The Michigan Supreme Court has released for comment a wholesale revision of the court rules pertaining to attorney misconduct.
ADM File 2006-38 is the result of a proposal from the Attorney Grievance Commission and input from the State Bar of Michigan. The Court notes that the proposal has been in the works for four years, and, in some instances, there are competing versions of the proposed changes.
The Attorney Grievance Commission submitted its proposal to the Court in 2006. The Court considered various provisions within the proposal, and before final review for purposes of publication, invited the State Bar of Michigan to convene a workgroup to review the proposal and submit preliminary feedback on it. The SBM did so, and the Court proceeded to final review of the proposal with the benefit of the input from both the AGC and the SBM. Thus, in several places there are alternative versions of language offered that reflect differing suggestions of the AGC and the SBM on a particular issue. In addition, the AGC submitted updated language in early 2010, some of which is reflected in the order.
The Court has provided some assistance for working through the 71-page proposal.
In addition to the order for publication, the Court is releasing two documents that may be helpful in understanding the proposed changes. One document is a jointly submitted AGC/SBM memo that describes the main points of difference in the proposals.
Another document is a three-column chart that compares the current rule with the AGC proposal and any alternative language recommended by the SBM. The Court’s order in several places varies from the language offered by either the AGC or SBM, and where it does so, the staff comment describes why the Court chose the language it did.
A significant proposed change to MCR 9.104 has placed the AGC and SBM at odds.
The AGC’s version, Alternative A, would expand the list of acts or omissions that would be considered misconduct and grounds for discipline. Under the AGC’s proposal, attorneys could not make an agreement or attempt to obtain an agreement that:
(a) the professional misconduct or the
terms of a settlement of a claim for professional misconduct shall not be reported to the administrator;
(b) the plaintiff shall withdraw a request for investigation or shall not cooperate with the investigation or prosecution of misconduct by the administrator; or
(c) the record of any civil action for professional misconduct shall be sealed from review by the administrator.
(B) It is also misconduct and a ground for discipline if, through multiple acts and omissions, a lawyer demonstrates the absence of fitness to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and counselor and as an officer of the court. MCR 9.103(A). This is misconduct for which discipline can be imposed for the protection of the public, the courts, and the legal profession. MCR 9.105. In proceedings brought under this subrule, prior acts and omissions of the lawyer are admissible.
The SBM’s proposal, Alternative B, does not include the AGC’s proposed changes and eliminates four grounds for discipline that exist in the current rule, for which there is no counterpart in the current Michigan Rules of Professional Conduct. Under the SBM’s proposal, the following acts or omission would be struck from MCR 9.104:
(1) conduct prejudicial to the proper administration of justice;
(2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach;
(3) conduct that is contrary to justice, ethics, honesty, or good morals; …
(5) conduct that violates a criminal law of a state or of the United States; …
The SBM’s Alternative B drew a strong rebuke from Justice Maura Corrigan, so much so that she would not even have published Alternative B for comment.
Under Alternative B, the State Bar would circumscribe the existing grounds for attorney discipline and impinge on the Judicial Tenure Commission’s ability to discipline judges. By contrast, the Attorney Grievance Commission’s cogent proposed amendment of MCR 9.104 (Alternative A) not only lacks the flaws of Alternative B, but it also maintains or in certain cases expands the existing grounds for discipline. Consequently, I support publishing Alternative A for public comment, but I oppose publishing Alternative B at this juncture. …
[T]he State Bar tends to ignore the practical effect of Alternative B – that is, Alternative B narrows significantly rather than maintains the existing grounds for discipline. For example, one ground for discipline under the current rule is “conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach.” MCR 9.104(A)(2).
The State Bar proposes deleting this ground for discipline although MRPC 8.4 has no parallel provision. I would not circumscribe the existing grounds for attorney discipline. Insofar as the State Bar supports such efforts, I think that its proposal offends the underlying purpose of disciplinary proceedings, which this Court enacted not “as punishment for wrongdoing, but for the protection of the public, the courts, and the legal profession.” MCR 9.105.
Want to weigh in on the proposal? The comment period closes March 1, 2011. Address your comments to the Supreme Court Clerk, Box 30052, Lansing, Mich. 48909 or e-mail the clerk at MSC_clerk@courts.mi.gov.