Formal Disciplinary Proceedings

Formal Complaints

 When an investigation is concluded, the matter is submitted to the Commission for a final determination.  Where warranted, the Commission can authorize the Grievance Administrator to file of a formal complaint alleging professional misconduct against an attorney (respondent), as authorized by MCR 9.109(B)(6).  A formal complaint is filed with the Attorney Discipline Board, which is the adjudicative arm of the Michigan Supreme Court involving the discipline of Michigan attorneys.  The ADB appoints a hearing panel consisting of three volunteer attorneys to preside over the matter.  The matter can be decided through a public hearing following which the hearing panel must issue a report determining whether the attorney engaged in misconduct.  If misconduct is not found, the formal complaint must be dismissed.  If misconduct is found,

the hearing panel must then hold a hearing regarding the appropriate discipline to impose.  Alternatively, the Grievance Administrator and the respondent can file a stipulation for order of consent discipline without the need of a hearing.  The hearing panel can impose public discipline consisting of a reprimand, suspension, disbarment, or probation.

 Judgment of Conviction

 When an attorney is convicted of crime, the attorney is subject to public discipline.  As required by MCR 9.120(A), attorneys who are convicted of a crime must report the conviction to both the Commission and the Board.  The prosecutor and defense counsel are also obligated to report the conviction.  Attorneys who are convicted of a felony are automatically suspended by the ADB upon conviction, meaning the return of a guilty verdict or the acceptance of a guilty plea.  Attorneys who are convicted of a misdemeanor must still report the conviction, but are not subject to an automatic suspension.  The Grievance Administrator may initiate a Judgment of Conviction proceeding against the attorney with the ADB.  The ADB will assign the matter to a hearing panel.  These show cause proceedings are limited to the discipline that should be imposed.

 Reciprocal Discipline

 If a Michigan attorney is adjudicated to have engaged in misconduct and is disciplined by any court or any body authorized to conduct disciplinary proceedings in any state or territory of the United States, the District of Columbia, or any federal agency, that attorney is subject to reciprocal discipline in Michigan.  The Grievance Administrator is empowered by MCR 9.120(C) to initiate a disciplinary proceeding against a lawyer disciplined in another jurisdiction.  Such a proceeding is limited to whether the attorney received due process in the other proceeding and whether the imposition of comparable discipline in Michigan would be clearly inappropriate.

 Proceedings against Former Judges

 Generally, the Commission has no authority to proceed against a judge.  Judges are subject to the jurisdiction of the Judicial Tenure Commission.  Under MCR 9.116(B), however, the Grievance Administrator may take action against a former judge for conduct that resulted in the judge’s removal from the bench or for any conduct which was not the subject of a disposition by the Judicial Tenure Commission.

 Incompetency/Incapacitation

 Attorneys who are judicially declared to be incompetent or are involuntarily committed on the grounds of incompetency or disability must be transferred to inactive status by the ADB, as required by MCR 9.121(A).  Absent a judicial declaration, the Grievance Administrator can allege in a complaint filed with the ADB that an attorney is incapacitated to continue the practice of law because of a mental or physical disability or infirmity or because of addiction to drugs or alcohol.  As in other matters, the ADB will appoint a hearing panel to determine whether the attorney is incapacitated to continue the practice of law.  If so, the attorney is transferred to inactive status under MCR 9.121(B).

 Reinstatement to the Practice of Law

 Attorneys who are suspended for 179 days or less may be automatically reinstated to the practice of law upon the filing of an affidavit with the Supreme Court, the ADB, and the Grievance Administrator attesting that the attorney has fully complied with the terms and conditions of the order of suspension.

 Attorneys who are suspended for 180 days or more or are disbarred must file a petition for reinstatement.  The burden of proof is on the petitioning attorney to establish by clear and convincing evidence that s/he is fit to resume the practice of law.  A petition for reinstatement is filed with the ADB, which will assign a hearing panel to determine whether the petitioning attorney should be reinstated to the practice of law.  In these cases, the Grievance Administrator must conduct an investigation and file a report with the hearing panel.  The Grievance Administrator participates in the hearing and can contest the petitioner’s eligibility for reinstatement.

 Receiverships

 Under MCR 9.119(G), if an attorney leaves the practice of law (whether because of disbarment, suspension, resignation, transfer to inactive status, imprisonment, disappearance, or death) and there is no person capable of conducting the attorney’s affairs, the Grievance Administrator may file a petition for receivership with the circuit court in the county where the attorney maintained his or her office.  The Grievance Administrator may ask that another person act as the receiver or may seek to act as the receiver in his name.  A receivership may consist of obtaining and inventorying the attorney’s file, contacting clients and taking any action necessary to protect the client’s interests, securing the attorney’s bank accounts, and handling the attorney’s mail.

 Appeals

 Actions filed with the ADB can generally be appealed following the issuance of an order by the hearing panel.  Such an action can be commenced by the Grievance Administrator, the respondent, or the complainant and is initiated by the filing of a petition for review.  The matter is then heard by the full Board, acting as an appellate agency.  The Board will issue a written decision and may affirm, amend, reverse, or nullify the hearing panel’s order.  An appeal from the Board’s decision is by application for leave to appeal to the Supreme Court.

 When an application for leave to appeal to the Supreme Court is not available, an aggrieved party can file a complaint for superintending control against the Attorney Discipline Board and the Attorney Grievance Commission.  Thus, a complainant may file a complaint for superintending control against the Commission if the complainant disagrees with the Commission’s decision regarding an investigative file.