Grievance Administrator v. Lopatin

Lopatin Grievance Administrator v GRIEVANCE ADMINISTRATOR LOPATIN Argued 7, (Calendar 9). Docket No. 113250. March No. Decided 27, June 2000. complaint The Grievance Administrator filed a formal with the Attor- ney Discipline September 1992, attorney charging in Board Albert Lopatin misconduct, including giving gifts L. with various to and providing Appeals Judge Maher, services for Court of M. Richard gifts services, contacting Judge failure to disclose the and and regarding pending respondent repre- Maher in cases which did not party. charged improperly engag- sent a Mr. was also with ing parte Appeals Judge in an ex communication with Court of S. hearing panel Jerome Bronson. In a determined that by 7-110(A) giving lending violated DR items or ser- Judge Maher, 1-102(A)(5) vices of value to violated DR and MCR 9.104(1) failing opposing pend- to disclose counsel a case ing Appeals representation Judge in the Court of his law firm’s daughter personal injury Maher and Maher’s in an unrelated suit, 1-102(A)(1), (6), (5), 7-110(B), and violated DR DR 9.104(l)-(4) causing copy prepared by MCR a of a memorandum respondent appeared associate for case which the before judge opposing Bronson be sent to the without notice to judges panel. Considering counsel and the other on the the nature aggravating mitigating of the misconduct and some of the fac- tors identified in the American Bar Association Standards Lawyer Imposing Sanctions, reprimanded hearing panel respon- agreed reprimand dent for the misconduct. The board that a was appropriate discipline February for the misconduct 1996. The Supreme Court, appeal, granting in lieu of leave to remanded the panel hearing findings case to the for additional and to consider any changed findings whether new or should affect the level of dis- cipline. remand, making findings, On after additional discipline forty-five-day suspension. increased to a Supreme Court, again leave, granting in lieu of remanded the case appropriateness arguments regarding to the board to consider discipline. (1997). remand, of the increased 456 Mich 1206 On panel’s findings, board affirmed the additional but deter- 462 Mich 235 Supreme mined that Court’s “dismissal” of the Grievance application appeal precluded Administrator’s for leave to it from forty-five days. suspending respondent for more than It further con- reprimand appropriate respon- cluded was sanction for appeals. dent’s misconduct. The Grievance Administrator opinion by joined by In an Justice Chief Justice Corrigan, Supreme and Justices and the Young, Taylor, Weaver, Markman, Court held: Attorney Discipline Board erred as a matter of law in con- cluding Supreme denying the Court order the Grievance application appeal Administrator’s for leave to barred the board forty-five suspending longer days. from the for than In error, light of that and because the board did not have the benefit Supreme guidance regarding of Court of use the American Bar Lawyer Imposing Sanctions, Association Standards for remand to required discipline. the board is for reconsideration of its order of Attorney Discipline panels hearing 1. The Board and are to fol- Imposing Lawyer low the Aba Standards for Sanctions when deter- appropriate lawyer mining Although, an sanction for misconduct. historically, Supreme approach the has Court utilized an ad hoc appropriate professional finding determine the sanction after a of misconduct, guide written standards are needed to the board and panels. hearing principles provide guidance A written set of will during process discipline lawyer fixing the of for misconduct. Therefore, adopted the aba are standards on an interim basis. Their purposes attorney discipline, help identify use will further the appropriate imposing discipline the factors for consideration in and selecting particular case, establish a framework for a sanction in a promote consistency discipline. Application of the standards produce also will reasoned decisions that will facilitate review. The explore development permanent Michigan is to the stan- adb lawyer imposing sanctions, report proposed dards for its stan- Supreme years dards to the Court within two of June 2000. Supreme denying 2. The Court’s order the Grievance Administra- application appeal cross-appellant pre- tor’s for leave to as did not increasing discipline beyond clude the board from the level of forty-five-day suspension by imposed panel. hearing gen- As a rule, appellate eral an court’s determination issue in case appellate binds lower tribunals on remand and the court in subse- quent appeals. case, however, applies only Law of the to issues actually implicitly explicitly prior appeal. decided either or in the In denying application the Grievance Administrator’s for leave to appeal case, Supreme expressed opinion in this no the merits. The board was free on remand to consider and decide any open by Supreme Thus, matters left Court mandate. affirm, reverse, nullify amend, board was free to the order of the Grievance Administrator part discipline. in whole or in or order other On remand, may options, including consider all sanction adb disbarment Reversed and remanded. joined by part concurring Justice Justice Kelly, Cavanagh, dissenting part, White, stated that under Johnson v 430 Mich 37 (1988), the was correct that it was barred the law of the considering case doctrine from whether the sanction beyond forty-five-day suspension. could be increased When the Supreme issue, Court denied leave on this adb’s decision reconsidered, prior

became the law of the case. If it is now nullity. denial would be a appeal appellate higher court, aWhere case is taken on to a appellate higher supersedes law of the case announced in the court appellate Rulings that set forth in the intermediate court. of the appellate court, however, intermediate remain the law of the case they opinion higher insofar as are not affected court reviewing the lower court’s determination. Edick, Robert E. Acting Grievance Administrator, and Richard L. Cunningham, Counsel, Associate petitioner-appellant.

Lee R. Franklin for respondent-appellee. J. In disciplinary matter, the Griev-

Corrigan, Administrator, ance Attorney behalf of the Griev- ance appeals Commission (ago), Attorney an Disci- pline Board (adb) order reducing discipline imposed on respondent by a panel from a hearing forty-five-day suspension reprimand. to a We hold the ADB a erred as matter of law in concluding prior that our order denying the Grievance Adminis- application trator’s for leave to appeal barred it from suspending forty-five days. for than longer In light of error, and because did not adb have the benefit of our guidance regarding use of the American Bar Association (aba) Impos- Standards for Mich 235

Opinion of Lawyer ing Sanctions, we remand this case to the adb discipline. of its order of for reconsideration ABA STANDARDS I. THE panels Today, hearing we the adb and to fol- direct Lawyer Imposing low the Aba Standards for Sanctions lawyer appropriate determining when sanction for historically have an ad hoc misconduct. We utilized appropriate approach after to determine the sanction professional comprehen- finding a of misconduct. A imposing for sive set of written standards sanctions Only has never existed this state. our occasional opinion provided guidance public, has to the the dis- ciplinary body, legal profession and the on this sub- ject. We conclude that written standards are needed panels. guide to the past twenty years, Michigan In the the number of attorneys nearly increase, has doubled. With this we experienced complaints significant have a increase in attorney only regarding Although conduct. a small disciplined year, fraction of our bar is each we con- principles provide clude that a written set of will process discipline guidance during fixing of lawyer adopt We therefore misconduct. stan- aba dards on interim basis.1 Their use will further the attorney purposes discipline, help identify appropriate imposing factors for consideration in dis- cipline selecting a establish framework for particular promote case, sanction consis- tency discipline. Application will the standards explore development permanent Michigan We adb direct lawyer imposing report pro its standards sanctions. The ADB shall posed years Michigan standards to this Court within two of the date of opinion. this Grievance Administrator produce reasoned decisions that will also facilitate our review.

a The aba standards analytical establish an frame- work to the guide disciplinary body in determining the appropriate sanction in a case. propose designed specific standards are not [T]he myriad patterns sanction for each of the of fact in cases of

lawyer Rather, provide misconduct. the standards a theoret- guide ical framework to imposing the courts in sanctions. imposed depend presence ultimate sanction will on the any aggravating mitigating particular or factors in that situation. The analogous standards thus are not to criminal sentences, guidelines determinate give but are which courts flexibility appropriate par- to select the sanction in each lawyer ticular Standards, case of p misconduct. [Aba 6.] Under the framework, disciplinary body initially answers three questions: (1) duty lawyer duty What ethical did (A violate? to a

client, public, legal system, profession?) or the (2) lawyer’s (Did lawyer What was the mental state? intentionally, knowingly, act negligently?) (3) potential What was the extent injury of the actual or lawyer’s caused (Was misconduct? there a serious or potentially injury?) Standards, p serious 5. See also [Aba Aba Standard 3.0.] Through inquiry, disciplinary body identifies type of misconduct involved in particular case. 462 Mich 235 240 Opinion of the Court body undertakes the second disciplinary The then the recommended analysis. It determines step of type consulting sanction for the of misconduct 4.0 8.0 through aba standards. Aba Standards relevant variety sanctions for a contain the recommended after the recom- Finally, determining misconduct. body to the sanction, disciplinary moves mended analysis relevant step third and considers the factors. On review of these aggravating mitigating factors, it then decides whether to increase Aba Standard 9.1. decrease sanction.

