Amending preconviction appeals rule raises concerns
DETROIT (BridgeTower Media Newswires) — The Michigan Supreme Court is considering amending MCR 6.005 to clarify the duties of attorneys in preconviction appeals.
Justice Elizabeth M. Welch concurred, saying while she supports a higher level of responsibility than the current rule, she has concerns that the proposed amendments might not get to the root of the problem — and may have unintended consequences.
She lined out several examples, including:
“Can an attorney, who has only been paid to handle trial court proceedings and whose client is unwilling to pay more for the preconviction appeal (but who is not indigent), withdraw as counsel and notify the Court of Appeals that the lawyer or the defendant will not file a response?
“What if an attorney petitions the trial court for extra funding to handle an appeal for a retained but poor client and the trial court rejects the request? Is that attorney still required to handle the appeal?
“Can an attorney (whether court-appointed or retained) make a referral to appellate counsel and opt out of handling the appeal even if the client decides not to hire the recommended appellate counsel? Would this be a basis to notify the Court of Appeals that the defendant has knowingly elected to not file a response?
“Can an attorney, who prefers to focus on trial-level work only, make it clear in an engagement agreement that the attorney does not handle appeals and will refer such matters out if needed? If so, would such an agreement be enforceable in light of the proposed amendments?”
She also noted that she was uncertain how the proposed rule would “mesh with MRPC 1.1, which states that an attorney has an ethical obligation not to litigate matters he or she is not competent to handle, or with MRPC 1.16, which discusses an attorney’s obligation to withdraw in certain circumstances and discretion to withdraw in others (including a client’s failure to abide by payment terms in a retention agreement).”
The proposal will be considered at a public hearing. Comments are welcome, and can be made online at ADMcomment@courts.mi.gov or by mail to: Office of Administrative Counsel, PO Box 30052, Lansing, MI 48909.
Registration deadline today for virtual semianr on Lawyer Trust Accounts
The State Bar of Michigan is hosting its latest Lawyer Trust Accounts Seminar: Management Principles & Recordkeeping Resources, offering presentations on the ethical management of lawyer trust accounts and the effective use of forms, checklists, and other recordkeeping resources. It is an opportunity for lawyers to receive practical information regarding MRPC 1.15 and 1.15A.
This virtual seminar will take place on Tuesday, June 22, from 1:15 to 4:45 p.m. The cost is $25 for lawyers, law students, and legal professionals. Registration is open until 5 p.m. on Friday, June 18.
To register, visit www.michbar.org/trustaccounts. For questions, email ethics@michbar.org.
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