Progressive Discipline
A Tri-County Hearing Panel’s sanction of a suspension of 180 days has been increased to two years by the Michigan Attorney Discipline Board
Were it not for respondent’s serious discipline record, a 180-day suspension might be sufficient. In this case, however, respondent appears to have developed a pattern of indifference. This pattern is continuing, and the misconduct is substantially similar in every case, beginning in 2001. Therefore, the aggravating factors applicable here include respondent’s prior disciplinary offenses, a pattern of misconduct, multiple offenses, and bad faith obstruction of the disciplinary proceeding by failing to respond to requests for investigation. In addition, respondent has been licensed since 1995, so she has the knowledge and experience to know better. Finally, although respondent claims she is not indifferent to paying restitution to make the claimant whole as soon as possible, respondent’s history of paying restitution on time or even at all is questionable at best.
Although we do not agree with the Administrator that the circumstances of this case warrant disbarment, we do agree that this is an appropriate case to employ the concept of progressive discipline. This Board has endorsed the concept of progressive discipline under the appropriate circumstances. Matter of Leonard R. Eston, DP 24/87 (ADB 1988). Furthermore, in earlier decisions, the Board has ruled that “repeated misconduct may evidence the need for more severe discipline.” Matter of 0. Lee Molette, 35391-A (ADB 1981). Likewise, misconduct may be aggravated by a respondent’s recidivism and conscious disregard for the discipline system. Matter ofRoss John Fazio, DP 36/82 (ADB 1983).
The circumstances of this case make it appropriate for progressive discipline in the form of an increase in the length of suspension. Respondent has been repeatedly warned that her conduct does not conform to the Michigan Rules of Professional Conduct; nevertheless, her behavior has remained unchanged. Respondent continues to neglect cases, repeatedly fails to communicate with her clients, and repeatedly fails to refund unearned fees. Respondent has been given every type of help available, from being ordered to attend several seminars and classes put on by the State Bar, to the assignment of a mentor to monitor her practice. Despite this, respondent has failed to correct her behavior, and there is no evidence she is making any effort to prevent the misconduct from occurring again. Also concerning is the fact that respondent has defaulted at least twice in prior discipline cases, and has failed to answer at least four requests for investigation. Respondent certainly cannot claim inexperience or ignorance of disciplinary procedures. See In re Ziegler, 33442-A at 19 (Mich St Grievance Bd 1976). While former misconduct is never a basis for an exact formulation of discipline, respondent’s past pattern of neglect and failure to answer communications from the Attorney Grievance Commission indicates a conscious disregard for the Court Rules. For the protection of the public, therefore, respondent should not be practicing law until she can prove she has a proper understanding of the standards that are imposed on members of the bar, and that she will conduct herself in conformity with those standards.
(Mike Frisch)