Courts of other states have that the aba recognized analytical standards are a valuable tool for determin- appropriate sanction for misconduct. Four ing pat- adopted state courts have their own standards in at terned after the aba standards.2 The courts least rely fourteen other states on the standards for aba while another guidance determining sanctions,3 employ only fac- aggravating mitigating three provisions tor standards.4 The courts aba 2 Imposing Lawyer Discipline, Preface; Alabama Standards for Florida Lawyer Sanctions, Preface; Imposing Standards for North Dakota Stan Lawyer Sanctions, Note; Imposing Imposing dards for for Utah Standards Lawyer Summary. Sanctions, California, contrast, adopted has stan presumptive P, IV, containing dards Cal St B tit Standards for sanctions. Attorney Sanctions for Professional Misconduct. 3 1115, Shannon, Mann, (Alas, 1993); See In re 1117 In 853 P2d re 179 52, 71; People Fager, 138, (Colo, (1994); Ariz 876 P2d 548 v 938 P2d 141 1997); Fountain, App 375, 381; Statewide Grievance Comm v 56 Conn (2000); Maguire, 417, (Del, 1999); 743 In A2d 647 In re 725 A2d 423 re Swindall, 553, Quaid, 554; (1996); 266 468 SE2d 372 In re 646 So 2d Ga 343, Attorney Maryland Sheridan, (La, 1994); 350 Grievance Comm v 1, 28; Mississippi Land, (1999); v 357 Md 899, 741 A2d 1143 Bar 653 So 2d Disciplinary Brown, (Miss, 1994); 910 Counsel v 87 Ohio St Office of 316, 319-322; Huffman, 567, 587; (1999); 3d 720 NE2d 525 In re 328 Or 878, (1999); Claggett, (SD, 1996); 983 P2d 534 In re 544 NW2d 881 In re Hunter, 599, 605; Boelter, (1994); 163 Vt A2d 203 In 139 Wash 2d 656 re 81, 99; (1999). 985 P2d 328 4 Hollingsworth, 251, 263-265; (1999); Neal v Ark 992 SW2d 771 In Disciplinary Doherty, 446, 450; (1997); Lawyer re 142 NH 703 A2d 261 Jarrell, Va, (W 1999). Bd v 523 SE2d Grievance Administrator nine additional states have relied on the aba stan- Further, dards to a lesser extent.5 in a few states, disciplinary closely state boards follow the aba stan- dards even the courts not. though Levin, do emperor’s clothes and other tales about the standards imposing lawyer discipline sanctions, L 48 Am U 1, 34, R n 157 (1998).

In Michigan, the executive director began trans- adb aba standards to mitting members for use as additional resource soon after pro- their mulgation. Cunningham, Survey 1988 Annual of Michi- gan Law, Wayne Responsibility, 34 L R Professional 1005, 1027 (1988). not, The has however, adopted the aba standards or any other promulgated set of join standards. Today, we the courts of other states in the value recognizing of the aba standards aas bench- mark in the decisional process.

b power This Court has the 1963, under Const 6, art 5, to and regulate discipline § the members of the bar of this state. In re Schlossberg, 388 Mich 389, 395; 200 NW2d 219 (1972); see also 600.904; MCL MSA 27A.904. our Exercising rulemaking authority, we bifurcated the Michigan attorney disciplinary system in 1978, vesting prosecutorial and investigative adjudicative functions in the and the function in AGC, 5 Disciplinary Breiner, Counsel v See 89 Hawaii 969 167, 175; Office of Burchett, In re (1999); (Ind, 1994); P2d 1285 In re 630 NE2d 206 205, Harris, Luongo, In re (1997); 261 Kan 934 P2d 965 1063, 1076; 416 Mass Giberson, (1993); In re (Minn, 621 NE2d 681 308, 311; 581 NW2d 355 351, Weier, Carlton, 1998); In re (Mo, 1999); In re 994 SW2d 559 993 P2d 554, Cutler, (NM, 2000); In re (1996); 738 227 736, AD2d 650 NYS2d 85 8, 10; O’Neal, Oklahoma ex rel Oklahoma Bar Ass’n v (Okla, 852 P2d 715 713, 1993). Mich 235 242 462 ).6 of Subchapter 9.100 9.108(A), 9.110(A the adb. MCR attorney discipli Rules Michigan governs panels and the nary proceedings hearing before adb. analytical By rule, court we have established the panel must use in hearing making framework that the of hear specified its decision and have the form the adb ing panel’s decision.7 We have also delineated Survey analysis Michigan’s discipli Schwartz, See Dubin & of nary system lawyers, (1983), L for a discussion 61 U Det J Urb 1-3 history attorney disciplinary proceedings Michigan and the of the of ago prompted create and adb. concerns that this Court to provides: 9.115(J) MCR panel report applicable, regard- (1) hearing The must file a on its decisions and, ing charges resulting if disci- the misconduct summary pline. report transcript, The must include a certified a of evidence, pleadings, briefs, findings fact. the The exhibits and report summary discipline section of the must also include a disciplined previous respondent all misconduct for which the was or admonished. Upon panel (2) finding misconduct, hearing shall con- separate hearing appropriate discipline. duct a to determine the discipline shall be cortducted as soon after the find- practicable may immediately ing of misconduct as is be held following panel’s ruling that misconduct has been established. (3) hearing panel charge If the finds that the of misconduct is preponderance evidence, established order of it must enter an discipline. days shall is The order take effect after it good served on the order unless the finds cause for the panel’s date, to take effect on a different which event the explain ordering decision must date, the reasons for a different effective discipline imposed, any determining hi the to be mitigation and all rele- aggravation admissible,

vant evidence of or shall be previous including discipline, admonitions and orders of the and previous placement respondent probation. on of the contractual (4) hearing panel charge If the finds that the of misconduct is by evidence, preponderance not a established the it must enter complaint. dismissing an order the report by panel chairper- (5) signed The must be and order the copy son and filed with the board and the administrator. A must be parties required by served on the as these rules. procedure MCR 9.117 governs hearing assigns the when the a adb com- plaint to a master: complaint assigns master, If the board a to a the master shall public complaint hearing hold a on the and receive evidence. To Administrator Grievance Opinion of the on.8 decisi hearing panel a for reviewing procedures First, purposes. main two rules serve These court making decision considered they promote respondent to the procedural fairness accords procedure may applied, governs be it that MCR 9.115 the extent prepare hearing, a master shall the a master. After the before report containing proceedings, (1) a brief statement of the fact, findings (2) (3) law. conclusions of panel designated report hearing with a The master shall file the respon- copy by and the a on the administrator board and serve the filed, days report or the the is administrator Within 14 after dent. report supporting may objections respondent and a file to the the supports findings panel the if the record must determine brief. impose discipline, if war- of law and fact and the conclusions by proceedings governed MCR 9.118. are Further ranted. administrator, complainant, 9.118(A) grants grievance the the MCR hearing panel petition respondent right the adb to review a and the why it response, cause issue an order to show In the shall order. 9.118(C), panel 9.118(B). hearing MCR order. MCR not affirm tile should hearing and the form of the ADB’s decision. (D) govern adb before 9.118(C), Under MCR by a (1) hearing cause must be heard the order to show A by chairperson. assigned members of at least 3 board subboard of the on consideration make a final decision The board must presentation transcript record, including made to a of the whole the subboard respondent recommendation. The and the subboard’s personally hearing appear unless excused at the review shall any sought may appear in denial of relief Failure to result board. any 9.118(D). respondent, allowable under MCR or other action testimony be should (2) that additional If the board believes panel taken, may hearing a master. The or it refer the case to a testimony and panel take the additional the master shall then or transcript report, including supplemental of the additional make a testimony, exhibits, Notice of pleadings, briefs with the board. report report copy supplemental must filing and a of the panel. report hearing original and order of as an be served 9.118(D) governs the ADBdecision: MCR may cause, board hearing to show on the order After the nullify amend, reverse, affirm, order of the discipline discipline. part A order is not or order other whole or days unless on the after it is served until effective good to take effect earlier. for the order board finds cause 244 462 Mich 235

Opinion of Court public disciplinary process. instills confidence in the they Second, generate a record that contains this information Court needs engage meaningful authority review when its ultimate exercising regu- discipline late and members of the bar. Schlossberg, supra 395; adopt Today, at MCR 9.122. we Aba Lawyer Standards Sanctions on an Imposing purposes. interim basis to further these disciplinary system The of goal pro- basic our is to public, courts, profession.” tect “the and the legal MCR emphasized past 9.105. While we have in the disciplinary that “must cases stand on their own facts,”9 and that to other are analogies cases of lim- value,10 merely ited our pro- statements reflect position no that two misconduct cases are identical. prior clearly Our rejection statements do not signal of the principle equivalent misconduct should be Rather, equivalently. treated we have stressed that the “continuity overview function involves and con- adb sistency discipline In imposed.” re 411 Daggs, Mich 304, 307 NW2d 320; 66 (1981). difficulty consistency of insuring within the disciplinary

current apparent framework has become years. recent In year before we bifurcated the disciplinary predecessor process, disciplinary board complaints, imposed received 753 62 orders of discipline, final 1,687 and handled matters without file. opening Report Final State Bar Grievance Board, July 1, 30, 1976, 1977—June 57 B 1002, Mich J 9 Rio, 336, 350; State Bar Grievance Administrator v Del 407 Mich 285 (1979); Deutch, NW2d 277 see also Grievance Administrator v 455 Mich 149, 166; (1997) (“attorney 565 NW2d 369 cases misconduct are fact- inquiries unique case”). sensitive turn on circumstances each 10See, e.g., Rostash, 289, 298; Grievance v Administrator 457 Mich Grimes, (1998), 490; NW2d 452 and In re 414 Mich 326 NW2d 380 (1982). Administrator Grievance Opinion (1978). 16,800 members were about There twenty- past period. during Id. Over the bar years, membership nearly doubled, 78 has bar our disciplinary (1999), in and an increase B J 712 Mich activity accompanied in numbers. In our increase has requests investiga- 3,935 1998, the AGC received Attorney Discipline Michigan Board & State of tion. Attorney Annual Commission, Joint Grievance p January Report, 31, 1998, 5. 1, 1998, to December complaints year, During filed 241 formal the AGC admonishments, issued 179 confidential with the adb, cautionary letters. Id. The files with and closed 342 disposition during this final orders adb entered 205 appeals period, among from them orders same p hearing panel 12. Id., orders. panels

