Appendix — Campbell v. Schwartz
Supreme Court brief1991
Ask Donna
What actually matters in this document.
Text
9] ” £% f suprema Court, U.S,
“ILBD
AUS 27 1991
No. ' sence OF THE CLERK
~ Se
In The
SUPREMF. COURT OF THE UNITED STATES
October Term, 1991
FLETCHER J. CAMPBELL,
Petitioner,
vs.
MICHAEL ALLEN SCHWARTZ, Grievance
Administrator, State of Michigan
Attorney Grievance Commission,
Respondent.
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
TO THE MICHIGAN SUPREME COURT
FLETCHER J. CAMPBELL
3714 W. McNichols Road
Detroit, Michigan 48221
(313) 345-8833
Petitioner In Pro Se
TABLE OF CONTENTS
OPINIONS:
Attorney Discipline Board ..........
Wayne County Hearing Panel #11 .....
Report OF BOStSE «ccc cccvesovvissecs
ORDERS:
Order of Michigan Supreme Court
Denying Reconsideration [5-31-91].
Order of Michigan Supreme Court
Denying Leave To Appeal [3-22-91].
Supplement Order of Attorney
Discipline Board Denying
Reconsideration [2-28-91] ........
Order of Attorney Discipliné’ Board
Reducing Discipline [10-25-90] ...
Order of Revocation of Panel #11
Po os 2 ee ea ere ee een ere
STATUTE(S) , REGULATIONS & COURT RULES:
Statute (s)
ME GOO. 2146 cccwrssctensecvcveeesus
bhichigan Court Rules ["MCR"]
WOR 22 Z03(B) ccccvvcceccoseeeseverve
Page(s)
75
76
77-78
79-80
81-85
86-87
88
Michigan Court Rules ["MCR"] [con'd] Page(s)
WOR 2.312 cccsccesecescecscccveosres 88
MCR 2.504(B) (2) wccccccccccreccccces 89
MCR 2.50S(A) cccccvcsceetvcseseesese 90
MCR 7.210(I)—(J) wcccccccccecscccsecs 90-91
MCR 7.215 (PF) ccccceccsccsvccccsccceces 91
MCR 8.121(A)(B)(F) .. cee eee ccces 92-93
MCR 8.303 ccccccccvcccccsvccseccecece 93-94
MCR 9.110(D) ....cece Vecccecsscecveses 94-96
MCR 9.411 ccccvccvvccccsccccccvesecce 96-97
PCR 9.114 ccccccccccsereseeucesceses 97
MOR 9.118 cccoscwvesevcceeesinecvesses 97<-99
MCR 9.126 cecccccccccsccvcsccesesece 99-101
Michigan Rules of Professional
Conduct ["MRPC"]
MRPC 3.3(a) (1-4) wccccccccccccccvese 102
MAPC 3.4(a}—(D) cccccweieccecseveces 101
Mer SeRI1E): ccecedeccevs cue Veeeweves 102-103
PRPC B.A (adm (ES) cvescvcceswesedecenss 103
Michigan Rules of Evidence:
MRE 103(d) ccccccccccceccvcvcceseses 104,137
MRE GOS(6) wccecesccceecvevsccsseces 104-105
Transaction Receipt [NBD]: Page(s)
DPT CURSE Gee ecocoo ccc e see eee 161
URS cased eee eee cescseseres 106-114
Additional Specific Material Underlying
Federal Questions Raised In State Court
[See, Sup.Ct.R. 14.1(h) and (k)]
Sup.Ct.R. 14.1(h) Voluminous
ee See ee we see eee ee eee. 115-160
State of Michigan
ATTORNEY DISCIPLINE BOARD
Grievance Administrator,
State of Michigan
Attorney Grievance Commission,
Petitioner/Appellee,
Vv
Fletcher J Campbell, P 11544,
Respondent/Appellant.
ADB 25-88; 133-88
BOARD OPINION
The respondent has filed a petition in
accordance with MCR 9.118 seeking review of a
hearing panel Order of Revocation. The hear-
ing panel entered its order following its
adoption of the findings and conclusions of a
master who received the testimony and evidence
submitted by the parties and reported his
findings to the panel. The panel ruled that
the evidence established that the respondent,
in connection with his representation of the
conservator of an estate, collected a $600 re-
_tainer fee without approval of the Probate
Court or the affected parties; charged and
collected an excessive contingency fee in a
probate case; violated an order of the Michi-
-4-
Board Opinion re: Fletcher J. Campbell,
ADB 25-88; 133-88
Page 2
gan Court of Appeals directing him to reim-
burse the estate for excessive fees; and vio-
lated an order of the Wayne County Probate
Court enjoining him from transferring or
spending funds received from the estate.
In a separate case consolidated for hear-
ing, the panel found that the evidence estab-
lished that the respondent was retained to
prosecute an insurance claim for damages sus-
tained ina fire loss. During the course of
that representation, the respondent was found
to have failed to deposit client funds in an
identifiable bank account; to have misappro-
priated those funds; and to have knowingly
provided false information to an Attorney
Grievance Commission investigator.
Based upon its review of the whole record
and the arguments of the parties® the Attorney
Discipline Board has concluded that the pro-
ceedings before the hearing panel and master
should not be set aside on the basis of the
-5-
Board Opinion re: Fletcher J. Campbell,
ADB 25-88; 133-88
Page 3
irregularities or defects claimed by the re-
spondent. The Board further finds that the
findings and conclusions of the panel have
ample support in the record and should be af-
firmed. With regard to the discipline impos-
ed, the Board concludes that reduction to a
suspension of three years is warranted.
A six-count formal complaint in case ADB
25-88 was filed by the Grievance Administrator
February 17, 1988. A second complaint, ADB
133-88, containing three counts, was filed May
* 25, 1988. The respondent timely answered both
complaints. The matters were consolidated ad-
ministratively by the Board and assigned to
Wayne County Hearing Panel #1l.
The various procedural defects alleged by
the respondent have each been considered by
the Board. The Board is not persuaded that
any phase of these proceedings has been com-
promised by a prejudicial irregularity or an
error, resulting in a miscarriage of justice.
-6§-
Board Opinion re: Fletcher J. Campbell,
ADB 25-88; 133-88
Page 4
See MCR 9.107(A). The Board's considerations
of these issues has been conducted in light of
MCR 9.102(A) which directs that these rules
are to be liberally construed for the protec-
tion of the public, the courts and the legal
profession.
The Board specifically rejects the re-
spondent's claim that the provision of MCR
9.111(B) that a public hearing on a complaint
be held within fifty-six days after the date
the complaint is filed is jurisdictional and
must be strictly construed to require dismis-
sal if the hearing is not commenced within
that period. The Board has previously ruled
that automatic dismissal of a complaint under
a strict reading of that rule would not be
consistent with the goals of these proceed-
ings. Matter of Ronald R. Kubik, DP 186/84,
e
[Brd. Opn. February 2, 1987) citing State Bar
Grievance Administrator v Posler, 393 Mich 38
(1974); State Bar Grievance Administrator v
Board Opinion re: Fletcher J. Campbell,
ADB 25-88; 133-88
Page 5
Donigan, 403 Mich 172 (1978).
In this case, the panel acted within its
discretion by adjourning the hearing scheduled
for April 7, 1988 to April 29, 1988. Review
of the record discloses that the hearing was
further delayed by the replacement of two
hearing panel members following the respon-
dent's April 6, 1988 motion to disqualify
panel members Zemmol and Jordan. The Boare is
unable to conclude that these proceedings have
been unduly protracted in light of the volume
and complexity of the issues raised by the
parties during the course of the proceedings.
The respondent aiso challenges to the
Board's appointment of a master to conduct the
evidentiary hearings. The respondent's claim
that MCR 9.110(D)(3) must be given the strict-
est and most literal interpretation was con-
sideresdi by the Board and rejected in its order
of February 17, 1989. It has not been shown
that that order was entered erroneously. The
-8-
Board Opinion re: Fletcher J. Campbell,
ADB 25-88; 133-88
Page 6
Board remains unpersuaded that the decision to
appoint a panel or a master can be made only
at the time the complaint is filed. Under that
rule, assignment of a complaint to a master
may made “if it appears that the hearing will
be a prolonged one". In actually, it is high-
ly unlikely that the staff members of the
Attorney Discipline Board would be able to
predict which complaints are likely to result
in prolonged proceedings. In this case, the
request for the appointment of a master came
from the hearing panel after two days of hear-
ings on preliminary matters and consideration
of a record which, at that point, included 230
pages of pleadings and a transcript of 200
pages. The appointment of a master is af-
firmed.
The testimony presented before master
Steven Kaplan comprises a transcript of an
additional 1100 pages. The Board's review of
the record below is guided by the appellate
-9- PUBLISHER'S
ORIGINAL PA
Board Opinion re: Fletcher J. Campbell,
ADB 25-88; 133-88
Page 7
standard enunciated by the Supreme Court. The
Board's decision is based upon the conclusion
that there is proper evidentiary in the whole
record for those findings. Grievance Admini-
strator v_ Crane, 400 Mich 484 (1977); In re
DelRio, 407 Mich 336 (1977). The Board has
traditionally deferred to a hearing panel's
assessment of credibility, Schwartz v Sauer,
DP 25.84 (Brd. Opn. P. 359, 1985). In this
case, the detailed report of the master in-
cludes appropriate references to the evidenti-
ary support for his conclusions and it has not
been shown to be erroneous.
Finally, we review the level of disci-
pline imposed in this case. The misconduct
which as been established, including misappro-
priation of client funds and the subsequent
misrepresentation that client funds were held
in case, falls within that category of miscon-
duct which the Board has found "ranks among
the most serious breaches of professional
-ll-
NOTE:
;INATION LS NOT CONTINUOUS.
Board Opinion re: Fletcher J. Campbell,
ADB 25-88; 133-88
Page 8
metas and seriously undermines public confi-
dence in the legal profession. We have stated
that, depending upon several factors, disci-
pline ranging from a suspension from threes
years to disbarment would be appropriate for
such an offense." Matter of John Hasty, ADB
1-87, Brd. Opn. February 8, 1988; Matter of
Douglas E. H. Williams, DP 126/81 (Brd. Opn.
p.313, 1984).
The respondent does not enjoy an unblem-
ished disciplinary record, having been repri-
manded in 9178. We agree, however, with the
conclusion of the panel that the 1978 reprimand
is sufficiently remote in time that it has
virtually no aggravating effect. In consider-
ing the level of discipline, we include as a
factor the respondent's otherwise unmarred
practice of law in Michigan for twenty-one
years.
We Nave also reviewed the respondent's
testimony at the discipline hearing conducted
-12-
Board Opinion re: Fletcher J. Campbell,
ADB 25-88; 133-88
Page 9
before the panel together with the pleadings
and arguments presented on his behalf in these
review proceedings.
Based upon the unique factors presented
in this case, we conclude that a suspension of
three years is suffic‘ent to achieve the
stated goals of these disciplinary proceedings
and falls within the range of discipline im-
posed for similar misconduct in prior cases.
All concur
Member Hanley M. Gurwin did not participate
«13-
State of Michigan
ATTORNEY DISCIPLINE BOARD
Grievance Administrator,
State of Michigan
Attorney Grievance Commission,
Petitioner,
ADB 25-88;133-88
V
Fletcher J. Campbell, P11544
Respondent.
/
ATTORNEY DISCIPLINE BOARD
Report of Wayne County Hearing Panel #11
At a session of said hearing panel
held at One Kennedy Square, Suite
1910, Detroit, MI on January 18,
1990.
PRESENT: David J. Rosin, Chairman
Arthur J. Tarnow, Member
Dawn A. VanHoek, Member
Appearances: Cynthia C. Charles, Esq. AGC
Thomas L. E. Stanley, Esq.
for respondent
Pleadings
(See List of Pleadings Marked As Attachment 1)
Exhibits
The indexes to exhibits are set forth in
Volumes I through VIII of the transcript of
these proceedings.
Panel Proceedings
-14-<
Page 2
This matter was commenced with the filing
of Formal Complaint ADB 25-88 on February 18,
1988. A second case, ADB 133-88 was filed May
25, 1988 and was consolidated for hearing. The
first case was originally assigned to Wayne
County Hearing Panel #21. Although the re-
spondent's motion to disqualify members of
that hearing panel was denied, the voluntary
withdrawal of two members of the panel result-
ed in the Board's Order of reassignment dated
May 12, 1988 assigning this matter to Wayne
County Hearing Panel #11. A subsequent Notice
of Substitution issued by the Board July 6,
1988 resulted in the establishment of the
hearing panel which ultimately heard and de-
cided this case consisting of David I. Rosin,
Chairman; Arthur J. Tarnow, and Dawn A. Van
Hoek.
The panel conducted preliminary hearings
in this matter on July 13, 1988 and September
7, 1988 to dispose of the various motions fil-
ed by the parties. During the course of those
-15-
Page 3
hearings, it became evident to the members of
the panel that scheduling delays in this case
could be avoided if the evidentiary hearings
on the factual issues presented were conducted
by a single factfinder and a written request
was made to the Attorney Discipline Board for
appointment of a master. The Board's order
appointing Steven M. Kaplan to serve as a
master was issued December 23, 1988.
The report of the master Steven Kaplan
was filed with the Board November 10, 1989
along with Volumes III through VII of the
transcript (Pages 201-1368).
The final hearing conducted by the panel
was held on January 18, 1990 and was conducted
in the nature of a separate hearing on disci-
pline in accordance with MCR 9.115. (J) (2).
Report on Discipline
Hearings conducted by a master are
eoverned by MCR 9.117. In accordance with
that rule, the hearing panel has considered
the report of master Steven M. Kaplan filed
-16-
Page 4
November 10, 1989. The panel notes. that no
objections to the master's report were filed
by the respondent or the Grievance Administra-
tor within fourteen (14) days as provided in
that rule.
The panel has unanimously determined that
the record in this case supports the findings
of fact and conclusions of law contained in
the master's report. The master's report is
specifically adopted and made a part of this
report. In summary, the panel adopts the
panel's findings that the Grievance Admini-
strator filed to establish professional mis-
conduct as alleged in Case ADB 25-88, Count I;
the allegation in Count II that the right of
Ophelia Mason to retain substitute counsel was
impeded by a contingency fee agreement; Count
V; Count VI. The remainder of the allegations
in Case ADB 25-88, Counts II, III, and IV were
established.
With regard to CASE ADB 133-88, the panel
adopts the master's findings that the charges
oj Ja
Page 5
in Count I, paragraph K, and Count were not
established. The other allegations of Count I
were established.
As set forth in the master's report, the
panel adopts the following conclusions of law:
Conclusions of Law -- Case ADB 25-88
Respondent committed professional miscon-
duct in the following ways:
1. By collecting a $600.00 non-refund-
able retainer fee without obtaining
either the approval of the Probate Court
or the affected narties (as required by
Probate Court Rule 908.3), in violation
of DR 2-106(A) and (B), and MCR 9.104
(1-4).
ae By charging and, without having the
approval of the Probate Court or the
affected parties (as required by Probate
Court Rule 908.3), collecting a clearly
excessive fee; a one-third contingency
fee, in violation of DR 2-106(A) and (B),
and MCR 9.104(1-4).
-18-
3. By violating an Order and Opinion of
the Michigan Court of Appeals which
directed him to take steps to reimburse
the Irwin Estate for excessive fees that
he received, in violation of DR 7-106(A),
DR 1-102(A) (5), and MCR 9.104(1-4).
4. By knowingly violating an Order of
the Wayne County Probate Court, dated
February 1, 1985, which enjoined him from
transferring or spending funds that he
received through the Irwin Estate, in
violation of DR 7-106(A), DR 1-102(A) (5),
and MCR 9.104 (1-4).
Conclusions of Law -- Case ADB 133-88
Respondent committed professional miscon-
duct in the following ways:
1. By failing or neglecting to deposit
the funds in an identifiable bank
account, funds received on behalf of a
client, Shirley Wright, through the
collection of a judgment, in violation of
DR 9-102(A), DR 1-102 (A) (4-5), and MCR
-19-
Page 6
9.102(1-4).
2. By misappropriating the funds of a
client, Shirley Wright, in violation of
DR 9-102(A), DR 1-102(A) (4-5), and MCR
9.102(1-4).
3. By knowingly providing false inform-
ation to a volunteer investigator assign-
ed by the Attorney Grievance Commission
to investigate a grievance filed against
respondent, in violation of DR 1-102(A)
(4-5) and MCR 9.103(3,4,6).
Report on Discipline
At the separate hearing on discipline
conducted January 18, 1990 the parties were
provided an opportunity to present evidence in
the nature of aggravation or mitigation which
might have a bearing upon the appropriate
level of discipline to be imposed.
Counsel for the Grievance Administrator
presented two exhibits which were received.
Exhibit #85 is copy of an amended order dated
August 29, 1989 by Martin T. Maher, Wayne
-20-
Page 7
County Probate Court Judge, directing that the
respondent immediately turn over the Estate of
Bessie Irwin the amount of $65,179.17 together
with interest at the statutory rate. Exhibit
#86 is a copy of an order of reprimand issued
against the respondent by the State Bar Griev-
ance Board on September 28, 1978.
The respondent was called to stand to
testify in his own behalf. The respondent was
admitted to the practice of law in Michigan in
June 1969. He testified that the contingent
fee agreement in the Matter of the Estate of
Bessie Irwin was drafted and executed under
his belief that such an agreement was neither
illegal or unethical. (Tr.p.1396) With regard
to the master's findings as to Count III, ADB
25-88, that he disregarded an order of the
Michigan Court of Appeals to return excessive
fees to the estate, the respondent points out
that the master's report refers to the "in-
direct" order of that Court to return the fees
and respondent argues that he has not will-
-2l- ~
Page 8
fully disobeyed the explicit language of that
order. (Tr.p.1406) The panel considered the
respondent's testimony on these and other
points relating to his actions with regard to
these matters.
