MSC announces appointments to AGC, ADB and state bar board of commissioners

The Michigan Supreme Court announced a number of appointments to the Attorney Grievance Commission, the prosecutorial arm of the state’s attorney discipline system, the Attorney Discipline Board, the discipline system’s adjudicative arm, and the State Bar of Michigan’s Board of Commissioners, which directs the state bar’s operations, including finance, public policy, member services, and strategic planning.

Appointed to the AGC:

Wanda M. Stokes of Lansing, attorney and division chief of the Michigan Attorney General Licensing and Regulation Division, is appointed to a term ending October 1, 2015.

Martha M. Snow of Northville, attorney and shareholder in the law firm of Xuereb Snow PC, is appointed for a term ending October 1, 2015.

Rozanne F. Sedler, L.M.S.W., A.C.S.W., of Southfield, a clinical social worker with Jewish Family Services in Oak Park, is reappointed to a term ending October 1, 2015.

David L. Porteous of Reed City, attorney and principal of the law firm of McCurdy Wotila & Porteous, PC, is appointed chairperson of the AGC for a term ending October 1, 2013.

Barbara B. Smith of Bloomfield Hills, attorney and principal of the law offices of Barbara B. Smith PLLC and Smith Mediation Center, is appointed vice-chairperson for a term ending October 1, 2013.

Appointed to the ADB:

Louann Van Der Wiele of Auburn Hills, vice president and associate general counsel in the Office of the General Counsel of Chrysler Group LLC, is appointed for a term ending October 1, 2015.

James M. Cameron, Jr. of Ann Arbor, attorney and member of the law firm of Dykema Gossett PLLC, is reappointed to a term ending October 1, 2015 and is reappointed vice-chairperson for a term ending October 1, 2013.

Dr. Sylvia P. Whitmer of West Bloomfield, who served as executive director of instruction K-12 for the Birmingham Public Schools from 1990 until her retirement in 2005, is reappointed to a term ending October 1, 2015.

Thomas G. Kienbaum of Birmingham, attorney and member of the law firm of Kienbaum, Opperwall, Hardy & Pelton, PLC, is reappointed chairperson for a term ending October 1, 2013.

Appointed to the Board of Commissioners

D. Randall Gilmer of Trenton, an associate in the law firm of McGraw Morris, P.C.

C. Thomas Ludden of Bloomfield Hills, partner in the law firm of Lipson, Neilson, Cole, Seltzer & Garin, PC.

Stephen J. Gobbo of Lansing, state cemetery commissioner and regulatory compliance division director for the bureau of commercial services, Michigan Department of Licensing and Regulatory Affairs.

All three appointees will serve as commissioners-at-large for three-year terms, effective on the adjournment of the outgoing board’s meeting this afternoon.

Also appointed as a commissioner-at-large was Charles S. Hegarty of Canton, member of the law firm of Bodman PLC. He will serve the remainder of the term of Jules B. Olsman of Berkley, president of the law firm of Olsman, Mueller, Wallace & MacKenzie, PC. Olsman was elected to the Board of Commissioners by State Bar members in June. Hegarty’s term will expire in September 2013.

– Information from the MSC’s Office of Public Information

ADB panel reprimands Baskin for misconduct

An Attorney Discipline Board hearing panel has issued an order of reprimand to high-profile attorney and Oakland University Trustee Henry Baskin after he admitted that he had a sexual relationship with a client while representing her in a divorce action.

Baskin represented the client from 1999 to 2004.

According to the panel’s report, Baskin admitted that his conduct violated Michigan Rule of Professional Conduct 1.7(b)(1), in that under the circumstances of the case, “a lawyer could not reasonably believe that the representation might not be adversely affected by the lawyer’s personal interests.”

Robert Edick, the Deputy Grievance Administrator presented the case to the hearing panel. Edick argued that Baskin should be suspended for his misconduct.

The hearing panel concluded that Baskin should have known better.

