Tuesday, February 16, 2010

No Probation

In a recent opinion, the Michigan Attorney Discipline Board vacated a panel's order of probation and ordered an attorney suspended for one year;

Following an emotionally charged courtroom confrontation with the opposing party in a civil case, respondent used his cell phone to call the opposing party, a lawyer. Receiving no answer, respondent left a recorded message which, while brief, was mocking, profane and personally insulting. Neither the making of the phone call nor the contents of the recorded message were charged as professional misconduct in the discipline proceedings...However, respondent pleaded no contest to the charges in the complaint that, when questioned about his actions, he filed a false affidavit and gave sworn testimony denying he had made the phone call. further, respondent pleaded no contest to the charge that he counseled his client to sign a false affidavit and to give false testimony to the court that it was the client, not respondent, who had made the call and left the recorded message.

The attorney had sought probation asserting that an impairment had substantially contributed to his misconduct. His expert testified that he suffered from major depression that "can cause significant dysfunction and self-defeating behavior." The board found the probation question was "not an easy one..." However, the statements of respondent's medical expert did not "assur[e] that an order of probation would be in the public interest."

A concurring opinion would find that the probation eligibility rules "have little, if any, application to a case such as this." The rule relates to an attorney's impaired capacity to practice law, not to
"be applied to someone's criminal conduct." (Mike Frisch)

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