MAJ NEWSROOM

THE ANDARY CASE: Civil Justice for Some of Michigan's Most Vulnerable
By:  Lauren E. Kissel and Stephen H. Sinas, Sinas Dramis Law Firm
Published in the MAJ Fall 2022 Journal

PAs 21 AND 22 AND THE NEW LIMITATIONS ON CARE

In 2019, the Michigan Legislature identified changing Michigan’s no-fault insurance law as a top priority. The major justification for changing the law was to bring down the high insurance rates auto insurers were charging people in various areas of Michigan. Throughout the first few months of 2019, the Michigan Senate and the House of Representatives held hearings on general issues related to Michigan’s no-fault insurance system, but none of these hearings focused on the bills that would ultimately be voted on later in the spring. The bills that ultimately became Public Acts of 21 and 22 of 2019 (“PAs 21 and 22”) were not released until the day the bills were voted on and passed by the Michigan Legislature at a special legislative session on May 24, 2019. After being passed by the Legislature, these bills were signed into law by Governor Gretchen Whitmer and became effective law on June 11, 2019.

PAs 21 and 22 amended the Michigan No-Fault Law in many significant ways. A centerpiece of the amendments was eliminating the requirement that Michigan motorists purchase lifetime no-fault medical expense coverage. In this regard, by July 2, 2020, Michigan motorists would be allowed to purchase no-fault medical expense coverage in limited amounts, and some motorists were even given the option to opt-out from this coverage entirely.2 Critics of the reforms were concerned these limited forms of medical expense coverage would result in people not having enough coverage for their care and rehabilitation needs following a serious injury in a motor vehicle accident.

There were two other major aspects of PAs 21 and 22 that caused further concerns regarding patient access to care. One of these aspects was the drastic reduction on the rates of payment for auto-related medical care and rehabilitation services. These provisions, which are outlined in MCL 500.3157(2) – (7), are commonly referred to as “fee schedules.” However, these provisions are more like fee caps because they set forth a maximum reimbursement that a provider can be paid. Under MCL 500.3157(2), for services that would be payable under Medicare, a provider is capped at reimbursement of 200% of the amount payable to the person for the treatment or training under Medicare. This is reduced to 195% on July 2, 2022, and 190% on July 2, 2023. Moreover, for services not payable under Medicare, MCL 500.3157(7) imposes a cap on reimbursement starting at 55% of what a provider was charging for those services as of January 1, 2019. This is reduced to 54% on July 2, 2022, and 52.5% on July 2, 2023. Notably, these payment limitations did not exist in any form under the original Michigan No-Fault Law.

Immediately following the passage of PAs 21 and 22, the post-acute medical community let it be known that these payment limitations would likely jeopardize their ability to provide good-quality care to people catastrophically injured in the future.

The other significant way in which PAs 21 and 22 restricted access to care was by placing a limitation of 56 hours per week on attendant care services provided by an individual who is related to the injured person, domiciled in the household of the injured person, or who had a business or social relationship with the injured person prior to his/ her injury. Essentially, under these limitations, insurance companies do not have to pay for any more than 56 hours of weekly care provided to an injured person by any people who knew the injured person, in any capacity, before the person was injured. This limitation applies collectively to all attendant care providers, so all family and friend providers are capped at a combined amount of 56 hours per week. These new limitations effectively restrict an injured person’s right to develop care arrangements with their family and friends and avoid hiring strangers or commercial nursing companies to provide home care.

THE RETROACTIVITY ISSUE— A FIGHT TO KEEP THE ORIGINAL PROMISE

In passing PAs 21 and 22, it was clear that the Legislature intended for these new medical payment limitations and attendant care limitations to apply to people injured in motor vehicle accidents occurring after June 11, 2019. However, there was no clear indication in PAs 21 and 22 that the Michigan Legislature intended for these new limitations to apply to people injured in motor vehicle accidents that occurred prior to June 11, 2019. This issue has been commonly referred to as the “retroactivity issue.”

Soon after the passage of PAs 21 and 22, even though many believed it would be unjust and wrong to allow insurers to apply the new limitations to those injured prior to June 11, 2019, auto insurers quickly let it be known that by July 2, 2021, they intended to apply these limitations to all injured people, regardless of when they were injured. The insurers’ position on the retroactivity issue spread fear and panic amongst the most severely injured no-fault claimants and their medical providers. Many of these injured people were scared that any home care arrangements they had with their friends and family would now be subject to the new attendant care limitations. Medical providers fretted that all their catastrophically injured patients they had been servicing for several years would now be subject to a payment rate cut, up to 45% for services or accommodations rendered

after July 2, 2021. These providers knew these drastically reduced payment rates would jeopardize their ability to provide quality care and services to these patients.

As fear and panic spread amongst catastrophically injured people and their medical providers, it was clear a contentious legal battle over the retroactivity issue was inevitable. In that regard, on October 3, 2019, led by the legal vision of Michigan Association for Justice Past President, George. T. Sinas, the Sinas Dramis Law Firm filed a lawsuit on behalf of two patients and the Eisenhower Center, a rehabilitation center located in Ann Arbor, alleging that the non-Medicare fee schedule and 56 hour per week attendant care limitation was unconstitutional based on the Contracts Clause of the Michigan Constitution, and that it violated plaintiffs’ equal protection and due process rights. The case, Andary et al v USAA Casualty Insurance Company et al, was initially filed in the Ingham County Circuit Court. The team of attorneys at the Sinas Dramis Law Firm also joined forces with appellate law specialist and long-time Michigan Association for Justice member, Mark Granzotto, as a co-counsel to the case.

The plaintiffs in Andary primarily focused their arguments in the trial court on the Contracts Clause issue. The Contracts Clause of the Michigan Constitution states, “No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted.” Const. 1963, art. 1, 10. Plaintiffs argued that their right to all reasonable charges for reasonably necessary products, services, and accommodations for their care, recovery, or rehabilitation, without regard to any fee schedules or limitations on the identity of attendant care providers, vested as of the date of their respective motor vehicle accidents under the contracts they entered into with their no-fault insurers to provide no-fault benefits. The Andary plaintiffs further argued that they paid valuable premium dollars to secure those benefits, and those premiums were priced upon the right to payment without these limitations. Thus, any right to now apply these limitations was a violation of the Contracts Clause, in that it impaired the obligations of the contracts entered into between plaintiffs and their insurers and resulted in a windfall to the insurers.

