State Bar of Mich. v. Block

• Decision Date: 13 April 1970
• Docket Number: No. 2,2
• Citation: 175 N.W.2d 769,383 Mich. 384
• Parties: STATE BAR OF MICHIGAN, Plaintiff-Appellee, v. Clem H. BLOCK, Respondent-Appellant.
• Court: Michigan Supreme Court

Page 769

175 N.W.2d 769

383 Mich. 384

STATE BAR OF MICHIGAN, Plaintiff-Appellee, v. Clem H. BLOCK, Respondent-Appellant.

No. 2.

Supreme Court of Michigan.

April 13, 1970.

F. William Hutchinson, Grand Rapids, for plaintiff-appellee.

Earl Waring Dunn, Wyoming, for respondent-appellant.

Before the Entire Bench, except T. G. KAVANAGH, J.

BLACK, Justice.

The issue we have accepted for review is new; new in the sense that it is an understandable stranger to the comprehensively thorough report of the commissioned State Bar grievance committee, the rule-required certification of the State Bar Commissioner at Large, the opinion of the 3-judge circuit court, and the opinion of Division 3 of the Court of Appeals. Such new issue calls for test of the validity, as applied here, of sections 9 and 29 of Rule 15 of the State Bar of Michigan. ¹ It is an issue which, as we shall see, has grown to the stature of widespread public interest and major significance to our jurisprudence.

Like so many criminal matters coming before the courts of the States these days, we find that this disbarment proceeding was instituted and conducted, through a duly affirming judgment of the circuit court, under the supposedly dependable auspices of a supremely controlling and quite indistinguishable judicial decision. That decision is Cohen v. Hurley (1961), 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156. There the Supreme Court ruled that a State may, 'consistently with the Fourteenth Amendment, disbar an attorney who, relying on his state privilege against self-incrimination, has refused to answer material questions of a duly authorized investigating authority relating to alleged professional misconduct.'

However, by application for leave to appeal from the subsequent affirming judgment, ² it was pointed out that the Supreme Court in the interval had overruled Cohen v. Hurley by Spevack v. Klein (January 16, 1967), 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574. We granted the application, solely to review in the light of intervening Spevack; the respondent having abandoned all of the meritorious questions which Division 3 considered in its opinion. See 381 Mich. 755 in conjunction with that opinion, 9 Mich.App. commencing at 701, 158 N.W.2d 49.

Respondent's application came here almost simultaneously with advent of a critical onslaught, directed at the legal profession and the judicial system of Michigan by certain legislators, the latter stimulated if not prodded by a sensation-bent Detroit daily newspaper. The spearhead of such criticism is that the legal profession, functioning under disciplinary rules adopted by this Court, has not proceeded effectively against certain of its allegedly errant members and, therefore, that the legislature should take from the judicial branch the responsibility for disciplinary measures and make provision therefor by exclusory legislation. The developing upshot is that this Court stands in the midst of noisy demands for more drastic discipline of lawyers and equally imperative Spevack-bids for protection of their constitutional rights.

To steal a phrase from the Garrity Case (cited and considered post), here we are between the rock of Spevack and the fearsome whirlpool of legislative displeasure. Not that we mind, of course, as presently will be made evident.

Needless to say, the respondent's application was granted in the light of all this general commotion, he having taken position that 'sections 9 and 29 of Rule 15 of the State Bar of Michigan are unconstitutional by reason of * * * Spevack v. Klein, 385 U.S. 511, (87 S.Ct. 625, 17 L.Ed.2d 574,) decided January 17, 1967.'

The turnabout effected by Spevack was of course unforeseen as this proceeding wended its lengthy and cautiously exhaustive way through complaint, investigation, thorough hearing, administrative order of disbarment, appeal to the circuit court and judgment there. Yet here we are, confronted by interjected Spevack, with no hint that in the ultimate it will be held retroactively or prospectively effective. In that regard Spevack is like Boykin v. Alabama (June 2, 1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. A case which today impales the courts of the States on both horns of a new dilemma as applications, petitions and motions for retroactive application of Boykin pour in from the prisons and the ranks of probationers and accused persons out on bail.

