Grievance Adm'r v. Underwood, Docket No. 113180, Calendar No. 10.
| Court | Supreme Court of Michigan |
| Citation | 462 Mich. 188,612 N.W.2d 116 |
| Docket Number | Docket No. 113180, Calendar No. 10. |
| Parties | GRIEVANCE ADMINISTRATOR, Attorney Grievance Commission, State of Michigan, Petitioner-Appellant, v. David L. UNDERWOOD, P-44754, Respondent-Appellee. |
| Decision Date | 27 June 2000 |
612 N.W.2d 116
462 Mich. 188
v.
David L. UNDERWOOD, P-44754, Respondent-Appellee
Docket No. 113180, Calendar No. 10.
Supreme Court of Michigan.
Argued March 7, 2000.
Decided June 27, 2000.
Dunnings & Frawley, P.C., by Stuart J. Dunnings, Jr., Lansing, MI, for respondent-appellee.
Moore, Vestrand & Pozehl, P.C., by Joan P. Vestrand, Southfield, MI, amicus curiae for State Bar Grievance Committee on Behalf of the State Bar of Michigan.
Opinion
MICHAEL F. CAVANAGH, J.
This attorney discipline case requires us to decide whether respondent Underwood's delayed petition for review was timely under MCR 9.118(A)(3). That rule directs the Attorney Discipline Board (ADB) to treat the one-year limitation period in MCR 7.205(F) as a guideline, rather than as an absolute deadline. Because we hold that under the circumstances of this case, the ADB did not abuse its discretion in considering respondent's petition despite the one-year "guideline," we must determine the appropriate sanction for Underwood's misconduct. In light of our recent decision in Grievance Administrator v. Lopatin, 462 Mich. 235, 612 N.W.2d 120 (2000), adopting new guidelines for sanctions in attorney discipline cases, we remand this case for a determination of the appropriate sanction.
I
On July 15, 1991, David Underwood was admitted to the State Bar of Michigan. While he was working as a sole practitioner, two complaints were lodged against him with the Attorney Grievance Commission (AGC). The complaints alleged that Underwood misappropriated the proceeds of a client's worker's compensation award, and that he had failed to pursue another client's cause of action.
In response, the AGC began to investigate the allegations. It sent inquiry letters to Underwood, but he responded only to the letters about the alleged misappropriation. The AGC then subpoenaed Underwood to appear before it, but he failed to appear. As a result, Underwood was ordered to show cause why he should not be held in contempt for failing to comply with the subpoena. However, he failed to appear at the show cause hearing.
These events culminated in the AGC filing a formal complaint against Underwood on October 14, 1996. In five counts, the complaint charged Underwood with misappropriating $3,269.76 in client funds, neglecting a client matter, making false statements to the AGC during the investigation, failing to answer letters and comply with the subpoena, and failing to appear at the show cause hearing. Underwood did not respond to the formal
Later that year, Underwood retained counsel to represent him in this disciplinary matter. On November 20, 1997, counsel sent a letter to the ADB requesting it to reconsider its decision and grant a stay of discipline until further judgment. The ADB Executive Director replied, but the content of that reply is not a matter of record.1 Counsel again contacted the ADB by letter on February 13, 1998, inquiring about the status of the delayed petition for review, which he believed was initiated by the November 20, 1997, letter. On February 16, 1998, the Executive Director again replied, and apologized if he gave counsel the impression that the November 20, 1997, letter would be treated as a delayed petition for review. The Executive Director went on to clarify the filing requirements for a delayed petition for review, and advised that "[u]pon receipt of such a pleading, it will be forwarded to the Board chairperson for consideration in accordance with MCR 9.118(A)(3)."
On March 6, 1998, Underwood filed a formal delayed petition for review. The AGC opposed the petition, arguing that it was untimely because the deadline for filing a delayed petition for review was one year after the revocation order's effective date, which had passed. On April 6, 1998, however, the ADB granted the petition. It noted that through the November 20, 1997, letter, the ADB was on notice that Underwood was seeking review, and that "[u]nder the circumstances, neither the public, the courts, the legal profession [nor] the [AGC] are prejudiced by a delayed review." After considering Underwood's...
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