Opinion
No. 96-59.
February 1, 2000.
This is to advise that the Court is continuing to consider whether to amend subchapter 9.100 of the Michigan Court Rules of 1985 to provide for permanent disbarment.
Proposals were submitted by the Attorney Grievance Commission and the Attorney Discipline Board, at the request of the Court. Those proposals were published at 459 Mich. 1237 (1999), and were on the agenda of the public hearing held September 16, 1999. The Court has given due consideration to the written suggestions and public comment of various groups and individuals about the proposals.
The Court has decided to republish the proposals, as edited by staff, to allow an additional opportunity for comment with regard to the form or the merits. The Court also is considering several additional amendments of subchapter 7.300 and subchapter 9.100, and invites comment about those proposals, as well.
We welcome the views of all who wish to address the proposals or who wish to suggest alternatives. Before determining whether the proposals should be adopted, modified, or rejected, the proposals will be considered by the Court at another public hearing. The Clerk of the Court will publish a schedule of future public hearings.
[The present language would be amended as indicated below.]
Rule 7.301 Jurisdiction and Term
(A) Jurisdiction. The Supreme Court may:
(1) may review a Judicial Tenure Commission order recommending discipline, removal, retirement, or suspension (see MCR 9.223-9.226);
(2) may review by appeal a case pending in the Court of Appeals or after decision by the Court of Appeals (see MCR 7.302);
(3) must review a final order of the Attorney Discipline Board that rescinds an attorney's license to practice law, without the possibility of reinstatement [see MCR 9.122(A)(1)(a)];
(34) may review by appealaother final orders of the Attorney Discipline Board (see MCR 9.122 [A][1][b]);
(45) may give an advisory opinion (see Const 1963, art 3, § 8);
(5 6) may respond to a certified question (see MCR 7.305);
(67) may exercise superintending control over a lower court or tribunal (see, e.g., MCR 7.304);
(78) may exercise other jurisdiction as provided by the constitution or by law.
(B) [Unchanged.]
Rule 7.303 Appeal of Right Under 9.122(A)(1)(a) For an Attorney Whose License to Practice Law is Rescinded, Without the Possibility of Reinstatement
An appeal of right under MCR 9.122(A)(1)(a) must be taken within 21 days after a final order of the Attorney Discipline Board, or within 21 days after the board denies reconsideration of a final order. The clerk will place the case on a session calendar under MCR 7.312. Oral argument may be requested.
Rule 7.319 Supreme Court Clerk
(A) Appointment; General Provisions. [Unchanged.]
(B) Duties. The clerk shall do the following:
(1) — (6) [Unchanged.]
(7) Collect the following fees, which may be taxed as costs when costs are allowed by the Court:
(a) $250 for an application for leave to appeal or an appeal of right under MCR 9.122(A)(1)(a) ;
(b) — (g) [Unchanged.]
A person who is unable to pay a filing fee may ask the Court to waive the fee by filing a motion and an affidavit disclosing the reason for that inability.
Rule 9.101 Definitions
As used in subchapter 9.100:
(1) — (12) [Unchanged.]
(13) "disbarmentrescission" means permanent lossrevocationof the license to practice law, without the possibility of reinstatement.
(14) "suspension" means temporary loss of the license to practice law, with the possibility of reinstatement.
Rule 9.106 Types of Discipline; Minimum Discipline; Admonishment ; Effect of Rescission
(A) Discipline Admonishment. Misconduct is grounds for:
(1)revocationrescission of the license to practice lawin Michigan, without the possibility of reinstatement;
(2) suspension of the license to practice lawin Michigan for a specified term not less than 30 days, with such additional conditions relevant to the established misconduct as a hearing panel, the board, or the Supreme Court may imposeand if the term exceeds 179 days, until the further order of a hearing panel, the board, or the Supreme Court
(a) for a specified term not less than 30 days and not more than 179 days,
(b) for a term of 180 days to 3 years and until further order of a hearing panel, the board, or the Supreme Court, or
(c) for a term of 3 years or more and until further order of a hearing panel, the board, or the Supreme Court and recertification by the Board of Law Examiners.
