Opposition Brief — McWhorter v. Attorney Grievance Board

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{ x | Supseme Court, U.S.

9 S42 EE D

No. 95-982 | JAN 22 1996

In The Se ee

Supreme Court of the United States

October Term, 1995

| ROBERT A. MCWHORTER,

Petitioner,

GRIEVANCE ADMINISTRATOR,

Respondent.

On Petition For Writ Of Certiorari To The Supreme

Court For The State Of Michigan

BRIEF IN CPPOSITION

To The Petition For Writ Of Certiorari

Richard L. Cunningham (P29735)

Counsel Of Record

Attorney For Respondent

243 W. Congress, Suite 256

Detroit, MI 48226

(313) 961-6585

RESTATEMENT OF QUESTIONS

PRESENTED FOR REVIEW

ISSUE I.

DOES A STATE SUPREME COURT DECISION

DENYING REINSTATEMENT TO A _ FORMER

ATTORNEY WHO WAS DISBARRED FOR SERIOUS

CRIMINAL OFFENSES, WHICH PROVIDES THAT THE

PETITIONER MAY NOT REAPPLY FOR

REINSTATEMENT UNTIL FIVE YEARS HAVE LAPSED

FROM THE EXPIRATION OF HIS PAROLE, SO AS TO

ENSURE THAT AN EVALUATION OF HIS

-REHABILITATION WILL BE BASED UPON HIS

UNSUPERVISED CONDUCT OVER A SUFFICIENT

PERIOD OF TIME TO ENABLE A_ VALID

EVALUATION, VIOLATE THE "EX POST FACTO"

CLAUSE OF ART. 1, SEC. 10 OF THE UNITED STATES

CONSTITUTION?

ISSUE I.

DOES A STATE SUPREME COURT DECISION

DENYING REINSTATEMENT TO A _ FORMER

ATTORNEY WHO WAS DISBARRED FOR SERIOUS

CRIMINAL OFFENSES, WHICH PROVIDES THAT THE

PETITIONER MAY NOT REAPPLY FOR

REINSTATEMENT UNTIL FIVE YEARS HAVE LAPSED

FROM THE EXPIRATION OF HIS PAROLE, SO AS TO

ENSURE THAT AN EVALUATION OF HiIS

REHABILITATION WILL BE BASED UPON HIS

UNSUPERVISED CONDUCT OVER A SUFFICIENT

PERIOD OF TIME TO ENABLE A_ VALID

EVALUATION, VIOLATE "DOUBLE JEOPARDY"

PROVISIONS OF THE UNITED STATES

CONSTITUTION?

ISSUE IT.

DOES A STATE SUPREME COURT DECISION

DENYING REINSTATEMENT TO A _ FORMER

ATTORNEY WHO WAS DISBARRED FOR SERIOUS

CRIMINAL OFFENSES, WHICH PROVIDES THAT THE

PETITIONER MAY NOT REAPPLY FOR

REINSTATEMENT UNTIL FIVE YEARS HAVE LAPSED

FROM THE EXPIRATION OF HIS PAROLE, SO AS TO

ENSURE THAT AN EVALUATION OF HIS

REHABILITATION WILL BE BASED UPON HIS

UNSUPERVISED CONDUCT OVER A SUFFICIENT

PERIOD OF TIME TO ENABLE A_ VALID

EVALUATION, VIOLATE THE "DUE PROCESS"

CLAUSE OF THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION?

ISSUE IV.

DOES A STATE SUPREME COURT DECISION

DENYING REINSTATEMENT TO A FORMER

ATTORNEY WHO WAS DISBARRED FOR SERIOUS

CRIMINAL OFFENSES, WHICH PROVIDES THAT THE

PETITIONER MAY NOT REAPPLY FOR

REINSTATEMENT UNTIL FIVE YEARS HAVE LAPSED

FROM THE EXPIRATION OF HIS PAROLE, SO AS TO

ENSURE THAT AN EVALUATION OF HIS

REHABILITATION WILL BE BASED UPON HIS

UNSUPERVISED CONDUCT OVER A SUFFICIENT

PERIOD OF TIME TO ENABLE A_ VALID

EVALUATION, VIOLATE THE "EQUAL PROTECTION"

CLAUSE OF THE FOURTEENTH AMENDMENT?

secrete

Restatement of Questions Presented for Review ...... i

ne a eee heccecean Vv

Reasons For Denying The Writ............... 13

I, Petitioner Fails To Demonstrate Any

Violation Of The "Ex Post Facto"

Clause Of Art. 1, Sec. 10 Of The

United States Constitution............. 14

A. The Decision Requiring The

Lapse Of Five Years From Expiration

Of Parole Before A Disbarred Attorney

Can Apply For Reinstatement, Imposed

To Ensure A Sufficient Period Of

Unsupervised Conduct Upon Which To

Properly Evaluate Rehabilitation,

Is A Procedural Change Which Is Not

I GW hs 6 og eb oc ccc ce 15

B. Ex Post Facto Prohibitions Are

Limited To Criminal Matters, And

Do Not Apply To Attorney

Disciplinary Proceedings .............. 16

Il. Petitioner Fails To Demonstrate Any

"Double Jeopardy" Violation .........--- 17

Il. Petitioner Fails To Demonstrate Any

Violation Of The Fourteenth Amendment

"Due Process” Clause .......------+-+:> 18

IV. Petitioner Fails To Demonstrate Any

"Equal Protection" Violation .........-.-- 21

TT eC eee re Et re ee 23

APPENDICES

A- Michigan Court Rules, Subchapter 9.100

B- Order Issued In Matter of Callanan

Cases Page

Dobbert v Florida, 432 U.S. 282, 53

Sed. 26 366, OT SR. Zee Dn 8 ot tees 16

Drumright v Padzieski, 436 F Supp 310

WN 8 a eee 19

Erdman v Stevens, 458 F.2d 1205

eb I 28 i Ae eee ees 21

Fox v Employment Security Comm.,

379 Mich 579, 588, 153 NW2d 644 (1967) ....... 23

Galvin v Press, 347 U.S. 522,

98 LE Sil, FA S.Ct THT DD. nc cn vo eee 17

Goesaert v Cleary, 335 US 464;

69 S Ct 198; 93 L Ed 163 (1948) ............. 23

Grayson v Board of Accountancy,

27 Mich App 26, 31-32; 183 NW2d

He GEREN 2 0 bv cect ku se sknees $a ee eee 23

Grievance Administrator v August, 438

Mich 296 (1991) 2... ccc ccc ec cccecs 5, 6, 17

Hunter v City of Ann Arbor, 325 F.Supp

OFF GTS sk eera terrae ere eee 19

I Petition For Rei

-Of McWhorter, 449 Mich 130, 141 (1995) .... 11, 21

In re Schlossberg v State Bar

-Grievance Board, 388 Mich 389,

200 NW2d 219 (1972) .............c ce eee 1

In the Matter of Grimes, 414 Mich 483,

326 N.W.2d 380 (1982)................ 14, 18

Massachusetts v Feeny, 442 U.S. 256,

99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). ......... 22

Matter of Callanan, 440 Mich 1207,

487 NW2d 750 (1992)..............04. 21, 22

Matter of Leifer, 63 AD2d 174,177 ........... 18

Matter of Seraphim, 97 Wis 2d 485,

294 NW 2d 485 (1980) ...............000e 18

eee eee

Matthews v Eldridge, 424 U.S. 319,

96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ........... 19

Middl C Ethics C ;

Garden State Bar Associati

tal, 457 U.S. 423, 102 S.Ct. 2515,

fe ee ee 14

Miller v Florida, 482 U.S. 423, 107

S.Ct. 2446, 96 L.Ed.2d 3541 (1987) ........... 16

Nalin: « Leutilons Siete Teer henna

et al., 414 Fed Supp 180 (E.D. LA, 1976) ....... 17

People v Chapman, 301 Mich 584,

rt ree Carl es og a vo s'6'* O06 a 17

People v Potts, 181 Mich App 311,

448 NW2d 820 (1989) ...............0000- 16

Schware v Board of Bar Examiners

of The State Of New Mexico. 353 U.S. 232,

77 S.Ct. 752, 1 L.Bd.2d 796 (1957) ........... 19

State Bar Gri Admini

_v Estes, 390 Mich 585, 212 NW2d

ee! as i): es irae ee a 6

State Bar v McWhorter (On Reh), 407

ft. i.) ar war were were aie a 6

Struble vy DAIIE, 86 Mich App 245,

rerdk y hel. re aaa 22

United States v Halper, 490 U.S. 435,

109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) ........ 18

United States v McWhorter, 705

F2d 459 (6th Cir. 1982)... 2... eee eee eee 7

Court Rules Page

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STATEMENT OF THE CASE

This case involves the decision of a state supreme

court denying reinstatement of a law license to a former

attorney who was disbarred after being convicted of serious

criminal offenses in both state and federal courts. The state

disciplinary rules provide that a former attorney petitioning

for reinstatement must prove by clear and convincing

evidence that he or she meets specific criteria relating to his

or her fitness to practice law. Even though a hearing panel

determined that the petitioner met those criteria, the court

concluded that not enough time had passed since the

petitioner had been released from parole supervision in order

to properly evaluate his rehabilitation. Determining that the

seriousness of the misconduct which led to disbarment

required an examination of this petitioner’s conduct over a

substantial period of time when he was not subject to parole

supervision, the court further held that he could not reapply

for reinstatement until five years after his release from

parole. The disbarred attorney asserts that the state court

violated his various rights under the United States

Constitution by denying him readmission and by prohibiting

him from reapplying until five years after the termination of

his parole.

Michigan Reinstatement Procedures

Article 6, Section 5 of the Michigan Constitution of

1963 empowers the Supreme Court to promulgate general

Tules which establish, modify, amend and simplify the

practice and procedure in all courts of this state. Pursuant

to that authority, the Michigan Supreme Court has

established rules to regulate and discipline members of the

bar. i , 388

Mich 389, 200 NW2d 219 (1972). Rules concerning

investigation, prosecution and adjudication of allegations of

misconduct, and the reinstatement to good standing after a

suspension or disbarment, are set out in Subchapter 9.100 of

the Michigan Court Rules (hereinafter, “MCR” .) (Appendix

A). These rules are exclusive on attorney discipline matters.

MCR 9.107.

Michigan has a bifurcated disciplinary system, with

a separation between the prosecutorial and adjudicative

functions. The Supreme Court appoints an Attorney

Grievance Commission, which serves as its prosecution arm

for discharge of its constitutional responsibility to supervise

and discipline Michigan Attorneys. MCR 9.108(A)&(B). It

also appoints a separate Attorney Discipline Board, which

serves as the Court’s adjudicative arm for its exclusive

constitutional responsibility to supervise and discipline state

attorneys. MCR 9.110(A)&(B).

A Grievance Administrator is appointed by the

Supreme Court, and is empowered by the rules to investigate

allegations of attorney misconduct, and to prosecute

complaints authorized by the Attorney Grievance

Commission within the disciplinary system. MCR

9.109(A)&(B). When a disbarred attorney petitions for

reinstatement, the Grievance Administrator is required to

investigate the petitioner’s eligibility for reinstatement, and

to report the findings in writing. MCR 9.124(C). The

Grievance Administrator must also appear at the public

hearing on the petition, and shall cross-examine the

petitioner and present evidence bearing on his or her

eligibility for reinstatement. MCR 9.124(C)&(D).

A disbarred attorney seeking reinstatement begins the

process by a filing a petition and a personal history affidavit

with the Supreme Court. MCR 9.124(A)&(B). A disbarred

attorney may not file such a petition until five years have

elapsed since revocation of the license. MCR 9.123(D)(2).

If the petition and affidavit are facially sufficient, the matter

is assigned to a hearing panel for adjudication. A hearing

panel is composed of three attorneys, appointed by the

Attorney Discipline Board. MCR 9.111(A). The hearing

panel conducts a public hearing on the petition, and receives

evidence relevant to the petitioner’s eligibility for

reinstatement. MCR 9.111(B).

The ultimate issue adjudicated by the hearing panel

is the petitioner’s eligibility for reinstatement. The burden

is on the petitioner to prove that he or she is fit to practice

law in this state. The petitioner must establish, by clear and

convincing evidence, that he or she meets all the criteria for

reinstatement set forth in MCR 9.123(B)(1)-(9). That rule

provides that the petitioner may be reinstated only if the

evidence proves:

(1) _ he or she desires in good faith to be

restored to the privilege of practicing law in

Michigan;

(2) the term of the suspension ordered has

elapsed or 5 years have elapsed since

revocation of the license;

(3) he or she has not practiced or

attempted to practice law contrary to the

requirement of his or her suspension;

(4) he or she has complied fully with the

order of discipline;

(5) his or her conduct since the order of

discipline has been exemplary and above

reproach;

(6) _ he or she has a proper understanding

of and attitude toward the standards that are

imposed on members of the bar and will

conduct himself or herself in conformity with

those standards;

(7) taking into account the nature of the

misconduct which led to the revocation or

suspension, he or she nevertheless can safely

be recommended to the public, the courts,

and the legal profession as a person fit to be

consulted by others and to represent them and

otherwise act in matters of trust and

confidence, and in general to aid in the

administration of justice as a member of the

bar and as an officer of the court;

(8) he or she is in compliance with the

requirements of subrule (C), if applicable;

and

(9) he or she has reimbursed the client

security fund of the State Bar of Michigan or

has agreed to an arrangement satisfactory to

the fund to reimburse the fund for any money

paid from the fund as a result of his or her

conduct. Failure to fully reimburse as agreed

is ground for revocation of a reinstatement.