After extensive briefing and oral argument, the Ingham County Circuit Court granted Defendants’ Motion to Dismiss the case on November 13, 2020. Plaintiffs’ subsequent Motion for Reconsideration and Motion to Amend were denied and, thus, plaintiffs appealed to the Court of Appeals in March 2021. As the implementation of the fee schedules and attendant care limitations was rapidly approaching on July 2, 2021, plaintiffs attempted to expedite the case by filing a Motion to Expedite with the Court of Appeals, and a Bypass Application to the Michigan Supreme Court, both of which were denied. Thus, the case proceeded in the ordinary course of business. Notably, the

fact the Andary case would not be expedited through the appellate courts caused further distress to patients and providers, as they knew it would take so much longer to receive any clarification on the retroactivity issue.

ANDARY GOES TO THE MICHIGAN COURT OF APPEALS

In the Court of Appeals, briefing by all parties and amicus curiae groups were filed by August 2021. The groups that submitted amicus curiae briefs in support of Plaintiffs-Appellants in the Court of Appeals were as follows: Coalition Protecting Auto No-Fault, Michigan Brain Injury Provider Council, Brian Injury Association of Michigan, and State Representatives Julie Brixie (D-Meridian Township) and Andrea Schroeder (R-Clarkston). The amicus brief filed by Representatives Brixie and Schroeder was highly unusual, but also highly powerful. In this brief, Representatives Brixie and Schroeder stated that they, as individuals who voted on the 2019 reforms, never intended them to apply retroactively to individuals who purchased coverage and were injured in a motor vehicle accident before the No-Fault Act was amended. This brief was accompanied by a Memorandum of Support that was signed by a total of 73 Legislators.

As the case was appealed to the Court of Appeals and began to evolve, it became more focused on whether the amendments could be applied retroactively to patients who purchased policies and were injured before the changes went into effect, and whether the Legislature even intended the 2019 amendments to apply retroactively to individuals who were injured prior to the amendments in the first place. In this regard, plaintiffs focused their arguments on the four retroactivity factors outlined in the case of the Michigan Supreme Court in LaFontaine Saline, Inc v Chrysler Group, LLC, 496 Mich 26 (2014), and further reaffirmed in the 2021 published Supreme Court case of Buhl v City of Oak Park, 507 Mich 236 (2021). The Court in Buhl summarized these factors as follows:

“First, we consider whether there is specific language providing for retroactive application. Second, in some situations, a statute is not regarded as operating retroactively merely because it relates to an antecedent event. Third, in determining retroactivity, we must keep in mind that retroactive laws impair vested rights acquired under existing laws or create new obligations or duties with respect to transactions or considerations already past. Finally, a remedial or procedural act not affecting vested rights may be given retroactive effect where the injury or claim is antecedent to the enactment of the statute.”

Buhl, 507 Mich at 244, quoting LaFontaine, 496 Mich at 38 – 39.

Plaintiffs-Appellants argued that based on these four factors, coupled with the amicus curiae brief filed by Representatives Brixie and Schroeder, it was abundantly clear the Legislature never intended these amendments to apply retroactively and take away their vested right to no-fault benefits for which they previously paid a substantial premium to secure.

While eagerly awaiting the Court of Appeals’ decision in the Andary case, many patients and providers across Michigan experienced the devastating effects of the medical payment and attendant care limitations that went into effect on July 2, 2021. Many patients struggled to get the lifesaving care they needed, and many providers could not stay in business under the harsh non-Medicare fee schedule. Accordingly, there were many lawsuits filed in trial courts across the state on behalf of individual patients and providers. Each individual trial court judge had to decide on a case-by-case basis whether these amendments could be applied retroactively. During this time, at least five trial court judges ruled that the benefit limitations set forth in the new 2019 no-fault law could not be retroactively enforced as to patients who purchased auto insurance policies and were injured prior to June 11, 2019. These judges included Genesee County Circuit Court Judge F. Kay Behm in the case of Melrose v Nationwide Mutual Ins Co, Case No. 19-113455-NF; Kent County Circuit Court Judge Mark A. Trusock in the case of Advisacare Healthcare Solutions, Inc v Progressive Marathon Ins Co, Case No. 21-1118-NF; Calhoun County Circuit Judge Sarah S. Lincoln in the case of Thomason v Allstate Ins Co, Case No. 2011-281-NF; Washtenaw County Circuit Court Judge Archie C. Brown in the case of Gedda v State Farm Mutual Automobile Ins Co, Case No. 22-152-NF; and Clinton County Circuit Court Judge Shannon L.W. Schlegel in the case of Kuhlgert (Ostendorf) v State Farm Ins Co, Case No. 21 12102-NF. Furthermore, numerous trial court judges issued injunctions, temporarily preventing the 2019 amendments from being enforced against patients while the issue was being fully litigated in other cases.

VICTORY FOR THE INJURED

Oral argument in Andary was finally held on June 7, 2022 in front of Judges Jane Markey, Douglas Shapiro, and Sima Patel. On August 25, 2022, the Court of Appeals issued a published, 2-1 decision, written by Judge Douglas Shapiro, joined by Judge Sima Patel, ruling that the 2019 amendments could not be retroactively applied to individuals who purchased policies and whose right to no-fault benefits vested before the amendments were enacted. In so ruling, the Court specifically reached three specific holdings: (1) the 2019 amendments did not contain any language whatsoever evidencing an intent by the legislature to apply these amendments retroactively to individuals injured prior to their enactment and, therefore, the longstanding legal principle that new legislation is presumed to have prospective application only could not be overcome; (2) even if the amendments had contained

sufficient provisions confirming that the Legislature had intended to apply these benefit reductions retroactively to persons who purchased policies and were injured before the changes went into effect, such an attempt at retroactive application would be an unconstitutional violation of the Contracts Clause; and (3) the trial court improperly dismissed plaintiffs’ constitutional equal protection and due process challenges, for the reason that those constitutional challenges required factual development in order to properly determine their validity.

