Grievance Adm'r v. Lopatin, Docket No. 113250, Calendar No. 9.

• Court: Supreme Court of Michigan
• Writing for the Court: CORRIGAN, J.
• Citation: 462 Mich. 235,612 N.W.2d 120
• Parties: GRIEVANCE ADMINISTRATOR, Petitioner-Appellant, v. Albert LOPATIN, Respondent-Appellee.
• Docket Number: Docket No. 113250, Calendar No. 9.
• Decision Date: 27 June 2000

612 N.W.2d 120
462 Mich. 235

GRIEVANCE ADMINISTRATOR, Petitioner-Appellant,
v.
Albert LOPATIN, Respondent-Appellee

Docket No. 113250, Calendar No. 9.

Supreme Court of Michigan.

Argued March 7, 2000.

Decided June 27, 2000.

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Robert E. Edick, Acting Grievance Administrator, and Richard L. Cunningham, Associate Counsel Detroit, MI, for petitioner-appellant

Lee R. Franklin, Detroit, MI, for respondent-appellee.

612 N.W.2d 121

612 N.W.2d 122

Opinion

CORRIGAN, J.

In this disciplinary matter, the Grievance Administrator, on behalf of the Attorney Grievance Commission (AGC), appeals an Attorney Discipline Board (ADB) order reducing the discipline imposed on respondent by a hearing panel from a forty-five-day suspension to a reprimand. We hold that the ADB erred as a matter of law in concluding that our prior order denying the Grievance Administrator's application for leave to appeal barred it from suspending respondent for longer than forty-five days. In light of that error, and because the ADB did not have the benefit of our guidance regarding use of the American Bar Association (ABA) Standards for Imposing Lawyer Sanctions, we remand this case to the ADB for reconsideration of its order of discipline.

I. The ABA Standards

Today, we direct the ADB and hearing panels to follow the ABA Standards for Imposing Lawyer Sanctions when determining the appropriate sanction for lawyer misconduct. We have historically utilized an ad hoc approach to determine the appropriate sanction after a finding of professional misconduct. A comprehensive set of written standards for imposing sanctions has never existed in this state. Only our occasional opinion has provided guidance to the public, the disciplinary body, and the legal profession on this subject. We conclude that written standards are needed to guide the ADB and hearing panels.

In the past twenty years, the number of Michigan attorneys has nearly doubled. With this increase, we have experienced a significant increase in complaints regarding attorney conduct. Although only a small fraction of our bar is disciplined each year, we conclude that a written set of principles will provide guidance during the process of fixing discipline for lawyer misconduct. We therefore adopt the ABA standards on an interim basis.¹ Their use will further the purposes of attorney discipline, help to identify the appropriate factors for consideration in imposing discipline and establish a framework for selecting a sanction in a particular case, and promote consistency in discipline. Application of the standards will produce reasoned decisions that will also facilitate our review.

A

The ABA standards establish an analytical framework to guide the disciplinary body in determining the appropriate sanction in a case.

[T]he standards are not designed to propose a specific sanction for each of the myriad of fact patterns in cases of lawyer misconduct. Rather, the standards provide a theoretical framework to guide the courts in imposing sanctions. The ultimate sanction imposed will depend on the presence of any aggravating or mitigating factors in that particular situation. The standards thus are not analogous to criminal determinate sentences, but are guidelines which give courts the flexibility to select the appropriate sanction in each particular case of lawyer misconduct. [ABA Standards, p. 6.]

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Under the framework, the disciplinary body initially answers three questions

(1) What ethical duty did the lawyer violate? (A duty to a client, the public, the legal system, or the profession?)

(2) What was the lawyer's mental state? (Did the lawyer act intentionally, knowingly, or negligently?)

(3) What was the extent of the actual or potential injury caused by the lawyer's misconduct? (Was there a serious or potentially serious injury?) [ABA Standards, p. 5. See also ABA Standard 3.0.]

Through this inquiry, the disciplinary body identifies the type of misconduct involved in a particular case.

The disciplinary body then undertakes the second step of the analysis. It determines the recommended sanction for the type of misconduct by consulting the relevant ABA standards. ABA Standards 4.0 through 8.0 contain the recommended sanctions for a variety of misconduct. Finally, after determining the recommended sanction, the disciplinary body moves to the third step of the analysis and considers the relevant aggravating and mitigating factors. On review of these factors, it then decides whether to increase or decrease the sanction. ABA Standard 9.1.