It is the opinion of the panel that the
respondent's 1978 reprimand is sufficiently
remote in time that it was virtually no aggra-
vating effect. In considering respondent's
testimony as mitigation, the panel notes that
the Attorney Discipline Board has defined
Mitigation as circumstances "such as do not
constitute a justification or excuse of the
offense in question, but which, in fairness
and mercy, may be considered as extenuating or
reducing the degree of [respondent's] moral
culpability." Matter of Ross John Fazio, DP
105/80, Opn.of Brd. p.146 (1981), citing
Louisiana State Bar Association v Sheehan, 338
SO2d, 1347, 1351 (Louisiana 1976).
It is the opinion of the panel that the
testimony offered by the respondent does not
-22-
Page 9
tend to mitigate his established misconduct.
On the contrary, such testimony tenas to sup-
port the conclusion that Mr. Campbells is un-
able to grasp the seriousness of his miscon-
duct or to fully appreciate the nature of his
Obligations as an officer of the court. The
document prepared by the respondent entitled
"Power of Attorney and Assignment” (Exhibit
#8) giving him a lien on the assets of the
estate for a fee equal to one-third (1/3) of
the amounts received and giving him a "vested
interest" in those amounts was, in our opin-
ion, unconscionable. His continued failure to
return the excessive fees to that estate al-
though ordered to do so, constitutes further
evidence of the respondent's failure to ful-
fill his obligations to his former client or
to the courts.
The findings and conclusions with regard
to ADB 133-88, including findings that the re-
spondent commingled client funds with his own,
misappropriated funds of a client and knowing-
-23@
Page 10
ly provided false information during the
course of the Grievance Administrator's inves-
tigation, constitute acts of misconduct which
are sufficiently egregious to warrant substan-
tial discipline. More importantly, those
separate acts of misconduct suggests a pattern
of misconduct.
Inasmuch as the primary purpose of these
proceedings is the protection of the public,
the courts and the legal profession, the facts
and circumstances in this case lead inescap-
ably to the conclusion that the respondent's
license to practice law in Michigan should be
revoked.
Prior Discipline
34509-A Reprimand 9/28/78
Statement of Costs
Attorney Grievance Commission
Mileage $ 35.02
Telephone 4.05
Postage 6.08
Subpoenas 139.00
Copying (Bank records,
Transcripts) 625.83
-24-
Page 10
Travel-air fare
(witness) 432.00
total $1241.98
Attorney Discipline Board
Transcript 7/13/88 $ 485.60
Transcript 9/7/88 232.50
Transcript 5/8/89 842.50
Transcript 6/5/89 881.00
Transcript 6/19/89 694.00
Transcript 7/1/89 751.75
Transcript 7/24/89 600.50
Transcript 1/18/90 250.00
Total $ 4737.85
Total Amount Due: $5979.83
ATTORNEY DISCIPLINE BOARD
Wayne County Hearing Panel #11
By
David I. Rosin, Chairman
-25-
State of Michigan
ATTORNEY DISCIPLINE BOARD
Grievance Administrator,
State of Michigan
Attorney Grievance Commission,
Petitioner,
ADB 25-88;133-88
Vv
Fletcher J. Campbell, P11544
Respondent.
REPORT OF THE MASTER
I. Introduction
On February 17, 1988 and May 25, 1988,
the Attorney Grievance Commission filed formal
complaints against Respondent, Fletcher J.
Campbell. The cases were consolidated for
hearing before Wayne County Hearing Panel #1l.
The hearing panel appointed a Master on Decem-
ber 23, 1988. A hearing, spread over five -
days, was concluded on July 24, 1989.
II. Master's Duties
Under MCR 9.117, the Master is obligated
to conduct a hearing, analogous to a non-jury
trial. After the hearing, the Master is re-
-26-
Fletcher J. Campbell -- Report of the Master
Page 2
quired to prepare and file a report with the
Attorney Discipline Board, containing a brief
statement of the proceedings, findings of fact
and conclusions of law.
III. Summary of Petitioner's Complaints
A. Case No. 25-88
The crux of this six-count complaint is
that Respondent, as the attorney for the con-
servator and guardian of Bessie Irwin, charged
and collected an excessive fee, made false
material statements to the Wayne County Pro-
bate Court, and failed to comply with Orders
of the Michigan Court of Appeals and the Wayne
County Circuit Court in connection with his
representation of the conservator and guard-
ian.
B. Case No. 133-88
In this three-count complaint, Petitioner
alleged that Respondent, retained by Shirley
Wright to represent her in an insurance claim,
committed the following acts of misconduct:
-27-
Fletcher J. Campbell -- Report of the Master
Page 3
1. Misappropriated funds derived from
a judgment obtained in favor of Shirley
Wright in a jury trial concluded on June
11, 1981;
2. Disobeyed an Order entered in the
Wayne County Circuit Court prohibiting
him from disposing of proceeds he ob-
tained by way of a writ of garnishment
= against the insurance company's’. bank;
and
3. Made false, material statements to
a volunteer attorney of the Attorney
Grievance Commission, who was investi-
gating a complaint filed by Shirley
Wright against respondent.
IV. Summary of the Testimony
The complainant in Case Number 25-88,
Ophelia Mason, testified that she was a friend
and uabeiteos of Bessie Irwin on Trinity Street
in Detroit (Tr.pp.523-524). When Irwin frac-
tured her hip in 1978, Mason, pursuant to a
-28-
—_
Fletcher J. Campbell -- Report of the Master
Page 4
power of attorney vested in her by Irwin,
admitted that elderly lady into a hospital
(Tr, pe525). From 1978 through 1983, Mason
paid Irwin's bills and maintained _ home by
using Irwin's savings, dividends, and social
security checks (Tr, p 529). Mason desired to
be appointed Irwin's guardian (Tr, p 529).
On September 15, 1983, Mason and Respon-
dent entered into an agreement (Exhibit 1),
whereby she would pay him a $600.00 non-re-
fundable retainer fee. In addition to the re-
tainer fee, Mason was obligated to pay the
attorney $350.00 per court appearance and re-
imburse him for costs. Respondent was re-
quired to represent Mason in her petition to
be appointed ‘conservator and guardian of
Irwin's Estate.
In the petition for appointment as guard-
ian, Mason listed the following assets: $4500
in real property; $400 in person property; and
$858 in monthly income (Exhibit 5). The exhi-
~29=
Fletcher J. Campbell -- Report of the Master
Page 5
bit shows that Irwin had three relatives, two
nieces and a nephew. Irwin also owned bonds
and stocks, but Respondent told Mason not to
mention those assets while testifying in the
Probate Court on the conservatorship petition
(Tr, P 536). The Probate Judge did not speci-
fically inquire about stocks and bonds owned
by Irwin, and Mason did not volunteer the in-
formation (Tr, p 536).
On June 26, 1984, Mason, as conservator
of Irwin's Estate, assigned various rights to
Respondent by way of a "power of attorney and
assignment" document. Mason stated that she
signed the document at the request of Respon-
dent. The second paragraph of the document
(Exhibit 7) provides:
"I irrevocably appoint my attorney
Fletcher J. Campbell, or his desig-
nee, my attorney-in-fact in the
premises, to all acts, matters and
things deemed necessary to desirable
by any such authorized person, with
full power and authority in my name,
or that of the estate for the sole
benefit of FLETCHER J. CAMPBELL to
sue for, or compromise and to recover
-30-
ee ea a a ee
Fletcher J. Campbell -- Report of the Master
Page 6
and receive all or part of the ac-
quired lien granted by this assign-
ment to secure his attorney fee and/
Or expenses, which said amount is
equal to thirty--three and one third
(33 1/3%) percent of any amounts realized
through compromise, suit, judgments,
administrative awards, entitlements, and
demands."
After Mason was appointed conservator of
the Estate and after she vested Respondent
with the power of aitorney and assignment, she
appeared at Irwin's bank along with the niece
of Irwin (Tr. p 540). The contents of a safety
deposit box, including jewelry, bonds, and
stock certificates, were given to Mason (Tr,
pp 541-544). Mason thereupon met with Respon-
dent at his law office to review the recently
discovered assets of Irwin (Tr.p 541). When
Respondent examined the assets, he exclaimed,
"wow, these are worth a lot of money." (Tr. p
542).
In December of 1984, Mason, while accom-
panied by and at the recommendation of Respon-
dent, sold the stocks and bonds (Tr, pp 544,
-3l-
Fletcher J. Campbell -- Report of the Master
Page 7
545, 547). Mason placed the proceeds of the
sale, which she estimated to be in excess of
$200,000, into a checking account at Comerica
Bank (Tr, p 548). Mason, on ste conservator
of Irwin's Estate, was the sole signatory on
the checking account (Tr, p 549).
Following the opening of the checking
account, Respondent visited Mason at her home
and removed two blank checks from the check-
book (Tr. pp 550, 551). At a later date,
Respondent unexpectedly arrived at Mason's
place of employment, Providence Hospital,
where he asked her to sign a $66,836.17 check
(check #1002, Exhibit 11). - Mason signed the
pre-printed check, which named Respondent as
the payee (Tr, pp 522-523). Mason claimed
that she voiced a protest over the amount of
the check, but Respondent informed here that
"he deserved it to get paid." (Tr, p 553)
Respondent did not advise Mason that the
approval of any individual or a Court was re-
-32-
Fletcher J. Campbell -- Report of the Master
Page 8
quired in order for him to receive attorney
fees from the Estate (Tr, p 555). Addition-
ally, Respondent did not inform Mason of any
potential liability she may incur to the
Estate fro fees paid to an attorney in excess
of those approved by the Probate Court (Tr, p
556). Respondent suggested that Respondent
use or spend the Estate's funds "just like it
was (her) money." (Tr, p 557). Mason issued
a check to herself in the amount of $2000 in
December of 1984.
Mason thereafter advised Respondent that
she no longer wished for him to represent her
(Tr. p 559). She retained Ira Auslander to
represent her as conservator and guardian of
the Estate (Tr, p 559).
On cross-examination, Mason _ testified
that prior to retaining Respondent as her
attorney, she withdrew approximately $6000
from Irwin's savings account (Tr, pp 606-607).
She explained that the funds were used to pay
-33-
Fletcher J. Campbell -- Report of the Master
Page 9
bills of Irwin (Tr, p 606). Bessie Irwin died
in 1987 at the age of 95 (Tr, p 650).
Ira Auslander, a practicing attorney in
Michigan since 1972, was retained by Ophelia
Mason in January 1985. Mason informed Aus-
lander that she was concerned about attorney
fees that she, as Irwin's conservator, had
paid Respondent. Mason further advised Aus-
lander that she had been suspended as the con-
servator for failing to file an annual ac-
counting with the Probate Court (Tr, p 371).
Before Auslander decided whether to re-
present Mason, he had a telephone conversation
with Respondent. Auslander advised Respondent
about Mason's displeasure with the attorney
fees, to which Respondent said, “nobody (is)
going to tell me what I can charge my
clients.” (Tze; @ 27005
Auslander determined that’ the ideal
strategy to recoup the allegedly excessive
attorney fees paid by Mason to Respondent was
-34-
Fletcher J. Campbell -- Report of the Master
Page 10
to file a petition seeking to have the fees
repaid into the Estate (Tr, p 372). Auslander
prepared and filed a petition and also notif-
ied Respondent, by letter, that Mason had dis-
charged him as her attorney (Tr, p 372). On
January 30, 1985, Auslander and his associate,
Carol Trefry, served Respondent with a re-
straining order and petition to show cause
(Exhibits 17 and 43; Tr, p 376).
The attorney f3e that Auslander deter-
mined was excessive wasS a payment by Mason to
Respondent on December 4, 1984, in the sum of
$66,836.17 (Exhibit 11, Tr, p 378). Following
a hearing held in Wayne County Probate Court,
Judge Robert Gragg found that the attorney fee
was excessive. Judge Gragg held that Respon-
dent was entitled only to $5048 for his repre-
sentation of Ophelia Mason.
Auslander offered an opinion that Mason
acted improperly in issuing the December 4
check to Respondent (Tr, p 380). He was con-
-35-
Fletcher J. Campbell -- Report of the Master
Page ll
cerned over Mason's liability to the Estate
for her imprudent issuance of the check to Re-
spondent.
In a collection action filed by the State
of Michigan against Respondent, Attorney Alan
May was appointed as the receiver by the Wayne
County Circuit Court Judge Richard Dunn on
September 17, 1982 (Tr, pp 468-469; Ex.48). A
judgment had been entered in favor of the
State of Michigan against Respondent in the
Common Pleas Court of Detroit on April 28,
1989 (Ex 48). Under the Order, May was autho-
rized to marshall assets of Respondent to
satisfy the judgment.
Except for a payment of $175 that he re-
ceived from the debtor of Respondent, May was
unable to collect the funds from Respondent
(Tr, pp 478-480). The receivership was closed
on May 23, 1989, because of the Receiver's in-
ability to collect, with an outstanding bal-
ance of $4,693.57 (Tr, p 482). May testified
-36-
Fletcher J. Campbell -- Report of the Master
Page 12
that Respondent was aware of the judgment
against him and that a Receiver had been ap-
pointed to collect on the judgment (Tr, pp
469-470).
In an Amended Order dated May 9, 1985,
Probate Judge Robert Gragg ordered that Re-
spondent was entitled to $5048 in attorney
fees and costs with respect to his representa-
tion of Ophelia Mason (Ex 46). The Order also
required that:
"Inasmuch as Respondent is present-
ly in Receivership, said payment of
fees, totaling $5048, is ordered
directly to the Receiver, Alan A.
May, Circuit Court No. 80-026725 Az."
Respondent unsuccessfully appealed Judge
Gragg's Amended Order to the Michigan Court of
Appeals and the Michigan Supreme Court (Ex 19;
Ex 20). As indicated, the Receivership was
closed May 23, 1989, while the Michigan
Supreme court denied Respondent's Application
for Leave on February 17, 1988.
Called as an expert witness by the Peti-
-37-
Fletcher J. Campbell -- Report of the Master
Page 13
tioner, Attorney John VonBatchelder was admit-
ted to practice law in Michigan in 1937 (Tr, p
682). A specialist in probate law, VonBatch-
elder was familiar with the Irwin Estate based
on his review of the various documents prior
to testifying (Tr, pp 682-683).
He offered an opinion that the initial
fee agreement (Ex 1) entered into between
Mason and Respondent was the most unusual fee
agreement he had examined during his years of
practice (Tr, p 684). As to the power of
attorney and assignment (Ex 8), VonBatchelder
testified that it was improper for an attorney
to enter into such an agreement, because the
document gave all of the fiduciary's rights
and responsibilities to Respondent and it, in
essence, assigned the entire Estate to Respon-
dent (Tr, pp 689-691). VonBatchelder stated
that under the agreement, Respondent would be
entitled to 1/3 of the Estate even if the
fiduciary hired an attorney to replace Respon-
-38-
Fletcher J. Campbell -- Report of the Master
Page 14
dent (Tr, p 693).
Accordingly to VonBatchelder, the two fee
agreements entered into between Mason and Re-
spondent were invalid, since the Probate Court
is vested with the power to determine the ap-
propriate attorney fees (Tr, P 696). He
stated that contingency fee agreements, such
as the one featured in Exhibit 8, are inappro-
priate in Probate cases (Tr, p 695).
The expert witness, on cross-examination,
acknowledged that Probate Court Rule 908.3
governed attorney fees in probate cases in
1984 (Tr, p 726). Under that rule, an attor-
ney fee could be awarded either at the direc-
tion of the Probate Court or if all affected
parties consented to the fee. VonBatchelder
noted that under the current rule, MCR 8.308,
all attorney fees have to be approved by the
Probate Court (Tr, p 728). VonBatchelder de-
fined "affected parties" as presumptive heirs
and other parties with an interest in the
-39-
eeeEeEeEeEeEeEeeEEEEEE——————EE
Fletcher J. Campbell -- Report of the Master
Page 15
Estate (Tr, p 865).
In VonBatchelder's opinion, the placement
of $200,000 of the Estate's funds in a non-
interest bearing account was imprudent, (Tr, p
700). He also testified that when an attorney
receives notice that a temporary restraining
has been signed by a Court prohibiting him
from transférring or spending fees that he
collected from a client, the attorney has to
Obey the Order (Tr, p 701). He testified that
the Order and Opinion of the Court of Appeals
directing Respondent to return funds to the
Estate required compliance (Tr, p 702). Von
Batchelder agreed with the decision of the
Court ee Appeals that Respondent’ charged
Ophelia Mason an excessive fee (Tr, p 705).
He further stated that it was incumbent upon
Respondent to file a petition for instructions
in the Probate Court after receiving notice of
the Court of Appeals decision (Tr, p 710).
On cross-examination, VonBatchelder
-40-
———————— eee
Fletcher J. Campbell -- Report of the Master
Page 16
offered specific bases concerning his opinion
that the two fee agreements were either im-
proper or excessive. He stated that a contin-
gency fee is inappropriate because the Probate
Court needs to determine the value of the at-
torney's representation (Tr, p 740). He re-
ferred to Disciplinary Rule 2-106(A), which
prohibits an attorney from entering into a
clearly excessive fee agreement (Tr, p 751).
