State Bar Grievance Administrator v. Jaques

258 N.W.2d 443, 401 Mich. 516

• Court: Michigan Supreme Court
• Decided: March 31, 1978
• Docket: 58697, (Calendar No. 8)
• Status: Published

Opinions

Ryan, J.

Appellant Leonard C. Jaques appeals as of right the State Bar Grievance Board’s order affirming imposition of a three-year suspension of his privilege to practice law, plus payment of costs ordered by a hearing panel.

The complaints filed against Mr. Jaques by the Grievance Board charged him with violating former Canon 28 of the Canons of Professional Ethics, Canon 2, DR 2-103(A) and DR 2-103(0; DR 2-104(A)(5); and DR 2-105(A) of the Code of Professional Responsibility¹ and Rule 15, § 2(2); 15, § 2(3) and 15, § 2(4) of the Supreme Court Rules relating to the State Bar of Michigan.² It was alleged that Mr. Jaques personally and through the employment of others sought to and did solicit victims and survivors of the December 11, 1971 Port Huron tunnel explosion and that he personally urged certain persons to bring a lawsuit to compel an inquiry into the cause of the explosion.³

This case is before us following lengthy proceedings below. A request for investigation and then a formal complaint were served upon Mr. Jaques in the first half of 1972, more than five years ago, following a general investigation of allegations of misconduct arising out of the tunnel explosion. The matter was assigned to Wayne County Hearing Panel No. 17 which heard the testimony of six witnesses. Appellant then offered to plead nolo contendere to charges as amended by an oral stipulation and his plea was accepted. The panel ordered a one-year suspension from practice.

The State Bar Grievance Board eventually set aside appellant’s plea and remanded to Hearing Panel No. 17 to complete the formal hearing to the conclusion of the testimony. Two months prior to the filing of the board’s order a second request for investigation was served on Mr. Jaques and it was followed by a second formal complaint. The two complaints were consolidated for trial and assigned to Hearing Panel No. 12, Panel No. 17 having disqualified itself. Panel No. 12 was thereafter also disqualified and the case was reassigned to Hearing Panel No. 2. The members of Panel No. 2 were furnished an edited transcript of the testimony and exhibits produced at the earlier, truncated hearing. Panel No. 2 then heard ten more days of testimony during the period between October 1974 and May 1975 and entered an opinion and an order of discipline. The State Bar Grievance Board affirmed the findings and modified the order of discipline only as to the amount of costs.

Mr. Jaques appeals the findings below, asserting nine instances of error which raise essentially the following three issues:

1. Whether Mr. Jaques was afforded a fair hearing in accordance with the applicable rules;

2. Whether it is unethical to solicit persons to join in a class action which has not yet been filed; and

3. Whether the findings of misconduct are supported by the evidence.

I

Mr. Jaques claims the hearing afforded him was defective because: Hearing Panel No. 2 merely read the transcripts but did not hear the testimony of witnesses who appeared before Panel No. 17; the State Bar Grievance Administrator did not call all res gestae witnesses to the alleged misconduct; the hearing panel quashed a subpoena of counsel for the State Bar Grievance Administrator, denying appellant’s alleged right to call and examine him; the hearing panel did not conduct itself as an impartial arbiter; and, finally, the formal complaint gave insufficient notice of the charges.

Due process is the underpinning of these allegations of error. What we are concerned with, then, is that Mr. Jaques must have been afforded a fair hearing as well as one conducted in accordance with the rules adopted by this Court.

A good deal of appellant’s argument is put to us by way of analogy to criminal cases. We have long recognized that discipline and disbarment proceedings are quasi-criminal in character. State Bar of Michigan v Woll, 387 Mich 154; 194 NW2d 835 (1972). In light of that recognition we have imposed some of the same safeguards applied in criminal proceedings to grievance procedures for the protection of attorneys faced with charges of professional misconduct. For example, we have held that the allegedly errant attorney has a right to cross-examine witnesses, State Bar of Michigan v Murphy, 387 Mich 632; 198 NW2d 289 (1972), and to be fairly and specifically informed of the charges against him, State Bar Grievance Administrator v Freid, 388 Mich 711; 202 NW2d 692 (1972).

