes. Any
fees they choose to charge may be deducted only
from interest earned by the IOLTA account. The
lawyer is responsible for all other fees, e.g.
check-printing, wire-transfer and NSF charges.
Financial institutions may bill lawyers for
charges in excess ofinterest earned on a
particular account for a particular remitting
period, but may waive such charges.
Who pays taxes on the IOLTA account
interest? .
Nobody. The Internal Revenue Service has
concluded that interest income from IOLTA
accounts payable to a tax-exempt organization,
such as the Foundation, is not taxable to (or
deductible by) the client or the lawyer. Also,
there are no IRS reporting requirements for the
lawyer or the client because all IOLTA accounts
will use the Foundation's tax identification
number (38-1459016).
How do I comply with IOLTA?
Opening a new IOLTA account is simple:
1. Fill out the "Notice to Eligible Financial
Institution" form, available at
www.msbf.org/iolta.
2. Take the completed Notice to your financial
institution.
3. After the financial institution accepts the
Notice (indicated by an authorized signature),
distribute copies ofthe completed form as
follows:
A. Give one copy to the financial institution.
B. Send a second copy (with a list ofall
attorneys in law firm attached) to the
Foundation;
C. Keep a third copy for law firm records.
Complete these steps even ifyour financial
institution also requires you to sign its own
signature cards.
Ifyou already have an IOLTA account, the new
Rule likely will not require you to do anything
Page 3 of4

new or different. Ifyour existing account is
eligible for a higher rate, you may be asked to
sign the financial institution's standard form for
payment ofhigher rates. However, because
higher interest rate products generally require a
high minimum balance, most IOLTA accounts
will be interest-bearing checking accounts.
(
What do IOLTA funds benefit?
The benefit goes to civil legal assistance
programs that help low-income families and to
improvements in the administration ofjustice.
This helps foster stable communities. It
promotes access to justice for those with
nowhere else to tum and facilitates education of
citizens about thejustice system. Since IOLTA
began in Michigan in 1990, over $18 million has
been distributed to support such purposes.
Information on grant applications and projects
assisted appears on the Foundation's web site at
www.msbf.org.
Additional Questions?
Call the Michigan State Bar Foundation at
800-968-6723, fax your inquiry to
517-371-3325, email it to msbf@msbf.org,or
see www.msbf.orgforIOLTA forms and
additional information.
Michigan State Bar Foundation
1-800-968-6723
www.msbf.org
2007-2008 Officers
President
Margaret 1. Nichols
Vice-President
Hon. Alfred M. Butzbaugh
Treasurer
~amontE. Buffington
Secretary
Stefani A. Carter
Trustees
Thomas W. Cranmer
Peter H. Ellsworth
. Julie 1. Fershtman
Michael G. Harrison·
Hon. Harold Hood
Jon H. Kingsepp
Hon. William B. Murphy
Jon R. Muth
Hon. Wendy L. Potts
Richard K. Rappleye
Hon. Victoria A. Roberts
Richard A. Soble
Ex-Officio Trustees
Hon. Clifford W. Taylor
Ronald D. Keefe
Edward H. Pappas
Executive Director
Linda K. Rexer
c.
Page 4 of4

Michigan Rules of Professional Conduct 1.15
Rule 1.15 Safekeeping Property
(a)
Definitions.
(1) "Allowable reasonable fees" for IOLTA accounts are per check charges,
per deposit charges, a fee in lieu ofa minimum balance, federal deposit
insurance fees, sweep fees, and a reasonable IOLTA account
administrative or maintenance fee. All other fees are the responsibility of,
and may be charged to, the lawyer maintaining the IOLTA account. Fees
or charges in excess ofthe interest or dividends earned on the account for
any month or quarter shall not be taken from interest or dividends earned
on other IOLTA accounts or from the principal ofthe account.
(2) An "eligible institution" for IOLTA accounts is a bank or savings and loan
association authorized by federal or state law to do business in Michigan,
the deposits ofwhich are insured by an agency ofthe federal government,
or is an open-end investment company registered with the Securities and
Exchange Commission authorized by federal or state law to do business in
Michigan. The eligible institution must pay no less on an IOLTA account
than the highest interest rate or dividend generally available from the
institution to its non-IOLTA customers when the IOLTA account meets
the same minimum balance or other eligibility qualifications. Interest or
dividends and fees shall be calculated in accordance with the eligible
institution's standard practice, but institutions may elect to pay a higher
interest or dividend rate and may elect to waive any fees on IOLTA
accounts.
(3) "IOLTA account" refers to an interest- or dividend-bearing account, as
defined by the Michigan State Bar Foundation, at an eligible institution
from which funds may be withdrawn upon request as soon as permitted by
law. An IOLTA account shall include only client or third person funds that
cannot earn income for the client or third person in excess ofthe costs
incurred to secure such income while the funds are held.
(4) "Non-IOLTA account" refers to an interest- or dividend-bearing account
from which funds may be withdrawn upon request as soon as permitted by
law in banks, savings and loan associations, and credit unions authorized
by federal or state law to do business in Michigan, the deposits ofwhich
are insured by an agency ofthe federal government. Such an account shall
be established as:
(A)
a separate client trust account for the particular client or matter on
which the net interest or dividend will be paid to the client or third
person, or
( )
"-..
Page 1 of3

Michigan Rules of Professional Conduct 1.15
(B)
a pooled client trust account with subaccounting by the bank or
savings and loan association or by the lawyer, which will provide
for computation ofnet interest or dividend earned by each client or
third person's funds and the payment thereofto the client or third
person.
(
(5) "Lawyer" includes a law firm or other organization with which a lawyer is
professionally associated.
(b)
A lawyer shall:
(c)
(d)
(e)
(1) promptly notify the client or third person when funds or property in which
a client or third person has an interest is received;
(2) preserve complete records ofsuch account funds and other property for a
period offive years after termination ofthe representation; and
,
(3) promptly payor deliver aIlY funds or other propertythat the client or third
person is entitled to receive, except as stated in this rule 9r otherwise
.permitted by law or by agreement with the client or third person, and,
~pon requestby the client or third persop., promptly render a full
accounting regarding such property.
When t\yo or more persons (one ofwh9m may be the lawyer) claim interest in the
property, it shall be kept separate by the lawyer until the dispute is resolved. The
lawyer shall promptly distribute all portions ofthe property as to which the
interests are not in dispute.
A lawyer shall hold property ofclients or third persons in connection with a
representation separate from the lawyer's own property. All client or third person
funds shall be deposited iI). an IOLTA or non-IOLTA account. Other property
shall be identified as such and appropriately safeguarded.
In determining whether client or third person funds should be deposited in an
IOLTA account or a non-IOLTA account, a lawyer shall consider the following
factors:
(
(I)
the amount ofinterest or dividends the funds would earn during the period
that they are expected to be deposited in light of(a) the amount ofthe
funds to be deposited; (b) the expected duration ofthe deposit, including
the likelihood ofdelay in the matter for which the funds are held; and (c)
the ,rates ofinterest or yield at financial institutions where the funds are to
be deposited;
Page 2 of3

Michigan Rules of Professional Conduct 1.15
(2) the cost ofestablishing and administering non-TOLTA accounts for the
client or third person's benefit, including service charges or fees, the
lawyer's services, preparation oftax reports, or other associated costs;
(3) the capability offinancial institutions or lawyers to calculate and pay
income to individual clients or third persons; and
(4) any other circumstances that affect the ability ofthe funds to earn a net
return for the client or third person.
(t)
(g)
(h)
A lawyer may deposit the lawyer's own funds in a client trust account only in an
amount reasonably necessary to pay financial institution service charges or fees or
to obtain a waiver ofservice charges or fees.
Legal fees and expenses that have been paid in advance shall be deposited in a
client trust account and may be withdrawn only as fees are earned or expenses
incurred.
No interest or dividends from the client trust account shall be available to the
lawyer.
(i)
The lawyer shall direct the eligible institution to:
(1) remit the interest and dividends from an IOLTA account, less
allowable reasonable fees, ifany, to the Michigan State Bar
Foundation at least quarterly;
(2) transmit with each remittance a report that shall identify each
lawyer for whom the remittance is sent, the amount ofremittance
attributable to each IOLTA account, the rate and type ofinterest or
dividends applied, the amount ofinterest_or dividends earned, the
amount and type offees deducted, ifany, and the average account
balance for the period in which the report is made; and
(3) transmit to the depositing lawyer a report in accordance with
normal procedures for reporting to its depositors.
U) A lawyer's good-faith decision regarding the deposit or holding ofsuch funds in
an IOLTA account is not reviewable by a disciplinary body. A lawyer shall
review the IOLTA account at reasonable intervals to determine whether changed
circumstances require the funds to be deposited prospectively in a non-IOLTA
account.
Adopted October 18, 2005
Page 3 of3

TEN MOST COMMON COMPLAINTS FROM CLIENTS
l)
Presented at:
State Bar of Michigan
Tips and Tools for a Successful Practice
Stephen P. Vella
Senior Associate Counsel
Attorney Grievance Commission

INTRODUCTION
As an intake attorney on the staff of the Attorney Grievance Administrator and
c..
the Attorney Grievance Commission, I review Requests for Investigations filed in our
office by members of the public against Michigan attorneys. The initial process involves
analyzing which files can be resolved fairly quickly and those Y'lhich require more
extensive investigation and possible prosecution for alleged ethical violations.
The following is an unofficial summary, from my perspective, of the ten most
common client complaints seen in our office.
Recognizing your clients' "hot-button"
issues is one step further toward tailoring your legal practice in such a way that they are
satisfied with your representation regardless of the outcome.
1. My .attorney won't respond to my questions and. requests for
information.
• ·Can't get a hold of my attorney;
• Won't answer the phone;
• Won't respond to letters or e-mails;
• Can't get past the secretary;
• Always told attorney is busy and will call me back;
• Attorney does not give me copies of anything even when I ask for it
(Le.-written retainer agreement, a bill/receipt, and important
pleadings).
c
2. My attorney will not keep me informed about my case.
• My attorney did not ever call me; I always had to phone him/her;
• My attorney contacted me at the last minute to attend a deposition,
hearing, or trial;
• My attorney did not tell me about a motion for summary disposition; (

(
• My attorney did not keep me informed of the status of my matter;
• My attorney did not explain anything to me about my case, about
how to answer questions in a deposition or in court;
• My attorney did not explain my settlement;
• My attorney went into the judge's chambers without me.
3.
My attorney is neglecting my case.
• My attorney has not obtained any records;
• My attorney has not taken any depositions or contacted my
witnesses;
• My attorney has had my file for X months or X years and hasn't
filed my case I yet;
• My attorney let a deadline pass;
• My attorney doesn't have time for me;
• My attorney says my case is not that important;
• Now that my attorney has received the fee payment, he/she won't
do anything;
• My attorney showed up late for court, or not at all;
• My attorney left the court room, left me all alone, went to different
courtroom;
• My attorney did not initiate any discovery, but just reacted to what
the other side was doing;
• My attorney kept me waiting for X minutes/hours;
• My attorney appears to be disorganized;
• My attorney sent someone else in his/her place to my court hearing
or deposition;
• My attorney missed our scheduled office appointment;
• My attorney did not fight for me;
• My attorney did not cross exam the other sides' witnesses;
• The judge and/or opposinOg attorney made my attorney look foolish.

4. My attorney gave me bad advice.
• My attorney should have advised me that the law was not
favorable, and my case would not be successful, before I paid an
attorney fee;
• My attorney told me something that was incorrect;
• My attorney changed his/her mind about the strength of my case
and forced me into a settlement;
• My attorney promised I'd win. I've lost everything;
• My attorney did not get a good settlement for me.
(
5. My attorney lied to me.
• My attorney told me my case was filed when it wasn't;
• My attorney told me my case was still pending when it wasn't;
• My attorney did not tell me the true reason why my case was
dismissed;
• My attorney told the court he/she had authority to settle the case
but did not;
• My attorney did not tell me that the statute of limitations had run on
my case before it was filed.
6. My attorney stole my money.
• The settlement occurred weeks ago, and I haven't seen the money
yet;
• My attorney was suppose to hold my funds, but now the funds are
gone;
• My attorney said he/she would borrow the funds for only a short
period and pay them back with interest;
• My attorney took his/her fee out of my settlement without an
agreement to do so;
• My attorney won't disburse the funds until I pay his/her fee.

7. My attorney used to represent me, and he/she is now representing
the opposition.
• My attorney did my estate planning and drafted my Will and is now
representing my wife in our divorce;
• My husband's attorney in our pending divorce represented my
husband and me in a Chapter 7 Bankruptcy three years ago;
• The attorney who represented our business and gave me personal
advice over the years is now helping my fellow officers or partners
to force me out of the business.
8. My attorney is withdrawing from my case.
• My attorney threatened to withdraw if I didn't pay his/her bill;
• My attorney threatened to withdraw when I refused to accept the
other side's settlement offer;
• My attorney threatened to withdraw when I filed a Request for
Investigation against them with the Attorney Grievance
Commission.
9. My attorney was rud.e to me.
• My attorney used profane language;
• My attorney yelled at me, belittled me, or made me feel stupid;
• My attorney lost control of himself/herself for no reason;
• My attorney made inappropriate sexual advances or comments;
• My attorney was dressed sloppy and/or inappropriately for court;
• My attorney smelled like alcohol.
( )
"---

10. My attorney over-charged me for his/her services.
• I paid my attorney a "retainer", and he/she said that is all it would
cost, and now I'm getting billed for more;
• My case concluded quickly, and my attorney won't refund my
money, stating that it is non-refundable;
• My attorney took a non-refundable retainer and now that I fired
him/her, won't give any of it back;
• My attorney estimated that to handle my case it shouldn't cost more
than X dollars, and now its costing much more;
• My attorney did not give an accounting/itemized invoice of the
fees/services rendered and costs;
• My attorney did not keep the retainer in a separate account;
• My attorney put a lien on my house for fees;
• My attorney is charging me to obtain a copy of my file.
(
(
'-.
(

(~
\.
I
PROFESSIONAL DISCIPLINARY PROCEEDINGS
OVERVIEW
A. MCR 9.100 et seg.
Creates the disciplinary system for attorneys.
B. MCR 9.102(A)
These rules are to be liberally construed for
the protection of. the.public, the courts, and
the legal profession. MCR 9.102(A).
/
(
II OFFICE OF THE ATTORNEY GRIEVANCE COMMISSION
A. MCR 9.108
Creates the Attorney Grievance Commission.
1. The Commission is the prosecution arm of
Supreme Court for the discharge of
constitutional responsibility to supervise
2.
the
its
and
discipline Michigan attorneys.
The Commission meets once a month to decide matters
brought before it, including whether to close a
file, issue a· caution letter, offer an
admonishment, authorize the filing of a formal
complaint, approve settlements in formal
disciplinary proceedings, and authorize appeals to
the Attorney Discipline Board and Michigan Supreme
Court.
B. MCR 9.109
Creates position of the Grievance Administrator.
1. The Grievance Administrator runs the office. Sets
policies. Attends monthly Commission meetings.
2. May close grievances summarily through intake
program.
III MAKING (FILING) A "REQUEST FOR INVESTIGATION" (R/I) BY A
COMPLAINANT"
A. Who Has Standing to Request an Investigation Against an
Attorney.
1. All members of the public (MCR 9.112(A).
2. Clients.
3. Opposing parties.
4. Other attorneys.
s. Judges.
6. The Grievance Administrator (MCR 9.109(B) (5).
B.
C.
For.m of Request For Investigation (MeR 9.112(B).
1. In writing.
2. Must name an attorney; not a firm, or other entity.
3. No jurisdiction over current judges.
4. Signed by complaint.
5. Describes alleged misconduct.
Does Not Automatically Ter.minate the Attorney-Client
Relationship.
1

IV AGC OFFICE INTAKE PROCEDURE MCR 9.112(C) (1) (d)
A. Staff Attorney Reviews Request For Investigation (R/I)
For For.m and Substance.
1. If inadequate, staff requests more information.
2. If adequate, staff counsel has discretion to
recommend to Grievance Administrator to close
summarily, or,
3. Perform limited, time sensitive investigation, or,
4. Send R/I to Respondent lawyer at his/her "Rule 2"
address for an answer by regular mail and when
necessary certified mail return receipt requested.
(See MCR 9.112(C) (1) (b); and Rules Concerning State
Bar of Michigan, Rule 2') .
c
B. Respondent Attorney Files An Answer at' the Office of the
Attorney Grievance Commission (MCR 9.113(A)
1. Within 21 days of the date of the mailing by the
Attorney Grievance Commission office.
2. "Fully and fairly" disclosing all facts and
circumstances pertaining to the allegations of
misconduct.
3. A short extension may be given if requested timely.
4. Refusal to answer on expressed constitutional
grounds and/or grounds of professional privilege.
See MCR 9.113 (B) (1) - (3).
5. If the Complainant is/was the'client of Respondent, (~
the attorney/client privilege is waived "as to
matters relating to the Request for Investigation
for the purpose of the Commission's investigation."
(See MCR 9.113(C).
C. Staff Attorney Reviews the Respondent's Answer
1. Review fo:r:: proper, form: . in writing; bears
Respondent's original signature, includes two sets
(i. e. an original and one cOPY), and "fully and
fairly discloses."
2. If form is improper, staff counsel may request in
writing that Respondent provide a more complete
answer which comports withMCR 9.113(A), within a
stated deadline; or, ,
3. If form is proper, staff counsel.may recommend to
Grievance Administrator to close R/I summarily; or
4. Assign the file to other staff counsel for further
investigation and decision by the Attorney
Grievance Commission; or,
5. Perform limited, time sensitive investigation,
following which the file will either be summarily
closed or assigned to other staff counsel for
further investigation and decision by the Attorney
Grievance Commission.
6. If file is closed, a letter briefly stating the C,'
reason for the closure is sent to complainant and
Respondent. If Respondent filed an answer, the
2

answer is sent to complainant with the closing
letter.
V ASSIGNMENT TO STAFF COUNSEL FOR INVESTIGATION
A. Respondent's answer sent to Complainant· for reply
comments.
B. Investigation is confidential: no disclosure of reply
comments, office notices, statements, documents, records,
etc. See MCR 9.126(A).
C. Request for informal interviews by telephone or in
person.
D. Sworn statements, voluntarily or by subpoena. See MRPC
8.1 (a) .
E. Subpoena power for witnesses and production of documents
(MCR 9.112(D).
F. Contempt for failure to comply with subpoena may be
pursued in circuit court. See MCR 9.112(D) (2).
(
VI REVIEW BY ATTORNEY GRIEVANCE COMMISSION (AGC)
A. Informal Confidential Review at Monthly Meeting (Not a
Hearing) .
B. AGC Generally has Five Options:
1. If investigation is incomplete, refer file back to
staff counsel for further work;
2. Dismiss R/I and close the file;
3. Issue an admonishment (See MCR 9.106(6);
a) If Respondent files at the office of the AGC
an objection within 21 days of the date of the
admonishment letter, the admonishment shall be
vacated. See MCR 9.106(6) and 9.115 (J) (3);
b) If the admonishment is vacated, the matter is
resubmitted to AGC for further review and
decision to either close or file a formal
complaint.
4. File a formal complaint: drafted by staff counsel
and filed with the Attorney Discipline Board (ADB).
5. Offer a contractual confidential probation for less
serious misconduct substantially related to an
alcohol/substance abuse problem. See MCR 9.114 and
9.115(J)(3).
VII FORMAL COMPLAINT FILED WITH ATTORNEY DISCIPLINE BOARD (ADB)
A. Commences formal discipline proceedings, a matter of
public record, and adversarial in nature;
B. ADB gives 'matter a case number, assigns a hearing panel,
schedules a hearing date.
C. AGC serves formal complaint on Respondent pursuant to MCR
9.115(c). Service is effective upon mailing, not when or
if received.
l)
VIII RESPONDENT'S ANSWER TO THE FORMAL COMPLAINT
A. Must be filed at office of AGC within 21 days after
of service (ie: mailing) of the formal complaint.
9.115 (D) (1) .
date
MCR
3

B.
C.
Default will be entered if answer not timely filed. MCR
9.115 (D) (2) .
Failure to timely answer is a separate act of misconduct.
(
IX
HEARING PROCEDURE
A. Pre-hearing Procedure: extensions, adjournments,
amendments, motions, identification of witnesses and
hearing exhibits, production of witness statements. MCR
9.115 (F) .
B. Hearings conducted pursuant to MCR 9.115(A)-(L), and the
civil rules of procedure for a bench ·trial, per MCR
9.115 (A) .
C. Panel consists of 3 members, and two members constitute a
quorum. MCR 9.111(A).
D. Respondent must appear at hearing. MCR 9.115(H).
E. Hearings are conducted in two phases:
1. The first phase is the misconduct hearing wherein
the panel determines whether Respondent committed
misconduct as alleged, or whether the formal
complaint should be dismissed.
2. If there is a finding of misconduct, the second
phase, known as ,the, aggravation/mitigation he~ring,
or the sanction hearing, is conducted to determine
the level' of discipline.
a. Mitigating and, aggravating factors are
described in the AB~ Standards for Imposing
Lawyer Sanctionlp, (Standard 9.1 et seq) . C'
b. The level of discipline is determined on a
case by case basis pursuant to the type of
misconduct involved, prior discipline and
admonishments, prior contractual probations,
aggravating and/or mitigating factors, the
applicability of the ABA Standards for
Imposing Lawyer Sanctions, and prior case
decisions of the Attorney Discipline Board and
the Mi9higan Supreme Court.
F. Imposition of Discipline
1. The hearing panel's findings and conclusions, set
forth in a written report and accompanied by the
appropriate order, are served by the ADB upon the
parties.
2. The panel's discipline options are:
a. No discipline;
b. Probation: See MCR 9.106(4) and 9.121(C).
c .
Reprimand;
d. Suspension: 30 days to 5 years.
1. Suspension of 30 days to 179 days,
Respondent is automatically reinstated by
filing with the Supreme Court Clerk, the
ADB, and the Grievance Administrator, a
true aff idavit showing full compliance
with all terms and conditions of the C·... "
discipline order. MCR 9.123(A);
2. Suspension of 180 days or more requires
4

Respondent to file a reinstatement
petition and to prevail at a
reinstatement hearing, otherwise
suspension remains in effect. MCR
9.123(B) and 9.124(D) i
e. Revocation (disbarment)
1. Minimum period of 5 years.
2. Requires reinstatement and
recertification.
3. Recertification (taking the Bar Exam) will be
required by the Board of Law Examiners if an
attorney is suspended from the practice of law and
does not practice within 3 years of the effective
date of the suspension, whether due to the period
of the discipline order or voluntarily. MCR
9 . 123 (c) .
4. Panel may impose additional conditions in the order
of discipline, such as restitution, ethics course,
law practice management courses, probation,
counseling, and A.A. The suspension remains in
effect if all conditions are not satisfied.
5. Administrative Costs: imposed against Respondent in
all orders of discipline. The suspension remains
in effect until all costs are paid. The ADB may
summarily increase a reprimand to a suspension if
the costs are not paid before the deadline for
doing so. See MRC 9.128(B) (1) (a) and (b).
6. Respondent's administrative fees must accompany a
petition for reinstatement. MCR 9.128(B)(1)(c}
and (d).
G.
Conviction of Criminal Offenses
1. The attorney who is convicted of a crime, the
prosecutor, and defense attorney, . whether a
misdemeanor or felony, must notify the Grievance
Administrator, in writing, within 14 days after the
conviction. MCR 9.120(A).
2. Upon the occurrence of a conviction of a felony, an
attorney's license to practice law is automatically
suspended until a further entry of an order from a
hearing panel. There is no automatic suspension
for misdemeanor convictions.
3. The certified copy of the judgment of conviction is
conclusive proof of the crime having occurred, and
therefore, that misconduct occurred. MCR
9.104(A) (5). The Grievance Administrator may file
the judgment of conviction with the ADB. If this
occurs, the ADB will order the attorney to appear
and show cause why a final order of discipline
should not be entered. Accordingly, there is no
misconduct hearing, but rather only the
aggravation/mitigation hearing to determine the
length of the suspension or if revocation is
warranted.
5

XI
APPEALS
A. Petition For Review Filed With the ADB:
1. Must-befiled-withtheADB within 21 days from the
date of service of the order of discipline.
2. The ADB schedules cutoff dates for the filing of
written briefs and oral argument, pursuant to an
order to show cause. (MCR 9.118).
3. Procedure for stay of discipline order while appeal
is pending:
a. Automatic stay ordered by the ADB if
suspension is for.179 days or less, or if a
reprimand, or if probation.
b. A petition setting forth good cause is
required to stay an order which provides for a
suspension of 180 days or more, or a
revocation (disbarment). MCR 9 .115(K) .
B. Application For Leave To Appeal to the Michigan Supreme
Court.
1. Following a final order of discipline or dismissal
by the ADB on review under MCR 9.118.
2. Application must comply withMCR 7.302.
3. Must file within 28 days of theADB's final order of
discipline or dismissal. MCR 9.122 (A) (1) .
.4. Same rules and procedure for an automatic
stay/petition for stay of the order of discipline
apply. MCR 9.122(C).
C. Complainant's Rights
1. If the Grievance Administrator or the AGC
closes/dismisses a Request for Investigation or
issues an admonishment, a Complainant may file a
writ of superintending control requesting the
Michigan Supreme Court to review the decision and
to reopen the file. MCR 7.304 and 9.122(A) (2).
2. Complainants may file a claim for review with the
ADB pursuant to MCR 9.118 when not satisfied the
decision of a hearing panel. in a formal
disciplinary matter .
. 3. Complainants may file an application for leave to
appeal with the Michigan Supreme Court, pursuant to
. MCR 9.122(A) (1) when .not satisfied with an opinion
and order of the ADB following its review of a
panel decision.
(
(
Prepared by: Stephen P. Vella
Senior Associate Counsel
Attorney Grievance Commission
April 2003; updated 2006
c
6

( TIPS AND TOOLS FOR A SUCCESSFUL PRACTICE
Presented by: Stephen P. Vella
"My Question Is..."
1. Ifa Request for Investigation is filed against me by my client:
• Do I still communicate with the client?
• Can I attempt to resolve issues with the client?
• Can I make a refund?
• Can I request or require the client to withdraw the Request for
Investigation?
2. How long should my answer be?
3. What documents should I attach to my answer?
4. Will the Complainant see my answer?
5. Can I ask the AGC to withhold my answer from Complainant?
6. Can I get an extension of time to file an answer?
7. IfI'm beyond the due date to answer, should I still answer?
8. What ifI need to retrieve my file, a court file, etc., before I can answer?
9. Can I supplement my answer?
10. Why should I cooperate with the investigation?
11. Can I call the AGC for an update on the status of the file?
12. How long will it take to close the file in the intake process, or move the file
beyond the intake phase?
13. How long will it take for a decision if the Request for Investigation goes
beyond the intake process and is transferred to another attorney for a full
investigation?
14. Should I retain counsel?
15. Should I agree to an offer of fee arbitration?

16. If I admit to a mistake, will I automatically be prosecuted for an ethical
violation? (
17. Who will see the investigation file? Is it confidential?
18. Can I make an offer of settlement of an admonishment, contractual probation,
reprimand, suspension, or disbarment before the investigating attorney submits
the file to the Commission for a decision as to whether to file a Formal
Complaint?
19. Who decides whether a Formal Complaint is to be filed and what allegations of
misconduct will be pled?
20. When am I served? How much time do I have to answer?
21. Must the AGC's Formal Complaint be limited to only the allegations made in a
Request for Investigation?
22. Can I make an offer of settlement once a Formal Complaint is filed?
23. Who approves settlements?
24. Must I report misdemeanor convictions?
25. Will the same AGC staff attorney be assigned every Request for Investigation C
that is filed against me?
26. Do any of the staff attorneys know how law is practiced in the realworld?
27. Can I call the AGC and ask for a legal opinion before I act?
28. Can I charge a non-refundable retainer fee?
29. What is a retainer fee, a flat fee, and an engagement fee?
30. Do I put retainers in anIOLTA account or my business account?
31. Who has standing to file a Request for Investigation?
32. Do I have to give the client his/her file when I'm discharged?
2
(

The Burden of Stigma
Barrier to Treatment, Bane ofRecovery
SubmittedbyMartha D. Burkett, MPA, .MA, LPC, NCC, CAAC
LJAPProgram Administrator
State BarofMichigan
In our society there is a very negative and prevalent association with the words "addict" and
"alcoholic". This antiquated association was and continues to be born ofignorance and unhealthy
shame, or stigma. Shame and the societal stigma that accompanies it is very detrimental to
understanding addiction, identifying those in need of treatment, and facilitating acceptance,
treatment, and subsequent recovery among those afflicted with this debilitating condition. This
position of judgment and attitude ofintolerance often stems from the widespread and misinformed
belief that addiction is a terrible character flaw, or moral deficiency, and that those who suffer are
deserving of their 'selfinflicted' pain.
If the average person as a representative of the general population were asked to describe the mental
images conjured up by the words "addict" and "alcoholic", the description would include some
variation ofa stereotypical skid row bum or derelict. Sadly, within our American culture oflegal
professionals there are many who subscribe to and endorse this stigmatization as well. In His video
entided; "The Disease Concept ofAlcoholism", Dr. David Ohlms presents the reality that this
stereotyped 'derelict' population comprises only 4% of those identified as addicted people in our
society. So who are the other 96%, and what do they look like? They are students, teachers, lawyers,
bartenders, chefs, postal workers, housewives, architects, gas station attendants, bank tellers, wait
people, veterinarians, psychologists, dentists, social workers, anesthesiologists, clergy, physicians
assistants, nurses, doctors, mothers, fathers, brothers, sisters, aunts, uncles, cousins, and
grandparents; and they look just like you and me.
There is not one definitive answer to the question "How does addiction get started?" and it is
accurate to say that scientific and social researchers sometimes have differing opinions about
whether addiction is inherited or learned, or both. However all do agree that it is an insidious
condition, capable of causing great harm and distress to individuals, families, negative impact within
the work force, and society at large. Regardless of differing opinions about the etiology, in 1955 the
American Medical Association did define alcoholism (addiction) as a disease, yet in our culture
persons who suffer from this disease are seldom afforded the same compassion and support that a
person who is diagnosed with the conditions of heart disease, cancer or diabetes might experience.
To say that a cardiac, cancer or diabetic patient was deserving ofhis or her condition or to state that
it was "selfinflicted" would be considered contrary to scientific knowledge, thoughdess and even
cruel. Yet such thinking is commonplace in regard to those who suffer from the condition of
addiction.
(
\'"
Legalprofessionals who suffer from this disease are not exempt from stigmatization, regardless of
whether they are in an acute state of the disease, or in remission and active recovery. In part due to
the values of our culture, the legal professional has a functional role and is viewed as being an
invulnerable care taker and problem solver. Legal professionals who find themselves in the throes of
addiction are viewed both by themselves and their professional peers as broken, or fallen;

intrinsically flawed. Too often these individuals bear the very heavy burden of secret shame that
endures even into their recovery.
(
- - -- .- -'. - -
To some extent, stigma also originates out of the denial stemming from a resistance (shame) to
identify ones self and/or others as addicted people; if the prevailing sentiment is that addicted
people are "bad" or "flawed" in some fundamental way, it becomes very difficult to identify one's
self or another as such a person, hence, impeding the possibilities for intervening and receiving
needed treatment and the rebirth ofhope that recovery can provide.
Denial is not really a symptom of addiction, per se, but is most assuredly a force to be reckoned with,
within the dynamics of addiction. Denial is a thought distortion - it's function is to protect the
addict from fully experiencing physical, psychological, social, spiritual and emotional pain
exacerbated by addiction, making it possible for addiction to continue and to progress in it's
insidious destruction ofit's host.
Denial is very frustrating for those in close contact with the addicted person. It is important to
understand that a person in the throes ofaddiction, by virtue of the characteristic ofdenial that is
inherent in the disease, is unable to see clearly. Consequendy, without the intervention of others, they
may be "unaware" of the havoc wreaked on their own lives, as well as the lives of those around
them.
Even intelligent, educated people who are closely involved with the addicted person will sometimes
develop their own protective thought distortion (denial) which manifests in behaviors and attitudes
which enable the addicted person to continue on their path of destruction.
Some examples of enabling in the workplace include:
.:. Accepting excuses/alibis for mistakes and/or irresponsible behavior
.:. Taking over the responsibilities of the impaired person
.:. Making excuses or covering for the impaired person
.:. Ignoring signs ofimpairment, such as:
~ excessive absenteeism/tardiness
~ changes in demeanor, temperament and/or mood swings
~ irritability
~ poor or deteriorated hygiene
~ stressed or fractured interpersonal relationships
~ changes in work habits
~ poor relationships.with clients
c
Uncomfortable and awkward as it may be, it is essential to address these symptoms and behaviors
early on. It is common thinking in that a person who suffers with addiction must "hit bottom"
before he/she experiences an epiphany and becomes willing to seek and accept help and initiate
change. Allowing the impaired individual to experience natural consequences manifested out of
those distorted attitudes,. ideas and behaviors inherent in the addictive process can expedite epiphaf!J.
It is always important to be well prepared when addressing the behavior of a professional who is
impaired, and to maintain a position that is discreet, yet direct; firm, yet compassionate, and above
all, respectful. It is advisable to consult with treatment professionals who are familiar with the
dynamics of addiction when preparing for this process. (

Successful treatment and recovery from addiction are processes, which involve extensive
renegotiation ofrelationships with self and others. Introspection and self- examination, as well as
the exploration and identification of feelings are part of this renegotiation. It is inevitable that in this
intervention, healing and recovery process, the addicted person will experience shame and they will
struggle with differentiating appropriate, healthy shame about what thry did while operating under
addiction, as opposed to unhealthy shame about who thry are, by virtue ojidentifjing themselves as addicted
people. It is most helpful if those around them join in a similar, though perhaps less arduous,
undertaking.
Healthy shame facilitates healing. It is an important part ofthe renegotiation process for the
recovering individual to acknowledge shame about personal wrongdoing within the context of the
disease, and to make restitution whenever possible. This is ~ lengthy and sometimes painful
endeavor. Unhealthy shame, or stigma, not only prohibits healing, it also exacerbates psychic pain
associated with the condition of addiction. This is why forgiveness, or letting go, is also a part of the
process of recovery. This part of the renegotiation ofrelationships is essential to healing, and is most
beneficial ifit becomes a mutual process involving the recovering individual and his/her support
network. It applies to the forgiveness of overt wrongdoing initiated by the recovering person (self
forgiveness) while impaired, as well as wrongs committed against that person (forgiveness of others).
Perhaps most importantly, it applies to the lettinggo ojattitudes, ideas, an.d behaviors, which do notfacilitate
healing. This release of old attitudes, ideas, and behaviors allows for an atmosphere of freedom and
renewal in the hearts and minds of the recovering individuals as well a;s the environs of society.
Legal professionals are advisors and counselors, parents, children, grandparents, colleagues, friends,
and most importantly, human beings who give tirelessly of themselves helping others. Dogged
commitment and dedication to this monumental task can sometimes "take a toll and in this endeavor,
even the good and the strong may falter...
Perhaps this article can serve as a gentle reminder that as human beings, lawyers and judges too,
sometimes need diagnosis, treatment, time, and support for healing. Perhaps it can serve as
encouragement for legal professionals to further educate themselves about the dynamics of
addiction and professional impairment. Hopefully it will inspire them to examine personal and
cultural attitudes, which contraindicate recovery. And last but not least, perhaps it can be 4e.ard as a
call to let go of rigid beliefs, and take good care of each other.
(
'---

Which Came First, the Egg or the Hen?
A lookat the co-incidence ofdepressive complaints and substance abuse
Martha Burkett, MPA, A!A, LPC, NCe, CAAC
LJAPProgram Administrator
State BarofMichigan
Having spent nearly twenty years as a clinician in both in-patient and out patient substance abuse
treatment settings, I have had the opportunity to make the acquaintance ofnumerous individuals
who presented themselves for treatment, complaining of depressive symptoms. Men and women
alike, all ages, races, cultures, occupations, and socioeconomic backgrounds, describing difficulty
sleeping and/or lethargy, loss of appetite, a lack of enthusiasm for hobbies and interests, waning
sexual interest, difficulty making decisions, deteriorating interpersonal relationships, pervasive
sadness, and feelings ofisolation. Not everyone experienced all of these symptoms, but nearly all
reported some. Some even described suicidal thoughts,plans, and/or attempts. Some of these
people were attorneys. .
A portion of these individuals was clearly suffering from the condition ofaddiction, and others met
diagnostic criteria for substance abuse. Many of the individuals describedhad seen physicians
and/or mental health specialists, who provided them with prescriptions for various and sundry antidepressant
medications. Most of these individuals reported litde, if any benefit from the medications
administered, and several stated that they did not take their medications as prescribed. Often these
persons reported that the professional who prescribed the medication had lillie or no awareness of
their pattern of substance abuse. Sometimes they reported that the clinician had not asked. Other
times they indicated that they, as patients, had flatly denied, or minimized their consumption.
C
_
It is my opinion that these people who were experiencing depressive symptoms were probably
ignorant with regard to the interaction between anti-depressant drugs and psychoactive substances
like alcohol and other sedative hypnotics, marijuana, amphetamines, opiates, and/or 'designer', or
'street drugs'. They did not understand that mood altering substances like alcohol and others
mentioned, would impede, ifnot negate any therapeutic effect of the prescribed anti depressant, as
well as thwart the efforts of the most skilled therapists. Nor did they understand that by using these
substances, although they would experience a temporary sense of relief and/or euphoria, ultimately,
these drugs were causing a negative impact on their brain's natural ability to produce the chemicals
necessary for normal, healthy, "good" feelings.
It is probable that for some ofthose who suffered with the condition of addiction, exclusively, that
with traditional treatment, their depressive symptoms would clear up within weeks ofachieving
abstinence from mood altering chemicals, without the use of anti-depressants. It is also my opinion
that a portion of the individuals who complained of depressive symptoms, but did not report their
use of substances, did so because, on some level, they were afraid. They feared that if they were
required to discontinue their use of these substances, the depressive symptoms would worsen, and
become unmanageable. These people were not willful, or bad, they simply believed that they had
found a way to get relief from pain, and they were, understandably, reluctant to give that up. They
were accurate, to a certain degree, although they lacked a thorough understanding of the
complexities of their circumstances, the physiologies of depression and addiction, and the (-
implications of their behaviors.

