Grievance Administrator v. Deutch

v Administrator Deutch GRIEVANCEADMINISTRATORv DEUTCH Argued 10, (Calendar Docket No. 102962. 11). December No. July 15, Decided 1997. separate disciplinary The Grievance Administrator commenced against attorneys Vickey actions Martin G. Deutch and O. Howell by filing judgments pursuant 9.120(B), of conviction to MCR after operation each was convicted of misdemeanor of a motor vehicle visibly impaired. hearing panels granted respondents’ while The respective prejudice, concluding motions to dismiss with that the driving drunk convictions did not constitute misconduct because they adversely attorneys’ honesty, did not reflect on the trustwor- thiness, lawyers. Attorney Discipline or fitness as The Board appeals. affirmed each decision. The Grievance Administrator opinion by joined by In an Justice Brickley Justices Weaver, opinion by Supreme and an Justice Court held: Riley, Boyle, Hearing panels authority do not have the to dismiss proceedings hearing, at an initial misconduct which determines the professional misconduct, existence of when the Grievance Admin- provides proof istrator 9.104(5) judg- of a violation of MCR with a driving. However, ment of conviction of misdemeanor drunk at the second-stage hearing, discipline, which determines the level of hearing have the discretion to issue orders of appropriate specific case, including to the facts of a orders that effectively impose discipline. may no These orders be issued finding after a of misconduct at the initial and after both parties opportunity present have had an all relevant evidence of aggravation mitigation hearing. or at the second attorney discipline process stages 1. The involves two or hear- ings. stage professional misconduct, The initial establishes discipline appropriate light any second determines the level of mitigating aggravating particular factors in a case. To initiate a proceeding, may the Grievance Administrator file a formal com- plaint 9.115(A) judgment under MCR aor of conviction under MCR 9.120(B)(2). filing judgment evidentiary of a of conviction is an Attorney expedi- tool that allows the Grievance Commission to tiously dispose already adjudicated of a case in the courts. While proof is not conclusive must be 455 Mich 149 9.104(5) imposed, finding misconduct under MCR it establishes a discipline hearing second-phase is warranted under and that (3). 9.115(J)(2), during authority Although panel no to dismiss an action 2. has judg- files a valid when the administrator the misconduct requisite conviction, check on the administrator’s of the ment hearing, authority stage prosecutorial at the second of occurs appropriate discipline. panel A level of the determines the where only discipline, grounds finding but does not for of misconduct every imposition discipline require a case. Either criminal the of 9.104(5) a of the Rules of Pro- under MCR or violation conviction 8.4(b) and MRPC constitutes misconduct fessional Conduct under mutually grounds discipline. grounds are not for While the two conduct; exclusive, they target one and different the are distinct scope application driving of the other. Drunk does not limit the 9.104(5). MCR constitute misconduct under convictions authority hearing panels in did not have the 3. The these cases disciplinary proceedings against respondents. the to dismiss the responsibility panels Hearing not absolved of the critical are merely carefully inquire specific facts of each case because into the proceedings by filing judg- disciplinary a administrator initiates the by filing conviction, 9.120(B)(3), under MCR rather than a ment of Moreover, although during complaint 9.115(A). formal under MCR second-stage hearings hearing panels issue have the discretion to effectively impose discipline respon- discipline no on orders of may dents, finding a such orders be issued after of misconduct parties 9.115(J)(1) (2), both have an MCR and after under present aggravation opportunity evidence of or miti- all relevant gation 9.115(J)(3). judgments of conviction under MCR 9.104(5), regardless respondents evidenced misconduct under adversely convictions, face, on reflected on of whether the their attorneys’ honesty, trustworthiness, lawyers or fitness as under the Attorney 8.4(b). Accordingly, reversal and remand to the MRPC required appointment Discipline of to deter- Board are entry appropriate imposed level of to be and for mine the pursuant 9.115(J)(3). to MCR of orders of concurring, additionally although Boyle, hold that Justice would Conduct, adopted, departed as from the the Rules of Professional turpitude regarding involving distinction crimes moral traditional misdemeanors that and did not otherwise differentiate between practice law, Supreme might the Court did not indicate unfitness to conviction, attenuated, every however indicate that misdemeanor Rather, the fact that the traditional would constitute misconduct. case-by-case language is evidence that a evaluation was abandoned v Administrator Deutch contemplated regarding whether, array was from the vast of misde- offenses, particular meanor conviction reflects on fitness for the practice of law. liberally the Given that rules are to be construed for protection public, courts, legal profession, the of the the and the 8.4(b) MCR 9.120 and MRPC should not be read as limitations on commission, board, Supreme However, the the or the Court. if the operate preclude pattern rules either to a full evaluation of a behavior, provide profession or so as not to the with fair notice of they considered, adequate the conduct to be are not to the task. If proofs unfitness, public does not examine all the may adequately protected. hand, not be On the other because the precludes Supreme assessing appeal rule Court from on giving conviction, body nature of the misconduct rise to the precedent giving guidance public profes- notice and to the sion cannot be addressed and created. minimum, any provide At a amendment should fair notice to respondents, development proofs regarding of full fitness to practice, permitting oversight Supreme and a vehicle Court findings development parame- of misconduct to facilitate reflecting practice. ters of misconduct unfitness to Reversed and remanded. joined by Cavanagh, dissenting, Chief Justice Mallett, Justice although attorney stated that a violation of a criminal law an is grounds discipline, necessarily misconduct and for it does not fol- disciplinary proceedings profes- low that will be initiated or that attorney. sional sanctions must be entered the When an attorney felony, is convicted of a there is no discretion whether to disciplinary procedures, attorney automatically initiate suspended. However, might there is a continuum of offenses that felony may may