It is important, however, to remember that we are dealing with the disciplinary procedures of the State Bar of Michigan. As Justice Levin said in concurring in State Bar Grievance Administrator v Estes, 390 Mich 585, 602; 212 NW2d 903 (1973), "the Grievance Board is part of the administrative structure of this Court”. The State Bar Rules "shall be liberally construed for the protection of the public, the courts and the legal profession”. State Bar Grievance Rule 16.34(d).

In the State Bar Rules and in previous cases we have accordingly approved variances between disciplinary proceedings and the rigorous standards applied in the trial of criminal cases. We impose discipline if misconduct is proven by a preponderance of the evidence. State Bar Grievance Administrator v Jackson, 390 Mich 147; 211 NW2d 38 (1973); Grievance Rule 16.13. The cases are tried before panels of lawyers and the applicable rules provide that hearings are to be conducted in the same fashion as civil trials in nonjury cases.

It is fundamental that Mr. Jaques, as an attorney whose privilege to practice law is at stake, is entitled to a full and fair hearing. We do not believe, however, that we must apply the law of criminal trials to disciplinary proceedings at every turn.

"Due process * * * is a term that 'negates any concept of inflexible procedures universally applicable to every imaginable situation.’ Cafeteria Workers v McElroy, 367 US 886, 895 [81 S Ct 1743; 6 L Ed 2d 1230] (1961). Determining what process is due in a given setting requires the Court to take into account the individual’s stake in the decision at issue as well as the State’s interest in a particular procedure for making it.” Hortenville Joint School Dist No 1 v Hortenville Education Association, 426 US 482, 494; 96 S Ct 2308; 49 L Ed 2d 1 (1976).

Having said this much, we proceed to consider the individual allegations of error.

A.

We first hold that the hearing panel erred in receiving and considering as substantive evidence the edited transcript of the testimony of the witnesses who appeared before Panel No. 17. We need go no further than the State Bar Rules to reach this conclusion, although even without the rule our notion of fundamental fairness leads to the same conclusion.

Rule 16 of the State Bar Rules created the State Bar Grievance Board as an arm of this Court for the discharge of our exclusive constitutional duty to supervise the State Bar. Rule 16 and the associated Procedural and Administrative Rules prescribe the conduct of hearings on complaints issued by the State Bar Grievance Administrator. State Bar Rule 16 assigns to hearing panels the duty of holding public hearings, making findings of fact and ordering discipline, and requires that their actions be reported to the State Bar Grievance Board. Grievance Rule 16.3 provides that two members of the panel constitute a quorum and that action shall be by vote of a majority. Grievance Rule 16.10 allows the board to "reassign a complaint when the hearing panel fails to convene or complete its hearing within a reasonable time”.

The Grievance Administrator argued and the hearing panel agreed that when a case is reassigned it is not necessary to hear anew the testimony of witnesses who had appeared at an earlier hearing before the first panel. Under the circumstances present in the instant case, we disagree.

Although the rules contemplate the reassignment of cases, Grievance Rule 16.3.3(b) is also relevant. It provides that hearing panels shall "[r]eceive evidence and make written findings of fact”. We believe the directive of Grievance Rule 16.3.3(b) establishes a preference for the hearing panel that makes the initial finding of fact to likewise receive the testimony of witnesses. Where, as in the case at bar, the demeanor of witnesses may be an important factor in the resolution of disputed facts, Grievance Rule 16.3.3(b) controls and, absent an agreement to the contrary, the hearing panel to which a case is reassigned may not simply consider the record testimony of the witnesses who have appeared and resume the hearing where the former panel left off. See generally, 2 Davis, Administrative Law Treatise, § 11.18.