VonBatchelder stated that under PCR 908.3, the
former rule regarding attorney fees, Respon-
dent's $67,000 attorney fee was improper, for
the presumptive heirs of Bessie Irwin's Estate
(her two nieces and her nephew) and the nurs-
ing home (a creditor) did not consent to the
fee (Tr, pp 726, 865-866, 893).
As to the non-refundable $600 required by
the original fee agreement (Ex l). Von
Batchelder stated that it was improper because
it was not approved by the Probate Court and
it did not apply against any costs or legal
-4]-
Fletcher J. Campbell -- Report of the Master
Page 17
services (Tr, p 894). If a fiduciary approved
Or granted an excessive attorney fee, he or
she would be responsible for reimbursing the
Estate (Tr, pp 895-896).
Testifying as an expert witness’ for
Respondent, Gerald D. White was admitted to
practice law in Michigan in 1955 (Tr, p 1043).
A general practitioner, White has had exten-
Sive experience in the area of Probate law,
including service as a public administrator
(Tr, pp 1043-1044).
White testified that under Probate Court
Rule 908.3, approval for legal fees can be ob-
tained in two ways: (1) court approval and (2)
through the consent of the affected parties
(Tr, p 1054). White stated that Respondent's
charging of a fee of $200 per hour for his
work in the Irwin Estate was reasonable, but
that he had not opinion as to the validity of
Respondent's contention that he expended 390
hours providing legal services to the Estate
-42-
EEE.
Fletcher J. Campbell -- Report of the Master
Page 18
(Tr, p 1046).
On cross-examination, White acknowledged
that a waiver and consent form has to be sign-
ed by each "affected party”. (Tr, p 1057).
An attorney seeking approval of legal fees in
a probate case should file a petition with
the Court for instructions (Tr, pp 1061-1062).
White expressed an opinion that it is improper
for an attorney to request a non-refundable
retainer fee, unless the fee will be applied
toward legal fees or costs (Tr, p 1062). He
also asserted that an attorney should not ac-
cept an exorbitant fee even if all of the af-
fected or interested parties consent (Tr, p
1063). White testified that contingent fees
in probate cases are never justified (Tr, p
1064).
William Taylor, an attorney employed by
an insurance company, set forth the chronology
of Shirley Wright's lawsuit to recover under
an insurance policy (Tr, pp 995-996). Wright
=£3=
Fletcher J. Campbell -- Report of the Master
Page 19
suffered damages to real property as a result
of a fire, but the insurance company refused
to honor the claim because of an investigation
that showed that the fire was deliberately set
(Tr, p 996). A trial held in 1981 in the Com-
mon Please Court resulted in a verdict of
$6000 for Wright, who was represented by Re-
spondent (Tr, pp 996-997).
The verdict in Plaintiff's favor was
memorialized in an amended order, reflecting a
judgment in the amount of $7,428.87 (Ex 28;
Tr, p 1001). The insurance company appealed
to the Wayne County Circuit Court, which
vacated the judgment and remanded the case to
the Common Please Court for a new trial (Tr, p
997). The second tria., held in 1984, also
resulted in a $6000 jury verdict for Wright
(Tr, p 997). While the appeal was pending
following the first trial, Respondent, as
Wright's attorney, garnished funds from the
insurance company's bank in order to collect
-44-
Fletcher J. Campbell -- Report of the Master
Page 20
on the judgment (Tr, pp 997-998). Taylor
complained that Respondent garnished the funds
even though an appeal had been filed and an
appropriate bond had been posted (Tr. p 998;
Ex 29; Ex 57).
Taylor testified that his company obtain-
ed a temporary restraining order from Circuit
Court Judge Richard Dunn on September 17, 1981
(Ex 34), which enjoined Respondent from negot-
lating the check issued on the garnishment
(Tr, pp 1003-1004). The cashier's check, in
the sum of $7,428.87, which was issued by the
National Bank of Detroit to Wright and Respon-
dent pursuant to the garnishment, was endorsed
and cashed on September 16, 1981 (Ex 29).
The insurance company obtained an Order
(Ex 35) from Judge Dunn on December 4, 1981,
which vacated the Order of Garnishment issued
by a Common Pleas Judge on September 16, 1981.
On August 5, 1983, the insurance company was
granted a summary judgment by Circuit Court
-45-
Fletcher J. Campbell -- Report of the Master
Page 21
Judge Thomas Roumell (Ex 36) in its lawsuit
to regain the funds that were garnished by
Respondent and Wright on September 11, 1981
(Tr, p 1006). The company only was able to
collect $540.47 on the summary judgement of
$7,428.87 against Respondent, despite its
attempts to garnish Respondent's bank accounts
(Tr, p 1006). After Plaintiff was successful
in the retrial, the insurance company paid
Wright and Respondent $743.76 to satisfy the
judgment in full (Ex 38).
Attorney James Gross represented the in-
surance company on appeal following the $6000
jury verdict in 1981. Gross filed a claim
appeal and a surety bond in sum of $9000 (Tr,
p 1017). Respondent and Gross disagreed over
the amount of the bond, as Respondent contend-
ed that the bond should be twice the amount of
the judgment (Tr, pp 1017-1018). Gross there-
upon filed a motion in the trial court to stay
proceedings and for a determination of the
-46-
EE
Fletcher J. Campbell -- Report of the Master
Page 22
appeal bond (Tr p 1018).
While the motion of Gross was pending the
trial court, Respondent obtained a writ of
garnishment, which he executed, against the
insurance company (Tr, p 1020). In an attempt
to thwart Respondent's attempts to garnish the
insurance company's account, Gross obtained an
ex-parte Order from Judge Dunn on September
17, 1981 (Ex 35), restraining Shirley Wright
and Respondent from cashing Or negotiating the
cashier's check issued as a result of the writ
of garnishment (Tr 1021). Respondent advised
Gross that he would not return the funds
($7,428.87) that he obtained by way of the
garnishment and that Gross would have to sue
him in order to recoup the money (Tr, p 1022).
Gross was able to obtain an Order vacating the
garnishment on December 4, 1981 (Ex 35), but
the Order did not require Respondent to return
the funds that he gained as a result of the
garnishment (Tr, p 1022).
-47<
a
Fletcher J. Campbell -- Report of the Master
Page 23
Gross' involvement in the Shirley Wright
vs. Group Insurance Company of Michigan case
ended when the verdict in the first trial was
overturned by the Wayne County Circuit Court
(Tr, p 1024). Gross admitted that the judg-
ment in favor of Wright (Ex 28) was the sub-
ject of an execution by Respondent before the
bond on appeal was approved (Tr, p 1025).
Gross asserted that a stay of proceeding
should have resulted from his filing of a
motion for a new trial and an appeal bond with
the Court (Tr, p 1033).
Ronald Karp, an attorney, was appointed
by the Attorney Grievance Commission to serve
as a volunteer investigator in the Shirley
Wright grievance (Tr, p 961). The grievance
concerned Respondent's alleged failure to ac-
count for proceeds received from a breach of
an insurance couse case litigated in the
36th District Court (Tr, p 961).
Karp interviewed Wright and Respondent
-48-
2
Fletcher J. Campbell -- Report of the Master
Page 24
separately in April of 1987 (Tr, p 962). On
July 13, 1987, Karp submitted a report to the
Attorney Grievance Commission concerning his
findings about the fee dispute (Tr, p 963).
According to Karp, Respondent stated that
he (1) obtained a favorable jury verdict in
the 36th District Court, which he reduced to a
judgment; (2) collected on the judgment in
September of 1981 through a garnishment proce-
dure; (3) retained the funds in cash until
disbursing them in February of 1987; and (4)
kept the proceeds in cash at the request of
Shirley Wright, who feared that the insurance
company would recover the funds by way of a
garnishment action (Tr, pp 968-969). Karp ex-
pressed an opinion that, under DR 9-102, a
client's funds may not be held in cash, but
must be deposited in an identifiable bank ac-
count (Tr, pp 990-991).
The final witness for Petitioner was Mary
Sanders. Employed as the head teller at a
~49=
Fletcher J. Campbell -- Report of the Master
Page 25
National Bank of Detroit branch, Sanders cash-
ed the $7,428.87 cashier's check (Ex 29) for
Respondent on September 16, 1981 (Tr, pp 1193-
1195). Respondent was alone when he endorsed
the check, which had earlier been endorsed by
the co-payee, Shirley Wright (Tr, pp 1194-
1195). The check was returned unpaid to the
National Bank of Detroit, with a notation that
it was "not used for purpose intended" (Tr, p
1196).
The proceeds from the check were distri-
buted in the following manner; $2,828.98 was
deposited in an account held by Respondent;
$3,583.89 was deposited in a trust account of
Respondent, and $1,016.00 was disbursed to Re-
spondent in cash (Tr, pp 1199, 1202, 1207).
The two bank account numbers of Respondent
were written on the back of the cashier's
check by Sanders (Tr, p 1196).
Respondent testified that he was admitted
to practice law in Michigan in 1969 (Tr, p
-50-
Fletchez> J. Campbell -- Report of the Master
Page 26
205). A portion of his practice is devoted to
probate cases (Tr, pp 206-207).
Respondent first met with Ophelia Mason
on September 15, 1983, concerning Mason's
handling of the personal affairs of an elderly
woman, Bessie Irwin, who was living in a nurs-
ing home (Tr, pp 902-903). Mason was concern-
ed about Irwin's declining physical condition
and the escalating bills of Irwin that Mason
waS paying pursuant to a power of attorney
granted to her by Irwin (Tr, p 903). Respon-
dent suggested that Mason seek an appointment
as the guardian and conservator of Irwin (Tr,
p 905). Mason advised Respondent that Irwin
had a limited income (Social Security benefits
and nominal dividends) and a depleted savings
account (Tr, p 907).
Mason entered into a fee agreement with
Respondent (Ex 1), which provided that he
would receive a $600 non-refundable retainer
fee and a $350 payment for each court appear-
-5l-
Fletcher J. Campbell -- Report of the Master
Page 27
ance (Tr, pp 209, 908). In June of 1984,
Mason informed Respondent that she could not
afford to pay him $350 per court appearance
(Tr, pp 924-925). Thereupon, Respondent sug-
gested that she pay him on a contingency fee
basis (Tr, p 925). A new fee agreement (Ex 8)
entitled a "Power of Attorney and Assignment",
was arrived at by Mason and Respondent (Tr, pp
228-231); 927). Through this agreement, Re-
spondent acquired a one-third vested interest
in Irwin's Estate (Tr, p 237).
Respondent admitted that he accepted a
check, for legal services, from Mason in the
sum Of $66,836.17 (Ex 11). Shortly there-
after, without the approval of the Probate
Court, Respondent cashed the check (Tr, pp
254-225; 1109). He claimed that he deposited
more than $55,000 of the proceeds into his
corporate account, receiving the balance in
cash (Tr, pp 258-259; 265-266). Respondent
asserted that he was entitled to a fee exceed-
-52<-
Fletcher J. Campbell -- Report of the Master
Page 28
ing $66,000, since under the power of attorney
and assignment, Mason was obligated to pay him
one-third of the Estate's assets (Tr, p 953).
Respondent claimed credit for uncovering
$1,000,000 worth of assets owned by Irwin (Tr,
pp 2523; 1130-1131).
As to the Restraining Order (Ex 17) pro-
hibiting Respondent from transferring, spend-
ing, or encumbering funds that he received
from the Estate, Respondent testified that he
did not disobey the Order because he had spent
the money before January 31, 1985. He admit-
ted that he had not complied with the Opinion
of the Michigan Court of Appeals, which direc-
ted him to reimburse the Estate (Tr, pp 1160,
1190). He justified his inaction by stating
that the Court of Appeais solely remanded the
case to the Probate Court (Tr, p 1190).
Respondent contended that he did not pro-
vide false and misleading information to the
Probate Court regarding his accounting of the
-53-
Fletcher J. Campbell -- Report of the Master
Page 29
funds he derived from the Irwin Estate (Ex 14;
Tr, pp 1135-1135; 1172-1174). He testified
that he made $31,000 in cash payments to Lewis
Love, Floyd Rickenbacker, and the State of
Michigan (Tr, pp 1172-1174). Respondent
lacked receipts supporting his claim that he
made case payments to Love and Rickenbacker
(Tr. Pp 1273).
Respondent admitted that he failed to
Obey the Order requiring him to make payments
to the Receiver, because the latter had not
poster a proper bond and because he "refused
to be in servitude" (Tr, p 324).
With respect to the charges lodged by the
Grievance Commission concerning Respondent's
representation of Shirley Wright, Respondent
denied that he violated a Restraining Order
prohibiting him from transferring or disposing
of the $7,428.87 cashier's check (Tr, p 1351).
He cashed the check prior to receiving a copy
of the Order, holding the funds in the form of
-54-
——_ eee
Fletcher J. Campbell -- Report of the Master
Page 30
cash at the direction of Shirley Wright (Tr, p
1352). The money remained in his office safe
until 1987 (Tr, p 1352).
Shirley Wright did not appear to testify
on the fifth, and last, hearing date, despite
having been served with a subpoena (Tr, p
1356). The competing attorneys made closing
arguments and Petitioner's attorney filed a
brief, in response to Respondent's brief, ten
days after the closing arguments were heard.
V. Findings of Fact -- Case No. 25-88
(A) Count I -- Failure to file an Inventory
and an Accounting
1. Respondent was discharged as Ophelia
Mason's attorney before the annual
accounting was due.
Ze The duty to prepare and file an
Inventory rests with the fiduciary,
rather than the fiduciary's attorney, who
is responsible for assisting the
fiduciary.
-55-
Fletcher J. Campbell -- Report of the Master
Page 31l
3s Respondent testified unrebuttedly
that Mason did not furnish him with
the documentation he needed to assist
her in preparing the Inventory.
CONCLUSION: Respondent did not commit
professional misconduct as alleged in Court I
of the formal complaint.
(B) Count II -- Charging and collection of
excessive fees
ke Respondent entered into an initial
fee agreement with Ophelia Mason on
September 15, 1983, through which he
charged and received a $600 non-refund-
able retainer.
2. The initial fee agreement shows that
the client, Ophelia Mason, was respons-
ible for all costs incidental to the pro-
bate case.
3. Contrary to the language contained in
Exhibit 1, Respondent testified that he,
rather than Mason, was responsible for
-56-
Eo ——————e—e—Vo
Fletcher J. Campbell -- Report of the Master
Page 32
the costs related to the guardianship and
conservatorship.
4. On June 26, 1984, a superseding fee
agreement was arrived at by Mason and
Respondent. From that date, Respondent
was entitled to one-third contingency fee
as to the Estate's assets.
5. The revised fee agreement gave
Respondent a one-third vested interest in
the Estate.
6. Mason signed the contingency fee
agreement at the urging of Respondent.
7. Based on the expert witness testimony
of John VonBatchelder and Gerald White,
and on the reasoning of the Opinion of
the Michigan Court of Appeals, the Master
determines that a contingency fee agree-
ment is prohibited in probate cases. The
probate judge determines the appropriate
attorney fee, based on numerous factors,
including the experience of the attorney
-57-
Fletcher J. Campbell -- Report of the Master
Page 33
and the complexity of the work.
8. Without the approval of the Probate
Court, Respondent accepted a $66,836.17
fee from Ophelia Mason.
3. In accepting and cashing the
$66,836.17 check, Respondent did not have
the approval of the affected parties (the
nursing home and Bessie Irwin's nieces
and nephew).
10. Under PCR 908.3 (the applicable rule
in 1983-84), an attorney may not accept
an attorney fee in a probate matter
unless he has either the approval of the
Probate Judge or all of the affected
parties.
ll. Although Respondent did obtain a
vested one-third interest in the Estate
through the revised fee agreement (Ex 3%),
he did not deprive Mason of an opportun-
ity to retain a substitute attorney, as
evidenced by Ira Auslander's involvement
-58-
EE eeVOOw
Fletcher J. Campbell -- Report of the Master
Page 34
in the guardianship and conservatorship.
12. Respondent did not obtain the ap-
proval of either the Probate Court or
the affected parties before accepting
the $600 non-refundable retainer fee.
CONCLUSION: Respondent committed profes-
sional misconduct by (1) entering into a
clearly excessive fee agreement (the contin-
gency fee contained in Ex 8) with Ophelia
Mason; (2) collecting the fee without the
authority of either the Probate Court or the
"affected parties;" and (3) collecting a $600
retainer fee without first seeking the ipogor~
al of the Probate Court or the "affected part-
ies". Petitioner did not preponderate on its
allegation that Mason's right to retain sub-
stitute counsel was impeded by the contingency
fee agreement.
(C) Count III -- Failure to obey an Order of
Michigan Court of Appeals
1. On May 9, 1985, Probate Judge Gragg
-59-
Fletcher J. Campbell -- Report of the Master
Page 35
held that Respondent was entitled to only
$5048 for his representation of the
guardian/conservator, Ophelia Mason.
ae Respondent appealed the Probate
Court's decision to the Michigan Court of
Appeals.
Js The Court of Appeals, on May 27,
1987, issued an Opinion, reversing the
decision of the Probate Court and remand-
ing the case to that Court. The appellate
court determined that Respondent earned
only $1657 in attorney fees.
4. Respondent has nominally complied
with the Probate Court and Court of
Appeals directives regarding his ob-
ligation to reimburse the Estate for
the excessive legal fees that he re-
ceived, reimbursing the Estate in the
sum of $1357.
_ - Respondent and Ophelia Mason's
attorney each had a duty to file a Peti-
-60-
Fletcher J. Campbell -- Report of the Master
Page 36
tion for Instructions in the Probate
Court following the remand of the Court
of Appeals.
