Petition of Albert
| Decision Date | 30 August 1978 |
| Docket Number | Docket No. 59397,No. 9,9 |
| Citation | 403 Mich. 346,269 N.W.2d 173 |
| Parties | Petition of Theodore G. ALBERT for Reinstatement as a Member of the State Bar of Michigan. Calendar 403 Mich. 346, 269 N.W.2d 173 |
| Court | Michigan Supreme Court |
Eugene N. LaBelle, Detroit, Associate Counsel to State Bar Grievance Administrator.
Theodore G. Albert, Ironwood, in pro per.
Before the Entire Bench.
Theodore G. Albert appeals an order of the State Bar Grievance Board denying his petition for reinstatement.
The Grievance Board found that Albert failed to establish that he met the requirements for reinstatement set forth in clauses (e), (g) and (h) of State Bar Rule 15, § 7.
That rule provides that when a license to practice law has been revoked or suspended for in excess of 120 days, a lawyer seeking reinstatement is required to establish by "clear and convincing evidence" that
(e) His attitude towards his prior misconduct is one of genuine remorse;
(g) He understands and will conduct himself in conformity with the profession's standards;
(h) He can safely be recommended to practice law. 1
New rules concerning bar grievances and discipline have been promulgated effective October 1, 1978. The genuine remorse requirement was eliminated, while clauses (g) and (h) were retained. 2
Albert's attitude toward the misconduct for which he was disciplined was the primary focus of the reinstatement hearing. The hearing panel found that his "general frame of mind and attitude" "requires" the conclusion that he does not understand and will not conduct himself in conformity with the profession's standards and cannot safely be recommended, and said:
"Repeatedly, during the course of the Hearing, the Petitioner failed to accept responsibility for his actions, which were the subject of discipline, and attempted to explain or to place the blame for such occurrences upon misunderstandings or actions by others, most of which could not be accepted by the Hearing Panel, either as fact or in mitigation."
The Grievance Board affirmed those findings and conclusions.
While an attitude of remorse and willingness to accept responsibility for the prior misconduct may tend to show that a suspended or disbarred lawyer understands and will conform to the profession's standards and can safely be recommended, the absence of such an attitude is not evidence of the converse.
This Court repealed the remorse requirement so that a disciplined lawyer who persists in maintaining his innocence may nevertheless be reinstated. 3 Full implementation of that policy precludes the Grievance Board from relying on continuing assertions of innocence or refusal to admit wrongdoing as evidence that a lawyer seeking reinstatement does not have a proper understanding of the standards, will not conduct himself in conformity with them or cannot safely be recommended.
We would remand this case to the newly created attorney discipline board with directions that a new hearing be held on Albert's petition at which no inference regarding his fitness to be reinstated shall be drawn because of his attitude toward or unwillingness to admit or accept responsibility for the prior misconduct. 4
While Albert need not admit misconduct or "accept responsibility" as a precondition to reinstatement, the rule in effect requires that he demonstrate that he will not repeat the conduct for which he was disciplined. 5
Albert was suspended for one year on evidence that he had "accepted retainers and agreed to perform services * * *, but did not render the agreed services." State Bar Grievance Administrator v. Albert, 390 Mich. 234, 236, 212 N.W.2d 17, 18 (1973). A consecutive one year suspension was ordered for similar misconduct and for failing to respond to the request for investigation. During the second suspension Albert was reprimanded for a similar lapse, failing to file a timely claim of appeal.
On remand Albert would be required to establish that he understands DR 6-101(A)(3), "a lawyer shall not neglect a legal matter entrusted to him," that if reinstated he will not neglect legal matters entrusted to him and that, therefore, he can safely be recommended. 6
The rule took its present form in 1970. 7 Prior rules did not state the substantive showing required for reinstatement, prescribing only the procedure. 8 Under the former procedure, the reinstatement hearing was to be given focus by the chairman of the grievance committee who was required to give the lawyer seeking reinstatement notice in advance of the hearing of "the nature of the proofs required for reinstatement." 9
The substantive criteria in the present rule appear to have been adopted in response to the concern that Disbarred lawyers were too readily reinstated by the courts; an ABA committee recommended "that reinstatement shall be granted only on the affirmative showing by the applicant that he possesses the requisite qualities of character and learning." 10
Those substantive criteria, which have been recently re-adopted, are broadly stated, vesting a large measure of unstructured discretion in the hearing panel and Grievance Board with the risk that decision may turn on subjective feelings about a lawyer's personality, beliefs or character.