In elaborating on its conclusions, the majority opinion stated in pertinent part:

“On the date of the accidents, the recovery of PIP benefits for an injured person’s care, recovery or rehabilitation was limited only by the reasonableness and necessity of the provider’s customary charges. These statutory provisions were expressly referenced or incorporated into the pre-amendment no-fault policies. Therefore, insureds and those whose benefits are provided by their policies had a legitimate expectation that should they be injured in a motor vehicle accident, they would receive unlimited lifetime benefits, so long as the charges were reasonable and the care reasonably necessary. These individuals ‘did not bargain for or contemplate,’ that limits would be placed on the amount of attendant care family members can provide an injured person, or that treatment not compensable by Medicare would be limited to 55 percent reimbursement from the insurer. And these new limitations do not create minor or collateral effects on those settled expectations; to the contrary, they directly and drastically limit the ability of motor vehicle accident victims to continue to obtain the care they require. Indeed, accident victims and those who care for them have relied on these benefits for nearly 50 years… [S]ince the insurers have already been paid for the benefits promised under those policies, retroactive application would permit insurers to retain all the premiums paid prior to the 2019 amendments while allowing them to provide only a fraction of the benefits set out in those policies. Giving a windfall to insurance companies who received premiums for unlimited benefits is not a legitimate public purpose, nor a reasonable means to reform the system… the lifetime unlimited benefits that the insurers were paid for will be severely impaired if the amendments are given retroactive effect. Defendants have not shown that retroactive application of the amendments is necessary to accomplish the goal of lowering no-fault policy premiums. Nor have defendants explained how applying the amendments to those injured before the amendments’ effective date is reasonable, especially considering that the relevant premiums have already been paid in full.”

Andary et al. v USAA Casualy Ins Co et al., __ Mich App __ (2022) (Docket No. 356487); slip op at 6 – 7, 13 (internal citations omitted).

Judge Markey dissented, asserting that there was sufficient indication of a legislative intent to apply the benefit limitations retroactively and that any interference with existing contracts was not substantial enough to violate the Contracts Clause. Moreover, Judge Markey believed that reducing the benefits of accident victims injured before the recent legislative amendments was reasonably related to the premium reduction objectives of the new law.

Importantly, this is a published opinion, which, pursuant to MCR 7.215(C)(2), means it has immediate, binding, precedential effect on all other cases, unless and until it is overturned by the Michigan Supreme Court.

JOY AND HOPE FOR THE INJURED… INSURERS APPEAL TO SUPREME COURT

The Andary decision brought joy, relief, and hope to those catastrophically injured prior to June 11, 2019, and their medical providers. These people felt the judicial system reached a fair and just outcome on the retroactivity issue. Moreover, the decision gave them hope that their unique rights under the original Michigan no-fault law would be preserved, which would, in turn, protect their access to care. George T. Sinas, who is also lead counsel in the Andary litigation, recently gave the Michigan Association for Justice his reaction to the recent Court of Appeals’ decision:

“It’s important for the public to understand the terrible injustice that this court decision so appropriately addresses. The insurance industry’s attempt to retroactively apply the medical benefit cuts contained in Michigan’s new auto no-fault insurance law to those patients who sustained severe injury years before the law went into effect, has been devastating. Thousands of Michigan families who purchased auto insurance policies that did not contain these severe benefit reductions have been subjected to a cruel rule change that has deprived them of the essential care that they had been receiving; that they were depending upon; and that they had previously paid premiums to secure. It is indeed uplifting to see our court system protect Michigan consumers and disabled people by not allowing their vested legal rights to be taken away by inappropriately applied legislation.

Unfortunately, the insurance industry has announced its intent to appeal the Court of Appeals’ decision to the Supreme Court in furtherance of its totally baseless claim that this decision will interfere with the premium-reducing objectives of the new auto insurance law. The fact of the matter is that the insurance industry has never come close to proving that stripping existing patients of their medical benefits has anything whatsoever to do with significantly reducing premiums for consumers in the future. In reality, there is no such connection. Whether or not the new law will achieve meaningful premium reductions going forward, will depend upon how well it performs with respect to future consumers and future patients. Moreover, the recent $400 MCCA premium rebate, touted by the insurance industry in the Andary case as a product of the new law, was not anything that was mandated by that legislation. Rather, it was likely the result of an independent decision by the insurance executives who run the MCCA to better leverage the industry’s position regarding the legal issues raised in the Andary litigation. In truth, such a rebate could have been made years ago, when knowledgeable observers warned that the MCCA was overfunded as a result of years of collecting unnecessarily high premiums.

In the end, the real significance of the Court of Appeals’ decision in Andary is its affirmation of the principle that it is not appropriate, in the name of lowering insurance costs for all, to take away from a few, those healthcare benefits they paid hard earned money to purchase. Simply stated, “robbing Peter to pay Paul” is not justice—it is fundamental injustice.

We are hopeful that the Michigan Supreme Court will, as did the Court of Appeals, embrace these important legal principles and affirm the landmark Andary decision.”

The defendant insurance companies have appealed this decision to the Michigan Supreme Court. The Supreme Court does not have to take the case. If the Court takes the case, the case will likely remain in the Supreme Court for at least a year or two before all briefs are filed, oral argument is held, and an opinion by the Supreme Court is rendered. However, the decision from the Court of Appeals is certainly a step in the right direction towards restoring benefits and civil justice for some of Michigan’s most vulnerable people.

1. See MCL 500.3107 and MCL 500.3157 (prior to Amendments through Publics Act 21 and 22 of 2019).

2. See MCL 500.3107c.

What motivated you to become a trial lawyer? Family. My paternal grandfather was a worker’s compensation lawyer in the Detroit area for nearly three decades. I remember listening to his stories about helping workers fight large corporations and protecting their rights. Then, a few weeks after my first year of law school ended, a cousin was killed in a workplace incident—that loss motivated me to become a trial lawyer. I wanted to help good people through tough times.