CONCLUSION: Respondent disregarded the
Order of the Michigan Court of Appeals, which
indirectly ordered him to return the excessive
fees to the Estate. Respondent had a duty to
reimburse the Estate pursuant to the Probate
Court's Order of May 9, 1985. Respondent act-
ed improperly in making only a woefully mini-
mal effort to reimburse the Estate after
receiving adverse rulings from the Probate
Court and the Court of Appeals.
(D) Count IV -- Violation of A temporary
Restraining Order
be On January 31, 1985, Probate Judge
Gragg signed a Temporary Restraining
Order, enjoining Respondent and Respon-
dent's law firm from transferring,
spending, or encumbering any funds
received from the Estate of Bessie Irwin.
-6l-
ea. a 2 2.2.2.2.2.2.Qg gE
Fletcher J. Campbell -- Report of the Master
Page 37
2. Respondent was served with a copy of
the Restraining Order on January (31,
1985.
3: Respondent withdrew $9000 from his
law firm's checking account, at Comerica
Bank-Detroit, on February 1, 1985 (Ex
LZ} «
4. The record shows that the $9000 was
part of a $55,836.17 deposit made by
Respondent on December - 1984, at
Comerica Bank-Detroit (Ex > The
deposit was generated by a $66,832.17
check (Ex 11) that Respondent requested
and received from the Estate's conserva-
tor, Ophelia Mason, on December 5, 1984.
CONCLUSION: Respondent knowingly vio-
lated an Order of the Probate Court by trans-
ferring funds on February 1, 1985, that he re-
ceived from Bessie Irwin"s Estate.
(E) Count V -- The making of false statements
to the Probate Court
-62-
Fletcher J. Campbell -- Report of the Master
Page 38
1. On September 10, 1986, Respondent was
ordered by the Probate Court to account
for the money received from the Irwin
Estate.
Ze Respondent filed an accounting on
September 23, 1986.
3 Respondent claimed, among other
things, that he made case payments in
December, 1984, and January, 1985, to
Lew’ s Love +{$14,000), Floyd Ricken-
backer ($10,000), and the State of
Michigan ($7500).
Si Respondent testified that he made
the foregoing cash payments, but that
he had cash receipts only from the
State of Michigan.
5. Petitioner did not meet its. bur-
den of disproving Respondent's’ claim
that he made cash payments’ totaling
$31,500 to Love, Rickenbacker, and
the State of Michigan with funds he
-6§3-
Fletcher J. Campbell -- Report of the Master
Page 39
gained from the Irwin Estate.
CONCLUSION: Respondent did not make any
material misstatements to the Probate Court in
his accounting of September 23, 1986.
(F) ~Count IV -- Failure to pay or turn over
assets to the Receiver
Bi On April 28, 1980, a judgment was
entered in the Common Pleas Court against
Respondent in favor of the State of
Michigan, Department of Treasury.
a On September LT 1982, an Order
Appointing a Receiver, Alan May, was
Signed by Wayne County Circuit Court
Judge Richard Dunn, authorizing the
Receiver to marshall the assets of
Respondent in order to satisfy a Judgment
in the sum of $1,360.74 plus costs and
interest.
Be The Receiver only collected $175.09
through his efforts to marshall the
assets of Respondent.
-~6§4-
Fletcher J. Campbell -- Report of the Master
Page 40
4. The Receivership was closed on May
23, 1989, with a balance of $4,693.57, on
account of the Receiver's inability to
obtain any of Respondent's assets.
5. Respondent was served with a copy of
the Order Appointing a Receiver.
6. On May 9, 1985, Probate Judge Robert
Gragg ordered Respondent to turn over his
approved legal fee $5048, to the Re-
ceiver, an Order with which Respondent
did not comply.
ur In Count VI of the formal complaint,
Petitioner did not allege that Respondent
violated Judge Gragg's Order of May 49,
1985.
CONCLUSION: Respondent did not commit
professional misconduct in failing to turn
over his assets to the Receiver. Judge Dunn's
Order did not affirmatively require Respondent
to pay money to Alan May; rather, it empowered
May to collect on a judgment against Respon-
-65-
Fletcher J. Campbell -- Report of the Master
Page 41
dent. The failure to satisfy a judgment by an
attorney certainly is not laudable or justifi-
able, but does not constitute misconduct. An
Order that may have been violated by Respon-
dent in regard to the Receivership was Judge
Gragg's Order dated May 9, 1985, but that vio-
lation is not part of the allegations embraced
in Count VI of the formal complaint.
VI. Findings of Fact -- Case No. 133-88
(A) Count I -=- Improper handling of a
client's funds
i. Respondent successfully litigated a
fire insurance claim in the Common Pleas
Court, earning a judgment in the sum of
$7,428.87 for Shirley Wright.
Ze The insurance company appealed the
judgment entered on the verdict, but
Respondent collected on the judgment by
way of a garnishment procedure before the
case was formally stayed by the Common
Pleas Court or the Wayne County Circuit
~66<
Fletcher J. Campbell -- Report of the Master
Page 42
Court.
3 Respondent endorsed and cashed the
garnishment check on September 16, 1981.
4. When Respondent negotiated the
$7,428.87 cashier's check at the National
Bank of Detroit, he deposited $3,583.89
in a trust account and another $2,828.98
in a second account, while receiving
$1,016 in cash.
5. As to the $3,583.89 deposit into his
trust account, Respondent withdrew all
but $198.02 in 1981 and 1982.
6. Respondent did not pay any interest
to Shirley Wright with respect to the
funds he derived from the judgment
entered in favor of Wright.
CONCLUSION: Respondent violated DR 9-102
(A) by not depositing Shirley Wright's funds,
derived from a judgment, in an identifiable
bank account. He also misappropriated
Wright's funds by depositing part of them into
-67<-
Fletcher J. Campbell -- Report of the Master
Page 43
his own account, withdrawing part of them from
his trust account, and by receiving the re-
mainder in-cash. The other allegations con-
tained in Court I, Paragraph K either were not
proven by Petitioner or constitute factual,
instead of legal, averments.
(B) Count II -- Violation of a Temporary Re-
straining Order
1. On July 16, 1981, an Amended Judgment
was entered in favor of Shirley Wright,
Respondent's client, in the Common Pleas
Goave in the sum of $7,428.87.
2 The insurance company appealed the
judgment, but was unable to obtain a stay
of proceedings before Respondent garnish-
ed the bank account of the insurance
company.
Je Pursuant to a writ of garnishment
served by Respondent, the insurance
company's bank issued a cashier's
check to Respondent and Shirley Wright on
-68-
eS aaa
Fletcher J. Campbell -- Report of the Master
Page 44
September 16, 1981.
4. Respondent negotiated the cashier's
check at the National Bank of Detroit on
September 16, 1981, depositing part of
the $7,428.87 in two accounts, while
receiving the remainder in cash.
5. On September 17, 1981, Circuit Court
Judge Richard Dunn Entered a Temporary
Restraining Order at the request of the
insurance company, prohibiting Respondent
from negotiating the garnishment check.
CONCLUSION: Respondent did not violate
Judge Dunn's Temporary Restraining Order of
September 17, 1981, because he negotiated the
check one day before the Restraining Order was
issued.
(C) Count III--False statements made in con-
nection with a Request for Investigation
he Ronald Karp, an attorney, was ap-
pointed by the Attorney Grievance Commis-
sion to serve as a Volunteer Investigator
-69-
Sa SSS——_——eQeeEeEwt
Fletcher J. Campbell -- Report of the Master
Page 45
regarding a Grievance filed by Shirley
Wright against Respondent.
, - As part of his duties, Karp inter-
viewed Respondent in April of 1987.
3. Karp prepared a Report embracing his
findings, but the document was not intro-
duced as an exhibit at the hearing.
4. Respondent advised Karp that he
retained all of the proceeds derived from
the judgment in cash, at Wright's
request.
5. Since Shirley Wright did not testify,
it cannot’ be shown that Respondent
falsely informed Investigator Karp that
Wright asked him to hold the funds in
cash in order to avoid a garnishment.
6. Respondent falsely reported to In-
vestigator Karp that he held the proceeds
derived from the cashier's check of
September 16, 1981, along with other bank
exhibits, reveal that Respondent deposit-
-70<-
PASE it ti
Fletcher J. Campbell -- Report of the Master
Page 46
ed $6,412.87 of the $7,428.87 in two
accounts, receiving the remainder in
cash. Subsequent to that transaction, he
withdrew all but $198.02 from his trust
account. Thus, Respondent did not keep
the proceeds of the garnishment check at
his office, as he represented to Karp.
CONCLUSION: Respondent committed profes-
sional misconduct by knowingly providing false
information to a Volunteer Investigator of the
Attorney Grievance Commission who was investi-
gating a grievance filed against Respondent.
Wis Conclusions of Law -- Case No. 25-88
Respondent committed professional misconduct
in the following ways:
- By collecting a $600 non-refundable
retainer fee without obtaining either the
approval of the Probate Court or the
affected parties (as required by Probate
Court Rule 908.3), in violation of DR 2-
106(A) and (B), and MCR 9.104(1-4).
=Fi<-
Fletcher J. Campbell -- Report of the Master
Page 47
2. By charging and, without the approval
of the Probate Court or the affected
parties (as required by PCR 908.3),
collecting a clearly excessive fee; a
one-third contingency fee, in violation
Of DR 2-106(A) and (B), and MCR 9.104
(1-4).
3. By violating an Order and Opinion of
the Michigan Court of Appeals which
directed him to take steps to reimburse
the Irwin Estate for excessive fees that
he received, in violation of DR 7-106(A),
DR 1-102(A) (5), and MCR 9.104(1-4).
4. By knowingly violating an Order of
the Wayne County Probate Court, dated
February 1, 1985, which enjoined him from
transferring or spending funds that he
received through the Irwin Estate, in
violation of DR 7-106(A), DR 1-102(A) (5),
and MCR 9.104 (1-4).
The other allegations contained in the
~ b
Fletcher J. Campbell -- Report of the Master
Page 48
formal complaint, namely, the failure to file
an Inventory and an Accounting, the encumber-
ing of the fiduciary's right to retain a sub-
stitute attorney, the making of false state-
ments to the Probate Court, and the failure to
turn assets over to the Receiver, were not
proven by a preponderance of the evidence.
Respondent's affirmative defenses were not
proven and, in fact, were not seriously ad-
vanced.
fee? Conclusions of Law -- Case No. 133-88
Respondent committed professional misconduct
in the following manner:
Re By failing or neglecting to deposit
the funds of a client, Shirley Wright,
which he obtained through the collection
of a judgment, in an identifiable bank
account, in violation of DR 9-102(A), Dr
1-102(A) (4-5), and MCR 9.102(1-4).
ae By misappropriating the funds of a
client, Shirley Wright, in violation of
«73
ARIES“
Fletcher J. Campbell -- Report of the Master
Page 49
DR 9-102(A), Dr 1-102(A) (4-5), and MCR
9.102 (1-4).
3. By knowingly providing false informa-
tion to a Volunteer Investigator assigned
by the Attorney Grievance Commission to
investigate a grievance filed against
Respondent, in violation of DR 1-102 (A)
(4-5) and MCR 9.103(3) (4) (6).
The other allegations embraced in the
formal complaint were not proven by a prepon-
derance of the evidence. Respondent's affir-
mative defenses were not proven.
ATTORNEY DISCIPLINE BOARD
By
Steven M. Kaplan, Master
Dated: November 2, 1989
-J}ia
Michigan Supreme Court
Lansing, Michigan
ORDER
Entered: May 31, 1991
91111(6) (7) (8)
GRIEVANCE ADMINISTRATOR, STATE OF
MICHIGAN, ATTORNEY GRIEVANCE
COMMISSION,
Petitioner-Appellee,
Cross-Appellant,
SC: 91111
V ADB: 25-88, 133-88
AGC: 51/87, 90/88
FLETCHER J. CAMPBELL,
Respondent-Appellant,
Cross-Apnellee.
On order of the Court, the motion for
immediate consideration is considered, and it
is GRANTED. The motion for reconsideration of
this Court's order of March 22, 1991 is con-
sidered, and it is DENIED because it does not
appear that the order was entered erroneously.
The motion for stay is DENIED as moot.
I, CORBIN R. DAVIS, Clerk of the Michigan
Supreme Court, certify that the foregoing is a
true and complete copy of the order entered at
the direction of Court.
May 31 » 29a Clerk
= Fie
eee
Michigan Supreme Court
Lansing, Michigan
ORDER
Entered: March 22, 1991
91111(6) (7) (8)
GRIEVANCE ADMINISTRATOR, STATE OF
MICHIGAN, ATTORNEY GRIEVANCE
COMMISSION,
Petitioner-Appellee,
Cross-Appellant,
s¢c: 91111
V ADB: 25-88, 133-88
AGC: 51/87, 90/88
FLETCHER J. CAMPBELL,
Respondent-Appellant,
Cross-Appellee.
On order of the Court, the motions for
immediate consideration are considered, and
they are GRANTED. The motion for application
for leave to appeal as cross-appellant also
are considered, and they are DENIED, because
we are not persuaded that the questions pre-
sented should be reviewed by this Court.
The motions for stay are DENIED, as moot.
I, CORBIN R. DAVIS, Clerk of the Michigan
Supreme Court, certify that the foregoing is a
true and complete copy of the order entered at
the direction of Court.
March 22 , 1991 Clerk
-76-
State of Michigan
ATTORNEY DISCIPLINE BOARD
Grievance Administrator,
- State of Michigan
Attorney Grievance Commission,
Petitioner,
ADB 25~88;133-88
Vv
Fletcher J. Campbell, P11544
Respondent.
SUPPLEMENT TO ORDER DENYING
MOTIONS FOR RECONSIDERATION
Considered by the Attorney Discipline Board
One Kennedy Square, Suite 1910, Detroit, MI
PRESENT: Hanley M. Gurwin, Chairman
On November 15, 1990, the Attorney Disci-
pline Board entered its order granting the
stay of discipline requested by the respon-
dent. That order further provided that the
stay of discipline should remain effective for
twenty-one (21) days after the entry of an
order granting or denying reconsideration.
On February 25, 1991, the Board entered
its order in this matter denying the motions
for reconsideration filed by the respondent
-77-
crs A AE AL AEA
Page 2
and the Grievance Administrator.
NOW, THEREFORE, in accordance with the
Board's order of November 15, 1990 and the
provisions of MCR 9.118(D),
IT IS ORDERED that the stay of discipline
granted by the Board in this matter effective
November 15, 1990 shall remain effective for
twenty-one (21) days following entry of the
Board's order denying motions for reconsidera-
tion on February 25, 1991.
IT IS FURTHER ORDERED that the respon-
dent's suspension from the practice of law as
ordered by the Attorney Discipline Board shall
become effective March 19, 1991, or unless
otherwise ordered by the Board or the Supreme
Court.
ATTORNEY DISCIPLINE BOARD
By
Hanley M. Gurwin, Chairman
=-73-
State of Michigan
ATTORNEY DISCIPLINE BOARD
Grievance Administrator,
State of Michigan
Attorney Grievance Commission,
Petitioner,
ADB 25-88;133-88
V
Fletcher J. Campbell, P11544
Respondent.
ORDER REDUCING DISCIPLINE
Considered by the Attorney Discipline Board
One Kennedy Square, Suite 1910, Detroit, MI
PRESENT: John F. Burns
Hon. Martin M. Doctoroff
Remona A. Green
Robert S. Harrison
Linda S. Hotchkiss, M.D.
Theodore P. Zegouras
The Attorney Discipline Board has consid-
ered the Petition for Review filed by the re-
spondent seeking review of a hearing panel
order of revocation filed in this matter. The
Board conducted review proceedings in accor-
dance with MCR 9.118 and has concluded that
the discipline imposed should be reduced from
revocation to a three-year suspension, and
being otherwise advised;
~IOa
Page 2
NOW THEREFORE,
IT IS ORDERED that the SUSPENSION OF
RESPONDENT'S FOR A PERIOD OF THREE (3) YEARS
SHALL COMMENCE November 16, 1990. Respondent
shall remain suspended until further order of
the Supreme Court, the Attorney Discipline
Board or a hearing panel.
IT IS FURTHER ORDERED that for purposes
of any further appeal, this order shall be
deemed effective November 16, 1990.
IT IS FURTHER ORDERED that all provisions
of the Order of Revocation filed by the hear-
ing panel shall remain in full force and
effect except as modified.
ATTORNEY DISCIPLINE BOARD
By
Hanley M. Gurwin, Chairman
-80-
| : —T
State of Michigan
ATTORNEY DISCIPLINE BOARD
Grievance Administrator,
State of Michigan ’
Attorney Grievance Commission,
Petitioner,
ADB 25-88;133-88
Vv
Fletcher J. Campbell, P11544
Respondent.
ORDER OF REVOCATION
Considered by the Attorney Discipline Board
Wayne County Hearing Panel #11
PRESENT: David I. Rosin, Chairman
Arthur J. Tarnow, Member
Dawn A. VanHoek, Member
This matter having come before the panel
upon the filing of Formal Complaints ADB 25-88
and ADB 133-88 which were consolidated for
hearing. This matter was referred to a master
for findings of fact, and that report contain-
ing the findings and conclusion that miscon-
duct had been established by a preponderance
of the evidence, and the panel having con-
ducted a hearing on the level of discipline to
be imposed on January 18, 1990 and having fil-
-8l-
Page 2
ed that report, and being otherwise advised;
NOW THEREFORE,
IT IS ORDERED that the license to prac-
tice law of respondent Fletcher J. Campbell is
REVOKED COMMENCING March 23, 1990 until
further order of the Supreme Court, the Attor-
ney Discipline Board of a hearing panel and
until respondent complies with the require-
ments of MCR 9.123(B) and MCR 9.124.
