*1 624 Mich BAR MICHIGAN v. LAVAN STATE OF

Opinion — Suspension — Attorney Mis- and Disbarment 1. Client — Appeal — Discipline — Beview. De Novo and Error conduct Michigan evidentiary record, the novo Upon de review attorney found of an that the misconduct Supreme finds Court sitting en banc in panel judges of three by a circuit court attorney fully substantiated discipline proceedings judgment substitute the no cause to record and finds discipline for of Supreme appropriate Court of of Michigan Bar of Special Grievance Committee panel judges. of circuit op Attorney Discipline Concern —Beimburse- —Public 2. Costs — op Expenses. ment judgment specially of a appeal from the costs are awarded No judges sitting en panel of three court circuit constituted expenses band, for reimbursement court order as the circuit the Bar of member of and review is sufficient public is a matter of concern.

Dissenting Kavanagh, T. J. G. Suspension Attorney — and Disbarment —(cid:127)Beim- and Client

3. EXPENSES-JUSTICES OP THE PEACE. OP BURSEMENT only attorney and directed that he reim- An should censured Michigan disciplinary Bar burse the its proceedings altogether against him his actions did not suspension amount to misconduct or warrant license practice year law and until the for one. further ^[3] ^[1] ^[2] 7 Am Jur 7 Am Jur 5 Am Jur BEFERENCES FOR POINTS 2d, Attorneys 2d, Attorneys 2d, Appeal and Error at Law at Law 26-31. § § §§ 1009. 12 IN et HEADNOTES seq. oe Lavan v. court, proof public damages absent loss to the to in- dividuals, only where record established that he failed *2 statutory comply booTcheepingrequirements with pre- delivering scribed manner the records his of of office of justice peace the to (MGLA his successor in that §§ of office 600.7925, 774.26c, 774.48). Appeal Livingston, X. John from Theiler, James Kelley, P. and James J. Churchill, Jr., JJ., and Appeals prior from Court of to decision. Sub- (No. 9, mitted October 1970. 18 October Term 1970, 52,623.) May Docket No. 3, Decided 1971. proceedings Disciplinary against Martin Patrick suspending Brian Lavan. Order entered defendant practicing year from law in this for state one and requiring until the further of the court and defendant the Bar to reimburse State of proceedings. incurred reason of the appealed Appeals. Defendant to of the Court The Michigan cross-appealed Bar of to the Court Appeals petitioned Supreme of and the Court for prior appeal leave to to decision the of Court Appeals. granted. Affirmed. Leave Youngjohn Eugene

Chris LaBelle, M. and N. Michigan. the Bar (&Mulcahy (Stanley counsel), Beattie, Lissa E. for defendant.

T. E. Brennan, 18, J. Ar- 1968, On November mand D. then Kunz, State Grievance Administrator Michigan, of the Bar of a formal filed com- plaint against Martin B. the State P. respondent. Lavan, the complaint alleged respondent

The is an attor- that ney, duly practice this on licensed law state respondent 1965, December had 24, and City peace justice for the of the office of held the April County Brighton Livingston 12, from January 5, 1967. on or about 1965, until during alleged complaint that, further The attorney respondent at law ah was both time that peace, justice he committed acts of the discipline. professional warranting January of from claimed that It also complaint, continuing formal the date until respondent violated certain statutes had duty respecting his successor his turn over state money which he had files, all records in office peace. possession justice having joined between The thus issue respondent, referred, matter was Bar and grievance applicable rules, to court under the *3 designated “Special Commit- Grievance committee, tee No. 10.” griev- hearings the held before