Our holding assures that where conflicting testimony must be resolved, a quorum of a hearing panel will personally hear and observe all the witnesses whose testimony is to be considered unless the Grievance Administrator properly establishes justification for their non-appearance, as for example where a witness is shown to be unavailable and his testimony is therefore admissible under the former testimony exception to the hearsay rule.

Of the six witnesses who testified at the hearing before Panel No. 17 in the instant case, three did not appear at the second. Appellant did not agree to the second panel’s consideration of their recorded testimony and the Grievance Administrator’s belated attempts to argue their unavailability do not satisfy the requirements of our case law for the use . of former testimony. See Rotter v Detroit United Railway 217 Mich 686; 187 NW 271 (1922); Karwick v Pickands, 181 Mich 169; 147 NW 605 (1914).

Hearing Panel No. 2 found that Mr. Jaques violated disciplinary rules in four instances, which for the sake of convenient reference we characterize as findings I, II, III and IV, to wit:

I. That Mr. Jaques personally solicited the local laborer’s union and some of its members to join in a class action Mr. Jaques was planning to file to compel the Coast Guard to investigate the tunnel explosion, in violation of DR 2-103(A) and DR 2-103(C). See also DR 2-104(A)(5).

II. That Mr. Jaques requested the agent for the local union, Robert J. McLaughlin, to recommend him to persons who had claims arising out of the explosion. DR 2-103(0 prohibits a lawyer from requesting another to recommend his employment.

III. That Mr. Jaques visited the home of Mrs. Rose Woolstenhulme, whose husband and grandson died in the explosion, and requested to be employed to represent her in violation of DR 2-103(A).

IV. That Mr. Jaques requested William Rounsoville, steward of the local laborer’s union, to recommend him to survivors of victims of the tunnel explosion, violating DR 2-103(C).

Findings III and IV were based in substantial part upon the testimony of the witnesses Rose Woolstenhulme, Madalene Williams and William Rounsoville who appeared before Panel No. 17 but not before Panel No. 2. The State Bar Grievance Board affirmed. For the reasons stated, we reverse those two findings.

The erroneous use by Panel No. 2 of the transcript of the earlier testimony does not, however, vitiate the entire proceeding. See Withrow v Larkin, 421 US 35; 95 S Ct 1456; 43 L Ed 2d 712 (1975). We reject Mr. Jaques’ contention that it does. It was not simply the hearing panel’s reading of the transcript which causes us to reverse findings III and IV, but its use as substantive evidence to support those findings. In making findings of misconduct I and II, the hearing panel did not rely upon the challenged transcript, but upon other witnesses the panel did see and hear. The unfairness which resulted from the panel’s improper reliance upon the transcript relates to findings III and IV only, and is amply rectified by our reversal of the Grievance Board’s findings with respect thereto. In so concluding, we believe appellant’s reliance upon People v Ramsey, 385 Mich 221; 187 NW2d 887 (1971) to be misplaced. Ramsey holds that in a criminal nonjury trial the presiding judge may not view the preliminary examination transcript. That decision is based on MCLA 768.26; MSA 28.1049 concerning the use of former testimony in criminal trials and the policy underlying a court rule⁴ requiring, in the absence of consent, that the judge who conducted the preliminary examination should not also try the case.

The requirements of a fair hearing are not technical. Mr. Jaques had a full evidentiary hearing before the hearing panel. The State Bar Grievance Board reviewed the entire record. Mr. Jaques is now before us on an appeal as of right. The members of this Court are bound to review the entire record to determine whether the findings, as affirmed by the Grievance Board, "have proper evidentiary support”. State Bar Grievance Administrator v Estes, supra, 593; State Bar Grievance Administrator v Beck, 400 Mich 40; 252 NW2d 795 (1977); Grievance Rule 16.24(h). Recognizing Mr. Jaques’ substantial stake in the outcome of this case, we believe the procedures afforded him satisfy the requirements of due process. We will, therefore, consider findings I and II and proceed to determine whether those findings have "proper evidentiary support”, and whether the hearing afforded Mr. Jaques was otherwise fairly conducted.