(3) — (6) [Unchanged.]
(B) Factors to be Considered . In its determination that an attorney's license shall be rescinded or suspended for a term greater than 179 days, a hearing panel, the Attorney Discipline Board, or the Supreme Court shall consider all appropriate factors, including but not limited to the following: (1) the nature of the underlying conduct;
(2) aggravating circumstances, including prior discipline, admonishments, and placement of the respondent on contractual probation;(3) mitigating circumstances; (4) the likelihood of rehabilitation;
(5) protection of the public, the courts, and the legal profession; and
(6) the length of any automatic interim suspension imposed pursuant to MCR 9.120(B)(1) following a felony conviction.
Rule 9.110 Attorney Discipline Board
(A) — (D) [Unchanged.]
(E) Powers and Duties. The board has the power and duty to
(1) — (5) [Unchanged.]
(6) file with the Supreme Court clerk its orders of rescission, suspension,disbarment, and reinstatement;
(7) — (9) [Unchanged.]
Rule 9.114 Action by Administrator or Commission After Answer
(A) [Unchanged.]
(B) Contractual Probation. For purposes of this subrule, "contractual probation" means the placement of a consenting respondent on probation by the commission, without the filing of formal charges. Contractual probation does not constitute discipline, and shall be confidential under MCR 9.126 except as provided by MCR 9.115(J)(3).
(1) If the commission finds that the alleged misconduct, if proven, would not result in a substantial suspension orrevocationrescission of a respondent's license to practice law, the commission may defer disposition of the matter and place the respondent on contractual probation for a period not to exceed two years, provided the following criteria are met:
(a) — (c) [Unchanged.]
(2) — (4) [Unchanged.]
(C) — (E) [Unchanged.]
Rule 9.115 Hearing Panel Procedure
(A) — (L) [Unchanged.]
(M) Resignation by Respondent; Admission of Charges. An attorney's request that his or her name be stricken from the official register of attorneys may not be accepted while a request for investigation or a complaint is pending, except pursuant to an order of revocation rescission.
Rule 9.116 Hearing Procedure; Judges other than Magistrates and Referee
(A) — (D) [Unchanged.]
(E) Decision. Within 28 days after the hearing is concluded, the panel must file with the Supreme Court clerk and the board a report and order conforming with MCR 9.115(J) and serve them on the administrator and the respondent.
(1) If the Judicial Tenure Commission has recommended suspension, the panel may notdisbarrescind the respondent's license to practice law and may not suspend the respondent from practicing law for a period beginning earlier than or extending beyond the suspension period recommended by the Judicial Tenure Commission.
(2) If the Judicial Tenure Commission has not recommended either suspension or removal from office, and the respondent continues to hold a judicial office, then the panel may notdisbarrescind or suspend the respondent's license to practice law.
(3) [Unchanged.]
(F) [Unchanged.]
Rule 9.119 Conduct of Attorney Whose License to Practice Law Is Rescinded or Disbarred , Suspended, or and Inactive Attorneys
(A) Notification to Clients. An attorney whose license is revoked rescinded or suspended, or who is transferred to inactive status pursuant to MCR 9.121, or who is suspended for nondisciplinary reasons pursuant to Rule 4 of the Supreme Court Rules Concerning the State Bar of Michigan, shall, within 7 days of the effective date of the order of discipline, the transfer to inactive status or the nondisciplinary suspension, notify all of his or her active clients, in writing, by registered or certified mail, return receipt requested, of the following:
(1) — (4) [Unchanged.]
(5) that the clients may wish to seek legal advice and counsel elsewhere; provided that, if thedisbarred, suspended or inactiveaffected attorney was a member of a law firm, the firm may continue to represent each client with the client's express written consent;
(6) [Unchanged.]