When did you become a member of MAJ?  Why did you decide to join? Originally, I joined MAJ in 2008 to learn from leaders in the worker’s compensation field, like John Charters and Robert MacDonald. Every year for the MAJ worker’s compensation seminar, the leadership would produce a binder of form letters, sample pleadings, caselaw summaries, and other documents for the section membership. Those binders helped make the section stronger. I was grateful the leadership was willing to share their best practices with all of us.

Why do you feel it is important for trial lawyers to be a part of MAJ? Being a part of MAJ feels like being a part of the largest law firm in the state. The listserv is an invaluable resource. MAJ members are quick to answer questions and offer advice on how to handle challenging issues.

Please describe the extent of your MAJ participation (offices held, committees, AAJ, etc.): I am a sustaining member of MAJ and a member of the executive board. I am also a member of AAJ and the AAJ workers’ compensation section.

You have made a strong commitment to the JUSTICE PAC.  Why do you feel supporting the PAC is important? In 2010-2011, when the legislature embraced big business’s desire to reform the worker’s compensation laws, MAJ led the fight against awful versions of the draft bills. I saw first-hand the importance of giving those who support the goals of MAJ the resources they need to fight back.

What is distinctive about your practice?  And your firm? I like to describe my practice as “worker’s compensation and…” I enjoy handling worker’s compensation cases that include first or third-party auto claims OR a worker’s compensation case that includes a medical negligence case OR a worker’s compensation case that includes a product liability claim. My firm, Conybeare Law Office, P.C., is located is the southwest corner of Michigan. Since 1984, Conybeare Law Office has proudly upheld the rights of thousands of clients.

What was your most satisfying case? I represented a construction worker who fell through a roof and suffered a spinal cord injury resulting in paraplegia. We went through multiple rounds of litigation to get his medical benefits and wage loss benefits paid. He struggled to find a wheelchair-accessible living arrangement while we were in litigation. I was able to work with the rehabilitation provider to find housing for him. Ultimately, we secured the benefits he needed to secure long-term housing, buy an accessible van, and re-enter the workforce.

Please provide a brief description of your interests outside the practice of law. I am passionate about aviation. I am a licensed private pilot working on an instrument rating. I also enjoy traveling with my wife and two children—especially summer camping trips and winter ski trips.

How Regulatory Sandboxes Benefit the Wrong People and Jeopardize the Integrity of Law in Michigan & Beyond

In January 2021, Justice Bridget M. McCormack announced the creation of the Justice for All Commission in an effort to assure 100% access to the civil justice system and to make the court system easier to navigate.

Years earlier, in 2015, the Conference of Chief Judges set the goal of assuring “100 percent access to effective assistance for essential civil legal needs through a continuum of meaningful and appropriate services.” 1 Thereafter, the American Bar Association issued its 2016 Report on the Future of Legal Services In the United States2 which concluded, inter alia, that economically disadvantaged individuals do not receive the legal help they need for a variety of reasons, including a lack of financial resources to retain counsel and a lack of knowledge to recognize that their concerns involve a “legal dimension.” According to the ABA study, the current system is compromised by bias, discrimination, complexity, and a lack of resources.

In 2020, in furtherance of the goal to provide 100% access, the Conference of Chief Judges urged consideration of “regulatory innovations” that included “authorization and regulation of new categories of legal service providers, the consideration of alternative business structures, and the reexamination of provisions related to the unauthorized practice of law.”3

Unfortunately, the pursuit of innovative solutions to the problem of access, has led to the exploration and creation of misguided regulatory “sandboxes” that seek to open the legal marketplace to non-lawyer practitioners and investors. This path, now being considered by Michigan’s Justice For All Commission, does remarkably little to close the civil justice gap while raising serious concerns regarding corporate influence in the context of legal services, jeopardizing the legal profession and those we represent.

Cause for Concern

In Michigan, the Rules of Professional Conduct provide a framework for the ethical practice of law. The Rules require attorneys to act with competence, diligence, and loyalty. Attorneys are required to be free from conflicts of interest that could jeopardize the priority of their clients’ interests over their own. To this end, MRPC 5.4 clearly prohibits attorneys from sharing fees with non-attorneys as the most direct and effective way to protect the lawyer’s obligation to exercise professional independence in putting a client’s interest first.

Those who advocate for the proposition that non-lawyers should be able to own “law firms,” contend that it will result in additional funding for, and an expansion of, legal services. However, the search for additional resources from non-lawyers to effectively subsidize legal services, endangers a lawyer’s independence if it results in non-lawyers owning or controlling those services.

Notwithstanding the risk to professional independence, the push toward enhancing access has led to consideration of alternatives that open the door to non-lawyer involvement. In some instances, regulatory sandboxes have been proposed. So called “sandboxes” have been introduced in the financial services and insurance fields as alternatives that allow businesses to “experiment” with new products, services, and business models. “Legal service sandboxes” result when a state judiciary or a state bar provides for similar experiments in legal services industry.

Two business models that proponents of sandboxes regularly cite as potentially revolutionary, are lawyer “matching services” and non-lawyer ownership of law firms.

“Matching Services”— Fee Sharing with Non-lawyers

One of the changes being contemplated by legal practice regulators would allow non-lawyers to share in legal fees in exchange for a client referral. While referral fees are a recognized practice among lawyers in personal injury litigation, they are much less common in other legal service markets. However, the referral practice could become institutionalized for non-lawyers under the“matching service” model.

These so called “matching services” have been offered in the past—most notably by LegalZoom which matched prospective clients with lawyers for certain types of claims for a fixed fee. In exchange for the match, LegalZoom received a “service fee” that was tied to the price of the service. LegalZoom stopped offering the service after many jurisdictions held that this business model constituted impermissible fee sharing with a non-lawyer.

Utilizing a newly created experimental regulatory sandbox, this “non-lawyer matching service” business model could see a resurgence despite the fact that non-lawyer companies who provide referrals in exchange for a percentage-based fee—particularly in contingency fee cases,—pose an existential threat to both the personal injury bar and to the ideal of civil justice.
At its most extreme, a sandbox could allow the emergence of a Platform Lawyer Referral Service (PLRS) that specializes in customer acquisition, adds nothing of value, but takes a cut of all legal service fees anyway. Such structures could actually harm the potential client and further damage the public’s perception of lawyers.

