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.

MSC hearing on referral fee, pro bono rules

A proposed rule aimed at capping attorney referral fees in contingent fee cases is on the agenda of the Michigan Supreme Court’s September 28 public hearing.

The rule would apply to cases where the attorney’s compensation is an agreed-upon share of the case award or settlement.

Under the proposed amendment of Michigan Rule of Professional Conduct 1.5 (ADM File No. 2010-07), an attorney who refers a contingent fee case to another attorney could receive a referral fee, but the fee would be capped at “25 percent of the amount recovered.”

The rule change is aimed at discouraging attorneys from operating as brokering services and directing clients to lawyers who pay the highest referral fees.

A referring attorney who also contributes a “substantial input of time or cost, or assumption of risk” could receive a larger fee if the other attorney agrees and if the court approves.

The Court will also discuss whether to adopt one of two alternative proposals regarding an attorney’s ethical obligation to provide pro bono services (ADM File No. 2010-18; proposed amendments to of MRPC 6.1).

Alternative A would clarify that attorneys are not subject to disciplinary proceedings to enforce the pro bono rule. Alternative B would require Michigan attorneys to donate 30 hours of professional time or handle three pro bono cases per year, and/or contribute $300 or $500 per year to programs that provide legal services to the poor.

The Michigan Supreme Court periodically holds administrative hearings to allow interested persons to comment on proposed court rule changes and other administrative matters on the Court’s agenda.

Speakers will be allotted three minutes each to present their views, after which they may be questioned by the Justices.

To reserve a place on the agenda, please contact the Office of the Clerk of the Court in writing at P.O. Box 30052, Lansing, Michigan 48909, or by e-mail at MSC_clerk@courts.mi.gov, no later than Monday, September 26, 2011. Requests to speak should include the ADM file numbers for the agenda items the speaker wishes to discuss.

– Information provided by the Michigan Supreme Court.

Absolute immunity for prosecutor in witness-jailing case

A Genesee County prosecutor was correctly granted summary judgment of a civil-rights suit filed by a witness who claimed she was jailed for 12 days at the prosecutor’s behest after she balked at testifying at a preliminary exam.

The prosecutor has absolute immunity, the 6th U.S. Circuit Court of Appeals ruled, even if she was less-than-forthcoming with the judge who sent the witness to jail.

Karen Hanson, the assistant prosecutor, was trying to press gang-related racketeering charges against Marquan Cager.

Part of the case hinged on statements LaTasha Adams made about Cager a few years back in a domestic-violence complaint.

On the morning of Cager’s preliminary exam, Adams was served with a subpoena. She showed up at the courthouse. Hanson showed Adams a report documenting her statements about Cager and told her to prepare to testify.

Adams balked. She said she was six months pregnant, the pregnancy was high-risk and she was under a doctor’s care. And here’s another reason, she told Hanson. She didn’t make the statements and besides, none of them were true.

From this point forward, like the judges who ruled and reviewed the grant of summary judgment, we’ll accept Adams’ version of things as the truth.

According to Adams, Hanson went to the judge hearing the case and told him off-the-record that Adams would not testify in accordance with the report. Hanson suggested that the judge hold Adams in contempt. Hanson didn’t tell the judge that Adams had been subpoenaed only that morning, or that she voluntarily came to the courthouse.

What resulted was a mittimus order, signed by the judge, directing that Adams be jailed as a material witness until the court said otherwise. Adams said all this was done to coerce her testimony against Cager.

Adams was jailed for 12 days without the judge ever asking her if she would testify, without being offered counsel or an opportunity to post bond, and without any explanation of the basis of the detention.

Once jailed, Adams indicated she would testify. When the preliminary exam resumed 12 days later, she took the stand, testified, went home and celebrated the conclusion of her ordeal by hitting Hanson with a civil-rights suit.

The federal district court granted Hanson summary judgment on the basis of absolute prosecutorial immunity. The Sixth Circuit affirmed.

