Friday, September 24, 2021

Extension Of Conditions Did Not Void Consent Discipline

The Michigan Attorney Discipline Board affirmed an order modifying conditions imposed with a consent reprimand.

The misconduct 

The formal complaint filed by the Grievance Administrator alleged that respondent committed professional misconduct by engaging in conduct involving a violation of a criminal law. The complaint contained factual allegations that indicated that on or about August 3, 2018, the Grosse Pointe Farms Department of Public Safety (the police) responded to a disturbance near respondent's home. The police obtained a warrant, searched respondent's home, and discovered four small baggies with residue powder of cocaine, three charred glass crack pipes, a pink straw with white powder residue on it, one Xanax bar, and one Xanax pill. (Formal Complaint ¶¶ 5-8.)

The Wayne County Prosecutor's Office filed a complaint against respondent in Grosse Pointe Woods Municipal Court, People v Donald Michael Cherry, Case No. 18-71583601, for felony possession of cocaine. On or about October 24, 2018, respondent entered a no contest plea to attempted possession of an analogue, in violation of MCL 333.7402(2)(b), a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000 or both. On or about November 14, 2018, respondent was sentenced and he requested, and received, a
deferred sentence of 18 months of probation pursuant to MCL 333.7411. (Formal Complaint ¶¶ 9-11.) The complaint alleged violations of MCR 9.104(2)-(5); and MRPC 8.4(a) and (b). (Formal Complaint ¶¶ 12(a)-(e)).

The modification extended supervision beyond the 18 months agreed to in the consent to discipline.

Respondent contended that the modification was a breach of the consent 

On review, respondent argues that the Administrator materially breached the terms of the parties' stipulation by later advocating for terms longer than the 18 months agreed to by the parties. Respondent further argues that this material breach essentially voids the conditions entirely. The Administrator argues that respondent did not meet his burden, to establish by clear and convincing evidence, that he made a good faith effort to meet the LJAP monitoring condition imposed in the panel's order but that it was impractical to fulfill the condition, so as to be entitled to abatement or modification of the conditions.4 However, the Administrator's counsel conceded to the panel, and now on review, that modification was warranted.

The board

We conclude that the modified conditions, namely that for 22 months respondent attend psychotherapy/cognitive behavioral therapy twice a month, receive treatment once per month from a psychiatrist, and submit to random drug testing once per month, are relevant to the established misconduct, as contemplated in MCR 9.106(3). Furthermore, given respondent’s displeasure with LJAP’s recommendations for monitoring and his specific request that his LJAP clinical case manager be replaced, the Board is not persuaded that the hearing panel's decision to modify the  conditions in this matter was inappropriate.

(Mike Frisch)

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