Anonymous v. Attorney Grievance Commission

422 N.W.2d 648, 430 Mich. 241, 1988 Mich. LEXIS 680

• Court: Michigan Supreme Court
• Decided: April 19, 1988
• Docket: 78874, (Calendar No. 9)
• Status: Published

Opinions

Boyle, J.

In this case, we are asked to decide whether the Attorney Grievance Commission was authorized to investigate the plaintiffs client trust accounts and, if so, whether the commission was authorized to conduct that investigation by issuing a subpoena duces tecum to the plaintiff prior to the issuance of a formal complaint by the Attorney Discipline Board. We answer both of these questions in the affirmative, and therefore deny respondent’s request for superintending control.

i

The plaintiff in this matter is an attorney at law. On September 20, 1985, a request for an investigation of the plaintiff was filed with the Attorney Grievance Commission. The request was filed by the agent of a lessor from whom the plaintiff leased office space. The agent alleged that the plaintiff was delinquent in rent payments and had tendered checks drawn on insufficient funds.

Upon receiving the request to investigate, the Attorney Grievance Administrator examined the account on which the plaintiffs nsf checks were drawn. The October 31, 1985 statement of the account revealed a deposit in the amount of $7,505.21. That amount and the date of deposit corresponded to a money order made payable to the plaintiff who was designated as an "attorney.” In addition, the money order contained the notation, "For Trust Acct. Susanna Beroth.”

On December 11, 1985, associate counsel for the grievance administrator wrote to the plaintiff, requesting the following information:

Please advise me whether any client trust monies were in the account on which the nonsufficient funds checks were drawn. Please state the precise nature of the account. During the period from May through November, 1985, were there any nonsufficient fund checks drawn on your account other than those which precipitated the grievance?

The plaintiff replied by letter dated December 20, 1985, specifying that 485 checks were drawn on the account from May through November, and that there were eight additional nsf checks which had not precipitated a grievance. The plaintiff also wrote that all of the nsf checks had been paid upon redeposit and that no one but the plaintiff, who was forced to pay $96 in service charges, was harmed by the checks. However, the plaintiff failed to specify whether any client trust monies were in the account.

The grievance administrator responded on April 9, 1986, with a subpoena duces tecum, commanding the plaintiff to appear at the administrator’s office with

[a]ny and all records relating to Client Trust Accounts, General Business Accounts, any accounts wherein client monies may be placed, plus records showing receipts and disbursements of client monies from May 1, 1985 to the present.

The plaintiff filed a complaint for mandamus with this Court, which was treated as an order for superintending control, challenging the authority of the commission to issue the complaint. We ordered that the cause be argued and submitted as a calendar matter.

II. WAS THE ATTORNEY GRIEVANCE COMMISSION AUTHORIZED TO INVESTIGATE THE PLAINTIFF’S CLIENT TRUST ACCOUNTS?

Effective October 1, 1978, the prosecutorial and adjudicative functions of the State Bar Grievance Board were bifurcated. 402 Mich clvi. As a general proposition:

Bifurcation created two separate and independent boards. The Attorney Grievance Commission was established to serve the prosecutorial function in supervising and disciplining Michigan attorneys (GCR 1963, 957); the Attorney Discipline Board performs the adjudicative functions (GCR 1963, 959). [In re Daggs, 411 Mich 304, 313; 307 NW2d 66 (1981).][¹]

In addition to general statements of the authority of the Attorney Grievance Commission and the Attorney Discipline Board, the Michigan Court Rules specify certain powers and duties.

The grievance administrator is appointed by the commission and subject to its supervision.² Under the Michigan Court Rules:

The administrator has the power and duty to:

(5) investigate alleged misconduct of attorneys, including serving a request for investigation in his or her own name if necessary;

(6) prosecute complaints the commission authorizes;

(8) perform other duties provided in these rules or assigned by the commission. [MCR 9.109(A).]