In view of our decision to affirm upon reasons given Post, we shall assume that the Supreme Court will say some day that Spevack relates back to all disbarments and suspensions hitherto ordered in the United States where, as in Spevack, the lawyer charged has raised and saved his constitutional right to remain silent when faced by accusation of professional misconduct. That assumption points up for answer the State Bar's accurately counterstated and presently determinative question:

'Where a State Bar Grievance Committee called appellant to answer questions pursuant to section 9 of Rule 15 of the Supreme Court Rules governing the State Bar of Michigan and appellant objected to being called, but then immediately proceeded to testify and made no further objections, was his Fifth Amendment privilege against self-incrimination violated?'

The question grows out of this Colloquy, before the rule-provided grievance committee on August 4, 1965, when the respondent was called to testify:

'Mr. Dunn (For Respondent): Yes, Mr. Chairman. And at this time I would also like to state on the record my objection to calling Mr. Block, if the calling is done by reason of any authority given in section 9 of Rule 15 of the rules of the State Bar, for the reason that we contend that the provision in this section 9 of Rule 15, requiring the respondent to answer all questions pertaining to his conduct that may be put to him by the chairman and so forth, is a violation of his constitutional rights and that that provision is unconstitutional. I want to state that on the record.

'The Chairman: What particular section of the Constitution are you relying on?

'Mr. Dunn: Against self-incrimination, because that makes no exception. It says he must answer all questions that are put to him. ³

'Mr. Dunn: May I make my position clear. Apparently it has been misunderstood. Mr. Block is present in court or before this committee to answer such questions as may be put to him, pursuant to the provision of these rules. My position is, however, that the rules themselves, or that this rule is unconstitutional, and I am saving that objection on the record; that while Mr. Block may be complying with the provisions of the rule in cooperating with the committee, he still contends that that is an unconstitutional requirement.

'Mr. Hutchinson (for the State Bar): All right, I would like to call Mr. Block.

'The Chairman: Mr. Block, would you raise your right hand.

(Witness sworn).

'Mr. Block: I do, if they are proper questions. I may have some reservation as to some questions, but I will answer all questions fairly and impartially.

'The Chairman: You are making no reservation as to your oath, however?

'Mr. Block: I say this: There are some privileged communications between clients and myself, which I do not think I may be able to disclose unless there is a release from that confidential relationship.

'The Chairman: You have counsel representing you.

'Mr. Block: Yes, sir.

'The Chairman: And those matters can be taken care of as we proceed.

'Mr. Block: Yes, sir.

'The Chairman: So your oath is fairly and freely made?

'Mr. Block: Yes, sir.'

Refer now to Spevack's complement, Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, handed down with Spevack. In that case it was shown that New Jersey's Attorney General, theretofore ordered by the Supreme Court of New Jersey so to do, proceeded to investigate certain reports of traffic ticket fixing by the appellant police officers; that in the course of such investigation the Attorney General obtained detailed statements from those officers; that the officers thereafter were prosecuted and convicted of conspiracies to obstruct the administration of the State's motor traffic laws; that portions of the statements so obtained were received in evidence during separate trials of the officers, and that the officers had duly raised question whether such use of the statements violated their constitutional right to remain silent.

By another 5 to 4 vote the Supreme Court ruled that the aforesaid officers, warned and threatened as the majority said was done before they submitted to the investigatory interrogations disclosed by their statements, were (as put by the majority) given the choice 'either to forfeit their jobs or to incriminate themselves.' Reversal of the convictions followed, upon this holding (p. 500, 87 S.Ct. p. 620):

'We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.'

Our task, highlighted as it is by the quoted counterstatement of question, is to determine whether there are any facts or permissible inferences in this record which tend to justify a conclusion or conclusions that this respondent w...