Attorney hearing volunteers serve on the initial determination of misconduct make appropriate discipline. 9.111. In adb MCR attorneys on the a roster of 450 who serve maintained panels. Report, hearing Joint Annual three-member attorneys undoubtedly supra, p 10. While these attempt prioritize degree and achieve some cases consistency discipline, panel an individual mem- attempt a lack of information ber’s is hindered discipline imposed Although in other cases.11 about the members of the adb have more information than analytical hearing panel members, framework will assist them in established standards aba discipline selecting appropriate in each case. The decisions, disciplinary through Although has its articulated adb, misconduct, ranges hearing and adb for some of the most common published. through the are not Adb decisions from October 1978 decisions website, however, present are, available now adb Weekly Lawyers www.adbmich.org, Michigan website as well as on the pres Further, (Michlaw.com/miadb.htm). decisions from 1988 to the computer package from the State in a software available ent are available Bar. 462 Mich 235 aba standards will guide panels and the adb in a level imposing discipline that takes into account the unique circumstances of the case, individual but still falls within broad constraints designed to ensure consistency.

Standards for imposing lawyer help sanctions will insure that imposed sanction in a given case advances the basic goal of our disciplinary system. We with the agree remarks contained in preface to the aba standards: lawyer discipline truly For effective, to be sanctions must clearly be developed based on Inappropriate standards. sanctions goals lawyer can discipline: undermine the sanctions which are adequately too lenient fail to deter mis- public conduct and thus lower profession; confidence in the may sanctions which impair are too onerous confidence system lawyers and deter reporting from ethical viola- part lawyers. tions on the of other sanctions, Inconsistent jurisdiction either within a among jurisdictions, or cast efficiency doubt on the discipli- and the basic fairness of all nary systems.

Use of the aba standards will further the goal of our disciplinary system they because “combine clear, straight-forward guidelines which ensure a level of consistency necessary for fairness to public and system the legal with flexibility and creativity essential justice to secure to disciplined lawyer.” In Buckalew, re 731 P2d 48, 52 (Alas, 1986).

Application of the aba standards will also facilitate our review. This Court has the ultimate responsibility to oversee the conduct of the members of the State Bar. Grievance Administrator v Rostash, 457 Mich 289, 297; 577 NW2d 452 (1998); Grievance Adminis- trator v August, 438 Mich 304; 475 NW2d 256 Grievance Administrator “may any make order it appeal, On this Court (1991). appropriate, dismissing appeal.” including deems authority we have broad to 9.122(E); Although MCR historically disciplinary order, we have change “only imposed if the sanction is power invoked our inappropriate.” Rostash, supra at 297.12 hampered by

Our review is often the absence of a explanation partic- selecting clear reasons will lead ular sanction. Reference to the standards aba will mean- to well-reasoned decisions that facilitate review. We direct the adb ingful hearing therefore panels determining to follow the aba standards lawyer appropriate sanction for misconduct.13 panel’s hearing Our court rules authorize the adb to review the deci authority 9.118(D). Court, turn, sion de novo. MCR This has broad disciplinary employ change 9.122(E). the adb We order. MCR nonetheless depending different standards of review on the nature of the issue raised parties. See, always, questions e.g., we As review of law de novo. Deutch, supra panels authority (considering hearing n 9 whether have the disciplinary proceedings hearing to dismiss at an initial when misconduct provides proof the Grievance of a MCR Administrator violation of 9.104[5]). contrast, finding In we review the adb of misconduct to deter proper evidentiary support mine whether exists on the whole record. Grimes, supra clearly n 10 at 490. This standard is akin to the erroneous reviewing findings pro standard we use in a trial court’s of fact in civil ceedings. 2.613(C). Finally, practice, grant See MCR we some defer appropriate ence to the adb determination of we will sanction because only Rostash, change imposed inappropriate. the order if the sanction is supra panels, hearing at 297. Use of the standards aba adb may however, justify reviewing a more deferential standard for the adb adopt standards, light In the aba we sanction decision. of our decision to amending 9.122(E) greater will consider MCR to afford deference to the lawyer appropriate adb determination of the sanction for misconduct. panels We caution the adb that our directive to follow responsibility the aba standards is not an instruction to abdicate their independent Where, reasons, judgment. exercise for articulated panel adequately hearing a determines that the aba standards do not con misconduct, accurately sider the effects of certain do not address particular case, aggravating mitigating or of a or do not circumstances precedent comport or the with the of this Court it is incumbent adb, explain for, hearing panel at, or the to arrive the basis a sanc tion or result that reflects this conclusion. 462 Mich 235

II. LOPATIN A. FACTUAL BACKGROUND AND PROCEDURAL POSTURE respondent’s allegedly This case arises from improper Appeals Judges contact with Court of S. Jerome Bronson and Richard M. Maher. The filed ago complaint September alleging a formal 1992, mis- involving respondent’s (1) gifts conduct to, and ser- Judge vices for, Maher and the failure to disclose gifts respondent’s (count i); (2) those and services regarding pending contact with Maher cases in respondent represent party (count II); which did not (3) respondent’s parte ex contact with Bronson Luszczynski Henry Hosp, in the matter of Ford Appeals (count m); (4) respon- No. 84686 boasting Appeals dent’s of his influence with Court of judges (count iv); (5) attempt per- attorney represent suade Sue Radulovich to his secre- tary during jury grand investigation into his conduct involving Judge attempt Bronson in an to obtain regarding proceedings (count information the secret v). hearing panel presided

A over a misconduct hear- ing during early panel orally late 1994and 1995.14The parties February advised of its decision in 1995, report Regard- and issued a written on June 1995. ing I, count determined that vio- 7-110(A)15 giving lending lated DR or items or ser- generated A discovery dispute two for leave to applications to this Court appeal in this delayed matter. 15 The govern 1971 Code of Professional and Canons Responsibility underlying allegations case because the acts of misconduct occurred Michigan before effective date of the Rules of Professional Conduct. 7-110(A) give DR stated that anything shall not lawyer or lend “[a] judge, value to a of a tribunal.” official, employee 249 v Grievance Administrator

Opinion of the Court of value found, vices to Maher. It that Judge however, respondent did not gifts make the to influence Judge important Maher’s decisions in cases to respondent’s panel law firm. The respon further determined that A)(5)16 DR by dent violated and MCR 1-102( 9.104(1)17 to disclose to failing opposing counsel in a case pend ing Appeals the Court of his law firm’s representa tion of Maher and Judge Maher’s in an daughter personal injury unrelated suit. Finally, found violated DR 1-102(A)(1), (5), DR (6),18 7-110(B),19 by and MCR 9.104(l)-(4)20 a causing copy of a prepared by memorandum an 16 1-102(A)(5) provided lawyer “[ejngage DR that a shall not in conduct prejudicial justice.” that is to the administration of 17 9.104(1) provides prejudicial proper MCR that “conduct to the admin justice” grounds discipline. istration of is 18 provided 1-102(A) lawyer DR that a shall not: (1) Disciplinary Violate a Rule. (2) Disciplinary through Circumvent a Rule actions of another. (3) Engage illegal involving turpitude. conduct moral (4) Engage involving dishonesty, fraud, deceit, in conduct or misrepresentation. (5) Engage prejudicial in conduct that is to the administration

justice. (6) any Engage adversely other conduct reflects on his practice fitness to law. 19 provided: 7-110(B) DR adversary lawyer In proceeding, communicate, an a shall not or communicate, cause another to as to the merits of the cause with a