“Although there is no evidence of actual injury to the client, the potential for injury under these circumstances is clear to any lawyer, and certainly to someone with respondent’s experience,” the hearing panel wrote.

“Indeed, this experience caused this panel to consider imposing a suspension, but we have concluded that Standard 4.33 is applicable and that the imposition of a reprimand adequately serves to protect the public, the courts and the profession,” the panel concluded.

Baskin was assessed costs and fees totaling $2,468.

Update: Edick said the Attorney Grievance Commission has not made a decision whether to appeal the level of discipline imposed by the hearing panel. Any appeal would be heard first by the Attorney Discipline Board.

ADB adopts mailbox rule in reinstatement cases

For some time now, no one is quite sure how for long a time, when the Attorney Discipline Board would either grant or deny a suspended attorney’s petition for reinstatement, the form letter memorializing the decision included this stock language:

Effective Date of Panel Order. The order of the hearing panel becomes effective 21 days after the date of mailing of this notice unless a petition for review is filed by a party pursuant to MCR 9.118(A).

So, when reinstatement was granted, the petitioner would have to wait three weeks after the letter was mailed before resuming practice.

Conversely, if the reinstatement petition was denied, the three weeks would be tacked on to the one-year waiting period in MCR 9.123(0)(4) before a suspended or disbarred attorney could file another reinstatement petition.

Why should that be, asked an attorney whose reinstatement petition the ADB recently denied.

Good question, the ADB replied:

This statement in the Board’s form letter is not dispositive. It is not clear when this language was included nor does it appear to have been challenged in earlier cases. The instruction does not include a citation to an applicable provision in the Michigan Court Rules nor does it appear that such a policy has previously been considered or adopted by the Board.

So, the effective date should be when the hearing panel announces its ruling following the hearing on the reinstatement petition, the attorney argued.

Well, no, the ADB ruled:

With respect to petitioners request that the effective date should relate back to the panel’s ruling at the hearing on April 20, 2011, we are not persuaded that the Attorney Discipline Board or its hearing panel should deviate in this case from the long accepted principle that a tribunal speaks through its written orders and judgments, not through its oral pronouncements. See, for example, In Re Contempt of Henry, 282 Mich App 656, 678; 765 NW2d 44 (2009), citing Hall v Fortino, 158 Mich App 663,667; 405 NW2d 106 (1986).

In the instant case, the hearing panel was expeditious in the issuance of its written order and there can be no claim of undue delay in light of the issuance of the panel’s report on May 18, 2011, 28 days after the hearing.

So, when is the order effective? Here’s the ADB’s holding:

[U]nless specifically stated otherwise in the panel’s order, a hearing panel order granting or denying reinstatement is “effective” the date it is issued and mailed to the parties.”

Good call by the ADB.

ADB issues annual report

New files opened by the Attorney Discipline Board were up 21 percent in 2010 when compared to the previous year, according to the ADB’s recently released 2010 Annual Report.

The 142 new files opened by the ADB in 2010 compare to 117 new cases in 2009.

There were 77 formal complaints filed with the AGC following investigations by the Attorney Grievance Commission — a 15 percent increase from 2009.

Incompetence and neglect, criminal convictions and ignoring discipline orders accounted for most of the ADB’s activity. From the report:

As in prior years, conduct characterized by a lack of diligence, lack of competence and/or neglect of client matters was the single largest category of professional misconduct, accounting for 37% of the discipline orders issued in 2010.

These cases ranged from an attorney’s failure to provide competent or diligent representation on behalf of a single client to, in a few cases, complete abandonment of the attorney’s practice. In some cases in this category, the attorney’s neglect or mishandling of client matters was accompanied by additional misconduct including misrepresentations to the client about the status of the matter; a failure to return unearned fees; and/or failure to answer request(s) for investigation.

Twenty-four Michigan lawyers were disciplined in 2010 as the result of a criminal conviction. The seven felony convictions and 17 misdemeanor convictionsaccounted for 24% of the discipline orders issued in 2010. Nine lawyers were publicly disciplined in 2010 for a conviction of an alcohol related driving offense.

