State Bar Grievance Administrator v. Estes

212 N.W.2d 903, 390 Mich. 585, 92 A.L.R. 3d 275, 1973 Mich. LEXIS 163
CourtMichigan Supreme Court
DecidedDecember 18, 1973
Docket7 September Term 1973, Docket No. 54,463
StatusPublished
Cited by36 cases

This text of 212 N.W.2d 903 (State Bar Grievance Administrator v. Estes) 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
State Bar Grievance Administrator v. Estes, 212 N.W.2d 903, 390 Mich. 585, 92 A.L.R. 3d 275, 1973 Mich. LEXIS 163 (Mich. 1973).

Opinions

Williams, J.

This case comes to us on appeal from the State Bar Grievance Board (hereafter "Board”). Appellant áttorney, Walter O. Estes, contends both that the facts elicited in hearing panel testimony are insufficient to support a finding of unprofessional conduct, and that, in any case, such conduct as the Board found appellant engaged in does not present grounds warranting disciplinary suspension from the practice of law. Thus the facts in this case are of essential importance.

I—FACTS

Appellant represented a client, Earl Harmon, who was involved in a rear-end accident in East Lansing on September 7, 1965. Previously, without counsel, Harmon had consented to a judgment against him of $855.25 in favor of the City of East Lansing, owner of the truck that Harmon rear-ended. Appellant represented Harmon in a second suit, a personal injury action brought by a passen[590]*590ger in the truck, Charles L. Malcomb, on June 26, 1967.

Appellant prepared an answer to the suit which he filed and mailed to Harmon; he took Harmon’s deposition on January 5, 1968. Appellant stated that he gave Harmon notice of deposition by letter after he was unable to reach Harmon by using the telephone number Harmon gave him. Just after the deposition was taken, appellant testified that he had a conversation with his client wherein Harmon agreed with appellant’s advice that liability had been "virtually admitted” and that the only issue remaining was damages. Appellant claims that this conversation constituted authorization to make "as good a settlement as he could on the damages”. It is a controverted question whether or not Harmon himself admitted or denied in his hearing-panel testimony that he was told by appellant that the damages were the only remaining issue, or whether he admitted or denied authorizing settlement.

A trial date was set in this action for February 16, 1971. On January 9, 1970, appellant consented to the entry of a summary judgment in favor, of plaintiff as to liability. On February 19, 1971, appellant consented to the entry of a consent judgment for damages in the sum of $30,654.35. No correspondence or conversations at all were had before entry of these judgments by appellant with Harmon after the January 5, 1968, conversation at Harmon’s deposition. Appellant stated that he attempted to phone his client before both the summary and consent judgments, but was unable to reach him; no written communications were attempted. Harmon testified that the first notification he had of these judgments was by the Secre[591]*591tary of State when his operator’s license was revoked for failure to satisfy the consent judgment. During all this period, Harmon resided at the same address appellant wrote to in 1967. Appellant testified that Harmon’s home was about five miles from his office.

Appellant justifies his lack of contact with Harmon on the grounds that he was expressly authorized to make as good a settlement as possible and that the amount he consented to was $19,000 less than plaintiffs "confirmed damages”. Before the hearing panel, appellant admitted that he was aware that there was considerable doubt whether Harmon, a farm laborer, could pay a judgment of this magnitude.

A Board hearing panel found that appellant had violated Rule 14 (now Rule 15), §§ (1), (2), and (3) and an order was filed July 17, 1972, suspending appellant from the practice of law for one year. The Board affirmed the panel on October 18, 1972.

II—STANDARD FOR REVIEW

Appellant appealed to this Court under Rule 16.23 of the Michigan Supreme Court Rules for the State Bar Grievance Board from a final order of discipline. The initial issue to be resolved is the nature of our review on appeal of Board final orders. Traditionally, review of such orders has been in the nature of certiorari rather than de novo review. Attorney General v Lane, 259 Mich 283, 285-287; 243 NW 6 (1932); cert den 287 US 654; 77 L Ed 565; 53 S Ct 115 (1932); Attorney General v Nelson, 263 Mich 686, 700-701; 249 NW 439 (1933); Attorney General v Shaw, 289 Mich 468, 469; 286 NW 793 (1939); In re Estes, 355 Mich [592]*592411, 424; 94 NW2d 916 (1959); cert den 361 US 829; 4 L Ed 2d 71; 80 S Ct 77 (1959).1

We have not had cause though to discuss the question of standard of review since the advent of new disciplinary rules and procedures effective March 1, 1970. It is significant that the new disciplinary procedures are, prior to final review by this Court, administrative and quasi-judicial in nature, rather than primarily judicial. Const 1963, art 6, § 28, provides in relevant part:

"Sec. 28. All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.”

Review in the nature of certiorari meets this constitutional requirement. It also serves to give real meaning to the powers and duties given the Board and hearing panels under Rule 16. We thus retain the standard for review established by case [593]*593law prior to adoption of these new disciplinary rules. Thus we will not proceed to adjudicate this case de novo, but instead we will determine whether the Board’s findings have proper evidentiary support on the whole record.

Ill—EVIDENTIARY SUPPORT FOR FINDINGS

The hearing panel in this action made the following findings which were affirmed by the Board:

"CONCLUSIONS
"Upon careful consideration of the facts, the panel concludes as follows:
"1) That Respondent failed to fully and properly keep his client advised and informed of the proceedings in the cause pending against the Complainant and in which Respondent had undertaken to defend him.
"2) That Respondent failed to communicate with the Complainant Harmon, his client, and to obtain his consent to the entry of the Consent Judgment and for that matter consent to the entry of the partial summary judgment regarding liability.
"3) That he did not have authority either express or implied to consent to the entry of judgment for $30,654.35; that the decision as to whether a consent judgment ought to be agreed to is a decision which only a client can make after discussion with and advice by the attorney.
"4) That Respondent did in the premises violate Rule 14 [now Rule 15] (1) (2) (3).

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Bluebook (online)
212 N.W.2d 903, 390 Mich. 585, 92 A.L.R. 3d 275, 1973 Mich. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-bar-grievance-administrator-v-estes-mich-1973.