violate the law far short of a that or not warrant discipline, conduct, potential creating and certain while for disci- pline, simply may compelling enough professional not be for sanc- very may tions be entered. A violation of the criminal law well misconduct, be but it becomes misconduct when adversely lawyer capacity lawyer. it reflects on the in the as a Pro- discipline may may necessary. fessional or not be warranted or Further, may attorney one incident of misconduct not reflect on fit- ness, pattern repeated might but a minor offenses be indicative problem requires investigation. of a further filing copy The of a certified of a of conviction the Attorney Discipline Grievance Administrator with the Board as proof conclusive of the commission of the criminal offense elimi- evidentiary hearing nates the need to have a formal to determine 455 Mich then orders the attor- The board misconduct has occurred. whether why discipline ney be entered. In dis- should not cause to show majority dismissing proceedings, panel ren- abling the from this hearing panel hearing superfluous. must the show-cause ders hearing authority after the show-cause inherent to dismiss have the requirement show- has met the that the if it determines why entered. To inter- ing should not be a final order of authority panel pret and renders it this otherwise binds the automatically required Clearly, are not sanctions irrelevant. evidence, mitigating hearing aggravating because, after panel’s may be entered. be that no order Kelly part case. in the decision of this Justice took no Philip Administrator, and Thomas, J. Cunningham, Counsel, for the Associate Richard L. petitioner-appellant. Philip (by F. Palmer, PC.

Colista, Adams & respondents- Sokol), Elizabeth L. Colista and appellees. Plaintiff-appellant, Admin- the Grievance J. Weaver, Attorney representing Grievance Com-

istrator, appeals Michigan, the Attor- mission and the State of ney Discipline indepen- of three Board’s affirmance decisions to dismiss dent respondents proceedings against Marvin G. Deutch Vickey respective operating Howell for their O. impaired (“drunk driving”) under convictions while MSA9.2325. 257.625; MCL granted whether these hear- We leave to determine authority discipli- panels ing dismiss the had the nary proceedings drunk found that when adversely driving facially, an attor- reflect on not, did lawyer ney’s honesty, trustworthiness, or fitness as 8.4(b). MRPC under hearing panels not have the

We hold that do disciplinary proceedings authority an ini- at to dismiss Grievance Administrator v Deutch hearing, tial misconduct which determines the exis- professional misconduct,1 tence of when the Griev- provides proof ance Administrator of a violation of 9.104(5) judgment MCR with a of conviction of mis- driving. demeanor drunk However, we further hold second-stage hearing, at which determines discipline,2 hearing the level of do have the discipline appropriate discretion to issue orders of to specific including case, facts of a orders that effectively impose discipline. no Such finding orders, however, can be issued after a par- misconduct at the initial and after both opportunity present “any ties have had an and all aggravation mitigation” relevant evidence of at the hearing. second

Accordingly, we reverse the board’s decisions that held the administrator failed to establish misconduct hearings at the initial for Deutch and Howell. We find filings against that the of conviction Deutch respective driving and Howell for their drunk convic- 9.104(5), tions constituted “misconduct” under MCR regardless of whether convictions, these on face, their adversely attorneys’ honesty, reflect on the trustwor- lawyers 8.4(b). thiness, or fitness as under MRPC disciplinary proceedings against We remand these respondents Deutch and Howell to the board for appointment hearing panels to determine the appropriate impose level of and to enter discipline pursuant 9.115(J)(1) orders of to MCR (3). MCR 9.115(J)(1). 9.115(J)(3). 455 Mich 149

I RESPONDENT DEUTCH July of a misde- 1993,Deutch was convicted 28, On visibly operation while of a motor vehicle meanor for Township impaired, West Bloomfield a violation of 257.625; and MCL MSA9.2325. Ordinance 5.15-22 May, Administrator com- 1994, the Grievance In pursuant against Deutch menced actions by 9.120(B)(3) filing judgment a of convic- to MCR punishable by driving, drunk a misdemeanor tion for imprisonment, MCR with the board.3 Pursuant to 9.120(B)(3), the board issued Deutch an order why cause a final order of should not show response, a him. In Deutch filed be entered motion to dismiss. Hearing 14, 1994, Panel No. 58 unani-

On June mously granted Deutch’s motion to dismiss with prejudice. Deutch’s convic- Panel 58 concluded that driving a local drunk ordinance did not tion under because it was not an adverse constitute misconduct honesty, trustworthiness, on his or fitness reflection lawyer, “certainly” as a and was de minimis miscon- duct “at most.” provides part: 9.120(B)(3) relevant may The administrator file with the board a of convic- showing attorney that an has violated a criminal law of a state tion or of the United States. The board shall then order the why entered, final should not be show cause a order of proceeding hearing panel refer to a and the board shall validity hearing. hearing, questions At the as to the of the convic- availability

tion, alleged errors, appellate trial remedies hearing, an shall be considered. After the shall issue 9.115(J). order under MCR v Deutch Administrator

Opinion the Court RESPONDENTHOWELL driving Respondent convic- had two drunk Howell year. separated fact, In her less than tions, each was still on while she occurred conviction second express probation an vio- and constituted for the first probationary terms. lation of her plea, initially guilty on convicted, Howell was operating a motor misdemeanor 1992, of 22, June by impris- impaired, punishable a crime while vehicle Township 5.15 Ordinance Bloomfield onment under disciplinary pro- 9.2325. The 257.625; MSA and MCL ceedings against immedi- were not initiated Howell response ately Rather, the conviction. to this pursue action waited to administrator probation for the first while still on Howell, until driving conviction a second drunk offense, received 1993. 9, on June judg- filed 16, 1994 the administrator

On March 9.120(B)(3), MCR board, conviction with the ment of May driving 1994, 31, On 1992 drunk offense. for the judgment with of conviction filed a the administrator driving conviction. Howell’s 1993drunk the board for prejudice July panel with 29, 1994, 76 dismissed On disciplinary proceedings on the 1992 con- based September panel dismissed, 12, 1994, viction. On disciplinary proceedings prejudice, again with against As in Deutch’s for her 1993conviction. Howell driving convic- the drunk found that case, both attorney’s adversely hon- on the did not reflect tions lawyer esty, as a under trustworthiness, or fitness 8.4(b). MRPC prior convic- Howell’s refused to consider