The administrator’s power to investigate is distinct from his power to prosecute complaints authorized by the commission. The rules do not limit authority of the administrator to misconduct alleged in a request to investigate, but instead extend the authority to any alleged misconduct. This is consistent with the power of the administrator to serve a request for investigation "in his or her own name.” See State Bar Grievance Administrator v McWhorter (On Rehearing), 407 Mich 278; 284 NW2d 472 (1979). Thus, the Michigan Court Rules specify a broad grant of power to the administrator to investigate misconduct.

The facts at bar establish that the administrator’s investigation of the plaintiffs client trust accounts was well within the power granted by the Michigan Court Rules. The administrator examined the account on which the plaintiffs ñsf checks were drawn and uncovered a check which was apparently intended for deposit in a client trust account. The check was deposited in the same account upon which the plaintiffs nsf rent checks were drawn.³ Thus, the administrator’s review of the plaintiff’s account revealed not only evidence of poor bookkeeping, but also evidence of an improper commingling of client funds.⁴

This evidence does not necessarily establish misconduct on the part of respondent, but, when added to respondent’s own admissions of poor bookkeeping, it is certainly evidence of some mismanagement of a client’s funds. The administrator cannot be expected to turn his head when confronted with evidence of this kind. The professional disciplinary rules specify that the administrator has both the power and duty to investigate misconduct. MCR 9.109. We, therefore, find no impropriety in the further investigation of the plaintiff’s client trust accounts by the grievance administrator on behalf of the commission.

III. WAS THE COMMISSION AUTHORIZED TO SUBPOENA THE PLAINTIFF PRIOR TO THE ISSUANCE OF A FORMAL COMPLAINT BY THE ATTORNEY DISCIPLINE BOARD?

The power to discipline members of the State Bar is reserved to the Supreme Court. Const 1963, art 6, § 5. In re Hague, 412 Mich 532, 560; 315 NW2d 524 (1982). "The license to practice law in Michigan is, among other things, a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters and to aid in the administration of justice . . . .” MCR 9.103(A). While responsibility for attorney discipline is ultimately ours, all members of the bar share in the duties imposed by this responsibility. Thus, the court rules themselves provide that "[a]n attorney shall assist the administrator in the investigation, prosecution, and disposition of a request for investigation or complaint filed with or by the administrator.” MCR 9.103(C).

As we have acknowledged on prior occasions, attorney discipline is designed for the protection of the public, the courts, and the legal profession. See, e.g., State Bar Grievance Administrator v Baun, 395 Mich 28, 37-38; 232 NW2d 621 (1975). Of those three interests, the protection of the public is paramount. Unless a profession is ultimately devoted to public service, the privileges of its membership cannot be reconciled with principles of a democratic society.

Internal regulation of a profession is a most significant privilege. It is, commensurately, the greatest responsibility attached to any profession. It is with this understanding that we must approach all problems of attorney discipline. As, the Washington Supreme Court has explained:

The practice of law has been a profession of the highest order since its inception and it must continue to be so. Internal investigation and self-discipline are at the very heart of a profession, as distinguished from a trade or business. The bar association’s investigation of a complaint is an integral part of the machinery for handling charges regarding the ethics and conduct of the attorneys admitted to practice before this court. Public confidence in the legal profession, and the deterrence of misconduct, require prompt, complete investigations. The process of investigating complaints depends to a great extent upon an individual attorney’s cooperation. Without that cooperation, the bar association is deprived of information necessary to determine whether the lawyer should continue to be certified to the public as fit. Obviously, unless attorneys cooperate in the process, the system fails and public confidence in the legal profession is undermined. If the members of our profession do not take the process of internal discipline seriously, we cannot expect the public to do so and the very basis of our professionalism erodes. [In re Del H Clark, 99 Wash 2d 702, 707-708; 663 P2d 1339 (1983).]

The plaintiff in this action challenges the authority of the administrator to require his testimony, as well as the production of his records, by issuing a subpoena duces tecum subsequent to a request to investigate, but prior to the filing of a formal complaint. As in all matters of attorney discipline, we must construe the relevant rules liberally for the protection of the public, the courts, and the legal profession. MCR 9.102(A).

