Attorney Grievance Defense Character and Fitness Representation

Transcription

1 70 Orders of Discipline and Disability Disbarment David B. Dunn, P62773, Detroit, by the Attorney Discipline Board, Tri-County Hearing Panel #10, effective June 6, The respondent did not appear at the hearing and was found to be in default for failing to respond to the order to show cause. Based on the respondent s default, the hearing panel found that the respondent committed the criminal offenses of conspiracy to commit perjury, in violation of MCL a, and solicitation of perjury, in violation of MCL B. By engaging in conduct that violates a criminal law of the United States, the respondent was also found to have violated MCR 9.104(5). The hearing panel ordered that the respondent be disbarred from the practice of law in Michigan. Costs were assessed in the amount of $1, The respondent has been continuously suspended from the practice of law in Michigan since February 20, Please see notice of automatic suspension for failure to pay costs, issued February 20, Automatic Reinstatement Attorney Grievance Defense Character and Fitness Representation Former Macomb County Assistant Prosecuting Attorney (24 years) and former Attorney Discipline Board Hearing Panel Chairperson (23 years) welcomes the opportunity to represent attorneys in disciplinary and grievance proceedings, and law school graduates in character and fitness hearings. Steven Kaplan, Attorney at Law Adjunct Law Professor, M.S.U. College of Law Law Offices of Rodnick, Unger, and Kaner, PC 3280 East 13 Mile Road Warren, MI Office (586) Cell (248) ATTORNEY DISCIPLINE DEFENSE John L. Coté Attorney and Counselor to the Legal Profession SM Statewide Practice Well over 250 attorneys and many judges have relied on Jack Coté for competent and effective legal representation at all stages of disciplinary proceeding and counseling on ethical issues. Former chair (5 years) of Attorney Discipline Board. Served 7 years by Supreme Court appointment. Expert testimony on standard of care in legal malpractice cases. Experienced handling of Character and Fitness matters at all stages. Outstanding Attorney Award, from Ingham County Bar Association in memory of Leo A. Farhat for outstanding trial achievements Fountain View Circle, #3 Holland, MI Fax: or Thomas James Shannon, P35152, Grosse Pointe, effective June 16, The respondent was suspended from the practice of law in Michigan for 90 days, effective March 14, In accordance with MCR 9.123(A), the suspension was terminated with the respondent s filing of an affidavit of compliance with the clerk of the Michigan Supreme Court on June 16, Reprimand (By Consent) David S. Brady, P11106, St. Joseph, by the Attorney Discipline Board, Berrien County Hearing Panel #1, effective June 6, The respondent and the grievance administrator filed a stipulation for a consent order of discipline, in accordance with MCR 9.115(F)(5), which was approved by the Attorney Grievance Commission and accepted by the hearing panel. Based on the respondent s plea of no contest, the panel found the respondent made statements with reckless disregard as to their truth or falsity concerning the qualifications or integrity of a judge, in violation of MRPC 8.2(a). The panel also found that the respondent violated MRPC 8.4(a) and MCR 9.104(4). In accordance with the stipulation of the parties, the hearing panel ordered that the respondent be reprimanded and pay costs in the amount of $ Suspension Michael L. Donaldson, P35780, Plymouth, by the Attorney Discipline Board, Tri- County Hearing Panel #15, for 60 days, effective June 18, The respondent filed an answer to the formal complaint and appeared at the hearing. Based on the stipulated motion regarding misconduct filed by the parties, the panel found that the respondent held funds other than client or third-person funds in an IOLTA, in violation of MRPC 1.15(a)(3); failed to hold property of his clients or third persons separately from his own, in violation of MRPC 1.15(d); and deposited his own funds into an IOLTA in an amount more than reasonably necessary to pay financial institution service charges or fees, or to obtain a waiver of service charges or fees, in violation of MRPC 1.15(f). The panel also found that the respondent violated MRPC 8.4(a) and MCR 9.104(4). for 60 days and assessed costs in the amount of $1,