(B) Conduct in Litigated Matters. In addition to the requirements of subsection (A) of this rule, the affected attorney must, by the effective date of the order of revocation rescission, suspension, or transfer to inactive status, in every matter in which the attorney is representing a client in litigation, file with the tribunal and all parties a notice of the attorney's disqualification from the practice of law.
(C) Filing of Proof of Compliance. Within 14 days after the effective date of the order of revocation rescission, suspension, or transfer to inactive status pursuant to MCR 9.121, the disbarred, suspended, or inactive affected attorney shall file with the administrator and the board an affidavit showing full compliance with this rule. The affidavit must include as an appendix copies of the disclosure notices and mailing receipts required under subrules (A) and (B) of this rule. A disbarred, suspended, or inactive The affected attorney shall keep and maintain records of the various steps taken under this rule so that, in any subsequent proceeding instituted by or against him or her, proof of compliance with this rule and with the disbarment rescission or suspension order will be available.
(D) Conduct After Entry of Order Prior to Effective Date. A disbarred or suspended attorney, after After entry of the order of revocation rescission or suspension and prior to its effective date, the affected attorney shall not accept any new retainer or engagement as attorney for another in any new case or legal matter of any nature, unless specifically authorized by the board chairperson upon a showing of good cause and a finding that it is not contrary to the interests of the public and profession. However, during the period between the entry of the order and its effective date, the suspended or disbarred affected attorney may complete, on behalf of any existing client, all matters that were pending on the entry date.
(E) Conduct After Effective Date of Order. An attorney who is disbarred whose license to practice law is rescinded or suspended, or who is transferred to inactive status pursuant to MCR 9.121 is, during the applicable period, of disbarment, suspension, or inactivity forbidden from:
(1) — (3) [Unchanged.]
(F) Compensation of Disbarred , Attorney Whose License to Practice Law Is Rescinded or Suspended, or Inactive Attorney. An attorney whose license is revoked rescinded or suspended, or who is transferred to inactive status pursuant to MCR 9.121 may not share in any legal fees for legal services performed by another attorney during the period of disqualification from the practice of law. An affected disbarred, suspended, or inactive attorney may be compensated on a quantum meruit basis for legal services rendered and expenses paid by him or her prior to the effective date of the revocation rescission, suspension, or transfer to inactive status.
(G) Inventory. If the affected attorney whose license is revoked or suspended, or who is transferred to inactive status pursuant to MCR 9.121 was a member of a firm, the firm may continue to represent each client with the client's express written consent. If an the affected attorney is transferred to inactive status or is disbarred or suspended and fails to give notice under the rule, or disappears or dies, and there is no partner, executor or other responsible person capable of conducting the attorney's affairs, the administrator may ask the chief judge in the judicial circuit in which the attorney maintained his or her practice to appoint a person to inventory the attorney's files and to take any action necessary to protect the interests of the attorney and the attorney's clients. The person appointed may not disclose any information contained in any inventoried file without the client's written consent. The person appointed is analogous to a receiver operating under the direction of the circuit court.
Rule 9.121 Attorney Declared to be Incompetent or Alleged to be Incapacitated or Asserting Impaired Ability
(A) — (B) [Unchanged.]
(C) Assertion of Impaired Ability; Probation.
(1) — (4) [Unchanged.]
(5) On proof that a respondent has violated a probation order,he or shehis or her license to practice law may be suspended or rescindeddisbarred.
(D) — (F) [Unchanged.]
Rule 9.122 Review by Supreme Court
(A) Kinds Available; Time for Filing.
(1) A party aggrieved, including the person who made a request for investigation, by a final order of discipline or dismissal entered by the board on review under MCR 9.118, may appeal the order in the following manner:
(a) a party whose license to practice law has been rescinded may take an appeal of right to the Supreme Court under MCR 7.303 within 21 days after entry of the order being appealed;
(b) other parties, including the person who made a request for investigation, may apply for leave to appeal to the Supreme Court under MCR 7.302 within 21 days after the order is entered.
