Estes (State Report Title: State Bar Grievance Administrator v. Estes), In re
| Decision Date | 18 December 1973 |
| Docket Number | No. 7,S,7 |
| Citation | 212 N.W.2d 903,390 Mich. 585 |
| Parties | , 92 A.L.R.3d 275 In the Matter of Walter O. ESTES, On Complaint of State Bar Grievance Board. * ept. Term. |
| Court | Michigan Supreme Court |
Walter O. Estes, in pro per.
Richard H. Senter, Detroit, State Bar Grievance Administrator.
Eugene N. LaBelle, Detroit, Associate Counsel, State Bar Grievance Bd.
William E. Rheaume, Lansing, for complainant.
Before the Entire Bench.
This case comes to us on appeal from the State Bar Grievance Board (hereafter 'Board'). Appellant attorney, Walter O. Estes, contends both that the facts elicited in hearing panel testimony are insufficient to support a finding of unprofessional conduct, and that, in any case, such conduct as the board found appellant engaged in does not present grounds warranting disciplinary suspension from the practice of law. Thus the facts in this case are of essential importance.
Appellant represented a client, Earl Harmon, who was involved in a rear-end accident in East Lansing on September 7, 1965. Previously, withou counsel, Harmon had consented to a judgment against him of $855.25 in favor of the City of East Lansing, owner of the truck that Harmon rear-ended. Appellant represented Harmon in a second suit, a personal injury action brought by a passenger in the truck, Charles L. Malcomb, on June 26, 1967.
Appellant prepared an answer to the suit which he filed and mailed to Harmon; he took Harmon's deposition on January 5, 1968. Appellant stated that he gave Harmon notice of deposition by letter after he was unable to reach Harmon by using the telephone number Harmon gave him. Just after the deposition was taken, appellant testified that he had a conversation with his client wherein Harmon agreed with appellant's advice that liability had been 'virtually admitted' and that the only issue remaining was damages. Appellant claims that this conversation constituted authorization to make 'as good a settlement as he could on the damages.' It is a controverted question whether or not Harmon himself admitted or denied in his hearing panel testimony that he was told by appellant that the damages were the only remaining issue, or whether he admitted or denied authorizing settlement.
A trial date was set in this action for February 16, 1971. On January 9, 1970, appellant consented to the entry of a summary judgment in favor of plaintiff as to liability. On February 19, 1971, appellant consented to the entry of a consent judgment for damages in the sum of $30,654.35. No correspondence or conversations at all were had before entry of these judgments by appellant with Harmon after the January 5, 1968, conversation at Harmon's deposition. Appellant stated that he attempted to phone his client before both the summary and consent judgments, but was unable to reach him; no written communications were attempted. Harmon testified that the first notification he had of these judgments was by the Secretary of State when his operator's license was revoked for failure to satisfy the consent judgment. During all this period, Harmon resided at the same address appellant wrote to in 1967. Appellant testified that Harmon's home was about five miles from his office.
Appellant justifies his lack of contact with Harmon on the grounds that he was expressly authorized to make as good a settlement as possible and that the amount he consented to was $19,000.00 less than plaintiff's 'confirmed damages.' Before the hearing panel, appellant admitted that he was aware that there was considerable doubt whether Harmon, a farm laborer, could pay a judgment of this magnitude.
A Board hearing panel found that appellant had violated Rule 14 (now Rule 15), §§ (1), (2), and (3) and an order was filed July 17, 1972, suspending appellant from the practice of law for one year. The Board affirmed the panel on October 18, 1972.
Appellant appealed to this Court under Rule 16.23 of the Michigan Supreme Court Rules for the State Bar Grievance Board from a final order of discipline. The initial issue to be resolved is the nature of our review on appeal of Board final orders. Traditionally, review of such orders has been in the nature of certiorari rather than De novo review. Attorney General v. Lane, 259 Mich. 283, 285--287, 243 N.W. 6 (1932); cert, den., Lane v. Voorhies, 287 U.S. 654, 53 S.Ct. 115, 77 L.Ed. 565 (1932); Attorney General v. Nelson, 263 Mich. 686, 700--701, 249 N.W. 439 (1933); Attorney General v. Shaw, 289 Mich. 468, 469, 286 N.W. 793 (1939); In re Estes, 355 Mich. 411, 424, 94 N.W.2d 916 (1959); cert. den., 361 U.S. 829, 80 S.Ct. 77, 4 L.Ed.2d 71 (1959). 1
We have not had cause though to discuss the question of standard of review since the advent of new disciplinary rules and procedures effective March 1, 1970. It is significant that the new disciplinary procedures are, prior to final review by this Court, administrative and quasi-judicial in nature, rather than primarily judicial. Const. 1963, art. 6, § 28, provides in relevant part:
Review in the nature of certiorari meets this constitutional requirement. It also serves to give real meaning to the powers and duties given the Board and hearing panels under Rule 16. We thus retain the standard for review established by case law prior to adoption of these new disciplinary rules. Thus we will not proceed to adjudicate this case De novo, but instead we will determine whether the Board's findings have proper evidentiary support on the whole record.
The hearing panel in this action made the following findings which were affirmed by the Board:
'CONCLUSIONS
'Upon careful consideration of the facts, the panel concludes as follows:
'1) That Respondent failed to fully and properly keep his client advised and informed of the proceedings in the cause pending against hte Complainant and in which Respondent had undertaken to defend him.
'2) That Respondent failed to communicate with the Complainant Harmon, his client, and to obtain his consent to the entry of the Consent Judgment and for that matter consent to the entry of the partial summary judgment regarding liability.
'3) That he did not have authority either express or implied to consent to the entry of judgment for $30,654.35; that the decision as to whether a consent judgment ought to be agreed to is a decision which only a client can make after discussion with and advice by the attorney.
'4) That Respondent did in the premises violate Rule 14 (now Rule 15) (1)(2) (3).
'5) That the panel has considered carefully Respondent's claim that he was left with the impression after the January 5, 1968, depositions, that he had authority to settle, but it is not convinced from the proofs presented that such authority was in fact given or that Respondent who had practiced law for many, many years could have been given that impression from the conversation which is alleged to have taken place at that time; that the panel has also carefully considered the lack of education, training, and experience of the Complainant having entered the 10th grade but not having completed same, and being a common laborer presently employed as a farm laborer which factor should have at the very least caused Respondent to exercise the utmost care in handling the affairs of the Complainant. The panel has also considered carefully the failure of the Respondent to communicate with the Complainant Harmon except on the two occasions hereinabove referred to, his failure to give notice of trial, and of the entry of the judgment to the Respondent.'
This Court must now determine whether the whole record supports such findings. We conclude that it does.
Whether or not appellant was authorized to settle his client's case is an issue which was a focal point of argument by both parties in their briefs to this Court and upon oral argument. (Conclusions 2, 3, 5). It is quite clear that appellant stated in testimony before the hearing panel that he believed he had authority to settle, e.g.:
(Tr 57--58). (20b)
'. . . I think I was authorized by Mr. Harmon to make as good a settlement as I could on the damages.' (Tr 59) (22b)
(Tr 61) (23b)
(Tr 75) (34b)
What is controverted is the simple question whether Harmon, on the record, admitted or denied authorization. Appellant relies primarily on the following colloquy before the hearing panel as supportive of his contention that Harmon admitted authorizing appell...
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