Michigan Court Rules
Rule 65 Right to Assistance of Lawyer; Advice; Appointment for Indigents; Waiver; Joint Representation; Grand Jury Proceedings
- Advice of Right. At the arraignment on the warrant or complaint, the court must advise the defendant
- Of entitlement to a lawyer's assistance at all subsequent court proceedings, and
- That the court will appoint a lawyer at public expense if the defendant wants one and is financially unable to retain one.
The court must question the defendant to determine whether the defendant wants a lawyer and, if so, whether the defendant is financially unable to retain one
- Questioning Defendant About Indigency. If the defendant requests a lawyer and claims financial inability to retain one, the court must determine whether the defendant is indigent. The determination of indigency must be guided by the following factors:
- Present employment, earning capacity and living expenses;
- Outstanding debts and liabilities, secured and unsecured;
- Whether the defendant has qualified for and is receiving any form of public assistance;
- Availability and convertibility, without undue financial hardship to the defendant and the defendant's dependents, of any personal or real property owned; and
- Any other circumstances that would impair the ability to pay a lawyer's fee as would ordinarily be required to retain competent counsel
The ability to post bond for pretrial release does not make the defendant ineligible for appointment of a lawyer.
- Partial Indigency. If a defendant is able to pay part of the cost of a lawyer, the court may require contribution to the cost of providing a lawyer and may establish a plan for collecting the contribution.
- Appointment or Waiver of a Lawyer. If the court determines that the defendant is financially unable to retain a lawyer, it must promptly appoint a lawyer and promptly notify the lawyer of the appointment. The court may not permit the defendant to make an initial waiver of the right to be represented by a lawyer without first
- Advising the defendant of the charge, the maximum possible prison sentence for the offense, any mandatory minimum sentence required by law, and the risk involved in self-representation, and
- Offering the defendant the opportunity to consult with a retained lawyer or, if the defendant is indigent, the opportunity to consult with an appointed lawyer
- Advice at Subsequent Proceedings. If a defendant has waived the assistance of a lawyer, the record of each subsequent proceeding (e.g., preliminary examination, arraignment, proceedings leading to possible revocation of youthful trainee status, hearings, trial or sentencing) need show only that the court advised the defendant of the continuing right to a lawyer's assistance (at public expense if the defendant is indigent) and that the defendant waived that right. Before the court begins such proceedings,
- The defendant must reaffirm that a lawyer's assistance is not wanted; or
- If the defendant requests a lawyer and is financially unable to retain one, the court must appoint one; or
- If the defendant wants to retain a lawyer and has the financial ability to do so, the court must allow the defendant a reasonable opportunity to retain one
The court may refuse to adjourn a proceeding to appoint counsel or allow a defendant to retain counsel if an adjournment would significantly prejudice the prosecution, and the defendant has not been reasonably diligent in seeking counsel.
- Multiple Representation. When two or more indigent defendants are jointly charged with an offense or offenses or their cases are otherwise joined, the court must appoint separate lawyers unassociated in the practice of law for each defendant. Whenever two or more defendants who have been jointly charged or whose cases have been joined are represented by the same retained lawyer or lawyers associated in the practice of law, the court must inquire into the potential for a conflict of interest that might jeopardize the right of each defendant to the undivided loyalty of the lawyer. The court may not permit the joint representation unless:
- The lawyer or lawyers state on the record the reasons for believing that joint representation in all probability will not cause a conflict of interests;
- The defendants state on the record after the court's inquiry and the lawyer's statement, that they desire to proceed with the same lawyer; and
- The court finds on the record that joint representation in all probability will not cause a conflict of interest and states its reasons for the finding
- Unanticipated Conflict of Interest. If, in a case of joint representation, a conflict of interest arises at any time, including trial, the lawyer must immediately inform the court. If the court agrees that a conflict has arisen, it must afford one or more of the defendants the opportunity to retain separate lawyers. The court should on its own initiative inquire into any potential conflict that becomes apparent, and take such action as the interests of justice require.
- Scope of Trial Lawyer's Responsibilities. The responsibilities of the trial lawyer appointed to represent the defendant include:
- Representing the defendant in all trial court proceedings through initial sentencing
- Filing of interlocutory appeals the lawyer deems appropriate,
- Responding to any pre-conviction appeals by the prosecutor, and
- Unless an appellate lawyer has been appointed, filing of post-conviction motions the lawyer deems appropriate, including motions for new trial, for a directed verdict of acquittal, to withdraw plea, or for re-sentencing.
- Assistance of Lawyer at Grand Jury Proceedings
- A witness called before a grand jury or a grand juror is entitled to have a lawyer present in the hearing room while the witness gives testimony. A witness may not refuse to appear for reasons of unavailability of the lawyer for that witness. Except as otherwise provided by law, the lawyer may not participate in the proceedings other than to advise the witness.
- The prosecutor assisting the grand jury is responsible for ensuring that a witness is informed of the right to a lawyer's assistance during examination by written notice accompanying the subpoena to the witness and by personal advice immediately before the examination. The notice must include language informing the witness that if the witness is financially unable to retain a lawyer, the chief judge in the circuit court in which the grand jury is convened will on request appoint one for the witness at public expense.