The subrule (C) referred to in MCR 9.123(B)(8) requires

that a disbarred attorney must be recertified by the Michigan

Board of Law Examiners before he or she may be reinstated

to the practice of law. MCR 9.123(C).

Proceedings before the hearing panel are generally

controlled by the rules governing practice and procedure in

a nonjury civil action, and the Michigan Rules of Evidence

apply. MCR 9.124(D); MCR 9.115(A). A petitioner is

entitled to a plethora of procedural protections, including a

method to seek disqualification of a panel member, a right

to be represented by counsel, and a right to obtain process

for the appearance of witnesses and production of

documents. MCR 9.115(F)(2); MCR 9.115(2); MCR

9.115). After considering the evidence, the panel must

enter an order granting or denying reinstatement and a

written report which includes its findings of fact. MCR

9.124(D).

Both the Grievance Administrator and the petitioner

have a right to appeal the hearing panel order to the

Attorney Discipline Board. MCR 9.124(E); MCR 9.118(A).

An appeal begins with a petition for review, which must be

eA ia

filed within 21 days after the order is served. Upon timely

filing of a petition for review, the Attorney Discipline Board

issues an order to show cause, at a date and time specified,

why the hearing panel order should not be affirmed. MCR

9.118(B). The order to show cause also establishes a

briefing schedule for the parties.

The parties to the appeal must appear for oral

argument. While the rules require only that such appeals are

heard by a subboard of at least three members, the full

Attorney Discipline Board routinely sits en banc to hear and

decide appeals of hearing panel orders. MCR 9.118(C)(1).

If the Attorney Discipline Board believes that additional

testimony should be taken, it may refer the matter to a

hearing panel or a master. The hearing panel or master

must then develop an additional record and make a

supplemental report. MCR 9.118(C)(2).

After such a review hearing, the Attorney Discipline

Board may affirm, amend, reverse, or nullify the hearing

panel order, in whole or in part, or may order other

discipline. MCR 9.118(D). The final decision must be made

on consideration of the whole record. MCR 9.118(C)(1).

The Attorney Discipline Board reviews the hearing panel’s

decision for proper evidentiary support on the whole record,

but it possesses a measure of discretion with regard to its

ultimate decision. Grievance Administrator v August, 438

Mich 296 (1991).

A party aggrieved by a final order of the Attorney

Discipline Board on the issue of reinstatement may apply for

leave to appeal to the Michigan Supreme Court. MCR

9.122(A)(1). An application must include a written

argument in support of the appellant’s position on each

question presented for review. MCR 7.302(A). Such an

application must demonstrate that the decision of the

Attomey Discipline Board is erroneous and will cause

material injustice. MCR 7.302(8)(6). The adverse party

may file an opposing brief, but there is no oral argument on

the application. MCR 7.302(D); MCR 7.302(F)(1). Review

by the Supreme Court is discretionary. T’2 Court may grant

or deny the application, enter a final decision, or issue a

peremptory order. MCR 7.302(F)(1). When an application

for leave to appeal is granted, the parties may file briefs and

appear before the court for oral argument. MCR 7.312(A);

MCR 7.306.

When reviewing a decision of the Attorney Discipline

Board, the Supreme Court determines whether the board’s

findings have proper evidentiary support on the whole

record. State Bar Grievance Administrator v Estes, 390 Mich

585, 212 NW2d 903, 92 ALR 275 (1972). However, the

Court remains mindful that the power to regulate and

discipline members of the bar rests ultimately with it

pursuant to the constitutional mandate. Grievance

Administrator v August, supra, at 304.

The rules now provide for filing limitations on

petitions for reinstatement. Effective March i, 1994, a

disbarred attorney who has been denied reinstatement may

not file a new petition until at least 180 days from the

effective date of the most recent hearing panel order granting

or denying reinstatement.

Summary of Proceedings Below

Former Michigan attorney Robert A. McWhorter

(hereinafter, “Petitioner”) was disbarred as a result of a

drug-related felony conviction in the United States District

Court for the Western District of Michigan. He appealed that

conviction to the United States Circuit Court for the 6th

Circuit. While the appeal was pending, action continued on

another non-related disciplinary proceeding. Petitioner was

ultimately suspended from the practice of law for 121 days

effective October 29, 1979 for misconduct in dealing with

the funds of a client. The suspension became effective upon

the denial of his appeal by the Michigan Supreme Court.

State Bar v McWhorter (On Reh), 407 Mich 278 (1979).

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On May 29, 1980, Petitioner was convicted in state

court of the felonies of kidnapping and conspiracy to forcibly

seize and kidnap another with the intent to extort money.

The state court convictions pertained to incidents and charges

different from the drug-related federal comviction. As a result

of these state convictions, additional disciplinary proceedings

were instituted.

The Sixth Circuit Court of Appeals ultimately granted

Petitioner’s appeal of the federal conviction, and remanded

the matter back to the District Court for trial. As a result of

this reversal, the Attorney Discipline Board entered an order

on September 9, 1980 which vacated the disbarment.

However, Petitioner was not reinstated to the practice of law

upon the entry of the order vacating revocation. Under the

procedures then in effect, an attorney suspended for more

than 120 days could not be restored to good standing until he

or she petitioned for reinstatement and established his or her

fitness to practice law. GCR 1963, 972.2; GCR 1963, 973.

Even though the disbarrment resulting from the federal

conviction was vacated, Petitioner remained ineligible to

practice because of the suspension for mishandling client

funds which became effective on October 29, 1979.

Petitioner’s law license was again revoked, effective

February 24, 1981, as a result of his state felony

convictions. Meanwhile, the federal charges came back

before the United States District Court for trial. Petitioner

was then convicted of conspiracy to import cocaine, unlawful

manufacture of methamphetamine and conspiracy to

distribute methamphetamine. A second appeal to the Sixth

Circuit was unsuccessful, and these federal convictions were

affirmed on October 29, 1982. United States v McWhorter,

705 F2d 459 (6th Cir. 1982). Because Petitioner's law

license was already revoked as a result of the state

convictions, no additional disciplinary proceedings were

instituted after the federal convictions.

Petitioner was sentenced on the federal conviction to

ten years imprisonment with a special two year parole term.

The state convictions resulted in a consecutive sentence, with

Petitioner serving his entire incarceration within federal

facilities.

On April 6, 1992, after Petitioner was released from

incarceration, but while he was still on parole, he petitioned

for reinstatement to the practice of law. Because more than

five years had lapsed since his disbarment, and his petition

and affidavit were facially sufficient, the Attorney Discipline

Board assigned the matter to Tri-County Hearing Panel #15

for adjudication.

Public hearings were held on four separate dates

between August 12, 1992 and November 9, 1992. During

the period while the matter remained pending before the

panel, Petitioner was released from federal parole. His

parole expired on June 28, 1992.

The panel issued a report and Conditional Order Of

Reinstatement on April 7, 1993. In a 2-1 split, the hearing

panel found that Petitioner had established by clear and

convincing evidence the criteria for reinstatement set out at

MCR 9.123(B). Among the conditions imposed by the panel

were that Petitioner pay costs, pay dues to the State Bar of

Michigan, be recertified by the Michigan Board of Law

Examiners, and that he be monitored for a period of no less

than one year to ensure continuation of weekly therapy

sessions and church activity. In a sharply worded dissent,

one panel member expressed her belief that the criteria of

MCR 9.123(B)(6) and MCR 9.123(B)(7) had not been met.

The dissenter actually concurred with the findings of the

majority on all but these two criteria. She was not satisfied

that Petitioner had established, by clear and convincing

evidence, that he could be safely recommended to the public,

the courts and the legal profession as a person fit to be

consulted by others and to represent them and otherwise act

in matters of trust and confidence, and in general to aid in

the administration of justice as a member of the bar and

officer of the court. Likewise, she did not believe that

Petitioner established, by clear and convincing evidence, that

he had a proper understanding of, and attitude toward, the

standards that are imposed on members of the bar.

The Grievance Administrator appealed the

reinstatement to the Attorney Discipline Board, and

Petitioner filed a cross-appeal seeking the elimination of the

conditions imposed by the panel. The Attorney Discipline

Board issued an order requiring the parties to appear on May

6, 1993 to show cause why the reinstatement with conditions

should not be affirmed. Prior to the scheduled hearing date,

the Attorney Discipline Board, sua sponte, remanded the

matter back to Tri-County Hearing Panel #15 to develop a

record as to the nature and scope of Petitioner’s supervision

by federal authorities during the period of parole. The

hearing panel took testimony on the question, and issued a

supplemental report on December 13, 1993.

On May 20, 1994, the Attorney Discipline Board

entered an Order Modifying Hearing Panel Order Of

Reinstatement and a Board Opinion. The Board therein

affirmed Petitioner’s reinstatement, but vacated the

conditions calling for continued therapy and church activity

and monitoring of these requirements. In the Opinion, the

Board stated that it decided the matter by balancing the

standards previously enunciated by the Supreme Court. The

Attorney Discipline Board thus reviewed the hearing panel’s

findings for proper evidentiary support, recognized the

element of subjective judgment which is applicable to MCR

9.123(B), and exercised the measure of discretion granted to

it by the Court in regard to its ultimate decision. The Board

determined that under this standard of review the decision to

reinstate Petitioner should be affirmed.

On June 4, 1994, the Grievance Administrator filed

an application seeking leave to appeal the reinstatement with

the Michigan Supreme Court, and requested that the

reinstatement order be stayed pending the appeal. The Court

granted the request for a stay on August 24, 1994.

The Supreme Court granted the Grievance

Administrator’s application for leave to appeal, thus

consenting to a discretionary review of the reinstatement, on

October 19, 1994. The parties submitted briefs on tke

merits, and then appeared before the Court for oral argument

on March 8, 1995. The Grievance Administrator argued

both that the serious nature of the misconduct justified

permanent disbarment and that an insufficient time had

lapsed since Petitioner’s release from parole to properly

adjudge his fitness to practice law.

On July 5, 1995, a divided Court issued an opinion

which reversed the Attorney Discipline Board and the

hearing panel. The Court determined that the petition for

reinstatement must be denied, and that petitioner may not

reapply for reinstatement until June 28, 1997, five years

from the date of his release from federal parole. Writing for

the court, Chief Justice Brickley stated that after reviewing

the decisions of the hearing panel and the Attorney

Discipline Board to determine if they were supported by the

record as a whole, the Court found that there was a lack of

evidentiary support for the conclusions that Petitioner had

established the eligibility requirements of MCR 9.123(B)(6)

and MCR 9.123(B)(7) by clear and convincing evidence.

The basis for this decision was that Petitioner simply had not

spent enough time outside of parole supervision to enable a

valid evaluation of his rehabilitation. As Justice Brickley

phrased it:

Although in these proceedings the nature and

scope of supervision may be relevant, the

mere fact that petitioner had not been away

from the supervision of parole authorities

greatly influences the determination whether

he has sincerely and sufficiently demonstrated

that he will be able to understand and operate

within the standards of the bar. Therefore, it

is only after a petitioner has spent sufficient

time outside the control of parole officers that

the hearing panel or the Attorney Discipline

Board is able to determine whether the

petitioner has been rehabilitated and may

safely therefore be recommended for

reinstatement. iti

j , 449 Mich 130,

141 (1995).

The ruling that a valid evaluation of rehabilitation

cannot be made until a disbarred attorney spends a sufficient

time outside parole supervision begs the question as to what

period of time is sufficient to enable a true evaluation.

izing that such a valid question arises from the

decision, the Chief Justice went on to write:

To prevent the petitioner’s immediate

reapplication in the present case, we hold that

‘tioner is not eligible for reinstatement

until June 28, 1997, five years from the date

of his release from federal parole. We borrow

this time span from MCR 9.123 and analogize

it to the present case. For the same reasons,

five years is the minimum period after which

a disbarred attorney may be eligible for

reinstatement, we would hold that it is a

sufficient period outside the supervision of

parole authorities and the contemplation of

petition for reinstatement to fully evaluate his

fitness to practice law. iti

j , supra, at 142.

While only Justice Mallet joined with the Chief

Justice in the Court’s Opinion, the concurring opinions of

other justices make it clear that a strong majority of the

court accepts the ruling that a minimum five year period

after release from parole supervision is necessary in order to

properly evaluate the rehabilitation of an attorney who was

disbarred for serious criminal conduct. Justice Weaver

concurred in the result reached by the lead opinion that

Petitioner should not be reinstated at this time, but she wrote

separately to express her view that he should be permanently

disbarred, with no opportunity to ever reapply for

reinstatement. Justice Riley, joined by Justice Boyle, wrote

a separate concurring opinion which agreed with Justice

Weaver’s assessment that the record calls for Petitioner’s

permanent disbarment. However, recognizing that a

majority of the Court does not accept the proposition that

there should be “permanent” disbarment, Justices Riley and

Boyle accept the imposition of a five year waiting period

following release from parole.

Justice Cavanaugh concurred in the holding that

Petitioner has not spent enough time outside of parole

supervision to adequately demonstrate his eligibility for

reinstatement under MCR 9.123(B)(6) and MCR

9.123(B)(7), but he disagreed with using a published opinion

as the vehicle to set the five year minimum spacing for

reapplication. He stated that he doesn’t necessarily disagree

with the five year ban, but rather believed that the proper

way to impose such a new rule is by amending the court

tules after notice and opportunity to comment in the manner

provided in MCR 1.201.

