Western District proposes attorney admission, discipline rule changes

The U.S. District Court for the Western District of Michigan is thinking about beefing-up its local rules governing admission to the court’s bar, attorney discipline and reinstatement proceedings.

In Administrative Order 11-041, the court tentatively approved amendments to its local court rules.

Key changes:

  • Admission applications could be granted or denied by the chief judge.
  • The chief judge could refer applications to a three-judge panel. The proposed change provides for broader participation of the court’s senior judges and further provides that bankruptcy judges could sit on the panels.
  • The proposal also conforms the local rules to the disciplinary and contempt power granted to magistrate judges by statute. 28 U.S.C. sec. 636(e).

The court is seeking comments by May 23 before promulgating a final version of the proposed changes.

MSC amends attorney discipline rules

The Michigan Supreme Court, in an April 19 order, revised court rules governing Michigan’s attorney discipline system. The amendments affect practice and procedure before the Attorney Grievance Commission and the Attorney Discipline Board. ADM File No. 2006-38.

The court also appointed Nancy A. Kida as chief judge, and Thomas N. Brunner as chief judge pro tempore of the 85th District Court in Benzie County. ADM File No. 2011-01.

MSC issues rules orders, board appointments

The Michigan Supreme Court issued the following orders on March 22, 2011:

  • ADM File No. 2011-01. Appointments to the Court Reporting and Recording Board of Review: Probate Judge Shana Lambourn, and Felicia Jordan, Sylvia Stratton and Rebecca Russo.
  • ADM File No. 2011-01. Appointments to the Committee on Model Civil Jury Instructions: Mark T. Boonstra, Thomas Van Dusen.
  • ADM File No. 2004-19. Rescission of LCR 4.202 of the 36th District Court: The rescinded rule provided “Rule: 4.202 Summary Proceedings; Land Contract Forfeiture (I) Joinder; Removal. (2) In the Thirty-Sixth District Court a money claim or counterclaim must be tried separately from a claim for possession unless joinder is allowed by leave of the court pursuant to MCR 4.202(I)(3).”
  • ADM File No. 2008-29, 2008-43. Amendments of MCR 3.807, 3.921, and 5.402: Technical amendments to clarify former language and to correct cross references.
  • ADM File No. 2011-04. Proposed Amendments of MCR 3.911 and 3.915: The proposed amendment of MCR 3.911 would eliminate the 14-day time frame during which a demand for jury must be made. The proposed revision of MCR 3.915 would clarify that counsel should be appointed for a parent even at the preliminary hearing of a child protective proceeding.
  • ADM File No. 2011-05. Proposed Amendments of the Michigan Rules of Professional Conduct: The proposed amendments of MRPC 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.9, 1.13, 1.14, 1.15, 1.16, 1.17, 3.2, 4.1, 4.3, 5.2, and 8.4 would incorporate language from the comments of these rules into the rule itself.

Civility among professional peers

When you open your e-mail inbox and see an after-hours message from an appellate judge, you know something important is on his mind.

Here’s what was on Michigan Court of Appeals Judge Peter O’Connell’s mind yesterday evening: a post from the State Bar of Michigan appellate practice section’s listserve from attorney Howard Lederman. The post, in its entirety, with Mr. Lederman’s kind permission:

Having read the Illinois Supreme Court’s Maksym decision of 1/27/11, I would suggest that someone copy and frame former Illinois Supreme Court Justice Miller’s words in every appellate lawyer’s practice location and in every appellate court:

“‘Judges often disagree about what result the law requires in a particular case. The existence of these disagreements, and the ability of our legal system to thrive on them, are virtues of the judicial process and of our system of government. The terms of the debate, however, must be framed by civility and respect, and not by suspicion and untruths. When rancor eclipses reason, the quality of the debate is diminished, the bonds of collegiality are strained, and the judicial process is demeaned. We cannot prescribe civility to members of the bar when our own opinions are disfigured by comments as offensive as those we have admonished lawyers for making.

***

“‘We should receive no less from our colleagues than we expect from lawyers who appear before our courts.'”

Maksym v Chicago Board of Election Commissioners, Docket No 111773 (January 27, 2011), p 24, quoting People v Bull, 185 Ill 2d 179, 222 (1998).

The point is that if justices and judges want civility and respect from lawyers, they must show it themselves to each other and to the lawyers practicing before them. Several appellate courts around the country, including the US Supreme Court and the Michigan Supreme Court, have often disregarded their duty to lead by example. I hope that in the future, they can recognize the line between fighting hard for a viewpoint and demeaning each other.

Howard Lederman
Attorney

Judge O’Connell’s pithy forwarding message to me: “words of wisdom.”

Indeed.

MSC proposes MCR amendments, appoints new chief for 48th Circuit

In a series of orders released late yesterday, the Michigan Supreme Court has proposed amending several court rules dealing with class certification, appointed counsel in criminal cases, decedents’ estates and Headlee amendment proceedings.

The MSC also proposed rule changes concerning the recertification of attorneys who have voluntarily resigned from the State Bar of Michigan.

