By Lee Dryden
BridgeTower Media Newswires
DETROIT - The Michigan Supreme Court approved guidelines for limited scope representation, just a few hours after hearing from supporters of the emerging practice at a public hearing.
Proposed Amendments of MRPC 1.0, 1.2, 4.2 and 4.3, and MCR 2.107, 2.117, and 6.001, which take effect Jan. 1, are designed to provide guidance to lawyers and clients in unbundled arrangements in civil proceedings. Advocates told justices at a Sept. 20 public hearing that the practice will expand availability of services to those who cannot afford full representation.
The high court took the State Bar of Michigan's recommendation for an amendment that calls for a client receiving limited scope representation to give "informed consent, preferably confirmed in writing."
A second alternative would have required consent in writing, unless exceptions were met. The State Bar expressed concern that such a requirement would create an "unnecessary barrier" for attorneys playing a limited role in cases.
The rules approved by the court also state "a lawyer licensed to practice in the State of Michigan may draft or partially draft pleadings, briefs, and other papers to be filed with the court. Such assistance does not require the signature or identification of the lawyer, but does require the following statement on the document: 'This document was drafted or partially drafted with the assistance of a lawyer licensed to practice in the State of Michigan, pursuant to Michigan Rule of Professional Conduct 1.2(b).'"
The Michigan Judges Association stated in written comments to the court that the anonymity "is in contradiction to an open and transparent legal system."
High court discussion
Former State Bar President Edward H. Pappas told justices that the bar "strongly supports the proposed limited scope representation amendments because limited scope representation or LSR is vitally important to the public, to the attorneys who practice limited scope representation and to our Michigan courts."
He said the expansion of the availability of services is needed as the number of self-represented litigants in Michigan continues to grow.
Pappas said the State Bar studied the best practices of more than 30 states that adopted specific LSR rules. States were nearly evenly divided on the level of disclosure of a lawyer's involvement in preparing documents for self-represented litigants. The State Bar favored the anonymous disclosure eventually adopted by the high court to balance interests of the court, attorney and client.
"Anonymous disclosure puts the court on notice that an attorney assisted with preparing a document," Pappas said, adding that full disclosure could deter attorneys from providing document preparation services via limited scope representation.
"We're trying to encourage lawyers to get involved in representing in limited matters at affordable prices for the clients in this type of limited scope representation."
Justice Richard H. Bernstein expressed concern that self-representation could be more difficult as judges may hold a document to a higher standard if they know it was prepared by a lawyer.
Pappas said attorney involvement leads to more fair results and helps judges better manage self-represented cases. He expressed confidence that judges will rule on the merits of a case rather than if limited help was received on a crucial issue.
"I've always felt that parties are better off with a limited representation than they are with no representation at all and I think that the courts would recognize that going forward," he said.
Linda K. Rexer, retired executive director of the Michigan State Bar Foundation, chaired a State Bar workgroup to help propose the guidelines. She told the high court that limited scope representation "will benefit the public and the courts and enhance access to justice."
Rexer said studies show no more than 20 percent of the civil legal needs of low-income individuals are being met while those with moderate incomes are shut out as well. She said they may be able to pay for limited work or an attorney may be willing to take on a small aspect of a case pro bono.
Michigan is well positioned to combine pro se resources with limited scope representation, Rexer said, citing the successful Michigan Legal Help program.
"I think that this is the time - the need is clearly there," she said.
Court procedures
Also on Sept. 20, the high court adopted the Proposed Addition of MCR 6.008 to establish "procedures for a circuit court to follow if a defendant bound over to circuit court on a felony either pleads guilty to, or is convicted of, a misdemeanor in circuit court." The rule takes effect Jan. 1.
The circuit court will retain "jurisdiction over any case in which a plea is entered or a verdict rendered to a charge that would normally be cognizable in the district court."
Remand to district court would remain a possibility in "certain limited circumstances," including where the evidence is insufficient to support the bindover, there was a defect in the waiver of the right to a preliminary examination, or the prosecutor adds a new charge on which the defendant did not have a preliminary examination, according to a staff comment on the adopted rule.
The rule also states that, as part of a concurrent jurisdiction plan, "the circuit court and district court may enter into an agreement for district court probation officers to prepare the presentence investigation report and supervise on probation defendants who either plead guilty to, or are found guilty of, a misdemeanor in circuit court. The case remains under the jurisdiction of the circuit court."
Published: Tue, Oct 03, 2017
