Friday, December 7, 2018
With unusually harsh words for the Grievance Administrator, the Michigan Attorney Discipline Board vacated a tri-county hearing panel's disbarment order and granted a hearing to the attorney on probation violations.
The road to near-disbarment started with this matter
This appeal involves a petition for order to show cause filed by the Grievance Administrator, seeking to increase respondent's 90-day suspension for failing to comply with his original discipline conditions. In the underlying matter, the parties submitted a stipulation for consent order of discipline on March 29, 2017. The stipulation contained respondent's admissions to a misdemeanor conviction for allowing an unlicensed driver to operate a motor vehicle, as well as to the factual statements and misconduct allegations set forth in the amended formal complaint. The parties agreed respondent's license to practice law would be suspended for 90 days and that he would be subject to various conditions.
A show cause was issued for alleged violation of the conditions
In respondent's answer to the petition for order to show cause, respondent explained his personal problems and absence from the state that prevented him from receiving his mail, including the letters sent by Ms. Burgess. Respondent stated that shortly after he executed the stipulation for consent order of discipline, he was evicted from his rental horne. He stayed with various friends, at inexpensive hotels, or in his van, but did not have a permanent mailing address. He had no job and no income, and asserted he was too embarrassed and humiliated to share the details of his situation with his family and friends. To make matters worse, his personal belongings that were being stored at a friend's rental space were sold because the rental fee on the storage unit was not being paid. In August of 2017, respondent's van broke down and he was unable to pay for the repairs, so he ultimately began living on the streets the majority of the time from August 18, 2017 until September 24,2017.
Then things got worse.
On September 23, 2017 his father died of a heart attack. He moved to Pennsylvania to deal with family matters.
His siblings gave him an advance on his estate distribution percentage so he could return to Michigan. In April of 2018, when respondent returned to Michigan, he received the petition for order to show cause and quickly responded. Respondent explained his absence, indicated he was extremely remorseful and laid out his plan for complying with the imposed conditions. Respondent also asked for additional time in which to comply. Meanwhile, respondent was in nearly constant contact with counsel for the Grievance Administrator, in order to provide updates on his progress.
In fact, between April 23, 2018 and June 5, 2018, respondent had contacted counsel for the Grievance Administrator, Cynthia Bullington, by email to provide updates at least eight times...
Despite the contact with the prosecutor
Respondent first argues that the hearing panel abused its discretion in denying respondent's motion for rehearing because the evidence supports respondent's claim that he did not have actual notice of the show cause hearing. We agree.
The communications are quoted at length.
On review, the Grievance Administrator asserts that the panel was not misled because it was told about one of respondent's emails - an email sent June 1,2018, the Friday before the hearing. Thus, the Administrator argues, the panel was aware of respondent's contact with the Attorney Grievance Commission. The hearing transcript, however, reveals that there was absolutely no attempt to inform the panel that counsel for the Grievance Administrator had been receiving constant updates from respondent. To the contrary, counsel went so far as to say she had "no idea" what prompted respondent's email, and that she "was very surprised" to have received it. (Tr 6/4/18, pp 5-7.)
When questioned further by the panel, counsel for the Grievance Administrator admitted
respondent had contacted her earlier and had asked to meet:
CHAIRPERSON STERLING: This is the first correspondence you had from him to you?
MS. BULLINGTON: He had earlier contacted me wanting to meet with me and I replied saying I did not want - did not feel a meeting would be productive between he and myself because of his extended noncompliance. Basically said we're going to go to hearing. [Tr 6/4118, p 16.]
Unfortunately, that is not what respondent was told. Respondent's April 23, 2018 email explained that he had been living in Pennsylvania since July of 20 17 because his father fell ill and passed away. He then asked if he could come see Ms. Bullington the next day in order to discuss the case. Ms. Bullington responded: "I really do not see the point in doing so at this time. You have done nothing to fulfill your conditions. My suggestion - file your response. After you file a response, if there is any reason to do so, we can meet." There was never any mention of a hearing, and despite additional requests by respondent, there was never a meeting with the Grievance Administrator's counsel.
The board notes
Here, the hearing panel abused its discretion by completely disregarding the fact that respondent had been in constant contact with counsel for the Grievance Administrator, appeared to be completely unaware of the hearing date, and had been actively attempting to comply with the conditions of the consent order. This evidence, coupled with logic and fairness under the circumstances, should have resulted in respondent being granted a new hearing. Such a conclusion is bolstered by the fact that the hearing panel appears to have been misled about respondent's constant contact with counsel for the Grievance Administrator...
From the tone and content of respondent's message, as well as evidence presented of his reaction to finding out a hearing had been conducted, it is clear respondent was unaware a hearing on the petition for order to show cause had been scheduled. What is also evident is that the panel had the impression that respondent's communications with Ms. Bullington were very limited. Had the panel been aware of respondent's repeated contact and continuous updates regarding his compliance with the conditions imposed in the prior order, perhaps there would have been a different outcome. All of this was eventually laid out by respondent in his motion for rehearing, but it does not appear to have been considered by the panel. For these reasons, we find that the hearing panel abused its discretion in denying respondent's request for a rehearing.
Respondent further argues that, even if he had failed to comply with the prior consent order of discipline, the sanction of disbarment is excessive and disproportionate. Again, we agree...
Respondent readily admits he did not timely comply with all of the conditions of the prior consent order of discipline. He has taken responsibility for his actions, and there is no evidence he intentionally disregarded his duty to fulfill his obligations under the consent order; rather, some very unfortunate circumstances prevented him from doing so. Importantly, there is absolutely no evidence of any injury caused by respondent's failure to comply with his conditions.