B.

Appellant next contends that Grievance Rule 16.5.2(b) which directs counsel for the State Bar Grievance Administrator to "[p]resent all available evidence relating to complaints” imposes upon him the same duty as that imposed upon the prosecutor in a criminal case to produce and examine all of the res gestae witnesses unless their testimony would be cumulative. Hurd v People, 25 Mich 405 (1872).

The duty to present all res gestae witnesses to a transaction or event has been applied only in criminal cases and, even then, is a duty imposed only upon the people. Its roots are in this Court’s historic concern that when the full investigative and prosecutorial power of the state is annoyed with an accused in a criminal case, the people’s duty is not met where only such evidence as points toward guilt is produced when there exists other evidence which may suggest innocence. It is a product of judicial policy that the prosecutor may not pick and choose which witnesses will fairly present the whole picture, but requires the production of all witnesses to an alleged crime, leaving it to the trier of fact to decide whether in the totality guilt is proven. We have discovered no authority, and the appellant has invited our attention to none, suggesting the duty to call res gestae witnesses applicable to bar discipline proceedings. We decline to so extend the rule of criminal law.

We do agree, however, that although not bound by the prophylactic rule of criminal law concerning res gestae witnesses, counsel for the Grievance Administrator does have the duty to seek justice and to develop a full and fair record. See ABA Code of Professional Responsibility, Canon 7, Ethical Consideration 7-14 concerning government lawyers.⁵

The Grievance Administrator’s duty was satisfied in the instant case. The two remaining charges against Mr. Jaques arose out of one incident. Counsel for the Grievance Administrator presented the testimony of two witnesses to that incident. Appellant called and examined several other persons present on the occasion. We believe the hearing was a fair one in this respect.

C.

The hearing panel quashed a subpoena served by appellant on Eugene LaBelle, counsel for the State Bar Grievance Administrator at the proceedings before both hearing panels. Relying on People v Davis, 52 Mich 569; 18 NW 362 (1884), and People v Reed, 393 Mich 342; 224 NW2d 867 (1975), appellant claims he was denied an opportunity to reach material matters. The subpoena here in question was served on Mr. LaBelle in March of 1975, after the hearing panel had heard seven days of testimony.

The reason given for calling Mr. LaBelle was to determine why some res gestae witnesses had not been called; whether any promise had been made to an attorney who was a chief witness against Mr. Jaques and who was associated with him during the period concerned here, that no complaint would be brought against the witness by the administrator in exchange for the testimony; and what conversations, if any, Mr. LaBelle had with other witnesses.

Appellant was afforded an opportunity to confront and cross-examine all of the witnesses against him. His claim, then, is that in the denial of an opportunity to question counsel, he was deprived of a fair hearing. The administrator, an assistant administrator and two investigators did testify before the hearing panel. Although we believe Mr. LaBelle could have testified, we do not believe the action of the hearing panel in quashing the subpoena deprived Mr. Jaques of a fair hearing. We will not extend Reed, supra, to disciplinary proceedings.

D.

Appellant next alleges he was denied a fair hearing because the members of the hearing panel were not impartial and because they became "embroiled in the advocacy of the cause”.

The allegation consists of several parts. We have already dealt with the effect of the hearing panel having viewed the transcript of the prior hearing. As to the alleged hostility of members of the hearing panel, we have reviewed the record and we are of the opinion that the conduct of the panel was entirely fair throughout the lengthy hearing and its members did not improperly examine witnesses. A trial judge may examine witnesses and call witnesses not called by either party. Nicholson v Davis, 327 Mich 115; 41 NW2d 494 (1950); Masters v Massachusetts Bonding & Ins Co, 349 Mich 98; 84 NW2d 462 (1957), and neither logic nor cited authority suggests the hearing panel may not do likewise. We must remember the nature of these proceedings and that we liberally construe the rules for the protection of the public, the courts and the profession. Grievance Rule 16.34. Appellant was not prevented from calling or cross-examining any witnesses or from getting important evidence into the record. We believe the record shows appellant’s defense was not undermined. See State Bar Grievance Administrator v Beck, supra.

