Dea V Dch - Subpoena Hearing Rescheduled For Feb 1

[bobandtorey]

Thanks for all the great info Eric. I feel like many of the legal battles we face in Michigan have already been fought and won in other States. If we have enough dedicated people, especially legal professionals such as yourself, then we can literally stomp these eggheads into the ground with the quickness.

 

I fear we lack the dedicated people, who also have the means to effectively fight, that states such as California and Colorado may have. I worry this may allow the powers that be to get away with running roughshod over the MMMA.

 

 

Yes thank you Eric for all you do here it is sad that we cant get a Lawyer up their am not real sure if it's about the money or not i don't think it is money they just don't know what if any thing they can do IMO

another words it's the process

[jtgeme]

So my question to Eric is this: Does the ruling that took place in a Federal court in Oregon set precedence in the current pending case that we have here in Michigan?

 

No, it is not precedent for this court - This court does not need to follow the ruling from the Oregon case. The question, however, is will it? Often times a court will follow the lead of another court, but it is not obligated to do so.

 

Frequently similar cases are filed in different districts and at times, the parties are hoping for a different result. A different result means that there could be an appeal, and then a ruling from a higher court which would be precedent for lower courts. (Anybody following the Health Care cases through Federal District courts?)

 

If this judge follows the same reasoning as the judge in the Oregon case, its a pretty cut and dry dismissal. But nothing is certain.

 

Is anybody defending this case at all?

[bobandtorey]

No, it is not precedent for this court - This court does not need to follow the ruling from the Oregon case. The question, however, is will it? Often times a court will follow the lead of another court, but it is not obligated to do so.

 

Frequently similar cases are filed in different districts and at times, the parties are hoping for a different result. A different result means that there could be an appeal, and then a ruling from a higher court which would be precedent for lower courts. (Anybody following the Health Care cases through Federal District courts?)

 

If this judge follows the same reasoning as the judge in the Oregon case, its a pretty cut and dry dismissal. But nothing is certain.

 

Is anybody defending this case at all?

 

no we cant find any one willing to fight the Fed's

[Michael Komorn]

Since seeing this terrible news, I have been racking my brain, consulting with fellow attorneys etc..I thought after seeing the Oregon case, there might be some light ( I have not given up yet) at the end of the tunnel, but this is how I believe it would be. The Oregon case and the California case are cases that support the issue that is most disturbing, which is the privacy issue. In those 2 cases, yes the Federal Courts ruled in favor of the privacy of those patients. Yes those records were protected, yes they were privileged. The legal distinction those cases have from the Michigan case, is that the records the Federal Government was seeking in California and Oregon were from patient collectives, clubs etc.. That means the owners, or board members of those groups, were the persons served with the subpoenas. That means that they were parties to the action, who could then claim that the records were privilege, protected etc..In the law this is called "Standing." For example a person who is a guest sitting in someone’s house when a raid by Leo occurs, and subsequently gets charged, would not have standing to argue the search warrant to the home was invalid, because they are a guest, they have no interest in the property. The homeowner or resident would be the only person who could argue that there was a 4th amendment violation.

The party to this action is the State of Michigan, represented by the attorney general. This is a criminal action not a civil action. The Federal Subpoena is broad, secretive and powerful. The Oregon and California cases had parties to the action who essentially fought back and won.

You can see in the response, so long as the employees of the state receive immunity, he will comply with the subpoena. His only chance would be to refuse to turn them over, strenuously object, argue the precedent from Oregon and California, and be willing to be found in Contempt of Court. It would appear he is not taking this route.

My thoughts at this time are that there is no Standing for anyone other than the attorney general to do anything. If someone can think of one please let me know. I am going to keep researching; right now the shredding suggestion by Attorney Redden may be the best bet. It is frustrating believe me; we do not want to start a slippery slope of the release of privilege patient, information. I could rant and rave about the 10th amendment, hippa, and several other theories, as many have on this thread, but at this time I think that is where this will go.

The better question is if granted immunity as Shutte request, does that protect the state employees from the punishment of the state statute (mmma). Or put another way, does the federal government have the authority to grant immunity for state law. Then the question becomes who would be the agency to prosecute these offenders. The way I read the statue, if the act of providing the privileged and protected information is disseminated, then the Attorney General’s office would be the agency to bring said charges. How could Shutte make a decision, not influenced by conflict of interest, as to whether Federal law provides the immunity he is asking for.

It is really upsetting that Shutte, is not fighting for the protections of the patients, the statue so clearly states. It would have been nice if he read the Mike Cox opinion from August 2010,where cox goes to great lengths to elaborate the importance of the privacy and privilege of the patients, as outlined in the administrative rules and the act itself.

In light of the standing issue, it would have to be our attorney general to fight this fight on behalf of the patients. Please if anyone has another legal theory, please let me know.

 

 

Michael A. Komorn

Attorney and Counselor

Law Office of Michael A. Komorn

3000 Town Center, Suite, 1800

Southfield, MI 48075

800-656-3557 (Toll Free)

248-351-2200 (Office)

248-357-2550 (Phone)

248-351-2211 (Fax)

Email: michael@komornlaw.com

Website: www.komornlaw.com

Check out our Radio show:

http://www.blogtalkradio.com/planetgreentrees

NEW CALL IN NUMBER: (347) 326-9626

Live Every Wednesday 8-9:30 p.m.

PLANET GREENTREES

w/ Attorney Michael Komorn

 

The most relevant radio talk show for the Michigan Medical Marijuana Community. PERIOD.

 

If you have a medical marihuana question or comment, please email them to me, or leave them on the forum for the MMMA, and I will try to answer them live on the air.

 

http://www.blogtalkradio.com/planetgreentrees

PLANET GREENTREES Call-in Number: (347) 326-9626

Call-in Number: (347) 326-9626

[rafaeltoral]

I suggest we all contact the court directly. I will be writing a brief letter citing the Oregon ruling. From the little I have read about the judge presiding over this case he seems to be fairly reasonable.