Only Justice Levin dissented from the decision that

Petitioner should be denied reinstatement at this time.

Justice Levin would uphold the decision of the Attomey

Discipline Board, believing that sufficient time has elapsed

since Petitioner’s offense and release from incarceration to

determine his moral fitness to practice law.

In a timely manner after the issuance of this

published opinion, Petitioner requested the Michigan

Supreme Court’s reconsideration on this matter. In his

motion for rehearing, Petitioner asserted the constitutional

issues of “due process”, “equal protection”, “ex post facto”,

and “double jeopardy”. On September 19, 1995, the

Michigan Supreme Court denied rehearing by a 4-3 vote.

REASONS FOR DENYING THE WRIT

States have an important interest in, and have

traditionally exercised extensive control over, the conduct of

attorneys. Middlesex County Ethics Committee v Garden

State Bar Association, et al. 457 U.S. 423, 102 S.Ct. 2515,

73 L.Ed.2d 116 (1982). The Michigan Supreme Court has

recognized its ability to license attorneys and regulate their

practice as a valid exercise of the state’s police power. In the

Matter of Grimes, 414 Mich 483, 326 N.W.2d 380 (1982).

The Court recognizes that the license to practice law is a

continuing proclamation by the Supreme Court that the

holder is fit to be entrusted with professional and judicial

matters and to aid in the administration of justice. MCR

9.103(A). In order to ensure that a previously disbarred

attorney is fit to resume the practice of law, the Court has

promulgated rules covering the criteria for reinstatement.

MCR 9.123. Among such criteria are that the person

seeking reinstatement establish, by clear and convincing

evidence, that:

(6) _ he or she has a proper understanding

of and attitude toward the standards that are

imposed on members of the bar and will

conduct himself or herself in conformity with

those standards; and

(7) taking into account the nature of the

misconduct which led to the revocation or

suspension, he or she nevertheless can safely

be recommended to the public, the courts,

and the legal profession as a person fit to be

consulted by others and to represent them and

otherwise act in matters of trust or

confidence, and in general to aid in the

administration of justice as a member of the

bar and officer of the court.

In Grievance Administrator v August, supra, the

Michigan Supreme Court recognized that both the nature of

the conduct for which an attorney was disbarred and the

passage of time since disbarment are appropriate

considerations when deciding if the person should be

reinstated. The court expressly held that a disbarred

attorney may be denied reinstatement on the grounds that

sufficient time has not passed to determine the present fitness

of the applicant for readmission, but such a denial should not

be deemed a permanent disbarment.

In the present case, the Court clarified this prior

holding by announcing a rule that when an attorney who was

disbarred for serious criminal misconduct seeks

reinstatement, a minimum period of five years from the

expiration of parole supervision is necessary to make a valid

evaluation of his or her eligibility under MCR 9.123(B)(6)

and MCR 9.123(B)(7). The Court’s holding does not change

the criteria for reinstatement. It simply gives guidance on

what minimum period of time outside of parole supervision

is necessary to make a valid determination of sincere

rehabilitation under the established criteria for reinstatement.

The holding in the case under review concerns the

legitimate state interest of regulating members of the bar,

and it does not violate Petitioner’s rights under any provision

of the United States Constitution.

I. Petitioner Fails To Demonstrate Any

Violation Of The “Ex Post Facto” Clause

Of Art. 1, Sec. 10 Of The United States

Constituion.

Petitioner claims that the Michigan Supreme Court

ruling which prohibits him from reapplying for reinstatement

to the practice of law until five years after the expiration of

his federal parole violates the constitutional prohibition on ex

post facto laws. Such a claim is frivolous and completely

without merit. An ex post facto law is one which: (1)

punishes as a crime an act previously committed, which was

innocent when done; or (2) which makes more burdensome

punishment for a crime after its commission; or (3) which

deprives one charged with crime of any defense available

according to law at time when the act was committed.

Dobbert v Florida, 432 U.S. 282, 53 L.Ed. 2d 344, 97 S.Ct.

2290 (1977), reh den 434 U.S. 882, 54 L.Ed. 2d 166, 98 S.

Ct. 246. Here Petitioner claims that the decision

retroactively increases the penalty for his criminal acts, and

thus makes more burdensome the punishment previously

imposed upon him. Analysis shows that this argument is not

supported in law. The decision of the Michigan Supreme

Court simply presents a procedural change, and is thus not

ex post facto. Furthermore, ex post facto prohibitions are

limited to criminal matters, and do not apply to attorney

discipline proceedings.

A. The Decision Requiring The Lapse

Of Five Years From Expiration Of Parole

Before A Disbarred Attorney Can Apply

For Reinstatement, Imposed To Ensure A

Sufficient Period Of Unsupervised Conduct

Upon Which To Properly Evaluate

Rehabilitation, Is A Procedural Change

Which Is Not "Ex Post Facto".

The “ex post facto” prohibition applies to substantive

matters, not to modes of procedure. Miller v Florida, 482

U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 3541 (1987), People

v Potts, 181 Mich App 311, 448 NW2d 820 (1989). Even

though it may work to the disadvantage of a person, a

procedural change is not "ex post facto." Dobbert v Florida,

supra at 432 U.S. 293.

In the present case, any change imposed by the Court

was clearly procedural. The holding simply alters the

method by which it is determined whether a disbarred

attorney has demonstrated fitness to be reinstated to the

practice of law. The sanction imposed on Petitioner for his

serious misconduct was the revocation of his license to

practice law, and there was no change in the quantum of

discipline attached to his misconduct. Even prior to the

decision in the present case, there was no automatic

reinstatement after any specified period of time. Grievance

Administrator v August, supra.

B. Ex Post Facto Prohibitions Are

Limited To Criminal Matters, And Do Not

Apply To Attorney Disciplinary

Proceedings.

The phrase “ex post facto” is one that relates

exclusively to criminal or penal statutes. Galvin v Press, 347

U.S. 522, 98 L.Ed 911, 74 S.Ct. 737 (1954), reh den 348

U.S. 852, 99 L.Ed. 671, 75 S.Ct. 17. As the Michigan

Supreme Court stated, quoting 11 Am. Jur. P. 1179, § 351,

in People v Chapman, 301 Mich 584, 601 (1942):

‘The expression ¢x post facto laws is a

technical one which was in use long before

the Revolution and had acquired an

appropriate meaning by legislators, lawyers,

and authors. The phrase is one which relates

exclusively to criminal or penal statutes.

A statute providing for the restraint and

care of the criminally insane, which was

enacted after the commission of the crime, is

not ex post facto because such a statute is not

a criminal act, but rather one prescribing the

treatment of insane persons.’

For the same reason, the decision of the Michigan

Supreme Court cannot be “ex post facto”. The decision

concerns the criteria for reinstatement to the practice of law

after a disbarment. Even though Petitioner’s disbarment

resulted from criminal acts, the holding of the Court does

‘

not impose any “criminal” rule.

Several jurisdictions have expressly recognized that

the ex post facto limitations do not apply to disciplinary

proceedings because they are not penal in nature. Moity v

Louisiana State Bar Association, et al., 414 Fed Supp 180

(E.D. LA, 1976); Matter of Seraphim, 97 Wis 2d 485, 294

NW 2d 485 (1980). As was stated in Matter of Leifer, 63

AD2d 174, 177, “It is well settled that ex post facto

prohibitions are limited to criminal matters and that attorney

disciplinary proceedings and sanctions are not criminal in

nature.”

In Michigan, the purpose of disciplinary proceedings

is to protect the courts, the public and the legal profession.

MCR 9.105. Disciplinary matters are not penal in nature,

as the purpose of discipline cannot be punishment. Matter of

Grimes, 414 Mich 483, 326 NW2d 380 (1982). Because

Michigan attorney discipline proceedings, and the sanctions

imposed after such proceedings, are not criminal in nature,

the ex post facto prohibitions do not apply.

I. Petitioner Fails To Demonstrate Any

“Double Jeopardy” Violation.

Petitioner alleges that the decision of the Michigan

Supreme Court violates the “double jeopardy” clause

because it constitutes a punishment and is not remedial in

nature. However, he fails to indicate or explain how the

decision twice puts him in jeopardy of life or limb.

The decision which denies him reinstatement to the

practice of law imposes no new or additional sanction.

Petitioner was disbarred in 1981. The decision does not

change any conditions of his disbarment. Since the initial

disbarment, Petitioner has always been subject to

reinstatement criteria which would require him to establish,

by clear and convincing evidence, that he is fit to resume the

practice of law. The only change brought about by this

opinion is a procedure intended to ensure that any decision

as to whether Petitioner has met the reinstatement criteria is

based upon a valid foundation.

Petitioner’s reliance on United States v Halper, 490

U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) is totally

misplaced. There is simply no rational basis to conclude that

the intent or the effect of the new rule is to impose a “civil

penalty” within the scope of that decision. The ultimate

purpose of reinstaterxent proceedings is to ensure that a

previously disbarred attorney seeking reinsatement to the

practice of law meets the high standards expected of an

attorney. It is not a device to inflict any further sanction on

Petitioner for his prior transgressions.

Il. Petitioner Fails To Demonstrate Any

Violation Of The Fourteenth Amendment

“Due Process” Clause.

“Due process” is not a technical concept with fixed

requirements unrelated to time, place and circumstance.

Rather it is a fexible concept, that calls for such procedural

protections as a particular situation demands. Matthews v

Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18

(1976). The requirements of due process depend on the

nature of the proceeding and the character of the rights

affected. Hunter v City of Ann Arbor, 325 F.Supp 847

(1971). Even where “due process” is mandated, a question

remains as to what process is due. Drumright v Padzieski,

436 F Supp 310 (1977).

It has been recognized that a state cannot exclude a

person from the practice of law in a manner, or for such

reasons, that contravene the “due process” clause of the

Fourteenth Amendment. Schware v Board of Bar Examiners

of The State Of New Mexico, 353 U.S. 232, 77 S.Ct. 752,

1 L.Ed.2d 796 (1957). However, “due process”

requirements are met when there is a valid basis for a

finding that an applicant fails to meet the criteria required to

hold a license to practice law. As the Court stated in

Schware v Board of Bar Examiners of The State Of New

vet tetera! ABB. tc -

Mexico, supra at 353 U.S. 240,

A state can require high standards of

qualification, such as good moral character or

proficiency in its law, before it admits an

applicant to the bar, but any qualification

must have a rational connection with the

applicant’s fitness or capacity to practice

law....Even in applying permissible standards,

officers of a State cannot exclude an applicant

when there is no basis for their finding that he

fails to meet these standards, or when their

action is invidiously discriminatory.

In the present case, the Michigan Supreme Court

determined that five years must lapse from the expiration of

Petitioner’s parole before he can reapply for reinstatement of

his law license. This requirement clearly has a rational

connection with Petitioner’s fitness to practice law. A

disbarred attorney must prove his or her fitness to be

reinstated by clear and convincing evidence. The Court is

simply recognizing that a person’s true character might not

be discerned from his or her conduct while subject to even

token supervision by parole authorities. As the dissenting

hearing panel member put it in the report:

In addition, although the requisite five years

for application of reinstatement have passed,

petitioner was only released from parole on

June 28, 1992. One must question whether

petitioner’s exemplary behavior has been due

to his supervised living under parole or has he

really been rehabilitated to the high level with

which attorneys are held.

By imposing this five year requirement, the Michigan

Supreme Court is only seeking to ensure that any decision as

to whether an applicant for reinstatement has been truly

rehabilitated is based on a proper foundation.

————————————————————

Contrary to Petitioner’s assertions, the Michigan

Supreme Court did not conduct a de novo hearing on the

question as to whether Petitioner met the criteria for

reinstatement. Rather, it reviewed the decisions of the

Attorney Discipline Board and the hearing panel for proper

evidentiary support on the whole record. Here the Court

expressly held that there was a lack of evidentiary support

for the findings that Petitioner established the reinstatement

criteria of MCR 9.123(B)(6) and MCR 9.123(B)(7). Such a

finding was based on the rational conclusion that Petitioner

had not spent enough time outside of parole supervision to

enable anyone to make a valid determination of his

rehabilitation. As the Court clearly stated,

We believe that a review of the entire record

does not support the decision of the hearing

panel or the Attorney Discipline Board to

reinstate Petitioner Robert McWhorter to the

practice of law in this state at this time. In re

Petition for Rei F Rol 1

McWhorter, supra, at 132.

Petitioner’s arguments that the Court’s alleged

noncompliance with legislative enactments constitutes a

denial of due process is similarly not persuasive. The

statutes cited by Petitioner, Michigan Compiled Laws 338.41

- 338.47, pertain only to those occupations and professions

regulated by the executive branch of government. The

Michigan Court Rules are exclusive on matters pertaining to

attorney discipline. MCR 9.107(A). Attorney disciplinary

proceedings are judicial in nature, and the power to

discipline, like the power to admit an applicant to

membership in the bar, rests exclusively within the judicial

branch. Erdman v Stevens, 458 F.2d 1205 (2nd Cir, 1972).

IV. Petitioner Fails To Demonstrate Any

“Equal Protection” Violation.

Petitioner asserts that he has been denied equal

protection of law because other similarly situated disbarred

attorneys have not been refused reinstatement because of

their “supervision status.” As an example of the lack “equal

treatment”, Petitioner points to the decision reached in

Matter of Callanan, 440 Mich 1207, 487 NW2d 750 (1992).