The third largest category of misconduct, accounting for 12% of all discipline orders in 2010, involved a lawyer’s failure to comply with a discipline order, including practicing law in violation of an order of suspension.

Other types of misconduct resulting in discipline in 2010 included improper handling of client funds, conflicts of interest and misrepresentation to a tribunal.

MSC announces appointments to jury instruction committee, AGC and ADB

Former Michigan Supreme Court Justice Patricia J. Boyle has been appointed to serve on the Committee on Model Civil Jury Instructions.

Boyle’s appointment, announced yesterday by the Michigan Supreme Court, will end Dec. 31, 2012.

Boyle, who served on the Supreme Court from 1983 through 1998, is of counsel to the law firm of Kienbaum, Opperwall, Hardy & Pelton, PLC, in its Birmingham office.

From 1978 to 1983, she served as a judge of the U.S. District Court for the Eastern District of Michigan. She was a judge of Detroit Recorder?s Court from 1976 to 1978.

The Committee on Model Civil Jury Instructions is comprised of attorneys and judges appointed by the Michigan Supreme Court. The committee is charged with ensuring that the Model Civil Jury Instructions are concise, understandable, conversational, unslanted, and not argumentative.

In other appointments:

• The MSC appointed Jeffrey T. Neilson and Charles S. Kennedy III as attorney members of the Attorney Grievance Commission for terms ending October 1, 2014. Pastor R.B. Ouelette was appointed as a layperson member of the Attorney Grievance Commission for a term ending October 1, 2014. Martha D. Moore was appointed chairperson of the commission and David L. Porteous was appointed vice-chairperson of the commission for terms ending October 1, 2012.

• Lawrence G. Campbell was appointed as an attorney member and Dulce M. Fuller was appointed as a layperson member of the Attorney Discipline Board for terms expiring October 1, 2014. Carl E. Ver Beek and Craig H. Lubben were reappointed as attorney members of the Attorney Discipline Board for second full terms expiring October 1, 2014. Thomas G. Kienbaum was appointed chairperson of the board and James M. Cameron was appointed vice-chairperson of the board for terms ending October 1, 2012.

Information from the Michigan Supreme Court.

Three reappointed to ADB

The Michigan Supreme Court has reappointed three members to the Attorney Discipline Board.

• William J. Danhof of Lansing, attorney and principal in the law firm of Miller, Canfield, Paddock and Stone, PLC. Danhof is reappointed as the ADB’s chair for a term ending Oct. 1, 2011.
• ADB vice-chair Thomas G. Kienbaum of Birmingham, attorney and member of the law firm of Kienbaum, Opperwall, Hardy & Pelton, PLC. Kienbaum is reappointed to a second full term as a member of the ADB for a term ending Oct. 1, 2013. He is also reappointed vice-chairperson for a term ending Oct. 1, 2011.
• ADB member Rosalind E. Griffin, M.D., of Farmington Hills, psychiatrist and assistant professor at the Wayne State University School of Medicine. Griffin is appointed to a first full term as a member of the ADB for a term ending Oct. 1, 2013.

The ADB appoints three-attorney panels, composed of volunteers, which hear attorney misconduct matters and recommend sanctions against attorneys who violate ethics rules. The ADB also may review a hearing panel’s decision and can affirm or alter the level of discipline.

The ADB consists of six attorneys and three non-attorneys appointed by the Michigan Supreme Court; the appointees serve on a volunteer basis.

ADB’s dismissal of alcohol-related reprimand upheld

The Michigan Supreme Court has refused to review the Attorney Discipline Board’s decision to vacate a hearing panel’s reprimand, with conditions, of Dianne L. Baker, who pleaded guilty to driving while visibly impaired and faced the discipline process as a result.

As reported in our Feb. 22 issue, the Attorney Grievance Commission wanted to put Baker through the wringer. The AGC offered to back off if Baker agreed to contractual probation, which required Baker to swear off alcohol, attend counseling or submit to alcohol monitoring, and to file quarterly progress reports.