Combining in one rule the same substantive criteria for reinstating suspended and disbarred lawyers blurs the distinction between suspension and disbarment 11 and causes doubt about the character and quantum of proof appropriate in each case, leading to uneven application of the rule.
The practice has varied. Usually, the disciplined lawyer admits his prior misconduct, undertakes not to repeat it, and no evidence of corrective action is proffered. The lawyer may testify that he has used the time made available by the suspension to read the advance sheets or attend continuing legal education seminars. Members of the bar are sometimes called to express an opinion regarding the lawyer's professional qualifications. Friends, neighbors and business associates may testify to general good citizenship and character.
The lawyer and his counsel often know in advance that the administrator will not seriously oppose reinstatement and the testimony is, if not Pro forma, perfunctory. 12 In such a case, the primary concern of the hearing panel is whether the lawyer has complied with the terms of the order for discipline and, in particular, whether he has practiced law contrary to the disciplinary order. 13 (See State Bar Rule 15, § 7, subds. (c) and (d), fn 1.)
Where, however, as here, the administrator actively opposes reinstatement, the vagueness of the present rule leaves unclear what the lawyer seeking reinstatement must show and what the hearing panel must require to justify reinstatement.
The reinstatement hearing in the instant case demonstrates the difficulty that may be encountered in applying the vague subjective criteria of the rule. A hearing of nearly ten hours was held on Albert's petition. He testified at length about his personal history, political activity and work as a lawyer. A substantial portion of his testimony concerned the conduct for which he had been disciplined and his explanation of the circumstances surrounding those events. 14
The hearing lacked focus and objective criteria for intelligent review. The record demonstrates mainly that Albert maintained that he did not know what he needed to prove to be reinstated.
A suspended lawyer petitioning for reinstatement should not feel compelled to present an exhaustive account of his life and character in the hope that he will, at some point, stumble on the essence of the problem as perceived by the panel and convince it that he is basically a good person who should be permitted to practice law.
Because reinstatement is not automatic, any suspension for more than 120 days is an indefinite suspension. 15 The policy justifying indefinite suspension has been stated by the Washington Supreme Court:
" 'It imposes upon the offending lawyer the responsibility of restoring the confidence of the public as well as the respect of his colleagues in the profession. In other words, the opportunity for reinstatement should stand as a goal to the disciplined lawyer to re-establish himself in the profession.
" " In re Nelson, 87 Wash.2d 77, 83, 549 P.2d 21, 25 (1976).
Nevertheless, the implicit assumption of a suspension, whether or not indefinite, is that the disciplined lawyer will ordinarily be reinstated at the end of the suspension period. The rules should explicitly recognize that premise, and should provide:
(i) If the suspension is purely punitive, the lawyer shall be reinstated upon an appropriate showing that he has complied with the disciplinary order, unless further disqualifying cause is shown; and
(ii) If a purpose of the suspension is corrective, the conditions of reinstatement shall be made part of the order of suspension so that the lawyer can conform his behavior and at the hearing can show that he has taken the requisite corrective steps.
Suspension orders stating conditions for reinstatement would facilitate compliance with corrective goals and provide some assurance that there is a correlation between the nature of the earlier misconduct and the showing required for reinstatement. They would further provide both an objective basis for determining whether correctional goals have been achieved and objective criteria for review of a denial of reinstatement. This would...
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Brown, In re
...Mass. at 455, 333 N.E.2d at 437, a position that we find to be reasonable and which other courts have adopted. E. g. Petition of Albert, 403 Mich. 346, 269 N.W.2d 173 (1978); In re Barton, 273 Md. 377, 329 A.2d 102 (1974); Ex parte Marshall, 165 Miss. 523, 147 So. 791 (1933); In re Eddleman......
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Grievance Adm'r v. August
...as well, but may in some instances require judgments on the basis of the evidence.8 See MCR 9.123(B).9 Justice Levin in In re Albert, 403 Mich. 346, 269 N.W.2d 173 (1978), criticized MCR 9.123 (then State Bar Rule 15) for failing to separate the substantive criteria for reinstatement in cas......
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Freedman, Matter of
...new clauses have been added. See GCR 1963, 972.2(8) and (9). Otherwise, the rule remains virtually the same.1 See In the Matter of Albert, 403 Mich. 346, 269 N.W.2d 173 (1978).2 The rule on reinstatement provided:"Eligibility for Reinstatement. Upon expiration of any term of suspension not ......
- State v. Schofield, No. 0-006/08-1751 (Iowa App. 2/24/2010)