“Not Optimal” Communication Does Not Establish Ethical Violation

The Michigan Attorney Discipline Board reduced a 30-day suspension to a public reprimand, overturning some of the misconduct findings of a tri-county panel.

As  to one set of charges

With respect to Count One, respondent examined the evidence provided by his client, researched the claims, and drafted a complaint including a whistleblower claim as well as a common law claim to serve as an alternative, all within six weeks of being retained. The communication between attorney and· client was not optimal on this and other points, but it was truncated by his dismissal and we cannot conclude that the facts establish that he failed to keep his client reasonably informed about the status of the matter, failed to comply with reasonable requests for information, or failed to explain the matter to the extent reasonably necessary to permit her to make informed decisions regarding the representation.

“Not optimal” does not mean unethical.

In sum

In sum, as to Count One, it has not been established as a matter of fact and law that respondent committed the rule violations charged in the formal complaint.

With regard to Count Two, the record is sparse but clear enough to support factual findings that respondent took an initial phone call, had an intake meeting, took one more phone call, and then apparently ignored client communication for nearly three months, until he received a demand for the return of the moneys paid by his client, which can only be read as a termination of the relationship. We agree with the panel that the draft complaint he emailed after his termination does not warrant compensation and that restitution of the fee paid is a proper sanction for this Ru1e 1.4 violation.

For the reasons set forth above, we cannot conclude on the record and arguments presented here, that the other charged rule violations have been established. Accordingly, we are not persuaded.

(Mike Frisch)