He argues that the fact that the disbarred attorney in that

case immediately reapplied for reinstatement after a denial of

that application, and was actually reinstated although he had

not spent five years outside parole supervision, demonstrates

an “equal protection” violation. This argument has no

merit.

First of all, it must be recognized that Petitioner was

denied reinstatement because the record did not establish by

clear and convincing evidence that he met the criteria of

MCR 9.123(B)(6) and MCR 9.123(B)(7). All disbarred

attorneys must meet the requirements of all the criteria set

forth in MCR 9.123(B) before being reinstated to the

practice of law. The only difference between Petitioner and

other disbarred attorneys is that the Supreme Court’s holding

provides a method for deterimining whether this former

attorney, who was disbarred for serious criminal misconduct,

has spent an adequate amount of “unsupervised” time to

enable a proper evaluation of his rehabilitation. Such a

distinction has a rational basis.

Furthermore, Petitioner’s reliance on the

reinstatement of the disbarred attorney discussed in Matter

of Callanan, supra, to demonstrate the lack of “equal

protection” is completely misleading. While Mr. Callanan

has been reinstated, the Grievance Administrator is appealing

that reinstatement on the same basis as that pursued in the

present case. The Michigan Supreme Court has recently

issued an order which remanded the matter concerning that

attorney to the Attorney Discipline Board for reconsideration

in light of the present case. (Appendix B). Such an order

certainly does not support Petitioner’s argument that he has

not received equal treatment.

The “equal protection” clause of the Fourteenth

Amendment requires only equality of law, not equality of

results. Massachusetts v Feeny, 442 U.S. 256, 99 S.Ct.

2282, 60 L.Ed.2d 870 (1979). As the Court stated in

Struble vy DAIIE, 86 Mich App 245, 272 NW2d 617 (1978):

The purpose of the Equal Protection Clause of

the Fourteenth Amendment is to secure every

person within a state's jurisdiction against

intentional and arbitrary discrimination,

whether occasioned by the express terms of a

statute or by its improper execution by duly

constituted agents. Fox v Employment

, 379 Mich 579, 588, 153

NW2d 644 (1967). Equal protection of the

law requires that all persons subject to

particular legislation be treated alike under

like circumstances and conditions, but the

guarantee of equal protection of the law is not

one of equality of operation or application to

all citizens of the state. Grayson v Board of

Accountancy, 27 Mich App 26, 31-32; 183

NW2d 424 (1970). The Equal Protection

Clause precludes irrational discrimination as

between persons or groups of persons in the

incidence of a law but does not require

situations which are different in fact or

opinion to be treated in law as though they

were the same. Goesaert v Cleary, 335 US

464; 69 S Ct 198; 93 L Ed 163 (1948).

All disbarred attorneys seeking reinstatement must

meet the same requirements of MCR 9.123(B). The holding

which prohibits this Petitioner from reapplying until five

years from the lapse of parole is based on the rationale that

it takes a significant period of “unsupervised” conduct to

show a person’s true character and fitness to practice law.

Petitioner is not the victim of intentional or arbitrary

RELIEF

WHEREFORE, Respondent respectfully prays that

the Petition For Writ Of Certiorari be denied.

Respectfully Submitted

/S/

Richard L. Cunningham

Attorney For Respondent

243 W. Congress, Suite 256

Detroit, MI 48226

(313) 961-6585

Detroit, Michigan

January 22, 1996

CHAPTER 9. PROFESSIONAL

DISCIPLINARY PROCEEDINGS

Including Amendments Received Through

February 1, 1995

SUBCHAPTER 9.100 ATTORNEY GRIEVANCE

COMMISSION; ATTORNEY DISCIPLINE

BOARD

RULE 9.101 DEFINITIONS

As used in subchapter 9.100:

(1) "board" means the Attorney Discipline Board;

(2) “commission” means the Attorney Grievance

Commission;

(3) “administrator” means the grievance administrator;

(4) “investigator” means a person designated by the

administrator to assist him or her in the investigation of

alleged misconduct or requested reinstatement;

(5S) “attorney” means a person regularly licensed or

specially admitted to practice law in Michigan;

(6) "respondent" means an attorney named in a request for

investigation or complaint;

(7) “request for investigation" means the first step in

bringing alleged misconduct to the administrator’s attention;

(8) "complaint" means the formal charge prepared by the

administrator and filed with the board;

(9) "review" means examination by the board of a hearing

panel’s final order on petition by an aggrieved party;

(10) "“appeai” means judicial re-examination by the

Supreme Court of the board’s final order on petition by an

aggrieved party;

(11) "grievance" means alleged misconduct;

(12) “investigation” means fact-finding on alleged

misconduct under the administrator’s direction;

(13) "disbarment" means revocation of the license to

practice law.

RULE 9.102 CONSTRUCTION;

SEVERABILITY

(A) Construction. Subchapter 9.100 is to be liberally

construed for the protection of the public, the courts, and the

legal profession and applies to all pending matters of

misconduct and reinstatement and to all future proceedings,

even though the alleged misconduct occurred before the

effective date of subchapter 9.100. Procedures must be as

expeditious as possible.

(B) Severability. If a court finds a portion of subchapter

9.100 or its application to a person or circumstances invalid,

the invalidity does not affect the remaining portions or other

applications. To this end the rules are severable.

RULE 9.103 STANDARDS OF CONDUCT

FOR ATTORNEYS

(A) General Principles. The license to practice law in

Michigan is, among other things, a continuing proclamation

by the Supreme Court that the holder is fit to be entrusted

with professional and judicial matters and to aid in the

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administration of justice as an attorney and counselor and as

an officer of the court. It is the duty of every attorney to

conduct himself or herself at all times in conformity with

standards imposed on members of the bar as a condition of

the privilege to practice law. These standards include, but

are not limited to, the rules of professional responsibility and

the rules of judicial conduct that are adopted by the Supreme

Court.

(B) Duty to Assist Public to Request Investigation. An

attorney shall assist a member of the public to communicate

to the administrator, in appropriate form, a request for

investigation of a member of the bar.

assist the administrator in the investigation, prosecution, and

disposition of a request for investigation or complaint filed

with or by the administrator.

RULE 9.104 GROUNDS FOR DISCIPLINE

IN GENERAL; ADJUDICATION

ELSEWHERE

The following acts or omissions by an attorney,

individually or in concert with another person, are

misconduct and grounds for discipline, whether or not

occurring in the course of an attorney-client relationship:

(1) conduct prejudicial to the proper administration of

justice;

(2) conduct that exposes the legal profession or the courts

to obloquy, contempt, censure, or reproach;

(3) conduct that is contrary to justice, ethics, honesty, or

good morals;

(4) conduct that violates the standards or rules of

professional responsibility adopted by the Supreme Court;

(5) conduct that violates a criminal law of a state or of the

United States;

(6) knowing misrepresentation of any facts or

circumstances surrounding a request for investigation or

complaint;

(7) failure to answer a request for investigation or

complaint in conformity with MCR 9.113 and 9.115(D);

(8) contempt of the board or a hearing panel; or

(9) violation of an order of discipline.

Proof of an adjudication of misconduct in a disciplinary

proceeding by another state or a United States court is

conclusive proof of misconduct in a disciplinary proceeding

in Michigan. The only issues to be addressed in the

Michigan proceeding are whether the respondent was

afforded due process of law in the course of the original

proceedings and whether imposition of identical discipline in

Michigan would be clearly inappropriate.

RULE 9.105 PURPOSE AND FUNDING

OF DISCIPLINARY PROCEEDINGS

Discipline for misconduct is not intended as punishment for

wrongdoing, but for the protection of the public, the courts,

and the legal profession. The fact that certain misconduct

has remained unchallenged when done by others or when

done at other times or has not been earlier made the subject

of disciplinary proceedings is not an excuse. The legal

profession, through the State Bar of Michigan, is responsible

for the reasonable and necessary expenses of the board, the

commission, and the administrator, as determined by the

Supreme Court. Commissioners of the State Bar of

Michigan and other attorneys who are associated with a

commissioner in the practice of law may not represent

respondents in proceedings before the board, including

preliminary discussions with commission employees prior to

the filing of a request for investigation.

RULE 9.106 TYPES OF DISCIPLINE;

MINIMUM DISCIPLINE;

ADMONISHMENT

Misconduct is grounds for:

(1) revocation of the license to practice law in Michigan;

(2) suspension of the license to practice law in Michigan

for a specified term, not less than 30 days, with such

additional conditions relevant to the established misconduct

as a hearing panel, the board, or the Supreme Court may

impose, and, if the term exceeds 179 days, until the further

order of a hearing panel, the board, or the Supreme Court;

(3) reprimand with such conditions relevant to the

established misconduct as a hearing panel, the board, or the

Supreme Court may impose;

(4) probation ordered by a hearing panel, the board, or the

Supreme Court under MCR 9.121(C);

(S) requiring restitution, in an amount set by 2 hearing

panel, the board, or the Supreme Court, as a condition of an

order of discipline; or

(6) with the respondent’s consent, admonishment by the

commission without filing a complaint. An admonition does

not constitute discipline and shall be confidential under MCR

9.126 except as provided by MCR 9.115(J)(3). The

administrator shall notify the respondent of the provisions of

this rule and the respondent may, within 21 days of service

of the admonition, notify the commission in writing that

respondent objects to the admonishment. Upon timely

receipt of the written objection, the commission shall vacate

the admonition and either dismiss the request for

investigation or authorize the filing of a complaint.

RULE 9.107 RULES EXCLUSIVE

ON DISCIPLINE

(A) Proceedings for Discipline. Subchapter 9.100 governs

the procedure to discipline attorneys. A proceeding under

subchapter 9.100 is subject to the superintending control of

the Supreme Court. An investigation or proceeding may not

be held invalid because of a nonprejudicial irregularity or an

error not resulting in a miscarriage of justice.

(B) Local Bar Associations. A local bar association may

not conduct a separate proceeding to discipline an attorney,

but must assist and cooperate with the administrator in

reporting and investigating alleged misconduct of an

attorney.

RULE 9.108 ATTORNEY GRIEVANCE

COMMISSION

(A) Authority of Commission. The Attorney Grievance

Commission is the prosecution arm of the Supreme Court for

discharge of its constitutional responsibility to supervise and

discipline Michigan attorneys.

(B) Composition. |The commission consists of 3

laypersons and 6 attorneys appointed by the Supreme Court.

The members serve 3-year terms. A mémber may not serve

more than 2 full terms.

Court shall designate from among the members of the

commission a chairperson and a vice-chairperson who shall

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serve 1-year terms in those offices. The commencement and

termination dates for the 1-year terms shall coincide

appropriately with the 3-year membership terms of those

officers and the other commission members. The Supreme

Court may reappoint these officers for additional terms and

may remove these officers prior to the expiration of a term.

An officer appointed to fill a mid-term vacancy shall serve

the remainder of that term and may be reappointed to serve

a full term.

(D) Internal Rules.

(1) The commission must elect annually from among its

membership a secretary to keep the minutes of the

commission’s meetings and issue the required notices.

(2) Five members constitute a quorum. The commission

acts by majority vote of the members present.

(3) The commission must meet monthly at a time and place

the chairperson designates. Notice of a regular monthly

meeting is not required.

(4) A special meeting may be called by the chairperson or

by petition of 3 commission members on 7 days’ written

notice. The notice may be waived in writing or by attending

the meeting.

(E) Powers and Duties. The commission has the power

and duty to

(1) recommend attorneys to the Supreme Court for

appointment as administrator and deputy administrator;

(2) supervise the investigation of attorney misconduct,

including requests for investigation of and complaints against

attorneys;

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(3) supervise the administrator and his or her staff;

(4) seek an injunction from the Supreme Court against an

attomey’s misconduct when prompt action is required, even

if a disciplinary proceeding concerning that conduct is not

pending before the board;

(5) annually write a budget for the commission and the

administrator’s office (including compensation) and submit

it to the Supreme Court for approval;

(6) submit to the Supreme Court proposed changes in these

rules;

(7) annually submit to the Supreme Court a report

summarizing the commission’s activities during the past

year; and

(8) perform other duties provided in these rules.

RULE 9.109 GRIEVANCE

ADMINISTRATOR

(A) Appointment. The administrator and the deputy

administrator must be attorneys. The commission shall

recommend one or more candidates for appointment as

administrator and deputy administrator. The Supreme Court

shall appoint the administrator and the deputy administrator,

may terminate their appointments at any time with or without

cause, and shall determine their salaries and the other terms

and conditions of their employment.

(B) Powers and Duties. The administrator has the power

and duty to:

(1) employ or retain attorneys, investigators, and staff with

the approval of the commission;

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(2) supervise the attorneys, investigators, and staff;

(3) assist the public in preparing requests for investigation;

(4) maintain the commission records created as a result of

these rules;

(5) investigate alleged misconduct of attorneys, including

serving a request for investigation in his or her own name if

necessary;

(6) prosecute complaints the commission authorizes:

(7) prosecute or defend reviews and appeals as the

commission authorizes; and

(8) perform other duties provided in these rules or assigned

by the commission.

(1) The administrator may appoint and retain volunteer

legal counsel needed to prosecute proceedings under these

rules.

(2) Legal counsel may

(a) prepare and file complaints and notices of

hearings;

(b) present evidence relating to complaints or

petitions for reinstatement;

(Cc) prepare and file arguments and briefs;

(d) inform the administrator about the progress of

Cases assigned; and

ee ee

(ec) perform other duties assigned by the

administrator.