2 August 2014 Michigan Bar Journal Orders of Discipline and Disability 71 Suspension and Restitution Susan L. West, P56340, Farmington Hills, by the Attorney Discipline Board, Tri-County Hearing Panel #53, for 180 days, effective June 20, The respondent did not appear at the hearing and was found to be in default for her failure to file an answer to the formal complaint. Based on her default, the panel found that the respondent, in a probate matter, neglected the matter, in violation of MRPC 1.1(c); failed to act with reasonable diligence and promptness in representing her client, in violation of MRPC 1.3; failed to keep her client reasonably informed about the status of her matter and failed to comply promptly with reasonable requests for information, in violation of MRPC 1.4(a); failed to refund any advance payment of fees that had not been earned, in violation of MRPC 1.16(d); failed to make reasonable efforts to expedite litigation consistent with the interests of her client, in violation of MRPC 3.2; knowingly failed to respond to a lawful demand for information from a disciplinary authority, in violation of MRPC 8.1(a)(2); and failed to answer a request for investigation, in violation of MCR 9.104(7) and MCR 9.113(A) and (B)(2). The respondent was also found to have violated MRPC 8.4(a) and MCR 9.104(1) (4). license to practice law be suspended for 180 days and that she pay restitution in the amount of $10,741. Costs were assessed in the amount of $1, Final Suspension and Restitution Matthew C. Shepard, P71547, Troy, by the Attorney Discipline Board, Tri-County Hearing Panel #74, for three years, effective June 26, The panel issued an order of interim suspension of the respondent s license, effective April 28, 2014, based on his failure to appear at a hearing scheduled for April 21, The respondent was also found to be in default for his failure to file an answer to the formal complaint. Based on the respondent s default, the panel found that he had committed professional misconduct. Specifically, the respondent neglected a legal matter, in violation of MRPC 1.1(c); failed to act with reasonable diligence and promptness in representing his client, in violation of MRPC 1.3; failed to keep his client reasonably informed about the status of the matter and comply promptly with reasonable requests for information, in violation of MRPC 1.4(a); failed to explain a matter to a client to the extent necessary for the client to make informed decisions regarding the representation, in violation of MRPC 1.4(b); failed to refund an unearned The Attorney Grievance Commission occasionally receives requests from complainants to withdraw a previously filed request for investigation. While it may be tempting to enter into an agreement in which a former client agrees not to report alleged misconduct to the Attorney Grievance Commission or to withdraw a pending request for investigation, lawyers are cautioned that this is not ethically permissible. MCR 9.104(10) specifies that it is misconduct to enter into an agreement or attempt to obtain an agreement that (1) the professional misconduct or terms of the settlement of a claim for professional misconduct will not be reported to the AGC, (2) a party will withdraw a request for investigation or will not cooperate with the investigation or prosecution of misconduct by the AGC, or (3) the record of any civil action for professional misconduct will be sealed from review by the AGC. There are several reasons why a request for investigation cannot be withdrawn. First, the grievance administrator is under an independent obligation to thoroughly review and investigate a request for investigation. Laypeople often do not know or fully comprehend a lawyer s myriad ethical duties. It is within the exclusive province of the AGC to conduct an investigation to determine whether there is evidence of professional misconduct. Second, the investigative or disciplinary process cannot be used to try to gain an advantageous resolution in litigation. If AGC/JTC Practice Pointers Seeking to Withdraw a Request for Investigation a former client files a legal malpractice action against a lawyer, forcing the former client to withdraw a request for investigation as part of the settlement of the legal malpractice action is prohibited. Lawyers cannot contract away their ethical obligations. Further, protection of the public, the courts, and the legal profession might warrant the filing of formal charges and, ultimately, discipline of an attorney who has engaged in misconduct. Lawyers should be aware of two relevant ethics opinions: RI-220 and RI-88. These opinions state that a lawyer may not directly or indirectly (through a client) use alleged misconduct of another lawyer as a means of obtaining an advantageous resolution of the client s matter. Consequently, a lawyer may not threaten an offending lawyer with the reporting of misconduct if a certain outcome is not obtained or warn an offending lawyer that if the matter is not resolved to the client s satisfaction, the client may report the offending conduct. This is due, in part, to the fact that lawyers are duty bound to report significant violations of the Rules of Professional Conduct, raising a substantial question regarding the offending lawyer s honesty, trustworthiness, or fitness as a lawyer in accordance with MRPC 8.3(a). Accordingly, lawyers should be mindful that they risk disciplinary action if they participate in a matter in which it is agreed that a request for investigation will be withdrawn as part of resolving the matter.

