Appeal Denied In Prosecution Of Former Bar Prosecutor

The Michigan Attorney Discipline Board declined to disturb a county panel disposition

On November 17,2014, the Grievance Administrator filed a request for investigation against respondent with the Michigan Supreme Court, pursuant to the provisions of MCR 9.131 (A), because respondent had been employed as an associate counsel with the Attorney Grievance Commission from approximately 1996 to 1998, and at the time, respondent’s wife was employed as a secretary at the Commission.  On February 4,2015, the Court entered an order appointing volunteer legal counsel “to investigate this matter as outlined in MCR 9.131(A)(4) and to take further appropriate action pursuant to MCR 9.131(A)(4) through (6).” Approximately two years later, on March 20, 2017, volunteer counsel (“Special Counsel”) filed a three-count formal complaint against respondent, pursuant to MCR 9.131 (A)(5) and (6).

At the hearing a technical violation of Rule 1.15 was found

Then, the parties gave arguments as to the appropriate level of discipline to impose. Special Counsel elicited testimony that respondent had no prior misconduct during his then 20-year career as an attorney. After some initial reluctance to suggest a level of discipline “without … taking it before the [Attorney Grievance Commission],” Special Counsel recommended that the panel reprimand respondent and order him to attend the State Bar of Michigan’s course on trust accounting. Respondent’s counsel argued for an admonishment with the condition that respondent attend the trust accounting class.

…the panel found that respondent’s actions were most closely described in the admonishment standard set forth in ABA Standard 4.14, as his conduct was “negligent at worst,” and caused little or no actual or potential injury to a client. While recognizing that they could not admonish respondent, the panel found that the most appropriate sanction was to impose a condition that required respondent to attend a trust account seminar.

The Grievance Administrator appealed

On review, the Administrator argues that the level of discipline that the hearing panel imposed is insufficient for the misconduct found and that there is no basis under the rules and prior precedent for a hearing panel to issue an order of discipline that only imposes a condition.

The board

What must be kept in perspective here is that we are dealing with misconduct on the low end of the spectrum in terms of scienter, impact on clients or the system of justice, and reflection on the respondent’s fitness to practice. A case could be made for a reprimand. A case could also be made for dismissal with a caution. And a case could be made for some things in between. Here, a very capable volunteer counsel may not have even considered the possibility of actions other than the filing of a formal complaint because of his unfamiliarity with the practices, policies, and unwritten precedents utilized by the AGC in disposing of the 3,000 or more overdraft notifications it had received between the effective date of MRPC 1.15A in 2010 and the time of the hearing in 2017.

Having given this panel the difficult task of sorting out what is appropriate in such a case, and having reviewed its excellent work, we are not inclined to reverse its decision to take an extra step to protect the public by requiring some continuing education for respondent rather than imposing no discipline or even a reprimand alone.

The panel report is attached to the board order. (Mike Frisch )