judge proceeding except: or an pending, official before whom the is (1) proceedings In the course of official in the cause. (2) writing promptly copy In writing if he delivers a to opposing party represented by counsel or to the adverse if he is not lawyer. Orally upon (3) adequate opposing notice to counsel or to the party represented by lawyer. adverse if he is not (4) As otherwise authorized law. 9.104(l)-(4) provide: MCR following attorney, individually acts or omissions or in person, grounds concert with another are misconduct and for disci- 462 Mich Ford Luszczynski Henry for the case of associate Bronson without notice Hosp to be sent to panel.21 and the other on the judges counsel opposing attorney-client pline, occurring in course of an whether or not relationship: prejudicial proper justice; (1) administration of conduct to the exposes legal profession (2) or the courts to conduct that reproach; obloquy, contempt, censure, or ethics, contrary justice, honesty, good (3) conduct that is morals; professional (4) conduct that violates the standards or rules responsibility adopted by Supreme Court .... the panel hearing The found as follows: panel testimony respondent, Judge The heard from Roman Judge Linkner, Dzierbicki, Monica Ronald Martin Gribbs, Clements, and Robert Rathke on this issue. panel testimony, finds, hearing respondent all The after Hospital, argued Luszczynski Henry v the case of Ford Court of Appeals Appeals Judge in front of S. Bron #84686 Court of Jerome Respondent son, Roman and Martin Clements. testified that Gribbs, Bronson, expediting arguments, Judge in the interest of oral asked by respondent to brief two new cases which had been decided Supreme Luszczynski Court after were in the briefs filed case. Linkner, attorney respondent’s firm, prepared Monica law a Lopatin. it, memorandum written recapped addressed to Albert In she argument, what had occurred at oral and discussed Supreme respondent brought new Court cases which had to the during Court’s attention orals. Judge gave Mr. Rathke testified him a Bronson handwritten Luszczynski opinion. drafting memorandum to be used in Rathke given only Judge that it testified was the time Bronson had ever any type him of written document from which to draft an opinion. Judge Bronson’s handwritten memorandum and the memoran- appear dum written one in the Linkner be same document. language The is almost identical and there is same mistaken appearing citation of a court rule in both documents. Testimony indicates that memorandum was not properly Court, panel judges opposing served on the the other proof file, respon- counsel. There is no of service in the Court or in file, Judge Judge dent’s Gribbs both testified that Clements they never had received the memorandum. panel Lopatin copy The finds that Mr. of the memoran- caused prepared dum Linkner to be sent or otherwise communicated to proper Judge opposing Bronson without notice counsel and the panel Accordingly, panel other members. finds a violation of Grievance Administrator panel rejected remaining allegations in the complaint. Considering the nature of the misconduct aggravating mitigating and some of the factors panel hearing rep- identified in the standards, aba rimanded for the misconduct. Respondent peti- and the Grievance Administrator panel hearing tioned the ADB for review of the deci- February sion. In hearing 1996, the ADB modified the panel’s finding first of misconduct, reversed the sec- finding, finding. ond Regarding and affirmed the third panel’s finding, panel’s first ADB affirmed the respondent’s renting determination that of his Florida condominium to Maher at a reduced rate con- improper gift. agreed stituted an The ADB with the panel hearing reprimand appropriate that a was the discipline for the misconduct. applied

The Grievance Administrator for leave to appeal applied to this Court. Petitioner for leave to appeal cross-appellant. granting appli- as In lieu of (1) cations, we remanded to the findings credibility regarding the of three witnesses, (2) complaint, resolution (3) of count n of the formal finding open whether Bronson, court, respondent directed to deliver the memo and to serving opposing deliver it filing without counsel or it explanation (4) panel’s with the clerk, of find- ing respondent Judge that did not intend to influence (5) any findings Maher’s decisions, reconsideration of attorney prior affected evidence of Radulovich’s panel erroneously consistent statements, which the panel excluded. We further advised that the could reopen proofs exercise its discretion to if it deter- 9.104(1-4) applicable MCR and Canons 1 and 7 of the ten Code of Responsibility, 1-102(A)(1, 5, Professional 6) [DR and DR 7-110(B)]. Mich

Opinion the Court improperly evidence would excluded mined that the panel to consider decisive. We also directed be any findings changed affect the level would whether discipline. attorney hearing panel that remand, the found On major the three was the least credible of Radulovich respondent, Judge (Radulovich, witnesses finding Maher). mis- to base a It therefore declined testimony. panel, The on her uncorroborated conduct respondent fairly credible, was contrast, found that testimony except regarding Judge Bronson’s for his argument. panel during further oral The statements Judge Maher credible. found panel expanded findings also on its The respondent’s Judge regarding gifts to Maher. It found directly influence, did not intend to indirectly, giving Judge him Maher’s decisions panel petitioner gifts. further determined that The prove allegations in count H. failed to Finally, panel expanded findings regard- on its parte Judge ing respondent’s communication with ex testimony panel rejected respondent’s Bronson. The Judge from the bench that Bronson stated respondent could serve the memo on him alone and parties. judges it the other It he would forward to testimony was found that incredible with his memo face, its was inconsistent associate’s testimony, Judge her clashed with testi- Gribbs’ mony, filing and conflicted with his firm’s established panel procedures. further observed that the Clerk The essentially Appeals, Dzierbicki, of the Court of Ronald if Bronson testified that he would have heard because it would have been had made the statement if that, found even Bronson unusual. occasionally him, counsel to send briefs to directed oppos- agreed to serve the brief on he would not have 253 Grievance Administrator ing panel finding counsel. The further noted that its parte that an ex communication had occurred was supported by respondent’s admission that he “was fol- lowing argu- instructions, his what he said at oral panel ment.” The remaining also reiterated its dismissal of the complaint.22 panel two counts The findings regarding concluded that its additional ex parte justified communication a different sanction—a suspension forty-five days. for

Respondent subsequently moved for this Court to panel hearing report strike the section of the discipline. requested addressed the level of He also stay panel’s of the order. peti-

In a 9, 1997, December order, we denied application appeal tioner’s for leave to because we persuaded questions presented were “not that the granting should be reviewed this Court.” In lieu of respondent’s application appeal either for leave to motion to strike, we remanded the case to the adb respondent’s arguments regarding consideration of discipline, except argument the increased for his hearing scope action exceeded the respondent’s application remand order. We denied respects. stayed and motion in all other We also imposition discipline until further order of the adb. hearing panel’s

On remand, adb affirmed the findings. additional It determined, however, that this Court’s “dismissal” of the Grievance Administrator’s application appeal precluded for leave to it from sus- pending respondent forty-five days. for more than The reprimand appropriate concluded that a was the adb sanction for misconduct. Two mem- 22 panel’s complete findings regarding count m are attached opinion appendix. to this as an Mich

Opinion the Court they explaining have that would dissented, bers panel. hearing affirmed applica- granted Administrator’s the Grievance We appeal. (1999). 1206 461 Mich for leave to tion THE MISCONDUCT SANCTION FOR B. APPROPRIATE challenge involves Administrator’s The Grievance respon- finding of on the basis of misconduct adb parte Judge We ordi- with Bronson. ex contact dent’s narily panel findings hearing and adb to deter- review evidentiary support proper exists on mine whether support findings. In re the whole record (1982); 483, 490; 326 NW2d 380 Grimes, Mich (On Administrator v McWhorter State Bar Grievance (1979). Rehearing), 278, 291; 284 NW2d 407 Mich respondent nor the Grievance Administrator Neither finding challenges misconduct adopted by panel nonethe- the adb. We conclude as supports finding ample the ADB less that evidence 1-102(A)(1), (5), (6), respondent DR DR violated 9.104(l)-(4) engaging 7-110(B), and MCR parte improper ex contact with Bronson. a matter conclude that the erred as We further adb determining appropriate when, sanction of law prior that our order misconduct, for the it concluded application denying for Administrator’s the Grievance precluded suspension longer appeal than leave to forty-five days. light error, and because the In of that guidance regard- benefit of our acted without the ing Standards, we remand this case to use of the Aba appropriate disci- for reconsideration of the adb pline misconduct. Grievance Administrator

1. HEARING PANEL AND ADB DECISIONS hearing panel repri- In its decision, initial respondent explained: manded for the misconduct. It persuaded that, instances, is also while in all [T]he ex-parte avoided, communication must be in this reprimanded only, instance should be for the following First, testimony (and reasons. indicates is not rebutted) that the memorandum submitted Bron- presented son discussed two cases that had been Respondent oral brought new, record. . . . he testified that pertinent Supreme panel’s Court cases to the attention at argument presumably oral presence opposing in the Further, counsel. the memorandum could not have had an impact Judges they Gribbs and Clements since had not they positions seen the memorandum and had taken on the case before memorandum the was delivered to Bronson. panel by The is troubled also the of the remoteness inci- complained by dent the of Grievance Administrator and the evidence,” transcript implicate dearth of “hard i.e. a to respondent. panel ex-parte The comes to its conclusion by Still, communication virtue of circumstantial evidence. panel ex-parte the that believes communication is not a triv- though imparted ial matter and no new information was

Judge Bronson, integ- such occurrence is harmful to the rity judicial process. of the panel, imposing reprimand, The in also considered respondent’s previously long unblemished record over a distinguished career.

[*] ^[*] In addition to the nature of the in misconduct established case, panel this has considered the factors identified as aggravating mitigating Bar American Association’s Imposing Lawyer Standards Sanctions. While it is true experience prac- has substantial in the 462 Mich

Opinion factor 9.22(f)], we do not find that this tice of law [Standard any aggravating in this case. On the significant effect has present in this case are: hand, mitigating factors other 9.32(a)]; disciplinary prior record Absence of a [Standard 9.32(b)]; motive or selfish Absence of a dishonest [Standard years between some passage much as and the of as .thirteen complaint filing charged of the formal and the of the events reprimand that a 9.32(i)]. conclude We therefore [Standard discipline in this case. which is warranted the maximum is decision: panel’s The affirmed the respondent’s panel conduct agree with the that the [W]e although no new information matter and was not a trivial Bronson, imparted such an occurrence is was judi- potentially harmful) integrity (or to the harmful panel’s process. However, concern we also share cial and the dearth of “hard remoteness of tire incident for the adopt panel’s support count and we evidence” of this substantially findings the misconduct this case is previously record mitigated unblemished career; a find- long distinguished the absence of over a motives and the ing acted out of dishonest or selfish that he years passage some of the events of as much as between complaint. agree filing We charged the formal discipline war- reprimand which is that a is the maximum case. ranted panel revisited remand, however,

On findings. issue in of its additional light the sanction the Grievance Administra- also considered Standard dis- that, 6.31(b),23 under Aba argument tor’s the miscon- appropriate is the sanction for barment appropriate generally 6.31(b) states that disbarment is Aba Standard juror judge lawyer parte with a or when a “makes an ex communication proceeding, and serious or the outcome of the causes with intent to affect potentially injury party, significant potentially or to a or causes serious legal proceeding significant the interference with the outcome of Grievance Administrator duct panel further recognized that Aba Standard 6.3224 suggests suspension that a appropriate is the sanction improper for some parte ex communica- tions. In this case, the forty- determined that a five-day suspension was appropriate discipline: upon We do not wish to dwell too much the actual or

potential injury party potential to a or the actual or effect Every proceeding. on the parte unlawful ex communication injurious on the integrity system merits is to legal seriously. and must be Nonetheless, taken the Standards do provide gradations. Here, we find it difficult to deter- mine any whether the memo was the cause of actual or potential injury or interference in the outcome. This is in part because the evidence indicates that Bronson may reassigned have prior the case to receiving himself Also, the memo. making power the decision is diffused in Appeals, the Court of Judges one of the three was lean- ing in post-oral Bronson’s direction at argument conference.