Free of any ethical or legal duty to the client, (including those that prevent conflicts of interest), a PLRS could come to control the market for clients and, through that economic pressure, impair or effectively eliminate the handling lawyer’s independent professional judgment and reward those who “process” files most rapidly and at least cost. An unchecked, or loosely regulated, PLRS could exert disproportionate control over the market for legal services motivated solely by its own economic interest with the client’s interest coming in at a distant second.

Non-lawyer Ownership of Law Firms

Another alternative business model within these regulatory sandboxes, is the option that provides for non-lawyer investment in firm ownership. The theory is that this option provides for enhanced funding which, theoretically, provides for greater opportunity to fight civil justice battles against well-funded adversaries. This model may take different forms however. For years now, regulations in Washington D.C. have allowed minority non-lawyer partners who work in the firm to share in the firm’s profits with little reservation or complaint. At the other end of the spectrum, however, this model could allow for publicly traded personal injury firms like Slater and Gordon Limited, which has sparked repeated concerns regarding client loyalty.

An Idea Gaining Traction

In recent years, the ideas of non-lawyer fee sharing and/or firm ownership have gained traction through empirical data—like the ABA report--which demonstrates a lack of access to affordable attorneys for low- and moderate-income individuals. However, data that demonstrates the “need,” does not inherently create the “solution.” There is a problematic gap between the idea that there is unmet legal need in the U.S., and the idea that private equity should share in legal fees or own law firms outright. The experience in the U.K. is relevant. Regulatory sandboxes creating a path toward non-lawyers and private equity in legal services have been embraced in the United Kingdom for years now, but the practices there have uncovered flaws.

Regulatory Sandboxes Abroad

The U.K.’s Legal Services Act 2007 is consistently pointed to as a model for legal innovation. While the Legal Services Act 2007 explicitly “reserved” certain legal activities to solicitors and barristers, it provided for the creation of Alternative Business Services (ABS) that allowed solicitors to create partnerships with non-lawyers, accept outside investment, and operate under external ownership.

While the vast majority of ABSs were existing legal service providers who sought to expand, experiment, or raise outside capital, the U.K. also saw cases of outside firms buying into the legal services market. For example, Ernst and Young (EY), a Big Four accounting firm, purchased Riverview Law to enhance and scale their legal managed service offerings in 2018; after that purchase, EY put product managers in charge of their lawyers and streamlined their legal service offerings. Overall though, it was the personal injury market—and specifically the contingency fee personal injury market—that was the biggest magnet for outside investment, since the no-win-no-fee model was seen as the best way to maximize leads and profits.

However, the experience in the U.K. does not support the contention that opening the door to non-lawyer participation or ownership, enhances access to justice– the original motivator for such considerations. According to a review conducted in 2016, “ABS reforms alone (were) not sufficient to effect dramatic changes in access to justice.”4 In fact, the research demonstrated that most low and moderate income consumers still face the “same two fundamental problems in accessing legal services: an inability to identify legal problems as legal in their own lives and an inability to make informed (both on price and quality) decisions to find legal help.” Id. The U.K. instituted various regulatory changes in 2018 to increase transparency and further regulate offerings, but as recently as this year, its Legal Services Board was still modifying and changing statutory “statement(s) of policy” because the 2020 Individual Legal Needs Survey demonstrated a continuing, substantial “unmet legal need involving a dispute each year.”5

Current State Efforts in the U.S.

There have been serious moves in the States toward non-lawyer involvement as well. In August of 2020, Utah commenced a 2 year pilot program (now extended to 7 years) that allows entities owned by non-lawyers to apply to a state agency for authorization to provide legal services. These are experiments with unique regulatory requirements that applicants must meet- hence the term “regulatory sandboxes”– but the basic point is still that non-lawyers may control the provision of legal services.

Within weeks after Utah took the plunge, Arizona’s Supreme Court announced it had voted unanimously to abrogate its version of MCPR 5.4– by eliminating the ethics rule that previously prevented non-lawyers from having an economic interest in a law firm or participating in fee sharing. This “reform” went into effect in Arizona on January 1, 2021. Unlike Utah, “Arizona will not establish a “sandbox,” but will require proposed alternative business structures go through what (is) described as a ‘rigorous application process’” and “comply with a code of conduct that mandates they have an internal compliance attorney.”6

The Arizona task force argued that the ABS promotes access by promoting market competition and multidisciplinary practices. Arizona also provided for a new type of practitioner– a legal paraprofessional who can practice in limited fields. Taking a different path, in November of 2021, the Florida Bar Board of Governors unanimously opposed non-lawyer involvement in law firm ownership and in fee splitting.

Other states that have explored, or are currently exploring, the idea of regulatory sandboxes include California, Illinois, Oregon, Connecticut, New Mexico, New York, North Carolina, Virginia, Washington, and, of course, Michigan. Many of these states received enough push-back to halt advancement, and others are opting to take a “wait and see” approach as Arizona and Utah implement the change.

Ignorance of Contingency Fees

What’s puzzling is that the goal of providing access to justice for those without resources, is at the core of the contingency fee arrangement. And yet, the state exploratory task forces or committees minimize the role that contingency fee lawyers play in providing and increasing access to justice. Legal service “innovators” fail to account for how their proposed changes to the practice of law could erode gains and create a less accessible system for those seeking legal services for personal injury, discrimination, employment, or any other claim regularly handled on a contingency fee basis.

The contingency fee model succeeds in providing poor and moderate-income Americans access to the best lawyers in the country to handle a wide variety of legal needs. The effort to “out-source” control of law firms and the legal practice to those without the legal skill or professional ethical obligations, seems destined to impair, not enhance, the provision of quality independent legal services.

Redirecting Focus

One issue that deserves more attention than regulatory sandboxes in bridging the civil justice gap is adequate funding for the courts and for court services. Increasing funding would allow for innovative proposals that generate greater access to both physical and virtual courtrooms , online dispute resolution, court trained and supervised civil case managers, and a streamlined litigation process with more facilitators to assist lay persons as they navigate the process.