Panel 75 probation violated her fact that she had tion judgment had filed the administrator terms because 455 Mich 149 9.120(B)(3). of conviction under MCR Because the bring complaint administrator did not a formal specifically alleged Howell that that she was a express recidivist and had violated the terms of her probation, panel 75 reasoned that it could con- single sider the isolated fact of the 1993misdemeanor conviction.4

APPELLATE REVIEW appealed The administrator to the board to vacate respective dismissal orders. In each case, the hearing panels’ board affirmed the dismissals and driving found that the drunk convictions did not con- stitute misconduct because misdemeanor drunk driv- ing standing convictions, alone, did not reflect adversely attorneys’ honesty, on the trustworthiness, lawyer. respect or fitness as a With to Howell, the board also affirmed 75’sdetermination that her prior probation conviction and violation were not material because the administrator initiated and disciplinary proceedings based on pursuant 9.120(B)(3). conviction, to

n determining propriety In the of the board’s deci- sion, we must address three first, issues: whether panels hearing authority disciplinary have to dismiss hearing actions at the misconduct where the adminis- judgment trator files a of conviction for misdemeanor driving; relationship drunk second, the between MCR 4 panel prior The probation decided that the conviction and violation scope were proceedings, “outside the “simply of” the were Further, material . . . .” by while the respon was “troubled the general, general dent’s conduct her conduct” was not at issue. 157 v Deutch Administrator 8.4(b); third, whether

9.104(5) and, MRPC and We misconduct. committed Howell and Deutch in turn. issue each address

A have author- whether To determine adminis- ity when the actions dismiss to must conviction, we of has filed trator Attorney respective Griev- the roles of the consider Discipline Attorney of the and Commission ance promulgated Michigan Rules, Court Board. duty govern the our to of in furtherance this Court legal following regarding provide profession,5 the the attorneys: Michigan of conduct standard among Michigan is, other practice law in to The license Supreme proclamation Court continuing things, a professional with and entrusted is fit to be that the holder justice in the administration judicial and to aid matters court. attorney an officer of the and as an and counselor as attorney or her- duty every to conduct It is the himself imposed on conformity standards with at aU times in self prac- privilege to a condition the bar as members to, include, limited but are not tice law. These standards judi- responsibility and the rules of rules of Supreme adopted by Court. are [MCR conduct cial added).] 9.103(A) (emphasis Michigan either the violates an When seq., or MRPC 1.0 et Conduct, of Professional Rules Michigan which Conduct, of Judicial Code seq. regarding part 9.101 et in relevant includes Court with the 6, entrusts this of 1963 § 5 of the Constitution Art modify, legal establish, and amend the authority promulgate rules that reg courts, including power Michigan practice procedure in all Schlossberg, Michigan bar. In re members ulate and (1972). 389, 395; 200 NW2d Mich 455 Mich 149

Opinion of the Court professional disciplinary proceedings, attorney subject professional disciplinary process.6 to the This process carefully has been crafted this Court to effectively duty discharge regulate most our to judiciary community. legal discipli-

To ensure fairness and effectiveness in the nary process, deliberately this Court created a bifur- disciplinary agency prosecutorial cated in which the quasi-judicial separate and branches are and distinct. According 9.108(A), Attorney to MCR Grievance “prosecution Commission serves as the arm of the Supreme discharge Court for of its constitutional responsibility supervise discipline Michigan to and attorneys.” Attorney The Grievance Commission has power “supervise investigation including requests investigation misconduct, complaints attorneys and . . . .” MCR 9.108(E)(2). The Grievance Administrator is the Attorney administrative head of Grievance Commission. prosecutorial

The institutional “check” on the quasi-judicial branch is the branch, board, which “adjudicative Supreme acts as the arm of the Court” discharging duty supervise in attorneys. Michigan this Court’s 9.110(A). appoints hearing

MCR The board 9.110(E)(2) under MCR and, further, reviews a final order of or dismissal issued panels. 9.110(E)(4). specifically The court rules provide power duty that the board has the to:

(5) discipline attorneys and reinstate rules; under the Michigan adopted by Rules of Professional Conduct were order Court, 1, of this Michigan effective October 1988. The Court Rules were adopted by 1, this Court and became effective March 1985. v Deutch Administrator Supreme Court clerk its orders of sus-

(6) file with the pension, disbarment, .... and reinstatement [MCR 9.110(E)(5), (6).] system arguably disciplinary bifurcation of the

This efficiency, competency promotes institutional aspect allowing on one each division to concentrate disciplinary process, an but also serves as activity important of each check and balance on the panels independently hearing The board and branch. required discipline is each case to insure review legal profes- protect public, courts, maintain its focus and The administrator can sion. energy bringing deserving in all actions forward. attorney discipline Michigan’s reasons,

For similar process each has been divided so that stages, separate proceeding hear- two or two involves hearing ings. the existence of The initial establishes hearing second misconduct and the appropriate light determines the level of particu- any mitigating aggravating in the factors 9.115(J)(3). lar case. MCR

i panels hearing dis- dismissed the case, In this three ciplinary proceedings the administrator initiated driving respondents respective drunk for their hearing. The board at the misconduct convictions finding had the affirmed, disciplinary proceed- authority summarily dismiss proof ings as offered, even where the administrator 9.104(5), of con- misconduct under 9.120(B)(2). pursuant to MCR viction 455 Mich 149 practice contrary We find that the board’s to the express procedure provided by the court rules. MCR provides part: 9.104 in relevant following attorney, acts or omissions an individu- ally person, inor concert with another are misconduct and grounds discipline, occurring whether or not in the attorney-client relationship: course of an

