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

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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.

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.

MSC considering revamp of discipline rules

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.

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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.

MSC adopts new trust accounts rule

Banks providing Interest on Lawyer Trust Accounts (IOLTA) and other trust accounts must notify the Attorney Grievance Commission and the account holder of any overdrafts under a new rule adopted by the Michigan Supreme Court.

Rule 1.15A of the Michigan Rules of Professional Conduct will require lawyers to keep trust accounts only in financial institutions that have agreed in writing to provide the overdraft notices.

The rule, issued Dec. 15, becomes effective “nine months after entry of this order by the Court.”

The State Bar of Michigan will establish guidelines for financial institutions to obtain “approved status.”

Responding to cost concerns from the banking industry, the rule permits financial institutions to assess attorneys the reasonable costs of providing the notices

but those costs may not be charged against principal, nor against interest or dividends earned on trust accounts, including earnings on IOLTA accounts payable to the Michigan State Bar Foundation under Rule 1.15. Such costs, if charged, shall not be borne by clients.

Rule 1.15A allows the Grievance Administrator to initiate a request for investigation and gives lawyers 21 days to explain the cause of the overdraft and how it was corrected.