Lawyer advertising

Date: 7-13-2010

Adm. no.: 2002-24

Rule: MRPC 7.3

Comments closed: 11-1-10

Would add a new subparagraph (c):

Every written, recorded, or electronic communication from a lawyer that seeks professional employment from a prospective client shall include the words “Advertising Material” prominently featured on the outside envelope, if any, and at the beginning and ending of any written, recorded, or electronic communication, unless the lawyer has a family or prior professional relationship with the recipient. If a written communication is in the form of a self-mailing brochure, pamphlet, or postcard, the words “Advertising Material” shall appear on the address panel of the brochure, pamphlet, or postcard.

Order

AGC provisions

Date: 11-1-2010

Adm. no.: 2006-38

Comments due: 3-1-2011

Rules: 8.110, 8.120, 9.110 et seq.

A 71-page order, incorporating for some sections two alternative proposals, to amend the rules relating to professional disciplinary proceedings. In addition to the proposal, the Court has made available a memorandum jointly prepared by the Attorney Grievance Commission and the State Bar of Michigan, and a chart depicting the differences between the two different proposals.

Order - 71 pages

Memo

Chart - another 121 pages

MRPC changes

See Michigan Supreme Court Makes Significant Amendments to the Rules of Professional Conduct at the Michigan State Bar's weblog.

Inspection and acceptance of filings by court clerk

Court rule affected - MCR 8.119 and several others

Admin no. - 2005-32

Issued - 4-27-10

Comments open to - 8-1-10

Several rule changes are proposed to require court personnel to review filings to ensure that they meet the requirements of court rules. The rules affected are noted in the quoted language below.

The other changes are all geared to the addition of the following language to Rule 8.119(C)(1) and the addition of a new (D):

(C)(1) Minimum Filing Requirements.

Before accepting a document for filing, the clerk of the court shall determine that the document complies with the following minimum filing requirements:

(a) standards prescribed by MCR 1.109,

(b) legibility and language as prescribed by MCR 2.113(B) and MCR 5.113(A),

(c) captioning prescribed by MCR 2.113(C)(1) and MCR 5.113(A)(1),

(d) signature prescribed by MCR 2.114(C) and MCR 5.114(A),

(e) the filing fee is paid at the time of filing, unless waived or suspended by court order,

(f) documents are filed in the court of proper jurisdiction, and

(g) if applicable, proof of service is complete and verified in accordance with these court rules.

(2) Return of Documents. If the document does not comply with the minimum filing requirements in subrule (1), the clerk of the court shall reject the document for filing and promptly return it to the filing party, along with the filing fee, if any. The document shall be accompanied by a notice, substantially in the form approved by the state court administrator, that states the reason for the return and, if applicable, the action the filing party may take to refile the document. The notice shall include the name and telephone number of the clerk who is returning the document and the date it is mailed. The court shall maintain a copy of each notice prepared under this subrule.

(3) Filing Date. The clerk of the court shall endorse on the first page of every document the date on which it is received. The date of receipt is the filing date. If a document contains more than one date indicating receipt by the court, the latest date is the filing date.

(4) Submission to Judge. If the clerk of the court has other concerns with the accuracy of a document, it shall be submitted to the judge assigned to the case, the chief judge, or their designee judge for authorization to reject the pleading for filing and return of the document pursuant to subrule (2).

(D) Documents Accepted for Filing; Clerk of the Court Review. The clerk of the court shall review documents that have been accepted for filing and take action in accordance with this subrule.

(1) Review. The clerk of the court must determine that:

(a) the case number, petition number, and case caption on the document are accurate, and if not, the clerk may either correct any errors in that information when the correct information is adequately verified, or take action as required by subrule (2).

(b) any required notice to appear is accurate, and if not, the clerk must take action as required by subrule (2).

(c) the time for filing a document has been met, and if not, the clerk must take action as required by subrule (2).

The clerk of the court may not correct any other perceived errors.

(2) Notification. The clerk shall promptly notify parties of the corrections made or of any action that must be taken by the parties to correct the errors. If the clerk returns a document for corrective action by a party, the document shall be accompanied by a notice substantially in the form approved by the state court administrator that states the reason for the return. The notice shall include the name and telephone number of the clerk who is returning the document and the date it is mailed. The court shall maintain a copy of each notice prepared under this subrule.