[*] ^{[*] [*]} (5) conduct that violates a criminal law of a state or of [Emphasis the United States. added. ][7] The administrator has two methods to initiate and prove disciplinary proceedings based on a violation of 8 MCR 9.104(5): may the administrator file a formal complaint pursuant to MCR 9.115(A) judgment or a of conviction under MCR 9.120(B)(2). MCR 9.120(B)(2) part: states in relevant In proceeding a instituted an attorney’s offense,

based on the conviction of a criminal a copy judgment the conviction is conclusive certified of of proof [Emphasis the commission the criminal of of offense. added.] provision distinguish We note that this does not between conduct that felony; constitutes either a misdemeanor or a both are “misconduct” and "grounds discipline.” driving for The misdemeanor drunk convictions fail squarely 9.104(5), given statutory under MCR the definition of “crime” as any by designated act or omission forbidden law that is not as a civil infraction, punishable by imprisonment, fine, and that is on conviction a penal discipline. 750.5; Respondents or other MCL MSA 28.195. Deutch punishable by and Howell were both convicted of offenses fines and incarceration. 9.104(5), again, provides that it is misconduct and grounds attorney engages for when an in “conduct that violates a criminal law of a state or of the United States . . . .” v Administrator Deutch procedure, filing judgment conviction,

This the of a of evidentiary prosecutorial is an tool that allows the expeditiously dispose branch, administrator, the of already adjudicated in a case the courts. While the proof judgment that is not conclusive must imposed, finding be it does establish a of misconduct 9.104(5) second-phase under MCR and that a disci- pline hearing 9.115(J)(2) is warranted under MCR (3). protect filing judgment the function of the of a

To expressly provides 9.120(B)(3) conviction, MCR of validity hearing, questions “[at] that as to the availability alleged errors, trial conviction, appellate remedies shall not be considered.”9While expressly provided rules, the court respondent still free to move for dismissal on the aspects Arguably, basis of other of the conviction. respondent challenge finding could of misconduct by claiming that the crime is not a violation of state carry requisite law; or federal the crime does not penalty punishment imprisonment, fine, or other discipline; or the conviction was set aside or other- respondent’s wise eliminated from the record. Dismis- appropriate sal be if would persuasive. arguments Otherwise, found such to be proven, the administrator has with the valid respondent conviction, committed “miscon- Therefore, duct.”10 dismissal would be without author- 9 conviction, board, judgment When the administrator files a the respondent-attorney why turn, must order the to show cause a final order hearing panel. be entered and refers the matter to a should not 10 panels charge According 9.115(J)(4), to MCR must dismiss where the by preponderance a of misconduct is not established of the evidence. [July- 455 Mich 149 ity contrary requirements and to the of MCR 9.115CJX1).11 applied

As to Deutch and Howell, we hold that the hearing panels authority instant had no to dismiss the disciplinary actions because the prof- administrator judgments fered valid of conviction as proof of mis- conduct in each case.

In so holding, however, we note that panel while a has authority no to dismiss an action the during mis- conduct hearing when the administrator files a valid judgment of conviction, requisite check on the prosecutorial administrator’s authority at occurs second stage panel where hearing, determines appropriate discipline. level of MCR 9.115(J)(3) require does not discipline where misconduct established; rather, MCR 9.115(J)(3) requires a sec- ond hearing appropriate determine the level of dis- cipline, given all aggravating and mitigating factors. After considering factors, such panel must then order enter an on a finding “miscon- duct.” MCR 9.115(J)(3). 9.115(J)(1) requires, part: in relevant hearing report The regarding must file a on its decisions charges and, applicable, resulting discipline. the misconduct if report transcript, summary must a include certified evidence, pleadings, briefs, findings exhibits and of fact. The report summary section of the must also include of all

previous respondent disciplined misconduct for which the was or admonished. Whether the administrator initiated the action a conviction complaint 9.115(B), formal under MCR neither the duty, nor provi- the board are absolved of their under the above sion, appropriate findings to make and sufficient of fact to determine in each case whether misconduct was committed. 163 v Administrator Deutch Opinion of the Court Again, it should be noted that the order of disci- pline may, fact, discipline in order no all.12 at MCR the language 9.104, 9.106 echoes in MCR which that a finding only states of “misconduct” is “grounds discipline,” for that a of finding misconduct requires imposition the of in discipline every case. justice Where notions of and require, fairness we hold discipline, required that the order of under MCR and 9.115(J)(1) (3), could include an order effectively imposes discipline attorney.13 no on an

B The board panels’ also affirmed the hearing deter- minations that MCR must be read in 9.104(5) con- junction with MRPC so that 8.4(b), criminal con- victions that reflect adversely attorney’s on an hon- 12 “Types Discipline; MCR Discipline; 9.106 describes the of Minimum and, descending severe, Admonishment” in order from most to least sets types impose. forth the of are authorized to discipline, descending severity, Such order of includes: revocation of attorney’s practice Michigan, suspension license law in of the Michi gan practice conditions, rep license to for various terms and with various rimand, probation, restitution, filing admonishment without of a complaint. simply probationary The already order could mirror the terms imposed proceedings, allowing in the criminal thus the administrator to attorney’s progress Moreover, monitor the and rehabilitation. the adminis agree trator could to dismiss a action to enter into “contrac probation” respondent-attorney provided tual with as for 9.114(B). Finally, mitigating in the rare case where the circumstances so clearly outweigh any aggravating factors and the nature and harm of the crime, panel may forgo imposition decide to at all. case, despite In such a resources have not been wasted the fact that professional discipline not, end, imposed. was in the has had acknowledge “misconduct,” that he committed and both the administra- respondent-attorney opportunity tor and the have had a full to inform the panel mitigating aggravating often, particularly and factors that in cases recidivism, degree problem. Moreover, reveal the true nature and Attorney Grievance Commission has created a record of misconduct helpful 9.115(J)(1) that will be ney and relevant under MCR should that attor- further, commit future acts of misconduct. Mich 149 lawyer as a trustworthiness, and fitness esty, discipline.” “misconduct and for grounds constitute the text the court disagree that, We and hold as conviction or a expressly state, rules either criminal violation of the Rules of Professional Conduct under 8.4(b) grounds MRPC constitutes misconduct discipline.14 part,