These people were, in a haphazard fashion, "self medicating" their depressive symptoms, and
sabotaging effective treatment of their underlying depression. In some instances, it became evident
that individuals who were initially diagnosed by mental health specialists as depressed, and who
began to self medicate with mood altering substances, eventually became dependent on those
substances, further impairing their functioning, and gready compounding their unfortunate
circumstances. Most were frustrated to hear me say to them, early in treatment, that it would be
impossible to discern whether the depression was symptomatic ofsubstance abuse, or vice versa, until they had achieved
a measure ofsobriety that allowedfor accurate assessment 0J a mental health specialist. N e~ther were they pleased
with the reality that, in the event that diagnoses pertinent to depression and substance abuse werefound to be
applicable, "oncurrcnt treatment ofboth issues would be required in order to attain and achieve long-term relieffrom
either condition. Conversely, they were sometimes encouraged to learn that with accurate substance
abuse and mental health diagnoses, proper treatment·and recovery could become a reality.
Why am I saying all of this now? Because I have learned since coming into my role as Director of
the LJAP, that several studies conducted in the 1990's indicate that among those who are professionallY
employed, lawyers have among the highest rates ofdepression in the U.S.. In Amiram Elwork's book, Stress
Management for Lawyers, he cites_a recentJohns Hopkins University study, stating that attorneys are
3.6 times more likelY than members ofthe generalpopulation to experience depression. Studies also show that the
incidence ofsubstance abuse among attorneys is nearlY twice that ofthe generalpopulation. Additionally, Elwork
notes "40-75% of the disciplinary actions taken against lawyers involve practitioners who are
chemically dependent or mentally ill".
For those ofyou in the legal profession, you already know that the long hours, fierce competition,
and intensitY of your work can take a physical and emotional toll on you and your loved ones. You
may have experienced, and have surely observed in at least some ofyour peers, the occurrence of
cumulative stress leading to the deleterious effects of depression and/or substance abuse.
Because the LJAP has expanded into a 'broad brush' program, we are now responding to calls from
attorneys, related to complaints of depression. In our consultations with these attorneys, prior to making a
rcftrral to a mental health specialist, we have noted that in the mqjority ofinstances where depression is cited as the
primary complaint, the use ofmood altering substances is also reported.
This reality alarms us. We cannot conclude, on this basis, that the 'depressed' individual is also
suffering from the condition of addiction, nor can we conclude that this individual is using
substances to 'self medicate' depression. We can, however, conclude that. there mqy very well be a relationship
between the two, which warrants investigation in theform ofan assessment, performed by a licensed clinician who has
knowledge and expertise in the diagnosis and treatment ofissues related to both mental health and substance abuse.
We can also conclude that this individualis, at a minimum, atrisk for developing the
condition ofaddiction.
We understand that these attorneys are not stupid; neither are they bad. They are, however, human,
and as such, are vulnerable to pain and suffering, to exhaustion and fear, to loneliness, anger, and
disappointment. As humans, they desire relief. As humans they also have families and friends who
love them. They posses the resilience of the human spirit, and are capable ofhope, and growth, and
/.. the joy that healing can provide.
\ '- /
'-......._-_.-'

These people are deserving of our understanding, respect, attention, and energy. We want a chance C·
to tell them that their resurrectith0n to whoilleness is very attainable, wIith proper evaluation, treatment, ..
and support. It is my intention en, to ca attention to what is rea in the mix of the legal
profession. I wish to encourage self-examination, to appeal to your loyalty and compassion for
yourselves and your colleagues, and to offer the hand of the LJAP to those who are struggling to
hold sway in the sometimes difficult culture that is the legal profession.
IfYOtl, or someone close toyou is suffering silentlY with issues rooted in depression and/or substance abuse, please
contact ourfree, confidential helpline, at: 1-800-996-5522
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Time Out for Attorneys
SubmittedbyNancy Werner
Imagine walking on a path through a tropical rain forest. The sound ofyour footsteps are muted by
the thick, verdant foliage. The only sounds are the crackles and calls of the birds in the trees.
Continuing along the path, beautiful tropical flowers of every shape and color grow freely. The
tropical air is scented with the perfume of these exotic blossoms. Large, waxy, green leaves hang
down gracefully toward you, wafting in the gentle breeze. You delight in the cooler temperature as
the canopy of the forest shades you from the warm midday sun.
As you continue to stroll, you hear a faint rush ofwater. The sound becomes louder, or rather more
pronounced, until you find yourself standing in a clearing. Fine, cool spray lightly showers your
arms and face. Turning, you face a small waterfall cascading over rocks. A bench, which overlooks
the stream and waterfall, looks inviting and comfortable.
You sit on the bench and listen to the gentle sound of the water flowing past you. Closing your
eyes, your body relaxes allowing the seat of the bench to hold the weight of your body. Your
breathing slows to a rhythmic pace as your muscles begin to loosen. The worries of the day seem as
a distant memory. The serenity of this place soaks into every pore and cell ofyour body. Your mind
quiets, reflecting its surroundings and you feel yourself opening to new insights.
Now imagine having the ability to visit this special place each day. You are the only one present.
There are no distractions or demands on your time. No cell phone. No pager. No clients.
This place of beauty is ofyour own making and can be anywhere you feel most comfortable. Your
special place may be on a beach, in the mountains or sitting in a boat on your favorite stream. What
is most important in choosing that special place is that it is a place of silence, stillness and renewal.
Much attention has been paid to the price our body pays for living. Back in the good old days when
we were cavemen and cavewomen, our bodies needed the 'flight or fight' response. But today there
is little need to run quickly to escape a wild animal attack. Stress hormones such as adrenaline are
produced as a result ofliving in a world of demands. Our blood pressure and heart rate increase.
Our immune system suffers. Our body systems sustain damage.
Physiological consequences of prolonged stress in our lives give rise to the more hidden emotional
and mental costs. We are repeatedly subjected to constant accessibility from increased technology
such as cell phones, pagers, fax machines, computers, voice mail, email and other similar 'time
savers.'
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Sometimes we find ourselves caught up in the compulsive use of this technology. Our behavior
contributes to feelings of anxiety and anger over constant change in our life, a loss of privacy, a loss
of personal connection with others and the belief that we must be 'multitasking' or doing two or
more things at the same time. How many ofus are guilty ofusing a cell phone while driving?
Instead of enjoying the drive or noticing the fall foliage or the pleasing temperature of the air, we are
using our time 'productively.'

Living in a highly populated area, we compete with tens of thousands of others for places on ~
interstate highways or lines in the grocery store and bank. Road rage and off-shoots such as airplane (
rage, rage at organized sports activities and any other place where human beings interact are front
page news.
This sense of overcrowding may give rise to feelings ofimpatience, aggression and anger. When was
the last time you counted the number ofitems in the grocery cart in front ofyou in the '10 items or
less' line?
So, we're all aware of the bombardment ofstress in our personal lives. What about our professional
lives? Lawyers and judges face different and sometimes more intense forms of stress than nonlawyers.
The client who wants to win at all costs, yet who won't pay their bill. The lawyer who is illprepared
in court. The inherent alienation judges experience. The lawyer trying to obtain new
clients.
Eventually, something must give. But before we haul offand punch someone, drink ourselves into
oblivion or have a heartattack, let's take a path oflesser resistance.
Meditation.
If this word conjures images of a person chanting and sitting in a lotus position, you are correct.
.But the wonderful part ofmeditation is that you are never 'wrong'. Whatever you find beneficial in
fostering 'a feeling ofinner peace is 'right.'
Several synonyms immediately come to mind when considering meditation. We may think of
relaxation techniques, qUiet contemplation, prayer, stillness or focus, to name a few.
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Although some meditation techniques evolved in a religious context, there is no need to identify
with any single belief system in order to partake ofits' benefits. Many find it helpful to incorporate
the existence of a being into their meditation time. Others believe in more of a 'flow of the
universe' or 'creative forces'-type mentality. Religion may be used as a touchstone in practicing
meditation, but is by no means necessary 'or even suggested by this article. Again, the benefits of
meditation can be found using different paths.
This article began with an example ofa meditative technique known as 'visualization,' which is one
of several ways to incorporate meditation in your life. Visualization is a process by which the
individual is transported to a place ofserenity and call1lness, almost like going on a short, very
relaxing trip. ' .
Transcendental meditation is another form which was popularized in the 1960's. There is no point
of focus on a visual image like in visualization, but rather uses a mantra to calm the mind and turn
off distractions. Traditionally mantras are Sanskrit words not intended to engage the mind but a
sound repeated silendy to oneself. To incorporate TM into a simple format, we cansilendy speak
'one,' 'peace,' 'love' or some similar calming word.
A non-denominational form of meditation was developed in the 1970's by Harvard researcher
Herbert Benson. Find a quiet place and sit in a comfortable position, closing your eyes if that feels (
comfortable to you. You may play soft music or sit in silence. Starting at your feet and moving to

the top ofyour head, make a concerted effort to relax your muscles. Breathe through your nose
becoming aware of your breathing rhythm. Each time you exhale, silendy say to yourself 'one' or a
similar calming word.
A variation of the Benson method was suggested by Edgar Cayce, and introduced use of
affirmations. An affirmation is a positive statement which can be religious, spiritual or simply
meaningful to you. Here are some suggested affirmations you may incorporate into your meditation
time.
'I enter the silence and my answer comesforth effortlesslY and with clariry. '
'Ipraise the universefor all the abundance it shares with me. '
This dqy I have no expectations or attachments, I live in the moment. '
'My enthusiastic attitude in my life now draws to me interesting and happy experiences. '
The underpinnings ofthe Cayce method is that with every activity in which we engage, we make
choices and build toward something constructive or destructive. Through the process of
meditation, we begin to want different things and activities thereby changing our desires and
uplifting ourselves. .
The Cayce method uses the same basic posture and breathing as the Benson method. The Cayce
method goes one step further by centering the conscious mind on surrounding oneselfwith a god
presence, a pure white light or other uplifting thought or image. Once this stage is set in our mind
and we relax, affirmations are repeated slowly and alternated with periods of silence.
Taking time in our schedule for solitude and reflection has the effect ofundoing the anger, feeling
of alienation, exaggerated sense of self-importance and feelings that everything should happen 'my
way.'
We are not just lawyers and judges. We are human beings. It is essential to take time for silence and
refreshment. Meditation opens our mind to creativity and clarity. As we begin to listen to our body,
we tune into our inner wisdom. Only then are we firmly on the path to balancing mind, body and
spirit and lives of harmony and contentment, peace and joy.
Author bio: Nancy A. Werner is a sole practitioner in South Haven, Michigan. She is licensed to
practice law in Illinois (1982) and Michigan (1998). For more information, she can be reached at
nawlaw@btc-bci.com.
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DEPRESSION AMONG US
SubmittedbyPaul Gmeran
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According to the American Bar Association we, the legal profession, have just won ~ rather dubious.
award. We now have the highest rate of depression among all the professions. Wow, aren't we the
lucky ones.
Why do you think this is? What is it about our profession that can contribute to such a terrible
statistic? Remember, depression can lead to many, many problems, including suicide, so being
number one means at the very least we should try to find out why.
I am not an expert, but I am a member of the legal community and until about 2-1/2 years ago I was
caught up in the tornado of depression. My therapist said I was probably just very severely
,. , 'I
detached, but ,to meit was ZOor 25 years of pure misery. There is a theory that "legfll burn-out"
starts at about age 35 which would be 26 years ago for me and by God they might be correct. My 34
year old son, an attorney, wants to find a new career. My niece at 36 changed her legaljourney
dramatically and I know about 100 attorneys that would admit to.25 or 35 years ofmisery in this
profession. (
This is one of my theories on why. In order to become an attorney w'e first must be blessed with a
mind that is very thirsty for knowledge. It's called an inquisitive mind. Sometimes it's a
photographic mind. In either case, our brain becomes avery important part ofwho we are. In fact,
it seems to almost define who we are. We cultivate and nurture our brains as our most powerful
defense mechanisms. Think, think, think. Know, know, know. Learn, learn, learn. Study, study,
study. Absorb, absorb, absorb. Remember, memorize, logic, calculate, compute, measure, analyze,
review, study, compare, search, understand, etc., etc., etc. These become our guiding forces. Who
can fool us ifwe are constantly becoming smarter and smarter? Who could embarrass us? No one.
Smart people can't be caught not knowing the answer or, at least, we will make sure we have some
answer. How can we avoid looking like a fool? Study, study, study. How can we earn lots of
money? Be smart,work hard at being smart, that's the answer. How can we gain power, have
control, be able to command respect? How can we shield our ego? Brain power and more brain
power, that's the answer. How can we gain control over our destiny? Practice, practice, practice.
(

Now when you live about 95% ofyour life wrapped up in your head and all of our energy, all of our
goodness, all ofour being, is defined by our intellect then about 75% ofliving is left on the floor.
Man does not live on brains alone. Such a life can very easily take you to the edge of depression
because try as you may to know everything you will seriously come up short. You will become
isolated and alone in the defense of the artificial sense ofwho we are. In effect, we are refusing to
accept our human imperfection. We will not acknowledge our ability to suffer human mistakes and
be out of touch for human events. The world of the lawyer is intellectualism at its robust display.
When this happens there is a severe hole that we create within ourselves. It's an emptiness that
gnaws away at the core of our being. It's a constant feeling ofbeing incomplete by not trusting our
completeness. And into that hole we will stuff just about anything that will take away the pain and
the hunger of our emptiness.
Let's see, maybe I can fill up the space with much more work to the detriment of our families.
Perhaps working all day Saturday and half a day every Sunday will give me more peace ofmind
because I will be that much smarter. Perhaps working until 10:00 p.m. three or four days per week
will give me confidence to never appear unprepared for life's questions. Perhaps a little drink here
or there to ease the pain will help; just a little bit of relief from alcohol or drugs will take the edge off
my anxiety.
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"'---..
What about a little more powerful drugs that should help ease th~ pain. Maybe what I need a sexual
affair. Surely that will put new energy into my life. Maybe I need to live a little more dangerously,
be more aggressive, try my hand at the casinos. I just know that will help to ease this empty feeling.
Perhaps if I am even less concerned about my family that will let me work more and not feel guilty
and maybe that will put out this fire in my gut. Maybe I need to take more risky cases, more chances
for the big kill. That will help for sure. Maybe if I just borrow some money from the client trust
account I can make it to the next payday. I know what. I'll go back to school and learn even more,
perhaps a master's degree in business will make me feel complete. Perhaps if I were to be even
more in control of everyone around me, just a little more arrogance, a little mote power, that's the
ticket. Control, power, arrogance, conceit, local prestige, national fame, political power never hurts
in this profession, a dose of notoriety will be good for me. That's what I need. Some TV exposure
so that more people will discovery how wonderful I am. Maybe if I hire a public relations person I
can finally become famous. I just know that I will then find happiness. It's just around the corner.
I can feel my misery going away with just a little more effort, a little more drive, a little more
ambition. That's where happiness must live.

These kinds ofideas should take you right to a psychotherapist, but over 40% of the attorneys that (
are depressed never are diagnosed, never take medication, and never spend one hour in therapy.
They just continue in the state of misery and suffer day after day. They are so conditioned to this
misery that they.are convinced all lawyers are this miserable and lonely so why complain. I will just
keep trying to find the answer. Study, study, practice, practice. Never take time to look at what you
have become. Avoid all feelings. Just be smart and the pain will subside. No, I think not. The pain
will just continue until you die.
There is no answer until you stop. There will be no answer until you let go of the quest for an
answer. Stop chasing the answer. The answer is trying to catch you from behind. Tum around,
shut up and listen to your heart, listen to your soul, listen to your body, listen to your gut. Sit still.
Say nothing. Wash away all your thoughts and listen. Forget what you know and try to learn from
silence. Listen, listen, listen. Say a prayer and listen for the answers. You will hear them.
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USE, ABUSE, and ADDICTION
A fine line•••
USE: The ingestion of chemical substances by eating, smoking,
injecting, snorting, or inhaling.
SOCIAL USE: Occasional, safe, controlled use of chemidll
substances. Asocial user can easily and consistently.limit .
consumption, and has not experienced consequences related to use.
ABUSE: Consumption of chemical substances which jeopardizes the
user and those around him/her, physically and/or emotionally.
ADDICTION: A physical and mental condition characterized by a
loss of control over chemical substances, as well as behaviors and
.consequences related to use. An addictedperson Is unable to
demonstrate a consistentpattern ofsafe and responsible use.
Theories vary'regarding the cause of this condition; some
.believe that it is passed on genetically. Others believe it is
environmental, or·learned behavior. Still others believe itis a
combination of the two factors. What we do know is that
often , ~everal members within the same family suffer froll)
addiction. .

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"I Wish I Would Have Called You Before..." Depression
'and Suicide: Make Sure You Don't Utter Those Words
by: Don P. Jones & Michael J. Crowley
RaYI was a successful prosecutor in the district attorney's office in a large Texas city. He bad
done well in law school, was one ofthe star prosecutors in his office, had a family and, by all
outward accounts, could look forward to a long and good life.
However, Ray's inward life.told a different story. To Ray, no matter how well he performed, it
never seemed to be good enough. All of his 'life he bad wrestled with depression, and this
problem had led to alcohol and prescription drug abuse. Although he hid it well, his family'lifc
was coming apart at the seams. But Ray was raised to believe that personal problems should stay
personal. He didn't believe·in talkingabout·his prob~ems. He felt he could handle them himself.
Regrettably, I never met Ray. I only leamed ofhis struggles ftom a colleague and friend ofhis
who called me the day after Ray had shot and killed himsel£ Ray had very briefly confided to his
friend over drinks the week before that he was unhappy with his life. As he recalled the meeting.
the colleague felt tremendous guilt and remorse for not having seen Ray's suicide coming.
Unfortunately, at the Texas Lawyers' Assistance Program we get about five or six of thesc
dreaded calls each year-ealls that always seem to begin with,· "I wish I would have called you
before ......
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What do we know?
From reports ofother Lawyers' Assistance programs across the country, we have discovered that
.suicide among lawyers is all too common. Male lawyers inthe United States are two times more
likely to commit suicide than men in the gencral population, according to a 1992 studybythe
National Institute for:Occupational Safety and Health. While we are aware ofno other studies
about the incidence ofsuicide among lawyers, here's what we do know:
According to·the NationalInstitutc·for Mental Health (NIMH), suicide was the ninth leading
cause ofdeath in the United States in 1993 (at more than 3.0,000 suicides per year), falling
behind mv, but ahead ofhomicide.
On the average day, 84 people commit suicide and another 1,900 people attempt it (NIMH).
IS percent ofpeople with clinical depression commit suicide (NIMH).
Research conducted at Campbell University in North Carolina indicated that 11 percent ofthe ( .
lawyers in that state thought oftaking their own life at least once a month. 2
-_.__.- -._- -.------------

According to a 1991 Johns Hopkins University study ofdepression in lOS professions, lawyers
ranked No. 1in the incidence ofdepression.3
Women attempt suicide at least two times more than meDt but men are "successful" four times
more than women.
Substance abusers are 10 times more likely to commit suicide than the general population..
Suicide among lawyers is not a topic most ofus care to read or talk about. But we aIllmow it
should not be ignored.
But I thought••••
Most ofus have certain ideas about suicide and its victims. Some ofthese ideas are accurate, and
some are not. The fonowing are some ofthe more common misconceptions about suicide:
.False: People who talk about suicide are just seeking attention and won\ really try to kill
themselves.
True: Studies show that 7S percent ofthose who commit suicide talk about it or display
other warning signs before attempting it.
False: Suicidal people are intent upon dying.
True: The majority ofsuicidal people are not intent upon dying. Often, they simply
see no other viable option. The warning signs they give are desperate calls for help
before they take this final option.
False: Talking about suicide and a person's suicidal feelings will only encourage that
person to commit suicide.
True: Talking about suicide may be the only thing that can save the person's life. It can give
them asense ofconnection and hope. It shows the person that someone cares and finds them
important enough to listen to and help.
How can I tell ifsomeone is suicidal?
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'---_ ..
Obviously, any list ofwaming signs for any problem is probably going to be both incomplete
and over inclusive. Someone might display none or very few ofthese signs and still be at risk for
conunitting suicide. Someone else might exhibit warning signs that are not on this list. Still
others might display some ofthese signs and have no suicidal intent whatsoever. Nevertheless,
here is a list ofrisk factors and waming signs you should know about:

J. High Risk Conditions (
• Recent loss (death ofa friend or family member; divorce or separation from spouse;
broken relationship; loss ofjob, retirement; loss ofmoney, home, status, security; health
problems).
• History ofsuicide in the family.
• Substance abuse.
• Depression or bi~polar disorder, which is a form ofdepression that produces pronounced
mood swings ofvarying durations that range from a high "manic" state to a low
"depressive" state.
• POor suicide attempt(s).
,K.
Suicide Warning Signs
• Expressions ofhopelessness, powerlessness, worthlessness, shame, guilt, self-hatred,
inadequacy. .
• Declining perfonnance and interest in work.
• Change in sleeping and eating habits (either direction).
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• Loss ofinterest and participation in social activities, hobbies, relationships.
• Isolation.
• Explicit statements ofthoughts, or feelingS about suicide.
• Self-destructive, reckless behavior (reckless driving, self-inflicted injuries).
'. Inappropriately saying goodbyes (especially to people not seen in a while).
• Suddenly "putting all affairs in order" (making a will, giving away cherished
possessions).
• Hints about suicide. "You won't have to worry about me anymore," or "Itjust doesn't
seem worth it anymore."
• Acquiring the means to commit suicide (buying a gun, stockpiling prescription drugs).
• Working out a plan (where, when, how).
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Why do lawyers have a higher incidence ofsuicide?
Just like the questions about why lawyers have a higher incidence ofdepression and substance
~buse than the general populatio~ this question is not easy to answer. About the best we can do
IS speculate. Based on our experience in worldng with lawyers in trouble, here's what we do
know:
• One in four lawyers suffer from elevated feelings ofpsychological distress, including
feelings ofinadequacy, inferiority, anxiety, social a1ienatio~ isolation and
depressioD.4
.• Out oflOS professions studied by lohns Hopkins University, lawyers top the list in
the incidence ofmajor depression, and depression is involved inmore than halfofall
attempted suicides.
• Research suggests that those who suffer from intense perfectionism are at higher risk
for suicide. They are driven by an intense need to avoid failure. To these people,
nothing seems quite good enough, and they are unable to derive satisfaction from
what ordinarily might be considered even superior performance.s Sound like any
lawyers you know?
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• Estimates from arolUld the country indicate that the incidence ofsubstance abuse
among lawym is as much as double the national average. Substance abusers are 10
times more likely to commit suicide.
Add to this list the fact that many lawyers start out as relatively idealistic professionals who want
to help others, but as their careers advance, they may begin to feel alienated from these original
principles and desires. They are highly concerned about their clients, but often have little sense
ofultimate control orinfluence. Consequently, they may become overwhelmed by their
profession and their workload.
Unquestionably, the legal profeSsion is stressful. Once these conditions begin to take a toll on
their lives, lawyers are notoriously reluctant to seek help for personal issues. You would be hard­
. pressed to find a set ofconditions more conducive to depression and suicide.
What can I do to help someone who may be suicidal?
The first thing to realize is that every threat ofsuicide is a call for help. So~ anytime anyone
discloses suicidal ideations or feelings, take it seriously. Itis much betterto be somewhat
embarrassed because you were wrong than to be remorseful that you failed to help. Once you've
taken it seriously and extended yom hand, here are some helpful suggestions:
• Listen, listen, listen. So often, suicidal people feel isolated, disconnected and
unimportant. Itis crucial to be as nonjudgmental and empathetic as you can.
(
• IT you don't already know, go ahead and ask them ifthey are feeling suicidal. Asking
that question will not make it worse; it will give them permission to talk to you about
~ .

• Hthey are feeling suicidal, ask them ifthey have a plan. Find out iftltey have the
means to attempt suicide and whether they have thought about when they will make .-
theattempt..·· .
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• Ifthey don't have a plan, there may not be an immediate crisis, but the person
nevertheless has a serious problem that requires professional assistance. Encourage
them to seek professional help, and even offer to help them make that first call:
• Ifthey do have a plan but are not threatening immediate action, get them to commit to
you not to take any suicidal action until they see you again. Ag~ encourage them to
seek professional help and even offer to help them make that first call.
• Hthey have a plan and are threatening immediate action, do not leave them alone.
Take whatever action is necessary to get them into professional hands. Hyou have to,
take them to the emergency room ofthe closest hospital.
Ifconfronted with a suicidal person, do 1101 do the. following:
• Don't argue with thetn about the "right or wrong" ofsuicide.
• Avoid platitudes like "... but you have so much to live for ..,'1 or "... itwill all be better
in the moming..."
• Avoid discounting their problems with statements like n....oh, that doesn't seem so
bad..."
:. Don't be swom to secrecy-at least when itcomes to calling inprofessional help.
More importantly confidentially contact your Lawyers' & Judges Assistance Program Assistance
Program @ 18()()..996-SS22. These programs can help you or any colleague you know who may
be suicidal.
Whatever you do, itis important to do something. Don'tjustlook the other wayhoping someone
else will help. Don't hesitate to offer assistance because you might be mistaken. Don't fall into
the trap ofbelieving it win pass ifyoujustdon't talk. about it.
Finally, don't be one ofthose callers we dread so much; the ones who start with, "I wish I would
have called you before ...."
Reprinted by Permission ofthe American BarAssociation. This article originally appeared inthe
March/April 1998 issue ofthe Bar Leader.
Endnotes:
IThe name and some ofthe other minor facts have been changed.
2Sells, Benjamin, "Facing the Facts About Depression in the Profession," Florida Bar
(

,
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[This article first appeared in the Dec. 2, 2002, issue ofMichigan LaWyers Weekly, and is used
here with permission.]
Experts: New Lawyers Should Address, Not Ignore, Stress
Local Bar Groups Offer Programs That Help
By Heather Hale Wilson
One ofthe most significant challenges facing new Michigan lawyers - especially those working
in larger firms - is learning to survive both physically and emotionally despite long hours,
billable hour requirements and chronic stress.
According to experts in the field, new lawyers must learn to recognize and appropriately address
the sources oftheir stress before it turns in to distress, or risk suffering a multitude ofphysical
and mental ailments.
Bloomfield Hills attorney David A. Mollicone said it is often the "unknown" that canmake the
transition from studen~ to attorney an overwhelming one.
( Lansing attomey Lisa M Crawford agreed.
"There is not one class in law school that really prepares you for your first year as a new lawyer,"
Crawford said.
According to William E. Livingston, senior director ofthe Lawyers and Judges Assistance
Program ofthe State Bar ofMicbigan, chronic stress can be linked. to a host ofphysical ailments,
from obesity to headaches to coronary disease.
Warning signs ofchronic stress. said Livingston, may include changes insleep patterns, weight
gain, memory problems, ruminating over work issues at home, and agitation.
"Most [attorneys] will know when they are stressed." Livingston said. lilt is at this point they
.have to make a decision. Either you succumb to stress, at which point it actually turns into
distress, or you learn to recognize it up front and deal with it appropriately."
D. 'Ignorant And Uninformed'
. Although some attorneys will consider it a "virtue to be admired" that they are able to take the
stress. Livingston said such thinking "is simply an ignorant and uninfonned stance. One is much
better oITto not take it but learn to manage it."
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"---'
Livingston said a'new attorney must also consider the cost ofmental health ailments which can
result from stress, such as depression and chemical dependence.

"When these are inplay, they will in many cases lead to a deterioration ofpersonal relationships, C.
marriages, relationships with children, and so forth," he observed..
Additionally, untreated chronic stress can manifest itselfin ways that are detrimental to the legal
profession itself, such as ethical violations, malpractice and incompetence, he pointed out.
"Peak effectiveness becomes elusive in all areas for the chronically 4istressed attorney,"
Livingston explained.
Livingston, Mollicone, Crawford and others advised that new laWyers can successfully weather
the.challenges facing them ifthey:
* learn to recognize the symptoms and sources ofstress;
* consider an "environmental change";
* research time management techniques relevant to their specific circumstances;
* establish a relationship with a mentor within the fum, or within the profession;
* get involved in bar-related functions, such .~ one ofthe Itnew" or"young" lawyer sections of
the state or local bar assOCiations;
* maintain balance, byhaving an outside life;
* follow a solid nutrition and exercise regimen; and.
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* avoid "quick fixes" like alcohol and/or drogs.
E. Find A Mentor
Many practitioners who have survived the challenge$ ofbeing anew attomey said that
establishing a relationship with a mentor is an excellent way to alleviate some ofthe stress which
can accompany the transition from student to attorney.
According to Crawford, many firms will assign new attorneys a mentor within the firm.
. .
."Ifthe finn doesn't [assign a mentor), find an attorney you respect that has been atthe firm for a
few years and is in a position you would like to be in," Crawford advised. "This is the person
from whom you can learn your survival skills," she said.
.Warren attorney Annette Gattari-Ross, who chairs the Macomb County.Bar Association's
MentorlMentee Program, said that her program facilitates this very type ofmentoring.
"Our focus is to develop a relationship between mentor and mentee that will be mutually
beneficial," said Gattari-Ross. "Mentors will be encouraged to be supportive, encourage
participation in law-related or social events, and introduce the mentee to other individuals in the C.
legal profession.tl
_

The program "is not designed to resolve a crisis situation for a new attorney in a predicament," .
she said. "Rather, ifthe mission ofthe program is accomplished. then the mentee will have
discovered the tools or resources necessary to avoid such a situation."
F. Seek Out Other Resources
Experts and practitioners also emphasized the importance ofseeking out other resources which
can be beneficial, such as the various "young" or "new" lawyers groups, the Judges and Lawyers
Assistance Program ofthe State Bar ofMichigan, or other similar support groups.
For instance, Gattari~Ross said that her own involvement in the Young Lawyers Section ofthe
State Bar ofMichigan and the Macomb County Bar Association, helped her to build
relationships with more seasoned attorneys whose assistance proved to be invaluable.
Mollicone agreed.
He also said that getting involved with organizations such as these is useful because it allows
young lawyers to make connections and to network withpeople who are insimilar
circumstances. According to Mollicone, this sort ofinvolvement helped him to avoid feeling
isolated.
Uvingston told Lawyers Weekly that currently, the Lawyers & Judges Assistance Program is
exploring the option ofputting together regular support groups for attorneys, law students and/or
judges who are interested in regular meetings to put these issues in.perspective.
But he also emphasized the benefits ofprograms offering confidential counseling such as the
Lawyers and Judges Assistance Program.
"Simple talk therapy is terribly underrated," he said. "I strongly suggest (finding] a confidant to
share your sources ofstress with. Be able to talk: about it. Don't stuffitbecause it will ultimately
come back to you." .
G. Find Your Balance
Crawford, Mollicone and others also stressed the importance ofmaintaining balance.
"While it is not unusual for new attomeys to work longer hours mitially, no matter how many
hours you feel you need to put in. you must take some time for yourself," Crawford said. "You
must stay balanced both physically and emotionally ifyou expect to survive the first year. 1I
Mollicone made similar observations.
"Young lawyers need to maintain their sense ofperspective," she said. "It's really easy to get
overwhelmed. Having an outside life, as difficult as that may be, is really important so that you
can separate the two and not let the work totally dominate your existence."
Bloomfield Hills Attorney Thomas 1. Murray agreed.
"Ifyou spend all your time at work, it will drive a wedge between you and your family," he
stated. "Set aside a day that, no matter what, you are not going to work. Ofcourse, there are

always the rare exceptions,butifyou stick to this schedule it is a consiStency that your family (
can count on and it gives you an opportunity to rejuvenate."
.---
H. Change Your Environment
Livingston told Lawyers Weekly that another effective means ofstress management is to
"exercise an environmental
,
change." .
.
"Work fewer hours ifthis is an option," he recommended. "Vacations, time off, separatioll from
sources ofstress are vitally important. The only drawback here is that they are only temporary. II
Livingston was quick to point out that "quick fixes" are not always the best option.
"We are geared in our culture toward immediacy more so now than ever." he said. "One would
be best served by trying to alter their nutritional intake, exercise regimen, and so forth."
Livingston suggested ,the simple fix ofeating properly.
"Youare what you eat might soup.d cliche. but it is absolutely true,II he observed. "Nutrition
plays a vital role inhow well one deals with stress."
Livingston also s\lggested getting involved in aregular fitness· routine.
!'Workout, run, walk, liftweights, swim," he said. "These are the most effective means ofdealing (
with the day-to-

Endnotes
(1) American Bar Association, The State ofThe Legal Profession - 1984: Report of
The Young Lawyers Division (1985).
(2) American Bar Association, The State ofThe Legal Profession-1990: Report of
The Young Lawyers Division (1991).
(3) LoR Richard,·Psychological Type And Job Satisfaction Among Practicing
Lawyers in The United States (1994; Ph.D. dissertation, Temple University,
Philadelphia available through Umversity Microfilms International Dissertation
Services)
(4) A. Elwork & G.A.H. Benjamin, Lawyers in Distress, 23 The journal ofPsychiatry
and Law 205 (1995).
(5) G.A-H. Benjamin, A Kasznialc, B.D. Sales & S.B. Shanfield, The Role ofLegal
Education In Producing Psychological Distress Among Law Students and
Lawyers, American Bar Foundation Research Journa1225 (1986).
(6) Mary Ann Glendon, A Nation Under Lawyers15 (1994)
(1) Machell (1987) Machell DF. The recovering alcoholic police officer and the
danger ofprofessional emotional suppression. Alcohol Treat Q1989;6(2):85-95.
(ADAljl)
(8) (Daniel Goleman, Emotional Intelligence (1995)

- .
~.
,..
WELLNESS PERSPECTIVE:
"'Whole Self" Evaluation
(
On a scale of1 (ve,..y 10.w)-10(very high), rate your current
satisfaction with regard to each ofthe following aspects of
your personal functioning:
___Eating/nutrition
__S,leep hygiene
__Movement/exercise
__Spiritual health
__Social health
__Sense of connectedness/community
........._Play/fun
____Emotional health
--Sexual health
__Creativity
_____Self care/self image
__Work satisfaction
___Communication skills
__,Sense of purpose
(
_____ Current Personal Wellness Score
Points to consider:
• In What areas would you like to experience greater
satisfaction?
• . What are some attainable goals that will help you improve
your satisfaction with these areas?
• Who can you ask for support in attaining these goals?
• What are your greatest strengths? Can you draw on your
strengths to help you achieve greater satisfaction in other
areas?
-..... ---_ ....------

Twenty Questions:
Are You a Person Who Suffers With the Condition of Addiction?
For thepurpose ofthis questionnaire, the word nUSedmayindude alcohol
and/orotherdrug use, spending, eating, gambling, .raging, time on the
inteme~orsexualbehaviors, andthe word "substances"maybesubstituted
with "behaviors", as appropriate.
1. Have you lost time from work due to your use?
2. Has your use made your home life stressful? '
3. Have you used your substance(s) as a 'social lubricant' ?
4. Has your use affected your reputation?
5. Have you ever felt remorse after uslng1
6. Has your use caused you financial difficulties?
7. Do you have two sets offriends: the ones that you abuse substances with, and your
more 'straight-laced' friends?
8. Has your use caused you to be careless of your family's welfare?
9. Has your ambition decreased with your continued use?
10. Do you crave your 5Ubstance{S) at specific times?
11. Do you crave you substance(s) in the morning after an episode of use?
12. Has your use caused sleep dlrticulties for you?
13. Has your effICiency decreased with your continued use?
14. Has your use Jeopardized your school, job, or business?
15. Have you used to escape worries or troubles?
'"
"16. Have you used alone?
i7. Have you ever been treat~ by a doctor related to your use?
18. Have you used your 5ubstance(s) to build up your confidence?
19. Have you ever been to a hoSpital or other institution as a result of your use?
20. Have you ever experienced episodes of memory loss during or after use?
(
Imswer the 20 questions above si~ntly, to yourself. Be as honest with yourself as you can
possibly be. Look for patterns, as patterns indIcate serious warning signs.