Alternative solutions—such as increased legal aid funding and expanding law student practice rules—need to be seriously considered. Online hearings should be expanded and promoted. Many courts have not even digitized their records process or continue to operate with systems that are out of date and which the public cannot understand.
Sadly, many state bar proposals do not emphasize funding as an access to justice issue. Instead, the funding discussions focus on how to leverage user fees to pay for a “sandbox” or “alternative business structures” approval process.

The Road Ahead

There is no doubt that the goal of 100% access is laudable and requires resolve and innovation to implement. But eliminating MRCP 5.4, and opening the legal services market to non-lawyers is not a reasonable or effective means to attain that goal. It has not worked as expected in the U.K. and it jeopardizes the lawyer’s legal independence and the ethical obligations to consider the client’s interest first and foremost. Importantly, it further diminishes the professional image of the lawyer as someone primarily motivated by money, not a cause.

The civil justice gap needs to be closed, but when it comes to the legal services market, “Justice for All” should not mean a “free for all.”

1. CONFERENCE OF CHIEF JUSTICES- Resolution 2; Urging Consideration of Regulatory Innovations Regarding the Delivery of Legal Services https://www.ncsc.org/__data/assets/pdf_file/0010/23500/02052020-urging-consideration-regulatory-innovations.pdf
2. Report on the Future of Legal Services in the United States; Commission on the Future of Legal Services; American Bar Association; 2016. https://www.americanbar.org/content/dam/aba/images/abanews/2016FLSReport_FNL_WEB.pdf
3. CONFERENCE OF CHIEF JUSTICES- Resolution 2; Urging Consideration of Regulatory Innovations Regarding the Delivery of Legal Services https://www.ncsc.org/__data/assets/pdf_file/0010/23500/02052020-urging-consideration-regulatory-innovations.pdf
4. UK Legal Service Reforms Under the Legal Services Act (2007): A Brief OverviewLucy Ricca, Fellow, Stanford Center on the Legal Profession;February 21, 2019 http://www.utcourts.gov/utc/rulespc/wp-content/uploads/sites/27/2019/02/Summary-of-Legal-Services-Act-and-ABS-regulation.pdf
5. LSB publishes clear expectations for regulators to improve consumer information, promote rights, and drive choice in the legal services market; April 11, 2022 https://legalservicesboard.org.uk/news/lsb-publishes-clear-expectations-for-regulators-to-improve-consumer-information-promote-rights-and-drive-choice-in-the-legal-services-market
6. Arizona approves nonlawyer ownership, nonlawyer licensees in access-to-justice reforms; August 28, 2020. https://www.abajournal.com/web/article/arizona-approves-alternative-business-structures-as-part-of-access-to-justice-reforms

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When Sima Patel graduated from Thomas M. Cooley Law School in 2005, she already felt a calling to a career in appellate law. During her last term of school, Patel was selected for a prestigious judicial externship with late Michigan Supreme Court Justice Elizabeth Weaver.

Showing excellent oral and written ability during the externship, Patel was extended a clerkship with Justice Weaver’s chambers—her entrée into the world of appellate law and a rare view into the inner mechanics of a state’s Supreme Court.

A true maverick in every sense of the word, Weaver instilled in Patel a mantra of “do right, fear not,” which has guided her career ever since.

After finishing her clerkship, Patel moved back to her home state of Colorado in hopes of practicing law there. This was, however, at the beginning of The Great Recession, and there were no jobs to be found.

In the midst of a long, fruitless search, she received a call from the office of newly elected Michigan Supreme Court Justice Diane Hathaway. Patel had been recommended by Justice Weaver and was offered a clerkship. So, she moved back to Michigan and continued her foray into appellate law.

While working under Justice Hathaway, Patel met her next mentor—a senior law clerk on staff named Janet Brandon. An experienced lawyer and longtime MAJ member, Brandon taught her the importance of tenacity, perseverance, hard work and fortitude amidst pushback, denigration or gaslighting from others.

It was at this stage of Patel’s career that she learned of an opening at Fieger Law, one of the only law firms in the state with an appellate litigation practice at the time. Where the courts taught her about appellate law from a largely theoretical, interpretational lens, Fieger offered a more tangible, boots-on-the-ground experience.

A Fieger Law attorney for more than a decade, Patel fought for equal access to justice and protection of law for all members of society, and ensured her clients got the best representation possible against big corporations, insurance companies and governmental entities.

On her way to becoming one of the best appellate lawyers in the state, it took a global pandemic for Patel to step back, think deeply about her career path and begin to seriously ponder the idea of becoming a judge.

“While I love being an appellate lawyer and an advocate,” said Patel, “I think it’s important to have judges on the court that offer a different perspective and voice. Representation matters, and I felt a calling to take things a step further, become a steward of the law, and amplify the reasoning, rationale and perspective already present in the courts today.”

With a desire to shape the law for future generations, Patel explored her path to the bench. When Court of Appeals Judge Jonathan Tukel tragically passed away in September 2021, she applied for the seat and was chosen by Governor Gretchen Whitmer for the position.

“How the law is interpreted and applied across Michigan has a profound impact on everyone’s lives and adds to the body of knowledge that governs this state,” said Patel. “At the end of the day, people want fairness from their judges and to know that, if they go to court, they’re going to get a fair shake. I want to add to that perception and carry it forward.”

Aside from her incredible work in appellate law, Patel is also a passionate MAJ member who is heavily involved in the organization’s Amicus Committee. There, she writes briefs at the appellate level, and influences the voice behind pertinent issues affecting the people of Michigan.

“The work MAJ does is so important and can’t be underscored,” said Patel. “No other organization stands up for the little guy more than them, and the fact that we can come together, pool our minds and resources, and help our clients get more justice is truly special.”

Blake Ringsmuth knew from the ninth grade that he wanted to become a trial lawyer—someone people looked to when their lives turned upside down and they needed an advocate to stand up for them. “In college, I watched trial attorneys Dean Robb and Mike Dettmer try a heart-wrenching wrongful death case, and that sealed it,” said Ringsmuth. 