 

Link to contact the court directly:

http://www.miwd.uscourts.gov/contactus.htm

 

Link to the specific Oregon Ruiling:

http://www.safeaccessnow.org/downloads/landmark.in.re.grand.jury.pdf

[bobandtorey]

Since seeing this terrible news, I have been racking my brain, consulting with fellow attorneys etc..I thought after seeing the Oregon case, there might be some light ( I have not given up yet) at the end of the tunnel, but this is how I believe it would be. The Oregon case and the California case are cases that support the issue that is most disturbing, which is the privacy issue. In those 2 cases, yes the Federal Courts ruled in favor of the privacy of those patients. Yes those records were protected, yes they were privileged. The legal distinction those cases have from the Michigan case, is that the records the Federal Government was seeking in California and Oregon were from patient collectives, clubs etc.. That means the owners, or board members of those groups, were the persons served with the subpoenas. That means that they were parties to the action, who could then claim that the records were privilege, protected etc..In the law this is called "Standing." For example a person who is a guest sitting in someone’s house when a raid by Leo occurs, and subsequently gets charged, would not have standing to argue the search warrant to the home was invalid, because they are a guest, they have no interest in the property. The homeowner or resident would be the only person who could argue that there was a 4th amendment violation.

The party to this action is the State of Michigan, represented by the attorney general. This is a criminal action not a civil action. The Federal Subpoena is broad, secretive and powerful. The Oregon and California cases had parties to the action who essentially fought back and won.

You can see in the response, so long as the employees of the state receive immunity, he will comply with the subpoena. His only chance would be to refuse to turn them over, strenuously object, argue the precedent from Oregon and California, and be willing to be found in Contempt of Court. It would appear he is not taking this route.

My thoughts at this time are that there is no Standing for anyone other than the attorney general to do anything. If someone can think of one please let me know. I am going to keep researching; right now the shredding suggestion by Attorney Redden may be the best bet. It is frustrating believe me; we do not want to start a slippery slope of the release of privilege patient, information. I could rant and rave about the 10th amendment, hippa, and several other theories, as many have on this thread, but at this time I think that is where this will go.

The better question is if granted immunity as Shutte request, does that protect the state employees from the punishment of the state statute (mmma). Or put another way, does the federal government have the authority to grant immunity for state law. Then the question becomes who would be the agency to prosecute these offenders. The way I read the statue, if the act of providing the privileged and protected information is disseminated, then the Attorney General’s office would be the agency to bring said charges. How could Shutte make a decision, not influenced by conflict of interest, as to whether Federal law provides the immunity he is asking for.

It is really upsetting that Shutte, is not fighting for the protections of the patients, the statue so clearly states. It would have been nice if he read the Mike Cox opinion from August 2010,where cox goes to great lengths to elaborate the importance of the privacy and privilege of the patients, as outlined in the administrative rules and the act itself.

In light of the standing issue, it would have to be our attorney general to fight this fight on behalf of the patients. Please if anyone has another legal theory, please let me know.

 

 

Michael A. Komorn

Attorney and Counselor

Law Office of Michael A. Komorn

3000 Town Center, Suite, 1800

Southfield, MI 48075

800-656-3557 (Toll Free)

248-351-2200 (Office)

248-357-2550 (Phone)

248-351-2211 (Fax)

Email: michael@komornlaw.com

Website: www.komornlaw.com

Check out our Radio show:

http://www.blogtalkr...lanetgreentrees

NEW CALL IN NUMBER: (347) 326-9626

Live Every Wednesday 8-9:30 p.m.

PLANET GREENTREES

w/ Attorney Michael Komorn

 

The most relevant radio talk show for the Michigan Medical Marijuana Community. PERIOD.

 

If you have a medical marihuana question or comment, please email them to me, or leave them on the forum for the MMMA, and I will try to answer them live on the air.

 

http://www.blogtalkr...lanetgreentrees

PLANET GREENTREES Call-in Number: (347) 326-9626

Call-in Number: (347) 326-9626

i gave you my opinion LOL

i can remember some time ago when i fell in front of a post office on some ice and called lot s of Lawyer that what they told me you cant fight the Feds LOL

 

do you think we should go Jan12th?

[jtgeme]

In light of the standing issue, it would have to be our attorney general to fight this fight on behalf of the patients. Please if anyone has another legal theory, please let me know.

 

What about a motion to intervene on behalf of the 7 unnamed individuals? (Or is that just for Civil?) The way I am looking at this is that if I were one of the 7, I would be in court arguing that I have an interest in the outcome, and its my doctor-patient confidentiality that is being denied.

 

Or perhaps an amicus brief on behalf of either the MDOCH or the 7 unnamed individuals?

 

I guess my question is does the MDCH want to turn the records over or is it that because the AG backed away the department has no no other options left?

[solabeirtan]

What if we sue Shuette for Breach of Confidence, Attempt to Violate / Circumvent Hippa & MMMA Laws, etc ...

 

Endangering Citizens undergoing Licensed Medical Care...

 

 

 

[rafaeltoral]

To His Honor Gordon J. Quist

 

Your Honor,

I am writing to you as a citizen of Michigan. I am writing to you as lover of law, justice, democracy, and all things that maintain, and allow, a truly civil society.

 

I am contacting you specifically in relation to a current request by the DEA, that the MDCH be allowed to violate a very clear provision of the Michigan Medical Marijuana Act, and release privileged and confidential information pertaining to seven unnamed people.

 

Please do not allow the DEA to undermine our entire State Medical Marijuana Program. The law was enacted by a majority of the voters. The DEA has tried a similar tactic in Oregon and they were quickly rebuffed.

 

A State is a sovereign entity. The State of Michigan is not beholden to enforce Federal Law, or assist the DEA in a clear attempt to thwart the will of the citizens of Michigan.

 

I implore you to read the ruling handed down in a Washington Federal District Court. Please do not allow such a perilous precedent to be set, such that would allow the DEA to better harass sick people.

 

http://www.safeaccessnow.org/downloads/landmark.in.re.grand.jury.pdf

 

Thank you for your time and public service.