Appellant also complains of the hearing panel’s ruling sustaining objections to questions put to it by his counsel concerning the appointment of members of the panel and possible previous connection with other discipline proceedings. We held in State Bar Grievance Administrator v Baun, 395 Mich 28; 232 NW2d 621 (1975), that the administrative connection between the Grievance Administrator, the hearing panel and the Grievance Board is sufficiently attenuated so that, without more, the discipline procedures are not inherently defective. Absent specific allegations of facts indicating bias or improper composition of the hearing panel, we perceive no denial of due process. See Baun, supra.

Finally in this connection, appellant complains of alleged ex parte communications between members of the hearing panel and the grievance administrator. None of the citations to the record show any communications resulting in denial of a fair hearing. We do not believe a miscarriage of justice resulted from advice by counsel for the grievance administrator to members of the hearing panel that the administrator would oppose motions filed by appellant and his brief discussion concerning scheduling of hearing dates with one member, or from a member somehow hearing that appellant had served a subpoena on a potential witness. The members of the hearing panel stated that they had not discussed the merits of the case with counsel. Grievance Rule 16.34(c). See Beck, supra.

E.

Appellant’s last due process argument concerns the addition of the second complaint and a claimed variance between the charges of the formal complaint and the findings of the hearing panel. We believe, first, that the complaints fairly informed appellant of the charges and that the findings we review here do not vary from the charges in those complaints. The charges are recited in footnote 3. A more definite statement could have been requested if one was desired and a conference could have been ordered on request to narrow the issues. GCR 1963, 115; Grievance Rule 16.11.

Moreover, we do not believe there was a failure to give advance notice of the charges which would deprive appellant of due process. In re Ruffalo, 390 US 544, 550; 88 S Ct 1222; 20 L Ed 2d 117 (1968). Although the second complaint added more explicit detail regarding the charge of solicitation of and through McLaughlin concerning the class action, we believe the factual allegations of the original complaint were sufficient notice of that charge, particularly when the entire complaint is considered. It specified violation of DR 2-104(A)(5) which directly concerns class actions. See footnote 1. Indeed the first hearing opened with argument by counsel for Mr. Jaques that DR 2-104(A)(5) condoned his conduct. The State Bar argued that Mr. Jaques’ interpretation of the rule was incorrect. This is not a case of charges being amended in the middle of a hearing to trap an attorney by his own testimony. Compare Ruffalo, supra. For the same reason we believe the addition of DR 2-103(A) by the second complaint was not unfair.

Similarly we are not persuaded that continuation of the hearing on the original charges after the Grievance Board allowed Mr. Jaques to withdraw his nolo contendere plea to the stipulated complaint amendments which involved solicitation of one survivor, Mrs. Woolstenhulme, and of Robert McLaughlin concerning a class action was unfair. We will not, as appellant requests, extend the principle of People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), to discipline proceedings.

The principal policy reasons underlying the decision in McMiller to prohibit the imposition of charges of a greater offense following successful appeal of a plea-based criminal conviction were two, and were stated as follows:

"Allowing trial on a higher charge following reversal of a plea-based conviction of a lesser offense would (1) discourage exercise of the defendant’s right to appeal a conviction claimed to be based on an improperly accepted plea, and (2) tend to insulate from appellate scrutiny non-compliance with the guilty plea procedure established by the statute and the court rule.” 389 Mich 432.

Overriding those considerations was the statistical reality that 75% of this state’s criminal cases are disposed of by guilty plea and the McMiller Court’s apparent desire to encourage a continuing high rate of plea-based dispositions in order to avoid the injustice inherent in criminal case docket backlog.

