Grievance Administrator v. Deutch

565 N.W.2d 369, 455 Mich. 149
CourtMichigan Supreme Court
DecidedJuly 15, 1997
Docket102962, Calendar No. 11
StatusPublished
Cited by16 cases

This text of 565 N.W.2d 369 (Grievance Administrator v. Deutch) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grievance Administrator v. Deutch, 565 N.W.2d 369, 455 Mich. 149 (Mich. 1997).

Opinions

Weaver, J.

Plaintiff-appellant, the Grievance Administrator, representing the Attorney Grievance Commission and the State of Michigan, appeals the Attorney Discipline Board’s affirmance of three independent hearing panel decisions to dismiss disciplinary proceedings against respondents Marvin G. Deutch and Vickey O. Howell for their respective operating while impaired (“drunk driving”) convictions under MCL 257.625; MSA 9.2325.

We granted leave to determine whether these hearing panels had the authority to dismiss the disciplinary proceedings when the panels found that drunk driving did not, facially, reflect adversely on an attorney’s honesty, trustworthiness, or fitness as a lawyer under MRPC 8.4(b).

We hold that hearing panels do not have the authority to dismiss disciplinary proceedings at an ini[153]*153tial misconduct hearing, which determines the existence of professional misconduct,1 when the Grievance Administrator provides proof of a violation of MCR 9.104(5) with a judgment of conviction of misdemeanor drunk driving. However, we further hold that at the second-stage hearing, which determines the level of discipline,2 hearing panels do have the discretion to issue orders of discipline appropriate to the specific facts of a case, including orders that effectively impose no discipline. Such disciplinary orders, however, can be issued only after a finding of misconduct at the initial hearing and after both parties have had an opportunity to present “any and all relevant evidence of aggravation or mitigation” at the second hearing.

Accordingly, we reverse the board’s decisions that held the administrator failed to establish misconduct at the initial hearings for Deutch and Howell. We find that the judgment of conviction filings against Deutch and Howell for their respective drunk driving convictions constituted “misconduct” under MCR 9.104(5), regardless of whether these convictions, on their face, reflect adversely on the attorneys’ honesty, trustworthiness, or fitness as lawyers under MRPC 8.4(b).

We remand these disciplinary proceedings against respondents Deutch and Howell to the board for appointment of hearing panels to determine the appropriate level of discipline to impose and to enter orders of discipline pursuant to MCR 9.115(J)(1) and (3).

[154]*154I

RESPONDENT DEUTCH

On July 28, 1993, Deutch was convicted of a misdemeanor for operation of a motor vehicle while visibly impaired, a violation of West Bloomfield Township Ordinance 5.15-22 and MCL 257.625; MSA 9.2325.

In May, 1994, the Grievance Administrator commenced disciplinary actions against Deutch pursuant to MCR 9.120(B)(3) by filing a judgment of conviction for drunk driving, a misdemeanor punishable by imprisonment, with the board.3 Pursuant to MCR 9.120(B)(3), the board issued Deutch an order to show cause why a final order of discipline should not be entered against him. In response, Deutch filed a motion to dismiss.

On June 14, 1994, Hearing Panel No. 58 unanimously granted Deutch’s motion to dismiss with prejudice. Panel 58 concluded that Deutch’s conviction under a local drunk driving ordinance did not constitute misconduct because it was not an adverse reflection on his honesty, trustworthiness, or fitness as a lawyer, and was “certainly” de minimis misconduct “at most.”

[155]*155RESPONDENT HOWELL

Respondent Howell had two drunk driving convictions, each separated by less than a year. In fact, her second conviction occurred while she was still on probation for the first and constituted an express violation of her probationary terms.

Howell was initially convicted, by a guilty plea, on June 22, 1992, of misdemeanor operating a motor vehicle while impaired, a crime punishable by imprisonment under Bloomfield Township Ordinance 5.15 and MCL 257.625; MSA 9.2325. The disciplinary proceedings against Howell were not initiated immediately in response to this conviction. Rather, the administrator waited to pursue disciplinary action until Howell, while still on probation for the first offense, received a second drunk driving conviction on June 9, 1993.

On March 16, 1994 the administrator filed a judgment of conviction with the board, MCR 9.120(B)(3), for the 1992 drunk driving offense. On May 31, 1994, the administrator filed a judgment of conviction with the board for Howell’s 1993 drunk driving conviction.

On July 29, 1994, panel 76 dismissed with prejudice the disciplinary proceedings based on the 1992 conviction. On September 12, 1994, panel 75 dismissed, again with prejudice, the disciplinary proceedings against Howell for her 1993 conviction. As in Deutch’s case, both panels found that the drunk driving convictions did not reflect adversely on the attorney’s honesty, trustworthiness, or fitness as a lawyer under MRPC 8.4(b).

Panel 75 refused to consider Howell’s prior conviction and the fact that she had violated her probation terms because the administrator had filed a judgment [156]*156of conviction under MCR 9.120(B)(3). Because the administrator did not bring a formal complaint against Howell that specifically alleged that she was a recidivist and had violated the express terms of her probation, panel 75 reasoned that it could only consider the isolated fact of the single 1993 misdemeanor conviction.4

APPELLATE REVIEW

The administrator appealed to the board to vacate the respective dismissal orders. In each case, the board affirmed the hearing panels’ dismissals and found that the drunk driving convictions did not constitute misconduct because misdemeanor drunk driving convictions, standing alone, did not reflect adversely on the attorneys’ honesty, trustworthiness, or fitness as a lawyer. With respect to Howell, the board also affirmed panel 75’s determination that her prior conviction and probation violation were not material because the administrator initiated and based the disciplinary proceedings on the judgment of conviction, pursuant to MCR 9.120(B)(3).

n

In determining the propriety of the board’s decision, we must address three issues: first, whether hearing panels have authority to dismiss disciplinary actions at the misconduct hearing where the administrator files a judgment of conviction for misdemeanor drunk driving; second, the relationship between MCR [157]*1579.104(5) and MRPC 8.4(b); and, third, whether Deutch and Howell committed misconduct. We address each issue in turn.

A

To determine whether hearing panels have authority to dismiss disciplinary actions when the administrator has filed a judgment of conviction, we must consider the respective roles of the Attorney Grievance Commission and of the Attorney Discipline Board. The Michigan Court Rules, promulgated by this Court in furtherance of our duty to govern the legal profession,5 provide the following regarding the standard of conduct for Michigan attorneys:

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 as an attorney and counselor and as an officer of the court.

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Grievance Administrator v. Deutch
565 N.W.2d 369 (Michigan Supreme Court, 1997)

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565 N.W.2d 369, 455 Mich. 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grievance-administrator-v-deutch-mich-1997.