 

Best Regards,

Rafaeltoral

[Clear and Unambiguous]

All I can think of now is for more people to use the section 8 defenses rather than section 4.

 

If the state will sell us out, and it is not a requirement to register..... then why do it?

[Michael Komorn]

I apologize for the long post.

 

How about an attorney grievance complaint signed by the community or from several individuals, for failure to disclose the conflict of interest. (see below Rules 1.6 -1.9)

 

 

http://www.michbar.org/generalinfo/pdfs/mrpc.pdf

 

http://www.michbar.org/generalinfo/pdfs/mrpc.pdf

 

Rule 1.6 Confidentiality of Information......................................................................40

Rule 1.7 Conflict of Interest: General Rule.................................................................42

Rule 1.8 Conflict of Interest: Prohibited Transactions................................................43

Rule 1.9 Conflict of Interest: Former Client.Confidentiality.......................................45

 

http://www.agcmi.com/pages/RequestInvestigation.html (link to complaint form).

 

Rule 1.6 Confidentiality of Information.

(a) “Confidence” refers to information protected by the client-lawyer

privilege under applicable law, and “secret” refers to other information

gained in the professional relationship that the client has requested

be held inviolate or the disclosure of which would be embarrassing or

would be likely to be detrimental to the client.

(b) Except when permitted under paragraph ©, a lawyer shall not

knowingly:

(1) reveal a confidence or secret of a client;

(2) use a confidence or secret of a client to the disadvantage of

the client; or

(3) use a confidence or secret of a client for the advantage of

the lawyer or of a third person, unless the client consents after full

disclosure.

© A lawyer may reveal:

(1) confidences or secrets with the consent of the client or clients

affected, but only after full disclosure to them;

(2) confidences or secrets when permitted or required by these

rules, or when required by law or by court order;

(3) confidences and secrets to the extent reasonably necessary to

rectify the consequences of a client’s illegal or fraudulent act in the

furtherance of which the lawyer’s services have been used;

(4) the intention of a client to commit a crime and the information

necessary to prevent the crime; and

(5) confidences or secrets necessary to establish or collect a fee,

or to defend the lawyer or the lawyer’s employees or associates

against an accusation of wrongful conduct.

(d) A lawyer shall exercise reasonable care to prevent employees,

associates, and others whose services are utilized by the lawyer from

disclosing or using confidences or secrets of a client, except that a lawyer

may reveal the information allowed by paragraph © through an

employee.

COMMENT:

The lawyer is part of a judicial system charged with upholding the

law. One of the lawyer’s functions is to advise clients so that they avoid

any violation of the law in the proper exercise of their rights.

The observance of the ethical obligation of a lawyer to hold inviolate

confidential information of the client not only facilitates the full

development of facts essential to proper representation of the client, but

also encourages people to seek early legal assistance.

Almost without exception, clients come to lawyers in order to determine

what their rights are and what is, in the maze of laws and regulations,

deemed to be legal and correct. The common law recognizes

that the client’s confidences must be protected from disclosure. Upon

the basis of experience, lawyers know that almost all clients follow the

advice given and that the law is upheld.

A fundamental principle in the client-lawyer relationship is that

the lawyer maintain confidentiality of information relating to the representation.

The client is thereby encouraged to communicate fully and

frankly with the lawyer even as to embarrassing or legally damaging

subject matter.

The principle of confidentiality is given effect in two related bodies

of law, the client-lawyer privilege (which includes the work-product

doctrine) in the law of evidence and the rule of confidentiality established

in professional ethics. The client-lawyer privilege applies in judicial

and other proceedings in which a lawyer may be called as a

witness or otherwise required to produce evidence concerning a client.

The rule of client-lawyer confidentiality applies in situations other than

those where evidence is sought from the lawyer through compulsion

of law. The confidentiality rule applies to confidences and secrets as

defined in the rule. A lawyer may not disclose such information except

as authorized or required by the Rules of Professional Conduct or other

law. See also Scope, ante.

The requirement of maintaining confidentiality of information relating

to representation applies to government lawyers who may disagree

with the policy goals that their representation is designed to advance.

Authorized Disclosure

A lawyer is impliedly authorized to make disclosures about a client

when appropriate in carrying out the representation, except to the

extent that the client’s instructions or special circumstances limit that

authority. In litigation, for example, a lawyer may disclose information

by admitting a fact that cannot properly be disputed, or, in negotiation,

by making a disclosure that facilitates a satisfactory conclusion.

Lawyers in a firm may, in the course of the firm’s practice, disclose

to each other information relating to a client of the firm, unless the client

has instructed that particular information be confined to specified

lawyers, or unless the disclosure would breach a screen erected within

the firm in accordance with Rules 1.10(b), 1.11(a), or 1.12©.

Disclosure Adverse to Client

The confidentiality rule is subject to limited exceptions. In becoming

privy to information about a client, a lawyer may foresee that the client

intends to commit a crime. To the extent a lawyer is prohibited from

making disclosure, the interests of the potential victim are sacrificed

in favor of preserving the client’s confidences even though the client’s

purpose is wrongful. To the extent a lawyer is required or permitted to

disclose a client’s purposes, the client may be inhibited from revealing

facts which would enable the lawyer to counsel against a wrongful

course of action. A rule governing disclosure of threatened harm

thus involves balancing the interests of one group of potential victims

against those of another. On the assumption that lawyers generally fulfill

their duty to advise against the commission of deliberately wrongful

acts, the public is better protected if full and open communication by the

client is encouraged than if it is inhibited.

Generally speaking, information relating to the representation must

be kept confidential as stated in paragraph (b). However, when the client

is or will be engaged in criminal conduct or the integrity of the

lawyer’s own conduct is involved, the principle of confidentiality may

appropriately yield, depending on the lawyer’s knowledge about and

relationship to the conduct in question, and the seriousness of that conduct.

Several situations must be distinguished.

