August, Matter of, Docket No. 94561

• Decision Date: 26 January 1993
• Docket Number: Docket No. 94561
• Parties: In the Matter of Petition for Reinstatement of Irving A. AUGUST. Grievance Administrator, Appellant.
• Court: Michigan Supreme Court

Page 143

495 N.W.2d 143

441 Mich. 1207

In the Matter of Petition for Reinstatement of Irving A. AUGUST Grievance Administrator, Appellant.

Docket No. 94561.

Supreme Court of Michigan.

Jan. 26, 1993.

ORDER

On order of the Court, the motion for immediate consideration is considered, and it is GRANTED. The application for leave to appeal is also considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REVERSE the reinstatement order of the Attorney Discipline Board and we REINSTATE the hearing panel's order denying reinstatement. While we are mindful of the careful consideration that has been given to this matter by the Attorney Discipline Board, the power to regulate and discipline members of the bar rests ultimately with this Court pursuant to constitutional mandate. Grievance Administrator v. August, 438 Mich. 296, 304, 475 N.W.2d 256 (1991), In re Schlossberg v. State Bar Grievance Board, 388 Mich. 389, 395, 200 N.W.2d 219 (1972). For the reasons stated in the dissent to the Attorney Discipline Board's opinion granting reinstatement, the circumstances of this case, including the nature of the petitioner's misconduct, compel the conclusion that the hearing panel was correct in its determination that the petitioner should not be reinstated at this time. The motion for peremptory affirmance is DENIED. The motion for stay is DENIED as moot.

BOYLE, J., states as follows:

I would deny leave to appeal or would grant leave to give guidance to the Attorney Discipline Board regarding applications for reinstatement in similar circumstances.

LEVIN, J., dissents and states as follows:

I would deny or grant leave to appeal. I adhere to the view that peremptory reversal should be reserved for cases in which the law is settled and no factual assessment is required. ¹ In the instant case, as The order of peremptory reversal of the Attorney Discipline Board does not contain a statement of facts or an adequate statement of reasons for decision.

indicated in the peremptory order, factual and legal assessment is required. Peremptory disposition is not appropriate. Further, this Court's peremptory disposition does not comply with the requirements of Const. 1963, art. 6, Sec. 6, which requires that "[d]ecisions of the supreme court, including all decisions on prerogative writs, shall be in writing and shall contain a concise statement of the facts and reasons for each decision...."

The statement in this Court's order--the "reasons stated in the dissent to the Attorney Discipline Board's opinion granting reinstatement, the circumstances of this case, including the nature of [August's] misconduct, compel the conclusion that the hearing panel" correctly determined that August "should not be reinstated at this time"--provides little or no guidance to August, the public, the profession, hearing panels, and the Attorney Discipline Board concerning what might constitute an appropriate period of time in light of the "circumstances of this case, including the nature" of August's misconduct.

I

Although the peremptory order does not contain a statement of facts, a statement of facts and of the history of proceedings is set forth in the opinion of the Court in Grievance Administrator v. August, 438 Mich. 296, 475 N.W.2d 256 (1991). That statement of facts and history of proceedings does not discharge this Court's constitutional obligation to include "a concise statement of the facts" in rendering a decision, because the statement of facts and proceedings set forth in August is necessarily incomplete; in August, this Court vacated an earlier order of the Attorney Discipline Board reinstating August's license to practice law and remanded the matter to the Attorney Discipline Board for further consideration in light of the Court's opinion.

Subsequently, the Attorney Discipline Board appointed a master to take testimony and to submit to the board a supplemental report containing the master's findings and conclusions concerning August's eligibility for reinstatement. The hearing was conducted, the master reported to the Attorney Discipline Board, the Board ordered that August be reinstated, and the Grievance Administrator applied for leave to appeal.

