Daggs, Matter of

• Citation: 411 Mich. 304,307 N.W.2d 66
• Decision Date: 19 June 1981
• Docket Number: No. 10,Docket No. 64341,10
• Parties: In the Matter of the Complaint Before the Attorney Discipline Board, LeRoy W. DAGGS, Appellant. Calendar411 Mich. 304, 307 N.W.2d 66
• Court: Michigan Supreme Court

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307 N.W.2d 66 In the Matter of the Complaint Before the Attorney
Discipline Board, LeRoy W. DAGGS, Appellant. Docket No. 64341.
Calendar No. 10.
411 Mich. 304, 307 N.W.2d 66 Supreme Court of Michigan. June 19, 1981.

[411 MICH 309] F. Philip Colista, Richard C. Kaufman, Detroit, for appellant.

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Louis Rosenzweig, Detroit, for Grievance Administrator.

FITZGERALD, Justice.

Respondent attorney LeRoy W. Daggs was found grossly negligent in the representation of three clients and was ordered suspended from the practice of law for two years. The Attorney Discipline Board affirmed these findings but reduced the suspension to one year. We affirm.

On February 23, 1978, the State Bar Grievance Administrator (now Grievance Administrator) filed a formal complaint against LeRoy W. Daggs, a member of the State Bar of Michigan. He was charged with five counts of unprofessional conduct.

Oakland County Hearing Panel No. 7 heard testimony on July 18, 1978, and November 7, 1978. In a decision filed January 10, 1979, the panel found the evidence supported counts I, III and IV, dismissed count II as unsupported, and refused to consider count V. ¹ The panel found respondent's conduct violated the Code of Professional Responsibility and was grossly negligent in representing the interests of the clients. ² The panel ordered respondent suspended from the practice of law for two years.

Respondent petitioned the Attorney Discipline Board for review of the panel's order of discipline. The administrator cross-petitioned for review of the panel's refusal to consider count V. Approximately[411 MICH 310] 31/2 months later, respondent filed an amended petition alleging newly discovered evidence.

The board, in a divided opinion, affirmed the panel's findings, but reduced the suspension to one year. Respondent's request for remand due to newly discovered evidence was denied. The dissent cited the inclusion of counts II and V as the source of an impermissible taint of the panel's proceedings.

We granted leave to consider the following questions:

(1) Does the inclusion of counts II and V in the complaint require a rehearing? (2) Should the case have been remanded for the hearing of additional evidence regarding the alteration of the receipt? (3) Did the Attorney Discipline Board abuse its discretion in reducing the period of suspension?

I

Before turning to the questions presented, we will briefly state the three counts upon which the panel found misconduct.

A

Count I alleged respondent was retained by Mr. Sceola Kuykendall and paid $3,900 to perfect an appeal from a Federal criminal conviction. A claim of appeal was filed, respondent appearing as attorney of record. No further action was taken and the appeal was eventually dismissed for want of prosecution. It was further alleged that respondent represented to Mr. Kuykendall that the appeal had been denied.

The panel found the complaint's allegations were supported by a preponderance of the evidence,[411 MICH 311] although the exact sum paid to respondent could not be ascertained. The panel further found respondent attempted to persuade Mr. Kuykendall to withdraw his complaint in exchange for payment of money. This attempt to secure withdrawal of the complaint occurred after the panel had been appointed to investigate the complaint and shortly before the first day of the hearing.

B

Count III averred respondent was retained to probate the estate of Wihelmina Bailey. The estate consisted of a single piece of property in the City of Detroit. Count III alleged it took respondent approximately 20 months to file a petition for

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administration and approximately 7 years to close the estate.

The panel found no acceptable or excusable reasons for the undisputed delay in probating this estate. The panel noted that this delay "constitute(d) total failure on the part of the respondent to fulfill his obligation to this client".

C

Count IV recited that respondent was appointed to pursue post-conviction remedies for an imprisoned felon and that 13 months passed before the claim of appeal was filed. Respondent then formally requested that he be discharged as appointed counsel. It was further alleged that respondent delayed an additional two months before filing the substitution order.

The panel found that respondent "failed to properly and diligently present his request to be relieved of his appointment, that his delay was inexcusable, and that his obligation was to [411 MICH 312] promptly seek entry of an order (relieving) him of his responsibility".

II

Does inclusion of counts II and V require a rehearing?

The formal complaint against respondent consisted of five counts. Count II described the details of a 1976 investigation against respondent and alleged that the resulting reprimand indicates respondent's failure to meet the requisite standards for members of the bar. Count V recited respondent's 1970 reprimand and 1971 three-month suspension, State Bar of Michigan v. Daggs, 384 Mich. 729, 187 N.W.2d 227 (1971) and alleged "a pattern of gross negligence and incompetence in handling his client's affairs" in violation of Code of Professional Responsibility and Canons, DR 6-101.

As earlier stated, the panel dismissed count II as unsupported by competent evidence and refused to consider count V.

Respondent contends that bifurcation of the attorney discipline process demonstrates this Court's awareness of the increased adversariness of disciplinary proceedings and that the fact that proceedings are governed by the General Court Rules and the Rules of Evidence supports this idea. GCR 1963, 964.1, 964.9(a). In effect, respondent asserts that under the new procedure of bifurcation, more process is due.

It is noteworthy that this is the first attorney disciplinary proceeding to reach this Court since bifurcation of the prosecutorial and adjudicative functions of the State Bar Grievance Board. ³ Bifurcation[411 MICH 313] was deemed necessary to obviate the appearance of, and potential for, unfairness where the State Bar Grievance Board both supervised the work of the administrator and adjudicated charges the administrator filed.

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 addition, certain procedural changes were made. Respondent's contention that more process is due because of bifurcation addresses the form, not the substance, of the change.

Respondent asserts that the thrust of the substantive allegations in counts I, III and IV was inaction. In counts II and V, the panel was informed that respondent had been disciplined in the past for inaction. Respondent argues that the reference to prior discipline tainted the panel's objectivity, rendering his present testimony less credible. This resulted in denial of a fair hearing.

The administrator, in argument before the panel and the board, took the position that non-substantive counts are properly included in the complaint whenever the overriding issue is an attorney's competence to

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practice law. The administrator, in his brief to this Court, says merely that the error was harmless, thus apparently conceding that inclusion of counts II and V was error. ⁴

Based upon an examination of the record of the [411 MICH 314] proceedings, we conclude that respondent was not unfairly prejudiced by the inclusion of counts II and V. The record discloses the panel was fully cognizant of the potential for unfair prejudice stemming from these counts. The panel expressly noted and exercised its discretion both in limiting the administrator to his proofs in count II and in refusing to consider count V.

In connection with count V, the chairman stated he did not want the panel "influenced in this matter by virtue of what transpired in previous...