LIFE BALANCE INVENTORY
(
• Has your diet become very limited for reasons other than shortage of food or
money to purchase food?
• Are you eating more sugar?
• Has your caffeine, nicotene, alcohol, or other drug intake increased?
• Have your spending habits changed? .
• Are you overworking? (arriving early and/or leaving late, skipping meals?)
• Have you placed exercise and/or relaxation last on your list of priorities?
• Has your sex life been neglected? .
• Are you spending most ofyour time alone?
• Have you begun to assume more responsibilities at work or at home because
you feel no one else will do them, or they won't do them correctly?
• Do you feel defeated, tired, uncreative, incompetent, etc.?
C
• .Have you given up your physical and mental health resolutions, one by one?
• Do you feel the need to make sweeping, total, drastic life changes? For
example, do you think you should quit your job and/or quit school, pack your
bags, load up your vehicle, and move across the country?
• Do you see learning, growing, and working at maintaining balance in your life
as too hard, and not worth the trouble?
• Do you find yourself looking for the quick fix, or the shortcut to solVing the
problem or attaining your goals?
• Do you find yourself engaging In obsessive thinking that leaves you feeling
out of control or scared? Do these obsessive thoughts sometimes interfere
with sleep, school, or work?
c
....._------ --_...... -.- ..------

EFFECTIVE FEE AGREEMENTS
Kenneth M. Mogill
Mogill, Posner & Cohen
State Bar ofMichigan
"Tips and Tools for a Successful Practice"
May 7, 2008
1. Overview
The overriding principle governing fee agreements is reasonableness. The details ofwhat is
and is not reasonable are largely set out in MRPC 1.5. Recent Attorney Discipline Board
opinions regarding this subject with which you should be familiar are Grievance
Administrator v Boffman, ADB #03-135-GA (2005), and Grievance Administrator v Cooper,
ADB #06-036-GA (2007).
In drafting a fee agreement to use with your clients, a good bench mark is to ask yourself
whether you would find this agreement reasonable if you were the client rather than the
lawyer.
(
( )
2.
You should also use clear, plain, non-legalese language.
Specific areas to be covered in agreement
A. Identify who is the REPRESENTED PARTY. Particularly in business litigation
involving small or closely held businesses, clients and, at times, attorneys can easily confuse
who is the client - the individual or the business entity.
B. What is the SCOPE OF REPRESENTATION being taken on? What is the matter for
which you are being retained, arid what is not being taken on? Make clear in the agreement
what the agreement does not include as to representation where there might be confusion or
misunderstanding, e.g., representation on an appeal after a final judgment or on an
interlocutory appeal or representation on a related but separate matter. Ifthe representation is
for a criminal case and there is a potential forfeiture issue, specify whether the representation
does or does not include representation on the forfeiture matter; ifthe representation is for a
divorce, specify whether the representation does or does not include entry ofa QDRO, for
example.
C. What are the DUTIES OF ATTORNEY and CLIENT in the representation? Specify the
nature of the work to be done, identify your duties of zealous representation and
communication with client, and stress the absence ofany guarantee ofresult. Note also the
nature ofthe cooperation required by the Client.
Page 1 of 3

D. Identify the NATURE, BASIS and RATE offee. Specify whether the money received (_~
initially is an advance payment of fee or an engagement fee which has been earned upon _
receipt?
Ifthe former, note that the money will be deposited into a client trust account until
earned, and include language specifying when and under what circumstances you
may withdraw money from the trust account upon having earned the fee.
If the latter, include language in the fee agreement explicitly indicating that the
engagement fee is both earned upon receipt and is not money received for work to be
done in the future.
Specify whether the basis ofthe fee is hourly, contingency or a hybrid fee? 1 Ifan hourly fee,
specify the hourly rate for each attorney and, if appropriate, paralegal involved; if a
contingency, note the percentage involved and the method by which the fee is to be
determined. Ifthe representation involves a personal injury orwrongful death case and the
fee is a contingent fee, note further before entering into the agreement the client's right to
other fee arrangements. MCR 8.121 (E). Ifthe fee is an hourly fee, note also how TRAVEL
TIME is handled. Ifthere is a referral fee involved, note that in the fee agreement in order to
document compliance with the requirements ofMRPC 1.5(e) that the client has been advised
of a division of fees among lawyers not in the same firm and does not object and that the
total fee is reasonable.
E. Note how COSTS are billed, and specify what costs are subject to billing and what costs
are not.
(
F. If a THIRD PARTY is paying the fee - an employer, a parent, a friend - note the
requirements ofMRPC 1.8(f}and 5.4 regarding knowledge, consent and the impermissibility .
ofinterference with your profes.sional judgment. Note also that the privilege between you
and the client is not affected by whether the client or another is paying the client's fee.
Include signature line(s) for third party payor(s).
G. In a case where you are going to represent MULTIPLE CLIENTS, be extremely cautious
about potential conflicts of interest. Ifno actual conflict of interest is identified, it is still
better to note known possibilities of conflicts of interest as well as the possibility of
unanticipated conflicts developing. Avoid general or advance waiver ofany conflict. Note
also the specific, separate obligations ofeach client for payment offees.
INote, however, that a contingent fee is not permissible in a domestic relations matter or a
criminal matter. MRPC 1.5(d).
Page 2 of 3
(

H. Include information about your firm's BILLING practices. Note the frequency ofbilling,
the nature of information included in the bill and what additional information is available
upon request. Remember that you are working fo~ the client and that the client is always
entitled to a prompt accounting from you upon request.
I. For reasons too obtuse to discuss here, it is prudent to avoid charging INTEREST on
unpaid bills.
J. Be clear about the circumstances in which you may WITHDRAW from the representation
and your client's right to terminate the representation. Note your right to quantum meruit
payment inthe event oftermination by the client in most circumstances. Cite to MRPC 1.16,
noting specifically that you may only seek to withdraw or seek a tribunal's permission for
you to withdraw in such circumstances as permitted by this rule.
K. Include information advising the client ofyour firm's FILE RETENTION and RETURN
POLICY.
L. Indicate how and when the agreement becomes EFFECTIVE - e.g., only when signed by
all parties and receipt by you ofthe engagement fee.
M.. Promptly provide a copy ofthe signed agreement to the client(s).
Page 3 of 3

(
FEE AGREEMENTS & AVOIDING FEE DISPUTES
Mark A. Armitage - State ofMichigan Attorney Discipline Board
State Bar ofMichigan Ethics School
November 1,2006
I. Fees Must Be Reasonable. MRPC 1.5(a).
A. A lawyer shall not
(1) enter into an agreement for,
(2) charge, or
(3) collect
an excessive (unreasonable) fee. MRPC 1.5(aY
B. Factors considered in determining the reasonableness ofafee. MRPC 1.5(a)provides that
the factors to be considered in determining the reasonableness ofa fee include the following:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
the likelihood, ifapparent to the client, that the acceptance ofthe particular
employment will preclude other employment by the lawyer;
the fee customarily charged in the locality for similar legal services;
the amount involved and the results obtained;
the time limitations imposed by the client or by the circumstances;
the nature and length ofthe professional relationship with the client;
the experience, reputation, and ability ofthelawyer orlawyers performing the
services; and
whether the fee is fixed or contingent.
C. MEO RI-150 (1992):
Whether a lawyer's fee arrangement with a client is "reasonable"
must be evaluated on a case-by-case basis. A lawyer has a continuing
duty prior to billing the client and before collecting a fee from a client
to reexamine the reasonableness of the fee in light of subsequent
events in the representation.
II.
The "Basis or Rate" of the Fee Must Be Communicated to the Client,
Preferably in Writing.
A. General rule: The basis of the fee must be communicated to the client before or within a
reasonable time after commencing the representation. Communicate about all aspects ofthe
representation including fees. Do this at the outset and throughout the representation.
B. The Michigan andModel Rules differ, but the current Model Rule better states the attorney's
obligation to communicate with the client regarding the basis of the fee. MRPC 1.5(b)
provides:'
I
MPRC l.5(a) says "clearly excessive" but essentially defines this as "unreasonable."

When the lawyer has not regularly represented the client, the basis or rate of
the fee shall be communicated to the client, preferably in writing, before or
within a reasonable time after commencing the representation.
Model Rule 1.5(b) provides:
c
The scope ofthe representation and the basis or rate ofthe fee and expenses
for which the client is responsible shall be communicated to the client,
preferably in writing, before or within areasonable time after commencing
the representation, exceptwhenthe lawyer will charge a regularlyrepresented
client on the same basis or rate. Any changes in the basis or rate ofthe fee
or expenses shall also be communicated to the client.
Watch the proposed amendments to Michigan's rule pending before the Court.
C;.
MRPC 1.5(b) 's exceptions (treat them as nonexistent): (1) communication regarding basis
offeenot requiredwhen lawyerregularly represents a client; (2) writing is merelypreferable.
MRPC 1.5(b) on its face applies only when a lawyer has not regularly represented a client,
and only suggests that the fee structure be communicated in writing. MRPC 1.5(c) requires
contingent fee agreements to be in writing. Court rules andstatutes may do so as well. See,
e.g., MCR 5.313(B) (agreement with personal representative of estate). But a lawyer who
wants to be paid, and minimize the likelihood ofclient misunderstandings and grievances,
will reduce virtuallyall fee agreements to writing. See Grievance Administrator v Mark T.
Light, No 98-l98-GA (ADB 2001) ("respondent's failure to provide sufficient information
to his clients about the fee arrangement constituted a violation ofrespondent's duty under
MRPC 1.4 to keep a client reasonably informed about the status of the matter, to comply.
promptly with reasonable requests for information, and to explain a matter 'to the extent
reasonably necessary to permit the client to make informed decisions regarding. the
representation. ''').
C.·.
D. Types ofFee Arrangements
1. Hourly Rate
"The vast majority oftoday's practicing lawyers have known only the practice ofhourly
billing." ABA Commission on Billable Hours Report (August 2002), p 4.
2. Contingency Fee
! • Generally allowed, except in domestic relations matters and criminalmatters MRPC
1.5(d)
• All contingent fee agreements must be in writing, and a copy provided to the client.
MRPC 1.5(c); MCR 8.12l(F).
• Personal Injury & Wrongful Death contingent fee agreements are also subject to
MCR 8.121.
• Clients must be advised that attorneys may be employed under other fee
arrangements. MCR 8.12l(E).
(
2

3. Fixed or Flat
A flat fee may also be referred to as a "lump sum fee." See, e.g., Restatement (Third)
ofthe Law Governing Lawyers, § 38 comment g ("lump-sum fee constituting complete
payment for the lawyer's services").
"A fixed or flat fee is the price that will be charged for defined services. It may be the
entire fee for the engagement or may apply to segments of the total services. It may
stand alone or be combined with either an hourly fee or a contingent fee. An example
might be a fixed fee for incorporating a business or preparing a will or a trust
agreement." Winning Alternatives to the Billable Hour, supra; p 125. Fixed or flat
fees make sense for "commodity" or repetitive work. The attorney then usually has
sufficient experience with such matters to render the services efficiently and know the
cost of providing such services, as well as how to define the scope of the services
rendered. The client pays based on what he or she considers to be the value of the
services rather than time expended. The attorney should be able to predict the profit
to be derived from the transaction or series of transactions. Id., pp 125-126. The
lawyer runs the risk that the case will become unforeseeab1y complex or contentious.
Unless fixed fee arrangements "are carefully defined and thought out, they can become
economic losers." Report ofABA Committee on Lawyer Business Ethics.
Calling a fee "flat,"or "fixed," or "lump sum" does not mean, nor does it in any way
putthe client on notice, that the fee is intended to be "nonrefundable." See MEO RI-69
(1991) (approving use offlat fees, citing MEO RI-50, but stating that unearned fees
paid in advance must be deposited in a client trust account). See also In Re Sather, 3
P 3d 403, 406 (2000), in which the contract referred to the $20,000 alternatively as a
"minimum fee," a "non-refundable fee," and a "flat fee." The court distinguished flat
fees from engagement fees:
In contrast to engagement retainers, a client may advance funds - often
referred to as "advance fees," "special retainers," "lump sum fees," or"flat
fees" - to pay for specified legal services to be performed by the attorney
and to cover future c~sts. See [In re Scimeca, 265 Kan 742; 962 P2d
1080,1091 (Kan 1998); In re Lochow, 469 NW2d 91, 98 (Minn 1991)];
Model Rules, supra, Rule 1.5, commentary at 59; ABA/BNA Lawyers'
Manual, supra, at 45: 111. We note that unless the fee agreement
expressly states that a fee is an engagement retainer and explains how the
fee· is earned upon receipt, we will presume thar any advance fee is a
deposit from which an attorney will be paid for specified legal services.
See Draft Restatement, supra, §§ 50 cmt. (g) ("A fee payment that does
not cover services already rendered and that is not otherwise identified is
presumed to be a deposit against future services."). [Sather, 3 P 3d at
410.]
Therefore, "flatfees" should not be assumed to be nonrefundable. This means that flat
fees paid in advance must be held in trust. See Iowa Supreme Ct Bd ofProfEthics v
Apland, 577 NW 2d 50, 55-56 (Iowa 1998); Alec Rothrock, The Forgotten Flat Fee:
Whose Money is it and Where Should it be Deposited?,1 F1 Coastal L J 293 (1999).
3

"Task based" or "stage-by-stage" billing is a variation ofthe flat fee in which lawyer
and client agree that the lawyer will be compensated a predetermined amount for a
defined task or segment ofwork encompassed in a broader engagement. While a flat
fee paid in advance must be deposited in a client trust account, "[n]othing prohibits a
lawyer and a client from agreeing that a portion of the fixed fee will be deemed
'earned' by the lawyer, and thus the lawyer would be entitled to withdraw that portion
for the lawyer's own use, at certain times or at the occasion of certain events. For
instance, the lawyer and client could agree that at the end ofthirty days, XX% ofthe
fixed fee will be deemed 'earned.'" MEO RI-69 (1991).
(
4. Hybrids & Alternatives
5. Statutory or Scheduled Fee Systems
6. Retainers.
a. "Retainer" Defined- Black's Law Dictionary defines a retainer as (1) "A client's
authorization for a lawyer to actin a case"; and, (2) "A fee paid to a lawyer to
secure legal representation .. i. Also termed retaining fee." Black's Law
Dictionary (7th ed 1999), p 1317. Two types ofretainer are further defined:
1. General retainer - "A retainer for a specific length oftime rather than for a
specific project." Id. Compare this to the more elaborate ,definition in a
previous edition: "A general retainer . . . merely gives a right to expect
professional service when requested, but nQne which is not requested. It
binds the person retained not to take a fee from another against his retainer,
but to do nothing except what he'is asked to do, and for this he is to be
distinctly paid." Black's Law Dictionary (3 rd edition 1933), p 1550 (internal
quotation marks and citation omitted).
(
The "general retainer" is also known as an "engagementfee." In Re Sather,
3 P 3d 403, 410 (2000). A "pure" generaf retainer "is earned when paid
because the payment is made strictly for availability and not for theTendering
ofservices." Lester Brickman & Lawrence A. Cunningham, Nonrefundable
Retainers: A Response to Critics ofthe Absolute Ban, 64 U Cinn L Rev 11,
22 (1995). See also Grievance Administrator v Boffman, No. 03-135-GA
(ADB 2005). A general retainer or engagement fee may also be earned'by
conveying some other benefit such as "placing the client's work at the top of
the attorney's priority list," orby not being available to represent an opposing
party. Sather, supra. At least one court has opined that "general retainers
have largely disappeared from the modem practice oflaw." Provanzano v
National Auto Credit, Inc, 10 F Supp 2d 44, 51 n 13 (D Mass, 1998).
11. Special retainer - "A retainer for a specific case or project." Black's Law
Dictionary (71h ed 1999), p 1317. A specific or special retainer is
unquestionably refundable. That is, a lawyer may retain no more than the fair
value for the services upon discharge bya client. See, e.g., In Re Cooperman,
83 NY2d 465; 633 NE2d 1069; 611 NYS2d 465 (1994). "[A] putative (
general retainer that is denominated as both for availability and for services" .
4

has been called a "hybrid" and should be considered a specific or special
retainer and "therefore fully refundable to the extent not earned by services
rendered." Brickman & Cunningham, supra, p 22-23. But see, Kelly v MD
Buyline, Inc, 2 F Supp 420 (SD NY, 1998) (attorney with three-year hybrid
general retainer agreement might recover contract damages less mitigation).
b. "Nomefundable" Retainers and other mythical creatures.
1. With very few exceptions, nomefundable retainers exist in name only. Even
ifan attorney is ultimately allowed to keep the full retainer in a given case,
it is a misnomer to prospectively label the fee "nomefundable" because all
fees, however denominated, are subject to review by courts and discipline
agencies for reasonableness underMRPC 1.5. See, e.g., Restatement (Third)
of the Law Governing Lawyers, § 38 comment g (even an "engagement
retainer" must be reasonable, and ifthe lawyer withdraws or is discharged
prematurely the contractual fee might be subject to reduction).
11. MEO RI-lO (1989). This is a nonbinding advisory opinion approving a
nomefundable retainer in certain circumstances, attemptingto give guidance,
and concluding: "The ethical focus always should be whether, under the
totality of the circumstances, the fee arrangement is reasonable,
notwithstanding the adjectives used to describe it." Since 1989, the trend in
some other jurisdictions is to generally disapprove of "nomefundable"
retainers and/or scrutinize them closely.
111. In Re Sather, 3 P 3d 403,405 (2000), reflects the view ofmany courts with
respect to "nomefundable retainers" in an ordinary case:
[W]e hold that an attorney earns fees by conferring a
benefit on or performing a legal service for the client.
Thus, under Colo. RPC 1.15 an attorney cannot treat
advance fees as propertyofthe attorney andmust segregate
all advance fees by placing them into a trust account until
such time as the fees are earned. [Footnote omitted.] An
attorney cannot label advance fees "non-refundable"
because it misleads the client and risks impermissibly
burdening the client's right to discharge his attorney, in
violation ofColo. RPC 8.4(c) and l.l6(d).
IV.
Grievance Administrator v Underwood, No. 99-58-GA (ADB 2001). In this
discipline case, the Michigan Attorney Discipline Board held that a
"minimum fee of $1,000," also described as a "non-refundable case
origination fee," was not umeasonab1e when retained by the attorney under
the circumstances ofthat case. However, the Board held:
(
We agree with the Court in Sather, that the term
"nomefundable retainer" is misleading. For all fees ­
hourly, fixed, contingent, and even those denominated
"nomefundable" - are subject to MRPC 1.5(a)'s standards
5

[requiring reasonable fees; footnote omitted]. If a fee is
. "clearly excessive" within the meaning ofMRPC 1.5(a), it
is misconduct to fail to refund the clearly excessive part of
the fee when required by MRPC 1.16(d). This, however,
does not mean that all nonrefundable fees are per se
unethical. And, we are not prepared at this point to follow
Sather and discipline lawyers who use the term
"nonrefundable."
(
v. Interrupted Representation - "The right ofthe client to discharge counsel is
an implied term ·of the contractual attorney-client .relationship. MRPC
1. 16(a)(3). However, the client is liable to compensate the attorney for
services rendered to the date ofdischarge." Plunkett & Cooney, PCv Capitol
Bancorp, 212 Mich App 325; 536 NW 2d 886 (1995) (fixed fee).
VI. Grievance Administrator v Boffman, No. 03-135-GA (ADB 2005). $5,000
was paid to respondent pursuant to a writtenretainer agreementproviding for
a "retained service amount" of50 hours, i.e" that respondent was obligated
to perform 50 hours oflegal service before billing further. Services rendered
after the "initial retainerha[d] been exhausted," were to be billed at $100 per
hour. About three months after signing the retainer agreement, the client
discharged respondent and demanded his money back. Respondent
calculated the time he spent on the matter and offered to return a portion of
the retainer. The client was not satisfied and filed suit and the grievance
leading to the formal complaint. Following a hearing, the panel concluded
that the $5,000 paid to respondent constituted. a general retainer and
. dismissed the complaint. On review the Board held that the fee was not a .
general retainer butwas instead a fee paid in advance which shouldhave been
deposited in the trust account until earned. Use ofthe term "nonrefundable"
was again disapproved, even though it was not used in the fee agreement.
c. "Evergreen Retainers." One example ofthis kind ofprovision comes from a law
review article:
You have paid us the sum of $ as an advance
against fees and costs, which we deposited to our trust
account. After your receipt ofmonthly statements, we will
pay the amount of the statement frdm the trust account.
You have agreed that there will always be a minimum
balance of$__in that trust account designated to your
account and ifthebalance falls below that amount you will
replenish it. [Robert W. Martin, Jr., Practicing Law in the
2pt Century: Fundamentals for Avoiding Malpractice
Liability, 33 Land & Water L Rev 191 (1998).
C
B. Some Fee Agreement Provisions to Consider, and Some to Avoid.
1. Identify the parties. Is the client an individual, partnership, corporation? Will there be
a guaranty? Will another person be obligated to pay the lawyer? See 1.8(F). Which
(
6

lawyer(s) will work on the file?
2. Recite the objectives ofthe representation.
3. Set forth and, ifappropriate, limit the scope ofrepresentation. See MRPC 1.2(a). See
also, proposed "Ethics 2000" amendment to MRPC 1.5(b) (requiring communication
as to scope ofrepresentation). Do you think you'll be handling an appeal? What does
your client think? See MEO R-ll (1991). See also In the Matter ofKerlinsky, 405
Mass; 546 NE 2d 150 (1989) (Construing the document against drafter attorney, even
though form suggested by court rule, the court held that "[i]n the absence ofa valid
supplementary agreement for extra compensation in the event that an appeal had to be
taken or defended, agreed to cap on compensation in a contingency fee agreement is
to be construed as including payment for the rendition ofall legal services, both trial
and appellate, necessary to bring the claim to a final conclusion."). Just plan on a quck
and dirty Chapter 7 discharge? See MEO Rl 184 (January 19, 1994) (adversary
proceeding within scope of representation of debtor seeking discharge in Chapter 7
bankruptcy case unless unambiguously and appropriately excluded).
4. Explain the "basis or rate" ofthe fee. MRPC 1.5(a). Consider estimating the fee.
5. Address costs. Will you advance? Will you send the bills for outside contractors
(court reporters, experts, etc.) to the client?
6. Explain what will happen to a "retainer" or advance payment offees.
7. Set forth billing procedures (and stick to them).
8. Disclaim a guarantee as to the results to be obtained.
9. Set forth the client's obligations to cooperate, communicate, pay bills, etc., and the
consequences for failing to meet them. Do not, however, attempt to provide that you
can stop working, without withdrawing, if the client doesn't pay. See Rhode Island
Ethics Op 2003-08.
10. Encourage questions or concerns about the representation.
11. Research the law regarding interest or time-price differentials before charging.
12. Take security only upon complying with MRPC 1.8(a). See also, ABA Formal Ethics
Opinion 02-427 (2002).
13. Fee arbitration, mediation or other alternative dispute resolution may be in the interest
ofboth parties, but make sure any such provision is prominently disclosed and draw
attention to your fee agreement's term indicating that the client has been advised ofa
right to independent counsel before signing. Consider having any ADR provision
initialed. Be very cautious about a clause providing for ADR ofmalpractice claims.
14. Do not attempt generic or advance waivers ofconflicts ofinterest.
7

15. Do not charge unreasonable costs. Spell out charges for photocopies (see # 5 above),
and don't be greedy. For example, a minimum billing increment of.25 hours has been
criticized in discipline decisions. In re Scimeca, 265 Kan 742; 962 P2d 1080, 1091 (-
(Kan 1998). Do not attempt to make your equipment or nonprofessional staff profit
centers.
16. Do not "markup"orsurcharge for costs ofoutside services (including contract lawyers)
See, e.g., MEO RI-241 (1995), ABA Formal Opinion 00-420 (2000), and ABA Formal
Opinion 93-379 (1993).
III.
Avoiding Fee Disputes
A. Start at the beginning: screen your clients.
B. Next, screen your cases. Don't try to do it alL
C. Communication (again!): clear, continuous, redundant ifnecessary.
D. Treat your clients with respect. See chart "Lawyer Characteristics."
E. Put your "representation agreement" in writing.
F. Take care in setting fees.
G. Regular Billings: another chance to communicate.
c
H. Ifthe client is not paying, ask what's wrong.
1. Keep contemporaneous time records - even when you don't work hourly.
J. Ifyou have a flat fee agreement, consider a provision addressing calculation offees in the
event ofearly termination.
K. Breaking up is hard to do, but you have to do it right. MRPC 1.16(d).
L. Ifa dispute cannot be avoided,
1. Ifyou are owed money, don't just quit working.
Once a lawyer accepts retainer to represent a client he is obliged toexert his best
efforts whole-heartedly to advance the client's legitimate interests with fidelity
and diligence until he is relieved of that obligation either by his client or the
court. The failure ofa client to pay for his services does not relieve a lawyer of
his duty to perform them completely and on time, save only when relieved as
above. [In Re Daggs, 384 Mich 729; 187 NW2d 22 (1971).]
2. Ifyou have money that the client claims an interest in (a retainer), do not stonewall.
Lawyers have a duty to render a full accounting for client property, including
(arguably) unearned fees. MRPC 1.15(b).
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8

3. Ifyou have money that the client claims an interest in (a retainer), segregate disputed
funds. MRPC 1.15(c).
4. Consider fee arbitration bya bar association, the Attorney Grievance Commission (see
MCR 9. 130(B)), or other ADR.
5. Don't attempt to bill for answering a grievance.
F:IMAAlpresenlalionsllCLE Nov 2006 Fees & Etbx SkoollHandoulslMain Handoul.wpd
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9

Mwbigan Supreme Court - ADM File No. 2003-62 .
Proposed Adoption ofNew Michigan Rules ofProfessional Conduct
RULE 1.5
FEES
(a) A lawyer shall not enter into make an agreement for, charge, or collect an illegal
or clearly excessive fee or an unreasonable amount for expenses. A fee is clearly
excessive when, after a review of the facts, a lawyer of ordinary prudence would be left
with a definite and firm conviction that the fee is in excess of a reasonable fee. The
factors to be considered in determining the reasonableness ofa fee include the following:
(I) the time and labor required, the novelty and difficulty of the questions
involved, anq'the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance ofthe particular
employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length ofthe professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers ,performing
the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for
which the client will be responsible shall be communicated to the client, preferably in
writing, before or within a reasonable time after commencing the representation, except
when the lawyer has not will charge a regularly represented the-client, on the same the
basis or rate of the fee shall be communicated to the client, preferably in Yllriting,. before
or 'uithin a reasonable time after commencing the represeBtation. Any changes in the'
basis or rate ofthe fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the 'service' is
rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or
by-other law. A contingent fee agreement shall be in ~ writing signed by. the client and
shall state the method by which the fee is to be determined, including the percentage or
percentages that shall accrue to the lawyer in the event of settlement, trial or appeal:
litigation and other expenses to be deducted from the recovery; and whether such
expenses are to be deducted before or after the contingent fee is calculated. The
agreement must clearly notify the client of any expenses for which the clierit will be
liable whether or not the client is the prevailing party. Upon conclusion of a contingent
fee matter, the lawyer shall provide the client with a written statement ef stating the
outcome ofthe matter and, ifthere is a recovery, showing the remittance to the client and
the method of its determination. See also 14CR 8.121 for additional requirements
applicable to some contingent fee agreements.
(d) A lawyer shall not enter into an arrangement for, charge, or collect a contingent
fee in a domestic relations matter or in a criminal matter:
(1) any fee in a domestic relations matter, the payment or amount of which is
. contingent upon the securing of a divorce or upon the amount of alimony or support, or
property settlement in lieu thereof: or
(2) a contingent fee for representing a defendant in a criminal case.
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(e) A division of a fee between lawyers who are not in the same fIrm may be made
only if:
(1) the attorney who will be representing the client advises is advised of and
does not object to the client ofthe participation ofall the lawyers involved and the client
consents in writing; and
(2) the total fee is reasonable.
(n A lawyer and a client may agree to a lump-sum or nonrefundable fee arrangement
that is earned by the lawyer at the time ofengagement, provided that:
(1) the complexity ofthe case and its likelihood ofpreempting the lawyer from
other work is apparent to the client at the outset; and
(2) the retainer agreement is in a writing signed by the client, clearly identifies
the client's expectations in hiring the lawyer, and unambiguously articulates that the
lump-sum purchases something in addition to a fIxed amount oflawyer hours; and
(3) the client is of sufficient intelligence, maturity, and sophistication to
understand the agreement and that the fee is nonrefundable; and
(4) the lawyer in fact sets aside a block of time, turns down other cases, and
marshals law firm resources in reliance on the fee agreement.
Comment
Reasonableness ofFee andExpense'S
U 1 Paragraph (a) requires that lawyers charge fees that are reasonable under the
circumstances. The (actors specified in 0) through (8) are not exclusive. Nor will each
factor be relevant in each instance. Paragraph (aJ also requires that expenses for which
the client will be charged must be reasonable. A lawyer may seek reimbursement fOr the
costofservices performed in-house, such as copying. or for other expenses incurred inhouse.
such as telephone charges. either by charging a reasonable amount to. which the
client has agreed in advance or by charging an amount that reasonably reflects the cost
incurred by the lawyer.
Basis or Rate ofFee
ill When the lawyer has regularly represented a client, they he or she ordinarily will
have evolved an understanding concerning the basis or rate ofthe fee and the expenses
for which the client will be responsible. In a new client-lawyer relationship, however, an
understanding as to fees and expenses must shelild be promptly established. It is net
Iwecsse1)' te recite eY !-he facters thet 'Underlie the besis o.lthe.fee, blit enly these thElt ere
directly inoz;olved in its c01'1lfJutatimi. It is sufficient, fer &ample, to state that the bflSic
rate is eli hourly cherge or e fixed emmmt or ali esti1'1'U51ted emoulit, or to identify the
fae1e:rs that may be tskeli ili1e sccewit infins1/yfixing the fee. When dCJ';elopments occur
d'Urilig the :rcpresentstien thst render Sl'i esrlier estimste slibsfflntislly insccurate, s
I"€vised estimate shelild be previded te the client. Generally, it is desirable to furnish the
client with at least a simple memorandum or copy of the lawyer's customary fee
arrangements that states the general nature of the legal services to be provided the
basis, rate or total amount ofthe fee, and whether and to what extent the client will be
responsible for any costs. expenses or disbursements in the course ofthe representation.
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"

A written statement concerning the terms of the engagement reduces the possibility of
misunderstanding. Pblfflishing the eliel'lt with a sin'lj'Jle memeranr:htm er a eepy ef the
Ja:i,~''Cr's cblstemfiHY'fee scheduk is suflicient ifthe bssis er rate ofthefee is set/orth.
[31 Contingent fees. like any other fees. are subject to the reasonableness standard of (
paragraph (a) of this Rule. In determining whether a particular contingent fee is
reasonable. or whether it is reasonable to charge any tPrm. ofcontingent fee. a lawYer
must" coiiSlaer"the factors that are relevant under the circumstances. Applicable law may
impose limita~ions on contingent fees. such as a ceiling on the percentage allowable, or
may require (J lawyer to offer clients an alternative basis for the fee. Applicable law also
may apply to situations other than a contingent fee. for example. government regulations
.regarding fees in certain tax matters.
Terms ofPayment
££l. A lawyer may require advance payment of a fee, but is obliged to return any
unearned portion. See Rule 1. 16(d). A lawyer may accept property in payment for
services, such as an ownership interest in an enterprise, providing this does not involve
acquisition of a proprietary interest in the cause of action or subject matter of the
litigation contrary to Rule 1.8(9flL However, a fee paid in property instead ofmoney
may be subject to special sCY1:lti1'ly beca1:lSe it iWlO[VCS questiel'ls ceneel'Y'ling both 'lhe
Wlhte D.lthe aero/iees 6HUi the leH~,.er's speciallQ'iewkdge ofthe yalue efthe prepe!'!)'. the
requirements of Rule 1.8(a) because such fees often have the essential qualities of a
business transaction with the client.
ill An agreement may not be made whose terms might induce the lawyer improperly to
curtail services for the client or perform them in a way contrary to the client's interest.
For example, a lawyer should not enter into an agreement whereby services are to be
provided only up to a stated amount when it is foreseeable that more extensive services
probably will be required, unless the situation is adequately explained to the client.
Otherwise, the client might have to bargain for further. assistance in the midst of a
proceeding or transaction. However, it is proper to define the extent ofservices in light
of the client's ability to pay. A lawyer should not exploit a fee arrangement based
primarily on hourly charges by using wasteful procedures. When there is doubt ...'-Ihether
a contingent fcc is consistent with the client's best interest, the lan,'Cf' sheuld offer the
diel'l/ ahema/h'e bases fe,· the fee ami explail'l their il'l'iplications. Applicable law may
il'l'ipose limilatiel'ls on COlitiJ'lgent fecs. s1:lch as a ceilil'lg on the percenlsge. See A«JR
8.l21.
C
Prohibited Contingent Fees
[67 Paragraph Cd) prohibits a lawyer from charging a contingent fee in a domestic
relations matter when payment is contingent upon the securing ofa divorce or upon the
amount ofalimony or support or property settlement to be obtained. This provision does
not preclude a contract for a contingent fee for legal representation in connection with
lhe recovery ofpost-judgment balances due under support. alimony or other financial
orders because such contracts do not implicate the same policy concerns.
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Division ofFee
illA division offee is a single billing to a client covering the fee oftwo or more lawyers
who are not in the same firm. A division offee facilitates association ofmore than one
lawyer in a matter iii which neither alone could serve the client as well, and most often is
used when the fee is contingent and the division is between a referring lawyer and a trial
specialist. .."PaFsgFsph (e) pennits the tsW}'CFS Ie di'lide a fee en agpeement hetween ihe
ptiirtieipating l«wyeFs if the client is sd'lised a''ld dees net ebjeel. It dees net requiFe
disc1esuFe to ihe clierlt efthe shtH'C that each ts..,vyer: is Ie Fecei'pJe. The client must agree
to the fee sharing arrangement. and the agreement must be confirmed in writing.
Contingent fee agreements must be in a writing signed by the client and must otherwise
comply with.paragraph ec) o(this Rule. A lawyer should only refer a matter to a lawyer
whom the referring lawyer reasonably believes is competent to handle the matter. See
Rule 1.1.
[87 Paragraph ee) does not prohibit or regulate division of fees to be received in the
future for work done when lawyers were. previously associated in a law firm. The client
must consent to the fee division agreement. and the consent must be in writing.
Disputes over Fees
[21lf a procedure has been established for resolution offee disputes, such as an
arbitration or mediation procedure established by the bar, the lawyer must comply with
the procedure when it is mandatory, 'Ind. even when it is voluntary, the lawyer should
conscientiously consider submitting to it. Law may prescribe a procedure for
determining a lawyer's fee, for example, in representation of an executor or
administrator, a class or a person entitled to a reasonable fee as part ofthe measure of
damages. The lawyer entitled to such a fee and a lawyer representing another party
concerned witb the fee should comply with the prescribedprocedure.
lJ
Staff Comment: There are several major changes to this rule. The proposed MRPC 1.5(a)
retains the "illegal or clearly excessive" language over the "reasonableness".standard ofthe ABA
Model Rules. It replaces the definition of "clearly excessive fee" in the current rule with eight
"reasonableness" factors. The communication requirement of paragraph (b) is made more
specific, as are the rules regarding contingent fees (in paragraphs [c] and [dD. The only
substantive change in paragraph (c) is the requirement that all contingency fee agreements be
signed by the client. The State Bar Ethics Committee believes that the proposal to require the
client to sign the agreement is sound and would reinforce the duty for the lawyer to clearly
communicate the terms of the contingency fee agreement to the client, and more importantly,
insure that the client has been clearly notified ofthe terms ofthe agreement. Proposed paragraph
Cd) clarifies that contingent fees are also not appropriate' in domestic relations matters when
alimony, child support or other property settlements are at stake. Proposed paragraph (e) would
require that the client consent in writing to any fee-sharing arrangement agreed upon by
attorneys of different firms. The burden to obtain the written consent is placed on the attorney
who will be representing the client. Proposed paragraph (e) reflects the current Michigan Rule
that does not require that fee sharing be in proportion to the amount of work done by each
lawyer. It also adds a requirement that the client must consent in writing to any fee sharing
agreement. Paragraph (f) was added by the State Bar Representative Assembly. It specifically
allows lawyers, under specified conditions (1) through (4), to charge a nonrefundable fee that is
fully earned when received, even though the lawyer may perfonn no additional work. The
conditions for a non-refundable fee were taken from Ethics Opinion Rl-Ol O.