Extensive were of seven members committee, ance which consisted of its committee filed 20, On the 1969, the Bar. June respond- report. the The committee concluded that guilty statutes, of had of violation several ent peace. justice attorney of both as an and a the as constituted that these acts The committee concluded by member a and actions committed were proper contrary prejudicial of the of to and the Bar justice, of that the actions administration respondent and justice, contrary and ethics had been exposed legal profession honesty the and and contempt, reproach. obloquy, and censure courts to Special report Com- Grievance The certified of recommenda- No. 10 with these mittee concluded tions : practice of Re- law in this state “1. The license to suspended

spondent, Lavan, Martin P. B. be period until year be reinstated of one that he not and Michigan Bar oe v. Lavan fully such completely time he has and demon- eligible strated to the Court that he is for reinstate- provisions

ment under the of Bule 14, Section 3 of Supreme Concerning Court Rules the State Bar Michigan. of Respondent, required Martin P. B. be Lavan, “2. pay order of Court to to the Michigan being the sum $4,177.87 Bar of the State in connection with the hearing of this matter.” Upon certification Bar Commissioner congressional report for the second district, the committee was filed the circuit court Liv- ingston County. Pursuant rule, to court the circuit judge directing issued an order to cause, show respondent appear day July, on the 15th why report and show cause the certified should not approved, adopted, why confirmed an order for should not be entered as recom- mended therein. practice, panel

In accordance with the former judges assigned of three circuit to hear mat- upon ter the return of the show cause. arguments Briefs were filed, and oral heard. August three-judge panel On 28, 1969,the filed its opinion containing and order, an exhaustive review grievance the record made before the committee, concluding as follows:

“Decision *4 foregoing development, “In the we set forth have opinion findings our that certain of the Committee supported by were the record and in in- that some stances the matters so misconduct. found established opinion “It is further our that the misconduct was requires disciplining of such nature that it Respondent. sep- As to the failure to maintain a pub- commingling of resulted in account which arate this is a serious matter. own, lic monies with his clearly establishes that this resulted The record may in such manner that he his use of the account private purposes. using public have monies been charged or but his established, This is not conduct very easily defalcation could was such that serious argued his is have occurred. On neither behalf it that private public nor the suffered individuals any loss. We do not know whether this is true. Respondent If it because true, however, was not complied statutory provision awith that would have assured that if there be no such loss its re- quirements had been met. the fact Moreover, having there been loss would not disestablish misconduct, but rather be considered in should determining discipline. extent failed to that he turn established

“It was further properly As a result office. the records over speculation there were to whether occurred as charged Again, improprieties. were none serious proper procedures followed, found, or had but, speculation would not have for such the occasion been present. account failure to “There has been established public Again, properly monies. the Committee charge findings resulted this made no persons. private public or But the loss to failure procedures again properly follow raised improprieties. specter such required, “Having is determined that suspen- two: recommended the rule our alternatives to restricts sion or disbarment. The former is The latter was rec- the Grievance Committee. Attorney we In for the State Bar. ommended have more latitude examin- consideration, this ing again are misconduct, as to we record, but charged and limited to consideration of that found by the Committee. (Rule gives following

“The Rule us the criteria: 16) 15, Sec. *5 Bar oe Lavan v.

“ fixing degree discipline ‘In of of the court shall reported misconduct, consider seriousness discipline shall a measure administer as necessary protection public, for the of the the courts legal profession, punishment as not wrongdoing.’ findings of the Com- that those are “We satisfied supported do not the record which were mittee justify Respondent’s rather disbarment, but purpose be will served rule-stated suspension of his license. “Disciplinary Order “Respondent’s practice law in this state license period hereby suspended one for a minimum is year Court, further of the with and until the permitted only reinstatement compliance after thereafter to provisions of the rule. “Expenses provision are also to make “We mandated expenses reimbursement to the State Bar for its (Rule proceedings. incurred these Subsec- 32) Respondent objects tion all of that not expenses charges being resulted established and expense proceedings that considerable of the of the went to matters not established misconduct. The line cannot be drawn that fine. The brush used perhaps ordinary was broad, broader than circum- stances would have find, however, dictated. We proceedings. abuse these The submitted list of just. is determined to be requires requires “The rule more. It us to make provisions Unfortunately, for this reimbursement. knowledge required we are limited in our for the performance duty. example, of this For our knowl- Respondent’s present resources are edge only speculate limited, and we can toas his future Certainly inability prac- financial condition. 384 seriously ability profession affect Ms would tice Ms pay. Expenses For “Order *6 Respondent make “It is ordered that reimburse- sum of to the State Bar of $4,177.87 ment Michigan beginning year, at the rate of each $500.00 provided, of this that either order, as of the date Respondent may petition the 44th Bar or the regularly is con- Court, Judicial Circuit it to increase stituted, relief, for additional either or payments to but not to cancel the facts then warrant, decrease as the obligation. In the event Re- spondent petitions for additional reinstatement, supplemental by provisions may or substitute be made making disposition petition. of such