Those considerations are not applicable to bar discipline proceedings in this state.

II

Mr. Jaques contends that it is not improper for a lawyer to contact others for the purpose of obtaining their joinder to an action in the nature of a class action.

Mr. Jaques had been retained on December 13, 1971 by the father of a deceased tunnel worker. At the hearing Mr. Jaques testified that he telephoned Robert J. McLaughlin, the union’s business agent, for the purpose of discussing the possibility of the union and others joining in a class action he was going to bring to compel the Coast Guard to investigate the tunnel explosion. On December 15 a meeting was suggested and eventually agreed on and Mr. Jaques arranged for a room at a Holiday Inn near Port Huron. The meeting was held later that same day. McLaughlin, a number of union members invited by him (none of whom were victims or survivors of victims), and Father Luigi Maggioni, who represented the families of two victims, attended. Mr. Jaques took along some newspaper clippings about a successful suit he had initiated similar to the class action he was proposing to file and some "agreements to represent” by which potential plaintiffs could join the suit. The agreements provided no fee would be charged. Several other persons who attended the meeting gave testimony which corroborated the foregoing.

Appellant argues that DR 2-104(A)(5) recognizes a privilege to "contact others for the purpose of obtaining their joinder” and that consequently he should not be disciplined for this activity. The State Bar argues that the disciplinary rule allows only the acceptance of employment, not solicitation of it.

DR 2-104(A) establishes a general prohibition on the acceptance of employment by lawyers who have given unsolicited legal advice. It then provides, however, five exceptions. The fifth, which is in issue here, provides:

"If success in asserting rights or defenses of his client in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept, but shall not seek, employment from those contacted for the purpose of obtaining their joinder.” (Emphasis supplied.)

Without judging Mr. Jaques’ determination that an action in the nature of mandamus to compel the Coast Guard to investigate the explosion was appropriate, or that the suit would be more likely to be successful if brought as a class action, we believe the disciplinary rules adopted by this Court are not tolerant of the sort of conduct in which Mr. Jaques was here engaged. Although Mr. Jaques had a client, no suit had yet been filed.⁶ An in-person meeting was initiated by Mr. Jaques four days after the tragic tunnel explosion and involved persons with whom he had no prior professional contact. We are not here concerned with court-approved notice to members of a court-approved class.

The entire thrust of the disciplinary rules is that it is unprofessional for an attorney to seek out and solicit persons with whom he or she has no preexisting relationship in order to suggest litigation begin. DR 2-103(A) prohibits a lawyer from recommending his employment to a nonlawyer who has not sought his advice regarding employment of a lawyer, and under DR 2-103(C) he máy not request another to recommend his employment. We believe DR 2-104(A)(5), although allowing acceptance of employment under certain circumstances, represents continued disapproval of personal solicitation by lawyers of specific claims. See ABA Committee on Professional Ethics and Grievances, Formal Opinion No. Ill (May 10, 1934); ABA Committee on Ethics and Professional Responsibility, Informal Opinion No. 1283 (November 20, 1973); Halverson v Convenient Food Mart, Inc, 458 F2d 927 (CA 7, 1972). Although we acknowledge and will consider that Mr. Jaques suggests a plausible interpretation of the rule, we do not believe it is a correct one.

Ill

Mr. Jaques attacks the findings of the hearing panel as being unsupported by the evidence. We have reviewed the record to determine whether there is proper evidentiary support for the two remaining findings of misconduct, I and II.

The hearing panel first found, as discussed above, that Mr. Jaques had personally solicited the local union and others to join in a class action that would be commenced. Mr. Jaques’ own testimony is sufficient proof of this charge.

