Delay Reduces Sanction

The Michigan Attorney Discipline Board found that the misconduct of an attorney merited disbarment as imposed by a hearing panel but nonetheless reduced the sanction to a four-year suspension due to “unreasonable delay” in the bar prosecution

Sanction

Respondent’s primary argument on review is that the [disbarment]sanction imposed is not proportionate to the misconduct found.  We disagree.  In exercising its overview function to determine the appropriate sanction, the Board possesses “a greater degree of discretion with regard to the ultimate result.”   Grievance Administrator v Alexander H. Benson, 08‑52‑GA (ADB 2010), citing Grievance Administrator v Eric S. Handy, 95‑51‑GA (ADB 1996).  See also Grievance Administrator v Irving A. August, 438 Mich 296 (1991).  This greater discretion to review and, if necessary, modify a hearing panel’s decision as to the level of discipline, is based upon a recognition of the Board’s overview function and its responsibility to ensure a level of uniformity and continuity.  Grievance Administrator v Brent S. Hunt, 12‑10‑GA (ADB 2012), citing Matter of Daggs, 411 Mich 304 (1981).  However, if the discipline ordered is not inappropriate, the Board will frequently defer to the hearing panel’s assessment of the proper level of discipline to be imposed.  Grievance Administrator v Lopatin, 462 Mich 235, 238, 247 n 12 (2000).

Nonetheless

While we agree a delay in the prosecution of attorney discipline cases does not automatically warrant a reduction in sanctions, we find the delay here unreasonable, under the facts of this case.

Counsel for the Grievance Administrator claims that it conducted its investigation on these files through 2021, but provides no insight into why an investigation involving very short time periods of representation, limited court records and/or court files, and minimal witness statements, would take three to five years to complete in some instances.  Justice and professional responsibility require the Commission to promptly and diligently pursue all disciplinary actions that merit prosecution.  Prolonged delays can lead to the loss of evidence and obstruct the fair determination of appropriate sanctions.  Disciplining or disbarring an attorney long after the misconduct occurred fails to deter other members of the bar and undermines the goal of maintaining the integrity of the courts – both of which are fundamental purposes of attorney discipline.

Therefore, despite the egregiousness of the misconduct found here, respondent had a right to have his case decided within a reasonable period of time.  A three to five-year delay between answering the request for investigation and the issuance of formal charges, although not violative of due process, is unreasonable under the facts here and warrants significant mitigation.  It is for this reason alone that we decrease the discipline imposed from disbarment to a four‑year suspension. 

We are mindful, however, that this is not a situation where respondent used the intervening years of delay wisely in rehabilitating himself, but instead continued to commit misconduct.  Therefore, as an additional safeguard, we also modify the order of discipline to add the following conditions: (1) prior to reinstatement, respondent shall take and pass the Multistate Professional Responsibility Exam (MPRE); and (2) prior to reinstatement, respondent shall attend the State Bar of Michigan’s seminar entitled “Tips and Tools for a Successful Practice.”  Furthermore, in the event that respondent petitions for reinstatement and a hearing panel grants eligibility, respondent shall take and pass the Michigan Bar Exam (MBE) as part of his recertification pursuant to MCR 9.123(C).

Finally, respondent argues on review that the hearing panel’s order of restitution was improper because the panel failed to consider money voluntarily returned to clients, arguing that the award of restitution “created a windfall and cannot be allowed to stand.”  There is no merit to respondent’s contention.  “Our Supreme Court has given hearing panels, this Board, and the Court itself discretion to require restitution as a condition of an order of discipline.”  Grievance Administrator v Joel S. Gehrke, 05‑29‑GA (ADB 2008) (citing MCR 9.106(5)).  Restitution in the attorney discipline system serves the dual purpose of making a complainant or third party whole and protecting the public and the legal system through deterrence and sanctions.

Outcomes such as these – delay leading to reduction of the otherwise appropriate sanction – reveal the failure of self-regulation of the legal profession. (Mike Frisch)