Said the Sixth Circuit:

The case thus presents an issue of first impression in this circuit: whether a prosecutor is entitled to absolute immunity for her false and misleading statements to a trial court in the course of criminal proceedings about the availability of a witness. …

We conclude that Hanson’s statements before the trial court at the preliminary examination regarding Adams’ availability as a witness fell within her role as an advocate for the State of Michigan and are therefore absolutely protected. The prosecutorial function includes initiating criminal proceedings, appearing before the court at a probable cause hearing or before a grand jury, seeking an arrest warrant, and preparing witnesses. …

Hanson’s challenged conduct involved the analogous acts of appearing at a preliminary examination and making statements about her discussions with a potential witness – activities “closely related … to h[er] role as an advocate” before the court in criminal proceedings. …

Furthermore, because the issuance of either a material-witness warrant or an order of contempt “is unquestionably a judicial act,” a prosecutor’s statements to the court regarding the availability of a witness are “‘intimately associated with the judicial phase of the criminal process’ … [and are] connected with the initiation and conduct of a prosecution, particularly where,” as here, “the hearing occurs after arrest [of the defendant]” in the criminal proceedings.

It doesn’t matter, said the Sixth Circuit, that Hanson, with an allegedly improper motive, approached the judge outside of a formal proceeding, talked to him off-the-record, and, according to Adams, lied to him about what was going on.

As this court has recently emphasized, “prosecutors do not forfeit their absolute immunity when they knowingly make false statements while advocating before the court,” Pittman v.Cuyahoga Cnty. Dep’t of Children & Family Servs., 640 F.3d 716, 725 (6th Cir. 2011), “‘so long as the statements were related to the proceeding[s]'” in which they were made … .

It’s good to be the prosecutor.

The case is Adams v. Hanson.

Asleep at trial: nonprejudicial nap

As prosecutions go, the one against Arthur Muniz was a slam dunk for the Wayne County prosecutor’s office.

Muniz was charged with shooting Gutierrez, his old girlfriend’s new boyfriend, once in the arm and once in the head.

Muniz admitted he was at the crime scene with a gun but said that someone else — Muniz didn’t know who — fired the shots that injured Gutierrez.

Gutierrez fingered Muniz as the shooter. So did another witness who was in the car with Gutierrez. A Detroit cop said Gutierrez, while bleeding from his wounds, identified Muniz as the shooter.

Muniz’s own mother took the stand and said her son called her after the shooting and confessed.

The jury found Muniz guilty of assault with intent to murder, felon in possession of a firearm and felony firearm.

The jury apparently placed no credence in his claim, elicited by the prosecutor on cross-examination, that everyone but him was lying under oath.

Huh? Wait a minute. Under People v. Buckey, 424 Mich. 1 (1985), prosecutors can’t ask defendants to comment on the credibility of the prosecution’s witnesses.

Defense counsel should have objected.

And maybe he would have had he been awake.

According to a juror’s post-trial affidavit, defense counsel was sound asleep during the prosecutor’s cross-examination. The juror averred:

While the prosecutor was cross-examining Mr. Muniz, I glanced at defense table and was surprised to see that Mr. Muniz’[s] defense attorney [was] sleeping[.] … It was apparent to me that Mr. Muniz’[s] attorney was actually sleeping through a portion of his client’s testimony.

Muniz said his convictions should be overturned because counsel slept during some of the trial.

And then there’s that matter of defense counsel’s arrest for possession of cocaine three weeks before Muniz signed on as a client.

Muniz also claimed counsel was using cocaine during the trial. Muniz argued that drug use would explain counsel’s allegedly crummy direct examination of the defense’s private investigator, and would also explain the many alleged defense errors that ticked-off the trial judge.

Muniz offered no evidence that counsel was actually using drugs during trial. Moreover, counsel was licensed to practice trial although his license was later suspended.

The Michigan appellate courts turned down Muniz’s motion for new trial based on ineffective assistance of counsel.

He fared no better with his habeas petition in the U.S. District Court.

At the 6th U.S. Circuit Court of Appeals, Muniz argued that when counsel sleeps during a client’s trial, prejudice should be presumed under United States v. Cronic, 466 U.S. 648 (1984).