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 exclusive constitutional responsibility to supervise and

discipline Michigan attorneys.

(B) Composition. The board consists of 6 attorneys and 3

laypersons appointed by the Supreme Court. The members

serve 3-year terms. A member may not serve more than 2

full terms.

Court shall designate from among the members of the board

a chairperson and a vice-chairperson who shall serve 1-year

terms in those offices. The commencement and termination

dates of the 1-year terms shall coincide appropriately with

the 3-year board terms of those officers and the other board

members. The Supreme Court may reappoint these officers

for additional terms and may remove an officer prior to the

expiration of aterm. An officer appointed to fill a midterm

vacancy shall serve the remainder of that term and may be

reappointed to serve a full term.

(D) Internal Rules.

(1) The board must elect annually from among its

membership a secretary to supervise the keeping of the

minutes of the board’s meetings and the issuance of the

required notices.

(2) Five members constitute a quorum. The board acts by

a majority vote of the members present.

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(3) The board shall meet monthly as often as necessary to

maintain a current docket, but no less than every 2 months,

at a time and place the chairperson designates.

(4) A special meeting may be called by the chairperson or

by petition of 3 board members on 7 days’ written notice.

The notice may be waived in writing or by attending the

meeting.

(E) Powers and Duties. The board has the power and

duty to

(1) appoint an attorney to serve as its general counsel and

executive director;

(2) appoint hearing panels and masters;

(3) assign a complaint to a hearing panel or to a master;

(4) on request of the respondent, the administrator, or the

complainant, review a final order of discipline or dismissal

by a hearing panel;

(5) discipline and reinstate attorneys under these rules;

(6) file with the Supreme Court clerk its orders of

Suspension, disbarment, and reinstatement;

(7) annually write a budget for the board and submit it to

the Supreme Court for approval;

(8) annually submit to the Supreme Court a report

summarizing the board’s activities during the past year; and

(9) submit to the Supreme Court proposed changes in these

tules.

All

RULE 9.111 HEARING PANELS

(A) Composition; Quorum. The board must annually

appoint 3 attorneys to each hearing panel and must fill a

vacancy as it occurs. Following appointment, the board may

designate the panel’s chairperson, vice-chairperson and

secretary. Thereafter, a hearing panel may elect a

chairperson, vice-chairperson and secretary. A hearing

panel must convene at the time and place designated by its

chairperson or by the board. Two members constitute a

quorum. A hearing panel acts by a majority vote. Ifa panel

is unable to reach a majority decision, the matter shall be

referred to the board for reassignment to a new panel.

(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 extension for good cause.

(2) Receive evidence and make written findings of fact.

(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 hearing.

(5) Perform other duties provided by these rules.

RULE 9.112 REQUESTS FOR

INVESTIGATION

(A) Availability to Public. The administrator shall furnish

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Se eee ee ee ee

a form for a request for investigation to a person who alleges

misconduct against an attorney. Forms must be available to

the public through each state bar office and county clerk’s

office. Use of the form is not required for filing a request

for investigation.

(B) Form of Request. A request for investigation of

alleged misconduct must

(1) be in writing;

(2) describe the alleged misconduct, including the

approximate time and place of it;

(3) be signed by the complainant; and

(4) be filed with the administrator.

(1) Request for Investigation of Attorney. After making a

preliminary investigation, the administrator shall either

(a) notify the complainant and the respondent that the

allegations of the request for investigation are inadequate,

incomplete, or insufficient to warrant the further attention of

the commission; or

(b) serve a copy of the request for investigation on

the respondent by ordinary mail at the respondent’s address

on file with the State Bar as required by Rule 2 of the

Supreme Court Rules Concerning the State Bar of Michigan.

Service is effective at the time of mailing, and nondelivery

does not affect the validity of service. If a respondent has

not filed an answer, no formal complaint shall be filed with

the board unless the administrator has served the request for

investigation by registered or certified mail return receipt

requested.

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(2) Request for Investigation of Judge. The administrator

shall forward to the Judicial Tenure Commission a request

for investigation of a judge, even if the request arises from

the judge’s conduct before he or she became a judge or from

conduct unconnected with his or her judicial office. MCR

9.116 thereafter governs.

(3) Request for Investigation of Member or Employee of

Commission or Board. Except as modified by MCR 9.131,

MCR 9.104-9.130 apply to a request for investigation of an

attorney who is a member of or is employed by the board or

the commission.

(D) Subpoenas.

(1) After the request for investigation has been served on

the respondent, the commission may issue subpoenas to

require the appearance of a witness or the production of

documents or other tangible things concerning matters then

under investigation. Documents or other tangible things so

produced may be subjected to nondestructive testing.

Subpoenas shall be returnable before the administrator or a

person designated by the administrator.

(2) A person who without just cause, after being

commanded by a subpoena, fails or refuses to appear or give

evidence, to be sworn or affirmed, or to answer a proper

question after being ordered to do so is in contempt. The

administrator may initiate a contempt proceeding under MCR

3.606 in the circuit court for the county where the act or

refusal to act occurred.

(3) A subpoena issued pursuant to this subrule and certified

by the commission chairperson shall be sufficient

authorization for taking a deposition or seeking the

production of evidence outside the State of Michigan. If the

deponent or the person possessing the subpoenaed evidence

will not comply voluntarily, the proponent of the subpoena

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— eve

may utilize MCR 2.305(D) or any similar provision in a

statute or court rule of Michigan or of the state, territory, or

country where the deponent or possessor resides or is

present.

RULE 9.113 ANSWER BY RESPONDENT

(A) Answer. Within 21 days after being served with a

request for investigation under MCR 9.112(C)(1)(b), the

respondent shall file with the administrator a signed, written

answer in duplicate fully and fairly disclosing all the facts

and circumstances pertaining to the alleged misconduct. The

administrator may allow further time to answer.

Misrepresentation in the answer is grounds for discipline.

The administrator shali provide a copy of the answer and any

supporting documents to the person who filed the request for

investigation unless the administrator determines that there

is cause for not disclosing some or all of the documents.

(B) Refusal or Failure to Answer.

(1) A respondent may refuse to answer a request for

investigation on expressed constitutional or professional

grounds.

(2) The failure of a respondent to answer within the time

permitted is misconduct. See MCR 9.104(7).

(3) If a respondent refuses to answer under subrule (B)(1),

the refusal may be submitted to a hearing panel for

adjudication.

request for investigation of an attorney waives any attorney-

client privilege that he or she may have as to matters relating

to the request for the purposes of the commission’s

investigation.

RULE 9.114 ACTION BY ADMIN-

ISTRATOR OR COMMISSION

AFTER ANSWER

(A) Action After Investigation. After an answer is filed

or the time for filing expires, the administrator may assign

the request and answer for further investigation or informal

hearing. When investigation is complete, the administrator

shall refer the request to the commission for its review. The

commission may direct that a complaint be filed, that the

request be dismissed, or that the respondent be admonished

with his or her consent.

(B) Assistance of Law Enforcement Agencies. The

administrator may request a law enforcement office to assist

in an investigation by furnishing all available information

about the respondent. Law enforcement officers are

requested to comply promptly with each request.

inform the complainant and, if the respondent answered, the

respondent, of the final disposition of every request for

investigation dismissed by the commission without a hearing

before a hearing panel.

(D) Retention of Records. All files and records relating

to allegations of misconduct by an attorney must be retained

by the commission for the lifetime of the attorney, except as

follows:

(1) The administrator may destroy the files or records

relating to a request for investigation dismissed by the

commission after 3 years have elapsed from the date of

dismissal.

(2) If no request for investigation was pending when the

files or records were created or acquired, and no related

request for investigation was filed subsequently, the

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administrator may destroy ilie files or records after 3 years

have elapsed from the date when they were created or

acquired by the commission.

RULE 9.115 HEARING PANEL

PROCEDURE

(A) Rules Applicable. Except as otherwise provided in

these rules, the rules governing practice and procedure in a

nonjury civil action apply to a proceeding before a hearing

panel. Pleadings must conform as nearly as practicable to

the requirements of subchapter 2.100. The original of the

formal complaint and all other pleadings must be filed with

the board. The formal complaint must be served on the

respondent. All other pleadings must be served on the

opposing party and each member of the hearing panel.

Proof of service of the formal complaint may be filed at any

time prior to the date of the hearing. Proof of service of all

other pleadings must be filed with the original pleadings.

(B) Complaint. Except as provided by MCR 9.120, a

complaint setting forth the facts of the alleged misconduct

begins proceedings before a hearing panel. The

administrator shall prepare the complaint, file it with the

board, and serve it on the respondent and, if the respondent

is a member of or is associated with a law firm, on the firm.

The unwillingness of a complainant to prosecute, or a

settlement between the complainant and the respondent, does

not itself affect the right of the administrator to proceed.

pleadings and orders must be made by personal service or by

registered or certified mail addressed to the person at the

person’s last known address. An attorney’s last known

address is the address on file with the state bar as required

by Rule 2 of the Supreme Court Rules Concerning the State

Bar of Michigan. A respondent’s attorney of record must

also be served, but service may be made under MCR 2.107.

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Service is effective at the time of mailing, and nondelivery

does not affect the validity of the service.

(D) Answer.

(1) Within 21 days after the complaint is served, the

respondent shall file and serve a signed answer as provided

in subrule (A).

(2) A default, with the same effect as a default in a civil

action, may enter against a respondent who fails within the

time permitted to file an answer admitting, denying, or

explaining the complaint, or asserting the grounds for failing

to do so.

(E) Representation by Attorney. The respondent may be

represented by an attorney, who must enter an appearance.

(F) Prehearing Procedure.

(1) Extensions. If good cause is shown, the hearing panel

chairperson may grant one extension of time per party for

filing pleadings and may grant one adjournment per party.

Additional requests may be granted by the board chairperson

if good cause is shown. Pending criminal or civil litigation

of substantial similarity to the allegations of the complaint is

not necessarily grounds for an adjournment.

(2) Motion to Disqualify.

(a) Within 14 days after an answer has been filed

or the time for filing the answer has expired, each

member of the hearing panel shall disclose in a

writing filed with the board any information that the

member believes could be grounds for

disqualification under the guidelines of MCR

2.003(B). The duty to disclose shall be a continuing

one. The board shall serve a copy of the disclosure

on each party.

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(b) Within 14 days after the board serves a copy of

a written disclosure, the respondent or the

administrator may move to disqualify a member of

the hearing panel. The board chairperson shall

decide the motion under the guidelines of MCR

2.003.

disqualified member of a hearing panel. If all are

disqualified, the board must reassign the complaint to

another panel.

(3) Amendment of Pleadings. The administrator and the

respondent each may amend a pleading once as a matter of

course within 14 days after being served with a responsive

pleading by the opposing party, or within 15 days after

serving the pleading if it does not require a responsive

pleading. Otherwise, a party may amend a pleading only by

leave granted by the hearing panel chairperson or with the

written consent of the adverse party.

(4) Discovery. Pretrial or discovery proceedings are not

permitted, except as follows:

(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

inspection and copying. Within 14 days after service

of a written demand, the documents shall be made

available, provided that the administrator need not

comply prior to the filing of the respondent’s answer;

in such case, the administrator shall comply with the

written demand within 14 days of the filing of the

respondent’s answer. The respondent shall comply

with the written demand within 14 days, except that

the respondent need not comply until the time for

filing an answer 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.

(b) Within 21 days of the service of a formal

complaint, a party may demand in writing that the

opposing party supply written notification of the

name and address of any person to be called as a

witness. Within 14 days after the service of a written

demand, the notification shall be supplied. However,

the administrator need not comply prior to the filing

of the respondent’s answer to the formal complaint;

in such cases, the administrator shall comply with the

written demand within 14 days of the filing of the

respondent’s answer to the formal complaint. The

respondent shall comply with the written demand

within 14 days, except that the respondent need not

comply until the time for filing an answer to the

formal complaint has expired. Except for good cause

shown, a party who is required to give said

notification must give supplemental notice to the

adverse party within 7 days after any additional

witness has been identified, and must give the

supplemental notice immediately if the additional

witness is identified less than 14 days before a

scheduled hearing.

lives outside the state or is physically unable to attend

the hearing. For good cause shown, the hearing

panel may allow the parties to depose other

witnesses.

(d) The hearing panel may order a prehearing

conference held before a panel member to obtain

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admissions or otherwise narrow the issues presented

by the pleadings.

If a party fails to comply with subrule (F)(4)(a) or (b), the

hearing panel or the board may, on motion and showing of

material prejudice as a result of the failure, impose one or

more of the sanctions set forth in MCR 2.313(B)(2)(a)-(c).

(5) Discipline by Consent. A respondent may offer to

plead nolo contendere or to admit all essential facts

contained in the complaint or any of its allegations in

exchange for a stated form of discipline and on the condition

that the plea or admission and discipline agreed on is

accepted by the commission and the hearing panel. The

respondent’s offer shall first be submitted to the commission.

If the offer is accepted by the commission, the admuaistrator

and the respondent shall prepare a stipulation for a consent

order of discipline and file the stipulation with the hearing

panel. At the time of the filing, the administrator shall serve

a copy of the proposed stipulation upon the complainant. If

_the hearing panel approves the stipulation, it shall enter a

final order of discipline. If not approved, the offer is

deemed withdrawn and statements or stipulations made in

connection with the offer are inadmissible in disciplinary

proceedings against the respondent and not binding on the

respondent or the administrator. If the stipulation is not

approved, the matter must then be referred for hearing to a

hearing panel other than the one that passed on the proposed

discipline.

