Dismissal Without Prejudice Where Bar Prosecutor Disclosed Nonpublic Information

The Michigan Attorney Discipline Board chided the Grievance Administrator for releasing nonpublic information in an order denying a motion for reconsideration 

In this Board’s November 30, 2021 order dismissing the formal complaint without prejudice, we found that the Grievance Administrator improperly referred to nonpublic information in the formal complaint. We determined that, under MCL 769.4a, the information was nonpublic and should not have been set forth in the formal complaint.

The procedural posture of the underlyng criminal matter

we find that a no contest plea under MCL 769.4a, which defers the proceedings until after probation is complete and then actually dismisses the criminal charge, is not akin to an expungement. Here, there was never a conviction; therefore, under the law, respondent is considered to have never committed the offense.

The parties disagreed on timing

When the information first became nonpublic is irrelevant here, however, because either way, it was nonpublic on August 27, 2020, the date the formal complaint was filed. The Grievance Administrator should have known that he could not disclose the details or even the existence of respondent’s criminal case in a public document.

Dismissal without prejudice

This means the Grievance Administrator will have to allege and introduce into the record, admissible evidence of violations of the Michigan Rules of Professional Conduct and/or rules defining misconduct as set forth in subchapter 9.100 of the Michigan Court Rules. We recognize that victims of intimate partner violence sometimes choose not to testify or cooperate in criminal prosecutions or other proceedings. However, the legislature has clearly and  unambiguously provided for certain proceedings leading to deferred sentencing and the ultimate dismissal of criminal charges, and has declared all of the information relating to those proceedings nonpublic. Here, a judge has determined that respondent was eligible for proceedings and dismissal under the statute. As we have said, this does not preclude the petitioner from alleging and proving that the acts constituted misconduct. However, we may not bend the rules or ignore statutes, even in the face of acts we may consider abhorrent. Finally, in light of the District Court’s dismissal, pleading this information is not only a violation of the statute, it is also insufficient to establish misconduct.

(Mike Frisch)