Opinion
Orders Entered February 24, 1998.
On order of the Court, in response to proposals from the Grievance Administrator and from the State Bar of Michigan, this is to advise that the Court is considering a proposed amendment to Rule 1.5 of the Michigan Rules of Professional Conduct. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposal. We welcome the views of all who wish to address the proposal or who wish to suggest alternatives.
As whenever this Court publishes an administrative proposal for comment, we emphasize that publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
This order contains two versions of a possible amendment of Rule 1.8 of the Michigan Rules of Professional Conduct. Persons commenting should not assume that the choice is simply between these two, but should also share any additional suggestions and comment generally on the advisability of such a rule amendment
[The present language would be amended as indicated below:]
VERSION A
RULE 1.8 CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS.
(a)-(j) [Unchanged.]
(k) A lawyer shall not have sexual relations with a current client, other than the lawyer's spouse, unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced. For purposes of this paragraph:
(1) "Sexual relations" means sexual intercourse or any other intentional touching of an intimate part of a person or causing the person to touch an intimate part of the lawyer.
(2) If the client is an organization, any individual who oversees the representation and gives instructions to the lawyer on behalf of the organization shall be deemed to be the client. The actions of in-house attorneys who represent governmental or corporate entities are governed by Rule 1.7(b) with respect to sexual relations with other employees of the entities they represent.
(3) This paragraph does not prohibit a lawyer from engaging in sexual relations with a client of the lawyer's firm, provided the lawyer has no involvement in the performance of the legal work for the client.
(4) If a person other than the client alleges violation of this paragraph, and the complaint is not summarily dismissed, the Attorney Grievance Commission, in determining whether to investigate the allegation and whether to charge any violation based on the allegations, shall consider the clients statement regarding whether the client would be unduly burdened by the investigation or charge.
VERSION B
RULE 1.8. CONFLICT OF INTEREST; PROHIBITED TRANSACTIONS.
(a)-(j) [Unchanged.]
(k) A lawyer shall not have sexual relations with a current client, unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced. For purposes of this paragraph;
(1) "Sexual relations" means sexual intercourse or any other intentional touching of the intimate parts of a person or causing the person to touch the intimate parts of the lawyer.
(2) If the client is an organization, any individual who oversees the representation and gives instructions to the lawyer on behalf of the organization shall be deemed to be the client, for purposes of this sub-rule. In house attorneys while representing governmental or corporate entities are governed by Rule 1.7 (b) rather than by this rule with respect to sexual relations with other employees of the entities they represent.
Staff Comment: The Grievance Administrator and the State Bar of Michigan have recommended that the Michigan Rules of Professional Conduct be amended to limit sexual relationships between lawyers and clients. VERSION A encompasses the substance of the Grievance Administrators suggestion, and is modeled after provisions that have been adopted in other states, such as Rule 1.8(k) of the Minnesota Rules of Professional Conduct. VERSION B is a proposal submitted by the Representative Assembly of the State Bar of Michigan.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
|-------------------------------------------------------| | Publication of this proposal does not mean that the | | Court will issue an order on the subject, nor does | | it imply probable adoption in its present form. | | Timely comments will be substantively considered and | | your assistance is appreciated by the Court. | |-------------------------------------------------------|
A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court Clerk within 60 days after it is published in the Michigan Bar Journal. When filing a comment, please refer to our file No. 94-46.