Additionally, we consider that the substance of the mem- presented open orandum had been in opposing court with present. counsel This does improper not excuse ex parte significance contact or diminish the of the fact that opposing given opportunity counsel was not respond in like arguments kind to However, therein. as com- pared parte to an ex communication which raises an entirely analysis presents new or a resolution of issues to which opposing privy, type counsel was not we find this communication system somewhat less harmful to the party aggrieved. We find that clearly the facts of this case fall more in sec- tion 6.32 of the Standards than in 6.31(b). section More- over Attorney Discipline cases in opinion cited Board’s Miller, Grievance Administrator v Sheldon L. ADB No “[s]uspension Aba generally Standard appropriate 6.32 states that is lawyer engages when a system legal communication with an individual lawyer when the improper, knows that such communication is injury potential injury party causes to a or causes interference or potential legal with proceeding.” interference the outcome of the Mich 235 462

258 Mason, So 2d v 334 (ADB 1991), and Florida Bar 90-134-GA suspension imposition rather support of a 1976), (Fla the 1 impose cited Miller Two of the cases than disbarment. parte including multiple an ex day suspensions offenses to conceal candid statements false or less than contact and may factors, mitigating we think that In the absence of it. circumstances. lenient under such be too suspension imposition of of a the have considered We proceedings. require reinstatement duration to sufficient particular cir- However, these we have determined parte the com- cumstances, the nature of ex which include proceedings, potential the to affect the and its munication incident, apparently and isolated time of remoteness a member respondent’s lengthy record as and unblemished days appropriate. suspension bar, of 45 is a of to consider remand from this On initially concluded that discipline, ADB increased applica- Administrator’s of the Grievance our denial suspending it from appeal precluded for leave to tion forty-five days. Considering than respondent for more decision, panel’s affirming of options period of not less than suspension to a reducing the respondent, thirty reprimanding days,25 adb reprimand prior decision to elected to adhere to its respondent. the basis for its determination: explained

The adb reprimand panel’s in June original order of Since the way Supreme made its to the this case has twice time. While the the Board second Court and is now before fully panel’s findings regard count 3 have been more with sharper respondent’s culpability brought explicated into changed fundamental focus, passage time has not pre- mitigation the substantial nature of that misconduct or viously recognized the board. We are una- 9.106(2). See MCR Administrator Grievance Opinion the Court respon- day suspension forty-five that a to conclude ble higher degree of provide significantly will license dent’s profession legal public, or the the courts protection to the attorneys. On the con- other a deterrent to as years suspension imposed twelve after trary, a short primarily, opinion, if not would, be in our misconduct punitive exclusively, in nature. worthy is of con- respondent’s misconduct We stress that bearing However, by profession. legal the demnation subject the ex-parte which is memorandum that the

mind early 1986 June Bronson was submitted to count 3 history case and of this considering the extended both intervening during the respondent’s unblemished record courts, public, years, that the we now conclude will be parties and their counsel profession, legal by bringing matter to close. this an order served CASE 2. LAW OF THE Administra- the Grievance prior denying order Our cross-appellant as appeal leave to application tor’s the level of increasing from preclude not did im- suspension forty-five-day beyond the discipline hearing panel. posed prior that our argument reject We applica- Administrator’s the Grievance denying order the law of constitutes appeal tion for leave appel- “if an doctrine, the case the law of case. Under question legal passed has on late court legal proceedings, case for further remanded court will appellate thus determined questions subsequent appeal on a differently determined be not materially remain where the facts case in the same Saginaw Twp, 410 Co v CAF Investment the same.” 260 462 Mich 235 454; 428, appellate Mich 302 NW2d 164 (1981).26 court’s decision likewise binds lower tribunals may because the tribunal not take on remand action that is with the judgment appellate inconsistent Nickoli, v court. Sokel 460, 465; 356 Mich 97 1 NW2d Thus, (1959). rule, as a general appellate court’s determination of an issue in a case binds lower tribu- appellate nals remand and the subsequent court in (After Webb v Smith Remand), Second appeals. App 203, Mich 209; see, 568 NW2d 378 (1997); gener- ally, 2d, Appellate 605, 5 Am Jur Review, p 300. §

Law only case applies, however, to issues actually decided, implicitly either or explicitly, in the prior appeal. Webb, supra v Roth 209; at Sawyer- Co, Cleator Lumber 8, 61 F3d 602 (CA In 1995). denying the Grievance Administrator’s application for leave to appeal case, expressed opinion we no on the merits. See Frishett v State Farm Mut Auto Co, mobile Ins 378 Mich (1966) cf. (order); Teague Lane, 288, 296; 489 US 1060; 109 S Ct L103 Ed 2d (1989) denial of a (the writ of certiorari imports expression opinion no on the merits of the case). Therefore, law the of the case doctrine does v apply.27 See Mirchandani United States, 836 not F2d 1223, (CA 9, 1225 1988). 26 primarily consistency The “doctrine exists to ‘maintain and avoid during single reconsideration of matters once decided the course of a con ” tinuing Evening Ass’n, 84, 109; lawsuit.’ Looricchio v News 438 Mich 476 Wright, (1991), quoting Cooper, NW2d 112 Procedure, &Miller Federal Practice & 4478, p premised finality judgment § 788. It a is on need for of jurisdiction appellate modify and the want except judgment of of court to its rehearing. White, 53; on v Johnson 430 Mich 420 NW2d 87 (1988). 27 erroneously analogizes Johnson, supra. dissent this case to n 26 Johnson, application appeal

In Court’s of this denial the for leave to cross application no had effect on the of the law of the case doctrine. Even if plaintiff applied appeal, the in Johnson had not leave for to cross law the Appeals of the case doctrine would have barred the Court of from revisit ing the issue remand because the Court had decided the issue in ini- its 261 Administrator Grievance con- free on remand to case, the was In this adb open by our man- any left and decide matters sider Quern v 440 Jordan, at cf. supra 465; Sokel, See date. L Ed 2d 1139; (1979). S Ct 18; n 332, 347, US of argu- case “for consideration in this We remanded concerning appropriate- the by respondent the ments discipline ordered the increased level of ness of exception arguments with hearing panel, the the of remand.” 456 scope exceeded the action the in all cases in which Thus, as (1997). Mich 1206-1207 discipline, the hearing panel a order it reviews adb nullify the order of amend, reverse, or “affirm, could or part in order other hearing panel whole or the erro- 9.118(D). Accordingly, discipline.” MCR precluded that our order it from neously concluded beyond forty- the discipline level of increasing the imposed by panel. the five-day suspension hearing BY THE IMPOSED ADB 3. REVIEW OF SANCTION us urges to increase The Grievance Administrator discipline imposed by respon- the level of ADB authority our under We invoke dent’s misconduct. only if change disciplinary order MCR 9.122(E) inappropriate. ADB is imposed sanction In case, however, at 297. Rostash, supra this adb erroneously prior limited that our order concluded have disciplinary options. Further, the did not adb materially the same. CAF Investment opinion remained and the facts tial appellate Co, supra case, contrast, tribu- at In this the intermediate 454. impose forty- adb, nal, hearing decision did not review suspension remanding five-day order this entered the before reprimand Moreover, initial extent adb’s decision to case. to the options rejecting suspension as could be construed revisiting preclude disbarment, the adb would from law of the case because, not panel’s findings light of the additional issues those materially sanction, different. Id. the facts are modification 462 Mich guidance regarding the benefit of our use of aba standards. We therefore remand case to the adb regarding of reconsideration its decision appropriate discipline light of level of the aba stan- may remand, On dards. ADB consider all sanction options, including disbarment. 6.31(b) Standards 6.32 discuss the circum- Aba involving

stances under which misconduct an ex parte judge suspen- communication with a warrants a sion or disbarment. course, The is not bound adb, panel’s application standards, of the particularly parte its assessment whether the ex com- injury potentially munication caused serious or seri- injury party, significant ous to a or caused interfer- potentially significant or ence interference with the legal proceeding. outcome of the areWe troubled hearing panel’s preliminary narrow focus on the voting of the decisions other members the Court of Appeals panel, regard without for the effect of a strongly proposed opinion reasoned on their decision join Judge opinion. whether to Bronson’s In addition potentially altering Appeals to the Court of decision, parte reasoning an ex communication that affects the opinion may injure party by of the also necessitat- ing expenditure of additional resources to obtain relief from this Court. should also consider the harm to the adb justice by respondent’s

administration of caused mis- Shaman, conduct. Lubet Alfini, & Judicial Conduct ed), (3d pp § and Ethics 5.01, 159-160, describes the dangers parte associated with ex communications: parte deprive party Ex communications the absent right respond They suggest partial- and be heard. bias or

ity part parte judge. on the Ex conversations cor- respondence misleading; can be given the information Administrator Grievance Opinion the inaccurate, problem “may incomplete or judge be very least, participation in incorrectly stated.” At the can be judge expose to one-sided will parte communications ex an risk of erro- carries the attendant which argumentation, worst, parte commu- At ex ruling on the law or facts. neous improper if out- influence not to is an invitation nication corruption. right

m. CONCLUSION adopt Today, an interim the aba standards we panels hearing to use and direct the and basis appropriate determining law- sanction for them in yer ADB we hold that case, In this misconduct. prevented prior erroneously order that our concluded beyond discipline increasing the level of it from by imposed suspension forty-five-day panel. for case to the ADB remand this We therefore appropri- regarding the of its decision reconsideration respondent’s misconduct. ate sanction JJ., Weaver, C.J., Young, Taylor, Markman, with J. concurred Corrigan,

