March 6, 1992
When a lawyer who serves on the Attorney Grievance Commission determining whether formal charges should be filed in a discipline matter also is the law practice supervisor of lawyers who serve on discipline hearing panels adjudicating formal discipline charges, the hearing panelist is not per se disqualified from hearing the matter, but must disclose the relationship to the parties.
References: MRPC 1.7(b), 1.10, 1.11, 3.5; MCJC 1, 2A, 3A(4); R-4; J-5; JI-43, JI-44; MCR 2.003(B), 9.108(A), 9.110, 9.114, 9.115(F)(2)(a), 9.115(J)(4), 9.222.
The Attorney Grievance Commission is the prosecutorial arm of the Michigan Supreme Court in matters involving the regulation of Michigan lawyers pursuant to MCR 9.108(A). It is composed of nine volunteer members (six lawyers and three nonlawyers) appointed by the Court. Information alleging lawyer misconduct is investigated by the Grievance Administrator; when investigation is complete the matter is referred to the Attorney Grievance Commission for review. The Attorney Grievance Commission may direct that a complaint be filed, that the request be dismissed, or that the respondent be admonished with his or her consent. MCR 9.114. Complaints, when authorized by the Commission, are filed in the name of the Grievance Administrator, who is appointed by the Supreme Court, and generally prosecuted by a lawyer employed by the Grievance Administrator.
The Attorney Discipline Board is the adjudicative branch of the Michigan Supreme Court in matters involving the regulation of Michigan lawyers, MCR 9.110. The members of the Board (five lawyers and two nonlawyers) are volunteers appointed by the Court. Volunteer hearing panelists appointed by the Michigan Attorney Discipline Board hear cases in which the Attorney Grievance Commission has authorized the filing of formal grievance complaint proceedings. The initial public hearing to determine whether a lawyer has committed acts of professional misconduct is conducted by a hearing panel composed of three volunteer lawyers appointed by the Board. A motion to disqualify a hearing panel member must be decided by the Board's chairperson under the guidelines of MCR 2.003. MCR 9.115(F)(2)(a).
Lawyer A is a member of the Michigan Attorney Grievance Commission appointed by the Michigan Supreme Court. As a member of the Commission, Lawyer A participates in the Commission's decisional process of authorizing the filing of formal complaints against respondents/lawyers. Lawyer A is also employed as corporation counsel for a large metropolitan county.
Lawyers B, C and D are employed by the office of corporation counsel, and in their official employment duties, report to Lawyer A. Lawyers B, C and D, however, are also volunteer hearing panel members.
Lawyers B, C and D inquire as to whether or not they are disqualified from serving as hearing panelists involving formal complaints authorized by the Attorney Grievance Commission while Lawyer A is a member thereof.
Disqualification of hearing panelists is addressed in MCR 9.119(F)(2), which cross-references MCR 2.003 governing disqualification of a judge. MCR 2.003(B)(2) requires recusal whenever the adjudicator is "personally biased or prejudiced for or against a party or attorney." Where there is no actual bias, previous ethics opinions have required disclosure by the judge, leaving it to the
parties to seek to disqualify the panelist in a particular case. See, e.g., J-5; JI-43, JI-44.
MRPC 1.7(b), 1.10, and 1.11, as well as the great bulk of formal and informal opinions addressing conflicts of interest, deal with facts in which the lawyer is representing a client. In the case posed by this inquiry, there is no lawyer-client relationship. In this inquiry, however, the lawyers are carrying out a professional commitment and are obligated to do so in a fashion consistent with the governing rules of professional conduct.
The decision to bring formal charges is based upon whether an investigative file shows probable cause, while the hearing panels' decisions to impose discipline are based upon whether the trial record, witnesses, cross-examination, etc., show proof of the misconduct by a preponderance, MCR 9.115(J)(4). A member of the Commission never appears personally before the hearing panels, and hearing panel members are never advised as to the particular vote of any of the Commission members regarding any complaint. Thus there is no inherent conflict in the performance of the two functions.
In considering this issue, there are several factors which must be considered. Lawyers A, B, C and D all serve as volunteers, none of the lawyers are receiving any compensation for the lawyer's services, other than whatever necessary expenses may be incurred. Thus, there is no implied or imputed "profit incentive" in the disciplinary setting. Presumably Lawyer A makes salary recommendations and reviews the job performance of Lawyers B, C, and D. In turn, although lawyers B, C and D are supervised by Lawyer A, there is no reason to believe that they as professionals, would carry out Lawyer A's bidding in any manner just because of the lawyer's "superior" employment relationship to them.
If the bias arises because Lawyer A discusses grievance matters with corporation counsel subordinates, recusal would be required for improper ex parte contacts, MCJC 3A(4); MRPC 3.5; MCR 9.222. It would, of course, be improper for a member of the Attorney Grievance Commission, the prosecutorial arm of the State Bar Grievance Disciplinary system, to influence, either directly or indirectly, any hearing panelist appointed by the Attorney Disciplinary Board to hear and adjudicate cases submitted for prosecution by the Attorney Grievance Commission to the Attorney Disciplinary Board. The question as posed by the inquiring lawyers in this matter would appear to deal with the problems of inadvertent "influence," or "contamination," as a result of Lawyers A, B, C and D being employed in the same office, and with how the employment relationship itself might be perceived by persons negatively impacted by the lawyer grievance processes. Few judicial officers have escaped being confronted with the difficulty of having heard or read something "off the record" which potentially impacts upon a case they may later hear. Unless the judge believes that what the judge has seen or heard has impacted upon the judge's judgment and capacity to rule fairly, such events are either not brought to light or treated as having only de minimis impact upon the judicial proceeding. However, that does not mean that procedures should not be in place to prevent such contacts, such as by establishing a screening "wall" analogous to that considered when lawyers change firms. See MRPC 1.10(b); R-4.