Shall v. Will
An agreement that an attorney made with complainants to withdraw their bar complaints drew a reprimand from a tri-county hearing panel that has been affirmed by the Michigan Attorney Discipline Board
This case involves two former unrelated clients who filed requests for investigation against respondent. After the requests for investigation were filed, respondent met with each client separately to resolve their issues. Respondent entered into settlement and release agreements with both clients, and drafted the agreements himself.
The agreements involved payments but stated that there was no quid pro quo.
Respondent also drafted affidavits and letters requesting the withdrawal of the grievances that he had the former clients sign, and that respondent then sent to the Attorney Grievance Commission (AGC) on their behalf. (Petitioner’s Exhibits 1, 2, 4, and 5.) The settlement payment to the former clients, the execution of the affidavits, and the signing of the letters sent to the AGC occurred contemporaneously at respondent’s office.
The attorney’s contention
On review, respondent argues that the agreements do not violate MCR 9.104 because they do not require the clients to dismiss their grievances. Respondent testified at the hearing before the panel that he purposely used the word “will” instead of “shall,” to reflect that the clients merely planned to dismiss the grievances at a future time, not that they were required to do so.
That failed to persuade
Both “shall” and will” indicate an intent to make the provisions mandatory…
Here, the panel’s finding of misconduct has proper evidentiary support and is correct as a matter of law. The admitted exhibits and testimony given at the hearing show that respondent entered into agreements with two former clients, each of who had filed separate requests for investigation, that the respective grievances would be dismissed following a financial settlement agreement with each client. This conduct is specifically prohibited by MCR 9.104(10)(b).
(Mike Frisch)