Hearing Panel Dismissal Reversed

The Michigan Attorney Discipline Board reversed a hearing panel order directing the Administrator to prove authority to bring charges

The hearing panel erroneously concluded that the Grievance Administrator was required to produce written evidence or other documentation showing that the Commission had received authorization to file the complaint. These documents are not within the scope of MCR 9.115(F)(4), which provides for the disclosure of documentary evidence “that is to be introduced at the hearing by the opposing party.” There is no indication the Grievance Administrator intends on introducing the requested documents as evidence. Therefore, disclosure of these documents is not required under MCR 9.115(F)(4).

The panel erred in dismissing the matter

Here, when the Grievance Administrator signed the Formal Complaint, he was entitled to a presumption that the Commission had approved the filing. Respondent has not put forth any evidence to rebut this presumption, and the hearing panel erred in finding otherwise. Respondent asserts that he does have evidence, and relies on a May 24, 2016 letter that indicated “the Commission determined that the evidence reviewed does not warrant further action” and that the Commission “has directed that this Request for Investigation be closed.” (Respondent’s Attachment B.)

Respondent’s reliance on the May 24, 2016 letter is misplaced. On August 15, 2017, the complainant filed a complaint for superintending control with the Michigan Supreme Court. On September 21, 2017, the complainant and counsel for the Grievance Administrator entered into a stipulation to dismiss the complaint for superintending control, in which the Grievance Administrator agreed to reopen the file and resubmit the matter to the Attorney Grievance Commission after further review and analysis. (Petitioner’s Appendix A, p 50.) Respondent was served with the stipulation on the same day. (Petitioner’s Appendix A, p 51.) Therefore, contrary to his claim on review, respondent was aware that the investigation was being reopened. Given these circumstances, there is no difference between this case and any other case where an investigation results in the filing of a formal complaint.

(Mike Frisch)