The Michigan Supreme Court has let stand the Attorney Discipline Board’s decision to not discipline Sheldon Miller for alleged violations of the Michigan Rules of Professional Conduct based on conduct occurring in 1984 and 1985.
During that time, Miller represented a number of plaintiffs who were current and former Automobile Club of Michigan (AAA) employees. They claimed AAA improperly changed their sales commission system. Miller, while representing a large group of these plaintiffs, took on four additional clients who had wrongful discharge and commission claims against AAA.
An Attorney Grievance Commission hearing panel determined that Miller violated MRPC 1.4(b) by not bringing the new clients up to date on developments in the larger group litigation.
Specifically, although acting with good faith and arguably with the clients’ best interests in mind, Respondent had the obligation of explaining in detail the ramifications of participating in a “large group” action versus initiating their actions independent of the group. In addition, Respondent had the obligation to advise his clients, prior to joining them in the group action, of the adverse ruling of Judge Hausner immediately prior to joining the group. By failing to provide that information, the new clients were deprived of the opportunity to file an independent action which likely would have been assigned to a different Judge where a different ruling on the dismissed legal issues might have occurred.
The ADB ruled last October that Miller couldn’t have violated MRPC 1.4(a)
for the simple and inescapable reason that MRPC 1.4(a) and, indeed, the entire Michigan Rules of Professional Conduct, were not adopted by the Supreme Court until Oct. 1, 1988.
Respondent has presented a simple argument on review: respondent cannot be disciplined for violating MRPC 1.4(b) for conduct which occurred prior to 1988 because MRPC 1.4(b) did not exist when the conduct occurred.
Moreover, unlike other provisions in the Rules of Professional Conduct adopted in 1988 which are substantially similar to the corresponding provisions of the former Code of Professional Responsibility, MRPC 1.4(b) did not have a counterpart in the pre-1988 Code dealing specifically with a duty to provide adequate communication to a client.
It is argued that although an explicit duty of adequate communication with a client was not present in the pre-1988 Code of Professional Responsibility, such a duty was considered to be an element of a lawyer’s duty to represent a client competently under Canon 6 and the duty to represent a client zealously under Canon 7 of the Code.
However, this argument is unavailing in this case because violations under those Canons were not charged.
The Grievance Administrator appealed. On a 3-3 vote, with Justice Robert Young, a former AAA employee himself, not participating, the MSC declined to review the ADB’s decision.
Chief Justice Marilyn Kelly and Justices Michael Cavanagh and Diane Hathway voted, without comment, to deny leave.
Justice Elizabeth Weaver voted, without comment, to grant leave to appeal.
Justice Maura Corrigan, joined by Justice Stephen Markman, dissented from the majority vote. She, however, had some comments, and she minced no words:
Despite the three-member panel’s unanimous determination that Miller’s conduct warrants disciplinary action and the Grievance Administrator’s persuasive argument that Miller committed serious misconduct, this Court cannot muster a majority in favor of reviewing the ADB’s decision to vacate the panel’s order of reprimand.
In so doing, this Court allows Miller’s major ethical failures to escape punishment. Because serious misconduct apparently occurred, I would grant the applications for leave to appeal. …
This Court does complainants, the hearing panel, and the public a major disservice by failing to review this matter further and allowing Miller to escape without any sanction.
The record reveals that Miller failed to inform the complainants of the earlier adverse ruling because he believed it was not important to do so. Miller unquestionably prioritized the seven percent commission claim over the wrongful discharge claim. Complainants maintain that Miller knew that they were more concerned about pursuing their wrongful discharge claims. Complainants believed for years that Miller was pursuing their wrongful discharge claims when those claims had been stayed.
Miller gave inconsistent answers in response to his clients’ repeated requests for information about the lawsuit. Indeed, Miller apparently forgot that the lawsuit ever included wrongful discharge claims. After listening to hours of testimony and posing questions to the witnesses, the hearing panel concluded that Miller’s conduct warranted a reprimand.
The ADB’s decision to vacate the panel’s order of reprimand is highly questionable because an attorney’s duty to communicate with clients clearly existed before MRPC 1.4(b) was enacted in 1988. In dismissing on this ground, the ADB erroneously relied on criminal procedure standards instead of notice standards governing civil cases.
Moreover, the record warrants this Court’s plenary consideration of the Grievance Administrator’s allegations that Miller’s post-1988 conduct violated MRPC 1.4(b) and additional provisions of the Michigan Rules of Professional Responsibility.