MCR 9.114 is entitled "Action by Administrator or Commission after Answer.” MCR 9.114(C)(1) provides:

On request of the administrator or the respondent, the commission may issue subpoenas to require the appearance of a witness or the production of documents and other tangible things before the administrator or an investigator concerning matters then under investigation. [Emphasis added.]

Despite the reference to "matters then under investigation” and despite the requirement of a liberal construction explicitly set forth in MCR 9.102(A), the plaintiff would construe this rule to preclude the use of an investigative subpoena in the investigative stage of grievance proceedings.

The plaintiff urges this construction by comparing the use of the word "respondent” in MCR 9.114(C)(1) with the use of the word "witness.” Adopting a narrow construction of the rule, the plaintiff submits that only witnesses may be subpoenaed under the rule, not respondents such as himself. We find no persuasive reason for concluding that the two words are mutually exclusive so that a "respondent” may not also be a "witness.”

We first observe that the professional disciplinary rules define "respondent” as an attorney named in a request for investigation or complaint. MCR 9.101(6). The word "witness” is not defined in the rules. Thus, the rules themselves do not expressly preclude a respondent from also being a witness.

As the plaintiff notes, the professional disciplinary rules do use both the word "respondent” and "witness” in numerous instances. We agree that this use suggests that the two words have different meanings. However, the fact that words have different meanings does not necessarily, or even commonly suggest, that their relationship is antonymous. It is, of course, an elementary rule of construction that words must be given their commonly accepted meanings. Production Credit Ass’n of Lansing v Dep’t of Treasury, 404 Mich 301, 312; 273 NW2d 10 (1978).⁵

We are aware that a number of our sister states have adopted rules which expressly state that investigative subpoenas are available in attorney grievance proceedings prior to the filing of a formal complaint.⁶ In fact, a number of states have authorized random audits of client trust accounts.⁷ Since the Michigan rule is not as explicit, it might be argued that the use of investigative subpoenas in this manner was not intended. We are not, however, presented with any evidence that these rules were considered at the time that MCR 9.114(C)(1) was drafted. It seems plausible that the rules were drafted without reference to these states.⁸

The structure and organization of the rules also support the conclusion that investigative subpoenas are available prior to the filing of a formal complaint. The rules sequentially set forth the procedure that governs “Requests for Investigation,” MCR 9.112, "Answer by Respondent,” MCR 9.113, "Action by Administrator or Commission after Answer,” MCR 9.114, "Hearing Panel Procedure,” MCR 9.115, and "Review of Order of Hearing Panel,” MCR 9.118. This structure describes discrete steps in the disciplinary process. In context, it thus appears clear that reference in Rule 9.114 to matters "then under investigation” was intended to allow the use of subpoenas in the investigative phase of disciplinary proceedings.

Under the Michigan rules, either the commission, the grievance administrator, or hearing panels of the Attorney Discipline Board may issue subpoenas, though all subpoenas must be issued in the name and under the seal of the Attorney Discipline Board, MCR 9.115(I)(1). Under MCR 9.115(B), the issuance of a complaint begins proceedings before a hearing panel. Since there is no time in which a complaint has been issued and a hearing panel is unable to issue a subpoena, once a complaint has been filed, the administrator may simply have a subpoena issued through the grievance panel. Thus, the position advanced by the respondent would render the subpoena power of the commission and its administrator redundant. Although it might be argued that the individual subpoena power of the commission is a matter of convenience and thus analogous to the power of an attorney of record under the rules of civil procedure, see MCR 2.506(B)(1), unlike the rules of civil procedure, the professional disciplinary rules do not require that a matter be "pending”⁹ at the issuance of the subpoena.

