Reciprocal Discipline Imposed
The Michigan Attorney Discipline Board imposed a 90-day reciprocal suspension based on a like sanction ordered by the New York Appellate Division for the First Judicial Department.
The sanction had been imposed after the New York bar prosecutors had appealed a proposed private admonition
The New York Grievance Committee alleged that respondent engaged in 16 violations of the Rules of Professional Conduct based on seven complaints filed against him. The complaint alleged that respondent engaged in a pattern of neglect and lack of communication in numerous client matters, and that respondent then exacerbated the conduct by failing to comply with court scheduling and discovery orders, and by offering clients monies in exchange for withdrawal of their disciplinary complaints. After referral to a referee, a two-day hearing was held after which the referee found that respondent committed seven of the 16 charged violations. A sanction hearing was then held. Despite the finding of multiple instances of misconduct, the referee recommended that the Court issue a private admonition to respondent.
The New York Attorney Grievance Committee then appealed the referee’s recommendation to the Appellate Division of the New York Supreme Court, and requested that the Court review the referee’s dismissal of certain alleged violations, and increase the recommended sanction to a suspension of respondent’s license. On appeal, the appellate division of the New York Supreme Court found that the referee had erred in dismissing two counts of the complaint; Count 7, wherein respondent engaged in a “quid pro quo” with a client for them to withdraw their complaint, and Count 10, wherein respondent did not adequately communicate with his client. The Court also increased the recommended discipline from an admonition to a 90-day suspension. In increasing the sanction, the Court noted that respondent’s conduct caused prejudice to five different clients, and further that respondent was found to have knowingly failed to comply with court orders regarding scheduling, neglected legal matters, failed to act with reasonable diligence and promptness in a legal matter and failed to promptly refund an unearned legal fee.
The board rejected Respondent’s due process contention
Respondent’s primary argument on appeal, that a hearing is necessary so that his remorse can be properly evaluated, fails due to the fact that respondent has not taken advantage of any of the many opportunities afforded to him to articulate his remorse. Instead, respondent’s argument at every stage of these proceedings has been directed at attempting to re-litigate the New York case under the guise of expressing his remorse. In fact, at oral argument on his petition for review, when given the opportunity to express his remorse, respondent instead pointed to others as the responsible parties for his misconduct and framed himself as the victim of an unruly disciplinary system in New York. We find that the panel properly exercised its discretion in declining to grant respondent’s request for a hearing.
Nor does respondent’s disagreement with the New York appellate court’s decision to increase discipline articulate a basis for a finding that respondent was denied due process in New York. There are two types of due process: procedural and substantive. Procedural due process requires notice and a meaningful opportunity to be heard before an impartial decision-maker. Grievance Administrator v Josephine S. Miller, 19-28-RD (ADB 2020) citing In re Rood, 483 Mich 73, 92 (2009). The essence of a substantive due process claim is the arbitrary deprivation of liberty or property interests. AFT Michigan v State, 297 Mich App 597, 622 (2012). Ultimately, due process requires fundamental fairness. In re Rood, supra, at 92.
Respondent was afforded procedural due process in the New York disciplinary proceedings. Respondent’s matter was first heard by a referee after the complaint was filed against him by the New York disciplinary committee. Witnesses were questioned and exhibits were introduced. Thus, respondent was provided a full opportunity to set forth a defense to the charges. Contrary to respondent’s position that the review of the referee’s decision by the New York Appellate Division was extraordinary, appellate review is part of the procedural process in most, if not all disciplinary proceedings nationwide, and certainly in both New York and Michigan. This Board regularly hears matters on appeal from Michigan hearing panel decisions as to misconduct and sanction. While this Board certainly affords a degree of deference to a hearing panel’s findings, we do often find that certain charges do or do not have proper evidentiary support in the record, or that the sanction imposed should be modified because it is too severe or lenient. That is the very purpose of appellate review.