APPENDIX TO JUDGE BRONSON SUBMISSION V. COUNT PARTE III: EX PROCEDURAL HISTORY. INTRODUCTION AND A. DEFENSE. RESPONDENT’S ALLEGATIONS AND 1. THE complaint alleges that m of the formal Count Hospital, Henry Ford Luszczynski v “in a case entitled 1986) in which Appeals 84686, (Decided No. Court of 462 Mich 235 Opinion op the Court Respondent represented plaintiff, following argu- oral appeal prior opinion ment on the to the issuance an court, Respondent Linkner, Farris directed Monica attorney employed by firm, prepare his law a draft opinion/memorandum regarding law Luszczyn- issues permitted memorandum, or ski and caused or informa- it, tion given communicated, contained within to be ex parte, Appeals Judge to the late Court of S. Jerome Bron- son, assigned opinion. who was to write the Portions of Ms. were, fact, incorporated Linkner’s memorandum into the Appeals opinion Court of authored Bronson. [For- Complaint, mal ¶ 15.]” alleged This was conduct 7 of violate Canon the then applicable Responsibility, Code of Professional 7- DR 110(B), and other rules. hearing, respondent At the Judge testified that Bronson respondent’s argument recently regarding truncated decided cases, saying “Submit a memorandum . . . I’ll see that proper parties get copy a of it.” report, In our we found: Lopatin copy “that Mr. a pre- caused of the memorandum pared by Linkner to be sent or otherwise communicated Judge proper opposing Bronson without notice to counsel panel [Report, pp and the other members. 14-15.]” imposed reprimand. We then a

2. REMAND. Supreme remanding Court’s order this matter states pertinent part: panel “The did not resolve the Judge issue of whether Bron- son, open court, directed Judge to deliver to Bronson the Linkner memorandum and whether that deliv- ery was copy to be made without of service a of the memo- opposing copy randum filing counsel with the remand, panel clerk of court. spe- On shall make findings what, anything, Judge Bronson said in cific of if Administrator Grievance Opinion of 1/28/97, emphasis pp 1-2; order of open court. [MSC added.]”

3. FINDINGS ON MISCONDUCT. PANEL respondent submit- original report we found In our Judge parte Bronson in viola- ex communication ted an exception 7-110(B) though it contains an DR even tion (Per- law.” authorized “otherwise for communications Admin- exception haps was the basis the Grievance what was that, Bronson had said concession if istrator’s disciplined not claimed, respondent should be [Tr then 1493-1494].) gave hint as resolution Rulings from the to our bench panel page chair conflicting 1533 the evidence. At

stated: responsibility finding Our was based on the Chair]: “[Panel it on other side and to serve to serve it on the of counsel Judge that. Bronson had said judges, whether not gave weight to the fact that neither we also “And saying that. remembered him nor Clements Gribbs they if that they have remembered both said would And the case.” were transcript, later, pages 1543-44 at A few moments following had the chair and counsel colloquy: your in rela- findings of fact But will we have Miller: “Mr. particular issue?

tion to that judge finding example, as to whether will there be “For said, it with me?” “Give me—File Bronson not said. that that was Wehave concluded Chair]: “[Panel already in the record. I think that’s And your ruling My understanding was that “Mr. Christensen: independent said, an if it that there was even was was that responsibility— 266 462 Mich 235

Opinion of (Interposing) 1533, That’s true also. “[Panel Chair]: [Tr emphasis 1543-1544; added.]” report apparent It is now to us that our could be viewed as: “(1) disagreeing legal with the Administrator’s conclusion statement, made, that Bronson’s if it had exon- been would respondent (Tr 1493-1494); erate “(2) that, finding respondent even if Bronson said what claimed, duty light provide in of the fundamental to notice your opponent reasonably interpret one could Bronson’s promise get parties” “proper the memo to the as includ- only ing staff, judges and opposing counsel; court and not “(3) rejection outright testimony of as to what said Bronson from the bench.” clarify rely independent nowWe that we on each these grounds finding for our that misconduct occurred. our After specific finding review of the evidence our Bron- by respondent, son did not make the remarks claimed we respondent suspended have determined that be should days. 45

B. GENERAL FINDINGS OF FACT. appeal Luszczynski Henry Hospital The Ford arose plaintiff out case which a case tried appeal, plaintiff received a no cause verdict. On claimed instructional judge. appeal error the trial The assigned up Judges was ato made Jerome Bronson (presiding), Lapeer (a Roman Gkibbs, and Martin Clements argued May Judge). Circuit The (Tr case was 1986 555 [Rathke]; exhibit (sic) o file which includes [Clement’s docket]). Respondent’s associate, Farris-Linkner, Monica assigned appellate was briefing (Tr to do the [Lopatin]; [Linkner]). Respondent Tr argument (Tr did the oral 467, 1243). opinion September, (Tr was released in 555; o). exhibit Lopatin Administrator v Grievance Opinion of the Court (Robert Rathke), Judge law clerk Bronson’s Clements, Appeals (Ronald Clerk of the Court of and the former procedure Dzierbicki) normal all testified as to the opinion-writing judges assigning The are listed on a duties. first, presiding call in some order such as docket or case by seniority. assigned were then and the next two The cases Rathke, judges Judge Mr. and the in rotation. Clements, clearly kept by Judge Judge establish that records Clements assigned write this random method to Clements was Luszczynski. judges post-oral argument At conference between impressions: panel, judges on the discussed their initial affirmance; Judges Judge Bronson leaned toward Clements way. testimony the other of Clements and Gribbs leaned (per- argument establishes that soon after oral and Rathke post-oral Judge haps argument conference) Bronson at the majority opin- that he draft the told would Clements Rathke, Judge Mr. Dzierbicki estab- ion. Mr. Clements, assigned writer to do the that the custom was for the lished up minority if he or she ended in the after first draft even Luszczynski only exception. Mr. the conference. was the if Bronson as Dzierbicki was asked he would characterize replied sought work, out extra and he “no” someone who (Tr 685). suicide, investigative After Bronson committed jury grand executing sub- task force was formed. While Attorney Kapelanski, poena, Michigan Gen- Dennis G. Office, Lopatin, found exhibits i and J Miller law eral’s (stipulation 1292-1293). at Tr office copy, original, a memorandum Exhibit I is an and J is a part: which reads “MEMO Albert “TO: Linkner

“FROM: Monica Luszczynski Henry Hospital Ford “RE: Edward way “Albert, you asked me to do on the back from oral as Luszczynski, gone argument again I over the have once argument reflecting have done some on oral briefs and really imagine that we would itself. It is difficult for me to 462 Mich appeal my thoughts lose this . . . Here are on each of the issues.”

[*] ^{[*] [*]} [Exhibits i and J.]

The memo continues in an informal tone and discusses presented appeal. two issues in the Exhibit K a Judge is memorandum written in Bronson’s (Tr 536, [Rathke]). Judge hand gave Bronson it to Mr. incorporate opinion. Rathke and told him to it into the This unique request. (Tr 536.) was a The Bronson memo contains many similarities (exhibits to the Linkner memo I & as j), directly well verbiage as some from the Linkner memo. For example, respective in their i,” discussions of “Issue both Moody memos Homes, Inc, refer to v Pulte 423 Mich 150 (1985), NW2d Supreme and state [378 that there 319] “emphasized mandatory requirement of GCR (now 516.1 2.56[A][4]) MCR requiring that the court [sic] attorneys shall proposed inform the of its action on the requests arguments i, jury.” before their (See to the exhibits J, K.8) At matter, Respondent in testified that he attempted Appeals to advise the Court of Luszczynski of two cases decided after Ms. Linker [sic] filed her brief:

“Q. you And did advise the court of those two cases? attempted I “A. Judge Bronson, to hand them to who was presiding judge. said, “At that time he ‘We can’t take the time to read it now. Submit regard a memorandum they to what stand ’ proper parties get and I’ll see copy that the it. [Tr for 468; emphasis added.]” pages transcript At 468-471 of the testified as follows: drops The Bronson right parenthesis, memo one “the” and one but quoted is language. otherwise identical to the Grievance Administrator requested by type Judge “(1) discussed the of memo he way argu- Bronson with Ms. Linkner on the back from oral prepare pursuant ‘he left it for her to a memo ment and to requested’ Judge (Tr 468); what Bronson had prepared “(2) the Linkner memo is the memorandum she pursuant Judge request Bronson’s and her conversation respondent (Tr 469); with “(3) . . he ‘looked at the memo . said it was fine’ [and]