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Defending liberty
Pursuing Justice
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~ Centerfor Professional Responsibility
Model Rules of Professional Conduct
Client-Lawyer Relationship
Rule 1.15 Safekeeping Property
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a
representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in
the state where the lawyer's office is situated, or elsewhere with the cons'ent.of the client or third person. Other
property shall be identified as such and appropriately safeguarded. Complete records of such account funds and
other property shall be kept by the lawyer and shall be preserved for' a period.of[five years] after termination of
the representation.
(b) A lawyer may ,deposit the' lawyer's own funds in a clie.nttrustac.c.ount forthe sole purpose of paying bank(
service charges on that account, but only in an amount necessary for thl1t purpose. ,
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(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to
be withdrawn by the lawyer only as fees are earned or expenses incurred.
(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall
promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by
agreement with the client, a lawyer shall promptly deliver to' the client or third person any funds or other
property that the client or third person is entitled to receive and, upon request by the client 'or third' person, shall
promptly render a full accounting regarding such property.
(e) When in the course of representation a lawyer is in possession of property in which two or more persons
(one of whom maybe the lawyer) claim interests, the property shall be kept separate by the lawyer until the
disput~ is resolved. The lawyer shall promptly distribute all portions ofthe property as to which the interests are
not in dispute.
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Comment ITable ofContents INext Rule
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It's Not Jus t
Abou t
Keeping Fee Disputes I
to a Minimum Can Be
Key to Reducing Risks
of Malpractice Claims
and Disciplinary
Complaints
JILL SCHACHHERCHANEH I
I
EBRA KELLY THOUGHT SHE HAD ALL HER BASES
covered.
Kelly. a lawyer in 1rumbulJ, Conn., had fol- I
lowed every good business practice on fees she ,
everlearned. Most important, she had the client ,
sign a fee agreement and deliver a hefty retainer I
at the beginning of the case.
But the pace of her c1it:m's divorce and child !
custody dispute became dizzying. The numer-
',I
ous hearings qukkly depleted the retainer and,
although the client did occasionally restock the escrow account, Kelly soon
found herself falling intO a deepening sinkhole Iilled with red ink. I
Before she knew it, Kelly's client Qwed her thousands of dollars in unpaid I
I fees. lind the case wanoo far along for her to withdr-olw. Kellycondnued to !
represent the client right up umil he and his wife reconciled.
I
The c1iem couIdn't have been happier with the outcome. H is thanks to her, I
I however. was an unpaid bill for $6,000.
Fees are both the lifeblood and the bane ofever" lawver's existence. It·s
, wonderful to be paid for your work, ofcourse, bur. at rhecnd ofsome cases,
, lawyers might be wondering \'v'hether the fec was worth all the trouble. Disputes
over fees can be the difference bctwecna satisfied client who serves as
a referral source unda bitter one who files a malpractice suitor disciplinary
complaim.
Lisa G. Lerman, a IllW professor at The Catholic university ofAmerica in
WashinglOn. D.C.. cites studies suggesting that as many as tWo-thirds of all
malpractice claims against lawyers origin:ned aSCOllnterciaims in lawsuits
Jill Sc/iodmt'" ChOIlf.11, tll(l~:l·tl; is a legal a/ftHrs 'fJLTi1el'fol' JI,e ABA Journal.
Here-m(lil address is cllanmj@sfajf.ubanel.org.
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I
.11(1." J.lt 4 ABA jOLlR:>:i\.L '
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oughtbythe lawyers seeking payment offees.
Little good comes of it when lawyers decide to go after
clientS for fees, says Heather L. Rosing ofSan'Diego,who
defends other lawyers in professional liabilitY cases; "1
can't tell you how maoytimes I've seell a lawyer s.ue for
$20,000 to $30,000 in fees and get smacked with·a $2 million
malpractice suit," she says. "That is why I am avery
big proponent of taking steps up front to prevent [fee di~putes]:'
Lawyers themselvesmay be the actual cause of most
fee disputes, according to Jay Foonberg, a lawyer in Beverly
Hills, Calif. He is the co-author, with J. Harris Mar-
I gao, ofBow to Droft·Bills Clients Rush to Pay (2nded. 2003),
published by the ABA Section of Law Practice Management.
The problem, says Foonberg, is that lawyers too often
fail to give clientS accurate assessments of the COSt of handling
legal matters. "The client has expectations based on
what the lawyer said," he points out. "Then, two months
after the trial. the lawyer sends a bill for twice the amount
of the estimate, and the client is shocked. Lawyers may
have quoted a fee in good faith, but the client does not
want to write a blankcheck. Clients want to know how
much it is going to cost."
But, as every lawyer knows, predicting the final fee can
be a difficult proposition, given the number ofvariables
in any legal case. Moreover, clients may be reluctant to
pay a fee based on how much time it will take to handle a
case.
For that reason, some lawyers are trying to structure
ABA JOURN..\L ;\I(~y 1111 1 4
fees that retlect the market value of their
services rather than the amoumoftime spent
on a case. [I (
"Keeping track of time should be a measure
ofCOSt only, not value." says Mark A. Robertson
ofOklahoma City, who co-edited, with I
fellow Oklahoma City attorney James A. Cal- !
loway, Winning Alternatives to the Billable Hour, I
published by the ABA Law Practice ManagementSection
in200Z. "We only have so much
time in the day, and measuring that time by
hours makes sense. It is good to know the
time we spend on a matter for what it costs
the lawyer. but it does OOt necessarily equate
to the value of the services you are delivering
to the client."
Robertson believes that a client will respond
more positively to fees that bear some
relation £0 his or her perception of the value
of the services provided.
One approach is to structure fees based on
concepts that better relate to the client's industry.
In representing areal estate developer,
for example, Robertson has broken down
his workinro discrete tasks and then calculated
fees based 00 the square footage of the
project. He also has charged t1atfees for
mandatory annual filings for small corporate
clients.
"You are not selling a product," says RobertSon.
"You are selling advice and counsel,
and the client has to perceive value in it."
THE ETHICS FACTOR
GUlDANCEOFPERED BY PROFESSIONAL CONDUCT RULES FOR
11lwyerscends to be short on specifics. Rule 1.5 (Fees) of
the ABAModel Rules of Professional Conduce, which
serve as the basis for most state ethics rules for lawyers,
mandates, "A lawyer shall not make an agreement for,
charge, orcolle:ct an unreasonable fee or an unreasonable
.amount for expenses."
Rule L5 also identifies some of the factors that can determine
what is reasonable, including the time, skill and
knowledge required to handle the matter: customaryfees
in the lawyer's locality~ the resultS obtained; and whether
the fee is fixed or contingent. But what it boils down to,
says Rosing, is that just about anything can affect whether
a fee is or is not reasonable.
"You have co look at the circumstances, including the
results obtained, whether the client was informed about
how much the lawyer was going toput into the case and
other factors," Rosing maintains. "Ifyou are the solo who
takes on the typical personal injury case on a contingency
basis, and then takes on a securities litigation matter and
charges$500per hour, that may be considered unconscionable."
Courts generally have inherent authority to review the
reasonableness of any fee, but cases are rare in which
hourly fees have been questioned. The exception is cases
in which fees are shifted to the losing party by statute,
according to William G. Ross, a professor at Samford uni-C·
versity's Cumberland School of Law in Birmingham, Ala.
I

l.
\ Courts !Ire more likely to scrutinize cOlltingent fees, complaintschRt they are roo con(usiflg, says PaU, a mem,.
i says Ross. He cites li comment in the Restatement (Third) ber of th~ABJ\,Law Practice Management Section c~>un"
I of the Law Governing Lawyers.The cumment state;; that cHand au~oi'o(abook pUblishcd.b,ythe scction',titled
1 cO,urt,~ Wil,l C,onslder conting(:nt fees to be unrc,asonable if Co/lettjng,Yo'rirF~:Getting PtlJdfromJnttiie to JT1f)oice (2002).
"there was a high likelihood of substantial recovery by Feeagrcemcnts also give lawyers aveh'ide to screen
\ trialor settlement, so that the lawyer bore little riskof I out ~ot~,niiiJ:llyproblematicc~iefltS.Ro?e~[A~Zupkus of
nonpayment,:' orwhere "the client's recovery was. likely I Denver,.recentiyJosta poterttlalnew chentto·another·fum
\ to be solilrgethat the lawyer's fee would clearly exceed i whe~:he.expll1-1ned lidgationt:0Sts.tl1at the-iridividual
the sum, appropriate to payfor services performed and I w.o~ldhav~ ,to~ovetup fron~. The die~~b~k~d.a:ndtried
risks assumed:'
' tq,pl.nyZ:t!pk:t!sofh competing lawye~. To ZUpkU5, the
Time inc:remelltli for which lawyers bill also have come . ploy "~'acli:ar.sign of possibtctro:ubledowIltheroad.
under coun scr!ltiny. says Ross. As billing by the tenth of . "Wc;.felt:badlyabout it llt.dleti rn e, but it'sworsewhep
I an hour becomes standard, court!; in two recentcases' have ,.yop are ,$1 O,OOQ:.in the hole;" riote~Zupkus.a ooullcil'
been critical ofdle practice ofbilling in quarter~hour in- Ilnember,fOritheABA'b GencralPl-llctice, Solo and Sfuall
I crenH::nts as too broad to accurately reflcctt~e amount of FjrJTl;'S~¢~i.?ri.a,~damemberoft;he,~soci~~iun's:&'tan?ing
l'timela~1'ers.devoteto work on behalfofclients. A ruling ComUllttee;on·$olo and SmaJlFlfmPractlrlon~rs'(llsISI
by the U.S. District COUlt for the District ofKansas stilted Pbll). , .
that, billing by the qllartcr-houJ is "no longer lln llccepted 'I)arr¢ll'Siewa~, a solo practitioner in San Antonio, says I
practice,"Swishet'fJ. UT/ited S/ales,262 F. -------'----....,.....".--., he still screens potential'new clients in I'
" Supp.2d. 1203 (2003). Another district ,thesame way he screened newc'ustom·
court described quaner-hour billing in- ABA . /'........ ers when he' ~'aSa bank(;c. He sees dis- I
crements as "inappropriate." COWOfl f). ' ' ' ".~'- cussions ahout his retainer'llgreemem as I'
Code/ia, 2001 WL 30501 (S.D.N.Y.). C . " .. 'the perfect time to evaluate .the client's I
lpaddirlon, COUrtS and ethics panels OnnectlOIl< '. . ability and Willingn~ss,topayJodlis I
are WAry of provisions in fee agreements ' "@§J2!-. services by listening to Qbjeetions and I
that askclienrs to waive certain rights if I PRO CII AM·.~"~·, .concerns aoout,paying'up-front retainers I
they do not pay fees. (See ';Chuosing Begins llt1 p;m; (EI}May 19and': . and coSt:;. ' I
Whatto Kel:p," April2Q04 ABA JoUrtlP!, , dis~usses re~.uti~~ ~1

"..... ,.;:...• !
· a~orn¢y.s ~ho;,ti~e·sucna,yague billing method, says Karp..
.Furdierinorc, ooui'tshave disapproved of vague or lump~
· ~tim·.billingJor,wh'ich little Of no detail is provided. One
U.S.: distriCt court, for instance, substantiallv reduced the
amoUntofhours ttl be used as the basis for ~warding at-
· torn~y;.fces becaus~the·bilHng statements were tOO vague.
Lin(i'fJ..Ammcon Generol Finance Inc., 87 F. Supp. 2d 1161
· (D..:l{~n.:2000).
• •. ·'~LaWYers fl!il to UndC,lfstand thar their bill is a marketingtool;"·
says Poll. "The more you can show the value
yaupfOvided to the client, you are marketing yourself and
wb.at)·.ou c;iid'for the client. And the client will be happy
.. ~.pay·t!le.;bill." .. .
;.P()~tadv.iseslllwyers toexp~ain in plain English what
· the¥·:ili.~fortheclieotand, when possible, to frame the
•. wordiJigi.il apbsitive light. Even ifa hotly contested child
cuStody.dispute was losr, for inscance, the lawyer can still
· u~e;th¢:J~illt9-identify any positive results that were ob­
,!:ained, such a;:; negotiating avisitlltion schedule that ai­
·]oWs,tl)e,childCo;spend 53 percent ofthe time with the
client>:.·.. · ... . .
.... 1ii.clu\iliigdetailsabdut the name of the COUrt and the
. ,iudg;!i¢ating tlie matter, or the name ofopposing coun~
5¢I.witllw49in the lawyer met,'helps the cHene feel more
inY.91y.e.d·.a~dr;\!laresll1c; Ulore inclined tppaythe bill.
;~~l~~vant.Houser Bailey in Portland, Ore., has created
ABlIjO\iItNAL Mo, ZlJil.4
an extranet so clients can log in each day to
see daily billing details on their matters, says \
parmer Douglas G. Houser. "Availabilityis ,,'("
key," says Houser, a past chair·of the ABA
Section oflbrtTrial and Insurance Practice. 1 -
"Clients love it."
Zupkus says he believes 50 strongly in the
need to communicate with clients that he
sends a cover letter with each billeo explain
IlOW a matter has progressed; or why it is in a .
holding pattern and what will be done to
move it forward.
"When bills get sent ouc, it should not be
JUSt a naked bill like AI's Auto Body," says
Zupkus. "The cover letter is a good communication
tool. It lets clients know that we are
progressive. And it gives them an opportunity
to ask questions 50 that [the feel does not
build up to an explosion point,"
GET IT DOWN TO A SYSTEM
II' THE CHOKE OF SEl'i"D[NG OlTr REGULAR BILLS
is problematic for many lawyers, then the
task of trying to collect unpaid fees is likely
to seem like pure torture. Bue law practice
management experts say that, as with billing,
collecting unpaid fees can become much eas- .i
ier by establishing and following dear procedures.
Thoseproceduresofeen break down after
lawyt:rs send oue bills, saysJames Calloway,
practice management adviser for the Okla- .
hama Bar Association. . C
"Ifyou do not set up some sOrt ofobjective
neUtral policy in advance." says Calloway, '
"you will have what happens daily in law UrnlS
ac;ross the country: The billing clerk will tell you that a
Client did not pay and you will say eo pUt {the bill} on your
deskand you'll call. Then you don't."
Keith B. ~'1cLennan ofCollegeville, PlI..,.meets twice a
I month with his partners to review accounts receivable and
collection actions. Typically, the process stares with a
call to the client, says McLennan, who chairs the Business
I·plan
Law Group in the ABA:s General Practice Section. He
II personally calls his clients to remind them about unpaid
fees.
Karp concurs that the unpleasant task,o[calling clients
abou.t unpaid fees is best performed by the lawyer. "It is
more effective if the la.wyer calls because if clients have
some concerns about the ..york., they can talk about it," he
Isays.
Poll, however, disagrees and says the lawyer.should be
I the last person .3t the firm to call the client aboUt fec:s be­
I cause it undermines the lawyer's credibiliryas the client's
Iadvocate.
and compromise often can be helpful to lawyers
in obtaining fee payments from recalcitrant clients,
. s~yex.pertsand practitioners. Foonberg says that,rather
f'lexibility
Ithan jumping to sue or simply writing off.unpaid fees,he
firSt contacts the client to learn whether the client can
and will pay, and if so, how. Foonberg says One client told
him that he was paid every other month·and was willing
(I

to pay his legal fees if he could do it on the same basis.
"Sometimes the monthly terms may be more important
than the total payment," notes Foonberg, "so ifyou sit
down and work with the client on cash flow, that may work
out better."
Other lawyers are willing to discount fees as an incentive
for payment. Zupkus says some of his institutional
clients routinely demand a discount ranging from 10 percent
to 15 percent if they pay their bills within 10 days.
His firm has decided the guarantee of payment is worth
the markdown.
PUT IT ON PLASTIC
THE USE OF CREDIT CA.RDS ALSO IS EASING COLLECTION
woes for lawyers. "With the way sociery works today,"
says Calloway, "lawyers who do not accept credit cards
may find themselves ata competitive disadvantage because
many clients may not have $2,000 cash for a retainer,
but they may have a $2,000 credit limit;"
While the practice has become widely accepted, some
lawyers remain hesitant to accept credit cardsbecause of
ethics concerns about the fees associated with their use.
Typically, most banks take a percentage of the amount
charged as a fee and deposit the rest in the vendor's bank
account. Lawyers, however. generally can make other
arrangements with banks to ensure that credit card fees
are not deducted directly from cJienrfunds. McLennan,
who accepts credit card payments, says most banks understand
lawyers' ethics concerns about use ofclient funds
and·will work with them to deduct monthly fees from
firm operating accounts rather than client escrow accounts.
No matter how flexible a lawyer tneS to be in working
our fee arrangements with clients. fee disagreements
with some clients are inevitable, and they don't leave the
lawyer with attractive options. One of those options is to
withdraw from representation.
ABA Model Rule 1.16 (Declining or Terminating Representation)
and state ethics rules generally allow a lawyer
to withdraw from a case as long as the client is not
prejudiced. Rule 1.16, for instance, states that grounds
for withdrawal include instances in which "the client
fails substantially to fulfill an obligation to the lawyer regarding
the lawyer's services" or if "the representation
will result in an unreasonable financial burden on the
lawyer."
But withdrawal also raises questions, including whether
the timing ohhe withdrawal fails to protect the client's
'interest and whether the lawyer may retain papers relating
to the client.
These tactics can be risky, warns Catholic University's
Lerman. "Any situation where the lawyer impairs the
client's ability to be represented is a real problem," she
says.
As for suing to recover fees, most experts see it as a risk
not worth taking. "For every 10 times you sue a client for
fees," says Rosing, "seven will cross-complain for legal
malpractice." .
And San Antonio's Stewart, ever the former banker, savs
lawyers are better off just letting some fee disputes go .
and moving on to other matters. "The whole point is to
get money," he says, "so why spend time chasing dollars
that are already gone?" •
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'These stsuis eCCll/llliJlecon1e

STATE OF MICHIGAN
Attorney DiscipHne Board
(
Grievance Administrator,
Petitioner/Appellant,
v
Harry R. Boffman, Ill, P- 55052,
Respondent/Appellee,
Case No. 03-135-GA
Decided: September 28, 2005
Appearances:
H. Lloyd Nearing (before hearing panel); Robert E. Edick (on review), for the Attorney Grievance
Commission.
Kenneth H. Mogill, for the respondent.
BOARD OPINION
This review proceeding arises out ofthe handling of$5,000 paid to respondent pursuant to
a writtenretainer agreementwithhis client. The agreementprovidedfor a"retained service amount"
of 50 hours, i.e., that respondent was obligated to perform 50 hours oflegal servi~e bef~r~ billing
further. Services rendered after the "initial retainer hald] been exhausted," were to be billed at $100
per hour. The client became dissatisfied with respondent's representation and, about three months
after signing the retainer agreement, discharged respondent.and demanded his money back.
Respondent calculated the time he spent on the matter and offered to return a portion ofthe retainer.
The client was not satisfied and filed suit and the grievance leading to the formal complaint in this
matter.
The formal complaint alleged various rule violations.
Following a hearing, the panel
concluded that the $5,000 paid to respondent constituted a general retainer and dismissed the
complaint. The Grievance Administratorhas petitioned for review alleging only that the panel erred
in dismissing the commingling charge, i.e:, the violation ofMRPC 1.15. We conclude thatthe panel
(

Grievance Administrator v Harry R. Boffman, 1/1, Case No. 03-135-GA - Board Opinion Page 2
( erred in characterizing the sum paid to respondent as a general retainer and, accordingly, that
respondent violated MRPC 1.15.
Itcould be argued that the duties imposed under the rules as applied to the facts in this matter
should come as no surprise to a Michigan practitioner - the law being more settled than many
propositions upon which liability in civil, criminal and disciplinary forums is imposed. However,
we do acknowledge a prior contrary decision of this Board and the fact that many respected and
thoughtful practitioners have divergent views as to the proper way to handle money paid to, or
deposited with, a lawyer at the inception ofa representation. Accordingly, we make our ruling in
this case prospective. Further, inasmuch as the hearing panel has urged this Board or our Supreme
Court to clarify the appropriate use ofretainer fees, and a different but somewhat related question
is pending before the Court in the form ofproposed amendments to MRPC 1.5 and 1.15, we will join
the panel's request for clarification in future cases and will consider forwarding a memorandum to
the Court discussing various issues pertaining to retainers and/or fees paid in advance.
I. Facts & Procedural Background.
The complainant in this case is respondent's client, Jaswant Kalsi. Mr. Kalsi retained
respondent because he believed the FBI was tapping his phones and following him.
He and
respondent, Mr. Boffman, signed a Retainer Agreement with the following terms set forth in the
numbered paragraphs below:
~2. Client promises to pay Attorney a retainer of $5,000 Dollars
upon the execution ofthis agreement.
~3. Client understands that he/she will be billed for legal services in
the event that attorney performs services in excess of the retained
service amount.
~4. The retained service amount shall be 50 Hours; that is, Attorney
shall be obligated to perform 50 Hours legal service [sic] to client
before billing the client for additional services.
l)
~5. Client agrees to pay Attorney at a rate ofGne Hundred ($100)
Dollars per hour for legal services rendered after the initial retainer
has been exhausted.

Grievance Administrator v Harry R. Boffman, III, Case No. 03-135-GA -- Board Opinion Page 3
Mr. Kalsi paid $5,000 to Mr. Boffrnan in cash ($4,000) and by check ($1,000). Mr. Boffrnan (
had no trust account; the check was deposited in a checking account held jointly with his wife and
at least a portion ofthe cash was not deposited in any account.
Mr. Kalsi testified that on October 17, 2000, he met with Mr. Boffrnan for about an hour to
discuss Mr. Kalsi's concern that the FBI was tapping his phones and following him. Mr. Kalsi
testified that he had about 30 phone calls with respondent, and had a meeting earlier in January
relatedto alleged harassment ofhis daughter at her workplace. He met with respondent onJanuary
17th or 18th, 2001 and concluded that respondent had "not done anything." Mr. Kalsi then asked
respondent to "stop my case and refund my money." This was reiterated in a January 29th letter.
Respondent offered to return $2,600 which sum was based on"the time respondent invested in [Mr.
Kalsi's] matters." Complainant sued respondent in district court for the amount ofthe retainer and
obtained a default judgment against respondentwhich judgment was satisfied.
The formal complaint charged respondent with neglect, misappropriation, failure to refund
unearned fees and commingling. The hearing panel dismissed the complaint in its entirety. With
respect to the neglect charges, the panel stated: "We are troubled by the Grievance Administrator
bringing an allegation ofprofessional misconduct for neglect where there was no apparent factual C:
support for the allegation." (HP Report, p 3.) As to the "separate claims against Boffrnanfor the
alleged failure to refund unearned fees to Kalsi, failure to separate client property, and for
misappropriating client funds," the panel concludedthat "the three claims rest onthe same premise,"
i.e., that the $5,000 retainer was client property and not a "general retainer." (HP Report, p 4.)
follows:
The panel summarized the Administrator's argument regarding the commingling charge as
The Grievance Administrator claims that Boffman violated
MRPC 1.l5(a) because Boffrnan did not deposit the retainer--which
the Grievance Administrator asserts is client pioperty--into an
Interest on Lawyer's Trust Account (IOLTA) or other client trust
account. As noted above, Boffrnan did not have a separate business
account at the time and deposited at least some ofthe retainer into a
personal checking account he owned jointly with his wife.
According to the Grievance Administrator, Boffman's failure to
deposit the retainer is a violation ofMPRC 1.15(a) because Boffrnan
did not separate his client's property from his own. [HP Report, p
4.]
(\

Grievance Administrator v Harry R. Boffman, 1/1, Case No. 03-135-GA -- Board Opinion
Page 4
In the course ofits analysis, the hearing panel stated, among other things:
Clearly, a more explicit retainer agreement could have avoided this
issue. Nevertheless, after reviewing the exhibits in conjunction with
the testimony, we find that the $5000 mentioned in the retainer
agreement was a general retainer rather than an advance from which
hourly based fees would be drawn.
* * *
[W]e disagree with the Grievance Administrator's assertion that a
retainer fee is client property that must be deposited into an IOLTA
account. Where, as here, the client and the attorney agree to payment
ofa set amount ofmoney in advance for an agreed upon amount of
work (in this case, any amount up to 50 hours), we conclude that the
retainer is not "theproperty ofclients" or "clientfunds" subject to the
IOLTA and trust rules in MRPC 1.15.
* * *
[W]e believe it follows from the Board's reasoning in [Grievance
Administrator v Cohen, 91-159-:RP (ADB 1992), and Grievance
Administrator v Underwood, 99-58-GA (ADB 2001)] that the
retainer received by Boffman in this case was not client property
subject to the IOLTA or trust requirements ofMRPC 1.5. See also
New York Ethics Opinion 570(1985) (analyzing analogous NY Code
ofProfessional Responsibility provision and explaining textual and
practical reasons for this conclusion).
* * *
Given our conclusion that the $5000 retainer was not client property,
the Grievance Administrator's remaining claims are easily resolved.
By definition, there were no unearned fees and Boffman must prevail
on this claim. See Underwood Opinion at 5-6 (general retainer fees
are "earned when paid"; quoting commentators that recognize
validity of general retainers).8 Further, there cannot be a
misappropriation where no client property is involved. See
Grievance Administrator v Conway, ADB #97-156-GA (1998)
(defming misappropriation in part as an unauthorized use of client
funds). Accordingly, we also dismiss these claims.
lJ
8 Even ifwe are incorrect in our legal reasoning, this claim must be dismissed.
We have found that Boffman contacted Kalsi to pick up a check in his office
within a week or so after Kalsi terminated the representation and demanded
that the retainer be refunded. Thus, even if a portion of the retainer was
unearned as the Grievance Administrator asserts, we would hold that
Boffman's efforts to contact Kalsi and his leaving a check for him to pick up
constituted a prompt refund.

Grievance Administrator v Harry R. Boffman, III, Case No. 03-135-GA -- Board Opinion Page 5
II. Issue on Review.
(
The Grievance Administrator petitions for review ofonly the hearing panel's dismissal of
those parts ofthe formal complaint alleging commingling in violation ofMRPC 1.15. The duty not
to commingle lawyer or firm funds with client funds stems from MRPC 1.15(a) which provides:
A lawyer shall hold property ofclients or third persons that is in a
lawyer's possession in connection with a representation separate
from the lawyer's own property. All funds ofthe client paid to a
lawyer or law firm, other than advances for costs and expenses,
shall be deposited in an interest-bearing account in one or more
identifiable banks, savings and loan associations, or credit unions
maintained in the state in which the law office is situated, and no
funds belonging to the lawyer or the law firm shall be deposited
therein except as provided in this rule. Other property shall be
identified.as such and appropriately safeguarded. Complete records
ofsuch account funds and other property shall be kept by the lawyer
and shall be preserved for a period offive years after termination of
the representation. [MRPC 1.15(a);emphasis added.]
'The parties, and the panel below, have framed the dispositive issue, as whether the retainer
at issue was a "general retainer," as the panel concluded, or an advance paymentoffees. The parties
agree, as a legal proposition, that "an advance payment offees,. which remains the property ofthe
client until earned, must be kept in a client trust account until earned~" Respondent's Brief, p 13 n
6. See also Administrator's Brief, pp 12-13.
(
III.
The Hearing Panel's Legal Conclusions & Disposition of the Case.
A. The Panel's Conclusion That the $5,000 was a General Retainer.
In its thoughtful and detailed report,· the hearing panel reasoned that the "retainer" paid to
Mr. Boffman was a general retainer. The report, states, in part:
Our initial inquiry is whether the retainer agreement required
Boffman to refund any portion ofthe retainer fee ifhe did less than
50 hours of work for Kalsi. The agreement itself is not explicit on
this issue. It does state that Boffman was "obligated to perform 50
Hours [sic] legal service to client before billing the client for
additional services." From this language, one might interpret the
agreement to provide that Boffmanwas entitledto keep the $5000 for
(

Grievance Administrator v Harry R. Boffman, //I, Case No. 03-135-GA -
Board Opinion
Page 6
any workup to 50 hours (subject to the limitations imposedby ethical
rules). 6
6 Of course, a general retainer is still subject to other ethics requirements,
including that It not be clearly excessive. MRPC 1.5. The Grievance
Administrator does not assert--and we express no opinion on whether--the
retainer amount was excessive.
On the other hand, Boffman's conduct towards Kalsi, as well
as some of his arguments to this panel, leads to the opposite
conclusion. After Kalsi demanded a refund, Boffman did not tell
Kalsi that he had no right to have any portion ofthe $5000 refunded.
Instead, Boffman offered a refund based on the number ofhours he
worked to that point. This arguably suggests that Boffman thought
he was working on an hourly rate basis. In addition, before this panel
Boffman does not contest the Grievance Administrator's unearned
fee claim by arguing that Kalsi was not entitled to any refund (which
would be the logical argument if Boffman was entitled to keep the
full $5000 even ifhe worked less than 50 hours). Instead, Boffman
argues that his efforts to leave a check for Kalsi demonstrate that he
promptly tried to return any unearned fee (thus suggesting there was
an unearned fee).
(
To resolve the question of what the parties' intentions were
with respect to the $5000, we tum to the hearing testimony of
Boffman and Kalsi. Boffman testified that he understood. that Kalsi
intended the $5000 to belong to Boffman and did not need to be held
in trust. (Tr. at 71.) Boffman also believed the $5000 belonged to
him, and testified that Kalsi understood that Boffman was going to
treat the $5000 as belonging to him and did not object. (Tr. at 73.)
See also Tr. at 179-83 (Boffman testimony that the $5000 was a
retainer and not an advance for hourly-based billing).
Significantly, Kalsi's testimony is consistent with Boffman's
testimony on this crucial point:
Q: ...[W]hen you paid [Boffman] that money, that's·
his money and then you wanted him to do the work
for you; right?
A: Yes. (Tr, p 151.)
(~
Clearly, a more explicit retainer agreement could have
avoided this issue. Nevertheless, after reviewing the exhibits in
conjunction with the testimony, we find that the $5000 mentioned in
the retainer agreement was a general retainer rather than an advance

Grievance Administrator v Harry R. Boffman, 1/1, Case No. 03-135-GA -
Board Opinion
Page?
from which hourly based fees would be drawn. We believe that
Boffman's offer to refund to Kalsi a portion of the retainer was an
effort to respond to Kalsi's dissatisfaction with the results of
Boffman's work and an (ultimately unsuccessful) effort to avoid
litigation. Further, we conclude that Boffman's argument in his brief
regarding the return of an unearned fee was made to address this
issue in the event we agreedwith the Grievance Administrator's view
that the $5000 was client property. [HP Report 11/4/04, pp 5-6.]
(
. B. Did the Panel Correctly Conclude that the Fee Paid Was a General Retainer?
At the outset, we will state our agreement with the parties' formulation ofthe issue and the
legal principles implicit therein. "A general (or "true") retainer is a fee . . . paid solely for
availability and therefore do[es] not involve an advance fee but a fee that is fully earned when
paid. '" I A frequently cited treatise also frames the issue under the subheading "Retainer or
Advance?":
The retainer fee must be distinguished from an advance payment of
costs and fees a client makes for specific legal services. and
accompanying expenses. Advances, which unfortunately are often
included under the generic rubric of"retainers," remain the property
of the client until the lawyer performs the services, or incurs the
expenses, for which the payments were made. Most jurisdictions
require advance fees to be deposited into trust accounts and to be
withdrawn as the fees are earned. [ABA/BNA Lawyers' Manual on
Professional Conduct, 41: 2002 - 2003; citations omitted.]
c
As we have noted, respondent concedes that this is the state ofthe law, but argues that it does
not dictate the result "because the money at issue in this case was a general retainer and not an
advance payment of fees." The Administrator disagrees and argues that the $5,000 paid to
respondent was an advance offees andnota "nonrefundable retainer"o~, to use the panel's language,
a "general retainer." Although some lawyers who use the unfortunate term "nonrefundable
retainer"2 may mean something other than a general (i.e., "true" or "classic") retainer, there is no
1 nl.
1 District ofColumbia Bar Opinion No. 264 (1996). See also, New York Ethics Opinion 570 (1985), P
2 We disapproved of the phrase "nonrefundable retainer" in Grievance Administrator v Otis M.
Underwood, 99-58-GA (ADB 2001) because lawyers have a duty to return unearned fees. Lawyers also have a
duty not to charge or collect clearly excessive fees. Therefore, it is inaccurate to label a fee "nonrefundable."
As this Board noted in Underwood, some co.urts have held that use ofthe term is itself misconduct because it is
(continued...) ( \

Grievance Administrator v Harry R. Boffman, 1/1, Case No. 03-135-GA - Board Opinion Page 8
question here that the parties are focused on whether the $5,000 was paid as a "general retainer" or
as fees paid in advance.
The Administrator relies heavily on the express terms of the fee contract which we have
. quoted above, and which required respondent to provide 50 hours oflegal services.
Respondent argues, as he did below, that the retainer agreement was "unclear" because
although it used the word "retainer," it did not specify what type. The panel,.relying in part on the
client's testimony, found that the fee belonged to respondent upon payment. The testimony relied
on by the panel consists ofthe following answer to the following compound question:
Q: ...[W]hen you paid [Boffman] that money, that's his money and
then you wanted him to do the work for you; right?
A: Yes. (Tr, p 151.)
The Administrator contends that the adrilission of the parol evidence was improper.
essence, the Administrator argues that there was no ambiguity in the fee contract, and, even were
there one, it must be resolved against the attorney-drafter. The Administrator's briefstates:
In
The agreement does not use the word"nonrefundable" or any similar
word, or language to the effect that the retainer shall be considered
fully earned upon receipt. There is nothing within the four comers
of the fee agreement to even suggest that Complainant was
purchasing anything other than a fixed amount of hours from
Respondent. [Administrator's briefon review, p 7.]
Our "first inquiry is what the w:ords ofthe contract say, not what the parties say about it."
Eagle Industries Inc v Thompson, 900 P2d 475 (Ore 1995).
We agree with Administrator that,
A lawyer's silence about whether a retainer is nonrefundable [or
a general retainer, or otherwise not an advance payment offees] does
not create an ambiguity, it triggers a presumption. "A fee payment
that does not cover services already rendered and that is not
otherwise identified is presumed to be a deposit against future
services." Restatement Third, TheLaw Governing Lawyers § 38(c),
Comment, p 282. [Administrator's briefon review, pp 11-12.]
l
2 ( ...continued)
false and deceptive.

