Although the term "alternative dispute resolution" (ADR) does not appear in the Michigan Rules of Professional Conduct (MRPC), the subject has been addressed in Michigan Ethics Opinions. Specifically, RI-255 (1993) and RI-262 (1996) conclude that a lawyer is required to notify a client of any offers to resolve a pending dispute through alternative dispute resolution forums, and to recommend alternatives to litigation when appropriate.
Some states, such as Colorado, have adopted special ethical rules which make it mandatory for a lawyer to discuss alternative dispute resolution with the client. While Michigan has not adopted such rules, the Michigan Ethics Opinions have interpreted the state's existing rules to require discussions of alternative dispute resolution under appropriate circumstances. Clearly, if an attorney receives an offer from adverse counsel to resolve a pending dispute through an alternative dispute resolution forum, he or she must convey that offer to the client. (RI-255.) This interpretation is based on MRPC 1.2 (a) ("a lawyer shall seek the lawful objectives of the client through reasonably available means permitted by law and these rules..."); 1.4 (a) ("a lawyer shall notify the client promptly of all settlement offers, mediation evaluations and proposed plea bargains...") (b) ("a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation"); and 2.1 ("in rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation").
The lawyer's duty regarding ADR is extended by RI-262 which provides that, in addition to conveying offers of dispute resolution to the client, a lawyer is obligated to recommend alternatives to litigation when appropriate or when the lawyer has reason to believe the client would find the alternative desirable. This opinion again references MRPC 1.2, 1.4 and 2.1 and states, "the spirit and intent of these rules is to see to it that the client's subjective desires and objectives are the goal of the lawyer, as long as they are not illegal or fraudulent or involve the lawyer in violation of the Rules of Professional Conduct."
Thus, failure to recommend alternative dispute resolution procedures when appropriate for the client, or to communicate offers to resolve matters by alternative means, could subject lawyers to disciplinary action for violating the MRPC. While it is unlikely that grievances based on these opinions will flood the docket of the Attorney Discipline Board anytime soon, these two opinions do give substantial support to clients who have adopted ADR programs or philosophies which they seek to impose upon reticent outside counsel.
Some states, such as Colorado, have adopted special ethical rules which make it mandatory for a lawyer to discuss alternative dispute resolution with the client. While Michigan has not adopted such rules, the Michigan Ethics Opinions have interpreted the state's existing rules to require discussions of alternative dispute resolution under appropriate circumstances. Clearly, if an attorney receives an offer from adverse counsel to resolve a pending dispute through an alternative dispute resolution forum, he or she must convey that offer to the client. (RI-255.) This interpretation is based on MRPC 1.2 (a) ("a lawyer shall seek the lawful objectives of the client through reasonably available means permitted by law and these rules..."); 1.4 (a) ("a lawyer shall notify the client promptly of all settlement offers, mediation evaluations and proposed plea bargains...") (b) ("a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation"); and 2.1 ("in rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation").
The lawyer's duty regarding ADR is extended by RI-262 which provides that, in addition to conveying offers of dispute resolution to the client, a lawyer is obligated to recommend alternatives to litigation when appropriate or when the lawyer has reason to believe the client would find the alternative desirable. This opinion again references MRPC 1.2, 1.4 and 2.1 and states, "the spirit and intent of these rules is to see to it that the client's subjective desires and objectives are the goal of the lawyer, as long as they are not illegal or fraudulent or involve the lawyer in violation of the Rules of Professional Conduct."
Thus, failure to recommend alternative dispute resolution procedures when appropriate for the client, or to communicate offers to resolve matters by alternative means, could subject lawyers to disciplinary action for violating the MRPC. While it is unlikely that grievances based on these opinions will flood the docket of the Attorney Discipline Board anytime soon, these two opinions do give substantial support to clients who have adopted ADR programs or philosophies which they seek to impose upon reticent outside counsel.