(s) X. Theiler John Circuit Judge (s) P. Churchill James Judge Circuit Kelley, (s) J. Judge” Jr. James Circuit permitted By-pass appeal to this Court granting 1969. on November leave following Respondent issues: raises

“I by Respondent (1) Agreement made “Did him certain as he turned over successor, and other records, files books, Justice of the Peace papers, (2) Agreement Re- asserted and spondent con- to have made with his successor been cerning costs, fines, transmittal of bond monies and (3) by Respondent of his Justice and the use made taking of the Peace account in therein bank disbursing private public funds, thereout both further, constitute misconduct misconduct war- and, Layan v. Bar suspension of twelve months ranting $4,177.87 costs? imposition

“II some Judges ruling that, the Circuit err “Did they had alterna- having found, disbar? suspend other than tive

“Ill that all Judges ruling “Did Circuit err the State Committee costs incurred before ($4,177.87) repaid by Respondent-Appel- should the fact that these costs were large lant, despite which incurred in reference to charges part Bar either failed to or which the prove dismissed?” Judges Circuit These three issues are addressed to essentially *7 committee fact-finding process grievance the at the made and the review de novo the record level, upon the three circuit the by panel judges upon to show cause. for an scrupulous

It is concern fairness accused brother at Bar which has lead this the Court to embark de novo review of upon second in the record evidentiary proceedings. these there no Having so, done is occasion us to in detail the evidence our reports.

The the found circuit court panel en banc sitting was substantiated the record. fully No serious to those was made challenge findings In the or submitted here. arguments fact, briefs no serious with the of those find- dispute essentials can found in ings testimony respondent himself.

More asked to we have been sub- importantly, stitute our judgment discipline of appropriate 384 Dissenting Opinion by T. G. Kavanagh, J. recommending that ing panel. committee and the hear- judgment find to do so. The We canse specially Livingston constituted circuit court for County affirmed. is No costs shall be awarded being this Court, the view that the expenses order below for reimbursement of suffi- is cient, and that review of aof member of public the Bar is a matter of concern. T. M. Kavanagh, J., C. J., concurred Adams, E. T. J. Brennan, (dissenting). T. G-. J. The record Kavanagh, only

this matter establishes the fact that the re spondent comply bookkeeping failed to with the requirements prescribed of the statute, delivering manner of justice the records of his office of peace to his successor in that office2 agree proofs beyond per-

I that establish respondent negligent adventure imprudent that he made serious mistakes judgment, but I cannot subscribe to conclusion altogether that or warrant the his actions amounted to misconduct

penalty imposed. proof public damages Absent loss to respond- I individuals, would therefore, censure the only ent and direct that he reimburse the for its in this matter. and Swainson and Williams, JJ., did not Black

sit in case. this *8 1 (Stat ).— MOLA Supp 774.26c Cum Ann 1971 § § 28.1218[3] Reporter. (Stat MOLA 600.7925 27A.7925); Ann Rev MCLA § § (Stat 774.48 Supp Ann Cum 28.1237[3]).—Reporter. § §