After second look, Markman grants disqualification in criminal case

Robert Winburn was convicted of murder in 1990 and his appeal bubbled its way up to the Michigan Supreme Court.

Winburn filed a motion under MCR 2.003, seeking to have Justice Stephen J. Markman disqualify himself from the case. Winburn alleged the 1990 conviction had “overlapping facts” with a federal investigation by the Bureau of Alcohol, Tobacco, and Firearms of narcotics trafficking in which Winburn was allegedly involved.

Winburn says that in 1992, then-federal prosecutor Markman reviewed the ATF investigation and declined to press charges.

Markman denied the motion on Nov. 7, stating at the time:

[D]efendant has established no connection between the facts of the 1990 murder that are currently in dispute and the circumstances of the federal drug investigation in 1992, except that defendant was involved in both matters.

Thus, the crux of defendant’s argument is simply that I participated in a decision (not to prosecute defendant) nearly two decades ago, and that I am now participating in another decision concerning a different crime in which defendant was allegedly also involved.

Earlier this week, Markman reversed his decision and will recuse himself from Winburn’s case:

Defendant has now filed a motion for “clarification of material facts.”

In this motion, defendant expands upon the record and presents new evidence supporting his previously unexplained and unsubstantiated assertion that there are “overlapping facts” between the two matters.

This evidence, in my judgment, does establish a connection between the instant appeal — in which I would participate as a judge — and the prior criminal investigation– in which I participated as prosecutor.

Under these circumstances, I believe that my disqualification is warranted, and accordingly I recuse myself from the consideration of this matter.

Sometimes, persistence pays off.

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State Bar wants client solicitation rule revamped

The Michigan Supreme Court is seeking comments on a proposed amendment of Michigan Rule of Professional Conduct 7.3, ADM File No. 2010-22.

The proposal, sponsored by the State Bar of Michigan, would place limitations regarding attorney solicitation of potential family law clients.

The proposal would added the following language to MRPC 7.3a

[I]n any matter that involves a family law case in a Michigan trial court, a lawyer shall not initiate contact or solicit a party to establish a client-lawyer relationship until the initiating documents have been served upon that party or 14 days have passed since the date the document was filed, whichever action occurs first.

This limitation does not apply if the party and lawyer have a pre-existing family or client-lawyer relationship.

For purposes of this rules, “family law case” includes the following case-type code designations from MCR 8.117: DC, DM, DO, DP, DS, DZ, NA, PJ, PH, PP, or VP.

According to the staff comment accompanying the proposal, the state bar “argues that allowing attorneys to notify defendants before service leads to greater risk of domestic violence against the filing party or other illegal actions (such as absconding with children or removing assets from a joint bank or other financial account) that may occur before service can be completed.”

Accompanying the proposal is a request from Michigan Supreme Court Justice Diane N. Hathaway that persons submitting comments “address whether the proposed amendment to the rule is consistent with Shapero v Kentucky Bar Ass’n, 486 US 466; 108 S ct 1916; 100 LEd 2d 475 (1988), or raises any other constitutional concerns.”

The comment period for the proposal closes March 1, 2012. Send comments in writing or by email to: Supreme Court Clerk, P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. Reference ADM File No. 2010-22.

MSC mulls changes to Code of Judicial Conduct

The Michigan Supreme Court is considering amendments to the Code of Judicial Conduct that would clarify judges’ obligations concerning extrajudicial activities, especially where money is involved.

The Court has published two alternative proposals for comment.

Alternative A would impose the same obligations regarding extrajudicial activities for both law-related and other activities. This would be accomplished by combining Canons 4 and 5.

Canon 4 would be amended to clarify what civic and charitable fundraising activities are allowed or prohibited.

Alternative B would accomplish much of the same but would be loosely based on the ABA Model Code of Judicial Conduct.

According to the staff comment accompanying the proposed amendments:

The most recent iteration of the ABA Model Code splits the existing language of Michigan’s Canon 4 through Canon 6 into 15 separate rules.

For purposes of the proposed language of Alternative B, however, the separate model rules are combined in the proposed revised text of Michigan’s current two Canons, and would retain nearly all the language that currently exists in Canon 4 and Canon 5.