It was also found that Mr. Jaques requested the union agent, Mr. McLaughlin, to recommend him to persons who had claims arising out of the tunnel explosion. It is undisputed that Mr. Jaques telephoned Mr. McLaughlin, ostensibly for the purpose of getting the union to join the contemplated class action. McLaughlin’s testimony at the second hearing supports the findings. He testified that he told Mr. Jaques that most of the families of the tunnel victims had not retained an attorney. Mr. Jaques suggested the two should meet. It is also fairly clear that Mr. Jaques gave Mr. McLaughlin a number of business cards and contingent fee contracts. Mr. Jaques’ associate testified before Panel No. 2 that there was a one- to two-inch high stack of Jaques’ business cards on a table at the motel, as well as a number of the standard contracts which Mr. Jaques’ personal injury claim clients generally signed. Other witnesses who attended the meeting testified they did not see any cards or contracts on any table. Mr. Jaques claims the contracts given to McLaughlin concerned only the class action. However, McLaughlin testified on cross-examination that the contracts contained the word "death” which does not appear in the "authority to represent agreement” Mr. Jaques produced at that later hearing and claimed was the only agreement distributed at the Holiday Inn. McLaughlin testified that Mr. Jaques told him in regard to the business cards that he could "meet with my people” and pass them out, "my people” being the surviving family members of the deceased laborers. McLaughlin apparently did not actively distribute the agreements.

IV

In view of the foregoing we conclude that the findings that Mr. Jaques violated DR 2-103(A) and DR 2-103(0 by personally soliciting McLaughlin and members of the local laborer’s union to join in a class action he was planning to file, and DR 2-103(C) by requesting McLaughlin, the agent for the local union, to recommend him to persons who had claims arising out of the tunnel explosion, heretofore described as Grievance Board findings I and II respectively, are supported by substantial evidence in the record.

As indicated, we reverse Grievance Board findings III and IV, the alleged solicitation of Rose Woolstenhulme and the alleged request of William Rounsoville to recommend Jaques to survivors of explosion victims.

Conduct violating rules of ethics adopted by this Court and conduct exposing the profession to obloquy, contempt, censure or reproach are grounds for discipline. State Bar Rule 15, §§ 2(2), 2(3) and 2(4).⁷ The kind of solicitation involved in this case remains the classic example of the public conception of "ambulance chasing” which not only exposes the profession to public contempt, but unjustly exposes its thousands of innocent individual members to concomitant derision and contempt despite their steady allegiance to ethical norms and professional self-discipline.

Having determined that the appellant is guilty of the misconduct described, we modify the Grievance Board’s order of discipline to reduce the suspension of Mr. Jaques’ license to practice law from 3 years to 24 months from and after the date of entry of our order to that effect and affirm the order as modified.

Williams, Coleman, and Fitzgerald, JJ., concurred with Ryan, J.

1 Canon 2 and the enumerated Disciplinary Rules of the Code of Professional Responsibility associated with it provide as follows:

Canon 2: "A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available.”

DR 2-103: "Recommendation of Professional Employment.

"(A) A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a nonlawyer who has not sought his advice regarding employment of a lawyer.

"(C) a lawyer shall not request a person or organization to recommend employment, as a private practitioner, of himself, his partner, or associate, except that he may request referrals from a lawyer referral service operated, sponsored, or approved by a bar association representative of the general bar of the geographical area in which the association exists and may pay its fees incident thereto.”

DR 2-104: "Suggestion of Need of Legal Services.

"(A) A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that:

"(5) If success in asserting rights or defenses of his client in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept, but shall not seek, employment from those contacted for the purpose of obtaining their joinder.”

2 State Bar Rule 15 provides in relevant part:

Sec. 2. "Grounds for Discipline in General.

"The following acts or omissions by a member of bar of this State, individually or in concert with any other person or persons, shall constitute misconduct and shall be grounds for discipline whether or not the act or omission occurred in the course of an attorney-client relationship.

"(2) Conduct that exposes the legal profession or the courts to obloquy, contempt, censure or reproach;

"(3) Conduct that is contrary to justice, ethics, honesty or good morals;

"(4) Conduct that violates the standards or rules of ethics or professional responsibility adopted from time to time by the Supreme Court of this State.”