3 72 Orders of Discipline and Disability defending drinking drivers Winning dui arguments and techniques To challenge probable cause, keep the prosecution s evidence out, or file effective motions, you must have a well-prepared case. From initial client contact to sentencing, Defending Drinking Drivers will guide you through every phase of a drinking driving trial. SAVE 15% with coupon code The book begins with the nuts & bolts of drunk driving defense, then focuses on teaching how to create reasonable doubt. Particular attention is given to analyzing specific testing methods and handling expert witnesses. This two-volume set offers court-tested strategy, practice tips, sample arguments and the most up-to-date case law and statutory changes to keep you on the cutting edge of drunk driving law. Practical, step-by-step guidance helps you: $149 $ with code MBJ15 MBJ15 Identify sources of error in BAC calculations Successfully attack damaging chemical test results Effectively cross-examine the prosecution s key witnesses Find weaknesses in the use of field sobriety tests Suppress audiovisual evidence Know when and how to use experts cost-effectively author: patrick t. barone Patrick T. Barone has an AV (highest) rating from Martindale- Hubbell, and since 2009 has been included in the highly selective U.S. News & World Report s America s Best Lawyers, while the Barone Defense Firm appears in their companion America s Best Law Firms. He has been rated Seriously Outstanding by Super Lawyers, rated Outstanding/10.0 by AVVO, and has recently been rated as among the top 5 percent of Michigan s lawyers by Leading Lawyers magazine. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to DUI cases including those involving injury or death. To purchase your copy of Patrick Barone s guide to winning DUI arguments, go to: jamespublishing.com/shop/defending-drinking-drivers/... With offices in Birmingham and Grand Rapids, The Barone Defense Firm accepts referrals from throughout Michigan. Call legal fee paid in advance, in violation of MRPC 1.15(d); and failed to respond to a lawful demand for information by a disciplinary authority, in violation of MRPC 8.1(a)(2). The panel also found that the respondent violated MRPC 8.4(b) and (c), and MCR 9.104(2) (4). The hearing panel ordered that the respondent s license to practice law in Michigan be suspended for three years and that he pay restitution in the amount of $500. Costs were assessed in the amount of $1, The respondent has been continuously suspended from the practice of law in Michigan since April 28, Please see notice of interim suspension pursuant to MCR 9.115(H), issued April 28, Automatic Interim Suspensions Nader W. Nassif, P72557, Royal Oak, effective May 23, The respondent pleaded no contest, in the Washtenaw County Circuit Court, to the charge of felonious assault, a felony, in violation of MCL In accordance with MCR 9.120(B)(1), the respondent s license to practice law in Michigan was automatically suspended the date she was convicted. The interim suspension will remain in effect until the effective date of an order filed by a hearing panel. Derrick N. Okonmah, P68221, Clarkston, effective June 10, The respondent pleaded guilty, in the Oakland County Circuit Court, to the charge of operating while intoxicated third or subsequent offense, a felony, in violation of MCR In accordance with MCR 9.120(B)(1), the respondent s license to practice law in Michigan was automatically suspended the date he was convicted. The interim suspension will remain in effect until the effective date of an order filed by a hearing panel. Suspension (By Consent) J. Kim Welch, P59766, Clarkston, by the Attorney Discipline Board, Tri-County Hearing Panel #66, for 180 days, effective July 3, The respondent and the grievance administrator filed a stipulation for a consent order of discipline, in accordance with MCR

4 August 2014 Michigan Bar Journal Orders of Discipline and Disability (F)(5), which was approved by the Attorney Grievance Commission and accepted by the hearing panel. Based on the respondent s plea of no contest to the allegations in the first amended formal complaint, the panel found that the respondent handled a client s legal matter without preparation adequate in the circumstances, in violation of MRPC 1.1(b); neglected five different clients legal matters, in violation of MRPC 1.1(c); failed to seek the lawful objectives of his client through reasonably available means, in violation of MRPC 1.2(a); counseled a client to engage in conduct that the lawyer knew was illegal or fraudulent, in violation of MRPC 1.2(c); failed to act with reasonable diligence in representing four clients, in violation of MRPC 1.3; failed to keep three of his clients reasonably informed about the status of their legal matters, in violation of MRPC 1.4(a); in seven matters, failed to explain matters to the extent necessary to permit his clients to make informed decisions, in violation of MRPC 1.4(b); collected an excessive or illegal fee with regard to five clients, in violation of MRPC 1.5(a); failed to communicate the basis or rate of his fee to two clients, in violation of MRPC 1.5(b); knowingly revealed a confidence or secret of a client, in violation of MRPC 1.6(b); failed to exercise reasonable care to prevent employees, associates, and others from disclosing confidences or secrets of a client, in violation of MRPC 1.6(d); in three matters, failed to hold client property in connection with a representation in an IOLTA, in violation of MRPC 1.15(c); failed to keep property of a client or third person in connection with the representation separate from the lawyer s own property, in violation of MRPC 1.15(d); failed to deposit legal fees and costs that had been paid in advance in three matters, in a client trust account, in violation of MRPC 