Grievance Administrator v Harry R. Boffman, III, Case No. 03-135-GA -- Board Opinion Page 9
An omission or a mistake is not an ambiguity. Michigan Chandelier Co v Morse, 297 Mich (
41,48; 297 NW 64 (1941). As our court stated in Michigan Chandelier:
"Whatever may be the inaccuracy ofexpression or the inaptness of
the words used in an instrument in a legal view, ifthe intentionofthe
parties can be clearly discovered, the court will give effect to it and
construe the words accordingly . . .. The law presumes that the
parties understood the import oftheir contract and that they had the
intention which its terms manifest. Itis not within the function ofthe
judiciary to look outside ofthe instrument to get at the intention of
the parties and then carry out that intention-regardless ofwhether the
instrument contains language sufficient to express it; but their sole
duty is to find out what was meant by the language of the
instrument."
An ambiguous writing mustbe construed against the party who drafted it. 3 This rule ofconstruction
applies when attorneys draft fee agreements. 4
We do not find that the fee agreement is ambiguous with respect to the issue before us, i.e.,
whether the retainer was anadvance payment offees or a general retainer. A general retainer (or
"classic retainer" or "true retainer") is simply payment for the attorney's availability to the client
and unavailability to other clients. See, e.g. New York Ethics Opinion 570 (1985), P 1 n1. Itis not
payment for the legal work. As the Restatement explains, referring to a general retainer as an
"engagement retainer":
c
An engagement retainer must be distinguished fro~ a lump sum fee
constituting the entire payment for a lawyer's service in a matter and
from an advance payment from which fees will be subtracted (see §
38, Comment g). A fee is an engagement retainer only ifthe lawyer
is to be additionally compensated for actual work, ifany, performed.
[1 Restatement ofThe Law Governing Lawyers, 3d, § 34, comment
e, p 251.]
3 See, e.g., Michigan Chandelier Co v Morse, 297 Mich 41, 48; 297 NW 64 (1941) ("Ifit can be said that
it is susceptible of two constructions by reason of doubt or uncertainty, the [contract] is to be construed most
strictly against the [party] in whose behalf it was prepared."); Stroud v Glover, 120 Mich App 258; 327 NW2d
462 (1982).
4 Wolfram, Modern Legal Ethics (1986), § 9.2, P 503 ("Courts quite uniformly resolve ambiguities in
a fee contract against the lawyer, who has almost invariably drafted it."); Gabriz v Wechter, unpublished opinion
per curiam ofthe Court ofAppeals, decided 12/5/97 (Docket No. 189880; 1997 Mich App Lexis 1882) (retainer
agreement's provisions regarding scope of representation construed against attorney-drafter) ( ~

Grievance Administrator v Harry R. Boffman, III, Case No. 03-135-GA -- Board Opinion Page 10
( Again, nothing in the retainer agreement indicated that the client was paying for anything
but 50 hours ofrespondent's time.
Even assuming an ambiguity exists, and that it should not be held against the drafter, we do
not find that Mr. Kalsi's testimony establishes that the fee is a general retainer. Ifwe are to look
outside the contract, when we consider this testimony in light ofother evidence, it only becomes
clearer that we are dealing with fees paid in advance and not a general retainer. Respondent also
testified that he believed the money was his, based on the fact that he had told Mr. Kalsi that he
could not guarantee a particular result. (Tr, p73.) This does not establish a general retainer. We
also note also the testimony ofrespondent that he "accounted for [his] time," and offered a refund
"for whatever portion [Kalsi] might have been entitled to as a result ofthe fact that [respondent] had
only spent 90 to 120 days ... with [Mr. Kalsi as his] client." (Tr, p 90.) And, we note the October
11, 2002 letter ofrespondent stating that the "retainer... was onlypartially expended." (Petitioner's
Ex 6.)
The record, the law, and most important, the express language ofthe fee agreement in this
case, simply do not establish that the retainer here is anything other than an advance payment ofthe
fees respondent would earn by performing work on the client's matter. There is no mention of
securing respondent's availability or any other benefit to the client or detriment to the lawyer which
might serve to create, or be recognized as justifying, a general retainer. s
c. Did the Panel Reach the Right Result?
Respondent argues thatthree Board decisions supporthis position: Grievance Administrator
v James M. Cohen, 91-159-RP (ADB 1992); Grievance Administrator v Mark T. Light, 98-198-GA
(2001); and, Grievance Administrator v Otis M. Underwood, 99-58-GA (ADB 2001).
Light was charged and tried as a failure to communicate the basis ofthe fee. Light alleged
that the fee was nonrefundable, and the panel concluded that he did not establish this and failed to
correct his clients' (mis)und~rstandingas to the nature ofthe fee arrangement in violation ofMRPC
1.4. The fact that the panel and the Board did not reach the issues presented here, probably because
there were no allegations ofcommingling, does not give much guidance in this case.
l_)
5 See, e.g., In Re Sather, 3 P 3d 403, 410 (2000).

Grievance Administrator v Harry R. Boffman, III, Case No. 03-135-GA - Board Opinion Page 11
Underwood involved a contract for a "minimum fee of $1,000.00, which includes the (
non-refundable case origination fee and services rendered until judgmentc;:nters, without regarg to
the amount oftime or quantity oflega1 services provided." This "minimum" fee (or hybrid retainer)
is different than a "pure" retainer (to compensate the attorney for availability only butnot for work)
which the respondent claims he has here. The Board did not pass on the propriety ofsuch fees in
general. The Board simply held that the attorney's retention of the $1,000. fee in that case was
reasonable in light ofall ofthe circumstances including the amount and the work Underwood put
in on the matter.
However, we, like every court or agency faced with the question, held that all
fees are subject to scrutiny for excessiveness under MRPC 1.5 and that unearned fees must be
refunded, MRPC 1.16(d).
Indeed, the very fact that we reviewed the fee vindicates the wellestablished
rule that one cannot insulate a fee from scrutiny under the rules ofprofessional conduct
by using certain terminology.
However, in Cohen, a 1992 opinion, we did state that:
The Board is not prepared at this time to adopt the argument put
forward by the Grievance Administrator that MRPC [1.15] in
conjunction with Informal Ethics Opinion RI-10 requires that all
retain~r fees be placed in a client trust account until such fees have
been earned or that deposit ofa retainer fee into an attorney's general
business account constitutes an improper commingling of funds.
[Emphasis added.]
The opinion contains few facts about the fee, other than that it was "a retainer fee of $11,500 to
represent" a client and that respondent believed it had been partially earned.
Since Cohen, this Board and hearing panels have imposed discipline for failure to segregate
unearned fees from the lawyer's own funds. See, e.g., Grievance Administrator v Ronald P.
Derocher, 99-98-GA (ADB 2000) (respondent disciplinedfor, among other things, failing to deposit
$250 inunearned fees into a client trust account); Grievance Administrator v John Dughie, 02-116­
GA (ADB Order 2003) (failure to place $1,500 retainer in a trust account); Grievance Administrator
v J. Michael Hill, 96-236-GA (ADB Order 1998) (failure to place an unearned retainer fee, "not
properly designated as a non-refundable retainer," in a segregated trust account and refusing to
c

Grievance Administrator v Harry R. Boffman, III, Case No. 03-135-GA - Board Opinion Page 12
(: refund the unused portion ofthe fee)6; Grievance Administrator v Richard J. Corriveau, Ol-ill-GA
(HP Consent 2001) (failure to deposit $5,000 advance payment of fee into an interest bearing
account in which no funds belonging to respondent or his firm were being held); Grievance
Administrator v James E. Bliss, 99-141-GA (HP Consent 2000) (failure to deposit two retainer fees
in trust and commingling same); and Grievance Administrator v David A. Gordon, 94-197-GA (HP
Consent 1995) (respondent failed to deposit $750 unearned fee into trust account and depositing into
his personal account thereby commingling funds with his own).
These decisions are consistent with the conclusion ofMichigan Formal Ethics Opinion R-7
(1990). In that opinion, the topic of retainers is discussed based on the following hypothetical
situation: "An agreement is reached and the client gives the lawyer a retainer to begin work." R-7
sets forth its analysis:
i
Since the retainer is for work not yet performed, the retainer is
unearned and must be deposited in the firm's client trust account.
MRPC 1.15(a) specifically exempts advances ofcosts and expenses
from deposit in the trust account, but does not exempt the deposit of
unearned attorney fees. If the Supreme Court had intended fee
advances to be exempt from deposit, the Court would have so
specified. A lawyer may not withdraw "anticipated fees." The
lawyer must explain to the client that the retainer is considered a
deposit, inform the client that withdrawals will be made for fees, and
may not withdraw more than has been billed, Grievance
Administrator v Sauer, ADB 9-89, 12/8/89.
Respondent also argues that the reasoning in New York Ethics Opinion 570'(1985) supports
an interpretation ofthe Michigan rules under which "fees paid to an attorney prior to work being
done need notbeconsidered client funds until the work is done and, therefore, neednotbe deposited
into an attorney's IOLTA or client trust account." New York is in a minority of jurisdictions
allowing unearned fees to be commingled with lawyer funds. 7
6 Hill should not be read to stand for the proposition that merely "designating" a fee "nonrefundable"
determines the lawyer's right to access the funds immediately or keep them under all circumstances. Indeed, as
we have stated above, the Board has disapproved of the use of the word "nonrefundable" with respect to fees
because of its capacity to mislead client and lawyer.
7 Also, that ethics opinion involves an advance payment offees. Respondent argues that he had a general
retainer (but his agreement does not meet the definition in note 1 ofthe New York opinion).

Grievance Administrator v Harry R. Boffman, /II, Case No. 03-135-GA - Board Opinion Page 13
Moreover, the New York opinion makes the following concession: "We recognize that our
conclusion is contrary to the majority ofopinions byotherethics committeesthathave addressed
this issue, which would require that advance payments oflegal fees be deposited in a client trust
account and retained there until earned." That was in 1985. Since then, ethics opinions, discipline
decisions, and court rules on this subject have multiplied. In fact, as we note below, the American
Bar Association's Model Rules ofProfessional Conduct were amended in 2002 to expressly require
this. The trend is unmistakably in favor ofsegregating unearned fees.
Finally, the logic ofNew York opinion 570 is simply not persuasive. The opinion asserts
that lawyers require fees in advance "so that they will not be subject to a client's refusal to pay for
legal services after they are rendered." The opinion argues that ifunearned fees were required to
be placed in trust this purpose could be easily defeated becaus.e fees disputed by a client would have
to remain in trust until the dispute is resolved. Respondent and the opinion contend that this is
umeasonable. But that is precisely what our rules require. 8 Indeed it is a basic part of being a
fiduciary. And, having the funds available in trust is a great advantage, even ifone must wait until
a dispute is resolved to access them. This position is far preferable to having to sue on the account,
conduct post-judgment collection proceedings, and run the risk that the client will be uncollectible.
The New York Ethics Opinion concedes that fees placed in a lawyer's account must be
returned to the extent that they are unearned. Thus, fees which can only logically be considered to
be the client's until earned are allowed to be commingled with lawyer funds in New York. This
does serious violence to the policy which led to the anti-commingling rule. As the California
Supreme Court said over 40 years ago:
(
"[Commingling] is committed when a client's money is intermingled
with that ofhis attorney and its separate identity lost so that it may be
used for the attorney's personal expenses orsubjected to claims ofhis
creditors.... " The rule against commingling 'was adopted to
provide against the probability in some cases, the possibility inmany
8 See MRPC l.IS(c), which provides:
(c) When in the course ofrepresentation a lawyer is in possession ofproperty
in which both the lawyer and another person claim interests, the property shall
be kept separate by the lawyer until there is an accounting and severance of
their interests. If a dispute arises concerning their respective interests, the
portion in dispute shall be kept separate by the lawyer until the dispute is
resolved.
(

Grievance Administrator v Harry R. Boffman, 1/1, Case No. 03-135-GA -- Board Opinion
Page 14
(
cases, and the danger in all cases that such commingling will result
in the loss ofclients' money....'" [Black v State Bar ofCalifornia,
57 Ca12d 219; 368 P2d 118 (1962).]
The concerns which led to MRPC 1.15 and its predecessors are not speculative. In a recent
Indiana case, In Re Kendall, 804 NE2d 1152 (Ind, 2004), the attorney charged retainers he called
"nonrefundable" and put them in his operating account. His practice was to refund any unearned
portions, however. But, he filed bankruptcy, and the IRS placed a lien on his assets, including the
account with the retainers.
Citing reports that "the single largest class ofclaims made to client protection funds is for
the taking ofunearned fees,"9 the ABA recently codified the majority interpretation ofModel Rule
1.15 by adding a new paragraph (c), which states:
A lawyer shall deposit into a client trust account legal fees and
expenses that have been paid in advance, to be withdrawn by the
lawyer only as fees are earned or expenses incurred.
As we have noted, even under the anti-commingling rules in existence prior to the addition
ofthis paragraph, most states have concluded that unearned fees belong to the client, not the lawyer.
And, the logic of the New York ethics opinion is unpersuasive, and represents a diminishing
minority position.
However, we do recognize that our decisions subsequent to Cohen may not have been
viewed as prominently and clearly departing from Cohen, and that, accordingly, some practitioners
may not be aware ofthe steady evolution ofthe law on this point in Michigan and elsewhere. Only
Derocher resulted in an opinion by the Board, and all three Board decisions involved other
misconduct, specifically, failure to return unearned fees.
The Grievance Administrator has offered a sound analysis in this case and has ably and
accurately argued that the $5,000 was required to be placed in a trust ·account.
However,
recognizing that the issue has not been settled well or for long, and the likelihood that a significant
segment ofthe barmay beunaware ofthe applicable requirements, the Administrator acknowledged
that prospective application of the holding on this issue may be in the interests of justice.
Grievance Administrator v Gerald F. Doherty, No. DP 153/84 (ADB 1986). Discipline decisions
Cf
9 Reporter's Explanation ofChanges proposed by the ABA Commission on the Evaluation ofthe Model
Rules ofProfessional Conduct, Model Rule 1.15.

Grievance Administrator v Harry R. Boffman, 11/, Case No. 03-135-GA -- Board Opinion Page 15
in other states have been given prospective application when the law regarding proper handling of (
retainers is unclear. 10
IV. Conclusion.
We conclude that the $5,000 paid to respondent in this matter was clearly a portion ofthe
fee, paid in advance (commonly called a "retainer"), for specific legal services to be rendered. It
was not a general retainer (also known as a "true" or"classic"retainer or an "engagementfee"). The
failure to place fees paid in advance in a trust account is a violation ofMRPC 1.15(a). However,
because we have concluded that prospective application ofour holding is appropriate in this rare
instance, we do not vacate the panel's order of dismissal and do not remand for a hearing on
discipline. We wish to emphasize that we do so because the handling offees paid in advance, for
some reason, presents an almost unique situation involving not merely confusion, but lack of
awareness and divergence ofopinion with respect to the applicable ethical constraints.
This case will be seen to be more clear cut than many "retainer fee" cases. The agreement
plainly provided that the money paid by the client was for specific legal services to be rendered.
Thus, as we have held above, the funds were required to be held in trust until earned. And yet, we
understand that the result in this case may come as a surprise to many honorable lawyers. We'
(
10 See, e.g., In Re Sather, 3 P 3d 403, 405-406, 412 n 11 (2000) (declining to discipline for violation of
RPC 1.15 "[a]lthough our holding today is consistent with our earlier cases and the majority ofjurisdictions in the
country," and making holding prospective because court was "aware that many attorneys believe that they are
adhering to the rules ... when they treat ... advance fees as their own property"). Indeed, the Sather court
referred the issue to the Colorado Bar Association for assistance with rulemaking to give attorneys an opportunity
to comment and "comport their practices to these ethical constraints." 3 P3d at 414.
Compare, Iowa Sup Ct Bd of Prof Ethics & Conduct v Apland, 577 NW2d 50, 57 (Iowa 1998)
(considering lack ofclarity in formulating discipline):
Because Apland took the fee before it was earned, he misappropriated the client's funds in
violation of DR 1-102(A)(3), (4), (5), and (6). See Iowa Supreme Ct. Bd. of Profl Ethics &
Conduct v. Gottschalk, 553 N.W.2d 322, 323-24 (Iowa 1996). The misappropriation, however,
was not intentional given the uncertainty at the time about whether such fees were subject to trust
account requirements.
But see, In Re Cooperman, 83 NY2d 465, 476; 633 NE2d 1069; 611 NYS2d 465 (1994) (disputing
respondent's claims that he acted in good faith and "complied with the limited legal precedents at the time," and
declining request to render ruling prospectively because respondent's steadfast refusal to refund any sums under
his particular agreements despite previous admonitions and his knowledge that "there were problems with the (
nonrefundability ofretainers" constituted "a daring test ofethical principals, not good faith").

Grievance Administrator v Harry R. Boffman, III, Case No. 03-135-GA -- Board Opinion Page 16
therefore agree with the hearing panel that guidance to the bar is needed, and we will submit a
memorandum to our Supreme Court joining the panel's request for clarification ofthe duties ofa
lawyer with respect to retainers and/or advance fees, and discussing various options for addressing
that request.
Board members Theodore 1. St. Antoine, William P. Hampton, George H. Lennon, and Lori
McAllister concur in this decision.
Statement ofGeorge H. Lennon, specially concurring:
I concur because the result is in accordance with our previous decisions; and the great weight of
authority. However, I believe ti would be beneficial for questions related to the proper handling of
advance fees and retainers to be considered in a non-disciplinary forum in order to, first, achieve
public protection without penalizingreasonable practices ofthebar and, second, give lawyers ample
notice oftheir obligations.
Board member Rev. Ira Combs, Jr. dissents and would remand for the imposition ofdiscipline.
BoardMembers Marie E. Martell, Ronald L. Steffens, Billy BenBaumann, M.D,. and Hon. Richard
.F. Suhrheinrich did not participate in this decision.

FIFTY WAYS
TO LEAVE YOUR CLIENT
BYANN MASSIE NELSON
(
ithdrawing from representation
ofa client is
never as simple as just
slipping out the back
(apologies to Paul Simon), even though
you may be tempted to do so when a
client asks you to violate your professional
or personal code ofethics.
Ethics rules vary by state. However, the ABA
Model Rules of Professional Conduct, versions
ofwhich have been adopted by 41 jurisdictions,
offer some guidance to the lawyer trapped
between duty to client on one hand and oath to
uphold the law on the other.
'\iVithdrawal is mandatory when a client
demands that you engage in illegal conduct or
violate the Rules of Professional Conduct,
according to Model Rule 1.16. (Simply suggesting
you act illegally does not oblige you to
withdraw, since the client may be floating a trial
balloon to gauge your response.)
Withdrawal is permissive under certain circumstances,
including (but not limited to) occasions
when a client:
• Persists in a course of action involving
your services that you believe is criminal
or fraudulent.
• Has used your services to perpetrate a
crime or fraud.
• Insists on pursuing an objective that
you consider repugnant or imprudent.
In short, "...withdrawal is mandatory when
the lawyer's own conduct will violate the Rules
or law. If it is the client's conduct that will violate
the law, withdrawal is permissive," according
to the ABA Annotated Model Rules of
Professional Conduct (1996). (See also Rule 1.2
(d), Scope of Representation.)
Risking your law license or forever tainting
your professional reputation by becoming an
accessory to a client's criminal or fraudulelr
acts hardly seems worth the gamble. But in\_
heat of battle, lawyers often don't realize when
they've taken the first step down a slippery
slope where each client request takes them a little
closer to the brink.
Hired Gun or Champion ofJustice?
Permissive withdrawal from representation
raises the kind ofquestions often debated in campus
coffee houses and law student watering holes:
• Would you withdraw from representing
a client who you believed was concealing
retirement funds in a divorce
proceeding?
• What would you do if you learned a
Ann Massie Nelson is director ofcrnnmunications for
Wzsconsin Lawyers Mutual Insurance Co., Madison,
Wzsconsin. She writes a .regu/ar risk numagement column
for '\iVisconsin Lawyer magazine, portions of
which were adaptedfor this article with the permission of
the State Bar ofWisconsin.
24 THE COMPLEAT LAWYER I WINTER 1998
(

long-term client underreported income
on the tax return yon helped prepare?
• Would you represent a corporation
that knowingly pollutes the environment
or makes a potentially hannfulyet
legal-product?
• Are lawyers "combat mercenaries"
available for any cause clients are
ready to finance? Or are they"
ministers of justice," as fanner U.S.
District CourtJudge Marvin E.
Frankel once proposed?
Ifyou are an associate working on assigned
cases or a sale practitioner struggling to make
payroll, you may feel more like a disciple of the
billable hour than a minister of justice. Eager to
maintain revenues and please clients, lawyers
sometimes ignore their gut when it tells them,
"Don't do it. llis isn't worth risking my career."
"Most lawyers who have continued with
problem clients have regretted it," says Kirk R.
Hall, chief executive officer of the Oregon
State Bar Professional Liability Fund and a former
member of the ABA Standing Committee
on Lawyers' Professional Liability. "When
something seems odd or wrong, it's time to
stop. Like most things in life, the situation seldom
gets better and typically it gets worse."
First, DoNoHann
When withdrawing from a case, the Model
Rule states that "a lawyer shall take steps to the
extent reasonably practicable to protect a
elient's interests."
"My experience has been that the more you
go out ofyour way to make sure people land on
their feet, the less likely they are to blame you,"
says K. 'William Gibson, a Portland, Oregon,
lawyer an'd author ofHow to Build and Manage 0
Pel"sona/Injury P7"oaice, (American Bar .
Association, 1997; to order, call 800/285-2221.
Refer to PC 5110386).
The hazards ofwithdrawing from representation
come in determining when and how to
terminate the attorney-client relationship. By
protecting the client's interests, you reduce
your risk ofa malpractice or grievance daim.
Here are some suggestions for how to protect
your dient's-and your own-interests.
Read the ethics rules101' the Slates where you repre-
A,DISENGAGEMENT LETTER
PROTECTS You WHEN You PA.RT WAYS
A letter ofdisengagement should take the tone ofa
"DearJohn" letter, not a "drop dead" letter.
Reg!J.Tdless ofwhether you or your dient tenninates
your relationship, a written disengagement letter-sent
by registered mail-is essential to clarifying your responsibilities
and managing your malpractice risk.
Include the following elements in your letter when
you PART:
Position. Begin your letter by politely (but finnly)
stating your position. For example, "Thank you for giving
our firm the opportunity to represent you in your company's
recent offer to purchase real estate. For a number
of reasons, our finn is nO'longerable to represent you
in this matter. Our representation will conclude January
31,1998."
Action. Your withdrawal from representation should
not prejudice your client's interests. ]n your disengagement
letter,.summarize the action you, the court and
other parties have taken to date. ]nclude a copy of your
motion to withdraw, ifthe matter is in litigation.
Alert clients that critical deadlines exist, not the
exact dates. Encourage them to seek other counsel as
soon as possible.
Reason. ]fthe reason for the disengagementiscl~
cut and objective, for example, when a conflict df-inter~.
arises or the dient fails to pay· legal fees, certairily.iti~q(l~:
the reason in your letter. ..... '~.;,'..::' .~,::~,;
Ifyour reason for withdrawal would prejudiee't:Jj,¢·';.:.:;:i'·
client in any way should the infomlation beco.fue,:p~.~lj~}r .,
then your letter will need to be diplomatic aIi~::dis·..·· ....
You can simply state that you regret that youa~'.:·, .. ' .
to continue your representation in this parri~l~t;¢ir~'h~.\':;
stance.
".\ ·:.(·:Vi,!\§;'\:;;;;:::.':.
Tenns. Vvhen legal work is completed, your(j";Wl::.::
gagement letter should address outstanding)~g:i.f;, . ..~}':
expenses. For example, you might write: "Ena~~~~~i~i~:~>\
final statement for our representation of youjir'yt)#fi!~>
matter. We would -appreciate payment within·3.Q.~~~;'t.~':r(.·
you are working on retainer, refund any une~me~t~·;:::·
with an itemized account.
"'::/:

sent clients and the local rules ofcourt. "Rules vary
significantly from one state to another, even from
one court to the next," advises Mary L. CibeUa, a
Cleveland, Ohio, lawyer who concentrates in the
area ofprofessional responsibility.
In addition, look at how the agency that
issues ethics opinions has handled particular situations.
Has a court in that jurisdiction interpreted
the rules? Be aware that the court and
agency interpretations may differ, Cibella adds.
Give the client reasonable notice. The length of
time considered "reasonable" will depend upon
the status and complexity of the case. Ifthe
matter is in litigation, you will need the court's
permission to withdraw. Courts have wide discretion
in granting or denying a motion to
withdraw, taking into account not only the
client's interests but also those of the opposing
parties and the judicial process.
"Courts are not going to entertain a withdrawal
on the eve ofa trial or hearing," notesCibella,
Even if you're not litigating the case, don't
sleep on it until the client has few options left.
"The client you dun't fire is the one who's
most likely to lead to malpractice," says Katja
Kunzke, director ofclaims at WISconsin Lawyers
C.,
NTNECUENTS
'You DON'T WANT
. '.
...Thefust interview with a potential client is a lot like a
'futst.date, says Portland, Oregon, lawyer K. William
Gi~s~#iauthor ofHow to Build and Manage a Personal
Jfi.ffity·Pramce (American Bar Association, 1997),
,"Evl:ry,Qlleis on good behavior. Only after you've signed
.1ip;~~.c;t1ery-one relaxes do you fmd out the real story."
".' .·~We~ll.irigout problem clients early can reduce the need
"Jp'r;~~d.iia~later, along with withdrawal's inherent
::'rl~;;:,;t\Iet~:a.rIHlineclients to·be wary of: .
, .~';i~ii~¢~6.lUers.The·dientwho co~nes to you the
·dliY.'befbre·the.pleading:isdue or the. statute of
:,lht#~tionexpiresis either expecting a miracle or
J:~gpMt;.youwon'tdelve too, deeply into the mat-
. :,;teb,~eili:hisdient you do not have enough time
·.:,~6{W~~·:t:hematter.the attention it deserves. '
•. 1~~~~gese~lters. "Spend as much time under-
;. .. st4h~g.your.cllents and their motivations as you
:.:.:" ,.' ",' "';,' ~'.,lega.l work they're bringing to you," says
.i:,> ']>Macl)ougall;.ajllnesVille, Wisconsin,
;:!:!)~~~t;:~Ifaclierit'smotivat1on is to extract ~
::..(ij~\Al(l(otJleshforthe sake of ego or to make a
'W :"·'··:·Wi:~fv.~ryconcemedabout how you pro­
;:~I\~.e:qli~llt!lltlaylater aim thoseviRdic-
,,#~~a;~~o:ritennaeuPifa .. cUent
·~.iig~~l1jl;~ucl'~tiYe'relationship,:espejilf'~ii:
l.°1'i~bilitr·Ftindand. a.past member of
,~.ti~~·gCoiprriitteeon Lawyers" .
·al:-:IJ.i,~biligr;:r~ecash cowmay'liave to
'IK'fheherd"
• Shoppers. Clients who have already fired o~e or
more lawyers or who appear to be comparison
shopping may be looking for something you cannot
deliver. "The clients with the most meritorious
cases rarely decide to switch lawyers incl.le
middle of a case," Gibson says. ..' .'
• Dreamers. A client who holds fast to pie-in",the",
skr expectations about the value or outcome()fa
case is unlikely to be satisfied with your reprl:\sen.,.
tation, Clients c;:ome to you with many expecta.,..
tions in mind about their legalproblem.Your;job
is to discover these expectations and explain what
you-and the legal system-can and cannot do· .
'for them.
• Conunanders. A client who wants to direc,tfij5'or
her own. c-

Mutual Insurance Co. "This file will sit on the
side of your desk until you miss a deadline or
make a mistake because you didn't want to deal
with it. You want to get out when the most
options are still available to the client."
Allow time fOr employment ofother counsel. You
can help protect the client's interests (and get
yourself offthe hook) by encouraging the client
to retain a new lawyer as soon as possible.
Refer the client to your state or local bar's
lawyer-referral service, rather than recommending
specific lawyers. Nominating your replacement
could be viewed as suspect by the client
and, in the case ofa problem client, won't win
you any favors with your colleagues.
Again, the more time you allow for finding
another lawyer, the better. "I received a fax
from a client who demanded that I advance him
living expenses while waiting for trial. My first
instinct was to bail immediately. Instead, I sent
the client a letter telling him he had 30 days to
find another attorney," recalls Gibson.
Maintain client confidentiality. As noted in
the comment regarding Rule 1.6 of the Model
Rules ofProfessional Conduct, after withdrawal
the lawyer must not disclose client confidences,
except when "the lawyer reasonably believes
(it is) necessary to prevent the client from
committing a criminal act that the lawyer
believes is likely to result in imminent death
or substantial bodily harm." (Lawyers also
may reveal confidential client information if
necessary to defend themselves in certain
situations involving the client.)
Blowing the whistle on client fraud is regulated
by the rules in each jurisdiction. "Sometimes
you're required to reveal. Sometimes
you're required to keep your mouth shut,"
notes Cibella.
How much information you divulge to the
court or to replacement counsel must be handled
with utmost diplomacy to avoid prejudicing the
client. The consensus of those interviewed for
this article is that the less said, the better. (See
Model Rule 1.6, Confidentiality ofInformation,
and comments for more guidance.)
Surrender client's papers and property. Holding
a client's file hostage for unpaid legal fees
is unwise.
"Return the client's paper and property and
worry about collecting fees later," Cibella
emphasizes. "Even ifthe client owes a large
sum ofmoney, it's cheaper in the long term to
work out some kind of payment plan than to
defend a malpractice claim or a claim filed with
a disciplinary agency
because you failed to
give the documents
back."
Retain a copy of the
entire file, if practical,
recommends Kunzke.
At minimum, keep
copies ofyour work
product, all correspondence,
and notes.
In your disengagement
letter (see "A
Disengagement Letter
Protects You When You
PART Ways"), tell the
client when and where
the file is available for
pick up or offer to send
the file to the client's
new lawyer. Get a
signed and dated receipt so that you have a
record of the file's transfer.
Refund unearned legal fees. Send a detailed
summary of the fees incurred during your representation
and return any unused retainer.
Why Don'tYouJust Sleep onItTonight?
Even though you study the rules and follow
the procedures for withdrawing from representation,
you cannot immunize yourself from a
malpractice claim or disciplinary complaint.
Before you fire a client:
'
• Wait 24 hours to mail your disengagement
letter. A word processor in the
hands ofa lawyer is like a loaded gun,
says one lawyer.
• Talk it over. "You're not alone in this.
Plus, getting the opinions of others
shows you made an effort to do the
right thing," says Cibella. Call your
state bar's ethics hotline or the ABNs
ETHICSearch at 3121988-5323.
• Consult your professional liability
insurance provider. "Tell them the situation
and ask for their advice.
Sometimes they have recommendations
that I haven't thought about, plus
it alerts them to a potential problem,"
says Gibson.
• Document your actions. Iflater a malpractice
claim or grievance is filed,
contemporaneous documentation of
your thoughts and actions will be your
best defense, advises Cibella. CL
Hc>w MIDCEt',,· ',:·~~~':(/,':

Resources for Assistance in Complying with the Rules (
of Professioo;:aICQl1duct - For Michigan ~awyers
State Bar of Michigan (www.michbar.org): Point your browser here and click on Opinions;
then clickon Ethics Opinions for the full indexto Michiganethics opinions, both professional
and judicial, with hypertext links to all ethics opinions released since October 1988. The site
has fulltext search capability as well as a subjectmatterindex. The site also contains several
articles, a bibliography, and the text of the Michigan Rules of Professional Conduct and the
Michigan Code of Judicial Conduct. Lawyer members of the State Bar may obtain further,
more individualized, ethics assistance by calling the State Bar of Michigan's Ethics Hotline
at (517) 346-6328 and speaking With Regulation Counselor another attorney.
ABA ETHICSearch: Another ethics hotline service for American Bar Association members
is described on the ABA Center for Professional Responsibility's website at:
http://www.abanet.org/cpr/ethicsearch/home.html.
StateofMichigan- AttorneyDisciplineBoard(www.adbmich.org): The sitefeatures recent
notices of discipline, a list of lawyers disciplined since 1978, links to other sites with legal
ethics content, and a searchable database of all Board opinions since the inception of the
Board in 1978.
ABA/BNA Lawyers' Manual On Professional Conduct. ([Washington, D.C.] : American B'ar
Association andthe BureauofNationalAffairs, c1984~). Go tohttp://www.bna.com/orphone C·
1-800-372-1033. Available inmostlawlibraries. Thorough, butwellindexedandeasyto read.
Model Rules of Professional Conduct Annotated (5 th ed): Available from the ABA. Concise
yet in-depth treatment of authorities construing the rules. Indispensable.
legalethics.com: This site focuses on the internet's impact on legal ethics, but it has a
tremendous amount of general ethics content and a comprehensive listing ofethics sites on
the web.
Freivogel on Conflicts: Go to www.freivogelonconflicts.com for a "practical online guide to
conflicts of interest for lawyers with sophisticated business and litigation practices."
Restatement of the Law Governing Lawyers: The two-volume Restatement of the Law,
Third, The Law Governing Lawyers, is available from the American Law Institute, 4025
Chestnut Street, Philadelphia, ,PA 19104-3099, or go to: http://www.ali-aba.org.
ABA Center for Professional Responsibility (http://www.abanet.org/cpr/home.html):
Provides comprehensiveinformationrelatingtoprofessionalregulation, legalethics andclient
protection programs. Includes Annotated Links (http://www.abanet.org/cpr/links.html)to
other legal ethics and professional responsibility pages, and a copy of the Model Rules of
ProfessionalConductasrecentlyamended (http://www.abanet.org/cpr/mrpc/mrpc toc.html).