(3) If the clerk of the court determines, after review, that an affidavit, default, and default judgment form does not comply with MCR 2.603(B)(2) or that a request for garnishment form does not comply with MCR 3.101(D)(4), the clerk shall not issue a default judgment or writ of garnishment, shall retain the filing fee, and shall either:

(a) return the form to the filing party, accompanied by a notice substantially in the form approved by the state court administrator that states the reason for the return. The notice shall inform the party of the right to file a request for judicial review with no additional fee and that a new form may be filed along with the required filing fee. The notice shall include the name and telephone number of the clerk who is returning the document and the date it is mailed. The court shall maintain a copy of each notice prepared under this subrule.

(b) submit the document to the judge assigned to the case, the chief judge, or their designee judge for review.

(4) If a party files a request for judicial review pursuant to subrule(3)(a) or a clerk submits a document for review pursuant to subrule (3)(b), upon review, the judge shall either allow the issuance of the default judgment or writ of garnishment or enter a written order stating the reasons for denying the issuance of a default judgment or writ of garnishment.

The staff comment states that this proposal is based on the recommendations of a workgroup.

We predict that this proposal will meet with strong protests from court clerks, who would have to take on major new responsibilities in order to meet its requirements.

Update Oct 2010: awaiting conference consideration

Filing time calculations

Court rule affected - MCR 1.108

Admin no. - 2009-30

Issued - 5-18-10

Comments open to - 9-1-10

A minor change to the rule, after reference to weekends, from "holiday" to "day", to account for other days on which courts may be closed. This may well be in anticipation of court furloughs.

M Civ J I 15.01 - Proximate Cause

The Committee proposes to amend this instruction, which defines "proximate cause".

The proposed new wording, with added language in bold:

When I use the words “proximate cause” I mean first, that the negligent conduct must have been a cause of plaintiff’s injury, and second, that the plaintiff’s injury must have been of a type that is a natural and probable result of the negligent conduct.

The explanatory note:

The Committee proposes to amend the definition of proximate cause because, as presently worded, the second component of the definition can be understood by a jury as meaning that the specific injury suffered must be a natural and probable result of the negligent conduct, whereas all that is required is that the injury fall within the category of injury that is a natural and probable result of the negligent conduct. To convey the distinction the committee has added the words “of a type that is.”

Link

Time for filing disqualification motions

Date: March 16, 2010
Admin: 2009-04
Rule: MCR 2.003
Effective: immediate

As a followup to the Court's November 25, 2009 order, it has now adopted deadlines for the filing of any motion to disqualify a judge or justice:

Trial court - within 14 days of the discovery of grounds
Court of Appeals - within 14 days of assignment of the judge or of the discovery of grounds
Supreme Court -

• appellant - with the application
• appellee - within 28 days of the application or within 28 days the discovery of grounds

Link

Amendments to SCAO forms

This page is where the amendments are found.

An example:

MC 326, Notice of Hearing and Motion: Several court employees have questioned the need for a proof of service on this form. The proof of service was added in 2005, but there is no background on the reason for including it. It is suggested the proof of service be removed. If it is not removed, it should be amended to comply with the standards set forth in MCR 2.107, and not MCR 2.105.

Limits on appeal briefs

Admin no.: 2009-14
Date: February 2, 2010
Effective: May 1, 2010
Rules affected: 7.101 and 7.105

These rules were amended to apply the 50-page limit on briefs to appeals to the circuit court from a judgment of the district court, and to appeals to the Court of Appeals from a decision of a state agency, board, or commission.

Link

Federal: reining in juries during trial

The Committee On Court Administration And Case Management of the Judicial Conference Of The United States has issued a new recommended jury instruction on "Juror Use Of Electronic Communication Technologies".

The recommended instruction before proofs begin:

"You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.

"Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube."

And at the close of proofs, just before deliberations:

"During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict."

Rules of professional conduct

Adm no. - 2009-06
Issued - 11-24-09
Covers - several rules under MRPC

A continuation of a previous series of proposals from 2004. Changes, some with alternatives, are proposed to rules dealing with fees, conflict of interest, service as mediator or arbitrator, truthfulness of statements made to the court, public statements during proceedings, and practice by lawyers admitted in other states. It includes a new proposal to allow disciplinary action against a Michigan-licensed lawyer for actions in other states.

Link to proposal