1.15(g); upon termination of the representation in four matters, the respondent failed to refund the advance payment of fees that had not been earned, in violation of MRPC 1.16(d); failed to make reasonable efforts to expedite litigation consistent with the interests of a client, in violation of MRPC 3.2; knowingly made a false statement of material fact, in violation of MRPC 3.3(a)(1); knowingly disobeyed an obligation under the rules of a tribunal in two matters, in violation of MRPC 3.4; failed to make reasonable efforts to ensure that a nonlawyer s conduct was compatible with the professional obligations of the lawyer, in violation of MRPC 5.3(b); made a knowing misrepresentation of facts or circumstances surrounding three requests for investigation, in violation of MCR 9.104(6); and failed to fully and fairly disclose all the facts and circumstances pertaining to the alleged misconduct in three matters, in violation of MCR 9.113(A). The panel also found that the respondent violated MRPC 8.4(a) and (b); and MCR 9.104(1) (4). In accordance with the stipulation of the parties, the hearing panel ordered that the respondent s license to practice law in Michigan be suspended for 180 days. Costs were assessed in the amount of $1, Suspension (Pending Appeal) Charles D. Davenport, P22768, Ann Arbor, by the Attorney Discipline Board, Washtenaw County Hearing Panel #4, for one year, effective May 29, The respondent appeared at the hearing and, based on the certified copy of a judgment of conviction, the panel found that the respondent was convicted in the 15th District Court of a misdemeanor for unemployment compensation misrepresentation ATTORNEY DISCIPLINE DEFENSE Veteran trial and appellate attorneys, experienced in defending attorneys in discipline and contempt proceedings Representation in grievances, answers to requests for investigation, hearings, appeals, reinstatement petitions, ethics consultations and character and fitness proceedings KENNETH M. MOGILL JILL M. SCHINSKE 27 E. Flint St., 2nd Floor Lake Orion, MI (248) Town Center, Suite 909 Southfield, Michigan Phone: Reputation Matters Donald D. Campbell A Lawyer for Lawyers donald.campbell@ceflawyers.com CAROLE M. STANYAR 221 N. Main Street, Suite 300 Ann Arbor, MI (313) Named 2014 Lawyer of the Year by The Best Lawyers in America for ethics and professional responsibility law 10 years of service with the Michigan Attorney Grievance Commission Adjunct ethics professor since 2002 Liaison to the American Bar Association s ethics committee An attorney s reputation is her most valuable possession. Sixth Circuit in United States v Llanez-Garcia

5 74 Orders of Discipline and Disability Facilitations 39 Years Judicial Experience William J. Giovan (313) Cell (313) with a loss of between $1,000 and less than $25,000, in violation of MCL (a)(ii)(A). The respondent s conduct was found to have violated a criminal law of a state or of the United States, contrary to MCR 9.104(5). for one year. The respondent filed a petition for review and a motion for stay of discipline. On June 19, 2014, the Attorney Discipline Board issued its order denying the respondent s motion for stay of discipline. This matter will be scheduled for hearing before the Attorney Discipline Board. Suspension (With Conditions) Dennis P. Mikko, P33736, Traverse City, by the Attorney Discipline Board, Grand Traverse County Hearing Panel #1, for one year, effective June 28, The respondent appeared at the hearing and filed an answer to the formal complaint. The hearing panel found that the respondent, while serving as a Family Division referee with the Grand Traverse County Circuit Court, failed to establish, maintain, enforce and personally observe high standards of conduct so that the integrity and inde pendence of the judiciary may be preserved, in violation of the Code of Judicial Conduct, Canon 1; engaged in irresponsible or improper conduct which erodes public confidence in the judiciary, in violation of the Code of Judicial Conduct, Canon 2A; and engaged in conduct involving impropriety and the appearance of impropriety, in violation of the Code of Judicial Conduct, Canon 2A. The panel also found that the respondent had violated MCR 9.104(2) and (3). for one year and that he be subject to conditions relevant to the established misconduct. Costs were assessed in the amount of $2, ATTORNEY DISCIPLINE DEFENSE Experienced attorney (38 yrs) who handles criminal and civil cases, trial and appeal, is available for representation in defending attorneys in discipline proceedings. I can represent you in answering requests for investigations, grievances, and at hearings. I am also available for appeals, reinstatement petitions, and general consultation. References are available upon request. For further information, contact: LAW OFFICES OF THOMAS M. LOEB Northwestern Hwy, Ste 170 Farmington Hills, MI (248) Fax (248) tmloeb@mich.com DUTY TO REPORT AN ATTORNEY S CRIMINAL CONVICTION All Michigan attorneys are reminded of the reporting requirements of MCR 9.120(A) when a lawyer is convicted of a crime: What to Report: A lawyer s conviction of any crime, including misdemeanors. A conviction occurs upon the return of a verdict of guilty or upon the acceptance of a plea of guilty or no contest. Who Must Report: Notice must be given by all of the following: 1. The lawyer who was convicted; 2. The defense attorney who represented the lawyer; and 3. The prosecutor or other authority who prosecuted the lawyer. When to Report: Notice must be given by the lawyer, defense attorney, and prosecutor within 14 days after the conviction. Where to Report: Written notice of a lawyer s conviction must be given to: Grievance Administrator Attorney Grievance Commission Buhl Building, Ste Griswold, Detroit, MI and Attorney Discipline Board 211 W. Fort Street, Ste Detroit, MI 48226