But the proposal is similar to the ABA Model Code in that proposed Canon 4 would begin with a description of the underlying foundational requirements for any extrajudicial activities (i.e., participation in the activity must not undermine the judge’s independence, integrity, or impartiality) and other general requirements, and then would set out the allowed fundraising and other financial activities in Canon 5.

Both proposals would permit judges to accept testimonials, which Canon 7 currently prohibits with this language:

C. Fundraising Other Than for Campaign Purposes Prohibited.
Except as provided in 7B(2)(b) and (c),
(1) No judge shall accept a testimonial occasion on the judge’s behalf where the tickets are priced to cover more than the reasonable costs thereof, which may include only a nominal gift[.]

The Court wants your comments on the proposal. Send them in writing or by email to: Supreme Court Clerk, P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov.

The comment period closes March 1, 2012. Refer to ADM File No. 2005-11.

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.

MSC reduces discipline system dues

State Bar of Michigan members will pay reduced dues to support the attorney discipline system beginning in 2012, according to a Michigan Supreme Court order.

The Court ordered a $10 reduction in the portion of the dues that supports the attorney discipline system.

“The attorney discipline system has become vastly overfunded, with a surplus of about $5 million. In light of this large surplus, the present $120 in discipline dues is not justified,” the Court said in its Oct. 6 order.

The attorney discipline system’s total operating expenses for the fiscal year ending Sept. 10, 2010, were $4,733,442, according to the Attorney Discipline Board’s recently released 2010 Annual Report.

The attorney discipline system includes the Attorney Grievance Commission and the Attorney Discipline Board.

Discipline dues will be $110 beginning next year, down from the current $120. The Court’s order does not affect the amount of general bar dues, currently $180, or the $15 assessment for the State Bar of Michigan’s Client Security Fund.

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.

Pro Bono Fair 2011 coming soon to a place near you

A partnership of law firms, local bar associations, legal aid clinics and the Thomas M. Cooley School is presenting Pro Bono Fair 2011 at four locations across the state in October.

The events are designed to connect attorneys and legal services organizations in their community and to explore volunteer opportunities.

The inaugural event is the Oakland and Macomb Pro Bono Fair on Thursday, Oct. 6 at the Thomas M. Cooley Law School’s Auburn Hills Campus, 2630 Featherstone, Auburn Hills from 4:30 p.m. to 6:30 p.m. Dickinson Wright is sponsoring the event.

The keynote speaker will be Julie I. Fershtman, President, State Bar of Michigan.

Fershtman, along with Peter M. Alter, Oakland County Bar Association President; Gail Pamukov-Miller, Macomb County Bar Association President; Stephanie D. Jones, Straker Bar Association President and David S. Maquera, Hispanic Bar Association President say:

The Oakland and Macomb Pro Bono Fair is a practical and expedient way for you to learn more about legal services organizations and the programs that help the thousands who are in urgent need of civil legal aid. The need has grown, as funding for legal services has been dwindling.

Michigan’s legal community has been generous with its time and financial support, but more help is needed. All Oakland and Macomb area attorneys are urged to attend the pro bono fair. You are under no obligation to take a case or to make a time commitment. The fair is meant to be a chance to learn more, network with colleagues, and consider new ways to provide pro bono service.

Other Pro Bono Fairs are scheduled for later in the month. Here’s a list:

  • October 11, 2011
    Grand Rapids Pro Bono Fair
    11:30 a.m. – 1:30 p.m.
    Thomas M. Cooley Law School
    Grand Rapids Campus
  • October 11, 2011
    Detroit Pro Bono Fair
    4:00 p.m. – 6:30 p.m.
    Dykema
  • October 17, 2011
    Lansing Pro Bono Fair
    4:00 p.m. – 6:00 p.m.
    Thomas M. Cooley Law School
    Lansing Campus

For more information, and to RSVP (requested but not required), please contact Robert Mathis, SBM Pro Bono Service Counsel, at
rmathis@mail.michbar.org or call (517) 346-6412.