The nature of discovery under the professional disciplinary rules also indicates that strict limitations on the commission’s precomplaint subpoena power is both unwarranted and unwise. Discovery under the professional disciplinary rules, unlike discovery under the rules of civil procedure, is extremely limited during the postcomplaint period. MCR 9.115(F)(4). A demand for written documentation within the control of a respondent must be filed within twenty-one days of service of a formal complaint. MCR 9.115(F)(4)(a). The objects of discovery are limited to the documentary evidence to be introduced by the opposing party and to witness lists. MCR 9.115(F)(4)(a), Ob)- A deposition may only be taken of a witness living outside of the state or physically unable to attend the hearings. MCR 9.115(F)(4)(c). This scheme indicates that, unlike ordinary civil proceedings, there is little convenience to be gained in disciplinary proceedings by allowing a party to issue a subpoena after service of the complaint. More significantly, the professional disciplinary rules require any meaningful investigation by the commission to be completed prior to the service of the complaint. A thorough and efficient investigation of these matters is necessary, not only for the protection of the public, but also for the protection of those attorneys who might otherwise be faced with insufficiently investigated accusations.

A liberal construction of the commission’s subpoena powers in disciplinary proceedings is consistent with other licensing schemes employed in this state. The Attorney General, for example, has the authority to issue a precomplaint, investigative subpoena under § 16235(1) of the Public Health Code. MCL 333.16235(1); MSA 14.15(16235)(1). See Attorney General v Bruce, 422 Mich 157; 369 NW2d 826 (1985). Although we have not had occasion to consider it previously, similar powers appear to be granted to the Michigan Social Welfare Commission under §8 of the Social Welfare Act. MCL 400.8; MSA 16.408. There is nothing extraordinary about such authority,¹⁰ nor in our view is it unduly burdensome in a licensing regulatory scheme.¹¹

Although the plaintiff has not raised any constitutional challenge to the subpoena, we have considered the possibility that the commission’s exercise of its investigative subpoena power might be inconsistent with a respondent’s right against self-incrimination under US Const, Ams V, XIV. In our view, however, the very existence of this right weighs against a narrow construction of the commission’s power. It is well established that the Self-Incrimination Clause extends to protect attorneys in the course of disciplinary proceedings. Spevack v Klein, 385 US 511; 87 S Ct 625; 17 L Ed 2d 574 (1967). Indeed, in Kastigar v United States, 406 US 441; 92 S Ct 1653; 32 L Ed 2d 212 (1972), the United States Supreme Court held that the Fifth Amendment privilege against self-incrimination can be asserted in any proceeding. The right to subpoena a witness must not be confused with the right to compel testimony. Only the former is at issue in this matter.

Finally, we are unpersuaded by the suggestion that, if a respondent may also be deemed a witness, we would be faced with the prospect of paying witness fees and mileage to a respondent who is subpoenaed. The professional disciplinary rules provide, in pertinent part, simply that

[a] subpoenaed witness must be paid the same fee and mileage as a witness subpoenaed to testify in the circuit court.

In turn, the rules of civil procedure provide that either a witness or a party may be subpoenaed, though a subpoena is not required to compel a party to attend a hearing. MCR 2.506(A)(1). Furthermore, it has long been held that a party may be entitled to a witness fee and mileage. Smith v Smith, 146 Mich 686; 110 NW 59 (1906).¹²

Thus, we find nothing in the rules of professional disciplinary proceedings which provides, nor do we find any policy reason which persuades us, that a respondent may not also be a witness or that a respondent may not be subpoenaed prior to service of a complaint. Absent a compelling reason for doing otherwise, we are constrained by the rules themselves to adopt a liberal construction for the protection of the public, the courts, and the legal profession. MCR 9.102(A). We are satisfied that our acknowledgment of the commission’s investigative subpoena power over this plaintiff effectuates those purposes and therefore correctly applies the rules in this context. Most importantly, we believe that this conclusion is consistent with the constitutional duty of this Court and the professional responsibilities of all members of the Michigan Bar.

IV. CONCLUSION

Michigan’s rules of professional disciplinary procedure vest investigative power in the Attorney Grievance Commission for the protection of the public, the courts, and the legal profession. These rules must be liberally construed in accordance with the remedial purpose they serve. The power of the Grievance Commission to subpoena an attorney prior to service of a formal complaint is both essential to the commission’s investigative function and the plain meaning of the rules. The commission’s investigation in this matter was authorized by the rules of professional disciplinary procedure. The order of superintending control sought by the plaintiff is therefore denied.