If a motion for reconsideration is filed before the board's order takes effect, the appeal of right or application for leave to appeal to the Supreme Court may be filed within 21 days after the board enters its order granting or denying reconsideration.
(2) [Unchanged.]
(B) — (E) [Unchanged.]
Rule 9.123 Eligibility for Reinstatement
(A) Suspension, 179 Days or Less. An attorney whose license has been suspended for 179 days or less is automatically reinstated by filing with the Supreme Court clerk, the board, and the administrator an affidavit showing that the attorney has fully complied with the terms and conditions of the suspension order. A false statement contained in the affidavit is ground for disbarment rescission of the attorney's license to practice law.
(B) Revocation or Suspension , More Than 179 Days. An attorney whose license to practice law has been revoked or suspended for more than 179 days is not eligible for reinstatement until the attorney has petitioned for reinstatement under MCR 9.124 and has established by clear and convincing evidence that:
(1) [Unchanged.]
(2) the term of the suspension ordered has elapsedor 5 years have elapsed since revocation of the license;
(3) — (9) [Unchanged.]
(C) Reinstatement After Three Years. An attorney who, as a result of disciplinary proceedings, resigns, is disbarred, or is suspended disqualified from the practice of law for any period of time, and who does not practice law for 3 years or more, whether as the result of the period of discipline or voluntarily, must be recertified by the Board of Law Examiners before the attorney may be reinstated to the practice of law.
(D) Petition for Reinstatement; Filing Limitations.
(1) [Unchanged.]
(2) An attorney whose license to practice law has beenrevokedrescinded may not file a petition for reinstatementuntil 5 years have elapsed since revocation of the license.
(3) An attorney whose license to practice law has been suspended because of conviction of a felony for which a term of incarceration was imposed may not file a petition for reinstatement until six months after completion of the sentence, including any period of parole.
(4) An attorney whose license to practice law has beenrevoked orsuspended and who has been denied reinstatement may not file a new petition for reinstatement until at least 180 days from the effective date of the most recent hearing panel order granting or denying reinstatement.
Rule 9.127 Enforcement
(A) Interim Suspension. The Supreme Court, the board, or a hearing panel may order the interim suspension of a respondent who fails to comply with its lawful order. The suspension shall remain in effect until the respondent complies with the order or no longer has the power to comply. If the respondent is ultimately disciplined, the respondent shall not receive credit against the disciplinary suspension or disbarment for any time of suspension under this rule. All orders of hearing panels under this rule shall be reviewable immediately under MCR 9.118. All orders of the board under this rule shall be appealable immediately under MCR 9.122. The reviewing authority may issue a stay pending review or appeal.
(B) [Unchanged.]
Staff Comment: In Grievance Administrator v. Hibler, 457 Mich. 258, 260 (1998), the Supreme Court announced that it would be considering whether an order of permanent disbarment, without the possibility of reinstatement, should be available as a discipline option in subchapter 9.100 of the Michigan Court Rules. At the Court's request, the Attorney Grievance Commission and the Attorney Discipline Board submitted draft language, which was published for comment and was on the agenda of a public hearing. The Court has decided to republish the proposals, as edited by staff, as well as additonal proposed changes to subchapter 7.300 and subchapter 9.100. Among other things, the proposed amendments would eliminate the possibility of reinstatement for a lawyer whose license to practice law has been rescinded. The term "rescission" would be used to refer to loss of the license to practice law in such a circumstance. The proposals also would permit discipline authorities to suspend a lawyer's license for more thaan five years, and provide a lawyer whose license has been rescinded with an appeal of right to the Surpeme Court.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the court.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timely comments will be substantively considered and your assistance is appreciated by the Court.
A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court Clerk within 60 days after it is published in the Michigan Bar Journal. When filing a comment, please refer to our file No. 96-59.