 

First, the lawyer may not counsel or assist a client in conduct

that is illegal or fraudulent. See Rule 1.2©. Similarly, a lawyer has

a duty under Rule 3.3(a)(4) not to use false evidence. This duty is essentially

a special instance of duty prescribed in Rule 1.2© to avoid

assisting a client in illegal or fraudulent conduct. The same is true of

compliance with Rule 4.1 concerning truthfulness of a lawyer’s own

representations.

Second, the lawyer may have been innocently involved in past conduct

by the client that was criminal or fraudulent. In such a situation

the lawyer has not violated Rule 1.2©, because to “counsel or assist”

criminal or fraudulent conduct requires knowing that the conduct is of

that character. Even if the involvement was innocent, however, the fact

remains that the lawyer’s professional services were made the instrument

of the client’s crime or fraud. The lawyer, therefore, has a legitimate

interest in being able to rectify the consequences of such conduct,

and has the professional right, although not a professional duty, to rectify

the situation. Exercising that right may require revealing information

relating to the representation. Paragraph ©(3) gives the lawyer

professional discretion to reveal such information to the extent necessary

to accomplish rectification. However, the constitutional rights of

defendants in criminal cases may limit the extent to which counsel for a

defendant may correct a misrepresentation that is based on information

provided by the client. See comment to Rule 3.3.

Third, the lawyer may learn that a client intends prospective conduct

that is criminal. Inaction by the lawyer is not a violation of Rule

1.2©, except in the limited circumstances where failure to act constitutes

assisting the client. See comment to Rule 1.2©. However, the lawyer’s

knowledge of the client’s purpose may enable the lawyer to prevent

commission of the prospective crime. If the prospective crime is likely

to result in substantial injury, the lawyer may feel a moral obligation to

take preventive action. When the threatened injury is grave, such as homicide

or serious bodily injury, a lawyer may have an obligation under

tort or criminal law to take reasonable preventive measures. Whether

the lawyer’s concern is based on moral or legal considerations, the

interest in preventing the harm may be more compelling than the interest

in preserving confidentiality of information relating to the client. As

stated in paragraph ©(4), the lawyer has professional discretion to

reveal information in order to prevent a client’s criminal act.

It is arguable that the lawyer should have a professional obligation

to make a disclosure in order to prevent homicide or serious bodily

injury which the lawyer knows is intended by the client. However, it

is very difficult for a lawyer to “know” when such a heinous purpose

will actually be carried out, for the client may have a change of mind.

To require disclosure when the client intends such an act, at the risk of

professional discipline if the assessment of the client’s purpose turns out

to be wrong, would be to impose a penal risk that might interfere with

the lawyer’s resolution of an inherently difficult moral dilemma.

The lawyer’s exercise of discretion requires consideration of such

factors as magnitude, proximity, and likelihood of the contemplated

wrong; the nature of the lawyer’s relationship with the client and with

those who might be injured by the client; the lawyer’s own involvement

in the transaction; and factors that may extenuate the conduct

in question. Where practical, the lawyer should seek to persuade the

client to take suitable action. In any case, a disclosure adverse to

the client’s interest should be no greater than the lawyer reasonably

believes necessary to the purpose. A lawyer’s decision not to make a

disclosure permitted by paragraph © does not violate this rule.

Where the client is an organization, the lawyer may be in doubt

whether contemplated conduct will actually be carried out by the organization.

Where necessary to guide conduct in connection with this

rule, the lawyer should make an inquiry within the organization as

indicated in Rule 1.13(b).

Paragraph ©(3) does not apply where a lawyer is employed after

a crime or fraud has been committed to represent the client in matters

ensuing therefrom.

Withdrawal

If the lawyer’s services will be used by the client in materially furthering

a course of criminal or fraudulent conduct, the lawyer must

withdraw, as stated in Rule 1.16(a) (1).

After withdrawal the lawyer is required to refrain from making

disclosure of the client’s confidences, except as otherwise provided in

Rule 1.6. Neither this rule nor Rule 1.8(b) nor Rule 1.16(d) prevents

the lawyer from giving notice of the fact of withdrawal, and the lawyer

may also withdraw or disaffirm any opinion, document, affirmation, or

the like.

Dispute Concerning Lawyer’s Conduct

Where a legal claim or disciplinary charge alleges complicity of the

lawyer in a client’s conduct or other misconduct of the lawyer involving

representation of the client, the lawyer may respond to the extent the

lawyer reasonably believes necessary to establish a defense. The same

is true with respect to a claim involving the conduct or representation of

a former client. The lawyer’s right to respond arises when an assertion

of complicity or other misconduct has been made. Paragraph ©(5)

does not require the lawyer to await the commencement of an action

or proceeding that charges complicity or other misconduct, so that the

defense may be established by responding directly to a third party who

has made such an assertion. The right to defend, of course, applies

where a proceeding has been commenced. Where practicable and not

prejudicial to the lawyer’s ability to establish the defense, the lawyer

should advise the client of the third party’s assertion and request that

the client respond appropriately. In any event, disclosure should be no

greater than the lawyer reasonably believes is necessary to vindicate

innocence, the disclosure should be made in a manner which limits access

to the information to the tribunal or other persons having a need

to know it, and appropriate protective orders or other arrangements

should be sought by the lawyer to the fullest extent practicable.

If the lawyer is charged with wrongdoing in which the client’s

conduct is implicated, the rule of confidentiality should not prevent

the lawyer from defending against the charge. Such a charge can

arise in a civil, criminal, or professional disciplinary proceeding,

and can be based on a wrong allegedly committed by the lawyer

against the client, or on a wrong alleged by a third person, for example,

a person claiming to have been defrauded by the lawyer and

client acting together.

A lawyer entitled to a fee is permitted by paragraph ©(5) to prove

the services rendered in an action to collect it. This aspect of the rule

expresses the principle that the beneficiary of a fiduciary relationship

may not exploit it to the detriment of the fiduciary. As stated above, the

lawyer must make every effort practicable to avoid unnecessary disclosure

of information relating to a representation, to limit disclosure

to those having the need to know it, and to obtain protective orders or

make other arrangements minimizing the risk of disclosure.