(G) Hearing Time and Place; Notice. The board or the

chairperson of the hearing panel shall set the time and place

for a hearing. Notice of a hearing must be served by the

board or the chairperson of the hearing panel on the

administrator, the respondent, the complainant, and any

attorney of record at least 21 days before the initial hearing.

Unless the board or the chairperson of the hearing panel

— directs, the hearing must be in the county in which

the respondent has or last had an office or residence. If the

hearing panel fails to convene or complete its hearing within

a reasonable time, the board may reassign the complaint to

another panel or to a master. A party may file a motion for

a change of venue. The motion must be filed with the

board, and shall be decided by the board chairperson, in

part, on the basis of the guidelines in MCR 2.221.

(H) Respondent’s Appearance. The respondent shall

personally appear at the hearing and is subject to cross-

examination as an opposite party under MCL 600.2161;

MSA 27A.2161. If the respondent, or the respondent's

attorney on his or her behalf, claims physical or mental

incapacity as a reason for the respondent’s failure to appear

before a hearing panel or the board, the panel or the board

on its own initiative may suspend the respondent from the

practice of law until further order of the panel or board.

The order of suspension must be filed and served as other

orders of discipline.

(1) Hearing; Contempt.

(1) A hearing panel may issue subpoenas (including

subpoenas for production of documents and other tangible

things), cause testimony to be taken under oath, and rule on

the admissibility of evidence under the Michigan Rules of

Evidence. The oath or affirmation may be administered by

a panel member. A subpoena must be issued in the name

and under the seal of the board. It must be signed by a

panel or board member, by the administrator, or by the

respondent or the respondent’s attorney. A subpoenaed

witness must be paid the same fee and mileage as a witness

subpoenaed to testify in the circuit court. Parties must notify

their own witnesses of the date, time, and place of the

hearing.

(2) A person who without just cause fails or refuses to

appear and give evidence as commanded by a subpoena, to

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be swom or affirmed, or to answer a proper question after

he or she has been ordered to do so, is in contempt. The

administrator may initiate a contempt proceeding under MCR

3.606 in the circuit court for the county where the act or

refusal to act occurred.

(J) Decision.

(1) The hearing panel must file a report on its decisions

regarding the misconduct charges and, if applicable, the

resulting discipline. The report must include a certified

transcript, a summary of the evidence, pleadings, exhibits

and briefs, and findings of fact. The discipline section of

the report must also include a summary of all previous

misconduct for which the respondent was disciplined or

admonished.

(2) Upon a finding of misconduct, the hearing panel shall

conduct a separate hearing to determine the appropriate

discipline. The hearing on discipline shall be conducted as

soon after the finding of misconduct as is practicable and

may be held immediately following the panel’s ruling that

misconduct has been established.

(3) If the hearing panel finds that the charge of misconduct

is established by a preponderance of the evidence, it must

enter an order of discipline. The order shall take effect 21

days after it is served on the respondent unless the panel

finds good cause for the order to take effect on a different

date, in which event the panel’s decision must explain the

reasons for ordering a different effective date. In

determining the discipline to be imposed, any and all

relevant evidence of aggravation or ‘mitigation shall be

admissible, including previous admonitions and orders of

discipline.

(4) If the hearing panel finds that the charge of misconduct

is not established by a preponderance of the evidence, it

A23

must enter an order dismissing the complaint.

(5) The report and order must be signed by the panel

chairperson and filed with the board and the administrator.

A copy must be served on the parties as required by these

rules.

(K) Stay of Discipline. If a discipline order is a

suspension of 179 days or less, a stay of the discipline order

will automatically issue on the timely filing by the

respondent of a petition for review and a petition for a stay

of the discipline. If the discipline ordered is more severe

than a suspension of 179 days, the respondent may petition

the board for a stay pending review of the discipline order.

Once granted, a stay remains effective until the further order

of the board.

(L) Enforcement. The administrator shall take the

necessary steps to enforce a discipline order after it is

effective.

(M) Resignation by Respondent; Admission of Charges.

An attorney’s request that his or her name be stricken from

the official register of attorneys may not be accepted while

a request for investigation or a complaint is pending, except

pursuant to an order of revocation.

RULE 9.116 HEARING PROCEDURE;

JUDGES OTHER THAN MAGIS-

TRATES AND REFEREES

(A) Application of This Rule. This mule governs an

action by the commission against a judge, except that it does

not apply to an action against a magistrate or referee for

misconduct separately arising from the practice of law,

whether before or during the period when the person serves

aS a magistrate or referee.

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(B) Time. The commission may not take action against

a judge unless and until the Judicial Tenure Commission

recommends a sanction. Then, notwithstanding the pendency

of certification to and review by the Supreme Court of the

Judicial Tenure Commission’s action, the commission may,

without an investigation, direct the administrator to file a

complaint with the board.

The administrator shall file a complaint setting forth the facts

of the alleged misconduct within 14 days after the Judicial

Tenure Commission files its order with the Supreme Court.

The chairperson of the hearing panel assigned by the board

shall designate a place and a time for the hearing no later

than 21 days after the complaint is filed. The complaint and

notice of the hearing must be served within 7 days after the

complaint is filed. Within 14 days after the complaint and

notice of the hearing are served, the respondent judge shall

file an answer.

(D) Rules Applicable; Judicial Tenure Commission

Record. To the extent it is consistent with this rule, MCR

9.115 governs hearing procedure against a respondent judge.

The record of the Judicial Tenure Commission proceeding is

admissible at the hearing. The administrator or the

respondent may introduce additional evidence.

(E) Decision. Within 28 days after the hearing is

concluded, the panel must file with the Supreme Court clerk

and the board a report and order conforming with MCR

9.115(3) and serve them on the administrator and the

respondent.

(1) If the Judicial Tenure Commission has recommended

suspension, the panel may not disbar the respondent and may

not suspend the respondent from practicing law for a period

beginning earlier than or extending beyond the suspension

period recommended by the Judicial Tenure Commission.

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(2) If the Judicial Tenure Commission has not

recommended either suspension or removal from office, and

the respondent continues to hold a judicial office, then the

panel may not disbar or suspend the respondent.

(3) If the Judicial Tenure Commission has recommended

removal from office, or if the respondent no longer holds a

judicial office, then the panel may impose any type of

discipline authorized by these rules.

(F) Appeal. The respondent-judge may file a petition for

review under MCR 9.118.

RULE 9.117 HEARING PROCEDURE

BEFORE MASTER

If the board assigns a complaint to a master, the master

shall hold a public hearing on the complaint and receive

evidence. To the extent that MCR 9.115 may be applied, it

governs procedure before a master. After the hearing, the

master shall prepare a report containing

(1) a brief statement of the proceedings,

(2) findings of fact, and

(3) conclusions of law.

The master shall file the report with a hearing panel

designated by the board and serve a copy on the

administrator and the respondent. Within 14 days after the

report is filed, the administrator or the respondent may file

objections to the report and a supporting brief. The panel

must determine if the record supports the findings of fact and

conclusions of law and impose discipline, if warraated.

Further proceedings are governed by MCR 9.118.

RULE 9.118 REVIEW OF ORDER

OF HEARING PANEL

(A) Review of Order; Time.

(1) The administrator, the complainant, or the respondent

may petition the board in writing to review the order of a

hearing panel filed under MCR 9.115, 9.116, 9.121 or

9.124. A petition for review must set forth the reasons and

the grounds on which review is sought and must be filed

with the board within 21 days after the order is served. The

petitioner must serve copies of the petition and the

accompanying documents on the other party and the

complainant and file a proof of service with the board.

(2) A cross-petition for review may be filed within 21

days after the petition for review is served on the cross-

petitioner. The cross-petition must be served on the other

party and the complainant, and a proof of service must be

filed with the board.

(3) A delayed petition for review may be considered by

the board chairperson under the guidelines of MCR

7.205(F).

(B) Order to Show Cause. If a petition for review is

timely filed or a delayed petition for review is accepted for

filing, the board shall issue an order to show cause, at a date

and time specified, why the order of the hearing panel

should not be affirmed. The order shall establish a briefing

schedule for all parties and may require that an answer to the

petition or cross-petition be filed. An Opposing party may

file an answer even if the order does not require one. The

board must serve the order to show cause on the

administrator, respondent, and complainant at least 21 days

before the hearing. Failure to comply with the order to

show cause, including, but not limited to, a requirement for

briefs, may be grounds for dismissal of a petition for review.

Dismissal of a petition for review shall not affect the validity

of a cross-petition for review.

(1) A hearing on the order to show cause must be heard

by a subboard or at least 3 board members assigned by the

chairperson. The board must make a final decision on

consideration of the whole record, including a transcript of

the presentation made to the subboard and the subboard’s

recommendation. The respondent shall appear personaily at

the review hearing unless excused by the board. Failure to

appear may result in denial of any relief sought by the

respondent, or any other action allowable under MCR

9.118(D).

(2) If the board believes that additional testimony should

be taken, it may refer the case to a hearing panel or a

master. The panel or the master shall then take the

additional testimony and make a supplemental report,

including a transcript of the additional testimony, pleadings,

exhibits, and briefs with the board. Notice of the filing of

the supplemental report and a copy of the report must be

served as an original report and order of a hearing panel.

(D) Decision. After the hearing on the order to show

cause, the board may affirm, amend, reverse, or nullify the

order of the hearing panel in whole or in part or order other

discipline. A discipline order is not effective until 21 days

after it is served on the respondent unless the board finds

good cause for the order to take effect earlier.

(E) Motion for Reconsideration; Stay. A motion for

reconsideration may be filed at any time before the board’s

order takes effect. An answer to a motion for

reconsideration may be filed. The board may grant a stay

pending its decision on a motion for reconsideration. If the

board grants a stay, the stay remains effective for 21 days

A28

after the board enters its order granting or denying

reconsideration. In the absence of an order by the board,

the filing of a motion for reconsideration does not stay an

order of discipline.

(F) Filing Orders. The board must file a copy of its

discipline order with the Supreme Court clerk and the clerk

of the county where the respondent resides and where his or

her office is located. The order must be served on all

parties. If the respondent requests it in writing, a dismissal

order must be similarly filed and served.

RULE 9.119 CONDUCT OF DISBARRED,

SUSPENDED, OR INACTIVE

ATTORNEYS

(A) Notification to Clients. An attorney whose

license is revoked or suspended, or who is transferred to

inactive status pursuant to MCR 9.121, or who is suspended

for nondisciplinary reasons pursuant to Rule 4 of the

Supreme Court Rules Concerning the State Bar of Michigan,

shall, within 7 days of the effective date of the order of

discipline, the transfer to inactive status or the

nondisciplinary suspension, notify all of his or her active

clients, in writing, by registered or certified mail, return

receipt requested, of the following:

(1) the nature and duration of the discipline imposed, the

transfer to inactive status, or the nondisciplinary suspension;

(2) the effective date of such discipline, transfer to

inactive status, or nondisciplinary suspension;

(3) the attorney’s inability to act as an attorney after the

effective date of such discipline, transfer to inactive status,

or nondisciplinary suspension;

(4) the location and identity of the custodian of the

]

| ~— —__— -~—__—— _-

A29

clients’ files and records, which will be made available to

them or to substitute counsel;

(5) that the clients may wish to seek legal advice and

counsel elsewhere; provided that, if the disbarred, suspended

or inactive attorney was 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 correspondence to the

attorney may be addressed.

(B) Conduct in Litigated Matters. In addition to the

requirements of subsection (A) of this rule, the affected

attorney must, by the effective date of the order of

revocation, suspension, or transfer to inactive status, in

every matter in which the attorney is representing a client in

litigation, file with the tribunal and all parties a notice of the

attorney’s disqualification from the practice of law.

after the effective date of the order of revocation,

suspension, or transfer to inactive status pursuant to MCR

9.121, the disbarred, suspended, or inactive attorney shall

file with the administrator and the board an affidavit showing

full compliance with this rule. The affidavit must include as

an appendix copies of the disclosure notices and mailing

receipts required under subrules (A) and (B) of this rule. A

disbarred, suspended, or inactive attorney shall keep and

maintain records of the various steps taken under this rule so

that, in any subsequent proceeding instituted by or against

him or her, proof of compliance with this rule and with the

disbarment or suspension order will be available.

(D) Conduct After Entry of Order Prior to Effective

Date. A disbarred or suspended attorney, after entry of the

order of revocation or suspension and prior to its effective

date, shall not accept any new retainer or engagement as

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AiResen, Ba lab Be

attorney for another in any new case or legal mater of any

nature, unless specifically authorized by the board

chairperson upon a showing of good cause and a finding that

it is not contrary to the interests of the public and profession.

However, during the period between the entry of the order

and its effective date, the suspended or disbarred attorney

may complete, on behalf of any existing client, all matters

that were pending on the entry date.

(E) Conduct After Effective Date of Order. An attorney

who is disbarred or suspended, or who is transferred to

inactive status pursuant to MCR 9,121 is, during the period

of disbarment, suspension, or inactivity forbidden from:

(1) practicing law in any form;

(2) appearing as an attorney before any court, judge,

justice, board, commission, or other public authority; and

(3) holding himself or herself out as an attorney by any

means.