3 The specific charges on which findings were eventually made were set forth in two complaints. The first formal complaint charged:

"That on or about December 13, 1971, respondent personally arranged to meet Robert J. McLaughlin, Jr., business agent for Local 463 of the Laborers International Union of North America and did so meet with McLaughlin on said day and date for the stated purpose of obtaining McLaughlin’s assistance, as an officer of said union, in soliciting the victims and/or survivors of victims of a tunnel explosion at Port Huron occurring December 11, 1971.

"That McLaughlin personally, and as an officer of said union refused to endorse respondent as an attorney recommended to said victims and/or survivors by him or the local union.

"That thereafter, from on or about December 13, 1971 to on or about February 1, 1972, and on frequent occasions in the interim respondent, individually and in concert with Edward Paige and/or William Rounsoville solicited or caused to be solicited the personal and/or derivative claims, and/or contemplated personal and/or derivative claims of the victims and/or survivors of said victims of said explosion, to wit:

(1) Mrs. Johanna Laretz;

(2) Mrs. Maddelin Williams; [sic]

(3) Mrs. Rose Woolstenhulme;

(4) Mrs. Sue Curtis;

(5) Mrs. Maggie Epperson;

(6) Mrs. Judy A. Hardel;

(7) Francis M. Hamricks;

(8) Olin Hamricks, Jr.; and

(9) Joyce Simkins (Mrs.)

"That the foregoing violated Code of Professional Responsibility DR 2-103(C); DR 2-104(A)(5); and DR 2-105(A) and the Supreme Court Rules relating to the State Bar of Michigan.”

The second formal complaint alleged:

"That on or about December 15, 1971, respondent met with Robert J. McLaughlin, business agent of Local 463 of the Laborers Union at Port Huron, Michigan, and did, then and there:

"(a) Volunteered advice to said McLaughlin to bring a lawsuit or lawsuits on behalf of said union for the purpose of precipitating an inquiry into the causes of an explosion in a tunnel being constructed in the vicinity in which members of said union were employed at the time of said explosion;

"(b) Sought to persuade said McLaughlin to act on behalf of respondent to solicit and/or seek out survivors of said explosion and/or next of kin of victims of said explosion for the purpose of employing respondent as their attorney to prosecute any and all compensation or personal injury claims of said victims and/or their next of kin.

"That said conduct is in violation of former Canon 28 of the Canons of Professional Ethics, Canon 2, DR 2-103(A) and (C) of the Code of Professional Responsibility and Rule 15, § 2(2)(3) and (4) of the Supreme Court Rules relating to the State Bar of Michigan.”

4 RCR 8.

5 Ethical Consideration 7-14 provides in pertinent part:

"A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair reeord * * * .”

6 There was no absolute need to enlist others to join the proposed class action as parties plaintiff. FR Civ P 23 allows one person to bring suit on behalf of a class.

7 We are not unmindful that certain broad restrictions on lawyer advertising may no longer be imposed. In Bates v State Bar of Arizona, 433 US 350; 97 S Ct 2691; 53 L Ed 2d 810 (1977), the United States Supreme Court held that a rule which would punish truthful newspaper advertisement concerning the availability and terms of routine legal services is violative of the first Amendment. The Court specifically pointed out, however, that the problems of in-person solicitation and the attendant possibilities for the exertion of undue influence were not before it.

The instant case presents a situation not of impersonal advertising of routine services directed to the public in general. Rather, we are concerned with direct solicitation of specific claims by an attorney. In addition, it is clear from Mr. Jaques’ own testimony that he took to Port Huron newspaper clippings relating his accomplishments as a lawyer. The decision in Bates, supra, also reserved decision on whether restrictions could be placed on claims as to the quality of services.

Since Bates does not reach the constitutionality of the disciplinary rules violated by Mr. Jaques, it is inapplicable to this case.