Disclosures Otherwise Required or Authorized

The scope of the client-lawyer privilege is a question of law. If a

lawyer is called as a witness to give testimony concerning a client, absent

waiver by the client, paragraph (b)(1) requires the lawyer to invoke

the privilege when it is applicable. The lawyer must comply with the

final orders of a court or other tribunal of competent jurisdiction requiring

the lawyer to give information about the client.

 

The Rules of Professional Conduct in various circumstances permit

or require a lawyer to disclose information relating to the representation.

See Rules 2.2, 2.3, 3.3 and 4.1. In addition to these provisions, a

lawyer may be obligated or permitted by other provisions of law to give

information about a client. Whether another provision of law supersedes

Rule 1.6 is a matter of interpretation beyond the scope of these

rules, but a presumption should exist against such a supersession. Former Client

The duty of confidentiality continues after the client-lawyer relationship

has terminated. See Rule 1.9.

 

Rule 1.7 Conflict of Interest: General Rule.

(a) A lawyer shall not represent a client if the representation of that

client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not

adversely affect the relationship with the other client; and

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that

client may be materially limited by the lawyer’s responsibilities to another

client or to a third person, or by the lawyer’s own interests unless:

(1) the lawyer reasonably believes the representation will not be

adversely affected; and

(2) the client consents after consultation. When representation

of multiple clients in a single matter is undertaken, the consultation

shall include explanation of the implications of the common representation

and the advantages and risks involved.

COMMENT:

Loyalty to a Client

Loyalty is an essential element in the lawyer’s relationship to a client.

An impermissible conflict of interest may exist before representation

is undertaken, in which event the representation should be declined.

The lawyer should adopt reasonable procedures, appropriate for the

size and type of firm and practice, to determine in both litigation and

nonlitigation matters the parties and issues involved and to determine

whether there are actual or potential conflicts of interest.

If such a conflict arises after representation has been undertaken,

the lawyer should withdraw from the representation. See Rule 1.16.

Where more than one client is involved and the lawyer withdraws because

a conflict arises after representation, whether the lawyer may

continue to represent any of the clients is determined by Rule 1.9. See

also Rule 2.2©. As to whether a client-lawyer relationship exists or,

having once been established, is continuing, see comment to Rule 1.3

and Scope, ante.

As a general proposition, loyalty to a client prohibits undertaking

representation directly adverse to that client without that client’s consent.

Paragraph (a) expresses that general rule. Thus, a lawyer ordinarily

may not act as advocate against a person the lawyer represents

in some other matter, even if it is wholly unrelated. On the other hand,

simultaneous representation in unrelated matters of clients whose interests

are only generally adverse, such as competing economic enterprises,

does not require consent of the respective clients. Paragraph

(a) applies only when the representation of one client would be directly

adverse to the other.

Loyalty to a client is also impaired when a lawyer cannot consider,

recommend, or carry out an appropriate course of action for the client

because of the lawyer’s other responsibilities or interests. The conflict

in effect forecloses alternatives that would otherwise be available to

the client. Paragraph (b) addresses such situations. A possible conflict

does not itself preclude the representation. The critical questions

are the likelihood that a conflict will eventuate and, if it does, whether

it will materially interfere with the lawyer’s independent professional

judgment in considering alternatives or foreclose courses of action that

reasonably should be pursued on behalf of the client. Consideration

should be given to whether the client wishes to accommodate the other

interest involved.

Consultation and Consent

A client may consent to representation notwithstanding a conflict.

However, as indicated in paragraph (a)(1) with respect to representation

directly adverse to a client, and paragraph (b)(1) with respect to

material limitations on representation of a client, when a disinterested

lawyer would conclude that the client should not agree to the representation

under the circumstances, the lawyer involved cannot properly

ask for such agreement or provide representation on the basis of the

client’s consent. When more than one client is involved, the question

of conflict must be resolved as to each client. Moreover, there may be

circumstances where it is impossible to make the disclosure necessary

to obtain consent. For example, when the lawyer represents different

clients in related matters and one of the clients refuses to consent to the

disclosure necessary to permit the other client to make an informed decision,

the lawyer cannot properly ask the latter to consent.

Lawyer’s Interests

The lawyer’s own interests should not be permitted to have adverse

effect on representation of a client. For example, a lawyer’s need for

income should not lead the lawyer to undertake matters that cannot be

handled competently and at a reasonable fee. See Rules 1.1 and 1.5.

If the probity of a lawyer’s own conduct in a transaction is in serious

question, it may be difficult or impossible for the lawyer to give a client

detached advice. A lawyer may not allow related business interests to

affect representation, for example, by referring clients to an enterprise

in which the lawyer has an undisclosed interest.

Conflicts in Litigation

Paragraph (a) prohibits representation of opposing parties in litigation.

Simultaneous representation of parties whose interests in litigation

may conflict, such as coplaintiffs or codefendants, is governed by paragraph

(b). An impermissible conflict may exist by reason of substantial

discrepancy in the parties’ testimony, incompatibility in positions in relation

to an opposing party, or the fact that there are substantially different

possibilities of settlement of the claims or liabilities in question.

Such conflicts can arise in criminal cases as well as civil. The potential

for conflict of interest in representing multiple defendants in a criminal

case is so grave that ordinarily a lawyer should decline to represent

more than one codefendant. On the other hand, common representation

of persons having similar interests is proper if the risk of adverse effect

is minimal and the requirements of paragraph (b) are met. Compare

Rule 2.2 involving intermediation between clients.

Ordinarily, a lawyer may not act as advocate against a client the lawyer

represents in some other matter, even if the other matter is wholly unrelated.

However, there are circumstances in which a lawyer may act as

advocate against a client. For example, a lawyer representing an enterprise

with diverse operations may accept employment as an advocate against the

enterprise in an unrelated matter if doing so will not adversely affect the

lawyer’s relationship with the enterprise or conduct of the suit and if both

clients consent upon consultation. By the same token, government lawyers

in some circumstances may represent government employees in proceedings

in which a government agency is the opposing party. The propriety of

concurrent representation can depend on the nature of the litigation. For

example, a suit charging fraud entails conflict to a degree not involved in a

suit for a declaratory judgment concerning statutory interpretation.

