Grievance Administrator v. Attorney Discipline Board

522 N.W.2d 868, 447 Mich. 411, 1994 WL 627468

• Court: Michigan Supreme Court
• Decided: October 31, 1994
• Docket: Docket 99015
• Status: Published

Opinions

Memorandum Opinion. This dispute concerns several unrelated discipline cases that the Attorney Discipline Board (adb) has discontinued (or has indicated an intention to discontinue). Each discontinuance is premised on the ground that, because the lawyer’s license was already revoked in an earlier discipline case, the lawyer no longer is within the jurisdiction of the adb.¹

The Grievance Administrator has filed in this Court a complaint for mandamus.² MCR 7.304(A). He asks us to exercise superintending control³ and reinstate the underlying discipline cases.

The Grievance Administrator argues that the court rules continue to govern the conduct of an attorney whose license is revoked,⁴ as well as the eligibility requirements and procedure for reinstatement.⁵ The Grievance Administrator further argues that public policy considerations strongly weigh in favor of continued prosecution where the misconduct is serious, since there may be legal and evidentiary obstacles to proving a stale misconduct charge if, after a number of years, the lawyer’s license is reinstated and the second prosecution is reinstituted.

The adb responds that MCR 9.101(5) defines an "attorney” as "a person regularly licensed or specially admitted to practice law in Michigan,”⁶ and argues that a disbarred lawyer is no longer such a person. The adb also says that its discontinuance orders are consistent with the views of two prior Grievance Administrators, who took the position that the adb had no jurisdiction over disbarred lawyers.

The Grievance Administrator’s arguments are persuasive. Under our court rules, the adb retains jurisdiction to consider misconduct committed during the period of licensure by attorneys whose licenses were later revoked.

However, the adb has discretion to enter appropriate orders in discipline cases. Thus, it may enter a discontinuance without prejudice to further proceedings if, in the particular circumstances of an individual case, that is the appropriate order.

We vacate the discontinuance orders of the Attorney Discipline Board and direct the adb to reconsider separately each of the underlying discipline cases. On remand, the adb must determine whether, in light of all the circumstances, a discontinuance is the appropriate resolution of each case at this time. MCR 7.302(F)(1).

Cavanagh, C.J., and Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred.

1 The adb orders thus indicate that the discontinuances are "without prejudice” so that the discipline proceedings can be reinstituted if the lawyer is later readmitted to the practice of law in Michigan.

2 The Grievance Administrator has also filed a motion for immediate consideration, which we grant.

3 MCR 7.304(A) permits the filing of a complaint for mandamus "to implement the Court’s superintending control power over the . . . Attorney Discipline Board

4 MCR 9.119.

5 MCR 9.123, 9.124.

6 The Grievance Administrator replies that the definition should be understood to include any person who has been "regularly licensed or specially admitted to practice law in Michigan,” even if the license to practice is suspended or revoked.