Delay Justifies Sanction Reduction

The Michigan Attorney Discipline Board reduced an 180 day suspension to 60 days in a matter where the Respondent communicated with her represented former client.

The client had been convicted of first degree murder and had both sued the Respondent for malpractice and attacked the conviction for ineffective assistance of counsel.

One the day of a hearing

On the morning of the July 19, 2019 evidentiary hearing, and without Mr. Smith or his attorneys’ permission, respondent visited Mr. Smith while he was being held in the holding cell/bullpen of the courtroom of Hon. Shannon Walker, who was to preside over the evidentiary hearing later that day. Respondent entered the lockup area and spoke with Mr. Smith about the upcoming evidentiary hearing and the civil lawsuit. Respondent specifically told Mr. Smith “You are coming after my livelihood.” (FC ¶¶ 24-26.) When Attorney Marcuz telephoned respondent later that morning to advise that she would only question respondent about her investigation concerning the surveillance video, respondent did not tell Attorney Marcuz that she had spoken to Mr. Smith in the lockup earlier that morning.

Shortly after speaking with respondent on July 19, 2019, Attorney Marcuz met with Mr. Smith and he told her that respondent had met with him earlier that morning and that respondent had agreed to testify truthfully if Mr. Smith dropped the malpractice lawsuit. By that time, and based on her conversations with respondent and Mr. Smith on July 18, 2019, Attorney Marcuz had already told the crime scene reconstruction expert that his testimony would not be needed, and she had notified the prosecutor that Mr. Smith would be waiving the first of the two ineffective assistance of counsel claims. The evidentiary hearing proceeded on the afternoon of July 19, 2019, only with the ineffective assistance of counsel claim premised on the failure to enhance the surveillance video.

Sanction

Here, respondent’s prior disciplinary history is a significant aggravating factor that arguably could place a 180-day suspension within the realm of reasonableness despite the historic range of discipline for a violation of MRPC 4.2, as referenced earlier. That being said, however, we cannot help but take into consideration the length of time that has passed since the underlying event occurred in this matter, including the fact that a suspension of respondent’s license for any length of time will take place nearly five years after the conduct occurred. More important is the unexplained delay that occurred between the filing of Mr. Smith’s request for investigation in October 2019 and the filing of the formal complaint in May 2022, especially in light of respondent’s admissions throughout. We find this to be a factor significant enough to justify a reduction in the suspension imposed by the hearing panel.

(Mike Frisch)