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THE ATTORNEY DISCIPLINE PROCESS-THE JUDICIAL SIDE
By: Stanley H. Pitts, Esq.
Professional Disciplinary Proceedings in Michigan The Michigan Supreme Court is constitutionally responsible for the supervision and discipline of Michigan attorneys. In Michigan, the Supreme Court has delegated the prosecutorial function to the Attorney Grievance Commission and the adjudicative function to the Attorney Discipline Board (“Board”). The Supreme Court provides final appellate review of decisions rendered by the Board and hearing panels on the issues of attorney “misconduct” and “discipline.”
The Board consists of six attorneys and three laypersons appointed by the Supreme Court. The Board reviews decisions if appealed from a hearing panel and appoints attorneys to serve on hearing panels.
A hearing panel consists of three attorneys. All panel members serve on a voluntary basis. A hearing panel functions like a trial court. There are several hearing panels serving each county in Michigan.
Qualifications To Serve on A Panel
A hearing panelist must be a member of the Michigan Bar and have been admitted to practice in Michigan for at least 5 years. The Board fills hearing panel positions with attorneys from diverse legal practice areas. No particular law practice specialty is required.
To be eligible to serve as a hearing panelist an attorney cannot have had his/her license revoked and cannot have been suspended for more than 180 days. An attorney is eligible to be a panel member if reprimanded or suspended for less than 180 days. However, the discipline must have occurred 10 years or more before the attorney’s application for panel membership.
Panel Powers and Duties
Michigan Court Rule (MCR) 9.111(B) states that a hearing panel shall do the following:
1. Hold a public hearing on a complaint or reinstatement petition.
2. Receive evidence and make written findings of fact.
3. Discipline and reinstate attorneys or dismiss a complaint.
Determination of “Misconduct”
The hearing panel and the Board (if the panel decision is appealed) determines if the attorney’s conduct constitutes misconduct. To make this determination witnesses testimony is taken from the complainant (usually the former client), complainant’s family, lay witnesses, and, on occasion, expert witnesses. In addition, documents are reviewed and either admitted or excluded from the record. In many cases the parties also submit legal briefs on issues of law.
Procedural Rules
Procedurally, a hearing panel’s fact-finding process is governed by the Michigan Rules of Civil Procedure. Questions of hearsay, admissibility and relevancy are governed by the Michigan Rules of Evidence. The rules governing the conduct for which Michigan attorneys may be disciplined are contained in the Michigan Rules of Professional
Conduct. Procedurally, an order of discipline entered by a hearing panel is final, unless appealed to the Board within 21 days.
Determination of “Discipline”
The hearing panel and the Board (if a panel decision is appealed) determines the level of discipline after a finding of misconduct. Usually, a second evidentiary hearing is held separately from the misconduct hearing.
Standards for Imposing Lawyer Discipline
The American Bar Association (“ABA”) first published discipline standards in 1979. In June 2000, the Michigan Supreme Court ordered the Board and panels to use the ABA standards. These standards are still being used today in Michigan.
The standards require the consideration of mitigating and aggravating circumstances when reaching the final disciplinary decision. Mitigating factors include the absence of prior discipline, absence of dishonest motive and the remoteness of prior offenses. Aggravating factors include prior disciplinary offenses, dishonest or selfish motive and a pattern of misconduct. The discipline decision also considers the state of mind of the attorney (intentional versus negligent act), the extent of actual or potential injury, and to whom the ethical duty was owed--the client, the public, the legal system or the profession.
Practice Tips
Always timely respond to the Attorney Grievance Commission’s request for investigation. Do not represent yourself (in a formal proceeding). Hire competent counsel (in a formal proceeding). Be willing to make restitution.