IT IS FURTHER ORDERED that from the
effective date of this Order and until rein-
statement in accordance with the applicable
provisions of MCR 9.123, Respondent is for-
bidden from practicing law in any form; ap-
pearing as an attorney before any court,
judge, justice, board, commission or other
public authority; or holding himself out as an
attorney by any means.
IT IS FURTHER ORDERED that Respondent
shall, within seven (7) days of the effective
date of this Order, notify all of his acti
clients, in writing, by registered mail,
-82-
iia
return receipt requested, of the following:
1) the nature and duration of disci-
pline imposed;
2) the effective date of such disci-
pline; -
3) respondent's inability to act as an
attorney after the effective date of
such discipline;
4) the location and identity of the
custodian of the clients’ files and
records which will be made available
to them or to substitute counsel;
5) that the client may wish to _ seek
legal advise and counsel elsewhere;
provided that if respondent is a
member of a law firm, the firm may
continue to represent each client
with the client's express written
consent;
6) the address to which all correspon-
dence to respondent may be addres-
sed.
IT IS FURTHERED ORDERED that in accor-
=-§3-
dance with MCR 9.119(B), Respondent must, by
the effective date of this Order, in every
matter in which Respondent is representing a
client in litigation, file with the tribunal
and all parties a notice of Respondent's dis-
qualification from the practice of law.
IT IS FURTHER ORDERED that Respondent
shall, within fourteen (14) days of the effec-
tive date of this Order, file with the Griev-
ance Administrator and the Attorney Discipline
Board an Affidavit of Compliance as required
by MCR 9.119(C) (eff. June 1, 1987).
IT IS FURTHER ORDERED that Respondent's
conduct after the entry of this Order but
prior to its effective date, shall be subject
to the restrictions set forth in MCR 9.119(D)
(eff. June 1, 1987); and Respondent's compen-
sation for legal services shall be subject to
the restrictions described in MCR 9.119(F)
(eff. June 1, 1987).
IT IS FURTHER ORDERED that Respondent
shall, within 180 days of the effective date
of this Order, pay costs in the amount of
-84-
$5979.83. Cost payments shall be made payable
to the State Bar of Michigan but submitted to
the Attorney Discipline Board [One Kennedy
Square, Suite 1910, Detroit, MI 48226) for
proper crediting. Failure to reimburse the
State Bar of Michigan within the time pre-
scribed will result in Respondent's automatic
Suspension from the practice of law in ac-
cordance with MCR 9.128. (eff. June l, 1987).
ATTORNEY DISCIPLINE BOARD
Wayne County Hearing Panel #11
By
David I. Rosin, Chairman
-85-
600.2146 Record made in regular course of
business; surrounding circumstances; lack
of entry; photostatic reproduction
Sec. 2146. Any writing or record whether in
the form of an entry in a book or otherwise,
made aS a memorandum of any act, transaction,
occurrence or event shall be admissible in
evidence in all trials, hearings and proceed-
ings in any cause or suit in any court, or
before any officer, arbitrators, or referees,
in proof of said act, transaction, occurrence
Or event if it was made in the regular course
of any business and it was the regular course
of such business to make such memorandum or
record at the time of such act, transaction,
occurrence or event or within a reasonable
time thereafter. All other circumstances of
the making of such writing or record including
lack of personal knowledge by the entrant or
maker, may be shown to affect its weight but
not its admissibility. The term "business"
shall include business, profession, occupation
and calling of every kind. The lack of an
entry regarding any act, transaction, occur-~
-86-
Page 2
rence or event in any writing or record so
proved may be received as evidence that no
such act, transaction, occurrence or event
did, in fact, take place. Any photostatic or
photographic reproduction of any such writing
Or record shall be admissible in evidence in
any such trial, hearing or proceeding by order
of the court, made within its discretion, upon
motion with notice of not less than 4 days.
All circumstances of the making of such photo-
Static or photographic reproduction may be
shown upon such trial, hearing or proceeding
to affect the weight but not the admissibility
of such evidence. P.A.1961, No.236, §2146,
Eff. Jan l, 1963.
-87-
RULE 2.203 JOINDER OF CLAIMS, COUNTERCLAIMS,
AND CROSS-CLAIMS
(B) Permissive Joinder. A pleader may
join as either independent or alternate claims
as many claims, legal or equitable, as the
pleader has against an opposing party. If a
claim is one previously cognizable only after
another claim has been prosecuted to a conclu-
sion, the two claims may be joined in a single
action; but the court may grant relief only in
accordance with the substantive rights of the
parties.
RULE 2.312 REQUEST FOR ADMISSION
(A) Availability; Scope. Within the time
for completion of discovery, a party may serve
On another party a written request for the ad-
mission of the truth of a matter within the
scope of MCR 2.302(B) stated in the request
that relates to statements or opinions of fact
or the application of law to fact, including
the genuineness of documents described in the
request. Copies of the documents must be
-88-
served with the request unless they have been
or are otherwise furnished or made available
for inspection and copying. Each matter of
which an admission is requested must be stated
separately.
RULE 2.504 DISMISSAL OF ACTIONS
(B) Involuntary Dismissal; Effect.
(1) If the plaintiff fails to comply
with these rules or a court order, a defendant
may move for dismissal of an action or a claim
against that defendant.
(2) In an action tried without a jury,
after the presentation of the plaintiff's evi-
dence the defendant, without waiving the right
to offer evidence if the motion is not grant-
ed, may move for dismissal on the ground that
on the facts and the law the plaintiff has
shown no right to relief. The court may then
determine the facts and render judgment
against the plaintiff, or may decline to
render judgment on the merits against the
plaintiff, the court shall make findings as
provided in MCR 2.517.
-89-
iii iin AE A NR LEN SD NE SEE OE
it a ci i it at a a ii arm rreae eae
RULE 2.505 CONSOLIDATION; SEPARATE TRIALS
(A) Consolidation. When actions involv-
ing a substantial and controlling common ques-
tion of law or fact are pending before the
court, it may
(1) order a joint hearing or trial of any
or all the matters in issue in the actions;
(2) order the actions sonsolidated; and
(3) enter orders concerning the proceed-
ings to avoid unnecessary costs or delay.
RULE 7.210 RECORD ON APPEAL
(1) Return of Record. After the Court of
Appeals disposes of an appeal and the period
for a timely application for leave to appeal
to the Supreme Court has expired without the
filing of an application, the Court of Appeals
shall promptly return the original record to
the clerk of the court or tribunal from which
it was received, together with a certified
copy of the opinion, judgment, or order enter-
ed by the Court of Appeals.
-90-
(J) Notice by Trial Court or Tribunal
Clerk. The trial court or tribunal clerk
shall promptly notify all parties of the re-
turn of the record in order that they may take
the appropriate action in the trial court or
tribunal under the Court of Appeals mandate.
RULE 7.215 OPINIONS, ORDERS, JUDGMENTS, AND
FINAL PROCESS FROM COURT OF APPEALS
(F) Execution and Enforcement.
(1) Routine Issuance. Unless otherwise
ordered by the court or otherwise provided by
these rules, execution on the Court of Appeals
judgment is to be obtained or enforcement pro-
ceedings had in the trial court or tribunal
after the record has been returned (by the
clerk under MCR 7.210[I] or by the Supreme
Court clerk under MCR 7.311[B] with a certifi-
ed copy of the court's judgment or, if a
record was not transmitted to the Court of
Appeals, after the time specified for return
of the record had it been transmitted.
-‘9l-
RULE 8.121 CONTINGENT FEES IN CLAIMS OR
ACTIONS FOR PERSONAL INJURY AND WRONGFUL
DEATH
(A) Allowable Contingent Fee Agreements.
In any claim or action for personal injury or
wrongful death based upon the alleged conduct
of another, in which an attorney enters into
an agreement, expressed or implied, whereby
the attorney's compensation is dependent or
contingent in whole or in part upon successful
prosecution or settlement or upon the amount
of recovery, the receipt, retention, or shar-
ing by such attorney, pursuant to agreement or
otherwise, of compensation which is equal to
or less than the fee stated in subrule (B) is
deemed to be fair and reasonable. The receipt,
retention, or sharing of compensation which is
in excess of such a fee shall be deemed to be
the charging of a "clearly excessive fee" in
violati of Canon 2, DR 2-106(A) of the Code
of Professional Responsibility and Canons.
(B) Maximum Fee. The maximum allowable
fee for the claims and actions referred to in
@92-
subrule (A) is one-third of the amount recov-
ered.
x zk k *
(F) Agreements to Be in Writing. Contin-
gent fee arrangements made by an attorney with
a client must be in writing and a copy provid-
ed to the client.
RULE 8.303 COMPENSATION OF ATTORNEYS
An attorney is entitled to receive rea-
sonable compensation for services rendered to
an estate, in an amount approved by the judge
having jurisdiction over the estate. Except
when the compensation is consented to by all
the parties affected, the attorney must append
to an accounting, petition, or motion in which
compensation is claimed a written description
of services performed, a summary of the work
done by the attorney, and any other informa-
tion that may be helpful to the court in de-
termining compensation. This rvle does not
apply to independent probate proceedings under
-93-
Chapter 3 of the Revised Probate Code
[Amended effective March 1, 1985.]
Staff Comment
MCR 8.303 is based on PCR 908.3
Th rule requires court approval of attor-
ney fees in probate estate proceedings.
RULE 9.110 ATTORNEY DISCIPLINE BOARD
(A) Authority of Board. The Attorney
Discipline Board is the adjudicative arm of
the Supreme Court for discharge of its exclu-
Sive constitutional responsibility to super-
vise and discipline Michigan attorneys.
xt kk
(C) Internal Rules.
(1) The board must elect annually from
among its membership
SS. 2. -¢
(c) a secretary to keep the minutes
of the board's meetings and issue the re-
guired notices.
-94-
a
‘,
(2) Four members constitute a quorum. The
board acts by majority vote of the members
present.
sk wk ot
(4) A special meeting may be called by
the chairperson or by petition of 3 board mem-
bers on 7 days written notice. The notice may
be waived in writing or by attending the meet-
ing.
(D) Powers and Duties. The board has the
power and duty to
(1) appoint an attorney as its counsel;
(2) appoint hearing panels and masters;
(3) on the filing of a complaint, assign
it to a hearing panel or to a master if it
appears that the hearing will be a prolonged
one;
(4) on request of an aggrieved party, re-
view a final order of discipline or dismissal
by a hearing panel;
(5) discipline and reinstate attorneys
under these rules;
-95-
(6) file with tne Supreme Court clerk its
orders of suspension, disbarment, and rein-
statement;
(7) annually write a budget for the board
and submit it to the State Bar Board of Com-
missioners for approval; and
(8) submit to the Supreme Court proposed
changes in these rules.
RULE 9.111 HEARING PANELS
(B) Powers and Duties. A hearing panel
shall do the following:
(1) Hold a public hearing on a complaint
Or reinstatement petition assigned to it
within 56 days after the date the complaint is
filed with the board or the date that notice
of the reinstatement petition is published. A
hearing must be concluded within 91 days after
it is begun, unless the board grants an exten-
sion for good cause.
(2) Receive evidence and make written
findings of fact.
-96-
(3) Discipline and reinstate attorneys
Or dismiss a complaint by order, under these
rules.
(4) Report its actions to the board
within 28 days after the conclusion of a hear-
ing.
(5) Perform other duties provided in
these rules.
RULE 9.114 ACTION BY ADMINISTRATOR
OR COMMISSION AFTER ANSWER
tk ke
(C) Subpoenas.
(1) On request of the administrator or
the respondent, the commission may issue sub-
poenas to require the appearance of a witness
or the production of documents and other
things before the administrator or an investi-
gator concerning matters then under investiga-
tion.
RULE 9.115 HEARING PANEL PROCEDURE
~9Fa
(A) Rules Applicable. Except as other-
wise provided in these rules, the _ rules
governing practice and procedure in the non-
jury civil action apply to a proceeding before
a hearing panel.
xk ke *
(F) Prehearing Procedure.
(4) Discovery. Pretrial or discovery
proceedings are not permitted except as fol-
lows:
(a) Within 21 days of the service of
a formal complaint, a party may demand in
writing that documentary evidence that is
to be introduced at the hearing by the
opposing party be made available for in-
spection or copying. Within 14 days
after service of a written demand, the
documents shall be made available, pro-
vided that the administrator need not
comply prior to the filing of the respon-
dent's answer. The respondent shall com-
ply with the written demand within 14
days, except that the respondent need not
-98-
comply until the time for filing an ans-
wer to-the formal complaint has expired.
Any other documentary evidence to be
introduced at the hearing by either party
shall be supplied to the other party no
later than 14 days prior to the hearing.
Any documentary evidence not so supplied
shall be excluded from the hearing except
for good cause shown.
(d) " The hearing panel may order a
prehearing conference held before a panel
member to obtain admissions or otherwise
narrow the issues presented by the plead-
ings.
RULE 9.126 OPEN HEARINGS; CONFIDENTIAL
FILES AND RECORDS
(A) Investigations. Investigations by
the administrator or the staff may not be made
public. At the respondent's option, final
disposition of a request for investigation not
resulting in formal charges may be made
public.
-99-
(B) Hearings. Hearings before a hearing
panel and the board must be open to the
public, but not their deliberations.
1 tenes. Formal pleadings, reports,
findings, recommendations, discipline, repri-
mands, transcripts, and orders resulting from
hearings must be open to the public.
(D) Other Records. Other files and re-
cords of the board, the commission, the ads»
ministrator, legal counsel, hearing panels and
their members, and the staff of each may not
be examined by or disclosed to anyone except
(1) the commission,
(2) the administrator,
(3) the respondent as provided under MCR
9.115(F) (4),
(4) members of hearing panels or the
board,
(5) authorized employees,
(6) the Supreme Court, or
(7) other persons who are expressly
authorized by the board or the
Supreme Court.
-100-
If a disclosure is made to the Supreme Court,
the board, or a hearing panel, the information
concerning attorney or judicial misconduct to
the Judicial Tenure Commission, the State Bar
of Michigan Client Security Fund, the State
Bar of Michigan Committee on Judicial
qualifications, and any court-authorized
attorney disciplinary or admissions agency.
RULE 3.4 FAIRNESS TO OPPOSING PARTY
AND COUNSEL
A lawyer shall not:
(a) unlawfully obstruct another party's
access to evidence; unlawfully alter, destroy,
Or conceal a document or other material having
potential evidentiary value; or counsel or
assist another person to do any such act;
(b) falsify evidence, counsel or assist a
witness to testify falsely, or offer an in-
ducement to a witness that is prohibited by
law;
-i0i=
RULE 3.3 CANDOR TOWARD THE TRIBUNAL
(a) A lawyer shall not knowingly;
| (1) make a false statement of material
fact or law to a tribunal;
(2) fail to disclose a ma*?2rial fact to a
tribunal when disclosure is necessary to avoid
assisting a criminal or fraudulent act by the
client;
(3) fail to disclose to a tribunal con-
trolling legal authority in the jurisdiction
known to the lawyer to be directly adverse to
the position of the client and not disclosed
by opposing counsel; or
(4) offer evidence that the lawyer knows
to be false.
RULE 3.8 SPECIAL RESPONSIBILITIES
OF A PROSECUTOR
The prosecutor in a criminal case shall:
(d) make timely disclosure to the defense
of all evidence or information known to the
prosecutor that tends to negate the guilt of
the accused or mitigates the degree of the
-102=-
offense, and, in connection with sentencing,
disclose to the defense and to the tribunal
all unprivileged mitigating information known
to the prosecutor, except when the prosecutor
is relieved of this responsibility — pro-
tective order of the tribunal;
RULE 8.4 MISCONDUCT
It is professional misconduct for a
lawyer to:
(a) violate or attempt to violate the
Rules of Professional Conduct, knowingly
assist or induce another to do so, or do so
through the acts of another;
(b) engage in conduct involving dis-
honesty, fraud, deceit, misrepresentation, or
violation of the criminal law, where such con-
duct reflects adversely on the lawyer's
honesty, trustworthiness, or fitness as a law-
yer;
(c) engage in conduct that is prejudicial
to the administration of justice;
~1Q3-
RULE 103. RULINGS ON EVIDENCE
(d) Plain Error. Nothing in this rule
precludes taking notice of plain error affect-
ing substantial rights although they were not
brought to the attention of the court.
Note
MRE 103 is identical with Rule 103 of the
rr)
ederal Rules of Evidence.
RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY
OF DECLARANT IMMATERIAL
(6) Records of Regularly Conducted
Activity. A memorandum, report, record, or
data compilation, in any form, of acts, trans-
ctions, occurrences, or events, made at or
om
near the time by, or from information trans-
mitted by, a person with knowledge, if kept in
the course of a regularly conducted business
activity, and if it was the regular practice
of
that business activity to make the memoran-
dum, report, record, or data compilation, all
as shown by the testimony of the custodian or
other qualified witness, unless the source of
-104-
information or the method or circumstances of
preparation indicate lack of trustworthiness.
The term "business" as used in this paragraph
includes business, institution, association,
profession, occupation, and calling of every
kind, whether or not conducted for profit.
Note
MRE 803 is identical with Rule 803 of the
Federal Rules of Evidence except:
(2) MRE 803(6) is identical with Federal
Rule 803(6) except that the phrase "acts,
events, conditions, opinions, or diagnosis" is
replaced by the phrase "acts, transactions,
occurrences, or events".