The AGC wanted all of this because it perceived that Baker had a drinking problem and was not doing anything about it. Baker declined the offer and told the AGC to prove its case.

A hearing panel agreed with the AGC’s assessment and issued a reprimand that contained substantially the same conditions Baker rejected when she turned down the contractual probation offer.

On review, the Attorney Discipline Board said the evidence just didn’t add up against Baker and vacated the reprimand. The ADB pointed to Baker’s negative alcohol tests, the hearing panel’s adverse determination of Baker’s credibility without citing any supporting evidence and Baker’s voluntary counseling sessions.

What’s more, said the ADB in its opinion:

Even if the record indicates what could be deemed excessive alcohol consumption at certain points in [Baker’s] life, we must also consider the evidence of [her] voluntary cessation or reduction of alcohol use during most periods of her life, which include consistent employment in responsible positions, childbirth and child-rearing years, and graduation cum laude from law school while working.

There’s no justification for Baker to be involved with the discipline process, the ADB said.

[W]e find clear evidence that respondent drove while impaired by alcohol on one occasion. This criminal conduct was appropriately dealt with by the district court.

The other evidence marshaled fails to demonstrate the existence of a problem for the attorney discipline system to address.

Late last month, a four-justice majority denied the AGC’s application for leave to appeal. Justices Maura D. Corrigan and Robert P. Young Jr. would have granted leave.

Justice Elizabeth A. Weaver sat this one out, explaining:

I abstain from voting on any items dealing with the Judicial Tenure Commission (JTC) and/or the Attorney Grievance Commission (AGC) to avoid any appearance that I could be trying to affect the outcome of the referrals of me to the JTC and AGC by Justices Corrigan, Young and Markman.

See, The Michigan Lawyer, “Weaver, Corrigan, Young and Markman: Supreme Court potboiler,” for more about this topic.

Corrigan rebukes MSC colleagues for not reviewing ADB decision

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.

ADB hearing for another Kilpatrick text-message lawyer

It’s Wilson Copeland’s turn on the Attorney Discipline Board hot seat.

Copeland was one of several attorneys defending the city of Detroit in a whistleblower suit by two cops that lead to an $8.4 million settlement.

The deal was designed to keep private the now very public series of text messages that forced former Detroit Mayor Kwame Kilpatrick from office and into a short stint in the slammer.

According to The Detroit News

Hearings already have been completed for Michael Stefani, the lawyer who represented the whistleblower cops, and Samuel McCargo, a private practice lawyer hired by the city to represent then-Mayor Kilpatrick. Hearings for John E. Johnson, former head of the city’s legal department, and his assistant, current Deputy Corporation Counsel Valerie Colbert-Osamuede, have yet to be scheduled. …

The lawyers are accused of striking the secret deal instead of notifying the judge who oversaw the lawsuit that the messages had been obtained after the trial was completed in September of 2007 and jurors found in favor of the police officers.

The five also were accused of criminal wrongdoing for failing to notify authorities that the messages Stefani discovered made them aware of lies Kilpatrick and his former Chief of Staff Christine Beatty told on the witness stand to cover up their extra-marital affair. However, Wayne County Prosecutor Kym Worthy has declined to press criminal charges, choosing instead to await the outcome of the attorney grievance process.

In ADB testimony yesterday, Copeland said that he never saw the text messages until The Detroit Free Press published excerpts that established Kilpatrick and Beatty’s perjury.

Attorney suspended over clients’ sex allegations

The Detroit News is reporting:

The Attorney Discipline Board has suspended an 83-year-old attorney after he allegedly asked his female clients to work off their legal fees by performing sex acts on his “couch of restitution.”

The board suspended the St. Clair Shores attorney, Murdoch Hertzog, for 180 days on Nov. 23 after three former clients testified he told them he would forgive or discount their legal bills if they engaged in the acts.

Hertzog denied the allegations in an interview Tuesday, saying the clients made up the stories. He cited his age and lack of sexual vigor as evidence the allegations are absurd.