Monday, November 30, 2009
The Michigan Attorney Discipline Board has affirmed findings of misconduct but increased the sanction from a 120 day suspension to 180 days. The attorney had pleaded guilty to a misdemeanor assault and battery in exchange for dismissal of charges of fourth-degree criminal sexual conduct in 2001. He failed to report the conviction to bar authorities. The conviction came to light when a former client filed a request for investigation of the attorney.
The Administrator filed charges relating to the failure to report the criminal matter, false statements on his bar dues statement that denied any such conviction and misconduct toward the complainant that involved improper touching, sexually explicit remarks and a comment that his fees could be paid on his "couch of restitution." The Administrator filed notice of intent to offer two similar acts toward vulnerable clients. The Administrator also offered evidence that the 2001 conviction (later set aside) involved improper sexual behavior directed at a client. The testimony of the 2001 victim was admitted to establish the circumstances of the offense. The "bad acts" evidence of the other two former clients also was admitted at the hearing.
The board here held that discipline could be imposed for the criminal conduct notwithstanding the order setting aside the conviction. The evidence of other acts was properly admitted:
The high degree of similarity of these separate accounts established [his] system of making sexual overtures to female clients who were seeking legal assistance in a domestic matter. These overtures occurred during a discussion of his legal fees. Both [victims] testified that [he] used the phrase "couch of restitution," and closed the blinds before making sexual remarks to them. The panel did not err in finding a commonality in [his] approach indicating a scheme, plan, or system and the panel did not err when it found that "prior bad acts" evidence was offered for a proper purpose...
The 180 day suspension will "ensure that [the attorney] is not permitted to resume his standing as a member of the profession unless he is able to establish his fitness by clear and convincing evidence." The Administrator has sought a suspension from one to three years. The attorney had a record of prior discipline.
The decision provides an interesting analysis of admission of evidence issues in the context of bar discipline. Many bar regimes (such as D.C.) have rules that allow for admission of evidence that permit consideration of information (such as hearsay) that might be excluded under civil and/or criminal rules.(Mike Frisch)