Grievance Adm'r v. Nickels, Docket No. 73240

• Decision Date: 20 August 1985
• Docket Number: Docket No. 73240
• Citation: 373 N.W.2d 528,422 Mich. 254
• Parties: GRIEVANCE ADMINISTRATOR, Petitioner-Appellee, v. Thomas A. NICKELS, Respondent-Appellant. 422 Mich. 254, 373 N.W.2d 528
• Court: Michigan Supreme Court

Page 528

373 N.W.2d 528

GRIEVANCE ADMINISTRATOR, Petitioner-Appellee, v. Thomas A. NICKELS, Respondent-Appellant.

Docket No. 73240.

422 Mich. 254, 373 N.W.2d 528

Supreme Court of Michigan.

Argued March 7, 1985.

Decided Aug. 20, 1985.

Michael Alan Schwartz, Grievance Adm'r by John F. Van Bolt, Associate Counsel, Atty. Grievance Com'n, Detroit, for petitioner-appellee.

Thomas A. Nickels, Alpena, in pro per.

CAVANAGH, Justice.

We granted leave to review an order of the Attorney Discipline Board which suspended the license of attorney Thomas A. Nickels for 120 days. 419 Mich. 1206 (1984). We hold that the findings of the hearing panel are supported by the evidence, and affirm the order of suspension.

I

On May 16, 1983, the Grievance Administrator filed a three-count complaint against respondent Thomas A. Nickels. Count I alleged that respondent made several misrepresentations to his former secretary, Laurie Shelden, regarding her wages.

In 1981, respondent employed Shelden under a Comprehensive Employment and Training Act (CETA) program. Pursuant to an agreement with CETA, respondent agreed to pay Shelden $140 per forty-hour work week. CETA would then reimburse respondent $70 per week.

Respondent informed Shelden that he would pay her $100 in cash at the end of each week. He also told her that he would retain $40 per week out of her wages to cover federal and state withholding taxes and social security payments. Respondent said that the precise amounts withheld would be calculated later and that Shelden would eventually be reimbursed for the difference. Count I alleged that, contrary to these representations, respondent never remitted any funds to the appropriate taxing authorities and refused to reimburse any portion of the $320 withheld during Shelden's eight weeks of employment. Shelden's informal attempts to recover this amount proved unsuccessful. She ultimately received a default judgment from the 88th District Court in the amount of $320, which remained unpaid as of the day of the hearing before the Attorney Discipline Board.

Respondent moved to dismiss the complaint at his initial hearing. He argued that his actions did not arise out of the attorney-client relationship and were unrelated to the practice of law. Instead, his actions amounted to a simple wage dispute which should not be considered misconduct under the Code of Professional Responsibility or the General Court Rules. The three-member hearing panel dismissed the motion.

Following an evidentiary hearing, respondent was found guilty of misconduct under Count I in violation of GCR 1963, 953(2), (3), and (4), ¹ and DR 1-102(A)(1), (4), and (6). ² The hearing panel dismissed Counts II and III on the basis of insufficient evidence.

Regarding Count I, the panel found that although the actions were misconduct, they did not relate directly to an attorney-client relationship. In suspending respondent's license for 120 days, the panel noted that he had received two prior reprimands. The panel cited the board's final words in an earlier order of reprimand which warned respondent that any further transgressions would constitute an attitudinal pattern calling for more serious discipline.

Respondent petitioned for review of the hearing panel's decision. The board's order affirming the suspension stated in part:

"IT IS ORDERED that the Hearing Panel report and order of suspension of 120 days be and the same hereby are AFFIRMED. Although discipline may be imposed whether or not misconduct has occurred in the course of an attorney client relationship, GCR 1963, 953, the Board specifically reverses the hearing panel finding that the misconduct in this matter was unrelated to the practice of law."

II

Respondent argues that his actions cannot be deemed professional misconduct. He requests that this Court set up strict guidelines to determine what activity is "misconduct" for purposes of the code and the General Court Rules. We are not convinced, however, that a truly comprehensive definition or test for misconduct can be formulated. We believe therefore that review of these proceedings is best handled on a case by case basis.

"In reviewing the discipline imposed in a given case, we are mindful of the sanctions meted out in similar cases, but recognize that analogies are not of great value.

" 'As a hypothetical proposition, we find dubious the notion that judicial or attorney misconduct cases are comparable beyond a limited and superficial extent. Cases of this type generally must stand on their own facts.' State Bar Grievance Administrator v Del Rio, 407 Mich 336, 350; 285 NW2d 277 (1979).

