Jaques, Matter of, 8

• Decision Date: 24 October 1977
• Docket Number: No. 8,8
• Citation: 258 N.W.2d 443,401 Mich. 516
• Parties: In the Matter of the Complaint Against Leonard C. Jaques before the State Bar Grievance Board, Leonard C. JAQUES, Appellant.
• Court: Michigan Supreme Court

Page 443

258 N.W.2d 443

401 Mich. 516

In the Matter of the Complaint Against Leonard C. Jaques

before the State Bar Grievance Board, Leonard C.

JAQUES, Appellant.

No. 8.

Supreme Court of Michigan.

Oct. 24, 1977.

Louis Rosenzweig, Counsel to State Bar Grievance Administrator, Eugene N. LaBelle, Associate Counsel to State Bar Grievance Administrator, Detroit, on appellee's brief.

Ralph Goldsmith, R. G. Corace, P. C., Detroit, on brief, of appellant.

RYAN, Justice.

Appellant Leonard C. Jaques appeals as of right the State Bar Grievance Board's order affirming imposition of a three year suspension of his privilege to practice law, plus payment of costs ordered by a hearing panel.

The complaints filed against Mr. Jaques by the Grievance Board charged him with violating former Canon 28 of the Canons of Professional Ethics, Canon 2, DR 2-103(A) and (C); DR 2-104(A)(5); and 2-105(A) of the Code of Professional Responsibility ¹ and Rule 15, § 2(2); 15, § 2(3) and 15, § 2(4) of the Supreme Court Rules relating to the State Bar of Michigan. ² It was alleged that Mr. Jaques personally and through the employment of others sought to and did solicit victims and survivors of the December 11, 1971 Port Huron tunnel explosion and that he personally urged certain persons to bring a lawsuit to compel an inquiry into the cause of the explosion. ³

This case is before us following lengthy proceedings below. A request for investigation and then a formal complaint were served upon Mr. Jaques in the first half of 1972, more than five years ago, following a general investigation of allegations of misconduct arising out of the tunnel explosion. The matter was assigned to Wayne County Hearing Panel No. 17 which heard the testimony of six witnesses. Appellant then offered to plead nolo contendere to charges as amended by an oral stipulation and his plea was accepted. The panel ordered a one year suspension from practice.

The State Bar Grievance Board eventually set aside appellant's plea and remanded to Hearing Panel No. 17 to complete the formal hearing to the conclusion of the testimony. Two months prior to the filing of the Board's order a second request for investigation was served on Mr. Jaques and it was followed by a second formal complaint. The two complaints were consolidated for trial and assigned to Hearing Panel No. 12, Panel No. 17 having disqualified itself. Panel No. 12 was thereafter also disqualified and the case was reassigned to Hearing Panel No. 2. The members of Panel No. 2 were furnished an edited transcript of the testimony and exhibits produced at the earlier, truncated hearing. Panel No. 2 then heard ten more days of testimony during the period between October 1974 and May 1975 and entered an opinion and an order of discipline. The State Bar Grievance Board affirmed the findings and modified the order of discipline only as to the amount of costs.

Mr. Jaques appeals the findings below, asserting nine instances of error which raise essentially the following three issues:

1. Whether Mr. Jaques was afforded a fair hearing in accordance with the applicable rules;

2. Whether it is unethical to solicit persons to join in a class action which has not yet been filed; and

3. Whether the findings of misconduct are supported by the evidence.

I

Mr. Jaques claims the hearing afforded him was defective because: Hearing Panel No. 2 merely read the transcripts but did not hear the testimony of witnesses who appeared before Panel No. 17; the State Bar Grievance Administrator did not call all res gestae witnesses to the alleged misconduct; the hearing panel quashed a subpoena of counsel for the State Bar Grievance Administrator denying appellant's alleged right to call and examine him; the hearing panel did not conduct itself as an impartial arbiter and, finally, the formal complaint gave insufficient notice of the charges.

Due process is the underpinning of these allegations of error. What we are concerned with, then, is that Mr. Jaques must have been afforded a fair hearing as well as one conducted in accordance with the rules adopted by this Court.

A good deal of appellant's argument is put to us by way of analogy to criminal cases. We have long recognized that discipline and disbarment proceedings are quasi-criminal in character. State Bar of Michigan v. Woll, 387 Mich. 154, 194 N.W.2d 835 (1972). In light of that recognition we have imposed some of the same safeguards applied in criminal proceedings to grievance procedures for the protection of attorneys faced with charges of professional misconduct. For example, we have held that the allegedly errant attorney has a right to cross-examine witnesses, State Bar of Michigan v. Murphy, 387 Mich. 632, 198 N.W.2d 289 (1972), and to be fairly and specifically informed of the charges against him, State Bar Grievance Administrator v. Freid, 388 Mich. 711, 202 N.W.2d 692 (1972).

