Anonymous v. Attorney Grievance Com'n

Decision Date19 April 1988
Docket NumberNo. 78874,78874
Citation422 N.W.2d 648,430 Mich. 241
PartiesANONYMOUS, Plaintiff, v. ATTORNEY GRIEVANCE COMMISSION, Defendant. 430 Mich. 241, 422 N.W.2d 648
CourtMichigan Supreme Court

BOYLE, Justice.

In this case, we are asked to decide whether the Attorney Grievance Commission was authorized to investigate the plaintiff's 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.


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 plaintiff's 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 N.W.2d 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 N.W.2d 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 plaintiff's client trust accounts was well within the power granted by the Michigan Court Rules. The administrator examined the account on which the plaintiff's NSF 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 plaintiff's 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 CommissionAuthorized 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, Sec. 5. In re Hague, 412 Mich. 532, 560, 315 N.W.2d 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 N.W.2d 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 P.2d 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...

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2 cases
  • Grievance Adm'r v. Attorney Discipline Bd., 97692
    • United States
    • Michigan Supreme Court
    • February 18, 1994
    ...stage to insure that there is a sufficient basis for the charges before filing a formal public complaint. Anonymous v. Attorney Grievance Comm'n, 430 Mich. 241, 253 (1988). MCR 9.115(F)(4) is meant to eliminate the general discovery utilized in civil circuit court matters which add time and......
  • Unnamed Attorney, In re
    • United States
    • Vermont Supreme Court
    • May 31, 1991
    ... ... 1 The case more similar to the one before us is Anonymous v. Attorney Grievance Comm'n, 430 Mich. 241, 256, 422 N.W.2d 648, 654 (1988), where the Michigan ... ...

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