Lewis, In re
| Decision Date | 24 July 1973 |
| Docket Number | No. 1,J,1 |
| Citation | 389 Mich. 668,209 N.W.2d 203 |
| Parties | In the Matter of the Complaint against Alphonse LEWIS, Jr., before the State Bar Grievance Board, Alphonse Lewis, Jr., Appellant. * une Term. |
| Court | Michigan Supreme Court |
Eugene N. LaBelle, Associate Counsel to State Bar Grievance Administrator, State Bar Grievance Board, Detroit, for appellee.
Stuart J. Dunnings Jr., Lansing, for appellant.
Alphonse Lewis, Jr., in pro per.
Before the Entire Bench.
Appellant Alphonse Lewis, Jr., a member of the State Bar of Michigan, was indicted by a Federal Grand Jury for two separate violations of 68A Stat. 851, 852 (1954), 26 U.S.C. § 7203. 1 On February 29, 1972, Judge Noel P. Fox accepted appellant's plea of nolo contendere to Count II of the indictment (failure to file an income tax return for the year 1965) and set sentence at imprisonment for a term of one year; and on condition that appellant spend two weeks in the Ingham County Jail, the remainder of the sentence was suspended and appellant placed on probation for 11 months and two weeks. No appeal was taken from this conviction and sentence.
On March 20, 1972, the State Bar Grievance Board issued an order to show cause why appellant should not be suspended from the practice of law in accordance with 15.17 (16.17) of the State Bar Rules. A hearing was held before the Board pursuant to its order to show cause on May 19, 1972. Thereafter, the Board found appellant's conviction to be a proper ground for disciplinary action under 16.17 and ordered his suspension from practice until February 29, 1973.
Appellant then filed a claim of appeal with request for stay of suspension before our Court which we granted on July 19, 1972. Appellant challenges here the procedures used by the State Bar Grievance Board in ordering his suspension from practice and additionally raises the issue of whether a conviction entered after a plea of nolo contendere fell within the ambit of 16.17 at the time the instant disciplinary proceedings were commenced.
In addressing the issues raised by appellant, we find that a through review of the scope and procedures of Rule 16 of the State Bar Rules is necessary to provide guidance for the Board and members of the State Bar. While we will continue to consider on its merits every case brought before our bench, it is our hope that this opinion wilol clarify the procedures to be followed under Rule 16 and will eliminate the uncertainties under which all parties now operate, resulting in the burden of seemly automatic appeal to this Court for clarification.
This Court adopted Rule 15 (renumbered Rule 16 effective January 12 1972) of the State Bar Rules on December 15, 1969 to become effective March 1, 1970. The purpose of the rule is expressed in its Preamble:
'There is hereby created within the State Bar of Michigan the State Bar Grievance Board, which shall be and which shall constitute the arm of the Supreme Court for the discharge of its exclusive constitutional responsibility to supervise and discipline the members of the State Bar of Michigan.'
In Leitman v. State Bar Grievance Board, 387 Mich. 596, 198 N.W.2d 313 (1972), Justice Brennan examined Rule 15 (16) 2 and elaborated upon its significance:
'The establishment of the Board was a new concept in the area of professional discipline, both here in Michigan and throughout the nation. For the first time, there was an agency, comprised of lawyers and public representatives, charged with the sole responsibility of administering and enforcing the standards of professional conduct, adopted by this Court for the discipline of the Bar.
'The Board itself was the most visible and dramatic change from the previous intra-professional grievance machinery. * * *
387 Mich. 596, 569, 198 N.W.2d 313, 314.
Read as a whole, Rule 16 creates a dual set of disciplinary procedures. The first set may be termed, the 'normal' procedure, discussed at length in Leitman. This procedure allows a party to complain to the Grievance Board or to the State Bar Grievance Administrator concerning the conduct of a member of the Bar. Rule 16 sets forth in detail the steps to be followed by the Board in responding to such complaints. The second set of procedures centers around 16.17 which outlines a 'special' sort of disciplinary approach to be taken by the Board in the case of an attorney convicted of a serious crime.