But Judge Eugene Siler said sleeping counsel cases decided under Cronic focus on how long counsel was asleep. The cases that bring habeas relief are those in which the attorney sleeps for substantial portions of the trial.

In denying relief, Siler told Muniz, in effect, that his attorney just took a short nap.

Nothing presumptively prejudicial about that.

Siler reviewed the juror’s affidavit and concluded that:

Muniz’s attorney was asleep for an undetermined portion of a single cross-examination. The record shows that Muniz’s attorney was not asleep for the entire cross since he objected near the end of the questioning. This is especially significant, given that the total cross-examination was fairly short, spanning only 26 pages of trial transcript.

Muniz’s lawyer therefore must have only been asleep for a brief period. This is in contrast to Tippins [Tippins v. Walker, 77 F.3d 682, 687 (2d Cir. 1996)], in which the trial judge himself “testified that [defense counsel] ‘slept every day of the trial.'”

Muniz did no better under Strickland v. Washington, 466 U.S. 668 (1984).

Under Strickland, wrote Siler, a habeas petitioner must show that counsel’s performance was deficient, and the deficiency prejudiced the petitioner’s case.

[B]y putting forward the affidavit of a juror who witnessed Muniz’s attorney sleeping Muniz has made a sufficient showing that the standard of conduct by his attorney fell below the objective standard of reasonableness.

There is no suggestion in the government’s brief, nor could there be, that Muniz’s attorney fell asleep at trial because in his “reasonable professional judgment” it was the best course of action.

But showing prejudice is quite another matter.

There was a mountain of evidence against Muniz. There was only Muniz’s conjecture, but no evidence, that counsel used drugs during trial and screwed up as a result.

And besides, defense counsel didn’t sleep away most of the trial, he just took a short cat nap.

The case is Muniz v. Smith.

Another swing at revamping client solicitation rules

There was considerable uproar in May when the Michigan Supreme Court amended MRPC 7.3 and published for comment further revisions of when, how and under what circumstances attorneys could solicit potential clients.

See Michigan Lawyers Weekly, “Does new advertising rule give big firms, insurance companies a head start?” (May 30, 2011).

When the proposal was first floated in July 2010, it was almost universally panned by those submitting comments on the Court’s web site. Follow the link and search “2002-24” when you get there.

Yesterday, the Court backtracked:

On order of the Court, and in light of concern expressed regarding the amendments adopted in this file [ADM File No. 2002-24] by order of the Court dated May 19, 2011, the order that entered on that date is rescinded, effective immediately … .

In yesterday’s order, the Court published for comment its latest proposal for regulating client solicitation. As explained by the staff comment accompanying the proposal:

Under the proposed amendments, MRPC 7.3 would be reformatted and would describe the general prohibition regarding a lawyer’s solicitation, and also would describe the types of communication that are allowed, including a lawyer’s general advertising, and a lawyer’s targeted communications to potential clients who are facing legal problems (as protected by Shapero v Kentucky Bar Ass’n, 486 US 466 [1988]).

The proposed amendments of MRPC 7.3 would require that inclusion of the designation “Advertising Material” on general advertising and targeted communications applies only to written materials, including e-mailed communications, but not to television or radio advertisements.

The amendment also requires a 30-day period to pass before an attorney may contact a potential client after a death, injury, or accident.

Comments are welcome, says the Court:

Comments on the proposal may be sent to the Supreme Court Clerk in writing or electronically by November 1, 2011, at P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov.

When filing a comment, please refer to ADM File No. 2002-24. Your comments and the comments of others will be posted at http://www.courts.mi.gov/supremecourt/resources/administrative/index.htm.

We’ll keep you posted.

MSC amends lawyer advertising rule

The Michigan Supreme Court has amended Michigan Rule of Professional Conduct 7.3 — Direct Contact With Prospective Clients — to require lawyers who engage in certain types of client solicitation to include the words “Advertising Material” as part of the pitch.