Michigan Bar Journal April 2009 43

MRPC

Interest of Person Paying for a Lawyer’s Service

A lawyer may be paid from a source other than the client if the client

is informed of that fact and consents and the arrangement does not

compromise the lawyer’s duty of loyalty to the client. See Rule 1.8(f).

For example, when an insurer and its insured have conflicting interests

in a matter arising from a liability insurance agreement, and the insurer

is required to provide special counsel for the insured, the arrangement

should assure the special counsel’s professional independence. So also,

when a corporation and its directors or employees are involved in a

controversy in which they have conflicting interests, the corporation

may provide funds for separate legal representation of the directors or

employees if the clients consent after consultation and the arrangement

ensures the lawyer’s professional independence.

Other Conflict Situations

Conflicts of interest in contexts other than litigation sometimes may

be difficult to assess. Relevant factors in determining whether there is

potential for adverse effect include the duration and intimacy of the

lawyer’s relationship with the client or clients involved, the functions

being performed by the lawyer, the likelihood that actual conflict will

arise, and the likely prejudice to the client from the conflict if it does

arise. The question is often one of proximity and degree.

For example, a lawyer may not represent multiple parties in a negotiation

whose interests are fundamentally antagonistic to each other,

but common representation is permissible where the clients are generally

aligned in interest even though there is some difference of interest

among them.

Conflict questions may also arise in estate planning and estate administration.

A lawyer may be called upon to prepare wills for several

family members, such as husband and wife, and, depending upon the

circumstances, a conflict of interest may arise. In estate administration

the identity of the client may be a question of law. The lawyer should

make clear the relationship to the parties involved.

A lawyer for a corporation or other organization who is also a

member of its board of directors should determine whether the responsibilities

of the two roles may conflict. The lawyer may be called on to

advise the corporation in matters involving actions of the directors.

Consideration should be given to the frequency with which such situations

may arise, the potential intensity of the conflict, the effect of the

lawyer’s resignation from the board, and the possibility of the corporation’s

obtaining legal advice from another lawyer in such situations.

If there is material risk that the dual role will compromise the lawyer’s

independence of professional judgment, the lawyer should not serve as

a director.

Conflict Charged by an Opposing Party

Resolving questions of conflict of interest is primarily the responsibility

of the lawyer undertaking the representation. In litigation, a court

may raise the question when there is reason to infer that the lawyer has

neglected the responsibility. In a criminal case, inquiry by the court is

generally required when a lawyer represents multiple defendants. See

MCR 6.101©(4). Where the conflict is such as clearly to call in question

the fair or efficient administration of justice, opposing counsel may

properly raise the question. Such an objection should be viewed with

caution, however, for it can be misused as a technique of harassment.

See Scope, ante.

Rule 1.8 Conflict of Interest: Prohibited Transactions.

(a) A lawyer shall not enter into a business transaction with a client

or knowingly acquire an ownership, possessory, security, or other

pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the

interest are fair and reasonable to the client and are fully disclosed

and transmitted in writing to the client in a manner that can be reasonably

understood by the client;

(2) the client is given a reasonable opportunity to seek the advice

of independent counsel in the transaction; and

(3) the client consents in writing thereto.

(b) A lawyer shall not use information relating to representation of

a client to the disadvantage of the client unless the client consents after

consultation, except as permitted or required by Rule 1.6 or Rule 3.3.

© A lawyer shall not prepare an instrument giving the lawyer or a

person related to the lawyer as parent, child, sibling, or spouse any substantial

gift from a client, including a testamentary gift, except where

the client is related to the donee.

(d) Prior to the conclusion of representation of a client, a lawyer

shall not make or negotiate an agreement giving the lawyer literary or

media rights to a portrayal or account based in substantial part on information

relating to the representation.

(e) A lawyer shall not provide financial assistance to a client in connection

with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation,

the repayment of which shall ultimately be the responsibility of the

client; and

(2) a lawyer representing an indigent client may pay court costs

and expenses of litigation on behalf of the client.

(f) A lawyer shall not accept compensation for representing a client

from one other than the client unless:

(1) the client consents after consultation;

(2) there is no interference with the lawyer’s independence of

professional judgment or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected

as required by Rule 1.6.

(g) A lawyer who represents two or more clients shall not participate

in making an aggregate settlement of the claims of or against the clients,

or, in a criminal case, an aggregated agreement as to guilty or nolo contendere

pleas, unless each client consents after consultation, including

disclosure of the existence and nature of all the claims or pleas involved

and of the participation of each person in the settlement.

(h) A lawyer shall not:

(1) make an agreement prospectively limiting the lawyer’s liability

to a client for malpractice unless permitted by law and the

client is independently represented in making the agreement; or

(2) settle a claim for such liability with an unrepresented client

or former client without first advising that person in writing that

independent representation is appropriate in connection therewith.

(i) A lawyer related to another lawyer as parent, child, sibling, or

spouse shall not represent a client in a representation directly adverse

to a person whom the lawyer knows is represented by the other lawyer

except upon consent by the client after consultation regarding the relationship.

(j) A lawyer shall not acquire a proprietary interest in the cause of

action or subject matter of litigation the lawyer is conducting for a client,

except that the lawyer may:

(1) acquire a lien granted by law to secure the lawyer’s fee or

expenses; and

General Information

44 Michigan Bar Journal April 2009

(2) contract with a client for a reasonable contingent fee in a

civil case, as permitted by Rule 1.5 and MCR 8.121.

 

 

 

Michael A. Komorn

Attorney and Counselor

Law Office of Michael A. Komorn

3000 Town Center, Suite, 1800

Southfield, MI 48075

800-656-3557 (Toll Free)

248-351-2200 (Office)

248-357-2550 (Phone)

248-351-2211 (Fax)

Email: michael@komornlaw.com

Website: www.komornlaw.com

Check out our Radio show:

http://www.blogtalkradio.com/planetgreentrees

NEW CALL IN NUMBER: (347) 326-9626

Live Every Wednesday 8-9:30 p.m.