"Our task then is to make certain that within the record of each case there is proper evidentiary support for the findings of the hearing panel and the Attorney Discipline Board. See, for example, State Bar Grievance Administrator v Estes, 390 Mich 585, 593; 212 NW2d 903 (1973), and State Bar Grievance Administrator v Silverman, 408 Mich 100, 110; 289 NW2d 683 (1980)." In the Matter of Grimes, 414 Mich. 483, 490, 326 N.W.2d 380 (1982), reh. den. 417 Mich. 1101 (1982). (Emphasis supplied.)

Respondent also contends that he should not be disciplined for activities which occurred outside of an attorney-client relationship. However, GCR 1963, 953 clearly indicates that actions contrary to justice, ethics, honesty, or good morals may be misconduct, regardless of whether they occur in the course of an attorney-client relationship. See n 1.

We agree with the hearing panel's conclusion that, while respondent's actions constituted misconduct, they did not relate directly to an attorney-client relationship. The dispute did not involve a client; it involved an employee. However, we think that such a finding is largely irrelevant in light of GCR 1963, 953.

The Attorney Discipline Board properly upheld the respondent's suspension. However, the board confused the matter by reversing the hearing panel's finding "that the misconduct in this matter was unrelated to the practice of law." The hearing panel never made such a finding. The panel only found that the misconduct did not arise out of an attorney-client relationship. Accordingly, we modify that portion of the board's order insofar as it reversed the "finding" that respondent's conduct was unrelated to the practice of law.

We likewise reject respondent's argument that his actions have to be directly related to the practice of law in order to be grounds for disciplinary proceedings. Misconduct may include activities that are unrelated to the practice of law, if they otherwise fall within conduct proscribed by the code or the General Court Rules. See, e.g., State Bar Grievance Administrator v. Grossman, 390 Mich. 157, 211 N.W.2d 21 (1973), cert. den. 415 U.S. 919, 94 S.Ct. 1419, 39 L.Ed.2d 474 (1974). ³ In Grossman, the Court upheld discipline imposed on an attorney who misrepresented facts to a police officer and filed a false police report in an attempt to regain possession of his automobile. Thus, activities do not have to be directly related to the practice of law per se to be grounds for discipline. See also Grimes, supra, where we said:

"The rules of professional conduct adopted by this Court evidence a commitment to high standards and behavior beyond reproach. We cannot stress too strongly the responsibility of members of the bar to carry out their activities, both public and private, with circumspection.

" '[T]he concept of unprofessional conduct now embraces a broader scope and includes conduct outside the narrow confines of a strictly professional relationship that an attorney has with the court, with another attorney or a client.' State v Postorino, 53 Wis 2d 412, 419; 193 NW2d 1 (1972).

"A lawyer is a professional 'twenty-four hours a day, not eight hours, five days a week.' Id." Grimes, supra, 414 Mich. pp. 494-495, 326 N.W.2d 380. (Emphasis supplied.)

III

With these general principles in mind, and after review of the entire record, we find that there is proper evidentiary support for the order suspending respondent's license for 120 days. Evidence presented before the hearing panel showed, by a preponderance of the evidence, that respondent violated the applicable General Court Rules and Disciplinary Rules. See State Bar v. Posler, 390 Mich. 581, 583, 213 N.W.2d 133 (1973); State Bar Grievance Administrator v. Crane, 400 Mich. 484, 493, 255 N.W.2d 624 (1977).

Respondent promised Shelden that she would be reimbursed after he talked to his accountant. He failed to do so, and Shelden was forced to file a complaint against respondent. She ultimately obtained a default judgment for the amount withheld. The fact that respondent eventually paid her $320 at the conclusion of the hearing is of little or no significance. The complaint's focus was not on the payment of money. Instead, the complaint alleged that respondent was guilty of misrepresentation and fraud. His actions evidenced a pattern of conduct which brought disrepute upon himself as a member of the bar and brought disrepute upon his profession. See State Bar Grievance Administrator v. McWhorter (On Rehearing), 407 Mich. 278, 286-288, 284 N.W.2d 472 (1979); State Bar Grievance Administrator v. Jackson, 390 Mich. 147, 211 N.W.2d 38 (1973).

Respondent represented that he was withholding money in order to pay the appropriate taxing authorities. However, he admitted, both at the hearing and in oral argument before this Court, that he never paid any taxes or social security payments on Shelden's behalf. We stress that in most instances "simple wage disputes" between an attorney and an employee will not rise to the level of misconduct. However, the facts of this case persuade us that the Grievance Administrator was justified in pursuing the formal complaint.

IV

After review of the record, we believe that respondent's representations and the retention of funds constituted misconduct. Furthermore, in light of respondent's prior reprimands, we...