Monday, December 29, 2008
Professor Larry Dubin of University of Detroit Mercy Law School has an opinion piece in Detroit News.com on the recent Michigan Supreme Court decision overturning a Attorney Discipline Board order imposing discipline for failure to return an unearned fee. Dubin's analysis is spot on:
The Supreme Court's holding in this case makes new law that favors the rights of lawyers to keep money from clients even for services that they don't perform. The decision will create a financial disincentive for clients to exercise their right to fire lawyers or discontinue services because they can't recoup their money to hire a new lawyer.
This decision ushers in a new era that is very hostile to the interests of clients. Under this court ruling, the funds paid to a lawyer for future services will not be returned even when unearned as long as the lawyer slips in the term "nonrefundable" and "minimum fee" in the agreement.
This decision is likely to increase the number of grievances against lawyers and the cynicism that many members of the public will have toward lawyers. Consumers will feel cheated by lawyers being able to keep their money without performing the agreed-upon legal services.
Critics of lawyers sometimes state that a lawyer has a license to steal. The Attorney Discipline Board's ruling challenged that cynical notion by holding that a contract provision written by a lawyer cannot negate an attorney's ethical duties to a client. The Michigan Supreme Court decision unfortunately creates public cynicism toward lawyers.
I hope the Michigan Supreme Court will reconsider its decision in light of the adverse consequences consumers will experience.
Dubin is a former chairman of the Michigan Attorney Discipline Board. I use his wonderful "Legal Heroes" film in my last professional responsibility class every semester, as I find it to be a great way to inspire rising lawyers to see the possibility of using the law to further the public good after they have been learned Rules 1.1 to 8.5.
We had reported both the board and court's decisions. (Mike Frisch)