The Court also named Judge Margaret Bakker as the new chief judge of the 48th (Allegan County) Circuit Court.

The following summaries of the Court’s proposals are the staff comments accompanying each order. As always, the staff comments are not the Court’s authoritative constructions of the proposals. Information for submitting comments about the proposals is contained in the Court’s orders.

  • 2008-18 Proposed Amendment of MCR 3.501: The proposed amendment of MCR 3.501(B) in Alternative A would require a change in circumstances to have occurred that would allow a party to file a supplemental motion for certification of a class within 21 days of the party’s knowledge of the changed circumstances. The proposed amendment also would allow a party to file a motion for revocation or amendment of the certification. The court as well would be allowed to consider supplemental motions to recertify and revoke or amend the certification. The proposed amendment of MCR 3.501(B) in Alternative B would clarify that only one motion for certification may be brought, and that once granted, the certification may be amended or revoked. ADM File No. 2008-18.
  • Proposed Amendment of MCR 6.005: The proposed amendment would revise MCR 6.005(H) to clarify that appointed defense counsel in a criminal proceeding either must file a substantive response to a prosecutor’s application for interlocutory appeal or notify the Court of Appeals that the lawyer intends not to submit a pleading. ADM File No. 2008-28.
  • Proposed Amendment of MCR 5.208 of the Michigan Court Rules: This proposed amendment of MCR 5.208(A) would remove the requirement to list a decedent’s last known address on the Notice to Creditors form. The proposed revision has been published for comment because of a concern that providing such information and publishing it in a newspaper might identify a location where a surviving spouse may be living and may unnecessarily place such a person at risk of harm. ADM File No. 2009-29.
  • Proposed Amendment of MCR 2.112, 7.206, and 7.213: The proposed amendments of MCR 2.112 and MCR 7.206 were submitted by the Legislative Commission on Statutory Mandates as a way to increase the efficiency with which Headlee actions are considered and disposed in Michigan courts, and to regularize the procedures that relate to Headlee proceedings. The proposed amendment of MCR 7.213 was added to the proposal as a corollary to proposed MCR 7.206 to clarify the prioritization of cases. ADM File No. 2010-05.
  • Proposed Amendment of Rule 3 of the Rules Concerning the State Bar of Michigan and Rule 8 of the Rules for the Board of Law Examiners: The proposed amendment of SBR 3(E), submitted by the State Bar of Michigan, would clarify that an out-of-state attorney who voluntarily resigned from the Michigan bar would not be required to retake the Michigan Bar Examination if the person meets the criteria for admission without examination under Rule 5 of the Rules for the Board of Law Examiners. A similar change also would be made in SBR 3(F) regarding emeritus members. Finally, Rule 8 of the Rules for the Board of Law Examiners would be amended to reflect that resigned or emeritus members who seek readmission are covered under Rule 8, which allows for recertification. ADM File No. 2009-20.
  • Appointment of Chief Judge of the 48th Circuit Court: Effective January 1, 2011, the Honorable Margaret Bakker is appointed chief judge of the 48th Circuit Court for a term ending December 31, 2011. ADM File No. 2010-01.

MSC appoints master in ticket-fixing charges against Jackson judge

The Michigan Supreme Court has appointed Judge Pamela J. McCabe as master to hear Judicial Tenure Commission charges against Jackson District Court Judge James M. Justin.

The JTC alleges that Justin fixed traffic citations for himself, his wife, his court reporter, his court officer and friends.

From the JTC’s Formal Complaint No. 87:

Respondent has engaged in a pattern of conduct in which he has dismissed cases, including misdemeanors and traffic citations, without hearings. Respondent has dismissed tickets cases that have been brought against his court reporter, his court officer, his wife, and even himself. Respondent has dismissed cases without authorization of the prosecuting authority. …

Respondent has engaged in a pattern of conduct in which he has entered beneficial judgments for certain defendants, often in multiple cases, by dismissing cases or by waiving or suspending fines and costs. Respondent stops Secretary of State (SOS) abstracts for defendants in violation of MCL 257.732, saving the defendants from paying driver responsibility fees under MCL 257.732a. …

Respondent has removed or set aside dispositions, including convictions by guilty plea and default judgments without the consent or authorization of the prosecutor. Respondent has dismissed and/or waived or suspended fines and costs on these cases without authority. Respondent has improperly removed or deleted Secretary of State (SOS) abstracts for many of these cases. …

Respondent has waived or suspended fines and costs, and improperly stopped, removed, or deleted Secretary of State abstracts for certain defendants, often for multiple cases for a defendant. …

Respondent has engaged in a pattern of dismissing traffic tickets and misdemeanor cases without following normal court procedures. Respondent has taken files, including files not assigned to him, and dismissed the cases without a hearing and without the authority of the prosecutor. …

Respondent has engaged in a pattern of conduct that allowed family, social, or other relationships to influence his judicial conduct or judgment, including dismissing tickets or waiving or suspending fines and costs for his friends, his court staff, his wife, and himself.