According to the staff comment accompanying today’s amendment:

MRPC 7.3 has been reformatted and describes the general prohibition regarding a lawyer’s solicitation, and also describes the types of communication that are allowed, including a lawyer’s general advertising, and a lawyer’s targeted communications to possible clients who are facing legal problems (as protected by Shapero v Kentucky Bar Ass’n, 486 US 466 [1988]). The amendment of MRPC 7.3 requires that inclusion of the term “Advertising Material” applies only to written materials, including e-mailed communications, but not to television or radio advertisements. The amendment also requires a 30-day period to pass before an attorney may contact a potential client after a death, injury, or accident.

The staff comment is not an authoritative construction by the Court.

The amendment takes effect Sept. 1, 2011.

The Court adopted the amendment on a 4-3 vote. Justice Diane Marie Hathaway dissented, stating that she would “decline to adopt.”

Justice Marilyn Kelly dissented, opting instead for ABA Model Rule of Professional Conduct 7.3.

Justice Stephen J. Markman dissented as well. Markman said he didn’t think the amended rule significantly addresses the problems of lawyer advertising. He also stated that the the amended rule places small firms at a distinct economic disadvantage:

Essentially, as in other states, the floodgates have been opened in Michigan concerning lawyer advertising, with fortunes now spent in this regard on television, radio, billboards, and 1-800-LAWSUIT telephone numbers.

In the face of this transformation of the advertising environment, this Court now issues a new rule focused upon which of the four corners of a postcard soliciting clients the words “advertising material” must appear.

The upshot is that those lawyers, and law firms, which engage in client solicitation by the hundreds of thousands will continue to engage in business as usual, while those lawyers, and law firms, which engage in client solicitation one person at a time will become more heavily regulated.

Further, the latter group will be prohibited during a 30-day period from soliciting business from certain categories of potential clients, while the former group will be allowed to continue soliciting such business during the same period.

For better or for worse, the United States Supreme Court has redefined the rules of the game for lawyer advertising, and I would not indulge in the illusion that by the measure this Court adopts today, we are doing anything of consequence to improve upon these rules.

Instead, all that we are doing is placing the small law firm at an increasing economic disadvantage to the large law firm in terms of client solicitation. I see little point to the new rule, and would not adopt it.

MSC proposes referral fee, juror challenge changes; names chief judge in Barry County

Referral fees would be limited to 25 percent under a proposed amendment of Rule 1.5 of the Michigan Rules of Professional Conduct.

The Michigan Supreme Court’s proposed 25 percent cap would be lifted

if the referring attorney participates in the case to an extent that a greater percentage of the amount recovered should be allowed as a reflection of the referring attorney’s substantial input of time or cost, or assumption of risk, the referring attorney’s share of fees may exceed the maximum referral fee as agreed by the receiving attorney and as approved by the court in which the proceeding takes place.

The proposal would also require that contigent-fee agreements disclose “the amount or percentage of fees to be divided or shared among or between lawyers who are not in the same firm.”

Under the proposed amendment, clients would have to approve “the amount or percentage of fees to be divided or shared among or between lawyers who are not in the same firm.” ADM File No. 2010-07.

Under a proposed amendment of MCR 2.511, courts would be required to excuse to discharge a juror upon learning that the juror is unqualified, rather than waiting for a party to challenge the juror for cause. The staff comment to the proposal explains that

[b]ecause MCL 600.1337 requires a court to discharge an unqualified juror regardless whether a party challenges the juror for cause, the proposed amendment of MCR 2.511 would eliminate the provision from the list of challenges that may be made for cause, and instead would clarify that the discharge must be made when the court learns that the juror is not qualified to serve.

This clarification would foreclose the possibility that an unqualified juror could be allowed to sit because no one challenged his or her qualification.

ADM File No. 2011-10.

The Michigan Supreme Court issued the proposed amendments in orders released yesterday. The comment period for both proposals is open until Sept. 1, 2011.

In another order released yesterday, the MSC appointed Judge William M. Doherty as chief judge of the Barry County Trial Court for a term ending Dec. 31, 2011.