RI-40
1. December 14, 1989
SYLLABUS
TEXT
A lawyer may not charge a usurious interest rate on amounts due for lawyer fees.
A lawyer may obtain a mortgage on a client's property to secure payment of lawyer fees if:
a. the transaction and terms on which the lawyer acquires the interest are fair and reasonable
to the client and are fully disclosed and transmitted in writing to the client in a manner that can
be reasonably understood by the client;
b. the client is given a reasonable opportunity to seek the advice of independent counsel in the
transaction; and
c. the client consents in writing thereto.
It is not unethical to recover lawyer fees in a judicial foreclosure ofa mortgage obtained to secure lawyer
fees if the requirement to pay lawyer fees incurred in the foreclosure proceeding is made part of the
mortgage, the mortgage is obtained in compliance with MRPC 1.8, and the amount of the lawyer fees
are approved by the trial court.
References: MRPC 1.5(a), 1.8(a), 1.8(j); CI-77, CI-97, CI-191, CI-547, CI-ll 06; M CL 600.2431(2); MSA
27 A.2431(2); United Growth Corporation I' Kelly Mortgage, 86 Mich App 82; 272 NW2d 340 (1978).
A lawyer was retained to act as defense counsel in an action to remove the client's children from the parental home. The
retainer agreement provided for an 18% interest rate to be charged on the outstanding balance of lawyer fees. The
agreement required that the balance be discharged by SI 00.00 per month payments, and gave the lawyer a mortgage on
the client's home to secure payment oflawyer fees. The agreement also prov{ded that the client would be responsible for
costs and fees associated with foreclosure.
The action was settled with the clients retaining custody of their children. Lawyer fees and costs were approximately
$10,600.00. Of that amount, the client paid $2.900 in unequal payments.
The lawyer made numerous attempts to collect his fcc. Three years after conclusion of representation, the lawyer
threatened foreclosure. By this time, the clients were not living at the mortgaged property and had placed the property·
on the market for sale. The lawyer then instituted a foreclosure proceeding. The foreclosure sale was held and the house
sold for $20,100. From the proceeds, the clients received approximately $4,600 and the lawyer received approximately
$15,500. The lawyer claimed this amount was due for fees (including fees earned in the foreclosure action), interest and
costs.
The Committee is asked (1) whether lawyers may charge a "time-price differential" up to 18% interest; (2) whether 18%
interest is usurious; (3) whether collection of usurious interest is ethical; and (4) whether a lawyer may ethically charge
lawyer fees and costs associated with foreclosure on a mortgage given as security for payment of lawyer fees and costs
for representation in a legal matter.
It is not within the jurisdiction ofthis Committee to answer legal questions. Clearly issues I & 2 are legal questions, and
the Committee cannot render an opinion concerning them. In regard to these issues; see MCL 438.31 et seq; MSA
19.15(1) et seq; Op Atty Gen 1980, No 5809, p 1060 (11-3-80).
Interest may be charged on the unpaid balance ofclient's accounts ifthe client agrees to the interest in advance. See, C1­
77, CI-97, CI-191, CI-547, Cl-ll 06, ABA Op 338. These opinions do not sanction the charging of an usurious interest
rate. MRPC 1.5(a) states in part:

"(a) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee. A fee (
is clearly excessive when, after a review ofthe facts, a lawyer ofordinary prudence would be left with a definite -
and firm conviction that the fee is in excess ofa reasonable fee..." Emphasis added.
By definition, a usurious interest rate is illegal; if 18% interest is usurious, then offering or making a fee agreement
charging that interest would violate MRPC 1.5(a).
There is no Michigan opinion permitting a lawyer to take a mortgage on a client's property in order to secure payment
of anticipated legal fees. Other states have held that it is permissible for a lawyer to take a mortgage on a client's home
to secure payment oflegal fees and expenses, Vermont Op 1987-13; New York City Op 1988-7; California Op 1981-62.
These opinions require that the transaction be fair to the client and that the lawyer obtain the client's consent, preferably
in writing, after fully disclosing the facts to the client and allowing the client to retain independent legal counsel.
MRPC 1.8, prohibits lawyers from entering into a business transaction with a client, except under limited circumstances.
MRPC 1.8(a) states:
"(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership,
possessory, security, or other pecuniary interest adverse to a client unless:
"(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the
client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably
understood bythe client;
"(2) the client is given a reasonable opportunity to seek the advice of independent counsel in the
transaction; and
"(3) the client consents in writing thereto." Emphasis added.
A lawyer may obtain a mortgage on a client's property provided the lawyer complies with MRPC 1.8(a), and the property ("
which the mortgage secures is not the subject matter of litigation the lawyer is conducting for the client, MRPC 1.8(j).. _
Ifthe interest charged is usurious,the terms ofthe transaction are notfair and reasonable to the client and violate MRPC
1.8(a)(1).
It is unclear whether the foreclosure proceeding referenced in this fact situation is a foreclosure by advertisement
commenced under MCL 600.3201; MSA 27 A.3201, or a judicial foreclosure commenced under MCL 600.3101; MSA
27 A.31 01. If it were a foreclosure by advertisement, lawyer fees are limited to nominal amounts by. MCL 600.2431 (2);
MSA 27 A.2431 (2). Ifthe action were a judicial foreclosure then reasonable lawyer fees could be permitted by the trial
court where the mortgage provides for lawyer fees. United Growth Corporation v Kelly Mortgage, 86 Mich App 82; 272
NW2d 340 (1978).
Therefore it is not unethical to recover lawyer fees in ajudicial foreclosure ofa mortgage obtained to secure lawyer fees
if the requirement to pay lawyer fees incurred in the foreclosure proceeding is made part ofthe mortgage, the mortgage
is obtained in compliance with MRPC 1.8 and the lawyer fees are approved by the trial court.
(

FOCUS ON PROFESSIONAL RESPONSIBILITY
February, 2000
By: Thomas K. Byerley, Regulation Counsel
SHARING LEGAL FEES
Lawyers frequently call the Ethics Hotline [(517) 485-ETHX] with questions concerning the propriety
ofsharing legal fees with others. fuquiries concern the ethics ramifications ofsharing oflegal fees with
other lawyers, other professionals or non-lawyers.
The Michigan Rules ofProfessional Conduct offers some guidance on fee sharing issues. For example,
as to fee sharing among lawyers, MRPC 1.5(e) provides:
"A division ofa fee between lawyers who are not in the samefirm may be made only if:
1. the client is advised ofand does not object to the participation ofall the lawyers involved;
and
2. the totalfee is reasonable. "
Further, MRPC 5.4(a) applies to fee sharing with non-lawyers. That rule provides:
''A lawyer or lawfirm shall not share legalfees with a nonlawyer, except that:
1. an agreement by a lawyer with the lawyer's firm, partner, or associate mayprovidefor the
payment of money, over a reasonable period of time after the lawyer's death, to the
lawyer's estate, or to one or more speCifiedpersons;
2. a lawyer who purchases the practice ofa deceased, disabled, or disappeared lawyer may
pay to the estate or other representative ofthat lawyer the agreed-upon purchase price
pursuant to the provisions ofRule 1.17; and
3. a lawyer or law firm may include nonlawyer. employees in a compensation or retirement
plan, even though the plan' is based in whole or in part on a profit-sharing arra1l$f!ment. "
Sharing fees with other lawyers
MRPC 1.5(e) addresses the frequent situation where a lawyer confers with a potential client and finds
that the lawyer lacks the expertise or time to handle the legal need of the client. The client is then
referred to another lawyer.,Under MRPC 1.5(e), the referring laWyer may receive a "referral fee", as
long as the client is advised ofand does not obj ect to this referral and the total fee is reasonable. Some
unusual variations to this "normal" scenario, however, have generated ethics opinion guidance from the
Standing Committee on Professional Ethics.
fu Ethics Opinion RI-124, the Committee opined that a lawyer may pay a referringlawyer a referral fee
consisting of a percentage of legal fees billed to the client as long as the client is advised of and
consents to this agreement, the client's bill is not increased because ofthe referral fee, and the total fee
is reasonable. Therefore, a referral of a personal injury matter for a percentage of the ultimate
contingent fee is ethical.
Ethics opinion RI-234 offers some valuable guidance in referral fee matters. That opinion has three
major components. First, before fees may be divided by lawyers who are not in the same firm, the client

must be advised ofthe identity ofthe lawyers who will dividethe fee, what services each lawyer will ("
be providing and which lawyers will be responsible for the matter. Second, both the referring lawyer
and the receiving lawyer are responsible to see that the client is properly advised and does not object
to the participation ofthe lawyers. Third, a referral fee between lawyers may be calculated in a variety
ofways, including on a percentage basis. The fee arrangement between the lawyers who divide a fee
is a matter of contract between the lawyers.
If a lawyer cannot accept a client because of a conflict of interest, it is not ethical for that lawyer to
receive a referral fee for referring the client to another lawyer. See RI-116. Similarly, ifa lawyer is not
competent to handle a particular matter and the client does not consent to the payment ofa referral fee,
the lawyer still has an ethical duty to refer the client to competent counsel without a referral fee. See
RI-158. However, a lawyer who refers a client to another lawyer because the referring lawyer will be
testifying in the matter onbehalfofand consistent with the interests ofthe client is not prohibited from
accepting a referral fee. See RI-21 1.
Sometimes an actively licensed lawyer will refer a case toanother lawyer and then be disciplined for
professional misconduct. Ethics opinion RI-030 opines thatthe disciplined lawyer, even ifnotcurrently
an active member ofthe State Bar, may receive a quantum meruit portion ofthe referral fee for the
services performed by the lawyer before the period ofsuspension or disbarment.
Michigan lawyers may pay an out-of-state law firm a referral fee for recommending the lawyer's
services to an out-of-state client needing services in Michigan, as long as the terms ofthe referral fee
comply with the ethics rules ofboth jurisdictions. See RI-199.
A lawyer who receives fees that are subject to a claim for a referral fee by another lawyer must notify
the other lawyer ofthe receipt ofthe fees in a timely manner, See RI-224. The lawyer receiving the fee (~"
must also provide an accounting of the fees received and keep the disputed fees in a segregated trust _
account ifthere is a disp~te concerning the division ofthe fee.
Sharing fees with non-lawyers
Sharing fees with non-lawyers is governed by MRPC 5.4(a). As stated in the comments to that rule,
"[t]he provisions ofthis rule express traditional limitations on sharing fees. These limitations are to
protect the lawyer's professional independence ofjudgment. II This rule is now being actively debated
on the national level, as the issue of multidisciplinary practice comes to the forefront. As the rules
currently stand, however, legal fees may not be shared with individuals who are not lawyers, with
limited exceptions.
Lawyers may share legal fees with registered, not-for-profit lawyer referral agencies. In ethics opinion
RI-075, the Ethics Committee opined that a not-for-profit lawyer referral service registered with the
State Bar ofMichigan may charge as a referral fee a percentage ofthe fee collected by the assigned
lawyer. Ethics opinion RI-032, dealingwith a nonprofit legal hotline service, reaches a similar result.
Ethics opinion RI-216 states that an estate ofa deceased lawyer may properly receive legal fees that are
paid after the death ofthe lawyer. In that opinion, the committee noted that the "... rationale for these
limited exceptions is that they do not aid in the practice of law by nonlawyers and they present very
little opportunity for interference with the independent professional judgment ofthe lawyer. II
Employees ofthe lawyer may also share legal fees in appropriate circumstances. As stated in MRPC
5.4(a)(3), non-lawyer employees may be included in the law firm's compensation and retirement plan,
even though the plan is based on a profit-sharing arrangement. Ethics opinion RI-143 states that a law
firm may pay a legal assistant employee compensation based upon a set salary and a percentage ofthe (

net profits ofthe practice area in which the legal assistant is employed.
Lawyers may not give anything ofvalue to a person who recommends the lawyer's services, other than
paying the reasonable cost ofadvertising or by participating in a not-for-profit referral service. See Rl­
191. Furthermore, ethics opinion Rl-146 opines that a lawyer may not accept a referral fee from other
professionals for sending the lawyer's clients to the other professional, due to conflict of interest
considerations.
A difficult fee sharing issue arises when a court awards a lawyer and the client financial sanctions
during litigation. Ethics opinion RI-303 advises that the sharing ofthis "fee" between lawyer and client
may be justified ifthe lawyer's retainer agreement with the client explicitly allows the sharing.
In addition to the ethics opinions summarized here, there are numerous other ethics opinions that
address fee sharing issues between lawyers and others. A detailed subject index plus the full text ofall
ethics opinions issued by the Standing Committee on Professional and Judicial Ethics can be found on
the State Bar's website, free ofcharge, at www.michbar.org.

STATE OF MICHIGAN
Attomey Discipline Board
Grievance Administrator,
(
Petitioner/Appellant,
v
Patricia M. Cooper, P 37389,
Respondent!Appellee,
Case No. 06-36-GA
Decided: September 17, 2007
Appearances:
Ruthann Stevens, for the Grievance Administrator (hearing panel; review brief)
Robert L. Agacinski, Grievance Administrator (review argument)
Donald D. Campbell, for the Respondent (hearing panel: review argument)
Patricia M. Cooper, Respondent, In Pro Per (review brief)
BOARD OPINION
The formal complaint alleges that respondent charged an excessive or illegal fee, l failed to
promptly pay funds a client is entitled to receive,2 and failed to refund, upon termination of
representation, "any advance payment offee that has not been earned."3
The fee agreement in this case provided that $4,000 was paid to respondent for work to be
performed in a divorce matter. The agreement characterized this as a "minimum fee," stated that it
entitled the client to attorney time at a certain hourly rate, and provided that no partofthe minimum
fee would be refundable. A few weeks after retaining the respondent, the client changed her mind
about the divorce and asked for an itemization and a refund of unearned fees. After continued
requests bythe client, resporident eventuallyprepared a bill for $1 ,228.50 and, "out ofthe goodness
ofher heart," refunded $1,385.75, thus bringing the total amount kept by respondent to $2,614.25.
The hearing panel dismissed the formal complaint.
I
MRPC 1.5(a)
2 MRPC 1.l5(b)
3 MRPC 1.l6(d)
(
-------_.- -_.._--

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 2
We hold that the fee agreement's nonrefundability language does not negate the contract's
express provision that the minimum fee "shall entitle Client to a combined amount ofAttorney and
Legal Assistant time computed in accordance with the hourly rate set forth in paragraph 3 [of the
agreement]." The representation here was terminated before completion of the legal services
contemplated, and under the fee agreement, MRPC 1.l5(b), and MRPC 1.l6(d), respondent was
obligated to return the unearned portion of the "retainer," which was, in actuality, a fee paid in
advance.
As we explain below, a true retainer (also known as a "general retainer") is a fee for the
attorney's availability. An "advance fee" is essentially a deposit from which fees are paid after
services are rendered. Courts routinely hold that the unearned portion of advance fees must be
returned to the client irrespective ofwhether they are designated "nonrefundable."
The Grievance Administrator has acknowledged the need for clarification in this area.
Accordingly, we have extensively reviewed various authorities emanating from Michigan and
elsewhere on the subject of fees and so-called "nonrefundable retainers." We conclude that the
failure to refund the fee here amounted to misconduct, and we will therefore vacate the panel's order
ofdismissaL However, for reasons discussed below, we will impose no discipline. 4
I. Factual Background & Panel Proceedings
Respondent and complainant entered into a fee agreement dated July 29, 2002.
agreement reads, in part, as follows:
1. Client agrees to pay Attorney a MINIMUM FEE OF $4,000
which shall be payable as follows:
The
Retainer
Balance
$4,000
$_0_
* * *
This MINIMUM FEE shall entitle Client to a combined amount of
Attorney and .Legal Assistant time computed in accordance with the
hourly rate set forth in paragraph 3 below.
4 Grievance Administrator v Deutch, 455 Mich 149, 163; 565 NW2d 369 (1997) (the rules allow entry
of an order of discipline which, in fact, orders "no discipline at all").

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion
Page 3
2. Client understands that NO portion of the MINIMUM FEE
referred to above is REFUNDABLE, to the client, under any
circumstances.
(
3. Hourly rate: Attorney
Assistant
$195.00
$---
4. In the event the combined Attorney and Legal Assistant time
shall exceed the MINIMUM FEE, Client agrees to pay for such time
at the rates set forth in Paragraph 3 above.
* * *
11. . .. The Client is entitled to terminate this agreement subject to
its contractual liability to the law firm for services rendered.
[Petitioner's Exhibit 2.]
On orabout August 19 or20,2002, complainant called respondentand informed her that she
had reconciled with her husband, and asked'respondent to prepare a statement and issue a refund.
When the refund was not forthcoming, complainantbegan callingrespondent until October, at which
point she faxed a letter to respondent stating that it was "unethical and inappropriate for her not to
return [complainant's] phone calls," and demanding a billing statement for the services provided and ( ~.
a refund ofthe unearned portion ofher fees.
Complainant testified that respondent called her thereafter and stated that the fees were
nonrefundable pursuant to the fee agreement, but that "from the goodness ofmy heart, I'll give you
halfofthe unearned fees." On October 22,2002, complainant picked up a check for $1,385.75, an
invoice for professional services, and a copy ofthe retainer agreement.
The invoice shows 6.4 hours expended for a total charge of$I,228.50. It reflects payment
of $4,000 on July 29, 2002 and a balance of "($2,771.50)." Respondent spent 4 hours and 18
minutes on complainant's matter in the first week. In the second week, respondent spent one hour
and 18 minutes on the file. In the third week, respondent spoke with her client on August 20, 2002
(18 minutes) and there is no other activity shown on the invoice until October when less than half
an hour was charged for phoning and reviewing a fax from the client. The reasonableness ofthese
charges is not at issue.
On or about October 23, 2002, complainant faxed a letter to respondent requesting an
additional $1,385.75 to bring the total refund to $2,771.50, the difference between the invoiced
(

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 4
amount ($1,228.50) and the $4,000 paid to respondent. Complainant wrote: "Your rate was $190
[sic] per hour and you anticipated approx. 20 hours ofwork. Since you did NOT spend anywhere
near that time on the case, the entire unearned balance is due to me." The letter requested the
"balance ofthe unearned portion" by October 25,2002, and announced that ifcomplainant did not
hear from respondent by then, she "would have no choice but to submit a grievance."
The next day, October 24, 2002, respondent called the State Bar of Michigan's Ethics
Helpline. Three Michigan Ethics Opinions were faxed by the Bar to respondent that day: RI-10
(April 6, 1989); RI-69 (February 14, 1991); and RI-162 (April 30, 1993). Respondent testified that
she reviewed them and concluded that it was reasonable for her to keep the sum she retained over
and above the amount she billed for her services. Respondent had no further contact with her client.
Respondent was served with the request for investigation in July of2003. On February 1,
2005, AGC counsel wrote to respondent as follows:
Enclosed please find a copy ofInformal Ethics Opinion, RI­
10. Upon receipt ofthis letter, please make an appointment to discuss
with me the criteria involved in non-refundable retainer agreements,
and its application in this matter. Please be prepared to substantiate
your claim to the unearned portion of this fee. [Petitioner's
Exhibit 1.]
The Grievance Administrator f1led the formal complaint on April 3, 2006, and this matter
was heard on June 16, 2006. Respondent testified that this case was complicated and that
complainant wanted her matter to receive "top priority." In contrast, complainant testified that she
was having problems with her husband after three years of marriage and "wanted some advice."
Complainant didn't think the matter was complex. There were no children, no support issues, she
held all the assets, there were no personal protection orders, nor does it appear she asked for one. 5
Complainant testified that she did not insist on "top priority" or immediate action: "1 was
basically exploring my options. 1wasn't even sure if! was going to file for divorce. 1wanted to know
if! was put in that situation what 1would have to do."
(
5 There is no record evidence to support the finding that personal protection orders were in effect.
Respondent testified that she did not obtain one on complainant's behalfbecause complainant was about to leave
for a trip and a hearing could not be scheduled.

Grievance Administrator v Patricia M. Cooper. Case No. 06-36-GA -- Board Opinion
Page 5
Inits report, the panel announced:
Lawyer Cooper argues that the contract is clear OIl its face,
that [complainant/client] was a sophisticated consumer and that the
complexities ofthe case justified the minimum fee of$4,000.00. The
complexities argued on behalfofthe respondent were that one ofthe
parties was a lawyer, that [complainant] owned the vast majority of
the property including the marital home in her own name, that the file
came to her with a recent history ofassaultive behavior on the part of
[complainant's husband] and that PPOs were in effect. In addition
and perhaps most persuasively, respondent argued that by taking this
case there was a very real possibility ofburning bridges with lawyers
in the [husband's] firm as well as those who were professional
acquaintances of[the husband]. The respondent indicated that when
she took the file, she understood that this could be a source Of
problems relating to referrals in the future. Having carefully.
considered the precedent in this area, particularly Grievance
Administrator v Underwood, Case No. 99-58-GA, decided July 26,
2001, and the Grievance Administrator v Boffman, Case No.
03-135-GA, decided September28,2005, we find thatunder the facts
and circumstances ofthis particular case the fee was not excessive
[within] the meaning ofMRPC 1.5(a). . .
Clearly we are not substituting our opinion for that ofajudge
or jury with respect to a civil cause of action. We believe that the
rationale adopted in [Grievance Administrator] vHamilton, Case No.
97-57-GA, decided June 12, 1998, applies to the instant factual
pattern in that legal and factual issues presented in a legitimate fee
dispute should be the subject ofa civil proceeding or an arbitration.
In other words, we do not nor can we make any factual findings with
respect to the civil dispute, but we do find that there was no violation
ofMs. Cooper's ethical duties to her client to refund any more ofthe
fee than she had already refunded.
II.
Discussion: Should the Formal Complaint Have Been Dismissed?
The Grievance Admi.nistrator argues on review that this caseinvolves a fee paid in advance,
and not a valid general retainer. The Administrator argues that, according to the fee agreement, "the
minimum fee ... was for future services to be rendered. These services were not, in fact, rendered,
and the unearned portion should have been returned."
(

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 6
The respondent does not address the unearned fee argument, but instead argues that the fee
was not clearly excessive (MRPC 1.5(a)), and that the panel "properly relied upon and applied prior
ADB case law in dismissing this matter."
We agree with the Administrator that dismissal was improper. The formal complaint alleged
violation ofMRPC 1.5(a), 1.15(b), and 1.16(d). The panel's report, and respondent's arguments
below and on review, focus on MRPC 1.5(a). Respondent failed, upon termination of the
representation, to refund an advance fee that had not been earned, and this constitutes a violation of
MRPC 1.16(d) and MRPC 1.15(b).
A. MRPC l.16(d) and MRPC l.1S(b).
The fee agreementplainlyprovided: "This MINIMUM FEE shall entitle Client to a combined
amount ofAttorney and Legal Assistant time computed in accordance with the hourly rate set forth
in paragraph 3," and paragraph 3 ofthe agreement set forth an hourly rate of$195. While it is true
that the agreement also stated that "NO portion of the MINIMUM FEE referred to above is
REFUNDABLE to the client under any circumstances," this provision must be read together with
the portion of the agreement that explains what the client receives for the "minimum fee," in this
case a certain number of hours devoted to legal services. Additionally, paragraph 11 essentially
incorporates a term the law requires in any event: "The Client is entitled to terminate this agreement
subject to its contractual liabilityto the law firm for services rendered."6 To the extent the agreement
is ambiguous, it must be construed in favor ofthe cliene Thus, under the terms ofthe fee agreement
drafted by respondent, complainant was entitled to a refund.
6 Plunkett & Cooney, PC v Capitol Bancorp, 212 Mich App 325,330 n 3; 536 NW2d 886 (1995) ("The
right of the client to discharge counsel is an implied term of the contractual attorney-client relationship. MRPC
1.16(a)(3). However, the client is liable to compensate the attorney for services rendered to the date ofdischarge.
[citations omitted].").
7 See authorities cited in Grievance Administrator v Harry R. Boffman, III, 03-135-GA (ADB 2005),
P 9; Michigan Ethics Opinion RI-IO ("If a fee agreement is ambiguous, it should be interpreted in favor ofthe
client."); Lane v Wilkins, 229 Cal App 2d 315; 40 Cal. Rptr. 309, 315 (1964); Elliott v Joyce, 889 P2d 43, 46
(Colo 1994); Hamilton v Ford Motor Co, 205 U.S. App. D.C. 37; 636 F.2d 745; 1980 ("If there is any dispute
over the terms ofthe Retainer Agreement, then any ambiguity must be construed against the attorneys."); 7 Am
Jur 2d Attorneys at Law § 262. See also, C & L Enters. v. Citizen Band Potawatomi Indian Tribe ofOkla. , 532
U.S. 411 ,423; 121 S. Ct. 1589; 149 L. Ed. 2d 623; 2001 (noting "'the common-law rule ofcontract interpretation
that a court should construe ambiguous language against the interest ofthe party that drafted it. "').

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 7
Additionally, attorney-client agreements are subject to the Rules ofProfessional Conduct. 8 (
Among these Rules is.MRPC l,l6(d) which provides that,."Upon termination ofrepre~entation,a
lawyer shall take reasonable steps to protect a client's interests, such as ... refunding any advance
payment of fee that has not been earned.,,9 This rule supplements and reinforces respondent's
contractual duty in this case.
While the agreement also contained language labeling the $4,000 payment nomefundable,
the mere invocation of such a term does not convert an advance fee arrangement into a general
retainer or otherwise entitle a lawyer to keep the advance fee if the representation is interrupted
before contemplated legal services are rendered. 10
B. MRPC 1.5(a), Michigan Informal Ethics Opinion RI-IO, and the Concept of a
So-Called "Non-refundable Retainer."
As we have noted above, respondent does not address MRPC 1.16(d). Rather, her arguments
rely mainly on MRPC 1.5, Board ca,se law, and Michigan Informal Ethics Opinion RI-lO. l1
ethics opinion used the term "nomefundable retainer." This term has no fixed meaning. Some think
That
8 See, e.g., Plunkett & Cooney, PC v Capitol Bancorp, n6, supra, and at 212 Mich App at 331 n 4.
9 Id.
10 See, e.g., Grievance Administrator v Otis M. Underwood, 99-58-GA (ADB 2001); Wong v Michael
Kennedy PC, 853 F Supp 73 (ED NY, 1994) (agreement providing fees paid "shall be deemed earned and no part
thereofshall be refundable" found to be advance fcc: "Merely reciting the language 'shall be deemed earned' does
not convert the Retainer Agreement into a general retainer"); In re National Magazine Publishing Co, 172 BR
237 (Bankr ND Ohio, 1994) (merely stating that a retainer is fully earned upon receipt and nonrefundable does
not satisfy the requirements ofa classic retainer); Connecticut Informal Opinion 00-12 (1992) ("designating a fee
as 'nonrefundable' is not determinative"); DC Bar Op 264 (Feb 14,1996) ("merely stating in a contract that the
retainerfee is a general retaineror nonrefundable does not necessarily make it so"); and numerous authorities cited
throughout this opinion, including those at n 27 and n 47, infra.
II In this case, we consider RI-I 0 in detail because it appears that RI-IO was central to the investigation
and to the defense ofthe charges in the formal complaint, and because it is frequently cited as authority in this area.
Ethics opinions "do not represent controlling authority to be followed by hearing panels or the Board." Grievance
Administrator v Otis M. Underwood, supra. The Bar agrees: "Opinions ofthe Committee do not have the force
and effect oflaw and may not be relied upon as an absolute defense to a charge ofethical misconduct." Rule7B
of the Rules of the State Bar of Michigan Standing Committee on Ethics, Professional and Judicial.
http://www.michbar.org/generalinfo/cthics/rulcs.cfm. See also, Evans & Luptak, PLCvLizza, 251 MichApp 187;
650 NW2d 364 (2002), Iv den 467 Mich 935 (2002) (Although State Bar Ethics Opinions are not binding on this C·
Court, they are instructive).

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 8
\) it describes or helps to describe a general retainer. 12 Too often, however, a fee agreement drawn up
by a lawyer will attempt to designate fees paid in advance for specific services as nonrefundable.
This is inconsistent with our Rules ofProfessional Conduct. To explain this, we will first discuss
certain categories offees and the law generally applicable to them.
1. Retainers versus Advance Fees.
a. General Retainers.
A general retainer is also known as a "true," "classic," or "availability" retainer, or as an
"engagement fee.,,13 "A true retainer fee is an amount a lawyer charges the client not for specific
services but to ensure the lawyer's availability whenever the client mayneed legal services.,,14 Such
a fee "is a charge separate from fees incurred for services actually rendered."15 In other words: "A
fee is an engagement retainer only ifthe lawyer is to be additionally compensated for actual work,
ifany, performed."16
A "true," "classic" or "general" retainer has historically been considered earned when paid.
Thus, it is said that the "lawyer who receives a [general] retainer has earned the fee bypromising to
be available for future work, and the funds so received need not be put in a trust account.,,17
12 See, e.g. In Re Doors and More, Inc., 127 BR IDOl, 1002 n 2 (Bankr ED MI, 1991) and ABA/BNA
Lawyers' Manual on Professional Conduct, 41: 2002--2003 construing RI-10 as referring to a general or classic
retainer.
13 Underwood, n 10, supra, at 4; Grievance Administrator v Harry R. Boffman, III, 03-I35-GA (ADB
2005), P 7.
14 ABAIBNA Lawyers' Manual on Professional Conduct, 4 1:2002.
15
16
A general retainer--sometimes referred to as the classic retainer--is an
agreement between attorney and client in which the client agrees to pay a fixed
sum to the attorney in exchange for the attorney's promise to be available to
perform, at an agreed price, any legal services, which may be ofany kind or of
a specified kind, that arise during a specified period. The general retainer fee
is given in exchange for availability and not for the rendition oflegal services.
Therefore, it is a charge separate from fees incurred for services actually
rendered. [Brickman & Cunningham, Nonrefundable Retainers: A Response to
Critics ofthe Absolute Ban, 64 U Cin L Rev 11,19 (1995).]
1 Restatement (Third) ofThe Law Governing Lawyers, § 34, commente, p 251.
(
17 See, e.g, Kentucky Bar Ass'n Ethics Opinion 380 (June 1995), citing Baranowski v State Bar, 154
Cal Rptr 752; 593 P2d 613 (Cal 1979).

Grievance Administrator v Patricia M. Cooper. Case No. 06-36-GA -- Board Opinion Page 10
It may be most common for attorneys to bill against advance fees by the hour, and withdraw
funds from trust accordingly.22 However, "the advance funds can also consist ofa fixed or flat fee,
representing the total compensation for all the work to be done in the case,,23
c. Advance Fees with a Claim of Nonrefundability.
Some fee agreements, such as the one in this case, designate prepaid fees for services to be
rendered in the future as nonrefundable. 24 This is misconduct in some states. 25 As a general
proposition, it appears that in most ofthe remaining states the language is simply often disregarded
as courts and discipline agencies review a fee under the Rules of Professional Conduct, and
discipline may be imposed when the attorney fails to return the unearned portion ofthe fee. 26 Use
ofthe term "nonrefundable" does not create a general retainer, nor does it defeat application ofthe
rules requiring refund of fees paid in advance upon termination of a representation. 27
Some fee
.22 Bd ofProfessional Ethics and Conduct v Frerichs, 671 NW2d 470, 476 (Iowa 2003).
23 Id. See also Wong v Michael Kennedy PC, 853 F Supp 73 (ED NY, 1994) (various amounts due at
signing, before trial, and per week in the event the matter went to trial).
24 In the instant case the money paid by the client is called a "retainer" and is expressly stated to be for
future services. The agreement also designates the money as a "minimum fee" no portion ofwhich is "refundable,
to the client, under any circumstances." Nothing in the agreement, however, indicates that the client's $4,000
payment is intended to cover anything other than legal services.
25 See, e.g., Alabama Opinion Number: 1993-21 (Lawyer may not characterize a fee as non-refundable
or use other language in a fee agreement that suggests that any fee paid before services are rendered is not subject
to refund or adjustment); In the Matter ofLany D. Sather, 3 P3d 403 (Colo 2000) (fees may not be called
"nonrefundable," but reasonable engagement retainers providing value to client may be permissible). Bd of
Professional Ethics and Conduct v. Frerichs, 671 NW2d 470, 475-77 (Iowa 2003) (unethical for lawyer to enter
into contract providing for nonrefundable fee unless it is a general retainer). See also, In re Kendall, 804 NE2d
1152, 1160 (Ind, 2004) ("We hold that the assertion in an attorney fee agreement that such advance payment is
nonrefundable violates the requirementofProf. Condo R. 1.5(a) that a lawyer's fee 'shall be reasonable. '" The court
so held even though it also said, "We do not hold that nonrefundable retainers are per se unenforceable.")
26 .1'
See, e.g., Matter oJ. Hirschfeld, 192 Ariz 40; 960 P2d 640 (1998).
27
See, e.g., Sather, n 25, supra, 3 P 3d at 410:
[U]nless the fee agreement expressly states that a fee is an engagement retainer
and explains how the fee is earned upon receipt, we will presume that any
advance fee is a deposit from which an attorney will be paid for specified legal
services.
(continued...)
(~-

Grievance Administrator v Patricia M. Cooper, Case No, 06-36-GA -- Board Opinion Page 11
agreements calling for payment for future services also contain general retainer language. For (
example, there may be a passingreference to availability without distinguishing how much isbeing
paid for precisely what. A retainer purporting to be "both for availability and for services" has been
called a "hybrid" and is usually treated as a special retainer or advance payment offees.2 8
As Michigan Formal Ethics Opinion R-7 (1990),29 issued one year after RI-IO and relying
upon it, explained:
Ifanyportion ofthe retainer is unearned because it is paid in advance
for legal services to be performed in the future on an hourly, flat or
percentage basis, the retainer has not been earned and is not a
non-refundable retainer, RI-l O. See also, Baranowski v State Bar, 24
Ca13d 153, 593 P2d 613 (1979).
Unfortunately, this relatively bright line test has not been uniformly followed and many fee
agreements still attempt to graftnonrefundability language ontoagreements to pay"retainers"which
27 ( .•.continued)
See also, In re Salvatore A. Scimeca, 265 Kan 742,760; 962 P2d 1080 (1998) ("Absent clear language that the
retainer is paid solely to commit the attorney to represent the client and not as a fee to be earned by future services, (_.
it is refundable."), and Inre DeRuiz, 152 Wn2d558; 99P3d 881, 889 (2004)("Here, the 'retainer' paid ... is more \\
accurately characterized as a flat fee for legal services in a particular matter because [the clients] hired DeRuiz to
represent them in a specific matter .. " [They] were paying for services, not for availability.").
28 See, e.g., In re Gray's Run Technologies, Inc, 217 BR 48 (Bankr Pa MD, 1997); Agusta & Ross v
Trancamp Contracting Corp, 193 Misc 2d 781; 751 NYS2d 155 (2002) ("the yardstick for recovery ofa generalspecific
hybrid agreement is quantum meruit, for the reasonable value ofthe services rendered by the law firm");
In re National Magazine Publishing Co, 172 BR 237 (Bankr ND Ohio, 1994) (consideration cannot include future
services if the retainer is truly earned upon'receipt; hourly charges for services as a component of agreement
inconsistent with a classic retainer agreement). See also Brickman & Cunningham, supra, 64 U Cin L Rev 11,22­
23 (hybrid "fully refundable to the extent not earned by services rendered"); 11-60 Corbin on Contracts § 60.9[2]
n 39 (Hybrid fund against which lawyer draws "is the client's money and belongs in a trust account. An attempt
to make it nonrefundable is invalid."), citing Gray's Run. supra; Construction and Operation ofAttorney's General
or Classic Retainer Fee or Salary Contract Under State Law, 102 ALR 5th 253, § 8[b]. But see Kelly v MD
Buyline. Inc, 2 F Supp 420 (SD NY, 1998) (attorney with three-year hybrid general retainer agreement might
recover contractdamages less mitigation or for detrimental reliance); and Construction and Operation ofAttorney's
General or Classic Retainer Fee or Salary Contract Under State Law, 102 ALR 5th 253, § 8[a].
29 Formal opinions are adopted by the State Bar Board ofCommissioners, reflect the policy ofthe State
Bar, and "deal with matters of general and substantial interest to the public, address situations which affect a
significant number ofmembers ofthe Bar, or reverse prior formal opinions." Rule 8 ofthe Rules ofthe State Bar
of Michigan Standing Committee on Ethics, Professional and Judicial.
http://www.michbar.org/generalinfo/ethics/rules.ctin. Jnformal opinions, issued by the professional or judicial
subcommittee ofthe Ethics Committee, are said to "general1y deal with situations oflimited and individual interest
or application," and bear the designation "I" for "informal." Id. Thus, informal opinions receive an "RI"
designation and formal opinions will have an "R" preceding the number of the opinion. (' "-

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 12
(
are in fact deposits ofadvance fees. One reason confusion may be perpetuated is the continued use
ofthe term "nonrefundable retainer," which we discuss further below.
2. Michigan Informal Ethics Opinion RI-IO.
The factual basis underlying the request for the opinion in RI-I 0 is summarized by the Ethics
Committee as follows:
In representing a client in complex litigation, such as a hostile tender
offer or antitrust suit, a lawyer offered and the client agreed to a
written fee agreement which stipulates a large nonrefundable retainer
and which also sets the hourly rate at which the client will be billed
for the lawyer's services. The lawyer then set aside time, declined
other cases, and marshaled firm resources in preparation for the
impending suit. But before hourly charges have equalled [sic] or
exceeded the retainer, the client discharges the lawyer without cause
and demands that the difference between the retainer and the fee
calculated on the hourly basis be, refunded.
The opinion's syllabus reads as follows:
Itis not unethical for a lawyer who has been discharged without cause
to keep all of a lump sum paid at the inception of representation,
notwithstanding that this sum is only partially "earned" on an hourly
rate basis, provided that:
(a) the complexity of the case and its likelihood of preempting the
lawyer from other work is apparent to the client at the outset; and
(b) the retainer agreement is in writing, clearly identifies the client's
expectations in hiring the lawyer, and unambiguously articulates that
the lump sum purchases something in addition to a fixed amount of
lawyer hours; and
(c) the client is ofsufficient intelligence, maturity, and sophistication
to understand the agreement and that the fee is nonrefundable;' and
(d) the lawyer in fact sets aside a block of time, turns down other
cases, and marshals law firm resources in reliance on the fee
agreement.
(
RI-IO is full ofobservations and subtle analysis. For example, the opinion asserts that: "The
client's understanding of what the retainer is buying is crucial."
Over time, readers may have

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 13
focused on the syllabus, treating it as a checklist for attaining a thing presumed to exist (a (,
nonrefundable retainer) butnotpreciselydefined byRI-l O. The syllabus itselfmayhave been vastly.
oversimplified by readers wanting to touch the bases.
Thus, the requisites might be ticked off
something like this: a writing, complexity, a client who knows what they are signing, and a colorable
claim to some sort of"marshaling" offirm resources. Such an approach does notjustify a so-called
"nonrefundable retainer." Indeed, it overlooks a tremendous amount ofthe text and substance ofRI-
10, the law governing retainers and advance fees (which has developed and become clearer since RI-
10 was rendered), and it also begs essential questions such as:
• What is meantby "nonrefundable retainer," generally, and by the drafters ofRI-IO?
Is RI-IO talking about a true, general retainer, or did the agreement in that case
simply attempt to graft nonrefundability language onto a fee paid in advance?
In light ofthe Rules ofProfessional Conduct, is it ever accurate to say that a fee paid
at the outset ofrepresentation is "nonrefundable"?
RI-lO, like virtually every other ethics opinion or court decision in this area, essentially
answers the last of the above questions in the negative.
RI-lO recognizes that "[e]ach retainer
agreement must be judged in its own factual context by the eight touchstones of reasonableness
contained in MRPC 1.5." It also cites an ethics opinion recognizing that "such fees ... may be
excessive if the lawyer withdraws or is fired."
RI-lO also states that even if "nonrefundable
retainers" were customarily used (and the opinion assumed otherwise) this "would not preclude an
inquiry into whether any particular retainer fee was excessive." In addition, RI-lO opines:
Ifa fee agreement is ambiguous, it should be interpreted in favor of
the client. Thus, iffiring a lawyer is prompted by some development
unforeseen by the client, but which should have been anticipated by
the lawyer and mentioned in the fee agreement, the lawyer should
refund the difference between the total amount paid and that earned
on an hourly basis. Had the potential problem been disclosed, the
client might never have hired the lawyer at all, or paid a large
retainer.
Finally, with respect to the fleeting nature ofnonrefundability, RI-lO asserts: "The ethical
focus always should be whether, under the totality of the circumstances, the fee arrangement is
reasonable, notwithstanding the adjectives used to label it." Thus, RI-lO acknowledgesthat certain
requirements arise by operation oflaw irrespective oflanguage used in the agreement. After all of
these statements, the concluding paragraph makes reference to a "large up-front 'nonrefundable' (

Grievance Administrator v Patricia M. Cooper. Case No. 06-36-GA -- Board Opinion Page 14
retainer." The quotation marks around "nonrefundable" in this statement signal the committee's
qualified usage ofthe term.
This cautious reading is confirmed by RI-lO's author who later wrote that RI-IO "prohibits
non-refundable retainer agreements except in the most extraordinary circumstances."30
RI-IO offers sophisticated treatment ofa complex question in manyrespects. However, with
the benefit of more recent ethics opinions, disciplinary decisions, and court rules addressing the
recurring problem presented when nonrefundability language is attached to agreements calling for
fees to be paid in advance, we have concluded that RI-lO's analysis must be supplemented.
particular, as we have noted, RI-I 0 does not take into account the very significant differences in the
treatment ofa general retainer and an advance fee upon payment to the lawyer. Indeed, RI-I 0 states:
Less attention should be paid to whether a fee is paid in advance or
in arrears; the focus should be on the amount of the retainer in
relation to the complexity of the case, the content of the fee
agreement, and particularly, how client expectations are addressed in
that fee agreement. The ethical focus always should be whether,
under the totality of the circumstances, the fee arrangement is
reasonable, notwithstanding the adjectives used to label it.
We can agree with parts ofthis passage. However, members ofthe Bar must be aware that
a fee paid in advance is subject to significantly different treatment than either a general retainer or
a fee paid for services that have been rendered. A fee paid for services rendered may be deposited
into a lawyer's own bank account. A general retainer, though potentially subject to review, may, by
long established practice, also be treated as earned by the lawyer upon payment.
In
Fees paid in
advance, however, "shall be deposited in a client trust account and may be withdrawn only as fees
are earned.,,3\ A fee paid in advance is defined by the very fact that it is for legal services to be
rendered in the future. And once it is established that the money paid to the lawyer is for services
to be performed, certain duties arise, including the duty to keep such funds separate from the
lawyer's and, more important for this case, the duty of"refunding any advance payment offee that
has not been earned." R-7, citing MRPC 1.16(d).
30 Lawrence 1. McKay, The Case for Michigan's Treatment ofNon-Refundable Retainer Agreements,
Michigan Bar Journal (February 1995), p 182. Mr. McKay stated in his 1995 article that he had used a
"nonrefundable" retainer only once since he was admitted in 1974.
31
MRPC 1.15(g). See also, Boffman. supra.

