Grievance Adm'r v. Floyd, 97311
| Decision Date | 01 November 1994 |
| Docket Number | No. 97311,97311 |
| Citation | 447 Mich. 422,523 N.W.2d 227 |
| Parties | GRIEVANCE ADMINISTRATOR, Attorney Grievance Commission, State of Michigan, Petitioner-Appellant, v. Seymour FLOYD, Respondent-Appellee. |
| Court | Michigan Supreme Court |
Philip J. Thomas, Grievance Adm'r, Jane Shallal, Deputy Grievance Adm'r, and Charles K. Higle, Associate Counsel, Atty. Grievance Com'n, Detroit, for petitioner.
The issue in this case is whether the provisions of MCR 9.119 are applicable to a lawyer who has been automatically suspended under MCR 9.128(A) for failure to pay costs associated with a discipline proceeding. The Attorney Discipline Board held that MCR 9.119 is inapplicable. We reverse this determination, and remand the case to the board for further proceedings.
In 1990, respondent Seymour Floyd was reprimanded and ordered to pay $3,045 in restitution and interest to a former client. In accordance with MCR 9.128(A), the hearing panel's order also directed that he pay $495.76 in costs.
When Mr. Floyd failed to pay the costs within the time prescribed by MCR 9.115(J)(3), he was automatically suspended under MCR 9.128(A). The Attorney Discipline Board's notice of automatic suspension stated that one condition of reinstatement was payment of the costs.
Mr. Floyd later filed with the Supreme Court an affidavit stating that he had "complied fully with the terms and conditions of the Order of Automatic Suspension...." Evidently, Mr. Floyd meant that he had paid the disputed costs.
The question in this case, however, is whether Mr. Floyd had an additional responsibility while subject to the automatic suspension under MCR 9.128(A): Was he bound by the notice obligations found in MCR 9.119? 1 Perhaps believing that its strictures were inapplicable to him, Mr. Floyd did not comply with MCR 9.119.
The present case began when the Grievance Administrator filed a complaint alleging that Mr. Floyd had failed to comply with MCR 9.119, and that his affidavit (asserting compliance with the terms of his automatic suspension) had been false. 2
A hearing panel suspended Mr. Floyd for eighteen months. 3 On review, the Attorney Discipline Board dismissed the complaint regarding MCR 9.119 and the affidavit of compliance. 4 The board took this action on the ground that "MCR 9.119 does not explicitly require notification to clients, courts or parties following a non-disciplinary suspension for non payment of costs pursuant to MCR 9.128."
The Grievance Administrator has applied to this Court for leave to appeal.
In its opinion, the board characterized an automatic suspension under MCR 9.128 as a "non-disciplinary suspension." Finding that particular form of suspension not specifically listed in MCR 9.119, the board determined that MCR 9.119 was inapplicable in this setting:
MCR 9.119 does not explicitly require notification to clients, courts or parties following a non-disciplinary suspension for non payment of costs pursuant to MCR 9.128. The Rule refers only to non-disciplinary suspensions pursuant to Rule 4 of the Supreme Court Rules concerning the State Bar of Michigan. (Failure to pay annual bar dues.) The Rule imposes a duty to notify within seven days of the effective date of an order of discipline, a transfer to inactive status or a non-disciplinary suspension (limited, as noted above, to non-disciplinary suspensions for failure to pay bar dues).
In this case, the respondent was not subject to the only type of non-disciplinary suspension identified in the Rule, he was not placed on inactive status, and he did not receive an "order" of discipline. The Board's "notice" of automatic suspension issued February 12, 1991 was simply that--a notice. The respondent's automatic suspension for non-payment of costs was the result of the automatic operation of MCR 9.128 and not the result of any action or notice issued by the Board.
It could be argued that a non-disciplinary suspension for failure to pay costs is analogous to a non-disciplinary suspension for failure to pay bar dues and thus falls within the spirit of MCR 9.119. However, we are not prepared to impose discipline based upon an alleged duty which is not clearly set forth in the Court Rules. If it is the Supreme Court's intent to extend the duty of notification in MCR 9.119 to attorneys suspended for non-disciplinary reasons pursuant to MCR 9.128, that language can easily be added to this rule.
MCR 9.119 does not have a hidden meaning that requires such careful parsing. The rule simply means what it says.
In MCR 9.119(A), the reader is told that the rule applies to a lawyer "whose license is [a] revoked or [b] suspended, or who is [c] transferred to inactive status pursuant to MCR 9.121, or who is [d] suspended for nondisciplinary reasons pursuant to Rule 4 of the Supreme Court Rules Concerning the State Bar of Michigan...." Mr. Floyd was "suspended" by operation of MCR 9.128(A), and thus was subject to MCR 9.119.
This case falls within the clear language of MCR 9.128 and 9.119. Further, the public policy that is served by the notice obligations of MCR 9.119 is advanced by applying the rule where there is an automatic suspension for failing to pay costs in a discipline proceeding. Clients and others who deal with a lawyer suspended for that reason should be protected to the same extent as persons who have business with a lawyer whose suspension has a different basis.
For these reasons, we reverse the order of the Attorney Discipline Board, and remand this...
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People v. Law
...to include interest, and this can be seen in Langley v. Kirker, 247 Mich. 443, 225 N.W. 931 (1929), and Grievance Administrator v. Floyd, 447 Mich. 422, 523 N.W.2d 227 (1994). 9 In accord with Michigan's view is the Restatement Second on Restitution (tentative draft), § 28, p. 216, which st......