In relevant MRPC maintains that it is 8.4(b) lawyer professional misconduct for a to engage involving dishonesty, fraud, deceit, in conduct mis representation, law, or violation of the criminal where such adversely lawyer’s honesty, conduct on reflects the trust .[15] worthiness, lawyer as a . . or fitness . 9.104(4), (5). provides: The staff MRPC comment to 8.4 Many illegal adversely prac- kinds conduct reflect on fitness to law, involving However, tice such as offenses fraud .... some carry implication. Traditionally, kinds of offenses no such the dis- turpi- involving tinction was drawn in terms of offenses “moral concept tude.” That can be construed to include offenses concern- ing personal morality, adultery some matters of such as and com- parable offenses, specific that have no connection to the fitness for practice Although lawyer personally the of law. is answerable to lawyer law, professionally the entire criminal should be answer- only able for offenses that indicate lack of those characteristics rel- practice. involving violence, dishonesty, evant to law Offenses trust, breach of or serious interference with the administration of

justice category. are in that instructive, however, 1.0(c) provides only While MRPC text “[t]he accompanies each authoritative. The comment that each rule does expand scope obligations, prohibitions, or limit the and counsel states, found in the text of the rule.” As the comment to MRPC 1.0 this “adopted rules,” Court the not the rules and comments. The comments changed by Supreme adopted were then Court staff to conform to the publication rules. This Court allows of the comments as “an aid to reader,” they statementjs].” but are not “authoritative The rules are only authority. v Deutch Grievance Administrator Contrary respondents’ provision assertions, this to 9.104(5). not farther limit MCR The rules have does scopes 9.104(5) specifi- and intents. MCR different cally targets transgressions law, of the criminal while 8.4(b) on conduct that reflects MRPC focuses adversely person’s honesty, trustworthiness, on a attorney, including as an but not limited to fitness prohibition law. The blanket violations of criminal protects of criminal conduct from appearance impropriety hypocrisy, while judicial system attempting protect also public ferreting undeserving out officers of the prohibition 8.4(b) is a court. MRPC more direct attorney’s legal an conduct that would affect practice, theft, such as or other conduct that under- and, therefore, mines one’s trustworthiness one’s abil- ity effectively fiduciary. serve as a While the two mutually they prohibitions exclusive, are not are dis- target tinct and different conduct. interpretation comports statutory with

This rules of determining interpreting construction. In and the rela- tionship 8.4(b) 9.120, between MRPC and MCR this interpretation that would Court must avoid an render any provision surplusage nugatory. Newspa- or Booth pers, Michigan Regents, Inc v Univ Bd 444 Mich (1993), citing 211, 228; 507 NW2d 422 Stowers v (1971). Wolodzko, 119, 133; 386 Mich 191 NW2d 355 interpreted Moreover, the court rules should be “lib- erally protection public, courts, . . . for the the legal profession 9.102(A). . . . .” MCR provide

Indeed, literal, the court rules themselves textual evidence of the difference between these prohibitions. juxtaposition 9.104(4) and (5) of criminal laws and illustrates that violations Mich 149 166 455 Rules of Professional Conduct are violations of the limit forms of misconduct. The one does not distinct scope application This Court of the other. Rules of Professional drafted MCR 9.104 so that the in this serve as an inde- could, do, Conduct case pendent ground on which misconduct can be found and an can be based. order

c mind, With this in we now evaluate the matters of separately recognition Deutch and Howell attorney in inquiries misconduct cases are fact-sensitive unique that turn on the of each case.16 circumstances reviewing Moreover, the board’s determination in case, each this Court decide whether must there proper evidentiary support exists on whole record findings.17 to sustain the board’s RESPONDENT DEUTCH charges Panel 58 dismissed Deutch’s misconduct concluding: attempt legal profes- it is admirable to hold

[W]hile higher popu- general sion to a standard of than conduct and, circumstances, may well, lous under certain it under Michigan Conduct, Code of Professional be entitled to basis, your do so and an on that Panel goes does not believe that this is a case . . . which to [the] practice foundations of the of law. This ordinance violation anyone, except caused no harm to for the embarrassment upon Respondent brought and shame Martin 6. Deutch. Mich 256, 264; ^[16] State In 278, 291; re 277 NW2d 635 Bar Grimes, Grievance Administrator v McWhorter 284 NW2d 472 Mich (1979). 483, 490; (1979), 326 NW2d 380 citing In re Freedman, (1982). (On Remand), 406 Mich v Grievance Administrator Deutch driving

We reverse because drunk convictions are violations of state law that constitute type 9.104(5). Therefore, “misconduct” under MCR we proved, by preponder- that the administrator find committed an act evidence, ance of the that Deutch 9.104(5) of misconduct under MCR when he filed the of conviction for misdemeanor drunk driv- it ing. Accordingly, we remand to the board so that appoint determine, can according 9.115(J)(3), appropriate to MCR level of disci- pline impose in this case. disposing case, that,

In so we note had this hearing panel summarily not decided this case on the principle drunk harms driving that no one but the may drunk driver, why it have discovered the admin- istrator disciplinary proceedings chose to initiate in drunk driving this case.18 18 During argument, oral the administrator informed this Court that the agency great deciding pur exercises restraint and discretion in whether to convictions, attorneys fact, sue a hi the administra that, 1996, only tor stated in the first ten months of two out of twelve driving approved by Attorney drunk cases were Grievance Commis disciplinary proceedings. explained sion for formal The administrator that past yeans, agency typically approves approximately over the six two year disciplinary proceedings. hundred cases a for formal The administrator further that maintained the cases which formal pursued typically is involve recidivism or other facts that evi- potential problem. agree dence a substance abuse We would that recidi- indicium, potential problem, vism anis of a substance abuse but unwilling also that the to reform on the basis of criminal sanc- tions alone. case, February 1992, In Deutch’s administrator claimed about approximately offense, driving sixteen months before the instant drunk driving, Deutch was convicted of careless which was reduced from drunk driving. 455 Mich 149

RESPONDENT HOWELL petition panels dismissed Howell’smisconduct Both they driv- found that the misdemeanor drunk because by imprisonment punishable ing under conviction, adversely did not reflect 257.625; 9.2325, MCL MSA “honesty, fitness as a law- trustworthiness, her on yer 8.4(b). disagree and find that . . . .” MRPC We by filing judgment for misdemeanor a of conviction proved, by prepon- driving, drunk the administrator Howell committed mis- evidence, derance of the that 9.104(5) her conduct under MCR for both 1992 and appoint We remand to the board to 1993 convictions. panel second-phase hearing according to conduct a 9.115(J)(3). During hearing, to MCR may fully that probation recidivism and consider Howell’s among aggravating mitigating and violation, other factors. reviewing compelled

