Crane (State Report Title: State Bar Grievance Administrator v. Crane), Matter of

• Decision Date: 18 July 1977
• Docket Number: Nos. 5,A,6,s. 5
• Citation: 400 Mich. 484,255 N.W.2d 624
• Parties: In the Matter of the Complaint against Stephen A. CRANE, Respondent-Appellant, Gary A. Roth, Respondent-Appellant. * pril Term 1977.
• Court: Michigan Supreme Court

Page 624

255 N.W.2d 624

400 Mich. 484

In the Matter of the Complaint against Stephen A. CRANE,

Respondent-Appellant,

Gary A. Roth, Respondent-Appellant. ^*

Nos. 5, 6, April Term 1977.

Supreme Court of Michigan.

July 18, 1977.

Lopatin, Miller, Bindes, Freedman & Bluestone by Albert Lopatin, H. Barry Woodrow, Detroit, for respondent-appellant Stephen A. Crane.

Zemke & Lustig, P. C., by Norman L. Zemke, Southfield, for respondent-appellant Gary A. Roth.

Louis Rosenzweig, Detroit, for State Bar Grievance Administrator.

MOODY, Justice.

This is a joint appeal from an order of the State Bar Grievance Board of July 21, 1976, affirming an order of discipline entered by Wayne County Hearing Panel No. 14 on January 22, 1976. The instant order of discipline suspended respondent Stephen A. Crane's license to practice law for 30 days and respondent Gary A. Roth's license to practice law for 90 days.

There is no dispute as to the material facts involved in this case.

In March, 1969, complainants Eva and Henry Sturgeon telephoned respondent Crane in connection with an automobile accident in which Eva Sturgeon was involved on February 18, 1969. Eva Sturgeon evidently had collided with a large truck. She claimed that the cause of the accident was a defective accelerator on her automobile. As a result of the accident, Eva Sturgeon had suffered fractures of both ankles. Mr. Crane evidently agreed that his firm would represent the Sturgeons.

Respondent Crane proceeded to assign Ms. Sturgeon's case to his associate, Donald LaKind. Mr. LaKind subsequently visited the Sturgeon's home. At that time he interviewed the Sturgeons and secured a contingent fee retainer agreement for respondent Crane's firm. The signatories to the agreement, dated March 10, 1969, were Mr. LaKind and the Sturgeons.

Approximately two years later, respondent Roth contacted Eva Sturgeon and advised her that Mr. LaKind was no longer associated with respondent Crane's firm and that he, Roth, would be handling her case.

By January of 1972, respondent Roth also had terminated his association with respondent Crane's office. Roth informed Ms. Sturgeon of this change and told her that he was taking her file with him.

On February 4, 1972, fourteen (14) days before the three year statute of limitations would expire, respondent Roth allegedly sent Ms. Sturgeon a form letter indicating that he was withdrawing from the case. In his letter, respondent Roth allegedly wrote complainant Sturgeon that he did not believe he could recover in her case and that if she desired to pursue the matter, she should contact another attorney. Respondent Roth also purportedly informed Ms. Sturgeon that the statute of limitations would run on February 18, 1972.

Eva Sturgeon claimed she never received the letter. Uncontroverted evidence taken before the hearing panel indicated that she had moved to a new address some months earlier. Respondent Roth could not produce any evidence of either certification or a return-receipt-requested register number regarding the letter.

Respondents Crane and Roth both were found guilty of professional misconduct for their handling of the Sturgeons' case in violation of Canons 6 and 7 of the Code of Professional Responsibility, to wit, DR 6-101(A)(3) and DR 7-101(A)(2), and State Bar Rule 15.2(2) through (4). ¹

We will examine the issues raised on appeal by respondents Roth and Crane separately.

I

Respondent Roth raises several issues for our consideration.

Initially, Roth maintains that he was denied due process of law because he was found guilty of professional misconduct not charged in the complaint.

The formal complaint filed against respondent Roth charged two acts of professional misconduct "d. That by reason of neglect and/or inattention of Respondent, Eva L. Sturgeon's cause of action was barred by the statute of limitations on February 18, 1972.

"e. That despite numerous telephone inquiries by Eva L. Sturgeon, of Respondent, she was repeatedly assured by him that she was being competently and professionally served."

The hearing panel's finding of facts as to these two allegations were stated thus:

(d) "The three year Statute of Limitations passed and no lawsuit was started. No advice was given the Sturgeons that effectively informed them that the Statute had run, or that either Mr. Crane or Mr. Roth were withdrawing as counsel for the plaintiffs in a timely fashion. A letter allegedly addressed by Mr. Roth to the plaintiffs, sent some two weeks before the Statute ran on a printed form, was the only communication directed to the Sturgeons, and was wholly inadequate both in scope and in timeliness.