 Becoming an MAJ member more than a decade ago, Ringsmuth “joined because I believe our voice is stronger when we speak in unison and in numbers,” he said. “Also, it can be pretty stressful and lonely fighting the good fight every day, and it is nice to be around—and supported by—   like-minded folks who know what we go through.”

 Involved as a speaker at several different MAJ functions, and attendee of many more, Ringsmuth believes MAJ is important because of the resources we offer—including insight, support, and formal educational programming.

 “The organization supports a fantastic group of leadership and staff that have done excellent work for the people of Michigan and the lawyers who do battle on behalf of the little guys,” he said. “MAJ is the tip of our state’s trial lawyer spear, and for that I am thankful.” 

Having made a strong commitment to MAJ’s Justice PAC (JPAC), Ringsmuth believes it’s important to support our efforts on this front. “Supporting JPAC is important because it takes money to bring about justice reforms in this state,” he said. “Look at what is spent on Supreme Court elections alone, and there is just too much at stake not to do what I can to undo some of the special interest-driven law that still exists in Michigan.”

Currently one of the principal trial attorneys at RingsmuthWuori, PLLC, Ringsmuth enjoys the mix of injury, employment, and civil rights cases his practice takes on. “I am lucky to have cases that not only interest me, but are important to our community and not solely based upon financial considerations,” he stated. “I look at my law license as being deputized to make my community a better and safer place—or as I like to say, ‘mess with the bad guys.’”

His most memorable and satisfying case was a sexual harassment suit against MDOT. The department knew the supervisor had been terrorizing his female subordinate but promoted him anyway. After more than 20 depositions all over the state, MDOT removed the case to the Court of Claims and sought dismissal—arguing that there was no right to a jury trial against the State under the Michigan Civil Rights Act. “It lost, but appealed,” reminisced Ringsmuth. “After going to the Michigan Supreme Court and losing, MDOT settled for $2.75M, all of which was solely non-economic damages.” Ringsmuth and his firm also made law in the state in a published opinion. Doe v MDOT, 324 Mich App 226; 919 NW2d 670 (2018). 

Ringsmuth is also currently involved in a First Amendment retaliation case against a local county commissioner who brandished a high-powered rifle at a citizen for exercising their right to free speech at a public meeting. The case and incident have garnered national attention.

Outside his practice of law, Ringsmuth enjoys playing guitar, fly fishing, traveling, and being with his wife and two dogs. “And the occasional trip to Ann Arbor to see my kids rounds out my life nicely. Go Blue!” he said. 

When asked if he had anything else to share, Ringsmuth said, “Being a trial lawyer is a privilege. As long as I keep that fact in the forefront of my mind, I stay focused, grateful, and persevere.”

by Senator Erika Geiss (D - Taylor)

Committees: Transportation & Infrastructure (Minority Vice Chair), Insurance & Banking (Minority Vice Chair), Education & Career Readiness, Economic & Small Business Development

For Black and Brown America, the criminal justice system has always been broken. The senseless murders of George Floyd and Breonna Taylor, and the events surrounding them over the past 16 months, have only heightened the stark difference in how people view and define “justice.” These two tragedies have redefined the national narrative, and rightfully so, as they were both heartbreaking and avoidable, and brought police accountability to the forefront of discussions nationwide.

For years, Democrats have been working to make improvements to policing, but so often these opportunities have been undermined by a structure that stymies change and perpetuates institutionalized racism and systemic discrimination. During this term, though, we have an incredible opportunity to come together over these tragedies and work in a bipartisan way to collectively bend the moral arc of the universe toward justice.

In late May, a bipartisan group of senators introduced a 12-bill package to make improvements to policing — specifically regarding policing procedures, accountability and transparency. These measures are a part of a larger, multifaceted plan to restore public trust in police departments and police procedures.

It’s clear what we need to do to improve policing procedures across Michigan: We must reduce the potential for high-intensity police encounters, ensuring the safety of both police officers and the people they swore to protect and serve. Under Senate Bill 481, officers would be required to update their Use of Force policies to include a use of force continuum, verbal warning, and exhaustion of alternatives before using deadly force. In the case of an officer-involved death, each agency would be required to have a publicly available policy in place for independent investigations into these situations to ensure safety and that the proper procedures are followed.

To shore up additional safety for our communities, we also need to improve upon how police are allowed to enforce the law. “No-knock” warrants need to be eliminated, and we need a better definition of the alternative to a “knock and enter” warrant — which I sponsored. We must also eliminate the use of chokeholds except in the most charged situations when a police officer’s life is in clear and imminent danger.

For too long, policing institutions have been protected from true accountability measures. This 12-bill package aims to address this, as well as the need for police to rebuild trust among the people they serve. To that end, Senate Bill 480 would require police officers intervene when another officer uses excessive force. This would hold even more importance for another bill, Senate Bill 484, to make it a misdemeanor for law enforcement officers to tamper with body cameras or intentionally turn off cameras for the sake of interfering with an investigation.

When it comes to public safety, we cannot have “bad apples” recycled in the system and rehired in another jurisdiction after they are separated and released from their former policing job. Senate Bill 474 addresses this practice by requiring Use of Force violations be included in separation records. This would allow hiring police departments to have thorough record of service when reviewing applications for new officers.

Additionally, there is the need to ensure that officers of any rank and experience level remain properly trained and educated on the changing ways of modern policing in America. Senate Bill 482 would require officers to undergo new training standards regarding de-escalation, implicit bias, and behavioral health, along with required continuing education.

After years of senseless killings, it’s past time to harness the momentum of change so we can ensure such tragedy never happens again. With the help of my colleagues on both sides of the aisle, now is our time to make the changes the people of Michigan need.

With the support of the Michigan Association for Justice and the American Association for Justice for our bipartisan legislation, we have the power and incredible opportunity to make policing safer in our communities and save lives. Let’s do it.