In case, this we feel to correct following reasoning Hearing erroneous Panel No. 75: say regretful,

Other than the obvious fact that it is least, attorney law, nothing that an has violated the there is per justice se offensive to the administration of or to the lawyer Respondent’s fitness as a in her for OWI. conviction especially Respon- in This is so the case at bar where the event, friends, dent was at an after hours social with unre- attorney, “company an lated to her status as not on busi- any ness,” acting capacity way. and not in an official repeatedly rejected This Court has idea an duty professionally only during has a to act lawyer pro- business hours or while at work. “A is a ‘twenty-four day, eight fessional hours a hours, ” days Grimes, 483, 495; five a week.’ In re 414 Mich Grievance Administrator v Deutch Opinion op the Court (1982), quoting 326 NW2d380 Postorino, State v (1972). 412, Wis 2d 193 NW2d 1 419; “We cannot responsibility strongly stress too of members of carry public bar to activities, the private, out their both circumspection.” supra with Grimes, In re at 494.

m In conclusion, we hold these did not authority disciplinary pro- have the to dismiss the ceedings against respondents Deutch and Howell provided proof where the administrator of a violation 9.104(5) offering judgment of MCR a of convic- panels hearing tion. The are not absolved of their crit- responsibility carefully inquire specific ical to into the merely facts of each case because the administrator disciplinary proceedings by filing judgment initiates a 9.120(B)(3), conviction, of under MCR rather than complaint 9.115(A). formal under MCR hearing Moreover, we that, hold at the second 9.115(J)(2), panels referred to in MCR have discipline the discretion to issue orders of under MCR 9.115(J)(3) effectively impose no on respondents. Such an order, however, can be finding issued after a of misconduct under MCR 9.115(J)(1) (2), parties and and after both have an opportunity present “any to and all relevant evidence aggravation mitigation” 9.115(J)(3). of under MCR respect

We reverse the board’s decisions with to filings both Deutch and Howell. We find that the judgments respondents of conviction Deutch respective driving and Howell for their drunk convic- 9.104(5), tions evidenced “misconduct” under MCR regardless of whether convictions, face, these on their 455 Mich

Opinion by J. Boyle, adversely attorneys’ honesty, on the trust- reflected lawyers 8.4(b). as under MRPC worthiness, or fitness disciplinary proceed- remand these We, therefore, ings against Deutch and Howell to the board so that it appropriate appoint can to determine the level impose and to enter orders of disci- pline pursuant 9.115(J)(3). to MCR

Reversed and remanded with instructions. Riley, JJ., J. Brickley Weaver, concurred with Concurring). separately I write J. Boyle, my encourage what, view, the Court to address are application shortcomings serious in the form and adopting the current rule. In the Rules of Professional departed 1988, Conduct in we from the traditional dis- involving turpitude. regarding tinction crimes moral Although adopted the rule as did not otherwise differ- might entiate between misdemeanors that indicate practice any law, unfitness to we did not indicate that conviction, attenuated, misdemeanor however would contrary, constitute On misconduct. the fact that language the traditional was abandoned is evidence contemplated case-by-case that we evaluation of array from the whether, vast of misdemeanor particular offenses, conviction reflects on fitness for practice Thus, law. while I am constrained to agree majority’s reading rule, with the of the current many because misdemeanor offenses come in vari- degrees severity, eties and of it is clear that the cur- purpose rent the rule is not well tailored to overall system. the majority agree given

I also with the that the liberally rules are to be construed “for protection public, legal courts, the the and the v Grievance Administrator Deutch Opinion by Boyle, J. profession,” 8.4(b) MCR9.120 and MRPC 165, ante at commission, should not be read as limitations on the operate However, the Court. if the rules board, or preclude pattern either to a full evaluation of provide profession with behavior, or so as not to they considered, of the conduct to be are fair notice adequate if indicates, to the task. As this case proofs unfitness, does not examine all the public may adequately protected. not be On the precludes we hand, dismissal, other because the rule appeal assessing are foreclosed from on the nature of the misconduct and therefore unable to address and body precedent guidance giving create a to the public profession. satisfactory say

It is not a answer for Court to this promulgated a rule is a rule. If the rules we have for disciplinary proceedings functioning are not as envi- applications, responsibil- sioned real world it is our ity, allowing input through publication after and fairly sensibly problem.1 comment, address the example, changes might bifurcating For include process pro- for misdemeanors to allow a show-cause ceeding, 9.120(B)(3), for misdemeanor convic- dishonesty, violence, tions that involve offenses of misrepresentation, public fraud, deceit, breach of private trust, or serious interference with the adminis- justice lawyer’s honesty, tration of that reflect on the Jefferson, 399; (1978) (Court- See Brashers v 402 Mich 263 NW2d 243 proposed 1963, 102, published amendment to GCR for comment under opinion); People Straight, 1963, 933, appendix v GCR as an to the 418; (1988) (illustrating Mich 424 NW2d 257 the need for this Court to hearsay regarding consider an amendment of Rules of Evidence state ments; accordingly, proposed problem rule directed at this was ordered published). Mich 149 455 Opinion by Boyle, J. lawyer, or as a as contem- trastworthiness, fitness by 8.4(b), (c).2 the comment to MRPC plated jurisdictions Other have made this distinction. Discipline Disability Proceedings. 17A Ariz Arizona Rules for Rev Ann, Supreme Stat Court Rules. Discipline Rule 51. Grounds for discipline members and non-members shall be Grounds for of occurring as follows:

misconduct involving (a) Conviction of a misdemeanor a serious crime or of any felony. lawyer (a) felony Rule 57. Conviction of a or misdemeanor. A shall disciplined upon be as the facts warrant conviction of a misde- any felony. involving meanor a serious crime or any crime, necessary 1. Definition. “Serious crime” means a ele- which, statutory ment of as or determined common law defi- crime, nition of such involves interference with the administration justice, swearing, misrepresentation, fraud, of false willful extor- tion, misappropriation, turpitude. conspiracy, theft or moral A any attempt crime, solicitation of another or to commit a serious a serious crime. Disciplinary Procedure, Texas Rules of Rule 1.06.