(F) Compensation of Disbarred, Suspended, or Inactive

Attorney. An attorney whose license is revoked or

suspended, or who is transferred to inactive status pursuant

to MCR 9.121 may not share in any legal fees for legal

services performed by another attorney during the period of

disqualification from the practice of law. A disbarred,

suspended, or inactive attorney may be compensated on a

quantum meruit basis for legal services rendered and

expenses paid by him or her prior to the effective date of the

revocation, suspension, or transfer to inactive status.

(G) Inventory. If the attorney whose license is revoked or

suspended, or who is transferred to inactive status pursuant

to MCR 9.121 was a member of a firm, the firm may

continue to represent each client with the client’s express

written consent. If an attorney is transferred to inactive

A31

status or is disbarred or suspended and fails to give notice

under the rule, or disappears or dies, and there is no partner,

executor or other responsible person capable of conducting

the attorney’s affairs, the administrator may ask the chief

judge in the judicial circuit in which the attorney maintained

his or her practice to appointing a person to inventory the

attorney’s files and to take any action necessary to protect

the interests of the attorney and the attorney’s clients. The

person appointed may not disclose any information contained

in any inventoried file without the client’s written consent.

The person appointed is analogous to a receiver operating

under the direction of the circuit court.

RULE 9.120 CONVICTION OF

CRIMINAL OFFENSE

(A) Notification of the Grievance Administrator and the

Attorney Discipline Board. When a lawyer is convicted of

a crime, the lawyer, the prosecutor or other authority who

prosecuted the lawyer, and the defense attorney who

represented the lawyer must notify the grievance

administrator and the board of the conviction. This notice

must be given in writing within 14 days after the conviction.

(B) Suspension.

(1) On conviction of a felony, an attorney is automatically

suspended until the effective date of an order filed by a

hearing panel under MCR 9.115(J). A conviction occurs

upon the return of a verdict of guilty or upon the acceptance

of a plea of guilty or nolo contendere. The board may, on

the attorney’s motion, set aside the automatic suspension

when it appears consistent with the maintenance of the

integrity and honor of the profession, the protection of the

public, and the interests of justice. The board must set aside

the automatic suspension if the felony conviction is vacated,

reversed, or otherwise set aside for any reason by the trial

court or an appellate court.

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(2) In a disciplinary proceeding instituted against an

attorney based on the attorney’s conviction of a criminal

offense, a certified copy of the judgment of conviction is

conclusive proof of the commission of the criminal offense.

(3) The administrator may file with the board a judgment

of conviction showing that an attorney has violated a

criminal law of a state or of the United States. The board

shall then order the attorney to show cause why a final order

of discipline should not be entered, and the board shall refer

the proceeding to a hearing panel for hearing. At the

hearing, questions as to the validity of the conviction,

alleged trial errors, and the availability of appellate remedies

shall not be considered. After the hearing, the panel shall

issue an order under MCR 9.1 15(J).

may, and on a reversal the board must, by order filed and

served under MCR 9.118(B), vacate the suspension. The

attorney’s name must be returned to the roster of Michigan

attomeys and counselors at law, but the administrator may

nevertheless proceed against the respondent for misconduct

which had led to the criminal charge.

RULE 9.121 ATTORNEY DECLARED TO

BE INCOMPETENT OR ALLEGED TO

BE INCAPACITATED OR ASSERTING

IMPAIRED ABILITY

(A) Adjudication by Court. If an attorney has been

judicially declared incompetent or involuntarily committed on

the grounds of incompetency or disability, the board, on

Proper proof of the fact, must enter an order effective

immediately transferring the attorney to inactive status for an

indefinite period and until further order of the board.

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(B) Allegations of Incompetency or Incapacity.

(1) If it is alleged in a complaint by the administrator that

an attorney is incapacitated to continue the practice of law

because of mental or physical infirmity or disability or

because of addiction to drugs or intoxicants, a hearing panel

shall take action necessary to determine whether the attorney

is incapacitated, including an examination of the attorney by

qualified medical experts the board designates.

(2) The hearing panel shall provide notice to the attorney

of the proceedings and appoint an attorney to represent him

or her if he or she is without representation.

(3) If, after a hearing, the hearing panel concludes that the

attorney is incapacitated from continuing to practice law, it

shall enter an order transferring him or her to inactive status

for an indefinite period and until further order of the board.

(4) Pending disciplinary proceedings against the attorney

must be held in abeyance.

(5) Proceedings conducted under this subrule are subject to

review by the board as provided in MCR 9.118.

(1) If, in response to a formal complaint filed under

subrule 9.115(B), the respondent asserts in mitigation and

thereafter demonstrates by a preponderance of the evidence

that

(a) during the period when the conduct which is the

subject of the complaint occurred, his or her ability

to practice law competently was materially impaired

by physical or mental disability or by drug or alcohol

addiction,

(b) the impairment was the cause of or substantially

A34

contributed to that conduct,

treatment, and

(d) he or she in good faith intends to undergo

treatment, and submits a detailed plan for such

treatinent,

the hearing panel, the board, or the Supreme Court may

enter an order placing the respondent on probation for a

specific period not to exceed 2 years if it specifically finds

that an order of probation is not contrary to the public

interest.

(2) If the respondent alleges impairment by physical or

mental disability or by drug or alcohol addiction pursuant to

subrule (C)(1), the hearing panel may order the respondent

to submit to a physical or mental examination by a physical

selected by the hearing panel or the board, which physical

shall report to the hearing panel or board. The parties may

obtain a psychiatric or medical evaluation at their own

expense by examiners of their own choosing. No physician-

patient privilege shall apply under this rule. The

respondent’s attorney may be present at an examination. A

respondent who fails or refuses to comply with an

examination order, or refuses to undergo an examination

requested by the administrator, shall not be eligible for

probation.

(3) The probation order may

(a) specify the treatment the respondent is to

undergo,

(b) required the respondent to practice law

only under the direct supervision of other

attomeys, or

A35

shows are likely to eliminate the impairment

without subjected the respondent’s clients or

the public to a substantial risk of harm

because the respondent is permitted to

continue to practice law during the probation

period.

(4) The probation order expires on the date specified in it

unless the administrator petitions for, and the hearing panel,

board, or court grants, an extension. An extension may not

exceed 2 years. A probation order may be dissolved if the

respondent demonstrates that the impairment giving rise to

the probation order has been removed and that the probation

order has been fully complied with, but only one motion to

accelerate dissolution of a probation order may be filed

during the probation period.

(5) On proof that a respondent has violated a probation

order, he or she may be suspended or disbarred.

(D) Publication of Change in Status. The board must

publish in the Michigan Bar Journal a notice of transfer to

inactive status. A copy of the notice and the order must be

filed and served under MCR 9.118.

(E) Reinstatement. An attorney transferred to inactive

status under this rule may not resume active status until

reinstated by the board’s order and, if inactive 3 years or

more, recertified by the Board of Law Examiners. The

attorney may petition for reinstatement to active status once

a year or at shorter intervals as the board may direct. A

petition for reinstatement must be grantéd by the board on a

showing by clear and convincing evidence that the attorney’s

disability has been removed and that he or she is fit to

resume the practice of law. The board may take the action

necessary to determine whether the attorney’s disability has

been removed, including an examination of the attorney by

A36

qualified medical experts that the board designates. The

board may direct at the expense of the examination be paid

by the attorney. If an attorney was transferred to inactive

Status under subrule 9.121(A) and subsequently has been

judicially declared to be competent, the board may dispense

with further evidence that the disability has been removed

and may order reinstatements to active status on terms it

finds proper and advisable, including recertification.

(F) Waiver of Privilege. By filing a petition for

reinstatement to active status under this rule, the attorney

waives the doctor-patient privilege with respect to treatment

during the period of his or her disability. The attorney shall

disclose the name of every psychiatrist, psychologist,

physician, and hospital or other institution by whom or in

which the attorney has been examined or treated since the

transfer to inactive status. The attorney shall furnish to the

board written constant for each to divulge whatever

information and record are requested by the board’s medical

experts.

RULE 9.122 REVIEW BY

SUPREME COURT

(A) Kinds Available; Time for Filing.

(1) A party aggrieved, including the person who made a

request for investigation, by a final order of discipline or

dismissal entered by the board on review under MCR 9.1 18,

may apply for leave to appeal to the Supreme Court under

MCR 7.302 within 21 days after the order is entered. If a

motion for reconsideration is filed before the board’s order

takes effect, the application for leavé to appeal to the

Supreme Court may be filed within 21 days after the board

enters its order granting or denying reconsideration.

(2) If a request for investigation has been dismissed

under MCR 9.112(C)(1) or 9.114(A), a party aggrieved by

A37

the dismissal may file a complaint for mandamus in the

Supreme Court under MCR 7.304.

(B) Rules Applicable. Except as modified by this rule,

subchapter 7.300 governs an appeal.

of 179 days or less, a stay of the order will automatically

issue on the timely filing of an appeal by the respondent.

The stay remains effective until conclusion of the appeal or

further order of the Supreme Court. The respondent may

petition the Supreme Court for a stay pending appeal of

other orders of the board.

(D) Record on Appeal. The original papers constitute the

record on appeal. The board shall certify the original record

and file it with the Supreme Court promptly after the briefs

of the parties have been filed. The record must include a list

of docket entries, a transcript of testimony taken, and all

pleadings, exhibits, briefs, findings of fact, and orders in the

proceeding. If the record contains material protected, the

protection continues unless otherwise ordered by the

Supreme Court.

(E) Disposition. The Supreme Court may make any order

it deems appropriate, including dismissing the appeal. The

parties may stipulate to dismiss the appeal with prejudice.

RULE 9.123 ELIGIBILITY FOR

REINSTATEMENT

(A) Suspension, 179 Days or Less. An attorney whose

license has been suspended for 179 days or less is

automatically reinstated by filing with the Supreme Court

clerk, the board, and the administrator an affidavit showing

that the attorney has fully complied with the terms and

conditions of the suspension order. A false statement

contained in the affidavit is ground for disbarment.

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(B) Revocation or Suspension More Than 179 Days. An

attorney whose license to practice law has been revoked or

suspended for more that 179 days is not eligible for

reinstatement until the attorney has petitioned for

reinstatement under MCR 9.124 and has established by clear

and convincing evidence that:

(1) he or she desires in good faith to be restored to the

privilege of practicing law in Michigan;

(2) the terms of the suspension ordered has elapsed or 5

years have elapsed since revocation of the license;

(3) he or she has not practiced or attempted to practice law

contrary to the requirement of his or her suspension or

revocation;

(4) he or she has compiled fully with the order of

discipline;

(5) his or her conduct since the order of discipline has been

exemplary and above reproach;

(6) he or she has a proper understanding of and attitude

toward the standards that are imposed on members of the bar

and will conduct himself of herself in conformity with those

standards;

(7) taking into account the nature of the misconduct which

led to the revocation or suspension, he or she nevertheless

can safely be recommended to the public, the courts, and the

legal profession as a person fit to be consulted by others and

to represent them and otherwise act in matters of trust and

confidence, and in general to aid in the administration of

justice as a member of the bar and as an officer of the court;

(8) he or she is in compliance with the requirements of

subrule (C), if applicable; and

A39

(9) he or she has reimbursed the client security fund of the

State Bar or Michigan or has agreed to an arrangement

satisfactory to the fund to reimburse the fund for any money

paid from the fund as a result of his or her conduct. Failure

to fully reimburse as agreed is ground for revocation of a

reinstatement.

as a result of disciplinary proceedings, resigns, is disbarred,

or is suspended for any period of time, and who does not

practice law for 3 years or more, whether as the result of

the period of discipline or voluntarily, must be recertified by

the Board of Law Examiners before the attorney maybe

reinstated to the practice of law.

(D) Petition for Reinstatement; Filing Limitations.

(1) An attorney whose license to practice law has been

suspended may not file a petition for reinstatement earlier

than 56 days before the term of suspension ordered has fully

elapsed.

(2) An attorney whose license to practice law has been

revoked may not file a petition for reinstatement until 5

years have elapsed since revocation of the license.

(3) An attorney whose license to practice law has been

revoked or suspended and who has been denied reinstatement

may not file a new petition for reinstatement until at least

180 days from the effective date of the most recent hearing

panel order granting or denying reinstatement.

RULE 9.124 PROCEDURE FOR

REINSTATEMENT

(A) Filing of Petition. An attorney petitioning for

reinstatement shall file the original petition for reinstatement

with the Supreme Court clerk and a copy with the board and

A40

the commission. If the petition and the affidavit required by

subrule (B)(1) are facially sufficient, and the petitioner has

paid the publication fee required by subrule (B)(2), the board

shall assign the petition to a hearing panel. Otherwise, the

board may dismiss the petition without prejudice.

(B) Petitioner’s Responsibilities.

(1) The petitioner must file, contemporaneously with and

as a part of the petition for reinstatements, a personal history

affidavit containing the following information:

(a) every residence address since the date of

disqualification from the practice of law;

(b) employment history since the time of

disqualification, including the nature of

employment, the name and address of every

employer, the duration of such employment,

and the name of the petitioner’s immediate

supervisor at each place of employment;

(d) any continuing legal education in which

the petitioner participated during the period of

disqualification from the practice of law;

(e) bank account statements, from the date of

disqualification until the filing of the petition

for reinstatements, for each and every bank

account in which petitioner is named in any

capacity;

(f) any and all professional or occupational

licenses obtained or maintained during the

period of disqualification and whether any

were suspended or revoked;

A41

(g) any and all names used by petitioner

since the time of disqualification;

(h) petitioner’s place and date of birth;

(i) petitioner’s social security number;

(j) whether, since the time of

disqualification, petitioner was a party or a

witness in any civil case, and the title, docket

number, and court in which such case

occurred;

(k) whether there are any outstanding

judgments against the petitioner;

(1) whether petitioner was a defendant or a

witness in any criminal case, and the title,

docket number, and court in which such case

occurred.