(Tr 469); “(4) up get he ‘left it to her to it delivered’ or ‘could he delivery Appeals’ arranged (Tr have of it to the Court of 469); expected “(5) Judge he the memo to be delivered directly (Tr 470);

Bronson “(6) arrangements no were made to have the memo opposing Judge delivered to counsel because of Bronson’s (Tr 470).” instructions Neither CLEMENTS nor Gribbs had ever seen (exhibits J) (Tr 1159). the Linkner memo Mr. I & receiving anything Rathke had no recollection of from the parties (Tr 543). argument after oral It was not referenced Appeals’ Respondent (exhibit o). in the Court of Docket stipulate Judge his counsel that Bronson had the Linkner Respondent’s (Tr 1363). testimony memo is consistent with establishing all of the other evidence that he did not file a copy Judge of the memo with the Court clerk or serve it on Judge opposing counsel. Clements, Gribbs, “Q. any, arrangements, And what if would be made to opposing deliver it to counsel? ‘you that, get “A. There wasn’t. He indicated the memo to proper parties get copy me and I’ll see that the of same.’ “Q. And, . . . sir (Interposing) “A. That meant to me that whoever- was memo, got they entitled see he would see that it. And following instructions,

I was his what he said at oral argument. 470; emphasis [Tr added.]” testimony is This consistent with Ms. Linkner’s that she proof did not see a of service or transmittal letter in the file which would indicate that her memo was filed with the judges; court or served on counsel or she worked with the 462 Mich 235 quite argument, file a bit after oral because there was a costs, rehearing, application motion for a motion for and an Supreme (Tr 1257, 1259-1260; for leave to the exhibit [docket]). Judge When asked if he had called Bronson between the argument time Luszczynski panel of oral and the time the respondent opinion, issued its testified: “Not that I recall. I telephone” don’t think (Tr 473). I ever called him on the He did, however, Judge party run Judge into Bronson aat (Tr but he doesn’t know when that was Cooper, Jessica And, 473). Judge point he had lunch with Bronson at some Judge (Tr However, to discuss Bronson’s 474). reelection he But, did not know when that was. he “I testified: don’t think the case was him. before That case was not before him at (Tr 475.) that time.” respondent stepped stand, After Judge down from the clerk, Rathke, Bronson’s Robert was called. He testified phone message respondent he took from during the time actually drafting Luszczynski he was opinion,

thought amazing it (Tr 540, was “an 545). coincidence” Mr. Rathke also identified exhibit L containing Judge as handwriting (Tr 541). Bronson’s Exhibit L is a “month at a glance” calendar Judge for 1986. It was obtained “from widow”); scrap paper Bronson’s it contained a with respondent’s phone (stipulation number on it at Tr 1293- 1294). says, On June 1986 the calendar “12 noon—Albert for lunch.” After Mr. Rathke identified Bronson’s handwriting and the Administrator had moved onto exhibit (Judge o file), stipu- chair elicited some Clements’ proofs along, lations to move including stipulation from counsel that had lunch with during period.9 Bronson the relevant 9 Asto the lunch issue: things There are “[Panel here that I don’t think Chair]: are in dispute. obviously “We haven’t seen the two calendars have been my suggestion you compare referred to. But is that if those and you might talk agree. to counsel on the other side be able to Lopatin may “And Mr. has testified that he have had lunch once period during Judge twice this of time with Bronson. something stipulated “Is that that can be to? “Mr. Miller: Sure. Grievance Administrator

Opinion Judge file, Exhibit contains a memo from CLEMENTS’ O, 12, Judge Bronson, Judge dated June Clements Luszczynski. part: regarding The memo “Dear reads Marty, Enclosed is what I consider to be a careful and opinion reversing. effective draft of an ...” C. SPECIFIC FINDING JUDGE BRONSON NOT SAY THAT DID “SUBMIT SUPPLEMENTAL TO . . AND ME . MEMORANDUM] [A SEE PROPER OF PARTIES GET COPY I’LL THAT THE IT.” A carefully respondent’s testimony We considered have question whether made a statement Bronson from the bench to the effect that could serve a get him memorandum on alone and that he would it to the proper parties. Having so, reject done we this testi- must mony finding respondent engaged and reiterate our that improper parte ex communication. There are several factual elements to First, Respondent, we what is defense. note not at issue. closing argument remand, his and brief on contends that proof parte there is no of an ex communication because the opposing Administrator did not call as a witness in counsel reject proceedings. argument these We based on the testimony respondent: “Q. arrangements, any, And if what would be made to opposing deliver it to counsel? that, ‘you get “A. wasn’t. He There indicated the memo to proper parties copy get

me and I’ll see that the of same.’ “Q. . . . And sir (Interposing) “A. That meant to me that whoever was memo, they got

entitled to see the he would see that it. And Cunningham: “Mr. testimony I believe his was different. they’re “[Panel Chair]: Well, stipulate to it now. willing “My that there were at 462 Mich 235

Opinion of the Court following instructions, I was at his what he said oral argument. 470; emphasis added.]” [Tr Thus, parte the ex communication was established more than circumstantial evidence. It was established respondent’s admission—the admission which forms an part integral testimony, defense, parte that the ex open communication was authorized in court. respondent’s A critical element of defense or excuse is respondent Judge that understood Bronson’s statement Judge be authorization to file a document with Bronson only Judge would, among because Bronson stated that he things, respondent’s opponent. other serve it on Another set predicates believability of factual crucial to the and coher- respondent’s story ence of is that the Linkner memo was surreptitiously not knowledge submitted without her Judge Bronson, openly Judge but rather was submitted to pursuant Bronson to his directive—and as a result of a con- way argument versation on the back from oral in which respondent prepare told Ms. Linkner to the memo in accor- dance with Bronson’s instructions. said, We find that get Bronson never “You proper memo parties get copy to me and I’ll see same,” following for the reasons: respondent’s testimony 1. was incredible on its face. recognize judges idiosyncra- We and courts can have sending post-oral cies. We can argument understand brief directly panel.10 might accept to the We even the remote possibility presiding judge might say, that a “get it to me get panel” and I’ll (and, it to the depending on the circum- stances, might forgive lawyer we thought who filing original relieved However, her of with clerk). why any we cannot judge understand would under these responsibility circumstances assume the of service on opposing parties. lawyer any can we Nor understand how practice for than a more few months could believe he or responsibility. she was accept relieved of this We do not course, original Of would still have to be filed with the clerk. Grievance Administrator interpret notion that would a statement such as the one he claimed authorizing Bronson made as an ex parte submission. testimony 2. was inconsistent with testimony MS.linkner’s memo and her general In findings our on this count we summarize respondent’s testimony pages at 468-471 six numbered paragraphs. We restate the first four here: “(1) type requested discussed the of memo way Bronson with Linkner on the back from argu- oral prepare ment and ‘he left it pursuant for her to a memo Judge what requested’ Bronson had (Tr 468); “(2) the Linkner prepared memo is the memorandum she pursuant request to Bronson’s and her conversation with respondent (Tr 469); “(3) respondent ‘looked at the memo . . . said it [and] (Tr 469); was fine’ “(4) up he get ‘left it to her to it delivered’ or he ‘could arranged delivery have for Appeals’ of it to the Court of (Tr 469).” exception paragraph 4, With the these statements can- squared testimony—even not be with Linkner’s if one con- memory cedes part that some loss of on her would be normal. Ms. (1) appellate Linkner testified that: she did all of the briefing motion-writing Luszczynski, [sic] there were rehearing, motions for costs appeal as well as an Supreme Court; (2) to the probably she would have done supplemental one; brief if (3) Bronson had ordered she probably would have remembered if Bronson had ordered supplemental briefing; (4) if she had been asked to do a supplemental brief, it would not have been the form of respondent (exhibits her j); finally, memo to (5) I & she con- testimony firmed her May 1988—much closer to hearing—that than the why time of this she did not know respondent wanted that memo. testimony Much of Ms. strong Linkner’s is circumstantial say evidence that anything sup- Bronson didn’t about 462 Mich Opinion

plemental But, important briefs or memos. more is her une- quivocal testimony that if she- had been told to submit a judge court, memo for a or a it would not have been in the form of exhibit i/j. perfect And this makes sense. We cannot look at the any give respondent’s Linkner memo and credence to testi- mony prepared filing judge, it was with a court or okayed filing. Again, that he reviewed it and it for it is Lopatin, “To”Albert “From” Monica Linkner. It has the case name, caption but not in form and there isn’t a lower court Appeals anywhere. or Court of case number to be found It that, perspec- is clear from the content from Ms. Linkner’s tive, anywhere filing memo was never intended for except with, ques- in a cabinet. The any memo closed “If please

tions, name, advise. Monica.” There is no last no “p” address, phone number, no no number. It is not even signed. testimony judge gribbs’. clashed with say did that he didn’t remember much about Gribbs argument oral in the But thought case. he also said that he he would remember if Bronson said what is claimed. He highlighted procedures the usual and that such a statement departure. great important would be a Most are the follow- ing unequivocal statements: “(1) any he has never judge heard of the Court of Appeals litigant something direct to file serving without (Tr 1155); and, the other side “(2) he Judge has never heard Bronson instruct counsel supplemental directly to send Judge Bronson, briefs to as opposed filing to (Tr 1165-1166).” the usual method of TESTIMONY OF RONALD DZIERBICKI IS CITED 4. THE