PLANET GREENTREES

w/ Attorney Michael Komorn

 

The most relevant radio talk show for the Michigan Medical Marijuana Community. PERIOD.

 

If you have a medical marihuana question or comment, please email them to me, or leave them on the forum for the MMMA, and I will try to answer them live on the air.

 

http://www.blogtalkradio.com/planetgreentrees

PLANET GREENTREES Call-in Number: (347) 326-9626

Call-in Number: (347) 326-9626

[1337Gr33n]

so, if i understand this correctly, there are no longer hearings going on about this? The MDCH just plans on complying when the DEA gets the court order?

[Eric L. VanDussen]

The hearing on this matter is scheduled for 9:00 a.m. in room 584.

[LansingAreaCaregiver]

Since seeing this terrible news, I have been racking my brain, consulting with fellow attorneys etc..I thought after seeing the Oregon case, there might be some light ( I have not given up yet) at the end of the tunnel, but this is how I believe it would be. The Oregon case and the California case are cases that support the issue that is most disturbing, which is the privacy issue. In those 2 cases, yes the Federal Courts ruled in favor of the privacy of those patients. Yes those records were protected, yes they were privileged. The legal distinction those cases have from the Michigan case, is that the records the Federal Government was seeking in California and Oregon were from patient collectives, clubs etc.. That means the owners, or board members of those groups, were the persons served with the subpoenas. That means that they were parties to the action, who could then claim that the records were privilege, protected etc..In the law this is called "Standing." For example a person who is a guest sitting in someone’s house when a raid by Leo occurs, and subsequently gets charged, would not have standing to argue the search warrant to the home was invalid, because they are a guest, they have no interest in the property. The homeowner or resident would be the only person who could argue that there was a 4th amendment violation.

The party to this action is the State of Michigan, represented by the attorney general. This is a criminal action not a civil action. The Federal Subpoena is broad, secretive and powerful. The Oregon and California cases had parties to the action who essentially fought back and won.

You can see in the response, so long as the employees of the state receive immunity, he will comply with the subpoena. His only chance would be to refuse to turn them over, strenuously object, argue the precedent from Oregon and California, and be willing to be found in Contempt of Court. It would appear he is not taking this route.

My thoughts at this time are that there is no Standing for anyone other than the attorney general to do anything. If someone can think of one please let me know. I am going to keep researching; right now the shredding suggestion by Attorney Redden may be the best bet. It is frustrating believe me; we do not want to start a slippery slope of the release of privilege patient, information. I could rant and rave about the 10th amendment, hippa, and several other theories, as many have on this thread, but at this time I think that is where this will go.

The better question is if granted immunity as Shutte request, does that protect the state employees from the punishment of the state statute (mmma). Or put another way, does the federal government have the authority to grant immunity for state law. Then the question becomes who would be the agency to prosecute these offenders. The way I read the statue, if the act of providing the privileged and protected information is disseminated, then the Attorney General’s office would be the agency to bring said charges. How could Shutte make a decision, not influenced by conflict of interest, as to whether Federal law provides the immunity he is asking for.

It is really upsetting that Shutte, is not fighting for the protections of the patients, the statue so clearly states. It would have been nice if he read the Mike Cox opinion from August 2010,where cox goes to great lengths to elaborate the importance of the privacy and privilege of the patients, as outlined in the administrative rules and the act itself.

In light of the standing issue, it would have to be our attorney general to fight this fight on behalf of the patients. Please if anyone has another legal theory, please let me know.

 

 

Michael A. Komorn

Attorney and Counselor

Law Office of Michael A. Komorn

3000 Town Center, Suite, 1800

Southfield, MI 48075

800-656-3557 (Toll Free)

248-351-2200 (Office)

248-357-2550 (Phone)

248-351-2211 (Fax)

Email: michael@komornlaw.com

Website: www.komornlaw.com

Check out our Radio show:

http://www.blogtalkr...lanetgreentrees

NEW CALL IN NUMBER: (347) 326-9626

Live Every Wednesday 8-9:30 p.m.

PLANET GREENTREES

w/ Attorney Michael Komorn

 

The most relevant radio talk show for the Michigan Medical Marijuana Community. PERIOD.

 

If you have a medical marihuana question or comment, please email them to me, or leave them on the forum for the MMMA, and I will try to answer them live on the air.

 

http://www.blogtalkr...lanetgreentrees

PLANET GREENTREES Call-in Number: (347) 326-9626

Call-in Number: (347) 326-9626

 

I was thinking about the issue of standing, too. It seems that the state is the only group that has standing to fight this, and there isn't interest by them in doing so. So my question is, if this plays out and the MDCH releases patient records under the advice of the state AG, could individual patients who had their information released have standing to sue the state agencies? I mean, even if the employees are given immunity from criminal prosecution, it would seem that individual patients (or a group as a class action) could pursue monetary settlements against the state, particularly if a patient or patients lose their freedom or property as a result of the breach.

 

It wouldn't stem the initial release of information, but it could demonstrate to the state that following the law (even in the face of federal opposition) is a lot easier and more cost effective than selling out their constituents.

 

Just a thought.

[master.caregiver]

I apologize for the long post.

 

How about an attorney grievance complaint signed by the community or from several individuals, for failure to disclose the conflict of interest. (see below Rules 1.6 -1.9)

 

 

lets do it i would sign it and im sure a good majority of the people on here would too where do i need to go to sign the community one or several individuals i could send one in on my own but not sure how well id do

[bobandtorey]

i wish i could go i would i know Eric will be their for us all Thanks Eric

[master.caregiver]

[+Silverblue]

Very good letter! Mine would be similar. Considering the implications of this situation, I hope as many MM friendly lawyers will also write similar letters. Our privacy is being eroded every day, this would likely affect everyone, not just our community.