By Carla Aikens; Carla D. Aikens PC, Detroit

I am proud to announce the launch of the James W. Baker Trial Lawyers Caucus, a group comprised of African-American MAJ members. We are starting things off with a virtual “kick-off” event in the coming weeks. For those not familiar with James W. Baker, he was the first African-American President of MAJ from 1968-1969 who left behind a legacy of fighting for justice.

Following the events of last summer, sparked by nationwide fallout after the death of George Floyd and Breonna Taylor, I approached MAJ President Donna MacKenzie and Executive Director Steve Pontoni to discuss the prospects of starting such a caucus to help MAJ become a more all-encompassing organization that better reflects the diverse clients and communities we serve.  Not surprisingly for anyone who knows them, both Donna and Steve enthusiastically supported this initiative.

For any MAJ members who are also AAJ members, this new caucus closely aligns with the goals of the AAJ Minority Caucus, including in the areas of education, membership, public service, scholarship, and social events.  We will also work closely to support the initiatives of other affinity caucuses within MAJ, including the Women’s Caucus, of which I am also a member.

Our hope is that the Caucus will be able to increase recruitment and retention of African-American members of the plaintiffs’ bar of the State of Michigan and also increase dialogue about issues that disproportionately impact us and our diverse clientele. I understand that these issues can be difficult to discuss and navigate, so I have been particularly encouraged by the support from MAJ that I have received.

I am aware that there were some challenges to starting this Caucus in the past, and I am grateful to everyone who has assisted in getting us to this point, including many AAJ members and staff.  I am always looking to operate as efficiently as possible in everything that I do, so I welcome any questions or comments that you may have about the Caucus and/or its initiatives. 

Thank you again, and I look forward to working with the entire MAJ membership as a member of this new Caucus.

by Kelly Breen (D - Novi)

Committees: Judiciary and Insurance

On January 13, 2021, the elected members of the Michigan House and Senate convened to begin the 101st Michigan Legislature. Seated in the hallowed chamber, I began to digest my historic surroundings and understand my new responsibilities as a freshman legislator. While the pandemic has thwarted some traditional ceremonial aspects of assuming state office, I am honored and thrilled to serve the 38th District. As necessity is the mother of invention, people and organizations found new ways to function, communicate, and cope.

              We are lingering in purgatory, waiting for a tipping point in the war on COVID-19 foisted upon our democracy by an outgoing Federal administration. Michiganders are no stranger to the domestic strife seen in recent weeks. In these moments, I am reminded of the importance of advocacy and grateful for those who join a cause greater than themselves. I find comfort knowing in every area of our state’s legal system, there are advocates working towards a brighter tomorrow. Organizations like the Michigan Association for Justice, and the advocates who comprise its membership, will certainly continue to lead the way in finding the solutions that our communities are depending on.

              In the area of workers’ compensation, MAJ advocates are poised to take on the fight for fair job search standards and ensure the people who are injured on the job are treated with the dignity they deserve. Public health advocates, who have valiantly helped to inform and advise our community leaders over the past year, will continue to sound the alarm on how current pandemic has pulled back the veil on a greater inequality that exists in our state and our country.

              There are advocates who have committed themselves to fight for a more equitable criminal justice system. There are advocates who will continue to be forceful defenders of respectful debate and uphold the values of our constitutional system. There are advocates who will heed the call to support their neighbors’ well-being and be a part of something greater than themselves. These advocates continue to make MAJ a force to be reckoned with in the coming years.

              2020 has shown us there is never a bad time to become an advocate. Advocates will continue to provide a voice to the masses in our society who go unheard in the halls of power. As former U.N. Ambassador Samantha Power once said, “All advocacy is, at its core, an exercise in empathy.” As we begin this new year and this new legislative term, I am proud to bear witness to the empathy of so many of my fellow MAJ members and the brilliant advocacy work that so many people are doing every day. I am honored to be a member of this wonderful organization, and I look forward to working with you all to bring our advocacy to the Michigan House of Representatives this year.

The Michigan Association for Justice’s number-one goal going into the 2020 Election was to remove the anti-civil justice majority on the Michigan Supreme Court that for nearly a generation had been responsible for some of the most conservative and regressive case law in the country.

Mission accomplished!

In a truly historic outcome in what turned out to be the highest turnout election in Michigan h i s t o r y with over 5.5 million voters -- despite an uncontrolled pandemic -- wins by Chief Justice Bridget McCormack and MAJ Member Elizabeth Welch cemented a 4-3 civil justice majority on the court. Out of seven candidates on the ballot for Michigan Supreme Court where voters could choose two, Chief Justice McCormack won reelection with 2.3 million votes. Justice-Elect Welch finished second with 1.4 million votes. Republican-nominated candidates Mary Kelly and Brock Swartzle finished third and fourth with 1.2 million and 1.0 million votes, respectively.

The MAJ Executive Committee, MAJ PAC Board chaired by Barry Fagan, and staff started developing the strategy and laying the groundwork back in January to flip the court. Along with being outstanding and well-qualified candidates, McCormack and Welch were backed by MAJ’s Full Court Press (aptly named by MAJ Vice President Stu Sklar), a comprehensive and multifaceted endeavor to receive assistance from key allies, build name recognition, deliver the candidates’ messaging, and encourage voters to fill out the nonpartisan section of their ballots.

Collectively, MAJ members raised and contributed more than $1.9 million to Justice PAC. That money leveraged an $8-million independent expenditure campaign with labor and progressive groups focusing on the early voting period six weeks prior to the election. It included tv, radio, digital media, and mail. MAJ members dug deep and provided the time, energy, and financial resources to execute the campaign and achieve one of the biggest election wins in the association’s 75 years.

“This November, Michigan voters have the chance to elect two strong, qualified women to the state Supreme Court. Chief Justice Bridget Mary McCormack and Elizabeth Welch have proven time and again a commitment to fairness and equal justice under the law. They will fight corruption and bring balance back to a court that for too long has favored big money interest groups. Michigan families deserve leaders who will protect the rights of everyone, not just the wealthy and powerful. I’m proud to endorse Bridget Mary McCormack and Elizabeth Welch for Michigan Supreme Court, and I urge all Michiganders to vote McCormack and Welch on the nonpartisan section of their ballots.”

--Vice President Joe Biden