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.

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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.

Stefani misconduct hearing to end today

“Today is expected to mark the conclusion of the professional misconduct hearing for Mike Stefani, the attorney who wrested an $8.4 million settlement from Detroit in the police whistleblower cases,” reports the Detroit Free Press.

“Stefani is accused of breaching his ethical duties by, among other things, violating Callahan’s order by telling a communications company to send copies of damaging text messages involving then-Detroit Mayor Kwame Kilpatrick and his chief aide Christine Beatty to Stefani’s office, rather than sending them directly to the judge.”

Charges against ex-prosecutor Gorcyca reinstated

A state attorney discipline board has reinstated professional misconduct charges against former Oakland County Prosecutor David Gorcyca over alleged prejudicial remarks made in a case concerning an Oak Park kindergarten teacher charged with sexually assaulting two students,” reports The Detroit News.

“A three-lawyer panel dismissed the misconduct charges earlier this year on a 2-1 vote, based on a legal motion filed by Gorcyca’s attorney, David DuMouchel.”

Whistle-blower attorney avoids perjury rap

“Police whistle-blower attorney Mike Stefani will not face an additional misconduct charge of perjury — at least for now, the state’s Attorney Discipline Board ruled (Monday) morning,” reported the Detroit Free Press.

“The board rejected a request by a legal ethics prosecutor to add the charge after Stefani testified earlier this month that he gave a copy of damaging text messages involving former Detroit Mayor Kwame Kilpatrick to the Free Press in October 2007.

“That testimony, at Stefani’s misconduct hearing on other charges, contradicted earlier sworn testimony Stefani had given, according to prosecutor Robert Edick of the state Attorney Grievance Commission.”

New charges sought over lawyer’s role in Kilpatrick scandal

“An ethics prosecutor Monday asked the state Attorney Discipline Board to expand charges against the lawyer who obtained and then handed copies of former Mayor Kwame Kilpatrick’s text messages to a reporter,” reports the Detroit News.

“Michael Stefani, who represented police officers in a whistle-blower lawsuit against Kilpatrick, confessed under oath Oct. 8 that he was the Detroit Free Press’ long-secret source of the infamous text messages.

“Stefani already was facing professional misconduct charges, and was being questioned at a hearing that could result in the loss of his law license. An Attorney Grievance Commission lawyer acting as a prosecutor in ethics allegations pending against Stefani asked Monday for additional professional misconduct charges, including on allegations that Stefani lied several times under oath.”