 

Sb

To His Honor Gordon J. Quist

 

Your Honor,

I am writing to you as a citizen of Michigan. I am writing to you as lover of law, justice, democracy, and all things that maintain, and allow, a truly civil society.

 

I am contacting you specifically in relation to a current request by the DEA, that the MDCH be allowed to violate a very clear provision of the Michigan Medical Marijuana Act, and release privileged and confidential information pertaining to seven unnamed people.

 

Please do not allow the DEA to undermine our entire State Medical Marijuana Program. The law was enacted by a majority of the voters. The DEA has tried a similar tactic in Oregon and they were quickly rebuffed.

 

A State is a sovereign entity. The State of Michigan is not beholden to enforce Federal Law, or assist the DEA in a clear attempt to thwart the will of the citizens of Michigan.

 

I implore you to read the ruling handed down in a Washington Federal District Court. Please do not allow such a perilous precedent to be set, such that would allow the DEA to better harass sick people.

 

http://www.safeacces....grand.jury.pdf

 

Thank you for your time and public service.

 

Best Regards,

Rafaeltoral

[+Silverblue]

Our law has the confidentiality clause written into it for a reason. The whole problem with this entire issue is it's still still seen as a criminal matter, rather than a health issue. The stigma has been so deeply ingrained- it's time to change this, we're making progress, though it's going too slowly, after how many years? 70? Innocent people are suffering, and schutte thinks he can trample all over us, OH in your letters remember the statements the former AG gave us, and any statements from others who are influential, presidents, Leo's, judges, whoever, who recognize our law and our rights. I've been trying to write a letter and can't seem to get it right. I think a well-written letter from an attorney that we all could sign would be more powerful. If one group loses its privacy, others will, too. The implications of this are unthinkable. Privacy for all, not a select few. Laws that apply to everyone, not just a select few, ignorance of the law is no excuse, applies to everyone, not a select few. Send a grievance letter, SOMETHING, ASAP. schutte vowed to hurt us, he's wasting no time, and his pal snyder is right behind him I'm sure, with their leo pals and supporters who haven't a CLUE. Wait till a family member who's ill uses MM and the difference is so obvious, they might wake up,. I remember the story of a cop who hated the idea of MM so much he died of cancer. Sorry for rambling.

 

Sb

[peanutbutter]

My legal protections are being undermined by this action.

 

I am being harmed.

 

Since it has impact on me, doesn't that give me standing?

[bobandtorey]

No I dont believe it gets you standing.I just had a stupid beotch sue me for drive way work I did.She didnt even own property but was power of attorney.I did my own attorny work and got a summary disposition as she had no standing.Standing is pretty specific.

 

 

so what is Standing? as far as this case or any ones case

[DenturesLost]

Someone articulate the conflict of interest. I don't see how there is one.

[DenturesLost]

My legal protections are being undermined by this action.

 

I am being harmed.

 

Since it has impact on me, doesn't that give me standing?

Your legal protections remain intact. Regardless of what is decided in this case by a federal trial court it isn't precedent and wouldn't affect a similar case.

[jtgeme]

Someone articulate the conflict of interest. I don't see how there is one.

 

I honestly don't see it either. I see more of an ineffective assistance claim than anything else. But if I had to look at the Conflict issue, my best guess is this:

 

Since the AG would be the one to file charges against the DCH for violating the law, the request for immunity for the DCH employees means that the AG couldn't. I think the conflict arises in that by turning over the information DCH is in violation, and in asking for immunity, the DCH is being immunized from the person requesting the immunity. (I think).

 

Standing is a tricky issue - many cases get kicked out of court for lack of standing. Basically, you have standing if you are actually injured or will be injured. Note that injury is not just physical. Groups can be injured (i.e the Medical Marijuana Community) but if the group gets too big (i.e every tax payer in the nation), then the injury is too broad because its not particularized to any individual and effects everybody equally thus no standing. As Mr. Komorn pointed out, this is a criminal matter, and issues of standing in criminal matters are very specific (as you can see from the issue we are facing here)

 

PB brings up a good argument, but its too much of a stretch. While I agree that any breakdown or circumventing the confidentiality provision in the statute affects the entire community, it is not enough to confer standing to contest this issue. My guess is that the closest anybody has to standing is the 7 unnamed individuals.

 

I don't like the result all.

[DenturesLost]

I honestly don't see it either. I see more of an ineffective assistance claim than anything else. But if I had to look at the Conflict issue, my best guess is this:

 

Since the AG would be the one to file charges against the DCH for violating the law, the request for immunity for the DCH employees means that the AG couldn't. I think the conflict arises in that by turning over the information DCH is in violation, and in asking for immunity, the DCH is being immunized from the person requesting the immunity. (I think).

 

Standing is a tricky issue - many cases get kicked out of court for lack of standing. Basically, you have standing if you are actually injured or will be injured. Note that injury is not just physical. Groups can be injured (i.e the Medical Marijuana Community) but if the group gets too big (i.e every tax payer in the nation), then the injury is too broad because its not particularized to any individual and effects everybody equally thus no standing. As Mr. Komorn pointed out, this is a criminal matter, and issues of standing in criminal matters are very specific (as you can see from the issue we are facing here)

 

PB brings up a good argument, but its too much of a stretch. While I agree that any breakdown or circumventing the confidentiality provision in the statute affects the entire community, it is not enough to confer standing to contest this issue. My guess is that the closest anybody has to standing is the 7 unnamed individuals.

 

I don't like the result all.

The result of this case doesn't affect the entire community from a causation standpoint because the case, when decided, doesn't set precedent. In other words if PB has a similar case come down he can go in and argue his points and the feds cannot say, "well this court ruled such and such against someone with an issue exactly on point and therefore must rule the same this time." The ruling in this case will not bind any court. In fact it won't even bind the exact same court that issues the opinion this time. This same court and same judge could turn around and rule differently the next day on a case with the exact same issue as this one. Therefore, if there is any harm that comes from this it will only be to those 7 individuals.