-i1035=
HURWITZ, KARP, HIRSCHMAN & WALLACE, P.C.
Attorneys and Counsellor
8283 North Telegraph Road
Dearborn Heights, Michigan 48127
(313) 276-7030
July 13, 1987
Attorney Grievance Commission
Suite 256 - Marquette Building
243 W. Congress
Detroit, MI 48226
Attn: William E. Lang
Re: File No. 0004/87
Shirley A. Wright as to
Fletcher J. Campbell
Dear Mr. Lang:
I received the above file as a volunteer
investigator to inquire into the matter and
report to your office at the conclusion of my
investigation. This letter is my report.
- On December 29, 1986, Shirley Wright
filed her Request for Investigation of respon-
dent. Essentially, her complaint was that re-
spondent refused to account for approximately
7,600 he received on her behalf as a result
of litigating a fire loss claim on an insur-
ance policy issued by AAA. Initial litigation
-106-
Page 2
was by trial in 36th District Court in 1979
resulting in a jury verdict in favor of
Shirley Wright.
- On January 9, 1987, the Attorney Grie-
vance Commission forwarded the Request for In-
vestigation.
- On February 6,1 987, respondent dis-
tributed funds held on behalf of Ms. Wright;
the gross amount was $7,668.15 of which
$2,933.85 were attorney fees (one-third) and
$4,734.30 as the net proceeds of the ciaim to
client.
Ms. Wright's Request for Investigation
complained that respondent failed to account
to her when he received the funds ultimately
disbursed and he refused to disburse them for
many years. She also complains that she did
not receive interest on $7,428.87 which re-
spondent had been holding since September
1981.
«
The undersigned reviewed the file receiv-
ed from your office, interviewed Shirley
-107-
Page 3
Wright on April 11, 1987, interviewed respon-
dent on April 13, 1987, held a second inter-
view with respondent on April 25, 1987, and
conducted a telephone conference with William
Taylor at AAA's attorney office on May 11,
1987. The undersigned also reviewed addition-
al documents provided by Shirley Wright per-
taining to the litigation handled by respon-
dent which consisted of miscellaneous plead-
ings and settlement statement. A review of
the Code of Professional Responsibility was
also conducted.
The following historical events are rele-
vant to this matter.
is In 1979 respondent entered a judg-
ment in favor of Ms. Wright in 36th District
Court, upon a jury verdict of $6,000 plus
interest, for her damages in a fire loss in
1976. The claim arose out of the insurance
policy issued by AAA.
Ze September 1981 respondent received
$7,422.87 pursuant to a Writ of Garnishment
-106-
Page 4
upon National Bank of Detroit (garnishee de-
fendant) as a result of the Writ of Garnish-
ment served to collect the Judgment of 1979
against AAA.
3 Ms. Wright claims that respondent
failed to disclose the receipt of the garnish-
ment funds, made no accounting to her and made
no disbursement upon receipt.
4. On September 17, 1981, an Ex Parte
Order was entered in the Wayne County Circuit
Court (at the request of AAA on their appeal
of the Judgment entered in 1979 in 36th
District Court) providing that "... SHIRLEY
WRIGHT and/or FLETCHER J. CAMPBELL. coe
--.- ENJOINED from disposing of the proceeds
from same (proceeds of the Writ of Garnishment
in the amount of $7,428.87) aie: ies furt-
her order of this Court;..." :
Ss. Respondent claims that Ms. Wright
knew that he had collected the funds and re-
guested that the hold the $7,428.87 in cash so
that they would not be subject to garnishment
~109-
Page 5
by AAA. Shirley Wright denies any such know-
ledge and denies that she had any accounting
from respondent regarding the funds.
6. Respondent states that he held
$7,428.87 in the form of cash from September
9181 until disbursed to Ms. Wright in February
1987.
9 In September 1986 the fire loss
Claim was retried in 36th District Court re-
sulting in a verdict in favor of Ms. Wright in
the principal sum of $6,000. Interest upon
the principal sum was denied because respon-
dent hel@AAA*s money, in full satisfaction of
the prior judgment, since September 1981.
8. In 1982 AAA filed a Circuit Court
action against Shirley Wright and respondent
to recover the garnishment funds which it
claimed respondent obtained in violation of an
order staying proceedings on the appeal of the
1979 36th District Court Judgment. A Default
Judgment was entered against Shirley Wright
and respondent for $7,428.87, plus interest
#“110-
Page 6
and costs. AAA received $504.48 from a Writ
of Garnishment upon a bank account of respon-
dent.
9. After the $6,000 Judgment of Septem-
ber 19, 1986 (retrial of the fire loss claim)
the 36th District Court denied any interest
upon said sum and the claim was finally settl-
ed between respondent and the AAA attorney on
October 21, 1986. As of October 21, 1986, re-
spondent held a total of $7,668.15 represent-
ing adjusted gross proceeds of claim after
deducting the amount AAA garnishment against
respondent's funds.
10. The Request for Investigation was
prompted by respondent's refusal to account
for the funds he held and his refusal to dis-
burse the same. Respondent claims that he
strongly urged Ms. Wright to appeal the denial
of interest upon the $6,000 Judgment of Sep-
tember 1986. He further claims that her
Signature on the final settlement statement of
February 6, 1987 waives any claim to interest
-lll-
Page 7
and abandons all efforts to appeal. Respon-
dent claims that, only upon Ms. Wright's con-
sent to abandon the appeal and waiver of
interest (on February 6, 1987) could he then
finally disburse the funds to her.
This case involves a credibility issue as
to what respondent told his client in 1981
after receiving funds on her behalf and what
instructions she gave him. It is highly un-
usual to hold $7,428.87 in the form of cash
from September 1981 to February 1987. Respon-
dent was unable to specifically identify the
physical location of the case; e.g. safe
deposit vault, desk drawer, office safe, etc.
If there was any misconduct on the part of
respondent it would be a violation of DR 9-102
"Preserving Identity of Funds and Property of
a Client". There may have also been a viola-
tion of DR 4.101(B) (3) pertaining to the vio-
lation of confidences of a client for the ad-
vantage of himself.
-“iige-
Page 8
In final summary, it appears that respon-
dent had the use of $7,428.00 from September
1981 until February 1987. Those funds did not
draw any interest and none was distributed to
Ms. Wright. The fact that the respondent held
those funds since September 1981 was the basis
of the 36th District Court's denial of
interest on the principal judgment of $6,000
after the retrial in September 1986. The only
one who lost the interest was the client. The
attorney had the use of the funds during that
time. Had the money been invested at an
annual rate of 6% for the six year period
there would have been an additional $2,476.00
available for disbursement; two-thirds of
which would be the property of the client.
Ms. Wright was reluctant to continue with
her Request for Investigation if that would
result in discipline for respondent. She ex-
pressed an interest in obtaining a more com-
plete accounting of her claim and collection
of interest.
#“1i3-
Page 8
If there is any further service I can
perform in this matter please do not hesitate
to contact me.
Very truly yours,
Ronald Karp
RK: djm
-114-
ADDITIONAL SPECIFIED MATERIAL UNDERLYING
FEDERAL QUESTIONS RAISED IN STATE COURT
{See, Sup.Ct.R. 1.(h) and (k)]
The questions presented for review to
this Honorable Court were raised by the Peti-
tioner at the first opportunity by formal
pleadings. Specifically the federal questions
with respect to the appointment of a Master
while a panel was in place was first raised
when the Order appointing a Master was entered
on December 23, 1988, and subsequently the
relief sought by the Petitioner was denied on
May 8, 1989. Even before the Master issue
evolved federal questions were raised before
the assigned héaring panel by written motion
on April 15, 1988 with respect to violation of
due process concerning the failure to convene
a "public hearing" on Formal Complaint ADB 25-
88 within the prescribed and mandated 56 day
rule of MCR 9.111 (B). The panel assigned to
hear the matter on the Petitioner's Motion To
Dismiss did not rule on this’ dispositive
motion, but instead, on October 27, 1988,
entered its Order taking the motion under
-115- -
advisement. The panel never issued any ad-
jJudication on this motion even though the
panel subsequently issued its Report and Order
of Revocation. Thus, the panel did not
address the due process issue raised by the
Petitioner which it purportedly had taken
under advisement back on October 27, 1988.
Each of the foregoing federal questions were
presented to the Board on review, including
the additional federal questions concerning
(1) the unconstitutionality of the Michigan
scheme of attorney discipline, (2) the al-
teration of evidence secured secretly by the
Respondent during the Pre-Formal iad
stage by subpoena issued by the Respondent and
not the Board, (3) the denial of a fair trial
where unexcised evidence was placed in the
record even though the Master had ordered its
excision, (4) the improvident and proscribed
act of the Board's secretary consolidating the
separate and distinct Formal Complaints that
arose out of separate events and transactions,
(5) the denial of access to the minutes of the
-116=
Board and the list from which the Master was
selected or appointed, (6) the deprivation of
procedural due process where misconduct was
found on substantive charges not contained in
the Formal Complaints which likewise impacted
on the extreme punishment imposed, and (7) the
Board's conclusions of law denied the Peti-
tioner equal protection and due process since
such conclusions were actually not the ap-
plicable law in Michigan at the time the
events complained of occurred. The Board,
other than reducing the Order of Revocation to
a three (3) year suspension of the Petitioner,
upheld all actions of the Master, Panel #11
and itself. All of these federal questions
discussed above were raised in Petitioner's
Application For Leave To Appeal to the Michi-
gan Supreme Court. However, since the Michi-
gan Supreme Court would not hear the case, the
federal questions raised throughout the: pro-
ceedings below became final without judicial
intervention.
For example, the Master ordered the Pro-
-117-
secution, with respect to the Prosecution's
proposed Exhibit "56", "to excise or white out
or cut out all comments other than those made
by" the Petitioner. (Tr.967) Master Kaplan in
ruling on Petitioner's objection to the
Prosecutor's proposed Exhibit "56" pointedly
stated:
"MASTER KAPLAN: It's the ruling of the
Master, Mr. Campbell, that your motion
-- your objection is sustained except
for statements made by you that are
memorialized in the report.
In fairness to you, I want the report
excised, because although I would
promise you not to the read the report I
don't think it should be in the record
as to comments made by other people.”
[Emphasis Added] (Tr.968)
For another example, on August 29, 1988
the Respondent filed with the Board and served
Petitioner with a Motion entitled: Commis-
sion's Request For Admission Of Documents, and
citing in support thereof "MCR 2.302 (A)".
This instant motion was argued on September 7,
1988, and taken under advisement with Panel
#11's decision being rendered on October 27,
1988 via a written Order.
Petitioner, of course, objected this
-1139-
allowance of discovery permitted outside of
MCR 9.115(F) (4) (a)-(c).
On or about August 29, 1988 when the
Respondent filed the Request For Admission of
Documents, Respondent cited as authority for
such request MCR 2.302(A). Rule 2.302 (A)
involves the "availability of discovery"
under the Rules of Civil Procedure.
The Respondent's reliance on, and Panel
#11's and the Board's allowance of discovery
of this nature is clear error. Moreover, MCR
9.115(A) states, in its pertinent part:
"(A) Rules Applicable. Except as other-
wise provided in these rules, the rules
governing practice and procedure in a
nonjury civil action apply to a proceed-
ing before a hearing panel." [Emphasis
Supplied]
Thus, MCR 2.302(A) does not “apply to a
proceeding before a hearing panel", because
discovery is "otherwise provided in" MCR 9.115
(F) (4) which pointedly is extremely limited to
the parties in misconduct proceedings under
Chapter 9, Subchapter 9.100 et seq., and which
states:
-119-
" (4) Discovery. Pretrial or discovery
proceedings are not permitted, except as
follows:" [Emphasis Supplied]
It should be also noted that while MCR
9.115(F)(d) permits a panel to hold a pre-
hearing conference "to obtain admissions" or
narrow the issues, such authority does not
open a proceeding under MCR 9.100 et seq. to
discovery provided for Subchapter 2.300 [i.e.
MCR 2.301 through MCR 2.316].
Again we have utilized in these sort of
proceedings a double-standard which denies
equal protection of law.
Panel #11 under its Order dated October
27, 1988 granted discovery under MCR 2.302 (A)
or MCR 2.312, as the case may be, notwith-
standing such discovery is proscribed under
the plain reading of MCR 9.115(F) (4) made
applicable through MCR 9.115(A).
What Panel #11 and the Board has created
in its application of MCR 2.302 (A) or MCR
2.312 is to expand the limited scope of MCR
9.115(F) (4) in favor of the Respondent, and
in so doing provide a subordinate form of
-120-
discovery to a Petitioner attorney. The Four-
teenth Amendment, which became law in 1869,
was enacted to control such creations by those
acting under color of state law, and put some
teeth in the Thirteenth Amendment enacted in
1866. Put simply, the Petitioner was, given
the expansive grant of discovery under the
sponsorship of MCR 9.115(F) (4) extended to the
Respondent, denied equal protection of the law
and unequal discovery opportunities. This
should be halted by this Court.
Equal protection includes the premise
that persons subject to the law be treated
alike, under like circumstances and condi-
tions, both in the privileges conferred and
the liabilities imposed. Marchant -vs- Penns.
Ry. Company, 153 U.S. 380 (1894) This second
class right to discovery given to Petitioner
attorneys should be nullified and not permit-
ted to stand by this Court.
For another example, on January 9, 1989
the Petitioner went to the offices of the
Attorney Discipline and requested copies of
the following materials under the authority
of MCR 9.126; to wit:
(A) Written request from Panel #11
Chairman, David I. Rosin;
(B) Minutes of the Board underlying the
David I. Rosin request and the
Board's vote thereon; and
(C) The Master's List from which the
instant appointment was made.
Petitioner was given a copy of the "written
request from David I. Rosin" which was dated
"filed" with the Board on October 11, 1988,
but the Board's staff, on January 9, 1989,
indicated that the minutes of the Board are
not given out to a Petitioner, and _ the
Master's List request had to be addressed by
the John F. VanBolt, the Board's Executive
Director and General Counsel. 2
The “exclusive constitutional responsi-
bility" [MCR 9.110 (A)] ought not be subject
It is to be noted that the delegation re-
quest was made even before the entry of
Panel #11's adjudication dated October 27,
1988. Further, a copy of this missive was
not served upon the parties.
-122=-
to politicking or simple flight from responsi-
bility by a panel because "factual issues are
quite complex" {Rosin's letter dated October
11, 1988] and thereby the establishment of a
procedural hearing scheme not expressly autho-
rized by Court Rule, and where the minutes and
list from which a a master is appointed is
unavailable to a Petitioner attorney when
demanded. cf. Batson -vs- Kentucky, 476 U.S.
79; 90 L.Ed.2d.69 (1986) [exclusion of all
members of a defendant's race, on the basis of
race, is a denial of equal protection]. The
arbitrary ouster of representative Black
attorneys serving as masters could not be
checked by the Petitioner without access to
the list of Masters. Such lists formerly were
published in the Michigan Bar Journal [See,
e.g. the July 1980 Issue, pp. 458-459. fThis
denial of access of such a list is akin to a
defendant not being able to see the jury
sheets or records before they are seated to
pass judgment on an accused party.
The principal rule enunciated in Batson
“1Z3-
-vs- Kentucky, 476 U.S.79 (1986) has been
extended to include civil actions. The 7th
U.S. Circuit Court of Appeals on December 12,
1990 became the second Circuit to extend
Batson -vs- Kentucky, supra, to civil litiga-
tion. Dunham -vs- Frank's Nursery & Crafts,
Inc., 89-2109. State action is rather obvious
in a disciplinary proceeding in Michigan - the
prosecutor-Respondent, representing the State
as the prosecutorial arm. The Board's action
in refusing to provide access to the Master's
List effectively foreclosed any challenge by
the defense as to the exclusion of all members
of the Petitioner's race, on the basis of
race. The Petitioner is Black and the Master
is White.
It is also equally clear that "(i)nteg-
rity is the very breath of justice. Confidence
in our law, our Courts, and in the administra-
tion of justice is our supreme interest. No
practice must be permitted to prevail which
invites towards the administration of justice
-124é-
a doubt or distrust of its integrity" Erwin M.
Jennings Company -vs- DiGenova, 108 Conn 491,
499; 141 A. 866, 868 (1928). Within this con-
text, it is a denial of due process and equal
protection of the law to deny the Petitioner
access to the minutes and the Master's List
from which Steven M. Kaplan, was appointed.
The net result is that the checks and
balances against unauthorized actions cannot
possibly be discovered by a Petitioner to
ensure due process itself against a backdrop
of access being denied by Board fiat. See,
e.g. Kent -vs- United States, 383 U.S. 541;
16 L.Ed.2d 84 (1966); In The Matter Of The
Application Of Gault, 384 U.S.541; 16 L.Ed.2d
1013 (1966). Fundamental fairness and all
notions of fair play to satisfy due process
itself mandates such access and disclosures
to the Petitioner.
Another clear example of the federal
question being raised timely and _ properly
raised so as to give this Honorable Court
#125-
jurisdiction [Sup.Ct.R. 14.1(h)] is concisely
demonstrated as follows:
The Order discipline concluding Petition-
er committed misconduct together with the pun-
ishment imposed was based on_- substantive
separate and distinct charges not contained
in the Formal Complaints, and further made
conclusions of law constituting reversible
error on substantive issues.
Hence, it is apparent that the punish-
ment imposed on the Petitioner was predicated
in part necessarily upon a finding of miscon-
duct under "MCR 9.103(3)(4)(6)" with respect
to Case No. 133-88.
