Moes, In re

Decision Date27 March 1973
Docket Number6,Nos. 5,s. 5
Citation205 N.W.2d 428,389 Mich. 258
PartiesIn the Matter of Harvey W. MOES, a Member of the State Bar of Michigan, Respondent. In the Matter of Harvey W. MOES, Probate Judge, Hillsdale County, Michigan, Before the Judicial Tenure Commission.
CourtMichigan Supreme Court

Louis Rosenzweig, Detroit, for State Bar Grievance Administrator, State Bar Grievance Board.

Domke, Marcoux, Allen & Beaman, Jackson, for respondent.

Before the Entire Bench.

T. G. KAVANAGH, Justice.

Both of these cases arise from the same facts. In January, 1970, Harvey W. Moes, a licensed attorney, entered an appearance on behalf of Vernon J. and Mattie A. Cook in an action brought against them in the circuit court of Hillsdale County. No answer was filed by Mr. Moes on behalf of his clients, and indeed, nothing was done. Subsequently a default judgment was entered against the Cooks. Although Mr. Moes repeatedly assured the Cooks that he would get the default set aside, he never did anything about it. Finally, the Cooks were forced to obtain other counsel.

A request for investigation was filed by the Cooks with the State Bar Grievance Committee. A copy of this request was served on Mr. Moes by mail. No answer having been received from Mr. Moes, a default for failure to answer the request for investigation was filed on January 14, 1971.

A formal complaint was entered, and on September 15, 1971, after a hearing at which he did not appear, Mr. Moes was suspended from the practice of law for one year for violating Canon 21 and Rule 15 of the State Bar Rules. The Appeal Board sustained the suspension.

Respondent raised several issues on appeal. Initially, he argues that his conduct does not constitute a violation of Rule 15, asserting that mere negligence is not grounds for suspension.

Rule 15 was amended, prior to respondent's actions with respect to the Cooks to include the Canons of Ethics which are promulgated from time to time as rules of conduct.

Canon 21 provides:

'Punctuality and Expedition.

It is the duty of the lawyer not only to his client, but also to the courts and to the public to be punctual in attendance, and to be concise and direct in the trial and disposition of causes.'

This canon imposes a standard of diligence and attention on a lawyer. Respondent's pesistent refusal to address himself to the proper handling of his clients' affairs especially in face of the repeated importunings of the clients and opposing counsel, transcends mere negligence. It violates the letter and spirit of the canons and rules and is conduct which brings our whole profession into disrepute.

Respondent poses as another question on appeal:

'Did the State Bar Grievance Board violate Respondent's rights to procedural due process by failing to advise him properly on appeal to that board he would be called upon to defend his failure to appear before Panel #3?'

He maintains the Board did, but we are not persuaded.

In his argument, respondent maintains that under Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967) rule 16 1 may not be read to permit disbarment for asserting his 5th Amendment Rights. We agree with that principle but find no application here.

Respondent never asserted any 5th Amendment Right. He simply failed to appear.

Finally, respondent argues that because bar grievance proceedings are quasicriminal in nature, requiring him to appear or respond violates his right against self-incrimination. He cites our decision in State Bar of Michigan, Woll, 387 Mich. 154, 194 N.W.2d 835 (1972) in support of his claim that Rule 15 may not legitimately compel cooperation in an investigation or hearing. Woll does not support him. As Mr. Justice Swainson pointed out in Woll (p. 161, 194 N.W.2d p. 838):

'Mr. Woll, however, is not objecting to the provisions of Rule 15. Rather, he is objecting to the comments that were made before the Hearing Panel and the Grievance Board by counsel for the State Bar.'

Respondent misconceives the office of the 5th Amendment's privilege. The choice of whether to appear and to offer proofs lies with the one charged, but the obligation to meet charges never entails an obligation of self incrimination. Any other rule would render the Bar Grievance Board importent. If suspension could not result from a decision not to answer substantive charges, professional misconduct could never be censured. An attorney could ignore charges brought against him, knowing that no action could be taken, and thus frustrate the whole grievance procedure.

We find no merit in respondent's other contentions as to weight of evidence and assertion of vagueness, and therefore affirm respondent's suspension from the practice of law for one year.

As to the second matter before us, subsequent to respondent's involvement with the Cooks, but prior to his suspension from the practice of law, respondent was elected Probate Judge in Hillsdale County. As a result of respondent's suspension from the practice of law, the Judicial Tenure Commission recommends respondent's removal from office citing Const.1963, art. VI, § 19 and M.C.L.A. § 168.431; M.S.A. § 6.1431. This is...

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7 cases
  • In re Gillard
    • United States
    • Supreme Court of Minnesota (US)
    • September 6, 1978
    ...and disciplinary recommendation. Respondent cites as authority In re Kapcia, 389 Mich. 306, 205 N.W.2d 436 (1973); In re Moes, 389 Mich. 256, 205 N.W.2d 428 (1973); Gordon v. Clinkscales, 215 Ga. 843, 114 S.E.2d 15 (1960), and Jenkins v. Oregon State Bar, 241 Or. 283, 405 P.2d 525 These cas......
  • Baun, Matter of
    • United States
    • Supreme Court of Michigan
    • September 8, 1975
    ...his name, place of practice, date of admission to the bar and other non-incriminating matters. We find State Bar Grievance Administrator v. Moes, 389 Mich. 258, 205 N.W.2d 428 (1973), coupled with State Bar of Michigan v. Block, 383 Mich. 384, 175 N.W.2d 769 (1970), to be controlling. The B......
  • State v. Spiegel
    • United States
    • Court of Appeal of Florida (US)
    • March 4, 1998
    ...Failure to respond may subject the attorney to disciplinary action. See Florida Bar v. Daniel, 626 So.2d 178 (Fla.1993); In re Moes, 389 Mich. 258, 205 N.W.2d 428 (1973); Committee on Prof. Ethics & Conduct of the Iowa State Bar Ass'n v. Horn, 379 N.W.2d 6 (Iowa 1985).2 Rule 3-7.4 of the Ru......
  • Ryman, In re
    • United States
    • Supreme Court of Michigan
    • August 20, 1975
    ...did not err in considering these acts committed prior to the time Respondent assumed judicial office. State Bar Grievance Administrator v. Moes, 389 Mich. 258, 205 N.W.2d 428 (1973), and In re Kapcia, 389 Mich. 306, 205 N.W.2d 436 As to misconduct in office, it is a finding of fact by the M......
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