The above is a sampling of some of the JTC’s allegations.

All told, the JTC took 87 pages to detail the charges against Justin, and to explain how the charged conduct violates the Michigan Constitution, the Code of Judicial Conduct and the Michigan Court Rules.

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Law students, recent grads can make COA appearance for legal aid clients

The Michigan Supreme Court has authorized law students and recent law school graduates who are legal aid clinic members to represent legal aid clients in the Court of Appeals.

The MSC’s amendment of MCR 8.120 takes effect Jan.1, 2011. According to the staff comment accompanying the amendment:

The appearance would require the same protections that now exist, i.e., supervision by a licensed attorney who signs all pleadings, and approval by a majority of the judges of the assigned panel. In addition, the amendments require that an indigent person indicate in writing that he or she consents to the representation by the student, and the student must certify that he or she is familiar with the Michigan Rules of Professional Conduct and the Michigan Court Rules.

The amendments further state that the supervising attorney shall assume personal professional liability for the student’s or graduate’s work, and require students and recent graduates to take an oath similar to the
one taken by licensed attorneys. The Court will review the effects of this rule in two years.

Justice Stephen J. Markman dissented.

Markman indicated that he was pleased that the court incorporated his suggested changes: students and grads must take an oath “reasonably equivalent” to the Michigan Lawyer’s Oath; the supervising attorney is personally on the professional responsibility hook for the student’s representation and the supervising attorney must be present at appellate arguments if there’s a possibility the client could be imprisoned.

But Markman still has some problems with the amendment.

By our supervision of the Michigan State Bar, the Attorney Grievance Commission, the Attorney Discipline Board, and the Board of Law Examiners, a significant responsibility of this Court is to enhance the quality of legal practice in this state.

I respectfully believe that extending authority to law students to argue before the second-highest court of our state does not fulfill this responsibility.

My opposition is not intended in any way to disparage the students who will engage in this new practice, the attorneys who will supervise these students, or the law schools that will train these students. Each is to be respected and commended for their efforts.

However, in the final analysis, I cannot ignore that such students have not yet completed their legal education, they have not yet been judged competent to practice law by the examination and “character and fitness” procedures of this state, and they have not garnered the experience, perspective and judgment that comes with the sustained practice of the law.

With few exceptions, these are all attributes and qualities that characterize those who engage in advocacy in our Court of Appeals.

While I have little doubt that those students who have demonstrated the energy and initiative to participate in clinical and training programs, and who have been selected by their schools to argue before the Court of Appeals, will come to be among the best of our appellate practitioners, I do not believe it is in the best interests of their clients, or of our legal system, that this occur prematurely.

I respectfully dissent.

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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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MSC issues MCR orders, announces appointments

The Michigan Supreme Court, in an order issued yesterday, added three new rules to the Michigan Rules of Professional Conduct (MRPC).

New Rule 2.4, according to the staff comment, is designed to help parties involved in alternative dispute resolution to better understand the role of a lawyer serving as a third-party neutral.

New Rule 5.7, says the staff comment, creates an underlying presumption that the Michigan Rules of Professional Conduct apply whenever a lawyer performs law-related services or controls an entity that performs law-related services. The accompanying commentary explains that the presumption may be rebutted only if the lawyer carefully informs the consumer and identifies the services that are law related and clarifies that no client-lawyer relationship exists with respect to ancillary services.

New Rule 6.6 addresses concerns that a strict application of conflict-of-interest rules may deter lawyers from volunteering to provide short-term legal services through nonprofit organizations, court-related programs, and similar other endeavors such as legal-advice hotlines, according to the staff comment.

The MSC also issued amendments and revised commentary to MRPC 3.1, 3.3, 3.4, 3.5, 3.6, 5.5, and 8.5.

The complete text of the new and amended rules is contained in ADM File No. 2009-06.

The Court also proposed amendments to MCR 8.121 and 8.126.

According to the staff comment, the proposed amendment of MCR 8.121 addresses a situation in which attorneys charge more than the one-third contingency fee that is the allowable fee limit charged in wrongful death and personal injury actions.

The proposed changes to MCR 8.126 include a requirement that the fee be charged for each request for pro hac vice admission. The proposal’s staff comment also indicates that the court that grants the motion must send a copy of the order to the AGC (instead of requiring that the Michigan attorney send the copy to the AGC). The proposed amendment would apply to an attorney’s temporary admission for arbitration proceedings and requires that the admission fee be paid before the court issues an admission order.

In other action, the MSC:

  • reappointed David L. Porteous and appointed Barbara B. Smith as attorney members of the Attorney Grievance Commission for terms ending October 1, 2013. Kent J. Vana was reappointed chairperson of the commission and Martha D. Moore was reappointed vice-chairperson of the commission for terms ending October 1, 2011. ADM File No. 2010-01.
  • appointed the Honorable Linda S. Hallmark as chief judge of the Oakland County Probate Court for a term ending December 31, 2011. ADM File No. 2010-01.

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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.