In the normal disciplinary case a party will complain to the State Bar Grievance Administrator and make a charge against an attorney. The administrator treats the charge as a request for investigation and proceeds under 16.6 3 The charged attorney is provided an opportunity to respond to the charges; and thereafter, a decision is made by the Administrator as to whether to proceed further. 'If it appears from the request for investigation, answer and further investigation that there is no reasonable cause to believe the respondent is guilty of misconduct, the Administrator may dismiss the request with the prior approval of the Board.' 16.7. If reasonable cause is found to be present a hearing before a hearing panel is ordered pursuant to 16.8. 4
Once the matter is assigned to a hearing panel, a member of the Administrator's staff drafts a formal complaint. 16.5(b)(1); 5 16.10. The respondent is alllowed time to file has answer and a hearing is held in accordance with 16.10 and 16.11.
After the conclusion of the hearing, the hearing panel takes the appropriate action under 16.13. 16.13.
If any party to the hearing (the Administrator, complainant or respondent) so desires, he may petition the Board for a review of the order of the Hearing Panel. 'The Board shall then issue an order to show cause * * * why the order of the hearing panel should not be confirmed.' 16.14.
A hearing on the Order to Show Cause will then be held before at least three members of the Board. 16.15. After this hearing, '(T)he final determination shall be made by the Board, upon consideration of the Whole record, which shall include a transcript of the presentation made to the sub-board, and its recommended action in the matter.' (Emphasis added.) Id. The final Board action will either confirm, amend, reverse, or nullify the order of the hearing panel, or remand for additional fact-finding. 16.15; 16.22.
Appeal to the Supreme Court is available under 16.23 to any party aggrieved by a final order of discipline or dismissal by the Board on review. Leitman v. State Bar Grievance Board, Supra.
The most visible of the 'special' disciplinary sections 6 and the focus of the present appeal is 16.17. As amended in September, 1972, it reads:
'16.17 Suspension; Conviction of a Crime. Any Attorney convicted of a felony, or convicted of a crime punishable by imprisonment for a term of one year or more, or convicted of a crime involving moral turpitude or sentenced after a plea of Nolo contendere in connection with any of the foregoing, may upon such conviction or sentence, be suspended by the Board and he shall thereupon cease to practice law. The Board shall file and serve such order the same as set forth for other orders of discipline.
There are no committee notes available on the intent of the draftsmen of this section and the respective parties have presented us with disparate interpretations of its purpose. The State Bar Grievance Board urges that we follow its administrative interpretation of this section which allows summary suspension of attorneys convicted of serious crimes. In reply, respondent argues that 16.17 does not allow the Board to dispense with the hearing procedures that are required in the 'normal' disciplinary case. Respondent reads the section as strictly evidentiary, relating to the manner of proof of alleged misconduct within Rule 15, § 2(5). (Formerly Rule 14, § 2(5).) For the reasons stated below, without categorizing 16.17 as purely evidentiary, we find that a full hearing is a necessary part of disciplinary action under that rule.
Rule 16.17 raises significant questions with respect to the mechanics of implementation. Unlike the 'normal' procedure previously outlined, 16.17 does not explicitly state the necessary steps which the Board must follow in imposing suspension. This explicit omission does not mean that the Board may act in a summary manner. The convicted attorney must be given an opportunity to explain in detail those mitigating factors and circumstances which might cause the Board not to exercise its discretionary power to act under this section. Without such a hearing and individualized judgment, the discretion of the Board in this context has no substantial basis upon which to stand. Cf. In re Kapcia, 389 Mich. 306, 314, 205 N.W.2d 436 (1973).
Under the existing rules there is no place to look for guidance as to an appropriate procedure other than the 'normal' procedure heretofore discussed. We conclude therefore that the individual hearing under...
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