(2) The petitioner must, contemporaneously with the filing

of the petition for reinstatement and personally history

affidavit, remit to the administrator the fee for publication of

a reinstatement notice in the Michigan Bar Journal.

(3) A petitioner who files the petition before the term of -

suspension ordered has fully elapsed must file an updated

petition and personal history affidavit within 14 days after

the term of suspension ordered has fully elapsed. All

petitioners must file updated petitions and personal history

affidavits with the hearing panel when the reinstatement

hearing convenes. The supplemental findings must indicate

any pertinent information that has changed since the previous

filing.

(4) The petitioner must cooperate fully in the investigation

A42

by the administrator into the petitioner’s eligibility for

reinstatement by promptly providing any information

requested. If requested, the petitioner must participate in a

recorded interview and answer fully and fairly under oath all

questions about eligibility for reinstatement.

after the commission received its copy of the petition for

reinstatement, the administrator shall submit to the Michigan

Bar Journal for publication a notice briefly describing the

nature and date of the discipline, the misconduct for which

the petitioner was disciplined, and the matters required to be

proved for reinstatement. The administrator shall investigate

the petitioner’s eligibility for reinstatement before a hearing

on it, report the findings in writing to the board and the

hearing panel within 56 days of the date the board assigns

the petition to the hearing panel, and serve a copy on the

petitioner. For good cause, the hearing panel may allow the

administrator to file the report at a later date, but in no event

later than 7 days before the hearing. The report must

summarize the facts of all previous misconduct and the

available evidence bearing on the petitioner’s eligibility for

reinstatement. The report is not a pleading and does not

serve to restrict the administrator in the presentation of

evidence at the hearing. Any evidence omitted from the

report or received by the administrator subsequent to the

filing of the report must be disclosed promptly to the hearing

panel and the petitioner.

(D) Hearing on Petition. A reinstatement hearing may not

be held earlier than 28 days after the administrator files the

investigative report with the hearing panel unless the hearing

panel has extended the deadline for filing the report. The

proceeding on a petition for reinstatement must conform as

nearly as practicable to a hearing on a complaint. The

petitioner shall appear personally before the hearing panel

for cross-examination by the administrator and the hearing

panel and answer fuily and fairly under oath all questions

A43

regarding eligibility for reinstatement. The administrator

and the petitioner may call witnesses or introduce evidence

bearing upon the petitioner’s eligibility for reinstatement.

The hearing panel must enter an order granting or denying

reinstatement and make a written report signed by the

chairperson, including a transcript of the testimony taken,

pleadings, exhibits and briefs, and its findings of fact. A

reinstatement order may grant reinstatement subject to

conditions that are relevant to the established misconduct or

otherwise necessary to insure the integrity of the profession,

to protect the public, and to serve the interests of justice.

The report and order must be filed and served under MCR

9.118(F).

(E) Review. Review is available under the rules governing

review of other hearing panel orders.

RULE 9.125 IMMUNITY

A person is absolutely immune from suit for statements and

communications transmitted solely to the administrator, the

commission, or the commission staff, or given in an

investigation or proceeding on alleged misconduct or

reinstatement. The administrator, legal counsel,

investigators, members of hearing panels, the commission,

the board, and their staffs are absolutely immune from suit

for conduct arising out of the performance of their duties.

RULES 9.126 OPEN HEARINGS;

CONFIDENTIAL FILES

AND RECORDS

(A) Investigations. Except as provided. in these rules,

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. In addition, any interested person may

inspect the request for investigation and the respondent’s

A44

answer thereto if a formal complaint has been filed.

(B) Hearings. Hearings before a hearing panel and the

board must be open to the public, but not their deliberations.

recommendations, discipline, reprimands, transcripts, and

orders resulting from hearings must be open to the public.

This subrule does not apply to a request for a disclosure

authorization submitted to the board or the Supreme Court

pursuant to subrules (D)(7) or (B)(5).

(D) Other Records. Other files and records of the board,

the commission, the administrator, 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.

If a disclosure is made to the Supreme Court, the board, or

a hearing panel, the information must also be disclosed to

the respondent.

(E) Other Information. Notwithstanding any prohibition

against disclosure set forth in this rule or elsewhere, the

A45

commission may disclose the substance of information

concerning attorney or judicial misconduct to:

(1) the Judicial Tenure Commission,

(2) the Sate Bar of Michigan Client Security Fund,

(3) the Sate Bar of Michigan Committee on Judicial

Qualification,

(4) any court-authorized attorney disciplinary or admissions

agency, or

(5) other persons who are expressly authorized by the

board or the Supreme Court.

(F) Summary of Disclosures. The board shall include in

its annual report to the Supreme Court an accounting of all

requests for disclosure that have been filed with the board

pursuant to subrules (D)(7) and (E)(5). The accounting shall

include the board’s disposition of each request.

RULE 9.127 ENFORCEMENT

(A) Interim Suspension. The Supreme Court, the board,

or a hearing panel may order the interim suspension of a

respondent who fails to comply with its lawful order. The

suspension shall remain in effect until the respondent

complies with the order or no longer has the power to

comply. If the respondent is ultimately disciplined, the

respondent shall not receive credit against the disciplinary

suspension or disbarment for any time of suspension under

this rule. All orders of hearing panels under this rule shall

be reviewable immediately under MCR 9.118. All orders of

the board under this rule shall be appealable immediately

under MCR 9.122. The reviewing authority may issue a

stay pending review or appeal.

A46

(B) Contempt. The administrator may enforce a discipline

order or an order granting or denying reinstatement by

proceeding against a respondent for contempt of court. The

proceeding must conform to MCR 3.606. The petition must

be filed by the administrator in the circuit court in the county

in which the alleged contempt took place, or in which the

respondent resides, or has or had an office. Enforcement

proceedings under this rule do not bar the imposition of

additional discipline upon the basis of the same

noncompliance with the discipline order.

RULE 9.128 COSTS

(A) Suspension for Nonpayment of Costs. Within 14

days of the conclusion of a hearing before a panel, the

grievance administrator shall file with the board an itemized

statement of the commission’s expenses allocable to the

hearing. Copies shall be served upon the respondent and the

panel. An itemized statement of the expenses of the board,

commission, and panel allocable to a hearing must be made

a part of the report in all matters of discipline and

reinstatement. The hearing panel and the board in an order

for discipline or an order granting or denying reinstatement

must direct the attorney to reimburse the State Bar of

Michigan for the expenses of that hearing, review, and

appeal, if any. Reimbursement must be a condition in a

reinstatement order. If the respondent fails to reimburse the

State Bar of Michigan for the expenses within the time

prescribed, a certified report of the nonpayment must be

filed with the Supreme Court, and the State Bar of

Michigan, and a copy served upon the respondent. The

respondent will be suspended automatically, effective 7 days

from the mailing of the certified report, and until the

respondent pays the costs or the board approves a suitable

plan for payment. An attommey who is suspended for

nonpayment of costs under this rule is required to comply

with the requirements imposed by MCR 9.119 on suspended

attorneys. Commencing on the date a certified report of

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nonpayment is filed, interest on the unpaid expenses shall

accrue thereafter at the rates applicable to civil judgments.

(B) Reinstatement. A respondent suspended under this

rule who later satisfies the reimbursement obligation, and is

otherwise eligible, may apply for automatic reinstatement

pursuant to MCR 9.123(A) even if the suspension under this

rule exceeded 179 days. However, an attorney who is

suspended under this rule and who, as a result, does not

practice law in Michigan for three years or more, must be

recertified by the Board of Law Examiners before the

attorney may be reinstated.

RULE 9.129 EXPENSES;

REIMBURSEMENT

The state bar must reimburse each investigator, legal

counsel, hearing panel member, board member, and

commission member for the actual and necessary expenses

the board, commission, or administrator certifies as incurred

as a result of these rules.

RULE 9.130 MCR 8.122 CASES; ARBITRA-

TION; DISCIPLINE; FILING COM-

PLAINT BY ADMINISTRATOR

(A) Proceedings. A proceeding on alleged misconduct to

which MCR 8.122 is applicable is the same as for a request

for investigation. No investigation may be made on a claim

by an attorney against a client.

(B) Arbitration. On written agreement between an

attorney and his or her client, the administrator or an

attorney the administrator assigns may arbitrate a dispute and

enter an award in accordance with the arbitration laws. The

award and a motion for entry of an order or judgment must

be filed in the court having jurisdiction under MCR 8.122.

If the award recommends discipline of the attorney, it must

A48

also be treated as a request for investigation.

a complaint in the appropriate court under MCR 8.122 will

be a hardship to the client and that the client may have a

meritorious claim, the administrator shall file the complaint

on behalf of the client and prosecute it to completion without

cost to the client.

RULE 9.131 INVESTIGATION OF MEM-

BER OR EMPLOYEE OF BOARD OR

COMMISSION; INVESTIGATION OF

ATTORNEY REPRESENTING RE-

SPONDENT OR WITNESS

(A) Commission Member or Employee. If the request is

for investigation of an attorney who is a member or

employee of the commission, the following provisions apply:

(1) The administrator shall serve a copy of the request for

investigation on the respondent by ordinary mail. Within 21

days after service, the respondent shall file with the

administrator an answer to the request for investigation

conforming to MCR 9.113. The administrator shall send a

copy of the answer to the person who filed the request for

investigation.

(2) After the answer is filed or the time for answer has

expired, the administrator shall send copies of the request for

investigation and the answer to the Supreme Court clerk.

(3) The Supreme Court shall review the request for

investigation and the answer and shall either dismiss the

request for investigation or appoint volunteer legal counsel

to investigate the matter.

(4) If, after conducting the investigation, appointed counsel

determines that the request for investigation does not warrant

A49

the filing of a formal complaint, he or she shall file a report

setting out the reasons for that conclusion with the

administrator, who shall send a copy of the report to the

Supreme Court clerk, the respondent and the person who

filed the request for investigation. Review of a decision not

to file a formal complaint is limited to a proceeding under

MCR 9.122(A)(2). If appointed counsel determines not to

file a complaint, the administrator shall close and maintain

the file. MCR 9.126(A) governs the release of information

regarding the investigation.

(5) If, after conducting the investigation, appointed counsel

determines that the request for investigation warrants the

filing of a formal complaint, he or she shali prepare and file

a complaint with the board under MCR 9.115(B).

(6) Further proceedings are as in other cases except that the

complaint will be prosecuted by appointed counsel rather

than by the administrator.

If the request is for investigation of the administrator, the

term "administrator" in this rule means a member of the

commission or some other employee of the commission

designated by the chairperson.

(B) Board Member or Employee. Before the filing of a

formal complaint, the procedures regarding a request for

investigation of a member or employee of the board are the

same as in other cases. Thereafter, the following provisions

apply:

(1) The administrator shall file the formal complaint with

the board and send a copy to the Supreme Court clerk.

(2) The Chief Justice shall appoint a hearing panel and may

appoint a master to conduct the hearing. The hearing

procedure is as provided in MCR 9.115 or 9.117, as is

appropriate, except that no matters shall be submitted to the

A50

board. Procedural matters ordinarily within the authority of

the board shall be decided by the hearing panel, except that

a motion to disqualify a member of the panel shall be

decided by the Chief Justice.

(3) The order of the hearing panel is effective 21 days after

it is filed and served as required by MCR 9.1 15(J), and shall

be treated as a final order of the board. The administrator

shall send a copy of the order to the Supreme Court clerk.

(4) MCR 9.118 does not apply. Review of the hearing

panel decision is by the Supreme Court as provided by MCR

9.122.

Proceedings Before Board or Commission. If the request

is for an investigation of an attorney for alleged misconduct

committed during the course of that attorney’s representation

of a respondent or a witness in proceedings before the board

or the commission, the procedures in subrule (A) shall be

followed. A request for investigation that alleges misconduct

of this type may be filed only by the chairperson of the

commission, and only if the commission passes a resolution

authorizing the filing by the chairperson.

A51

Michigan Supreme Court

Lansing, Michigan

Order

Entered: November 7, 1995

James H. Brickley

Chief Justice

Charles L. Levin

Michael F. Cavanagh

Patricia J. Boyle

Dorothy Comstock Riley

Conrad L. Mallett, Jr.

Elizabeth A. Weaver

Justices

In the matter of Reinstatement

of EVAN H. CALLANAN, JR.

EVAN H. CALLANAN, JR..,

Petitioner- Appellee,

GRIEVANCE ADMINISTRATOR, SC 101137

Appellant. ADB 92-324-RP

On order of the Court, the application for leave to

appeal is considered and, pursuant to MCR 7.302(F)(1), in

lieu of granting leave to appeal, we REMAND this matter to

the Attorney Discipline Board for reconsideration in light of

this Court’s decision in In re Petition for Reinstatement of

Robert McWhorter, 449 Mich 130 (1995).

We do not retain jurisdiction.

Mallett, Jr. and Weaver, JJ., would grant leave to

appeal.

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 the

Court.

, 199

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.