Q. “Professional Misconduct” includes: Crime, being placed probation 8. Conviction of Serious or on guilt. for a Serious Crime with or without an of abdication barratry; any felony involving U. “Serious Crime” means moral turpitude; any theft, involving embezzlement, misdemeanor or money misappropriation prop- fraudulent or reckless or other erty; any attempt, conspiracy, or or solicitation another to com- any foregoing mit crimes. Governing Judiciary, Missouri Rules the Missouri Bar and the Rule 5.21 Suspension for Criminal Activities. directly (a) Upon filing of an information in this Court lawyer practice chief counsel that a admitted to in Mis- pleaded guilty guilty souri has or nolo contendere to or been found any felony state, any state, States; (1) of: this other or the United any any (2) state, state, misdemeanor of this other or the United involving justice, States interference with administration Grievance Administrator v Deutch Dissenting Opinion by Mallett, C.J. lack of respondent’s notice, Given the show-cause approach currently precludes as understood the hear- panel from of other ing assessing significance rel- Thus, disciplinary evant conduct. proceedings include misdemeanor fall convictions that do not into previous categories (including those which the administrator relies on a pattern conduct of such indicating lawyer’s offenses as an indifference to a legal obligations) might proceed under MCR 9.115. minimum, any

At a amendment provide should fair notice to 1) respondents, 2) development proofs full regarding fitness to a practice, 3) vehi- by cle permitting oversight this Court of findings misconduct development parame- facilitate ters of misconduct unfitness to reflecting practice. While I, course, do not suggest what answers are appropriate, problem is clear and should be confronted.

Mallett, C.J. (dissenting).

A provides MCR 9.104 a general list of acts or omis- sions that, if committed an attorney, constitute misconduct grounds and are for whether or in the occurring attorney-client course of the rela- tionship. Under this rule, violation of a criminal law is misconduct and grounds discipline. for This conduct swearing, misrepresentation, fraud, deceit, bribery, extortion,

false misappropriation, any turpitude; (3) theft or moral or misdemeanor involving attempt, conspiracy or solicitation of another to commit any state, any state, misdemeanor of this other or the United States above, imposed not, described whether sentence is or this Court lawyer why shall cause to be served on the an cause order to show lawyer suspended practice should not be from the of law .... 455 Mich 149 Dissenting Opinion Mallett, C.J. initiating proceed- serves as a basis for just ings. because the violation is a basis However, necessarily discipline, for it does not follow that disci- plinary proceedings profes- will be initiated or that sional sanctions must be entered attorney.1 attorney felony, an a

When is convicted of there is disciplinary proce- no discretion whether to initiate automatically suspended. dures, and the MCR 9.120. there is a However, continuum of might offenses that violate the law far short of fel- ony may may discipline. that not warrant This is implicit they specifically in the rules because do not happens address what in cases of minor infractions nonfelony import or other misconduct. The of this is potential creating conduct, certain while for discipline, simply may compelling enough not be professional simply sanctions to be entered. We have not all established that misdemeanors are misconduct

per automatically application se that warrant the professional fact, sanctions. In we have stated almost opposite. stating In that is not to be entered unless it has been decided that it is war- ranted, we have noted that we could establish a rule providing suspension upon for automatic conviction People of a misdemeanor. Pubrat, 589, v 451 Mich (1996). 599; 548 However, NW2d 595 we have cho- Clearly sen not to do so. this is illustrative of our may belief that certain offenses themselves not require professional discipline. Id. 1 majority Indeed, points out, great as the the administrator has latitude deciding attorneys investigate 167,

in whether to for convictions. Ante at n 18. 175 Administrator v Deutch Opinion by Dissenting Mallett, C.J. implicitly both this. MRPC 8.4 recognize

Our rules qualifies pro- MCR 9.104. MRPC 8.4 incorporates and misconduct law- professional that is vides “[i]t dishonesty, involving . . . in conduct yer engage to or violation of the deceit, misrepresentation, fraud, adversely reflects law, where such conduct criminal or fitness as lawyer’s honesty, trustworthiness, on the only implic- find does Rule 8.4 lawyer.” We pur- limits 9.104’s itly incorporate 9.104, but it exactly kind of mis- view further which defining misconduct.2 A violation of professional conduct is very may misconduct, law be but it the criminal well when it only professional becomes misconduct lawyer as a adversely capacity on the in his reflects this illustrates that not all mis- lawyer. Clearly again, must not for- conduct is misconduct. We already procedure has been a criminal get that there 2 scopes majority disagree with the that the “rules have different We appear conflict, note that if the rules to and intents.” Ante at 165. But we statutory compel that MRPC 8.4 the rules of construction the conclusion may appear law that which limits MCR 9.104. It hornbook “[statutes together reconciled, possible.” People are be read if v conflict 55, Further, Bewersdorf, 68; (1991). we note that 438 Mich 475 NW2d subject pur- that relate to the same or share a common [statutes pose pari together . . . are in materia and must be read as one a construction that avoids law. If the statutes lend themselves to conflict, When two statutes con- that construction should control. specific subject flict, to the matter while the other is and one is applicable, specific prevails. generally statute v [Brown Comm, App 574, 577; NW2d 121 204 Mich

Manistee Co Rd grounds 354; (1994), on other 452 Mich 550 NW2d rev’d (1996).] subject matter, bar relate to the same Because the two rules the case at and harmonizes them. This also we believe our conclusion best reconciles certainly, any part nugatory. And, rendering MRPC 8.4 the rules avoids specific, recognizes which violations of the criminal because it is more prevails professional discipline. Therefore, over the it law will warrant general more rule. Mich 149 Dissenting Opinion Mallett, C.J.

and a entered in these cases. Professional sentence discipline, may may in or not be warranted addition, necessary. professional punish