No "MCR 9.103(3)(4)(6)" violation is
alleged, for example, in Formal Complaint ADB
133-88, and secondly, no such Court rule it-
self even exists. An attorney may only be
found guilty of misconduct as charge in the
Complaint. In re Ruffalo, 390 U.S.544; 88
§.Ct.1222; 20 L.Ed.2d 117 (1968)
Hence, due process, on its face, is not
satisfied where the discipline imposed gave
+126-
weight to such "finding and conclusions of
the panel" [See, Opinion, Page 1, Para.4] in
passing on the question of punishment of three
(3) years.
Next, essentially the Respondent charges
in its Formal Complaint that the Petitioner
had a "duty", under DR 9-102(A), to deposit
the proceeds, i.e. Seven Thousand Four Hundred
Twenty Eight and 87/100 ($7,428.87) Dollars,
into "a Trust Account”. See, Count I, para
J.(i).
Now going to the Respondent's contention
that a violation of DR 9-102(A) has occurred;
first one would have to totally ignore the
client's wishes in the matter, i.e. don't put
my money in your Trust Account for the issu-
ance of a check for I want cash! In this
regard, the Respondent's own witness, Ronald
Karp, Esq., on July 10, 1989 testified point-
edly that a Client may request cash instead of
having a lawyer pass the client's proceeds
through a Trust Account. Moreover, any rea-
sonable assessment of DR 9-102 (A) would
-127-
clearly reflect that the Rule only applies
"unless the Client otherwise directs”. This
condition has been codified in some states.
See, e.g. Cal. Business and Professions Code,
§6076 [west 1962] See, also Michigan Supreme
Court Order of October 23, 1987 included such
language to amend DR 9-102 and stated it would
read:
"(A) Unless the client directs other-
wise, all funds of clients paid to a
lawyer..... - Shall be deposited in an
interesting-bearing a@ccount.ces:< “
[Emphasis Added] *
Secondly, the Respondent's charge ad-
vanced under DR 9-102 (A) completely ignores
also the fact the Wayne County Circuit Court,
via Judge Dunn issued an Injunctive Order
which, on its face, prevented the Petitioner
from even delivering or turning the funds over
to the client. See, Respondent's Exhibit #34.
The Ex Parte Order, dated September 17, 1981
[Exhibit #34] pointedly prevented the changing
* Note: This exception was written into Michi-
gan law effective until October 1, 1990
[See, MRPC 1.15(b)]. Likewise after October
1, 190 [See, MRPC 1.15(b)] "...by agreement
with client...."
-1265-
of the status quo.”
Against this backdrop and the Court's
Order the Respondent had asserted that the
Petitioner should have run the risk of ignor-
ing or possibly violating (not only the
Client's directive of not wanting to be
issued a check) the clear mandate of the
Court's Order itself and "depositing the
proceeds into a Trust Account" which neither
Judge Dunn's Order or the Client herself
authorized. To underscore the absurdity of
such contention one only has to consider the
fact that had the Petitioner "deposited the
"IT IS ORDERED that Plaintiff, SHIRLEY
WRIGHT, be and she is hereby ENJOINED by
this Court from negotiating or otherwise
disposing of cashiers check no. 4780807,
issued by National Bank of Detroit in the
amount of $7,428.87, pending the further
order of this Court;
x *k
IT IS FURTHER ORDERED that in the event
that the aforementioned cashier's check
has been negotiated by SHIRLEY WRIGHT
and/or FLETCHER J. CAMPBELL, that they be
and are ENJOINED from disposing of the
proceeds from same pending the _ further
order of this Court;" [Emphasis Added]
Note: This exception is written into
Michigan Law [See, MRPC 1.15(b)]. "Except
as...oOr otherwise permitted by law..."
-129-
proceeds into a Trust Account" against the
wishes of the Client and Judge Dunn's Order
then more than likely the Respondent would
merely be heard to replace the alleged DR 9-
102(A) violation with a charge being leveled
against the Petitioner that he violated DR 7-
106(A) [i.e. “a lawyer shall not disregard or
advise his client to disregard a standing rule
of a Tribunal..... ")] and DR 1-102 (A) (1) (5) (6),
inter alia.
Of course, the aforementioned circum-
stances do not even address the fact that
Judge Dunn more than likely would have held
the Petitioner in contempt which may have re-
sulted in a fine, imprisonment or both; and
such contempt proceedings may have been civil,
criminal or both for violating his Order. See,
e.g. Ex Parte Gilliland, 284 Mich 604; 280 NW
63 (1938), cert den 306 U.S. 643; 83 L.Ed.
1040; Harvey -vs- Lewis, 10 Mich App 709; 160
NW.2d. 391 (1968) [held contempts may be
classed as civil or criminal].
In sum, no violation of DR 1=-102(A) (1)
#130-
(3)-(6); DR 9-102(A) or (B) (4) occurs where a
Petitioner-attorney, in compliance with a
Court Order, maintains the status quo and not
"pay or deliver to the Client....the funds"
[DR 9-102(B)] which could constitute criminal
Or civil contempt or both for such mis-doings
which affront the dignity of the Court.
Jaikins -vs- Jaikins, 12 Mich App 115 (1968);
Harvey -vs- Lewis, supra
Further it is clear, given the Ex Parte
Order of the Circuit Court, that the proceeds
of the garnishment could not be turned over
to the Client. Also, DR 9-102(B) (1)-(4) had
been followed at the direction of the Client.
In short, the only duty owed in this matter
under Count I was the Petitioner's client,
Shirley Wright (hereinafter "Wright"). Her
(Wright's) specific directions were adhered
to, including obeying the Injunctive Order.
Next, Respondent alleges in Count II that
a violation of DR 1-102(A) (4)-(6) has occur-
red. Hence it is certainly not "misconduct"
described thereunder unless the Respondent can
=l3i-
a
prove that in fact the monies taken from the
Trust and Payroll Accounts was Garnishment
proceeds. In this regard it is to be noted
that the Respondent has alleged that on
September 16, 1981 only "cash" was received by
the Petitioner; [See, para. K.(ii)] that in
fact the Respondent has alleged that "Peti-
tioner did not deposit said Seven Thousand
Four Hundred Twenty Two and 87/100 ($7,422.87)
Dollar check into a Trust Account" [See, para
K.(1i)] further clearly supports non-removal of
funds.
In further, and a more clear, demonstra-
tion of the fact that the monies deposited by
the Petitioner were not the proceeds of the
Garnishee-Defendant NBD is pointedly reflected
in one of the Respondent's own Exhibits itself
given to Petitioner through discovery where a
notation is made thereon by bank personnel
which states:
"checked bank's computer there wasn't
an account in the name of Fletcher
Campbell at the time above check was
presented. "No deposit." Check had to
have been "cashed" per Anthony Monales
-132=
NBD Security. 02-10-88 R.A." [Emphasis
Added]
[See, Exhibit 78, in evidence]
Petitioner's testimony on this point,
when coupled with the demonstrative evidence
of the Respondent itself, reflects that the
check was "cashed" and "no deposit" was made.
Weighing this trial evidence, as the Master
must under a MCR 2.504(B)(2) Motion, it fol-
lows that the allegations contained under
paragraph kK.(iii), (iv), (vi), (vii) and
(viii) must fail for failure of the Respondent
to meet its burden of proof.
The burden of proof rests with the Re-
spondent in these proceedings. That is to say
that the Respondent has the burden of proof to
establish by competent evidence which out
weights the evidence against it. Strand -vs-
C & W.M. Ry Company, 67 Mich 380 (1887); Hanna
-vs- McClave, 273 Mich 571 (1935); Cook -vs-
Vineyard, 291 Mich 375 (1939)
Further, this burden never shifts to the
Petitioner. Weaver -vs- Motor Transit Manage-
ment Company, 252 Mich 64 (1930); A.J.Brown &
-133=-
ee
Son, Inc. -vs- City of Grand Rapids, 265 Mich
465 (1933)
Hence, the Respondent in the instant case
had the burden of proof on all the elements of
its case. School District of the City of Ionia
-vs- Dadd, 380 Mich 220 (1944); Rogers -vs-
City of Detroit, 340 Mich 291 (1954)
In short, allegations of mere conclusions
are not sufficient to save a pleading from
dismissal on proper Motion. Plassy -vs- S.
Loewenstein & Son, 330 Mich 525, 527 (1951);
MCR 2.504(B) (2)
Further, in terms of the subsidiary
federal questions raised, the Respondent had
steadfastly contended, through its witness,
Mary H. Sanders, that Petitioner deposited
the Cashier's Check [Exhibit "78"] into “two _
(2) different checking accounts, with a
balance of One Thousand Sixteen ($1,016.00)
Dollars being given to Petitioner in cash.
On the other hand, Petitioner had steadfastly
contended that he and his client admittedly
cashed the $7,428.87 Cashier's Check [Exhibit
-134-
EES
"78] on September 16, 1981 and received all
of the ‘$7,428.87 which was thereafter held in
the Petitioner's office safe because of the
issuance of a Temporary Restraining Order by
Judge Dunn preventing the money being dis-
posed of or given to Mrs. Wright, the Peti-
tioner's client, and maintained the status
quo until permitted to disburse funds.
Moreover, the record in this cause re-
flects the following exchange between defense
counsel and witness Sanders on the foregoing
point which went as follows: [Tr.1238]
A CL does not mean collection, it means
check link.
Q Check link.
What does it -- what's the distinc-
tion between a person receiving a
receipt that says CL as opposed to a
cash deposit?
A Okay.
CL means -- that means you are
linking that deposit up to the check.
Q Okay.
Let's go to -- now, let's. say I
gave you cash, what would it say?
It would just say credit.
Q Credit.
Now, what, what -- so --
A CR
Q CR?
*=i35-
A Um-hmn.
Q Now I noticed -- do you have copies of
the receipt that you gave the customer
back on September the 16th, 1981 which
would show _us whether or not it was a CL
deposit as opposed to a CR credit de-
posit?
A Mr. Campbell, we don't keep copies of
those blue birds.
The so-called "Blue Birds" testified to
by Ms. Sanders and issued by the Nation Bank
of Detroit is attached hereto covering on the
$3,583.89 deposit of September 16, 1981 [See,
Exhibit "A", Transcript Receipt] [App.16l1],
and it clearly shows that the deposit resulted
from the depositor giving "cash" by the desig-
nation of "CR" thereon as clearly distinguish-
able from a "Check Link" or "CL" deposit as
Ms. Sanders' oral testimony -provided in im-
peaching the banks own subpoenaed business
records.
Moreover, the Board was in possession of
new and material evidence that ought to have
caused the Board to Re-open and reconsider
its Opinion and Order Reducing Discipline, or
if the Board believed that additional testi-
-136-
mony should be taken, it should have referred
the case to a hearing panel or master. MCR
9.118(C) (2). This Court ought not ignore this
evidence in passing upon the Petitioner's
practice of law. MRE 103(d)
Another subsidiary issue concerns’ the
fact that a $600.00 retainer fee was indeed
collected in connection with this Petition-
er's retention in instituting Court action
for (1) Appointment of Guardian and (2)
Appointment of Conservator, both separate and
distinct proceedings under Michigan Statutes
and Court Rules. The finding for misconduct
on this aspect is neither supported by the
caselaw, statutes or Court rules governing
attorneys in Michigan at the time of its
occurrence. As a matter of fact the state's
expert witness John Vonbatchelder, an attor-
ney in the state of Michigan for over fifty
(50) years, testified pointedly that he was
of the opinion that the $600.00 retainer fee
paid to this Petitioner was proper, and, even
more importantly, that charging a retainer
-137-
fee in a probate matter does not violate any
disciplinary rule [Tr.683, 736]. Petitioner,
as well as Mason's counsel Mr. Auslander, both
testified that contingent fees are not pro-
hibited in probate matters [(Tr. 428, 429; Tr.
430; Tr.232] Additionally, it must be noted
that back in September 1983 when this Peti-
tioner was retained to render the aforesaid
legal services the Michigan Appellate Court
itself recognized that it was not then readily
clear whether a fiduciary may pay an attor-
ney's fee prior to Court approval. This un-
clearness that prevailed then was pointedly
expressed in the 1984 Michigan Appellate Court
decision of In Re Thacker Estate, 137 Mich App
253 (1984) where the Court stated:
"The plain language of the provision
(MCLA 700. 541; MSA 27.5541) requires
judicial approval before the fiduciary
may take its initial payment. Thus,
appellant (fiduciary) erred in paying
itself without Court approval. [Emphasis
Added]
It is not as readily apparent whether
the fudiciary may pay an attorney's fee
prior to Court approval. The statute
merely states that counsel may be re-
tained without Court approval and shall
receive reasonable compensation for his
-138-
services. However, PCR 707.1(d) (2)
requires approval of attorney compensa-
tion to be sought pursuant to PCR 908.
empneess BSCS) 127 Mich App 253, 263
(1984)
To underscore the unclearness expressed
by the Thacker Court with respect to payment
of attorney's fees prior to Court approval, a
May 27, 1987 Michigan Court of Appeals decis-
ion in footnote 2 of its opinion finally made
the governing Court Rule clear where it point-
edly stated:
"2 MCR 8.303, formerly PCR 908.3, makes
clear that the probate court must ap-
prove attorney fees in all cases."
[Emphasis Added] Fletcher J. Campbell,
J.D., P.C. -vs- Ophelia Mason, Docket
No. 86326 (05-27-87) Mich App
(1987)
In short, a new Court Rule was establish-
ed effective January 25, 1985, i.e. MCR 8.303,
to replace patently unclear and confusing
meaning and guidance of the former PCR 908.3.
Now MCR 8.303 requires Court approval of
attorney fees even when the affected parties
have consented. Against this backdrop’ the
finding of misconduct on this aspect is incon-
sistent with the law itself and denied this
=139-
Petitioner due process. It is also most
important to note that the Probate Court did
subsequently approve the $600.00 fee upon
which the supposed misconduct was predicated
in accordance with In Re L'Esperance Estate,
131 Mich App 496; 5092; 346 NW2d.578 (1984),
cited in Fletcher J. Campbell, J.D., P.C.
-vs- Ophelia Mason, [Ex #19], where its
stated:
"Hence, although a conservator may hire
an attorney and may agree to pay a cer-
tain fee, the attorney's fee is clearly
Subject to the probate court's scrutiny
and may, in fact, be altered by the
probate court."
Put simply, the $600.00 fee was agreed
upon between the parties, paid, and then sub-
sequently approved by the Probate Court. There
certainly is no misconduct here properly sup-
ported by the law objectively when applied to
the record in this cause if read by those
charged with reviewing same.
-140-
_
Another issue raised concerns the Board's
issuing formal complaint alleged, under Count
II, para.C(ii), that a "Contingent Fee Con-
tract For Services" was entered into between
this Petitioner and his client, Mason, and
this action violated a disciplinary Rule. In
short, the formal complaint had alleged that
(1) a contingent fee contract in a probate
case is prohibited and (2) the fee charged is
under such contract is "clearly excessive".
This simply is not the law.
Moreover, assuming the truth of such
allegation for the purpose of considering a
dispositive exposition of the caselaw and
court rules, as we must, under Michigan law
[MCR 2.116(C) (8); MCR 2.504(B)(2)!]; Davis -vs-
Framer Brothers Freight Lines, 361 Mich 371,
376(1960); DeNike -vs- County of Otsego, 45
Mich App 711, 714 (1973)), nevertheless the
applicable disciplinary rule [DR 2-106 (C)]
and Michigan Court Rule [formerly GCR, 1963,
928 now MCR 8.121] on their face is inopposite
to the position taken under the formal com-
-i4i-
plaint and covering on such matters.
Moreover, DR 2-106(C) pointedly sets
forth the types of agreements which are pro-
scribed wherein it says:
"A lawyer shall not enter into an ar-
rangement for, charge, or collect a con-
tingent fee in a divorce case or for
representing a Defendant in a criminal
case." (Emphasis Supplied]
Needless to say, probate matters are not
included under DR 2-106(C). - Substantively,
there is no violation where no disciplinary
rule exists prohibiting such retention as
alleged by the formal complaint in Court II
via a "Contingent Fee Contract".
Also it was the Board's finding that the
Contingent Fee Contract was "clearly exces-
Sive". Again as a matter of law such allega-
tion must fail because the substantive law is
inopposite. Moreover, MCR 8.121 indeed per-
mits an attorney to enter into a "Contingent
Fee Agreement" with a "maximum allowable fee
--- (Of) one-third (1/3)". See, MCR 8.121 (B)
No other Court Rule outlining and defining a
"contingent fee" contract exists.
“l42-
Te
On considering the evidence introduced
at this trial the Fiduciary herself testified
as to the assets of the estate when (1) she
stated that the stock sold by her *hrough her
broker, Comerica~-Bank-Detroit, exceeded Two
Hundred Thousand ($200,000.00) Dollars, (2)
she had also money in bank [see, Exhibit #49
in evidence], and (3) she obtained in August
1984 proceeds of the ward from the safe/vault
[see, Exhibits #50 and 51, in evidence]. Hard-
ly can any set of facts adduced by the proofs
in the underlying record evidence a receipt by
this Petitioner of an amount which violates
MCR 8.121(B) of one-third (1/3) allowable to
an attorney.
