Grimes, Matter of
| Citation | 326 N.W.2d 380,414 Mich. 483 |
| Decision Date | 23 November 1982 |
| Docket Number | Docket No. 66527,No. 8,8 |
| Parties | In the Matter of the Complaint Against Robert A. GRIMES before the Attorney Discipline Board, Grievance Administrator, Appellant. Calendar |
| Court | Supreme Court of Michigan |
Michael Alan Schwartz, Detroit, Grievance Administrator, in pro. per.
Milliken, Magee & Yuille by Herbert A. Milliken, Jr., Flint, for respondent-appellee.
This is an appeal of an Attorney Discipline Board order which suspended the professional license of attorney Robert A. Grimes for 120 days. Appellant grievance administrator contends that the discipline imposed is insufficient in view of the circumstances of this case. We agree, and revoke Grimes' license to practice law.
In August, 1979, Grimes was charged in a formal complaint brought by the grievance administrator with two counts of professional misconduct. The first count stemmed from two felony convictions for federal income tax evasion. Grimes was accused in the second count of counseling a client to lie to investigators in connection with the tax fraud case.
The criminal prosecution was a "net worth" case in which Grimes was accused of not reporting more than $100,000 in income for 1971 and 1972. His defense to the charges included claims of embezzlement by a former employee, loan repayments from a since-deceased friend, poor judgment, legal error and sloppy bookkeeping. 1
Federal prosecutors charged that some of the income Grimes concealed had been paid to him for representing clients in personal injury cases. Grimes contended that he did not report these so-called "fees" as income because the money actually served to fund further litigation in the cases. In support of his assertion, Grimes noted agreements between him and clients wherein the clients "lent" him the sums described in the court judgments as attorney fees. The money was to finance other aspects of the personal injury cases, Grimes contended, with an accounting to come at the end of all litigation. He insisted that the procedure merely was a way of temporarily deferring tax liability. 2 A United States District Court jury in the Eastern District of Michigan found Grimes guilty in September, 1978, of violating 26 U.S.C. Sec. 7201:
"Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution."
The federal district judge imposed fines totaling $10,000 and costs totaling $4,501.45 on the two counts. Grimes also was ordered imprisoned for one year, but that sentence was reduced to 30 days in jail, and he was placed on probation for one year. The Sixth Circuit Court of Appeals affirmed, 601 F.2d 591 (CA6, 1979); the United States Supreme Court denied certiorari, 444 U.S. 915, 100 S.Ct. 228, 62 L.Ed.2d 169 (1979).
The gist of count two was that in the course of the tax investigation Grimes reduced to writing a loan agreement supposedly made with a client in 1972, and affixed to it a 1972 date. Further, the grievance administrator charged, Grimes delivered the document to the client and counseled her to attest that she had received it in 1972. The client did so testify, but later recanted and admitted that she really had received the written agreement in 1976. 3
Grimes' explanation was that the discrepancy merely reflected semantic confusion. He claimed that he only had reminded his client that the "understanding" as to the loan had been reached in 1972. Grimes denied counseling the client to say that she had received the actual document in 1972.
The three attorneys comprising the St. Clair County Hearing Panel No. 2 listened to testimony from Grimes and several character witnesses from the Flint area, including attorneys, a probate court judge, a former mayor and business persons. The panel then suspended Grimes' license for 60 days, finding him in violation of various Michigan Court Rules and the Code of Professional Responsibility. The grievance administrator appealed to the Attorney Discipline Board, which increased the period of suspension to 120 days. 4 This Court granted the grievance administrator's request for leave to appeal. 412 Mich. 1101 (1981).
Chapter 95 of the Michigan Court Rules has governed attorney disciplinary proceedings since it took effect October 1, 1978. GCR 1963, 953 sets forth the grounds for discipline, including the five which the hearing panel found applicable to Grimes:
"The following acts or omissions by an attorney, individually or in concert with another person, are misconduct and grounds for discipline, whether or not occurring in the course of an attorney-client relationship:
(1) conduct prejudicial to the proper administration of justice;
(2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach;
(3) conduct that is contrary to justice, ethics, honesty, or good morals (4) conduct that violates the standards or rules of professional responsibility adopted by the Court;
(5) conduct that violates a criminal law of a state or of the United States."
The hearing panel also found that Grimes had run afoul of certain provisions of the Code of Professional Responsibility which were adopted on October 4, 1971:
"DR 1-102. Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
* * *
* * *
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(A) In his representation of a client, a lawyer shall not:
* * *
* * *
(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent."
The Attorney Discipline Board not only upheld the conclusions of the hearing panel, but doubled the period of suspension to 120 days. The board derives from GCR 1963, 967.4 its authority to "affirm, amend, reverse, or nullify the order of the hearing panel in whole or in part or order other discipline".
It is this Court, however, that has ultimate responsibility to oversee the conduct of the approximately 21,000 members of the State Bar, and to keep unsullied the reputation of the profession. When an order of the Attorney Discipline Board is appealed, therefore, "The Supreme Court may make any order it deems appropriate, including dismissing the appeal." GCR 1963, 971.5.
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.
State Bar Grievance Administrator v. Del Rio, 407 Mich. 336, 350, 285 N.W.2d 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 N.W.2d 903 (1973), and State Bar Grievance Administrator v. Silverman, 408 Mich. 100, 110, 289 N.W.2d 683 (1980).
Neither Grimes nor the grievance administrator has challenged the conclusions of the hearing panel as adopted by the Attorney Discipline Board. Moreover, our review of the entire record convinces us that there was ample support for their findings. The grievance administrator, however, contends that the discipline imposed is not commensurate with the gravity of Grimes' conduct. Because our decision is to disbar Grimes, it is important to focus first on the goal of disciplinary proceedings.
This section makes clear that the purpose of discipline cannot be punishment, but does not preclude the effect of discipline from being punishment. It would be a rare attorney, indeed, who would not feel "punished" if precluded from practicing law. Further, the purpose of discipline--protection of the public, the courts and the legal profession--may at times best be achieved through the deterrent effect of punishment. We do not accept the assertion that "protection" and "punishment" are irreconcilable concepts and that the line between them cannot be crossed under GCR 1963, 954.
As noted earlier, the first count against Grimes in the disciplinary proceedings stemmed from his felony convictions. When an attorney is found guilty of certain crimes, the fact of the conviction itself, without more, may serve as grounds for the suspension of his license.
"If an attorney is convicted of a felony, convicted of a crime punishable by imprisonment for a term of one year or more, convicted of a crime involving moral turpitude, or sentenced after a nolo contendere plea in connection with any of the foregoing, the board may suspend the attorney's license under rule 955 by order filed and served under subrule 967.5." GCR 1963, 969.
It is apparent from a reading of the above that Grimes' convictions fit within...
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