Courts of other states have recognized that the ABA standards are a valuable analytical tool for determining the appropriate sanction for misconduct. Four state courts have adopted their own standards patterned after the ABA standards.² The courts in at least fourteen other states rely on the ABA standards for guidance in determining sanctions,³ while another three employ only the aggravating and mitigating factor provisions of the ABA standards.⁴ The courts in nine additional states have relied on the ABA standards to a lesser extent.⁵ Further, in a few states, state disciplinary boards closely follow the ABA standards even though the courts do not. Levin, The emperor's clothes and other tales about the standards for imposing lawyer discipline sanctions, 48 Am. U. L. R. 1, 34, n. 157 (1998).

In Michigan, the ADB executive director began transmitting the ABA standards to hearing panel members for use as an additional resource soon after their promulgation. Cunningham, 1988 Annual Survey of Michigan Law, Professional Responsibility,

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34 Wayne L. R. 1005, 1027 (1988). The ADB has not, however, adopted the ABA standards or promulgated any other set of standards. Today, we join the courts of other states in recognizing the value of the ABA standards as a benchmark in the decisional process.

B

This Court has the power under Const. 1963, art. 6, § 5, to regulate and discipline the members of the bar of this state. In re Schlossberg, 388 Mich. 389, 395, 200 N.W.2d 219 (1972); see also M.C.L. § 600.904; MSA 27A.904. Exercising our rulemaking authority, we bifurcated the Michigan attorney disciplinary system in 1978, vesting the investigative and prosecutorial functions in the AGC, and the adjudicative function in the ADB. MCR 9.108(A); MCR 9.110(A).⁶ Subchapter 9.100 of the Michigan court rules governs attorney disciplinary proceedings before hearing panels and the ADB.

By court rule, we have established the analytical framework that the hearing panel must use in making its decision and have specified the form of the hearing panel's decision.⁷ We have also delineated the ADB procedures for reviewing a hearing panel decision.⁸

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These court rules serve two main purposes. First, they promote considered decision making that accords procedural fairness to the respondent and instills public confidence in the disciplinary process. Second, they generate a record that contains the information this Court needs to engage in meaningful review when exercising its ultimate authority to regulate and discipline members of the bar. Schlossberg, supra at 395, 200 N.W.2d 219; MCR 9.122. Today, we adopt the ABA Standards for Imposing Lawyer Sanctions on an interim basis to further these purposes.

The basic goal of our disciplinary system is to protect "the public, the courts, and the legal profession." MCR 9.105. While we have emphasized in the past that disciplinary cases "must stand on their own facts,"⁹ and that analogies to other cases are of limited value,¹⁰ our statements merely reflect the proposition that no two misconduct cases are identical. Our prior statements clearly do not signal a rejection of the principle that equivalent misconduct should be treated equivalently. Rather, we have stressed that the ADB overview function involves "continuity and consistency in discipline imposed." In re Daggs, 411 Mich. 304, 320, 307 N.W.2d 66 (1981).

The difficulty of insuring consistency within the current disciplinary framework has become apparent in recent years. In the year before we bifurcated the disciplinary process, the predecessor disciplinary board received 753 complaints, imposed 62 orders of final discipline, and handled 1,687 matters without opening a file. Final Report State Bar Grievance Board, July 1, 1977— June 30, 1976, 57 Mich. B. J. 1002, 1005 (1978). There were about 16,800 members of the bar during this period. Id. Over the past twenty years, our bar membership has nearly doubled, 78 Mich. B. J. 712 (1999), and an increase in disciplinary activity has accompanied our increase in numbers. In 1998, the AGC received 3,935 requests for investigation. State of Michigan Attorney Discipline Board & Attorney Grievance Commission, Joint Annual Report, January 1, 1998, to December 31, 1998, p. 5. During that year, the AGC filed 241 formal complaints with the ADB, issued 179 confidential admonishments, and closed 342 files with cautionary letters. Id. The ADB entered 205 final disposition orders during this same period, among them orders in 47 appeals from hearing panel orders. Id., p. 12.

Attorney volunteers serve on hearing panels that make the initial determination

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of misconduct and appropriate discipline. MCR 9.111. In 1998, the ADB maintained a roster of 450 attorneys who serve on the three-member hearing panels. Joint Annual Report, supra, p. 10. While these attorneys undoubtedly attempt to prioritize cases and achieve some degree of consistency in discipline, an individual panel member's attempt is hindered by a lack of information about discipline imposed in other cases.¹¹ Although the members of the ADB have more information than hearing panel members, the analytical framework established by the ABA standards will assist them in selecting the appropriate discipline in each case. The ABA standards will guide hearing panels and the ADB in imposing a level of discipline that takes...