Riley, C.J., and Brickley and Griffin, JJ., concurred with Boyle, J.

1 In accordance with this general proposition, the Michigan Court Rules provide:

The Attorney Grievance Commission is the prosecution arm of the Supreme Court for discharge of its constitutional responsibility to supervise and discipline Michigan attorneys. [MCR 9.108(A).]

It is further provided:

The Attorney Discipline Board is the adjudicative arm of the Supreme Court for discharge of its exclusive constitutional responsibility to supervise and discipline Michigan attorneys. [MCR 9.110(A).]

2 MCR 9.108(D)(1).

3 In fact, one week prior to the deposit discussed below, respondent also wrote a check on the account to "Harneo,” the office real estate company whose representative had initially filed the request to investigate.

4 At the time of these transactions, DR 9-102 provided:

(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:

(1) Funds reasonably sufficient to pay bank charges may be deposited therein.

(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.

5 Michigan courts have held that principles of statutory construction apply to the Michigan Court Rules. See, e.g., Issa v Garlinghouse, 133 Mich App 579, 581; 349 NW2d 527 (1984); Langell v LaCrosse, 149 Mich App 179, 181; 385 NW2d 643 (1986).

6 See, e.g., 1987 Cal Rules of Procedure 532; 7A Colo Rev Stat, Rules of Civ Procedure 246; 1987 Rules Regulating the Florida Bar 3-7.3; 1987 Minn Rules of Court, Professional Responsibility Rules 8(b); 1987 New York Rules of Court, §§ 603.4-603.5; 1988 Texas State Bar Rules, art 10, § 12.

7 See, e.g., 1987 Rules of North Carolina State Bar, art IX, § 28(2); 1986 Washington Court Rules, Rules on Lawyer Discipline, tit 13, Rules 13.1-13.2.

8 Looking to the case law of our sister states, we again find no persuasive precedent. In Mississippi State Bar v Attorney-Respondent, 367 So 2d 179 (Miss, 1979), it was held that in the absence of an explicit authorization in the Mississippi rules, an investigative subpoena may not be used prior to the initiation of formal proceedings. However, this decision was based upon a narrow construction of the Mississippi rules. A contrary conclusion was reached in North Carolina State Bar v Speckman, 57 NC App 116; 360 SE2d 129 (1987). Again, however, the decision was based upon a rather narrow construction of a unique North Carolina rule.

9 The references in MCR 2.506(B)(1) to "the court in which the matter is pending” and "attorney of record” might suggest that a subpoena may only be issued in a civil proceeding after the filing of a complaint. Cf. Hartman v Edwards, 260 Mich 281, 285; 244 NW 474 (1932). See also MCR 2.101(B).

10 Indeed, one opinion of our Court of Appeals has even upheld the investigative subpoena power of a city ombudsman. Vance v Ananich, 145 Mich App 833; 378 NW2d 616 (1985). See also Woll v Attorney General, 99 Mich App 749; 299 NW2d 25 (1980), lv den 410 Mich 910 (1981).

11 Federal licensing schemes also employ the use of investigatory subpoenas. See, e.g., 15 USC 78u(b) and Securities & Exchange Comm v Vacuum Can Co, 157 F2d 530 (CA 7, 1946), cert den 330 US 820 (1947) (the purpose of the sec’s subpoena is to discover evidence, not to prove a pending charge, but upon which to make one if the discovered evidence so justifies). See also 47 USC 403, 409(e) and Federal Communications Comm v Stahlman, 40 F Supp 338 (D DC, 1971), aff'd 75 US App DC 176; 126 F2d 124 (1942) (upholding the investigative subpoena power of the fcc despite the likelihood that the anticipated policy under investigation would exceed the fcc’s authority under its enabling act).

12 Although it may be inequitable to pay a nonprevailing, subpoenaed respondent witness fees and mileage, we note that there is nothing in the disciplinary rules which proscribes an order of costs to the prevailing party.