OUT OF CONTEXT BY IN ANY RESPONDENT, AND, EVENT, DOES NOT OTHER CRITICAL EVIDENCE. EXPLAIN testified, essentially, Mr. Dzierbicki Judge that if Bronson respondent something had said like claimed it would have And, been so unusual that he would have heard about it. he imagine way. could not practicing counsel that Mr. Judge Dzierbicki occasionally testified that Bronson had “get get panel,” said it to me I’ll it to the but Dzierbicki Administrator Grievance Opinion by Cavanagh, J. opposing excusing on service of Bronson ever is unaware counsel. occasionally directed briefs to Judge if Bronson Even agreed him, he to serve do not believe that we come implausible any is Even more or other case. counsel (see brief memo was such a the Linkner

the claim that above). filing procedures. respondent’s 5. very regard- Respondent suggested he was hands-off that He tes- filing with Bronson.

ing the of this document people His elicited tified, do that.” counsel “we have who Jamieson, secretary, testimony Karen from just says specific respondent gives instructions. He no “file this.” proceeded in things had that if We have concluded ordinary course, original have been filed with the would judges copies gone have to the other Court and would any opposing In a firm of size cer- and to counsel. systems We filing would be established. conventions or tain given be a file clerk would feel it is safe to assume that original with the standing is filed instructions respondent Accordingly, or Ms. Linkner would have court.11 process filing direct the in the normal had to intervene copies memo (or mail) or more clerk to deliver one directly Bronson, else, no one which is and to happened.12 completely with the is inconsistent what This theory by respondent’s (see, e.g., Tr 1527- argued counsel

1528). dissenting (concurring part Cavanagh, J. part). adoption interim I concur in the Although secretary respondent’s theory presumes Indeed, that his clerk Otherwise, standing he would not instructions of some sort. have just say “file this.” be able to got to the no idea how the memo Linkner testified that she had Appeals (Tr 1262), did not but that she is certain she Court of arrange Bronson, and that of the memo on for service (Tr 1254). not instruct her to do so did Mich 235

Opinion by Cavanagh, J. disagree the ABA I with Court’s standards, decision that the erred when it that the concluded law of increasing respon- barred case doctrine it from discipline beyond forty-five-day suspension. dent’s a multiple proceedings already Because below have specific involved consideration of the governing aba standards reprimand, permanent suspension, and dis- yet remanding again, barment, rather than this case I hearing panel’s forty-five-day would reinstate the sus- pension eight year and terminate this and a half ordeal.

Initially, sequence key of events in this case is application to the of the law of case doctrine. began respondent charged This case when was with resulting repri- several misconduct, counts of in a panel. agc mand from an Both appealed and the Grievance Administrator to the adb, reprimand parties and the appealed Next, was affirmed. both Court,

to this and we remanded to the hear- ing panel specific jurisdic- retaining with instructions, hearing panel tion. On remand, believed that justified misconduct a harsher sanction, imposed forty-five-day suspension. par- so it Both appealed, again challenging panel’s ties several of the directing actions. This Court remanded to the it adb, respondent’s arguments discipline to consider inappropriate, parties’ appeals was and denied both appeals respects. and cross in all other On second argued remand, the Grievance Administrator respondent’s sanction increased, should be but the ADB believed that was law it barred of the case beyond increasing forty- doctrine from the sanction five-day suspension because this Court had denied appeal ques- the Grievance Administrator’s on that tion. Thus, the ADB entered an order that it believed finally would resolve this case. Grievance Administrator by Cavanagh,

Opinion J. majority erred, adb and that concludes that respondent’s increasing not barred from ADB was the discipline. denied leave on the Because this Court increasing question sanction, implicitly majority was not that the issue asserts explicitly law of the case doctrine decided, so the apply. was it concludes that the Thus, not does appropri- whatever sanction it believed free to order at 259-261. ate. Ante procedurally analogous this case,

However, does bar law the case doctrine held that the denied leave. In Johnson of issues reconsideration plaintiff (1988), NW2d87 White, 47; 430 Mich raising jury appealed action, no cause of verdict of testimony jury involving and instruc- admitted issues Appeals challenged that the Court of held tions. The testimony jury properly but admitted, was it vacated the verdict erroneous, were so instructions parties appealed, Both remanded for a new trial. plaintiff challenging issue, testimonial on the with challenging on the instructional and the defendant the Court of This Court remanded Johnson to issue. light Appeals issue in of a new on the instructional appeal plaintiff’s on the testi- decision, but the cross persuade issue was denied “for failure to monial by presented questions reviewed should be Appeals the Court of remand, Id. at 52. On Court.” upheld prior issue, the instructional its decision on additionally, the testimonial issue but, it revisited its earlier reversed decision. appealed more, once to this Court

Defendant jury agreed whether this Court consider importantly to the error, more was but instruction instant agreed the Court to consider whether case, we by Appeals revisiting issue. the testimonial erred by Appeals was barred held that the Court of Id. We 462 Mich Opinion by Cavanagh, J. the law of the case doctrine from the testi- revisiting monial issue on remand. In our in Johnson, decision we reasoned: appeal Where a higher appellate case is taken on ato

court, higher appellate the law of the case announced in the supersedes court appellate that set forth the intermediate Rulings appellate court, court. of the however, intermediate they remain the law of the case insofar as are not affected opinion higher reviewing court the lower CJS, 1964, p court’s determination. 5B § 574. bar, In denying the case at this Court’s order leave to appeal plaintiff’s appeal cross which concerned the [tes- timonial Appeals adjudi- left undisturbed the Court of issue] adjudications cations of those issues. Those are the law of subject the case and were not to further review Appeals Court of Accordingly, remand from this Court. Appeals the Court of decision as to these issues must be vacated. at [Id. 53.]

Thus, when this Court denied leave on one issue but remanded on another, the issue on which leave was denied could not be revisited on remand. if Further, the Court Appeals of had been allowed to reconsider the issues for which this already Court had denied leave, then the order denying leave would have been nullity. rendered a Id. at 54.

Like the Court of Appeals in Johnson, the ADB was barred in the instant case from reconsidering issues for which this Court denied leave.1 majority The offers that this Court did not decide the issue of increasing sanction because this Court denied leave, but, as we stated in Johnson, rulings of the intermediate court remain the law of the case provides attorney discipline The adb intermediate review in cases. See MCR 9.118. Grievance Administrator J. Opinion by Cavanagh, by they higher court’s action. when are unaffected necessary opinion issue, was not to foreclose An speaks through judg- “a court its orders and because opinions.” through The its Id. at 53. ments and not majority certainly that the denial of leave is correct but the issue of merits, was not a decision on the increasing by the sanction was decided ADB, leave, that decision became when this Court denied Kokosing Pipe final.2 Fitters Union Local No 392 v Co, 214, 218; 81 Ohio St 3d Inc, Construction jurisdic- (1998) (“where NE2d 515 this court refuses by following opinion of an a court tion the issuance opinion appeals, appeals’ of becomes the of court holding case”). the ADB Johnson, law of the As discipline beyond increasing free to reconsider was forty-five-day nullity suspension would render a denying order the Grievance Administra- this Court’s on the same tor leave issue. majority that this Court remanded also offers discipline, ADB

for consideration of the level so 9.118(D) under to order the disci- had discretion MCR pline appropriate. However, at 261. it believed Ante respon- specifically we remanded for consideration arguments concerning appropriateness dent’s discipline. Respondent the increased level of did not discipline, argue that he should receive increased so adb’s discretion was limited the remand order. 2 Additionally, any argument the decision did not become final partial There, this Court Johnson. because of the remand is undercut revisit the merits of the issue for which leave was denied. We did did not issue, only to refute the dissent’s contention offer a discussion of that but Appeals initial error was reason not to fol that case that the Court of the law of the case doctrine. We held that our denial of leave on the low partial further review of that issue. The remand did not issue foreclosed finality. Johnson, supra Error, 53-58; CJS, Appeal change at judgment appeal 849, p (“the the first does not § conclusiveness of depend upon judgment otherwise”). the character of the as final or 462 Mich 235 by Cavanagh, Opinion J.

Thus, under this Court’s decision Johnson v White, the it was ADB was correct that barred considering law of the case doctrine from respondent’s whether beyond sanction could be increased forty-five-day suspension. When we denied leave on issue, this adb’s decision became the law of the prior case, and if we it, now reconsidered our denial nullity. prolong Therefore, would' be rather than this yet case with another I remand, would reinstate the forty-five-day suspension bring lengthy ordeal to a conclusion. J.,

Kelly, Cavanagh, concurred with J. notes indicate once a fundraiser contacts; Cooper may period for Jessica have been of time. during you stipulate guys That’s that with little research can something that based on—and I’m here—Ms calendar to; two, assuming you they Bronson’s can on when or if had calendar, agree . . . lunch. 560-561.]” [Tr

Case Details

Case Name: Grievance Administrator v. Lopatin

Court Name: Michigan Supreme Court

Date Published: Jun 27, 2000

Citation: 612 N.W.2d 120

Docket Number: 113250, Calendar No. 9

Court Abbreviation: Mich.