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 15
These duties have become clearer in the years following RI-10, but they are hardly new. (
Formal Opinion R-7 was released in 1990, only one year after RI-lO. And R-7 noteclIlumerOtl§
inquiries from lawyers regarding the use of trust accounts which inquires "reflect[ed] a lack of
information or understanding ofthe underlying philosophy, caselaw, and ethics decisions regarding
funds and property ofclients and third persons.,,32 Yet, in 1991, a bankruptcy decision held: "Since
the retainer is for work not yet performed, the retainer is unearned and must be deposited in the
firm's Glient trust account"; the court cited MRPC l.l5(a), MRPC l.l6(d), R-7 and RI-69, among
other authorities which "make the point clear." 33
A few years later, in what was to become an influential opinion, the New York Court of
Appeals affirmed a lawyer's two-year suspension for "repeatedly using special nonrefundable
retainer fee agreements with his clients." In Re Cooperman, 83 NY2d 465,469; 633 NE2d 1069;
611 NYS2d 465 (1994).
In Cooperman, the New York Court ofAppeals explained that special retainers (or advance
fees) "are marked by the payment of a nonrefundable fee for specific services, in advance and
irrespective of whether any professional services are actually rendered." Id. One of the fee
agreements at issue in Cooperman is quite similar to the one used by respondent here. It provided
that monies paid at the beginning ofthe representation constituted a "minimum fee" and were "not
refundable for any reason whatsoever once I file a notice ofappearance on your behalf.?'
, I ~~
, \
,/\
\ "'-- ,
32 Formal Opinion R-7 continued:
The Attorney Discipline Board opinions show there is an increase in the number, frequency, and
dollar amount of trust account violations, and claims to the State Bar Client Security Fund
underscore the damages clients have suffered in this area. Although several states have
recordkeeping rules, mandatory trust account rules, "spot-audits," or trust account overdraft
notification rules, the Michigan Supreme Court has not promulgated similar rules.
The lack ofguidance for Michigan lawyers in this area is one factor contributing to this type of
professional misconduct. Therefore, the Committee provides the following guidance concerning
ethical requirements applicable to the establishment and maintenance of lawyer trust accounts
for the deposit of funds belonging to clients and other persons.
33 In Re Doors and More, Inc., 127 BR 1001, 1003-1004 (Bankr ED Ml, 1991).
(

Grievance Administrator v Patricia M. Cooper; Case No. 06-36-GA -- Board Opinion Page 16
Finding that special nonrefundable retainer fee agreements violated various provisions of
New York's Code of Professional Responsibility,34 the Cooperman court emphasized a "client's
absolute right to terminate the unique fiduciary attorney-client relationship."35 The court held that
an agreement attemptingto designate as "nonrefundable" fees deposited to cover services would chill
the client's right to discharge an attorney and therefore violated public policy:
To answer that the client can technically still terminate misses the
reality ofthe economic coercion that pervades such matters. Ifspecial
nonrefundable retainers are allowed to flourish, clients would be
relegated to hostage status in an unwanted fiduciary relationship--an
utter anomaly. Such circumstance would impose a penalty'on a client
for daring to invoke a hollow right to discharge. . .. Instead of
becoming responsible for fair value ofactual services rendered, the
firing client would lose the entire "nonrefundable" fee, no matter
what legal services, ifany, were rendered. This would be a shameful,
not honorable, professional denouement. 36
Although it declined a request to render its ruling prospectively, the Court ofAppeals was
sensitive to concerns about "sweeping sequelae" and took pains to point out that: "Minimum fee l37 ]
arrangements and general retainers that provide for fees, not laden with the nonrefundability
impediment irrespective of any services, will continue to be valid and not subject in and of
themselves to professional discipline."38
In 1995, the year after Cooperman was decided, a pair of a~icles appeared in the Michigan
Bar Journal presenting differing viewpoints on so called "non-refundable retainer agrel;:ments.,,39
34 DR 2-llO(A)(3) (failure to return unearned fee paid in advance); DR 2-ll0(B)(4) (by chilling the
client's right to discharge attorney under this rule); and, DR 2-l06(A) (lawyer shall not charge or collect an
excessive fee).
35 83 NY2d at 471.
36 83 NY2d at 473-474.
37
The "minimum fee" common and acceptable to courts in New York does not claim to be
nonrefundable. It is discussed infra.
38 83 NY2d at 476.
39 Larrry Dubin, The Case AgainstNon-refundable RetainerAgreements, Michigan BarJournal (February
1995), p 182, and Lawrence 1. McKay, The. Case for Michigan's Treatment of Non-Refundable Retainer
(continued...)

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 17
One criticized RI-l0, and the other, written by RI-lO's author, defended it. Notably, both agreed that (.
suchfeesw:ould only rarely be consistent with the MRPC,and thatthe Cooperman fee discussed.
above was not permitted even by RI-lO.
RI-lO's author further agreed that a nonrefundability clause would be "unethical under RIlO,"
in the following hypothetical situation, bearing great similarity to the facts ofthis case:
A divorce client comes into a lawyer's office. After a discussion
about his legal problems, the lawyer quotes a legal fee for services to
be performed which includes a non-refundable retainer of $5,000.
The client retains the lawyer and pays the retainer.
A week later, the client calls the lawyer and informs her that the client
has decided to reconcile with his wife and wants to dismiss his
lawsuit. The lawyer tells her client that although sheisdelightedthat
reconciliation will be pursued, the client shouldn't expect to receive
any refund of the $5,000 retainer that had previously been paid
because their retainer agreement specifically states"... that under no
circumstances will the retainer be refunded to the client." Is this type
of retainer agreement an ethical fee? The answer is a resounding
"no.,,40
"Under the bare facts presented," the author of RI-lO wrote, "it is .clear that both non::­
refundable fee agreements are unethical under RI-lO." He t~en argued that the existence of its
factors could change this view, and concluded: "RI-lO places the burden on the lawyer to establish
all of these factors in order to justify keeping a fee whieh exceeds that which would have been
earned on an hourly rate basis.
If the attorney fails to satisfy any of these burdens, the fee
arrangement is unethical under the Michigan Rules ofProfessional Conduct.,,41
With this background on the so called "nonrefundable retainer," we now apply various
authorities to the facts of this case; we include RI-lO in light of respondent's reliance upon it in
assessing her client's refund request and in proceedings before the panel.
39 ( ...continued)
Agreements, Id.
40 McKay, supra, p 184, agreeing with Professor Dubin's hypothetical at p 182.
41
Id., pp 184-185.
(

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion
Page 18
3. Application ofRI-IO and MRPC 1.5(a).
In her briefon review, respondent relies on four factors, drawn mainly from MRPC I.S(a),
to justify "the fee charged by respondent." The factors cited by respondent are:
• the complexity ofthe matter;
• the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
• time limitations imposed by the client; and
• experience and reputation ofthe attorney.
Respondent also argued below that RI-lO's factual scenario is "nearly identical to this case. ,,42
a. Complexity.
Respondent argues that this factor justifies retention of fees beyond those she earned for
services rendered to complainant. We disagree for several reasons.
RI-lO's syllabus opined that a discharged lawyercould keep a "lump sum paid at the inception
of representation" when, among other things, "the complexity of the case and its likelihood of
preempting the lawyer from other work is apparent to the client at the outset." We follow
respondent's approach and treat separately the factors of complexity and preclusion from other
representation.
The body of RI-lO must be read carefully to understand the manner in which the opinion
actually employs the complexity factor:
l!
42 Tr, p 34.
1. Time, labor, and skill required by the difficulty ofthe case. In this
inquiry, it is stipulated that the litigation is complex andthat law firm
resources were marshaled on behalf of the client prior to discharge.
While the facts are not specific, it is not difficult to envision
substantial firm resources redirected in favor ofthe client (assigning
legal assistants to research the subject, preparation of witness lists,
drafting a proposed complaint, scheduling depositions, etc.) without
the lawyerbilling more than an hour or two. Note that this factor refers
merely to time and labor required, not to billable hours. To the extent
the lawyer or lawfirm paidfor this time and labor, the retainerfee is
partlyjustified, even ifthe client dissipates the benefit ofthat effort by
firing the lawyer. [Emphasis added.]

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 19
We read this as simply saying that ifa lawyer relies on an employment contract to "marshal
firm resources" in the ways described above (which are commonly factored into lawyer billable time
or otherwise charged to clients), the expense of doing so is properly chargeable to the client upon
discharge. Perhaps it was somewhat less common when Rl-l0 was issued in 1989 for firms to bill
for legal assistant time, but respondent's agreement shows that such is a common practice now. If
the fee is fixed rather than hourly, the lawyer would seem to be entitled upon discharge to the
proportional valueofthe fixed fee for services rendered,43 includingthose rendered by legal assistants.
But, there is a gap in the logic ofRl-I0 to the extent that the syllabus suggests a lawyer should be
entitled to keep the entire sum paid in contemplation ofservices simply because some ofthe services
were in fact rendered. Those services enumerated in the body of the Rl-I0 (such as drafting a
complaint or witness list) may be assigned a value.
RI-I O's reliance oncomplexityappears to stem from MRPC 1.5(a)(l) which provides that "the
time and labor required, the novelty and difficulty ofthe questions involved, and the skill requisite
to perform the legal services properli' are among the factors to be considered in detel1llining the
reasonableness ofa fee. While actual complexity might have justified a large bill at the ,end ofthe
representation, it cert~inly cannot justify a bill for services not rendered in this case, Also, ,as. the
panel's questions below seem to suggest, the complexity ofa case could be, relevant in determining
the amount ofthe advance fee the lawyer might require to be deposited with him orher because truly
complex cases will usually take more time, and generallyjustify a higher bill. However, the potential
complexity ofa case that never gets going does not justify the retention ofa fee paid in advance for
specific services that were never performed.
Moreover, even were complexity a factor that justified the keeping of an advance fee, the
divorce here is not complex. Respondent argues that the case was complexbecause the client was the
primary breadwinner, held most ofthe assets, her spouse was an attorney from a family ofattorneys,
an order enjoining asset transfers was in place, and police reports had been filed and personal
protection orders might be sought. We must observe that, as a matter oflaw, this representation does
not begin to approach the level ofcomplexity referenced in RI-l0 which spoke ofa tender offer or
an antitrust case as examples. Every matter has its unique factors. These do not automatically
(
43 See Plunkett Cooney v Bancorp, n 6 supra
(

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 20
establish "complexity," and, as we have explained above, complexity does not justify retention ofa
fee for services anticipated but not performed.
Finally, there is no record support for respondent's argument on review that both she and her
client "understood this case to be a complex divorce" and that the client agreed to pay a
nonrefundable sum because this matter was complex. Again, the "retainer" paid pursuant to this fee
agreement was not a true retainer paid to secure a lawyer's availability. Complexitymight factor into
a lawyer's decision to charge a true retainer. Had a lawyer explained that he or she would charge a
general retainer because the handling ofthis case will require hiring ofadditional staff, for example,
such a retainer might be reasonable. But, it is those acts in reliance upon being retained, not the
complexity (or, more accurately, potential complexity) ofthe matter, thatjustify the general retainer.
In: this case such factors are not present. Moreover, there is no agreement for anything other than the
performance of specific contemplated legal services, and therefore the $4,000 was a fee paid in
advance.
b. The Likelihood, If Apparent to the Client, That the Acceptance of
ParticularEmploymentWill Preclude OtherEmployment by the Lawyer.
MRPC 1.5(a)(2).
Although it has been said that "general retainers have largely disappeared from the modem
practice oflaw,"44 when such true retaine~s are used, preclusion from other employment is frequently
cited as a basis for charging them. The Restatement ofthe Law Governing Lawyers explains when
such a fee is reasonable:
An engagement-retainer fee satisfies the requirements ofthis Section
ifit bears a reasonable relationship to the income the lawyer sacrifices
or expense the lawyer incurs by accepting it, including such costs as
turning away other clients (for reasons oftime or due to conflicts of
interest), hiring new associates so as to be able to take the client's
matter, keeping up with the relevant field, and the like. When a client
experienced in retaining and compensating lawyers agrees to pay an
engagement-retainer fee, the fee will almost invariablybefound to fall
within the range ofreasonableness. Engagement-retainer fees agreed
to by clients not so experienced should be more closely scrutinized to
ensure that they are no greater than is reasonable and that the
(
44 Provanzano v National Auto Credit, Inc, 10 F Supp 2d 44,51 n 13 (D Mass, 1998). See also, McKay,
n 30 supra (author ofRI-IO used "nonrefundable retainer" only once in 20 years).

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion
Page 21
engagement-retainer fee is not being used to evade the rules requiring
a lawyer to return unearned fees. 45
(
The plain text ofMRPC 1.5(a)(2) requires that likely preclusion from other employment be
apparent to the client. Where a fee agreement is unclear as to what the money is paid for, it is
presumed to be an advance fee. 46
Here, the agreement states that the funds will be earned by the
performance oflegal work at a certain hourly rate. Thus, the money paid is an advance fee and the
unearned portion must be refunded irrespective ofthe use ofterminology such as "nonrefundable"
or "minimum fee" or the like. 47
At the hearing before the panel, respondent was initially called to testify by the Grievance
Administrator. She was asked the following questions about the fee agreement in this case, and she
gave the following answers:
Q. Is this your standard fee agreement?
A. Yes.
Q. SO is it your habit to charge a minimum fee to all of your
clients?
A. Yes.
Q. SO even ifit is a will or something very, very run-of-the-mill,
you would charge them a minimum fee; is that what you're saying?
MR. CAMPBELL: I'm going to object on the grounds of
relevance.
CHAIRMAN GARVEY: Well, I'm goingto allow the question.
She already answered that she did use it in all cases, and now she's
saying - she's clarifying it. She's saying do you really mean all cases.
THE WITNESS: It's either this fee agreement ora contingency
fee agreement. I only have two fee agreements ofchoice.
45 1 Restatement (Third) ofThe Law Governing Lawyers, § 34, comment e, p 251-252.
46 See, e.g., Boffman, supra, at p 8, quoting 1 Restatement ofThe Law Governing Lawyers, 3d, § 38(c),
comment g, p 282. See also, In re Salvatore A. Scimeca, 265 Kan 742, 760; 962 P2d 1080 (1998) ("Absent clear
language that the retainer is paid solely to commit the attorney to represent the client·and not as a fee to be earned
by future services, it is refunda~le.").
47 See, e.g., Cluck v Comm 'n for Lawyer Discipline, 214 SW 3d 736, 739-740 (Tex App, 2007) (fee
agreement in divorce matter provided that attorney fees would be billed at $150 per hour "first against the
nonrefundable fee and then monthly thereafter," and that "no part ofthe legal fee is to be refunded."); In re Steven
L. Whitehead, 861 NE2d 702 (Ind, 2007) (lawyer violated MRPC 1.5(a) and 1.l6(d) by failing to refund unearned
portion [$92.50] of a "$1,000 nonrefundable minimum fee" when client discharged attorney two months after
being retained in divorce matter). See also, Michigan Formal Ethics Opinion R-7 ("Ifany portion ofthe retainer
is unearned because it is paid in advance for legal services to be performed in the future on an hourly, flat or (
percentage basis, the retainer has not been earned and is not a non-refundable retainer").

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion
Page 22
CHAIRMAN GARVEY: I think the question was would you
have this sort ofa fee agreement with a minimum fee with a will?
THE WITNESS: Yes. [Tr, pp 59-60.]
Later, in respondent's case-in-chief, her counsel asked the following questions and she gave
the following replies:
Q. In each case, do you make a determination as to whether ornot
a minimum fee is to be charged, and, ifso, how much in that particular
case?
A. Yes.
Q. And does it vary from case to case?
A. Sure does.
Q. In this case, what were some of the factors that you took into
consideration in establishing this minimum fee?
A. There were several factors. Number one would be the impact
this would have on my practice. I knew I was going to be, first ofall,
burning bridges by representing [complainant] in a case against
another attorney in a county that I practice in, that rm affiliated with
their firm. I would have cases from time to time with their firm.
Q. And you knew of this firm, as you said, in practice both as
opposing counsel and, at other times, just counsel say in the
transaction or something?
A. That's correct because I know her husband's sister, ....
A. ... A lot of attorneys wouldn't take kindly to me representing
her in a matter like this, especially with the abuse issues that were in
this case. [Tr, pp 132-133.]
The panel's report contains the following statements:
In addition and perhaps most persuasively, respondent argued that by
taking this case there was a very real possibility of burning bridges
with lawyers in the [husband's] firm as well as those who were
professional acquaintances of[the husband]. The respondent indicated
that when she took the file, she understood that this could be a source
of problems relating to referrals in the future. [Panel Report, p 3;
emphasis added.] .
The record contains no evidence to establish that respondent ever had a referral relationship
with the husband's firm or would otherwise be precluded from other employment. In any event, this
burned-bridges factor does notjustify the retention ofthe fees paid in advance beyond the hourlyfees
contemplated in the fee agreement in this case. As we have noted, there is nothing in the agreement
or in the record to indicate that the client had any inkling that she was being charged a fee because

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 23
respondent knew her husband's sister or that respondent had previously "had cases" with the firm. (
Had this fact been disclosed and made a part ofthe negotiations and agreement, the client would have
had the opportunity to seek another lawyer without "bridges" to the opposing firm. If a client
knowingly entered into an agreement to pay an additional sum to compensate a certain lawyer for
burning bridges because the client desired to retain that particular lawyer, such an arrangement might
indeed be reasonable. But there is no such agreement here.
c. Other Factors, Cases & Authorities.
Respondent also argues that her retention ofthe fee is justified by time limitations imposed
by the client and by her'experience and reputation. First, the agreement does not recite that these
factors were considered by the parties as a basis for a fee above and beyond the fee for services.
Additionally, the record does not establish that respondent in fact put other matters aside orotherwise
assigned priority to her client's matter. Cf Grievance Administrator v Otis M. Underwood, 99-58­
GA (ADB 2001).
Respondent quotes a passage'from a treatise referenced in our decision in Underwood which
describes a hypothetical situation that seems quite similar to the instant case: "an initial (minimum)
fee of$5,000 for routine services would almost certainlybe found to be unreasonable by most courts- \-"
and disciplinary authorities ifthe lawyer did little work and refused to refund part ofthemoney." In
Underwood we concluded that the attorney's agreement for, and retention of, a "minimum fee of
$1,000.00, which includes the non-refundable case origination fee and services I:endered" did not
violate MRPC 1.5(a) under the circumstances there which included the amount ofthe fee, the work
performed and the priority actually assigned to the matter in that case.
The fee agreement in Underwood expressly stated "Client agrees that the fee is based not
merely on the purchase of a fixed amount of attorney time," but also on other factors drawn from
MRPC 1.5. It is true that in Underwood we declined to find "all nonrefundable fees . . . per se
unethical." But, we emphasized that "the term 'nonrefundable retainer' is misleading" because all
fees are subject to MRPC 1.5(a) and l.l6(d) and may therefore be refundable notwithstanding
language to the contrary in a fee agreement.
On the other hand, we recognize that the opinion did not explain as we do here the pitfalls of
an attorney's attempt to provide that an advance fee is nonrefundable. The circumstances in
Underwood did not require us to analyze that question. There, the attorney rendered 3.7 hours of (
C'

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 24
service between being retained on a Friday and the following Monday when the client requested a
refund. Probate pleadings were drafted pursuant to a strategy that the client "seize the initiative by
filing a petition for commencement of probate proceedings." The fee agreement in Underwood
provided that the $1,000 "fee is basednot merely on the purchase ofa fixed amount ofattorney time,"
but also on factors including "[t]he time limitations imposed by the client and the circumstances."
This was a necessary butnot sufficient condition for the lawyer's retention ofthe $1,000 fee. We also
examined the reasonableness ofthe fee and concluded:
In light of the all of the circumstances, including the amount of the
minimum or "nonrefundable" portion ofthe fee in this case, the work
done byrespondent, and the priority assigned to the client's matter, we
conclude that the $1,000 retained by respondent was not a clearly
excessive fee.
As noted above, the fee in this case resembles the hypo~hetical
disapproved of in Underwood much more than the $1,000 fee upheld there.
$5,000 minimum fee
But, again, we
acknowledge that Underwood did not precisely explain the fundamental inconsistency between a
general retainer and fee paid in advance, the fact that combination ofthe two frustrates the attorney's
duty to communicate the basis ofthe fee to the client and the client's understanding ofwhat he or she
is paying for, and, finally, the rule treating hybrid retainers as advance fees (i.e., requiring refund of
the portion not earned by the provision oflegal services).
We note briefly that, respondent's use ofthe term "minimum fee" in her fee agreement does
not affect our analysis regarding her duty to return unearned fees. Although it is possible ~o.provide
for a minimum fee that does not penalize the client financially if the representation ends before
completion ofthe matter, it is clear that respondent is here using the term essentially as a synonym
for "nonrefundable."48
48 See, e.g., Iowa Bd ofProfEthics v Frerichs, n 21, supra ("minimum fee"operated as, and equated to,
nonrefundable advance fee); In Re Scimeca, 265 Kan 742; 962 P2d 1080, 1091 (1998) ("Designating the advance
fee as a minimum fee contemplates that it mustbe earned by future services."). Compare Rosen v Rosen, 161 Misc
2d 795; 614 NYS 2d 1018, 1023 (Sup Ct, 1994) (quoting extensively from a minimum fee agreement which did
not provide for retention of unearned fees upon early termination of representation and rejecting attack on
agreement under Cooperman. supra). See also the distinction between permissible and impermissible "minimum
fees" drawn by leading commentators:
Minimum fee agreements typically provide that a lawyer will work on an hourly or fixed fee basis
to complete a particular task. For examp.le, the agreement may provide that, although the task will
(continued...)

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 25
It is also argued that the hearing panel properly relied on our decision in Grievance (
AdministratorvBoffman, 03-135-GA{ADB 2005), in dismissing theJormalcomplaint.Theq\lestion,
in Boffman was whether the $5,000 paid to respondent constituted a "general retainer" or an advance
fee. The only charge ofmisconduct at issue on reviewwas commingling (i.e., failure to deposit the
funds in a trust account in accordance with MRPC 1.15). That is not at issue in this case. However,
the following observations, made by the Board in that case, are largely applicable here:
The record, the law, and most important, the express language ofthe
fee agreement in this case, simply do not establish that the retainer
here is anything other than an advance payment ofthe fees respondent
would earn by performing work on the client's matter. There is no
mention of securing respondent's availability orany other benefit to
the client or detriment to the lawyer which might serve to create, or be
recognized as justifying, a general retainer. [Boffman, p 10.]
These observations remain apt here even though the fee agreement in Boffman did not contain the
term "nonrefundable" or a variation thereof.
decision in Underwood:
Also relevant here are these .comments about our
[W]e, like every court or agency faced with the question, held that all
fees are subjectto scrutiny for excessiveness under MRPC 1.5 and that
unearned fees must be refunded, MRPC 1.16(d). Indeed, the very fact
that we reviewed the fee vindicates the well-established rule that one
cannot insulate a fee from scrutiny under the rules of professional
conduct by using certain terminology.
48 ( ...continued)
likely require twenty hours of work. even if it is completed in fewer hours, the fee will still be
the twenty hour fee. The agreement may also provide, however, that the fee can be more than the
minimum fee ifthe task requires more hours or effort than contemplated. This kind ofminimum
fee also raises no inherent ethical objections. In such a case, the client's right to discharge the
lawyer prior to completion of the service, with liability only in quantum meruit, is unimpaired.
On the other hand, of course, any such device that does impair the client discharge right would
be forbidden. Thus, for example, an arrangement nominally characterized as a "minimum fee,"
but that also purports to allow an attorney to keep an advance payment without regard to whether
the services contracted for are rendered, is invalid because it impairs the client discharge right.
In effect, it is simply a nonrefundable retainer in disguise; it contains a "nonrefundability
impediment irrespective of any services." Minimum fees ofthis variety are therefore unethical
and unenforceable. [Lester Brickman & Lawrence A. Cunningham, Nonrefundable Retainers:
A Response to Critics ofthe Absolute Ban, 64 U Cinn L Rev 11,33 (1995).]
(

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 26
( Finally, we consider a 2004 decision of the Court ofAppeals involving a "non-refundable
engagement fee." Lusader v Law Firm ofJohn F. Schaefer, PLLC, unpublished opinion per curiam
of the Michigan Court of Appeals, Docket No. 249683; 2004 Mich App Lexis 3506 (Decided
12/21/2004). Respondent argued below that the panel should consider Lusader and the asserted lack
of disciplinary consequences arising from that transaction as proof that the fee in this case was
reasonable. The panel declined to do so 'and this ruling was correct for several reasons. We will
discuss two.
First, although the terms of the agreement are only briefly summarized in that decision, it
appears that the fee charged there was in fact a general retainer or "engagement fee." As we have
discussed elsewhere, the term "nonrefundable" is misleading even when used in connectionwith true
retainers because all fees are subject to the Rules ofProfessional Conduct. However, the agreement
in Lusader appears to have explained that the fee was not for work to be performed. At least, that is
how we read the opinion's statement that'the client "signed a letter agreeing to a $50,000
'nonrefundable engagement fee' and additional hourly charges beyond the engagement fee." Thus,
the fee appears to have been for availability and not, as in this case, for services.
Second, as the Grievance Administrator points out, Lusader does not speak to whether the
retention ofthe fee there complied with the Rules ofProfessional Conduct. The Court would not
consider the Rules and upheld dismissal of the plaintiffs claim precisely because the complaint
alleged a violation ofMPRC 1.5(a).49
In sum, we are not persuadedbyrespondent's arguments that her failure to refund to her client
the sum in excess ofthe fees for services rendered was reasonable under MRPC 1.5(a), or approved
by Rl-I0, or consistent with our opinions in Underwood and Boffman.
VI.
Consequences for Rule Violations in this Matter.
The Grievance Administrator has asked that our opinion afford guidance on the subject of
"nonrefundable retainers." He also suggests that prospective application or an order finding
misconduct but imposing no discipline may be appropriate in this case. We have considered various
49 Lusader, supra, at 1, citing Watts v Polaczyk, 242 Mich App 600, 607 nl; 619 NW2d 714 (2000).
Lusader does not cite cases holding that the Michiga,n Rules of Professional Conduct are limitations upon
contractual terms. See, e.g., Plunkett & Cooney, PC v Capitol Bancorp, n 6, supra; Evans & Luptak, PLC v Lizza,
251 Mich App 187; 650 NW2d 364 (2002), Iv den 467 Mich 935 (2002); and, Morris & Doherty, PC v Lockwood,
259 Mich. App. 38, 43, 672 NW2d 884 (2003).

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 27
factors in determining the appropriate consequences for the rule violations here, including (
respondent's attempts to comply with the Rules, the state ofthelaw, alld the degree to which it m~¥
be settled or unsettled on the questions presented here.
Respondent was furnished with three ethics opinions by the Bar: Rl-lO, Rl-69 and Rl-162.
We have analyzed Michigan Informal Ethics Opinion Rl-IO in some detail, and we have
applied its factors in light ofthe fact that it figured prominently in this case and has frequently been
cited as a source of guidance with respect to "nonrefundable retainers." Rl-IO does not justify
keeping more than the fee for services here for several reasons discussed above, the most important
of which is that the fee agreement did not unambiguously articulate that-the sum paid "purchases
something in addition to a fixed amount ofattorney hours." However, while Rl-lO may offer some
guidance as to general retainers, we hasten to add that we do not believe that Rl-lO validates the
notion of a nonrefundable advance fee. Further, Rl-lO, and any other authority that uses the term
"nonrefundable retainer," may continue to cause confusion and perhaps contact with the discipline
system. As we have explained in our recent memorandum to the Supreme Court, the term is
inaccurate and misleading to lawyer and client because even the jurisdictions purporting to uphold
such fees admit that the term is misleading orat the very leastnot determinative ofwhetherthe lawyer
will in fact be required to refund a portion ofa fee under specific circumstances. so
The syllabus ofRl-69, also reviewed by respondentduring the dispute with her client, states:
)C'
If a lawyer-client relationship is terminated before all services are
rendered but after payment ofa fixed fee~ the lawyershall refund any
portion ofthe fee which has not been earned
The body ofRl-69 explains the basis for this conclusion:
Ifany portion ofthe retainer is unearned because it is paid in advance
for legal services to be performed in the future on an hourly, flat, or .
percentage basis, the retainer .has not been earned and is not a
nonrefundable retainer. [Rl-69, citing Rl-IO and quoting a part of
Formal Opinion R-7.]
Respondent testified that she also reviewed Rl-l62. Though it's relevance to respondent's
situation may not have been immediately apparent in light ofthe differing factual circumstances, it
50 September 29, 2005 ADB Memorandum regarding clarification of lawyers' duties in handling
"retainers" or fees paid in advance. (

Grievance Administrator v Patricia M. Cooper, Case No. 06-36-GA -- Board Opinion Page 28
( does advise that: "A lawyer has a continuing duty prior to billing the client and before collecting a
fee from a client to reexamine the reasonableness of the fee in light of subsequent events in the
representation." (This advice is consistent with disciplinary caselaw. 51
And, when the fee has been
paid in advance, as in this case, the duty to reexamine the reasonableness of the fee in light of
subsequent events in the representation remains.52)
These ethics opinions arguably should have apprised respondent that her client was entitled
to a refund. However, we must acknowledge that portions may unwittingly encourage analytical
shortcuts. For example, RI-69 says this:
It appears that semantics play an important part in determining how
funds paid to a lawyer are to be handled. Ifthe money is classified as
a "nonrefundable retainer" then itneed not be placed in a trust account.
The nonrefundable retainer is exactly what it says it is and is clearly
earned at the time of payment. It must, however, be in an amount
which is not clearly excessive for the purpose for which it is intended.
~he foregoing statement is problematic for several reasons. First, as noted above, the
overwhelming weight of authority, including RI-IO, holds that semantics do not carry the day.
Second, RI-69 itself recognizes this: the statement about the importance of semantics is qualified
three sentences later when it is said that although a nonrefundable retainer is "clearly earned at the
time ofpayment" it must only "be in an amount which is not clearly excessive." In other words, the
fee is not truly nonrefundable; it is in fact subject to refund ifexcessive. Third, saying that semantics
trumps substance clashes with R-7's careful and correct analysis (quoted in RI-69) regarding the
proper handling offees for work yet to be performed: "[If] the retainer is for work not yet performed,
the retainer is unearned and must be deposited in the firm's client trust account."
51 See, e.g., Maryland AGC v Korotki, 318 Md 646; 569 A2d 1224 (1990) ("'[I]fat the conclusion of
a lawyer's services it appears th~t a fee, which seemed reasonable when agreed upon, has become excessive, the
attorney may not stand upon the contract; he must reduce the fee.' [citing Matter ofSwartz, 141 Ariz. 266, 273;
686 P.2d 1236,1243 (1984»).").
(
52 See Holmes v Loveless, 122 Wn App 470, 478 (2004); Cotton v Kronenberg, III Wn App 258, 272
(2002) ("a fee agreement that may seem fair to a client at the time that the agreement is signed must be reevaluated
under the applicable rules when subsequent events alter the circumstances of the relationship"); Arens v
Committee on Professional Conduct, 307 Ark 308; 820 SW2d 263 (1991) ("If a lawyer charges a reasonable
retainer and is retained for the purpose ofproviding specified services, but never performs those services, the fee
charged would become unreasonable.").