More significantly, it must be noted that
testimony or proofs on the amount of assets of
the estate came from (1) the Petitioner's
testimony under the adverse party statute upon
questioning by, the Respondent's counsel, (2)
Exhibit No's 49, 50 and 51, and (3) the Fiduc-
iary's testimony wherein she stated stock sold
through her broker/bank was Two Hundred Thou-
«14¢3-
sand ($200,000) Dollars or more, coupled with
that secured by her in August 1984 from the
safe/vault. Further, when the Prosecution's
expert was asked how much and what were the
total assets of the estate he (i.e. John Von
Batchelder) testified that he did not know in
contrast to the Petitioner's adverse party
testimony that the assets exceeded One Million
($1,000,000.00) Dollars. It seems hardly
fitting, given this "proof", that the Peti-
tioner had contracted under a "Contingent Fee"
arrangement for more than one-third (1/3).
Exhibit #8 shows otherwise. Likewise, Sixty
Six Thousand Eight Hundred Thirty Six and
17/100 ($66,836.17) Dollars, plus One Thousand
Three Hundred Fifty Seven ($1,357.00) Dollars
can hardly be said, as a matter of fact or
law, to be more than the 33-1/3 set forth in
Exhibit #8 itself, or more than 33-1/3 of over
the excess of the one million ($1,000,000.00)
dollar estate that was subsequently establish-
ed on the record. Likewise, Mason testified
that after she was appointed Guardian-Conser-
-144-
vator, and with the assistance of Petitioner,
she was able to locate a safety deposit box
that had been removed from a closed bank (Tr.
1091). Mason readil’’ admits that the contents
of the located safety deposit box was worth at
least one million dollars (Tr.625) (Ex. 51).
In sum, the Board's adopted finding on
this aspect against the backdrop of the right
and legal application of DR 2.106(C) and MCR
8.121, left the Petitioner entitled to a Dis-
missal, when coupled witn the Petitioner's
testimony itself of the services performed
[See, Exhibit #73) which was not refuted by
the Prosecution. >
It should be noted that the claim that the
payment under the first contract of $1,357
[Ex.#1] constituted misconduct under DR 2-
106(A) and (B) is wholly without merit
Since both the Probate Court and the Michi-
gan Court of Appeals approved the payment
of such sums to this Petitioner. The alleg-
ed misconduct with respect to "contingent
fee" contract [Ex.#8] is governed by DR 2-
106(C) and MCR 8.121 at most, and no DR 2-
106(C) violation was alleged in the Board's
Formal Complaint with respect to the second
contract, i.e. Exhibit #8. See, also, In
The Matter Of John Ruffalo, Jr., Supra.
-}45=
Another federal question; essentially
under the Count III, of the Board's Complaint
contends that apparently some "Order" or
"Opinion" of the Court of Appeals had not
been obeyed by the Petitioner.
For the claimed substantive charge(s)
under this Count III, the Prosecution contend-
ed DR 1-102(A) (1) (5) (6) and DR 7-106(A) had
been violated.
The DR cited by the Prosecution in the
Board's Formal Complaint and = conclusions
state:
DR 7.106. Trial Conduct
(A) A lawyer shall not disregard or
advise his client to disregard a
standing rule of a tribunal or a rul-
ing of a tribunal made in the course
of a proceeding, but he may take
appropriate steps in good faith to
test the validity of such rule or
ruling.
Hence, even if its assumed that the Court
of Appeals is a "Trial" Court or "Tribunal"
within the meaning of DR 7=-106(A), which is
vehemently denied, nevertheless there still
has been no violation of the Court of Appeals
Order dated May 27, 1987 because the Order
itself does not mandate the Petitioner to do
anything, but pointedly states in its charging
mandate/adjudication that the matter is:
"Reversed and remanded for proceedings
consistent with this opinion. Costs to
Appellee-Cross Appellant.” {Emphasis
Added]
-146-
In short, the Order remands the matter
‘back to the Trial Court, i.e. Probate Court,
"for proceedings....". The Prosecution had
not in any fashion presented competent
"proofs", by preponderation or otherwise, that
the Petitioner had not obeyed "all Orders of
the Court of Appeals", for the Order speaks
for itsel*®.
Moreover, Courts do not speak through
their opinions but through their Orders, Judg-
ments and Decrees. Jones -vs- Hicks, 358 Mich
474; 100 N.W.2d 243 (1960); Pierson -vs-
Pierson, 351 Mich 637; 88 N.W.2d 500 (1958);
Nemes -vs- Smith, 37 Mich App 124; 194 N.W.2d
440 (1971). An opinion by a Court is merely
evidence of the law, and not the law. See,
C.J.S., Courts §222. Thus, a Court's adjudi-
cation, and not the language of the writer of
the opinion, establishes the "law of the
case", Attorney General ex Rel. O'Hara -vs-
Montgomery, 275 Mich 504; 267 N.W.550 (1936)
In sum, there had not been a proper invoca-
tion of the Trial Court's jurisdiction after the
-147-
QO OOO ooo
entry of the May 27, 1987 adjudication pointedly
reversing and remanding the matter back to the
Trial Court "for proceedings..." in the case.
Put simply, the mandate of the Court of
Appeals is directed not to the Petitioner, but
to the Trial Court. Hence, no failure to obey
within the ambit of DR 7-106(A) as matter of
fact or law. Lastly, no Order had been entered
by the Trial Court effectuating the Court of
Appeals' opinion as required. MCR 7.215(F)
("execution on its Judgement is to be obtained
or enforcement proceedings had in the Trial
Court" after the record has been returned
under MCR 7.210(I) and (J)].
It is to be noted that the Prosecution
presented absolutely no proof that subrule
7.210(J) had been complied with after the
Court of Appeals was decision was issued on
May 27, 1987. MCR 7.210(J) states:
"(J) Notice by Trial Court or Tribunal
Clerk. The trial court or tribunal clerk
shall promptly notify all parties of the
return of the record in order that they
may take the appropriate action in the
trial court or tribunal under the Court
-148-
of Appeals mandate.” [Emphasis Added]
[Amended effective October 1, 1989.]
This the trial Court had failed to do.
See, also United States -vs- Covino, 837 F.2d.
65 (CA 2, 1988), and People -vs- Johnson, 397
Mich 868 (1976)
Thus while under MCR 7.215(E) "an opinion
is notice of the entry of the judgement of the
Court of Appeals", nevertheless under the
Court Rules it is perfectly clear the Court
did not Order the Petitioner to do anything
for its mandate was directed to the trial
Court.
Put simply, the Order of the Appeals
Court merely .remanded the case back to the
Probate Court with any enforcement [of this
"money judgement", see, slip op. p.8(5-27-87)
Court of Appeals] [Ex. #19] necessarily abid-
ing the action of the trial Court. The Pro-
secution presented absolutely no evidence of
trial Court action after remand until after
the Master's decision, which was adopted by
-149-
4
the Board, had been rendered.
In conclusion, when the alleged miscon-
duct violations were found under Count III of
the Board's Formal Complaint by the Master,
there existed absolutely no "Order and opinion
of the Michigan Court of Appeals directing
[Petitioner] to reimburse the estate for the
excessive fees". The Master in his findings
conceded this in his conclusion where he
pointedly, in its pertinent part, stated:
"Conclusion: Respondent [Petitioner]
disregarded the Order of the Michigan
Court of Appeals, which indirectly [not
"directly"] ordered him to return the
excessive fees to the Estate." [Emphasis
Added as well as bracketed words.]
Likewise, it is to be noted that the
Master and Board has now decreed that indirect
Orders, whatever they are, should guide an
attorney's ability to practice law in the
state of Michigan. This is clearly a depar-
The Amended Order of the trial Court in
the underlying Case #763-105 was
in evidence on November i0, 1989
Report Of The Master was issued
spect to page 10 of Count III of
not even
when the
with re-
the For-
mal Complaint and its alleged violations.
-150-
a
ture from the due process requirements man-
dated by the United States Supreme Court in
The Matter of John Ruffalo, supra. The Court
of Appeals Order [Exhibit #19] simply does not
say what the Master or the Board found on this
aspect yet the Petitioner was suspended for
thirty-six (36) months as a part of such
punishment to such non-existent Order or on
such an indirect order.
In another federal question; essentially
the Board's Formal Complaint under Count IV,
contended that the Probate Court entered an
Order restraining the Petitioner from. dispos-
ing of or transferring assets in his posses-
sion, as distinct from a non-named party,
which purportedly belonged to the estate.
This temporary restraining Order was dated
January 31, 1985 [Exhibit #17]. The underlying
funds in question were issued to Petitioner
only by a check dated December 5, 1984 [Exhi-
bit #11). The evidence adduced at trial shows
that the check [Exhibit #11] was cashed by the
Petitioner at the Estate's bank.
“l35i-
In reaching its conclusion that the Peti-
tioner violated a temporary Restraining Order
the Board adopted the Master's finding that
purportedly:
"4. The record shows that the $9,000.00
was part of a $55,836.17 deposit made by
Respondent [Petitioner] on December 5,
1984, at Comerica Bank-Detroit (Ex 12).
The deposit was generated by the
$66,832.17 check (Ex 11) that Respondent
[Petitioner] requested and received from
the Estate's conservator Ophelia Mason,
on December 5, 1984.
CONCLUSION: Respondent [Petitioner]
knowingly violated an Order of the Pro-
bate Court by transferring funds’ on
February 1, 1985, that he received from
Bessie Irwin's Estate."
This aforesaid finding and conclusion is
totally inconsistent with a finding and con-
clusion made by the Master and the Board with
respect to Count V of the -Formal Complaint
regarding the accounting given to the Probate
Court by the Petitioner back in September 1986
with respect to the "Estate's funds" [Exhibit
#14) wherein no misconduct was found, when
coupled with the fact that the Master and the
Board totally ignored the other deposits made
to the account before February 1, 1985 which
~15Z=
were not so-called estate funds and its impact
—accounting-wise on its computations in reach-
ing a decision that the $9,000.00 withdrawn
was a part of $55,836.17 as separate and
distinct from other funds so deposited and the
beginning balances deprived therefrom. Put
simply, this wholly improper computation error
waS permitted to be ignored, even assuming
that the Petitioner was served with the TRO,
where absolutely no distinction was made or
justified with respect to other deposits in
question [either prior to December 5, 1984 and
before February 1, 1985] and its impact on the
appropriate beginning balances.
Moreover, the conclusion = and finding
under Count IV of the Formal Complaint is
wholly inconsistent with the conclusion and
finding under Count V. The conclusions re-
turned with respect to Counts IV and V are
incapable of logical reconciliation and can-
not be sustained. See, e.g. Hughes -vs- United
States, 95 F.2a.538, (CA 5 Fla.(1938) dictum) ;
People -vs- Chambers, 22 Cal App 2d. 687; 72
#153-
P.2d.746 (1937); Smith -vs- State, 38 GA. App.
366; 143 SE 927 (1928); Davis -vs- State, 43
GA App 122; 157 SE 888 (1931); Finch -vs-
State, 87 GA App 426;+-74 SE 2d 121 (1953) It
is generally understood that "inconsistency"
means some logical jeeobnibidice Or improb-
ability implicit in the findings on the
several Counts at the same time. It ordinarily
arises from factual considerations, as in the
case at bar, where the Board found, via the
Master, that the Petitioner transferred funds
on February 1, 1985 that he received from the
Estate [Count IV], but under Count V that
Petitioner did not make false statements to
the same Probate Court with respect to the
disposition of the same estate funds through a
Court ordered accounting [Exhibit #14]. There
Simply is no rational consistency to these
Opposite conclusions dealing with the same
funds themselves. With respect to Count V the
Master observed as follows:
"1. On September 10, 1986, Respondent
[Petitioner] was ordered by the Probate
Court to account for the money received
-154-
from the Irwin Estate.
y Respondent [Petitioner] filed an
accounting on September 23, 1986."
The observation of the Master went on to
state as follows:
"5. Respondent [Petitioner] did not meet
its burden of disproving Petitioner's
[Petitioner's] claim that he made cash
payments totaling $31,500.00 -to Love,
Rickenbacker, and the State of Michigan
with funds he gained from the Irwin
Estate.
CONCLUSION: Respondent [Petitioner]
did not make any material misstatements
to the Probate Court in his accounting
of September 23, 1986."
This is diametrically opposite to the
Master's own finding of fact and conclusions of
law as to Count IV of the Complaint.
After the substitution of Mr. Auslander as
attorney for Ms. Mason as guardian and conserva-
tor of the Irwin Estate, the Court ordered Peti-
tioner to give an accounting for the disposition
of the $66,832.17 he received in fees from the
Irwin Estate. This accounting was filed with
the Court in September of 1986 (Ex.14). In Count
V of the Complaint Petitioner was charged with
making false statements to the Court with re-
gards to the disposition of the $66,832.17. The
“i32*
Master found:
"CONCLUSION: Respondent [Petitioner] did
not make any material misstatements to
the Probate Court in his accounting of
September 23, 1986."
This accounting sets forth that by Janu-
ary of 1985 all funds received from the Irwin
Estate had been disposed of by Petitioner. In
fact a capitulation of the accounting dis-
closes expenditures of $66,919.11 some $86.94
more than he received in fees.>
However in his finding of fact as to
Count IV the Master concludes that a with-
drawal of $9,000.00 by Petitioner from his
bank account on February 1, 1985 constituted
part of the $66,832.17 received from Irwin's
Estate.
These finding are incompatible. The
Master's finding that Petitioner did not mis-
It should be noted that the Court of Ap-
peals held in effect that in absence of a
better accounting by Campbell an estimated
fee of $1,657.00 was reasonable (Ex.19).
However, in the herein de novo hearing the
Master made no independent assay of the
proof. (Ex.73) See, In Re Ruffalo, Jr.,
Supra, MSEA -vs- Department of Mental
Health, 120 Mich App 42 (1982)
-156-
represent to the Court his disposition of the
Irwin fees establishes that all such fees
were spent as of January 19, 1985, (Ex.14).
If they were spent in January 1985 they could
not be present in February 1985. In addition
the Master ignores the funds, allegedly a
part of the Irwin fees, were deposited, as
well as subsequent deposits made that month of
January 1985 and the beginning balance on
December 5, 1984. In short the Master's
conclusion that Petitioner's accounting was
not a misrepresentation establishes that he
could not have violated the Court's Order on
February 1, 1985 as all of the Irwin Estate
funds had been spent, (Ex.14).
Put simply, the inconsistency in the con-
clusions and findings of Counts IV and V can-
not be reconciled logically with each other.
Speiller -vs- United States, 31 F.2d 682 (CA 3
Pa., 1929); likewise the following set forth
jurisdictions, including California, adopts
this view; to wit: Cal-- People -vs- Kimmerle,
(1928) 90 Cal App 186, 265 P 525 (recognizing
-157-
rule); People -vs- Walther, (1938) 27 Cal App
2d 583, 81 P2d 452; People -vs- Doxie (1939)
34 Call App 2d 511, 93 P2d 1068; People -vs-
Grant (1951) 105 Cal App 2d 347, 233 P2d 660
(dicta); People -vs- Tophia (1959) 167 Cal App
2d 39, 334 P2d 133. Colo -- Webb -vs- People
(1927) 83 Colo 1, 262 P 906, ovrld Crane -vs-
People, 91 Colo 21, 11 P2d 567. Ga -- Evans
-vs- State (1932) 46 Ga App 39, 166 SE 449
(recognizing rule); Hand -vs- State (1954) 90
Ga App 452, 83 SW2d 276. Ill -- People -vs-
Bailey (1945) 391 I11 149, 62 NE2d 796 (re-
cognizing rule).
The majority view is that verdicts re-
specting the several Counts of a Complaint
such as used in the instant case must be con-
Sistent. The acquittal under Count V negates
wholly the essential elements of misconduct
charged in Count IV which was against the
Petitioner. See, for example, the following
cases; to wit: US -- Rosenthal -vs- United
States (1921, CA9 Cal) 276 F 714. Ariz --
State -vs- Fling (1949) 69 Ariz 94, 210 P2d
-158-
221; State -vs- Laney (1954) 78 Ariz 19, 274
P2d 838. Cal -- Ex parte Johnston (1935) 3
Cal 2d 32, 43 P2d 541. People -vs- Powell
(1920) 50 Cal App 436, 195 P 456; People -vs-
Andursky (1925) 75 Cal App 16, 241 P 591;
People -vs- Novo (1936) 12 Cal App 2d 525, 55
P2d 915, reh den 12 Call App 2d 529, 56 P2d
560; People -vs- Hight (1949) 94 Cal App 2d
100, 210 P2d 270. Fla-- State -vs- Trafficante
(1961, Fla App) 136 So 2d 264 (apparently
recognizing rule). Mo -- State -vs- Headrick
(1904) 179 Mo 300, 78 SW 630. Pa -- Common-
wealth -vs- Fronheiser (1925) 6 Pa D & C 710,
11 Leh Co LJ 209, 39 York Leg Rec 135. Wash
-- state -vs- O'Neil (1946) 24 Wash 2d 802,
167 P2d 471.
Put another way, eliminating the evidence
necessary to prove Count V, the remaining
evidence is also insufficient to support Count
IV. Boyle -vs- United States, 22 F2d. 547 (CA
8 Neb., 1927); Speiller -vs- United States,
Supra; People -vs- Bales, 74 Cal App 2d 732;
169 P 2d 262 (1946).
~i359-
In conclusion the repugnancy is quite
evident in the verdict of the Master and Board
under Counts IV and V.
-160-
» 63 NATIONAL BANK
OF DETROIT
TRANSACTION RECEIPT
(The white lettering indicates informatio
FIRST LINE SHOWS: Gank—Branch—Teller, Process Dat
1
O32-072-10 09/16/81 ¢ ) Tc-ot a
DON 8b137-44 I+53.3.39 CR 0522 '
SECOND LINE SHOWS: Sequence No.
BD 1771-10 REV. 50/80 (Code Definitions on Reverse Side.) ope aa
me 7 hj HA
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.