Rule 6.005. Right to Assistance of Lawyer; Advice; Appointment for Indigents; Waiver;

Joint Representation; Grand Jury Proceedings

(A) Advice of Right. At the arraignment on the warrant or complaint, the court must advise

the defendant

(1) of entitlement to a lawyer’s assistance at all court proceedings, and

(2) that the defendant is entitled to a lawyer at public expense if the defendant wants

one and is financially unable to retain one.

The court must ask the defendant whether the defendant wants a lawyer and, if so,

whether the defendant is financially unable to retain one.

(B) 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 unless the court's local funding unit has designated an appointing authority in its

compliance plan with the Michigan Indigent Defense Commission. If there is an

appointing authority, the court must refer the defendant to the appointing authority for

indigency screening. If there is no appointing authority, or if the defendant seeks judicial

review of the appointing authority’s determination concerning indigency, the court’s

determination of indigency must be guided by the following factors:

(1) present employment, earning capacity and living expenses;

(2) outstanding debts and liabilities, secured and unsecured;

(3) whether the defendant has qualified for and is receiving any form of public

assistance;

(4) availability and convertibility, without undue financial hardship to the defendant

and the defendant's dependents, of any personal or real property owned;

(5) the rebuttable presumptions of indigency listed in the MIDC’s indigency standard;

and

tstanding debts and liabilities, secured and unsecured;

(3) whether the defendant has qualified for and is receiving any form of public

assistance;

(4) availability and convertibility, without undue financial hardship to the defendant

and the defendant's dependents, of any personal or real property owned;

(5) the rebuttable presumptions of indigency listed in the MIDC’s indigency standard;

and

(6) 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. The court reviews an appointing authority’s determination of

indigency de novo and may consider information not presented to the appointing

authority.

(C) 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.

(D) Appointment or Waiver of a Lawyer. Where the court makes the determination that a

defendant is financially unable to retain a lawyer, it must promptly refer the defendant to

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the local indigent criminal defense system's appointing authority for appointment of a

lawyer. The court may not permit the defendant to make an initial waiver of the right to

be represented by a lawyer without first

(1) 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

gent criminal defense system's appointing authority for appointment of a

lawyer. The court may not permit the defendant to make an initial waiver of the right to

be represented by a lawyer without first

(1) 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

(2) 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.

The court should encourage any defendant who appears without counsel to be screened

for indigency and potential appointment of counsel.

(E) 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,

(1) the defendant must reaffirm that a lawyer’s assistance is not wanted; or

(2) if the defendant requests a lawyer and is financially unable to retain one, the court

must refer the defendant to the local indigent criminal defense system’s appointing

authority for the appointment of one; or

efendant is indigent) and that the

defendant waived that right. Before the court begins such proceedings,

(1) the defendant must reaffirm that a lawyer’s assistance is not wanted; or

(2) if the defendant requests a lawyer and is financially unable to retain one, the court

must refer the defendant to the local indigent criminal defense system’s appointing

authority for the appointment of one; or

(3) 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 for the appointment of 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.

(F) Multiple Representation. When two or more indigent defendants are jointly charged with

an offense or offenses or their cases are otherwise joined, the local indigent criminal

defense system 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:

(1) 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;

(2) 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

he undivided loyalty of the

lawyer. The court may not permit the joint representation unless:

(1) 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;

(2) 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

(3) 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.

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(G) 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.

(H) Scope of Trial Lawyer’s Responsibilities.

(1) The responsibilities of the trial lawyer who represents the defendant include

(a) representing the defendant in all trial court proceedings through initial

sentencing,

(b) filing of interlocutory appeals the lawyer deems appropriate, and

(c) responding to any preconviction appeals by the prosecutor. Unless an appellate

lawyer has been appointed or retained, the defendant’s trial lawyer must either:

responsibilities of the trial lawyer who represents the defendant include

(a) representing the defendant in all trial court proceedings through initial

sentencing,

(b) filing of interlocutory appeals the lawyer deems appropriate, and

(c) responding to any preconviction appeals by the prosecutor. Unless an appellate

lawyer has been appointed or retained, the defendant’s trial lawyer must either:

(i)

file a response to any application for leave to appeal, appellant’s brief, or

substantive motion; or

(ii) notify the Court of Appeals in writing that the defendant has knowingly

elected not to file a response.

(2) Unless an appellate lawyer has been appointed or retained, or if retained trial

counsel withdraws, the trial lawyer who represents the defendant is responsible for

filing postconviction motions the lawyer deems appropriate, including motions for

new trial, for a directed verdict of acquittal, to withdraw plea, or for resentencing.

(3) When an appellate lawyer has been appointed or retained, the trial lawyer is

responsible for promptly making the defendant’s file, including all discovery

material obtained and exhibits in the trial lawyer’s possession, reasonably available

upon request of the appellate lawyer. The trial lawyer must retain the materials in

the defendant’s file for at least five years after the case is disposed in the trial court.

(I)

Assistance of Lawyer at Grand Jury Proceedings.

(1) 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.

r at Grand Jury Proceedings.

(1) 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.

(2) 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 refer the witness to

the local indigent criminal defense system for appointment of an attorney at public

expense.

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Chapter Updated July 31, 2026