A code of should deter and special significance profession, conduct that is of to the but with it should not concern itself other conduct at all. For professional example, warranting certain actions a sanction may illegal hand, every not be or unlawful. On the other justify professional violation of criminal law would a sanc- may tion, for the criminal sanction be sufficient and the may wholly lawyer’s profes- offense be unrelated to the attempts define, 8.4(b) sional life. Rule to as well as it can necessarily terms, relationship general this between crim- inal law violation violation of norms. The objective category crimes, is to describe a the commis- specifically deficiency quali- sion of which reflects a in the lawyer. ties that define a The commission of a crime subject category lawyer profes- outside this should not discipline. Hodes, Lawyering (2d sional Hazard & Law of [2 pp ed), 8.4:101, (1992 supp).] § 951-952 The comment to MRPC 8.4 discusses that while an attorney must answer to the law, entire criminal lawyer should have to professionally only answer those actions that practice relate to fitness to law. The comment notes further that one incident of mis- may conduct not reflect on but a fitness, pat- repeated tern of minor offenses be might indicative of a problem requires investigation.3 further

It is true the discipline only rules do not limit those offenses that occur within the course of the attorney-client relationship. We have held that an certainly respondent Howell, This is true in case of who had two drunk-driving convictions, occurring proba the second while she was on probation may tion for the first. The fact that she violated her indicate a respect problems. certain lack of for the law as well as other serious v Deutch Administrator Grievance Opinion by Dissenting Mallett, C.J. activity disciplined

attorney may unrelated to for be proscribed practice our if the conduct of law v Nick- Administrator or the code. rules (1985) (an 373 NW2d 528 254, 260; Mich els, 422 employee attorney’s promises an to reimburse professional subsequent miscon- do so is failure to discipline may duct). be neces- have held that And we sary nonprofessional to maintain the misconduct profession. integrity Grievance Administrator (for (1978) NW2d646 291; 262 Gillis, 286, 402 Mich v return). tax “The rules file an income failure to adopted by professional evidence this Court conduct beyond high and behavior to standards a commitment responsi- strongly reproach. We cannot stress too carry bility out their activi- of the bar to of members circumspection.” public private, In with both ties, (1982). 494; 326 NW2d 380 Grimes, 483, 414 Mich re veiy If all viola- we must be cautious. However, potentially sanctionable the criminal law are tions of every will then infraction misconduct, as attorney’s game, not it reflects the be fair whether or Certainly lawyers practice should be law. fitness highest must not standards, but we held to the overly apply professional in an formalistic sanctions applied be Professional sanctions should manner. case-by-case very consideration to careful after results. avoid unfair and unreasonable B Administrator 9.120 allows the Grievance copy with a of conviction a certified file Attorney Discipline is conclusive Board, which the proof offense. This of the criminal

of the commission evidentiary hear- have a formal the need to eliminates 455 Mich 149 Dissenting Opinion by C.J. Mallett, ing to determine whether misconduct has occurred. The board then orders the to show cause why discipline should not be entered. The use of the provides conviction the Grievance Administrator typical procedure. shortcut around the bifurcated phase hearing, first in a establishes, formal whether the misconduct occurred. If misconduct is estab- second-phase hearing lished, is held to determine appropriate discipline. level of This second hear- ing necessarily separate hearing, may, is not but actuality, merely be a continuation of the first. always regarding

If conviction is conclusive mis- really hearing conduct, then the show-cause is akin to phase disciplinary hearing. the second or The effect proceed judgment of the choice to awith of convic- typical hearing, changes pro- tion, rather than the the judgment cedure. The of conviction, in effect, takes place hearing. the ney of the initial misconduct The attor- why discipline

must then show cause should not proceed judgment be entered. The choice to with a bypass right conviction is an automatic shortcut or hearing. a show-cause What has been created, albeit inadvertently, really procedure is a second based on proceed judgment the choice to with a of conviction. panel disabling proceed- dismissing In this from ings, majority hearing renders the show-cause superfluous. Certainly this is not the intended result panel hearing of the rules. The must have the inher- authority hearing ent to dismiss after the show-cause require- if it determines that the has met the why showing discipline ment of a final order of interpret should not be entered. To this otherwise authority panel binds the of the and renders it irrelevant. v Deutch Administrator Opinion Dissenting Mallett, C.J. argues because that Administrator

The Grievance discipline is established, an order of misconduct 9.115(J)(3). required Even This is not so. under MCR majority estab- while the that, concedes finding misconduct, “[it] is not conclusive lishes imposed discipline proof . . .”Ante at be . must that automatically required Clearly, are not sanctions 161. mitigating aggravating hearing or after because may panel’s be that no order evidence, the majority recognizes “[W]e this. hold be entered. hearing in MCR referred to at the second that, hearing panels 9.115(J)(2), discretion to have the 9.115(J)(3) under MCR issue orders respondents.” effectively impose discipline on no Ante at 169. argues

Finally, that the Administrator the Grievance proceedings dismissal authority prosecutorial infringes of the com- on the Nothing argument merit. is without This mission. way charging the commission’s in the stands authority. investigatory to ini- has the choice either It trigger investigation that would formal tiate a proceed judg- procedure, with a or to more bifurcated opted Having shortcut, for the of conviction. ment live with the conse- Administrator must quences result, with the of his choice. Dissatisfied hearing was with- administrator now claims disagree. If administra- I discretion to dismiss. out decisions to make their wanted the tor totality in each circumstances on the basis proceeded perhaps with a have then he should case, hearing. investigation full misconduct formal way Only before the facts have been would all this Unfortunately, panels. respective the administra- 455 Mich 149 Dissenting Opinion C.J. Mallett, proceed tor’s hands were tied both the choice to procedural with the convictions and the limitations the rules.

Cavanagh, J., concurred with Mallett, C.J. Kelly, part J., took no in the decision of this case.

Case Details

Case Name: Grievance Administrator v. Deutch

Court Name: Michigan Supreme Court

Date Published: Jul 15, 1997

Citation: 565 N.W.2d 369

Docket Number: 102962, Calendar No. 11

Court Abbreviation: Mich.