Grievance Administrator v Patricia M. Cooper. Case No. 06-36-GA -- Board Opinion Page 29
In short, while these ethics opinions were each thoughtful and thorough, they also bear (
witness, as do oUfopinions, to what has beena somewhat confused and evolving area ofthe lavv.
It is now clear that fees paid in advance for services to be performed in the future are
refundable ifunearned. 53
And use ofthe term "nonrefundable" in a fee agreement providing that a
sum paid will be earned by the rendering oflegal services does not convert such a deposit (advance
fee) into a general retainer. 54
The requisites orproprietyofa true or "general" retainer are beyond the scope ofthis opinion.
At a minimum, however, the lawyer must be able to prove that the client clearly understood that the
fee is for availability only and that the client will be billed separately for any legal work to be
performed. "The client's understanding ofwhat the retainer is buying is crucial.,,55 One court has
adopted the following approach, which we consider helpful to all parties: "unless the fee agreement
expressly states that a fee is an engagement retainer and explains how the. fee is earned upon receipt,
we will presume that any advance fee is a deposit from which anattorney will be paid for specified
legal services.,,56
We would add that just as important as the label (e.g., "gep;eral retainer" or
"engagement fee") is the clear disclosurethat the fee is for something otherthan legalservices, and
the explanation of ho:v the fee is earned. Hybrid "retainers" defeat clarity. Therefore, if a fee (~. ,
agreement charges one sum purporting to be both a general retainer and an advance fee (i.e., a fee for
services to be rendered), then, upon early termination of the representation, the lawyer's fee is
measured by the contract rate for rendering services and the balance is to be refunded to the client:
The $4,000 paid to respondent was clearly for legal services to be performed. As such, it is
a fee paid in advance - not a general retainer - and belongs to the client until earned in accordance
53 Effective October 18, 2005, MRPC l.l5(g) was amended to provide as follows: "Legal fees and
expenses that have been paid in advance shall be deposited in a client trust account and may be withdrawn only
as fees are earned or expenses incurred." This effectuated a clarification and not a change in the law, See, e.g.,
ABA/BNA Lawyers' Manual on Professional Conduct, 41: 2002--2003 (discussing the amendment to the Model
Rule ofProfessional Conduct identical to amended MRPC 1.l5(g): "The ABA made clear when it revised Model
Rule 1.15 in 2002 that advance payments of fees must be treated as the client's property until earned."). Also,
Formal Opinion R-7 (interpreting the former MRPC 1.15(a)) and Informal Opinion RI-69, as well as other
authorities discussed above, show that the amendment simply restated existing law.
54 See n 10, supra.
55 RI-10. Cf MRPC 1.5(a)(2) (likelihood that other employment wil1 be precluded must be apparent to
the client).
56 In the Matter ofLarry D. Sather, 3 P3d 403, 410 (Colo 2000).
(

Grievance Administrator v Patricia M. Cooper. Case No. 06-36-GA -- Board Opinion Page 30
( with the fee agreement. The fact that the agreement says "NO portion of the MINIMUM FEE
referred to above is REFUNDABLE, to- the client, under any circumstances" does not change this.
Such language does not by itselfestablish that a fee is earned, especially when accompanied by other
language that clearly states, "This MINIMUM FEE shall entitle Client to a combined amount of
Attorneyand Legal Assistant time computed in accordance with the hourly rate set forth in Paragraph
3 below. Respondent owed her client a refund under the fee agreement drafted by respondent, and
under the Rules ofProfessional Conduct. The failure to refund these unearned fees was a violation
ofMRPC 1.16(d) and MRPC 1.15(b).
Our survey of the development of the law from the perspective of a Michigan practitioner
convinces us that our conclusions regarding misconduct are sound, but that, as the Administrator
suggests, the consequences for misconduct are appropriately tempered in this case. We cannot deny
that the law and ethics opinions in this area have afforded something less than coherent guidance.
Indeed, it was only recently, and only in a memorandum to the Michigan Supreme Court, that we
expressed the view that there really is no such thing as a nonrefundable retainer. 57
Though we find misconduct, we conclude that it is appropriate to enter an order imposing no
discipline under the circumstances ofthis case which include an attempt to resolve the matter with
a partial refund, consultation with ethics advisors, and review ofethics opinions. Respondent shali
pay restitution to her client in the amount of$I,385.75, the balance ofthe unearned fees.
Board Members William P. Hampton, William L. Matthews, C.P.A., Billy Ben'Baumann, M.D.,
William 1. Danhof, and Andrea L. Solak concur in this decision.
Board Members Lori McAllister, Rev. Ira Combs, Jr., George H. Lennon, and Hon. Richard F.
Suhrheinrich, were absent and did not participate.
57 September 29, 2005 ADB Memorandum regarding clarification of lawyers' duties in handling
"retainers" or fees paid in advance, p 12.

(
Risk Management
and
Your Practice
JoAnn Hathaway
Slale Bar ofMichigan
PMRC
Managing Your Risk
___--....---.....--......---il---......--_----io---......---_--...---.....-
Start by recognizing the importance ofgood
Risk Management
Risk Management
*- The human activity which integrates
recognition ofrisk, risk assessment,
developing strategies to ~anage it, and
mitigation ofrisk using managerial
resources.
(
1

(
Steps in the RM Process
~. 1. Establish the context
Jl. 2. Identify the risk(s)
~ 3. Assessment ofthe risk(s)
J:l: 4. Treat the risk(s)
~ 5. Create mitigation plan
J:l: 6. Implement the plan
;:: 7. Review/evaluate the plan
MALPRACTICE
INSURANCE
Don't under estimate the value of a lawyers
professional liability policy.
LPL POLICY FOR
LAW OFFICE OF JOHN SMITH
(
2

A GUIDE TO HELP YOU
;li The ABA Standing Committee on LPL publishes
a book entitled "Selecting Legal Malpractice
Insurance." It provides easy-to-understand
information about malpractice insurance policies,
a glossary ofterms, insurance policy checklists, a
pull-out comparison chart to help you choose a
policy, and a state-by-state listing ofmalpractice
insurance carriers. A real deal for $15.
Product Code: 4140043
LPL STANDING
COMMITTEE ON LAWYERS
PROFESSIONAL
RESPONSIBILITY
2000-2003
Profile ofLegal Malpractice Claims·
Claim Frequency by Practice
Area
~ 20% PI - Plaintiff
~ 16% Real Estate
J*. 10% PI - Defense
~ 10% Family Law
J*. 09% EstatelProbate/Trust
(~
3

Claim Frequency by Practice
Area
(
J(~ 08% Collection
~ 06% Corporate Formation
l# 04% Criminal
.~ 02% Patent
'0
Claim Frequency by Error
Type
--.---------- --- -- -- ----------- -- ------
Substantive Errors
Administrative Errors
47% 28%
Client Relations
Intentional Wrongs
15% 10%
"
Substantive Errors
~ 11% failure to know/properly apply law
~ 10% inadequate discovery/investigation
* 8% planning errors
If{ 7% failure to know/ascertain deadline
~ 6% conflict of interest
(
4

(
Administrative Errors
~ 9% procrastination in performance
~~ 5% failure to calendar properly
~ 5% clerical errors
~ 4% failure to react to calendar
;~ 4% failure to file document - no deadline
13
Client Relations
~ 7% failure to follow client instruction
{{ 6% failure to obtain consent/inform client
~~ 2% improper withdrawal ofrepresentation
TOP TEN MALPRACTICE
TRAPS
15
5

(
Trap # 1
Failure to "Qualify Your Client"
_w....__... .....__.....__~il-__......__.... wio- io- ...... _
~Consider the following "red flags"
..Is the client in a hurry?
• Clients who expect immediate results are
potential problems
..Is the client dissatisfied with previous legal
• work or never satisfied with your work?
.Is the client concerned (or extremely
unconcerned) with your fees?
16
Trap#1 (con't)
_ ......__...... ---r---t.---.......--...--- w
_- ......__... -
+Is the client's matter outside your field of
expertise?
• Is the client's matter toobig foryour practice?
+Is the client's attitude too positive?
• Is the client determined to have hislher day in
court regardless ofthe cost?
\(
I>'
17
Trap #1 (con't)
• Does the client have little or no understanding
ofthe legal system?
• Does the client have unrealistic expectations?
• Does the client have extreme financial
difficulties?
+Does the client try to teII you how to handle the
case?
,.
(
6

_~"' ~ ""'
(
Trap #2
Failure to Calendar a Matter
il- --...----....--.....--.....--...,;,---__ -
~Criteria for a time control system:
.it must easy to use and maintain;
.it must in writing;
oit must be redundant--protect against human
error
.attorneys and staffmust be involved in the
system's operation;
.standards ofaccountability must be in effect for
each person in the firm
19
Docketing component must
• contain at least one docket date for every open file
(ensuring all files are regularly reviewed);
• accurately calculate and record all deadlines;
• regularly remind staffofdeadlines
• be able to cross check - ensuring no deadline is missed
even ifresponsible person is absent; .
• contain a method to regularly collect, record and
distribute data from docket slips;
• contain a method to ensure all activity is completed
before reminder is removed from systems.
20
Trap #3
Poor Client Relations
l'l. Using simple, common sense office practices most
client errors can be avoided:
• explain clearly (orally and in writing)
• fee arrangements
• purposes for which firm was hired
• reporting procedures
• billing procedures
• client's obligations
tencourage realistic expectations;
21
7

(
-~",--...,;----..------"",-
.maintain good client communications;
+document (in writing) all discussions,
recommendations and actions taken;
.review client files on a regular basis;
+at end ofrepresentation, send file-closing letters
• remember to confirm client's receipt
22
Trap#4
Conflict of Interest and of Matters
--....--....---.....--.....---...--.....--....----....------..--------
~ Common and dangerous conflict situations:
;. representation oftwo parties in same matter;
+representation ofopposing theories oflaw for different
yet similarly situated clients;
• personal involvement in client's business interests;
'3
••••
~
'''';l~'' ~........_
~.,;"';'!!~.'
:,.'. ••••
~~rJ...":
----...------......- .... ---..._-----...--_.----
~ Avoid these conflict situations:
;. serving as a director or officer ofclient company;
;. giving unclear statements ofnon-representation when a
clear conflict exists;
• involvement in mergers, acquisitions and lateral hires
that can cause result in conflicts.
24
(
8

(
Trap # 5
Substantive Errors
~ Substantive errors can include:
.. failure to know or apply the law
.. inadequate discovery or investigation
.. failure to know deadlines
• errors in public record search
~~ Remember to carefully review the work of
all staff: attorneys, paralegals and other
professionals!6:L~
...'.....•.... ""
Trap # 6
Improper Involvement in Client Interest
~Involvement can take several forms:
tacting as officer ofa client company;
+investing in client securities;
.being involved in one-on-one business deals
with clients; .
+accepting stock from a client in lieu ofa fee;
.soliciting investors on behalfofclients or their
business interests.
26
Trap No.7
Lack ofAdequate Work Documentation
.Good documentation should include
• all documents prepared/received by attorney
• phone messages/memos logged for future
reference
• daily filing procedures to ensure all that no
information is lost and is available when needed
• office files should be reviewed regularly to
avoid missed deadlines and to ensure system is
working as intended
(
27
9

Trap # 8
Fee Disputes
- ....--...,;,---.....--......---...--.......--_._-._--.......--....------....-
~{ These disputes arise when a client refuses to
pay theaUomey's bill; to avoid this:
• discuss your fees as well as the scope ofyour work
with client thoroughly in initial interview;
• provide a written estimate oftime, fees and
expenses to be incurred
• use written fee agreements and retainer agreements
"","""".1 "_""d.~,~
2.
~ Other ways to avoid fee disputes:
• set your fees at reasonable levels;
• document your workfor the client, including phone
calls, meetings, research and court time;
• bill client at regular intervals and provide detailed
information about all charges.
29
Trap # 9
Inadequate Management Qf Staff
---:----------~---... --~--_. __....------..--...-----
~ Failure to recognize responsibility for
directing and double-checking your staffs
workcim result in malpractice nightmares!
~ Hire good people -- office procedures are
only as good as the personnel implementing
them!
~ Training/management ofstaff is critical
elements in malpractice prevention!
30
(
10

_~ "'
__
~ Communication among staffis critical
factor in staffmanagement.
• holding regular firm meetings for all statT is a good
way to foster firm-wide awareness ofdeadlines and
their consequences.
3'
Trap #10
Unwillingness to Believe You Could be
Sued For
""__~__
Malpractice
~"'
-"'-__"'M il- ..... _
~ Recognize your malpractice risks and put
effective procedures in place now -­
preventative maintenance can lessen your
chances ofbecoming a statistic!
32
(
11

(
Go ;91e S8M Search
Tips and Tools from the
PMRC
All products and websites In this presentallon aTe for leference and
10 assist In your research. No endorsements are ImpHed.
SBM website now features Google search capabilities
Use this new feature to find what you need quickly
Narrow search area by using drop down menu
Slale Bar of Michigan Web Slle
!!!!p':/Iwww.mlchbar.org
((Ill
, '" " .. ;- , .
. .'-~ ~rtit :.• p~H~.r·~~~.-.:·.I,~!tKt~.;i:~l~\t.: I/t#i~.,.~;.".:.~.'~~.:.@." .':.S:!
5sjfS~E~]1~~~
"";:.,'.
r~~!.!;M~~
··~;:;~d~~~
)h1:l1llf.·'.:~-~""
. 'Il~~liil"
.'~;";~.~'.;
.·~,::)'f"',,:
:..;,;I"~~
~. ;'.
·IMOIlJ:~:U;~IC.liiii\!i'
Iri~'?iJ~:.~;t~j'n~;I;;;:~
.ft~~f*:iPnjA·.~r"!0:."· .
,': ":lrh;'Etrnt!:di~P9tl~~:"
PrirrimRut1I;illeW
Check here often to see what's newl
Watch for our redesigned PMRC website coming
soon
Newest Operating System from Microsoft
Vista has versions
- Vista Home Basic
- Vista Home Premium
- Visia Business
Visla Ultimate
Buying at a store only option will be Vista
Buy on-line, business level machine - Window XP
still available
Vista Capable
- PC meets or exceeds requirements to deliver the
core Vista experiences
Vista Premium Ready
- PC meets the requirements to deliver the full range of
Vista features
- 2 gig RAM, upgrade video card
1

c
~ METADATA ASSISTANT
.SfI...http://www.payneCOnsulting.com/Products/metadat
~ aretail!
.:.'"",'-:...,.....
Works very well on Windows XP
New file formats
New file extensions
- Word-docx, Excel-xlsx, PowerPoint-pptx,
Access-accdb
New formats not compatible with older versions of
Office
Download and install compatibility pack from:
- ll11p:lllinyurl,com/352vgv
• ":':;A ,.~" w."!>:;.' .'.'"
·,,,...,.It.,,,)h·,':·,"1 ~::
\i).'i,.!'riBn
:....,..tr".~~
I'.,..;.., 1- I:0,..,;"~J ....:.eo. '" .... ,"~ •• ".,~..""J.......,..'r4 ....,.\' ........ i"'!.:.t-t
Mn.....·~ ,~ ,.' !:-':""''''~ ""i"o:~."",,,., '"", u. "~""""''''''r.' ••-:..".

(
BLACKED OUT DATA IS NOT REDACTED
Covering data in black does not remove it
Hidden data can easily be revealed
Use redaction tools from Microsoft or Adobe
OR as a low tech solution. print mark out and scan
Office 2003 Add-in: Word Redaction
Yl.2'~
BrlDt DnuipUm
l ..U. WVd~.J
;Q="Ill:~J
f:t,:rl'ml
h~.!'I"~~ I: 10'1-.:" M
""..... v........ "'....,... "'.-.If" n~ ,
100:":11, m"~ldttl.'\ ,"..dI:t:..no. t-!Ir-H'IN:
ft elf...
~..Ill • ~........~.'u".......... :1 "'"
a"":11'

Do You Have a Disaster Recovery"Plan?
How much data can you afford to loose?
How many days work can you afford to
duplicate?
Can you duplicate the lost work?
How much time can you afford to spend
in recovery?
Are your daily data backups
- Automated?
- NOT person dependent?
Do you have on-site backup?
- External HD, CDs, Tepe
- Great for immediete recovery from "smali
disasters"
- PC or server faliure
Do you have off-site backup
- Web based
Great for recovery from "major disasters"
- Building fires, flooding, long term power
loss
~ ONLINE BACKUP
oI:-_":h:tt:P~:/I=w~w~w:.:ir:o=n:rn:o=u:nta=in~.c:o=m~/:d=at:a:p:ro=te:c=ti:p:n/~---.
.6.IRONMffiINTAlt'l'
http://mozy.com/
" ••IUhth,!ueklllllluyln
'hllWDdcl
(
CONSIDER CONSISTENTLY USING BOTHI
to')
( \'
'> '
~ ADDITIONAL BACK-UP CONSIDERATIONS
Configuration - application backup
- Where are the CDs with all your software programs
on them?
- How long does it take to Install and conflgure on a
new machine?
- Did you bUy your software without CDs?
• Do you have the Information you need to reinstall
applications without the CDs?
Don't forget your serverl
Do test restores for reliability and ability
- Do you know how to restore data from your backup?
Backup to Anywhere You Specify
http://www.crashplan.com
Encrypt Your Laptop
What if your laptop is stolen?
- hltp:/Iamericas.utlmaco.comlsafeguard easyl
CompuTrace hltp:/IwvNI.absolule com
• Software contacts the monitoring center and reports location USIng
the Internet
• Ability to remotely wipe your laptop
LoJack for Laptops ~.JQj§ckforlaplops.com
(part of Absolute)
Allows you to send a signal that will destroy the flies on the
laplop
~h"",..'lI~."~UI••
IlICft 1t~,l:I~a linUpllIlM
\hUlCftl;"'Wt~1f;li}
(I ~. Ii
Win "M",l\tlul
nownlo3d FIfO" l-rlal
_..",..........--...,....,-"'!""'o._~-~.__~__.---.____
Use the computers you know and trust to back up
your files
CrashPlan software will back up your documents to
the computer or server you specify
Cheaper than on line services. and you know
exactly where your data is stored
Remember you are totally responsible for the
functionality of this system
(
4

(
IRON KEY
https:/Iwww.lronkev.com/
,. USE YOUR PHONE TO SEND E-MAIL
~Vi:! . .!:!lli!:/lJott.com
01 r~-J-o-tt--:-- ..~-
...,-.,..-..----..•,,-""-
.. -".,,-,.~-.,,-.""-b!.-~-.,,-.~-.,.-,.~-'
Gel Morc Done Every Day!
. (""" '''~_'b'
"=:'r=fOll4'/'"
,~ ~~lt"r."·'\Ioboror:l'C""r.W'.lv.1';'
..".,.., tJr1:"Sfr,l~I/'.llo ::llIIot"""I.~J""'I~
..,1'........ ~.. ..••.•:1(.71. ~~..1I" 1rho. ~';
'lotI.
Encrypted flash drive
Save passwords and websites
Use as additional backup
Secure in case of loss
10 login attempts will cause contents to "self
destruct"
!~~!.tl'::'.~; ':'.!."":'.'!""' :'!.H,~ .~!!.~., 1~."
..........~- .....__ ...-.. V"--~._- ........ ,."
Send e-mail by making a phone call
Sends transcription
- And sound file with actual voice message
- Sends copy to recipient and sender
Currently Freel
Easy to set up
- Integrates with your e-mail address book
PROTECT YOUR PASSWORDS
ROBOFORM
www.roboform.com
Rules for stronger passwords
- Longer=Better
- Letters and Numbers =Stronger
Roboform
Remembers passwords
- Fills in web forms
- Generates random passwords
Roboform2Go for thumb drives ­
encrypted
$30 for unlimited password storage
CONTROL YOUR E-MAIL
bttp;/Iwww.mailitsafe.com
Free two week trial
Integrates directly into your email
- Choose when to use it
Encrypt and password protect your mail
Sent and want to get it back?
Confirm that mail has been delivered and opened
leg.I
buy/teo
h.,r";.'~n.I• .......,••.~ h. V~"f,l:",·.lrr ~., ,'II':"J. :-.~~~: ;:,m~i' ·;....i:
:~"'." r"'~::' '!!~.>"I:I;!:.., ~... ~ I' !.:II. !~:-' ;'~~ 1

ON-LINE MEETING'SCHEDULE
http://www.meetingwlzard.coml
DO YOU TYPE WITH LESS THAN 10 FINGERS?
CONSIDER DIGITAL DICTATION
http://www.nuance.com/naturallyspeaking/
(
Simple to use.
No downloads requlfed.
Frc~b••jc.al"lllc,
""'.. t~;.,,,"~h'·':11.~... ~,".. cl,,,,
~~r~·;.,I~~~~:t.~:·;.:~\;;;~';':~~~1~~~..
Efficiently allows you to schedule meetings without
endless games of phone tagl
;'::;~';::._-,~..... ···~~~·:;i;;::;i:'~~~~~~:Z;;
tiSi I; .. ~ ,~r::'=:d~~.lId
11Iii Ii ;,l~:~~~~rnt.
".. ·"·t(~!i.O?·" Ii' "'30:9;';1"'"
!i
l i
..r:~~::~~.~:l¢j~\'io\iliijC::::;"'......._~
All products and websites in this presentation are
for reference and to assist in your research. No
endorsements are implied. .
INCREASE YOUR EFFICIENCY
Nuance Dragon Dictate
http://www.nuance.comlnaturallyspeakinglhomel
Wireless headset for your phone system
Examples:
Plantronics CS55 Wireless Convertible Headset
Try www.headsets.com for pricing
All in one headsets allow you to flip a switch to
change between digital dictation and telephone
Use in all applications
Increase efficiency
Greatly improved from earlier versions
High end versions not necessary
All in one
(
6

(
~
~ RESOURCES
~
~. ABA Law Practice Today
• htlp:llwww.abanel.orgllpm/lpUhome.shtml
Subscribe to this free Webzlne
ItJ\ ~~,'.'e;'~~~,~~~~~~~~~
LawPracticeTODAV
~ ABA GPISOLO
, http://www.abanet.org/genpractice/
~
~.
~---O--=--=--"'7""~------
American Bar Association
-- Defending lIbrly, Punuinn Ju,licc--------
Search: I.......
GPISolo
ADA UML'I'';1I1 Prts;Ut" Solo &. Smllll rlrm Dlvlllan
11;; cu!,;; .49,i !1:"OL'p f.\'(h!£u'~ql dlriirntrd to Ihr.. :;r.~d.1 flf
gi.:l"rtllll:artitinll!!:'s. 50[1'1 !;r.cf sm~1l I:

~ EPIC Online Guide 10 Practical Privacy Tools--
, hUp:lleplc.org/privacy/lools.hlml
'r-~_-_.-_)---,-
.....-..,,- ....-...-.....-....-...,-
UICOIlu...tl....
•• r...clkIIPrhlC)1DOIk
01 ,~,_ •."""--,,~,-,,,,-,,~
....----.I
._~~:..o;=.=.-:::~'." ~. "H"""''''-. ''''.'
How do you protect yourself when using the
Internet?
This EPIC web page links to services that allow you
to do almost all Internet activities without leaving
traces of your activity behind.
COMPULAW COURT RULES
http://www.compulaw.com
Deadlines on Demand
https:/Iwww.deadlines.com/Deadlines/
DEADLINES "" 'L~ I':"",,, 1..1l.11I:".U:n......'."f.ll"u :'>r,....
~~~2~ -~ .. : '
"""",lJ".. ~" J...... , ,C.1 It.> 'rllll~(1 r,.;;;; 110.. ,,~.1, " ..~ ........."''''..oil':......... I~I.'...,""".-'.~. :=.
=t:I::~~::~r~·.,.,""·u ,--.-.--,..J~
~'''I''''...,u,··r.I:ao!'C''''t::,t.lI.i......N r....""·' =~-1
~~::~::~~~;~:.~':~~:J.~~:,~ r- :=-:::=1...2....,
1,_.....T............. CooII:I_ll:rl;ooMorl i'~:"'~ ~,,_,,:..I"Ict""""·",........n.,vt~_ C_l\Hl.....;oOllW'"
t .. ,..~.:..11..._ .. ,;11,,_:.'"...... /I&

(
Try Online Fax Services
Send and receive faxes from anywhere you have
Internet access
Services are secure, private and simple to use
May allow you to eliminate a phone line and the fax
machine
Check these options
- http,lIwVJv/.myfax.com
- hltp.llwvNI, efax.com
- hltp./IvNIW greenfax.com
- )]'!'!p:/IW\w,.pneb0ii.9.9I!l
- !l!.!pjlv"!Yf...@JlJ9J.,L>;,.9Q!!!
~~
~
~. IFYOU
Don't Use Illegal Software
- Buy academic versions of software to use in your
office
Buy a single license and install muIllple times
- Find software that is free for personal use and you
use it on your business computer
The Business Software Alliance (BSA) may
- Show up with a U.S. Marshall and immediate exparte
authority to inspect your computers.
There is no sympathy or if you are In violation of the
copyright law when Inspected
- The potential liability for each copyright violation is
$150,0001 Average out-of-court settlement is $80,000
Solution
Conduct annual software audits
- Keep all licenses in a central location
Back up your licenses, electronically or on paper
I I'.
DON'T Miss a Court Date Because
You must know how to run critical reports yourself
Be sure all the standard procedures are well
documented
Avoid staff cheating and embezzlement by knowing
how to double check all accounting activity
The e-mail notifi
filter
- Whilelist the domain of the courtl
- Go here for Outlook instructions
• .b.!tH.;!l!:u.n?l.!!:.~.g.g.YJ,P.QJ.l}lflJ1lQ.Y.t!.Q.~..M.!R~lqV.gt1.1.Q.§.Q.?.,!Jtm
9

(
Send electronic. · documents for signature that have.
been ,converted to PDF and locked down
Prevent your client from altering th~ docume~t pribr
to signinga~d returning to you, ." . ". .
Prevent your client from taking the will you created, :
changing the nal]les .and creating a will for his
brother,'cousin, neighbor, all with your name on
theml' .
('
, '
Contact the PMRC:
,. 800-341-9715
- pmrcHeloline@mail michbar.org
Contact Diane Ebersole
- 517-346-6411
- dehersole@maiLmlchbar.erg
(
10

Frequently Asked Questions on the
State Bar ofMichigan Ethics
Helpline

F .f' "-' 'IN'''' ."'D' ,..... IN".roG"'" C""'L-"}'"'E'-'''N'"T'
l' .1 ..L I.J )JJ i (....j r..,.:J.j ..J ..:.:·~~:L.J. ! ',.1' i
.... 'S'";
: ...)
• Solicitation MRPC 7.3
"A lawyer shall not solicit professional employment from a prospective client with
WhOlll the lawyer has no family or priorprofessional relationship when a
significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The
term "solicit" includes contact in person, by telephone or telegraph, by letter or
other writing, or by other communication directed to a specific recipient, but
does not include letters addressed or advertising circulars distributed generally to
persons not known to need legal services ofthe kind provided by the lawyer in a
-- _. -
particular matter, but who are so situated thatthey might in general find such
services useful, nor does the tenll "solicit" include "sending truthful and
nondeceptive letters to potential clients lalowntoface particular legal problems"
as elucidated in Shapero v. Kentucky Bar Ass JnJ 486 US 466, 108 S Ct 1916; 100
Led2d 475(1988).
f\,
../-'\..
r--\

'\
What's Appropriate
• Direct mail solicitation OK; in person or
telephonic solicitation not OK
. • SBM Ethics Opinion RI-074 .
• Ifno response, cannot follow up with phone call
• Using public records to create target mailing
list?
• SBM Ethics Opinion RI-193 - OK
• Recent Ohio Court rule

Advertising - "Pit bulls" and
Imaginary Partners
• MRPC 7.1 & 7.2
. • Michigan -- not much case law
• Variance among states'
• New York and Florida -' strict rules
• Florida lawyers· disciplined for. advertising identifying
them as "pit bulls."
• u.s. District Gourt recently declared that some ofNew
York's rules are unconstitutional
f"\
;",\,
r\

,......-"
~~
No misleading or confusing
communications
• Ethics Opinion RI-246
• Can't infer multiple offices ifnone
~ Ethics Opinion RI-241
• Can't infer associates if
you're the only lawyer
>- Ifyou don't have partners,
you can't pretend you do.
• Matter ofKarlena Zachery,
No. 2007-3 (MA, 2007)
• Zachery was a sole
practitioner who held
herself out as firm:
"WilliaIns & Zachery."
Listed two other attorneys
as "ofcounsel" w/o
knowledge or pennission

Pl' ,r,/' or
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• CONTACT WITH COURT
• MRPC 3.5 (b) Sending a letter to the court on a
substantive issue and copying the ·other attorney
may bea violation - RI-243
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Contact with Corporate
Employees
• Former employees ofcorporation - very complex
issue, Slnith v. Kalamazoo Opthalmology, 322
F.Supp.2d883(WD. Mich. 2004)
• Evolving exception for contacting corporate
counsel ofopposing client .. . ?
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Reporting Attorney Misconduct
• MRPC 8.3: When are you obligated
to report?
• Two part test:
• Significant violation ofthe rules
• Violation raises a substantial question as to the lawyer's
hones~y, trustworthiness or fitness to practice law
• Ifclient confidence and secret, need client consent to
disclose

Reporting Attorney Misconduct
• What behavior meets this test?
• Converting/mis·appropriating funds
• Serious neglect ofcases and failure to remit
settlement proceeds
• Failing to communicate a settlement offer (but
cannot instruct client to convey settlement offer
to opposing party) Ethics Opinion RI-1 71
• Continuing to practice after suspension
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Reporting Attorney Misconduct
Remember that you can report
any perceived misconduct so
long as doing so does not violate
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Rule 1.6 pertaining to client
confidences and secrets.

Waivers ofLiability
• Cannot ask a,party, or agree on behalfofa
party, to waive their right to file a request for
investigation with the Attorney Grievance
Commission regarding any attorney's ethical
conduct. Ethics Opinions RI-88, RI-232, &
RI-257.
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C:oJnflic:ts:
• Most conflict questions are governed by
MRPC 1.7, 1.8, 1.9 & 1.10
• Always a fact driven inquiry - very few
existing ethics opinions "on point" because
the answer is dependent on the specific facts

Resources to help you analyze
conflict questions
• Practice Management Resource Center
• www.michbar.org/pmrc/resources/client
relations/conflicts ofinterest/forms
Ethics Helpline - 1-877-558-4760
John Allen's chart - "Conflicts ofInterest - The Basics i ,"
Michigan Bar"Journal, Jan. & Feb 1999 (available at
www.michbar.org/opinions/ethics/ethicsarchiveecfm)
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Imputation
• Do not forget the imputation wrinkle
• Your partner's/associate's conflict under
1.7,1.8(c), 1.9(a), or (c), is imputed to you
• Screening only worl(s in limited
circumstances

Always remember ....
• There is always a practical issue to consider
in conflict questions
• Even ifyou believe there is not a conflict
under the rules, ifsomeone thinl(s you have a
conflict, you have a practical problem
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• MRPC 3.3
•. Approach differs depending on
whether a civil case or criminal case
•
• Usually, in civil situation, the duty ofcandor to the
court and administration ofjustice, trumps duty to
client MRPC 1.6(c), Ethics Opinions RI-209 anq RI
151
• But, proc'eed with caution
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Client Perjury ­
Criminal Matters
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• Metadata - can you look at it? Are you liable ifyou don't
strip it?
• Lawyers did not show up ata settlement conference because
the SPAM filter ate the court's e-mail setting the conference
date. Attorneys sanctioned. Pacev. United Servs.
Automobile Ass 'n 2007WL2022059 (D. Colo. July 9)
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• Blogs, Listservs, Google
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New Developments
• Cooper decision regarding retainers
• Has the "non-refundable retainer" died' as a result
ofthe Cooper decision?
• Result ofCooper on placement offees (general
business account v client trust account)

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• Quality oflife issue
.• Resources on web - PMRC & Ethics pages
• Required ethi~ally, to keep for "reasonable"
amount oftime
• Must give notice to clients before destruction
• May be statutory or regulatory requirements
• Check with malpracctice- carrier
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More Record Retention...
• Key to making record retention easy is the
retainer agreement
• Put client on notice that they can retrieve a copy
oftheir file within a certain amount oftime after
the representation concluded, after which the file
will be destroyed wlo further notice
* MRPC 1.15 ~C1j1)ck:J(
• Must keep or return original client documents

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A Little More Record Retention
• Want to make recordretention really
easy? ..
• Go paperless!
• Scanners andthe right computerprograms can make
your life so much easier and your practice much more
manageable. You willalso save on storage fees!
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Confidentiality After the Client Dies
• Privilege survives death, Swidler & Berlin
.v. U.S., 524 US '399 (1998)
• MRPC 1.6 - lists exceptions
• Client consent - personal representative?
• Court order - subpoena not good enough
Ethics Opinion RI-1 06

Resources
For informal direction on pertinent rules and opinions,
call the Ethics Helpli!1e during business hours Monday
thru Friday at 1.877.558.4760
For online research ofrules and opinions, go to
www.michbar.org/ethics
To submit request for a w~itten ethics opinion from
the Ethics Committee, obtain information about how
to do so bycreviewingonline information at
www.michbar.org/ethics' .
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the legal process.
A. Do not blame the legal system or those in it for results obtained.
(
8. Avoid frivolous pleadings or superfluous ones and withdraw those
that are discovered to be clearly without merit.
3. Competence:
A. Keep current in areas you practice.
B. Refer matters when not competent.
C. Be committed to client=s cause, but give objective and independent
advice. Avoid giving client false expectations.
D. Advance client=s cause expeditiously and economically. MRPC 3.2.
E. Keep clients well-informed and involved in the decision-making.
4. Integrity:
A. Do not misstate law or facts. Always be candid with the court.
MRPC 3.3 (a)(1): false statements of material fact or law
(2): failure to disclose material fact
(3): failure to disclose controlling law
(4): offering false evidence
c'..
B. Do not bring frivolous claims or lawsuits. MRPC 3.1.
C. Do not attempt to delay or harass or drain resources of opposing
party.
D. Avoid abusive and excessive discovery and comply with theirs.
MRPC 3.4 (d).
E. Work to resolve disputes when possible.
F. Refrain from prejudicial pretrial pUblicity.
MRPC 3.6
G. If you advertise, employ only truthful advertising.
MRPC 7.1: Nothing Afalse, fraudulent, misleading, or deceptive.@
C', /

I. H. Avoid solicitation.
MRPC 7.3: No direct contact.
Solicitation does not include sending truthful and
nondeceptive letters to potential clients known to face
particular legal problems. Shapero v. Kentucky Bar
Association, 486 US 466; 108 S Ct 1916; 100 L Ed2d 475
(1988).
5. Participation in pro bono work: public service, public education, charitable
work, access to justice. MRPC 6.1
AThe way in which we resolve our disputes defines part of the character of our
society... @Alnspirational Statement on Professionalism,@ Georgia Supreme
Court, State of Georgia Directory and Handbook.
Professionalism is a matter of attitude.
The law as profession is always more than a business.
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I

The 10 Commandments
To Avoid Discipline and to be a Good Attorney
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1. Communicate, communicate, communicate.
a. Communicate basis for fees.
b. Communicate strength ofcase.
c. Return all phone calls.
d. Keep client informed ofprogress or lack ofprogress ofthe case.
2. Set up ofproper law office.
a. Have a good file system.
b. Prepareall necessary standard forms.
c. Have a phone tracking system for phone calls.
d. Have proper bank accounts in place.
e. Have a tickler system in place to track all deadlines.
f. Develop staff guidelines for contact with potential clients.
g. Set up a conflicts checking system.
3. Handle money correctly.
a. It is not yours until you earn it.
b. Set up client trust accounts and understand the IOLTA system.
4. Handle your cases with diligence. (Avoid neglect)
5. Avoid misuse ofalcohol and drugs. (Seek help when necessary)
6. Know your legal intellectual limits. Don't undertake cases you cannot handle
competently. Keep up with developments in the law.
7. Respect all parties inthe legal system. (clients, opposing parties, attorneys, the court.)
8. Do no evil. Do not commit crimes.
9. Cooperate with the Discipline system.
10. Maintain balance in your life. Do pro bono work.