II

The Michigan Court Rules ² provide that a lawyer who has been suspended for more than 119 days or who has been disbarred may be reinstated by the Attorney Discipline Board if, among other criteria, the board concludes that

--the lawyer's conduct, since the order of discipline was entered, "has been exemplary and above reproach" (MCR 9.123[B], and

--the lawyer has a "proper understanding of and attitude toward" the "standards" imposed on members of the bar (MCR 9.123[B], and --the lawyer can "safely be recommended " to the public, the courts and the legal profession "as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the court...." (MCR 9.123[B]. (Emphasis added.)

August's petition for reinstatement was heard by a three-member hearing panel in 1989. All three members agreed that August met the clauses 5 and 6 criteria:

--August's conduct since the order of discipline was entered had "been exemplary and above reproach" and

--August had a proper understanding of and attitude toward and would conduct himself in conformity with the standards imposed on members of the profession if he were to be reinstated.

A majority of the hearing panel denied reinstatement, but on appeal the Attorney Discipline Board ordered reinstatement in 1989, with one member dissenting--the same member who dissented from the order of reinstatement entered by the board following further consideration by the board after remand by this Court.

The sole dissenter on the board has not contended that August does not meet the clauses 5 and 6 criteria requiring that the conduct of a person seeking reinstatement since the order of discipline shall have been exemplary and above reproach and that such a person has a proper understanding of and attitude toward and would conduct themself in conformity with the standards imposed on members of the profession if he were to be reinstated.

The sole disagreement concerns the construction and application of the clause 7 criterion which requires that there be a finding that the lawyer can "safely be recommended" to the public, the courts, and the legal profession "as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the court."

A

The majority of the hearing panel and the dissenter on the Attorney Discipline Board concluded that August could not be safely recommended to the public, the courts, and the legal profession because, having in mind the seriousness of the offense committed by August, they were not, as stated by the hearing panel majority, convinced that his "subsequent conduct, no matter how exemplary, has sufficiently ameliorated the taint placed upon the legal profession, by his commission of the crimes in question, to the extent that he could now be safely recommended as a person of trust. To do so, would only further erode an already diminishing public confidence in the legal system." (Emphasis added.)

The dissenter on the Attorney Discipline Board, noting that her colleagues on the board "acknowledge that the petitioner's conduct which led to his conviction was particularly reprehensible," expressed her agreement with the majority of the hearing panel "that reinstatement in this case will inevitably erode public confidence in the legal system and that that consideration was relevant to the finding that the petitioner cannot be safely recommended to the public as a person fit to act in matters of trust and confidence."

B

The peremptory order entered today adopts "the reasons stated in the dissent to the Attorney Discipline Board's opinion granting reinstatement...." ³ The reasons stated in the dissent will accordingly be read as a further elucidation of this Court's opinion in August. That underscores, entirely apart from the merits, the impropriety of entering this peremptory order.

Elaboration on and modification of this Court's opinion in August should not be undertaken except on plenary consideration with full briefing, oral argument, and opinions.

The opinion of the Court in August spoke of the "nature of the offense" and the "time elapsed" since the commission of the offense and disbarment as relevant and important considerations in determining whether a disbarred attorney should be recommended to the position of public trust held by members of the State Bar.

The view of the dissenting board member, which it will be contended the Court adopted today, added concerns not recognized in the opinion of the Court in August:

--the passage of nine and a half years "had not ameliorated the taint on the legal profession caused by the petitioner's crimes;"

--reinstatement "will inevitably erode public confidence in the legal system," and that consideration is relevant in deciding whether August could be "safely recommended to the public as a person fit to act in matters of trust and confidence."

III

The State Bar filed a brief amicus curiae in August. The State Bar said that it had not taken a position on the applicability of the standards for reinstatement to August's specific case, and did not propose to do so. It sought, rather, a declaration that the nature of the underlying misconduct is properly considered in the course of a reinstatement proceeding, and to have the matter remanded to the Attorney Discipline Board for further consideration in light of such a declaration by this Court.

This Court, in August, adopted the view advocated by the State Bar, and granted such a remand for further...