It is important, however, to remember that we are dealing with the disciplinary procedures of the State Bar of Michigan. As Justice Levin said in concurring in State Bar Grievance Administrator v. Estes, 390 Mich. 585, 212 N.W.2d 903 (1973), "the Grievance Board is part of the administrative structure of this Court." The State Bar Rules "shall be liberally construed for the protection of the public, the courts and the legal profession". State Bar Grievance Rule 16.34(d).

In the State Bar Rules and in previous cases we have accordingly approved variances between disciplinary proceedings and the rigorous standards applied in the trial of criminal cases. We impose discipline if misconduct is proven by a preponderance of the evidence. State Bar Grievance Administrator v. Jackson, 390 Mich. 147, 211 N.W.2d 38 (1973); Grievance Rule 16.13. The cases are tried before panels of lawyers and the applicable rules provide that hearings are to be conducted in the same fashion as civil trials in nonjury cases.

It is fundamental that Mr. Jaques, as an attorney whose privilege to practice law is at stake, is entitled to a full and fair hearing. We do not believe, however, that we must apply the law of criminal trials to disciplinary proceedings at every turn.

"Due process * * * is a term that 'negates any concept of inflexible procedures universally applicable to every imaginable situation.' Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). Determining what process is due in a given setting requires the Court to take into account the individual's stake in the decision at issue as well as the State's interest in a particular procedure for making it." Hortenville Joint School District No. 1 v. Hortenville Education Association, 426 U.S. 482, 494, 96 S.Ct. 2308, 2315, 49 L.Ed.2d 1 (1976).

Having said this much, we proceed to consider the individual allegations of error.

A.

We first hold that the hearing panel erred in receiving and considering as substantive evidence the edited transcript of the testimony of the witnesses who appeared before Panel No. 17. We need go no further than the State Bar Rules to reach this conclusion, although even without the rule our notion of fundamental fairness leads to the same conclusion.

Rule 16 of the State Bar Rules created the State Bar Grievance Board as an arm of this Court for the discharge of our exclusive constitutional duty to supervise the State Bar. Rule 16 and the associated Procedural and Administrative Rules prescribe the conduct of hearings on complaints issued by the State Bar Grievance Administrator. State Bar Rule 16 assigns to hearing panels the duty of holding public hearings, making findings of fact and ordering discipline, and requires that their actions be reported to the State Bar Grievance Board. Grievance Rule 16.3 provides that two members of the panel constitute a quorum and that action shall be by vote of a majority. Grievance Rule 16.10 allows the Board to "reassign a Complaint when the Hearing panel fails to convene or complete its hearing within a reasonable time."

The Grievance Administrator argued and the hearing panel agreed that when a case is reassigned it is not necessary to hear anew the testimony of witnesses who had appeared at an earlier hearing before the first panel. Under the circumstances present in the instant case, we disagree.

Although the rules contemplate the reassignment of cases, Grievance Rule 16.3.3(b) is also relevant. It provides that hearing panels shall "(r)eceive evidence and make written findings of fact." We believe the directive of Grievance Rule 16.3.3(b) establishes a preference for the hearing panel that makes the initial finding of fact to likewise receive the testimony of witnesses. Where, as in the case at bar, the demeanor of witnesses may be an important factor in the resolution of disputed facts, Grievance Rule 16.3.3(b) controls and, absent an agreement to the contrary, the hearing panel to which a case is reassigned may not simply consider the record testimony of the witnesses who have appeared and resume the hearing where the former panel left off. See generally, 2 Davis, Administrative Law Treatise, § 11.18.

Our holding assures that where conflicting testimony must be resolved, a quorum of a hearing panel will personally hear and observe all the witnesses whose testimony is to be considered unless the Grievance Administrator properly establishes justification for their non-appearance, as for example where a witness is shown to be unavailable and his testimony is therefore admissible under the former testimony exception to the hearsay rule.

Of the six witnesses who testified at the hearing before Panel No. 17 in the instant case, three did not appear at the second. Appellant did not agree to the second panel's consideration of their recorded testimony and the Grievance Administrator's belated attempts to argue their unavailability do not satisfy the requirements of our case law for the use of former testimony. See Rotter v. Detroit United Railway,...