(e) ". . . Mr. Roth made representations to them relative to pending litigation that were not true. There is no evidence that Mr. Crane or Mr. Roth ever retained an expert to examine the vehicle, or to evaluate the claims of Mrs. Sturgeon in a professionally competent fashion . . . Although Mr. Roth informed the Sturgeons that he was taking over the case, he in turn did nothing . . . The fact that the case was without merit, as viewed by Mr. LaKind and Mr. Roth, and seemingly conveyed to Mr. Crane, was never brought to the attention of the clients."

Roth contends that the panel's finding of fact regarding allegation "d" does not support the original charge. Roth asserts that he was charged with allowing Eva Sturgeon's cause of action to be "barred by the statute of limitations . . . by reason of neglect and/or inattention".

However, respondent Roth maintains that he was found guilty of professional misconduct because the Sturgeons were not "effectively informed" that the statute was about to run and because the notice given was "wholly inadequate" not because he allowed the statute to run. Therefore, Roth contends he was denied due process of law because "an attorney may only be found guilty of misconduct as charged in the complaint". State Bar v. Jackson, 390 Mich. 147, 155, 211 N.W.2d 38, 42 (1973). See also In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968).

While we agree with respondent Roth's statement of the general proposition of law, we believe that the distinction which he posits in the case at bar is too esoteric and suggests legal hairsplitting.

We have carefully reviewed both the hearing panel and Grievance Board's findings of fact in the instant case. It is clear to us that respondent Roth was properly charged and found culpable of permitting complainant Sturgeon's cause of action to be barred by the statute of limitations through his inattention and neglect.

While the precise wording of the complaint (d) may not be exemplary, it effectively informed Mr. Roth of the charge against him and in no way prejudiced his opportunity to adequately defend himself. Given the facts of the instant case, we do not believe any miscarriage of justice occurred:

"No investigation or proceedings hereunder shall be held invalid by reason of any nonprejudicial irregularity, nor for any error not resulting in a miscarriage of justice." Grievance Board Rule 16.34(c).

Therefore, we affirm the panel and board's judgment as to allegation "d".

We also affirm the hearing panel's finding of fact as to allegation "e". The record supports the finding that respondent Roth assured Eva Sturgeon "that she was being competently and professionally served" when in fact nothing was done by him regarding her claim. Respondent Roth's own testimony and the testimony of complainant Sturgeon unequivocally support both the allegation and the finding. ² The Grievance Board concurred in that finding in its review of this proceeding:

" * * * Mr. Roth's activities on behalf of the complainant were wholly inadequate, and apparently consisted of a few telephone calls, a review of the file, and a conclusion, reached in October, 1971, that there was no cause for action. The record indicates that, despite this conclusion, Roth never invited the client to his office to explain his conclusion, never advised her of it by telephone, and, in fact, waited until February 14, 1972 (sic ) to have his secretary send her a form letter in which she (the secretary) simply filled in certain blanks."

We find no merit in respondent Roth's other allegations of error.

(1) Respondent was not denied due process because a member of the hearing panel was not present for a portion of the testimony. A quorum of two was present and the vote of the panel was unanimous. Therefore, no prejudice occurred. See State Bar v. Grubbs, 396 Mich. 275, 277, 240 N.W.2d 233 (1976).

(2) The standard of proof employed by the panel and Grievance Board was correctly stated as a "a preponderance of the evidence". See Grievance Board Rule 16.13 and State Bar v. Posler, 390 Mich. 581, 583, 213 N.W.2d 133 (1973).

(3) We find no due process error in a member of the hearing panel questioning respondent regarding his actions in the instant matter. It is clear the panel member was only attempting to sharpen the issue and ascertain the facts. This does not constitute bias or prejudice. See State Bar v. Baun, 395 Mich. 28, 232 N.W.2d 621 (1975).

(4) Respondent was not denied due process because his demand for copies of documents, lists of witnesses and a bill of particulars was not met. Respondent made no attempt to enforce his demand by bringing it to the attention of the panel at the hearing. Nor did he make an assignment of error regarding this matter in his petition for review by the Grievance Board. Therefore, we can only conclude that respondent waived his demand since neither the panel nor the board was given an opportunity to take corrective action. Cf. Taylor v. Lowe, 372 Mich. 282, 283, 126 N.W.2d 104 (1964).

We conclude, therefore, that the hearing panel and Grievance Board's findings in Roth's case are supported by competent evidence on the whole record. These findings fully support and warrant disciplinary action by the State Bar Administrator.

However, this Court has the...