April 28, 1992
A lawyer who serves as a hearing panelist for the Attorney Discipline Board and who is the subject of a confidential investigation must disclose that fact to the parties appearing before the panelist.
A lawyer who serves as a hearing panelist for the Attorney Discipline Board who is charged with a formal complaint by the Attorney Grievance Commission is disqualified from participating as panelist in any hearing until the formal complaint against that lawyer has been resolved.
References: MCJC 1, 2; JI-43; MCR 2.003, 9.111(B), 9.115(F)(2)(a); People v Elmore, 92 Mich App 678 (1979); People v Lowenstein, 118 Mich 475 (1982); Merritt v Hunter, 575 P2d 623 (Okl 1978).
Any person with information alleging misconduct of an attorney may submit that information to the Grievance Administrator, who may determine that the information does not warrant further attention or may serve a copy of the information on the respondent attorney and require a response. MCR 9.112. After the time for response has ended and investigation is completed, the Grievance Administrator is required to refer the matter to the Attorney Grievance Commission, which may direct that a formal complaint be filed, that the matter be dismissed, or that the respondent be admonished with his/her consent. MCR 9.114(A). If a formal complaint is filed, it is scheduled to be heard by a three-member hearing panel appointed by the Attorney Discipline Board. MCR 9.115.
A lawyer is a hearing panelist appointed by the Attorney Discipline Board to hear formal discipline charges filed by the Grievance Administrator. MCR 9.111. As a hearing panelist, the lawyer and two other panel members receive evidence and make written findings of fact, and have authority to discipline and reinstate attorneys or dismiss a complaint.
The Attorney Discipline Board asks whether a lawyer is disqualified from hearing a case as a hearing panelist if the lawyer is the subject of a formal complaint approved by the Attorney Grievance Commission, and whether a lawyer is disqualified from hearing a case as a hearing panelist while the lawyer is the subject of an investigation by the Grievance Administrator which has not yet been presented to the Attorney Grievance Commission for action.
The questions presented involve issues regarding recusal of a hearing panelist. MCR 9.115(F)(2)(a) provides that motions to disqualify hearing panelists are to be decided under the guidelines of MCR 2.003 which states in pertinent part:
"(B) Grounds. A judge is disqualified when the judge cannot impartially hear a case, including a proceeding in which the judge
"(1) is interested as a party;
"(2) is personally biased or prejudiced for or against a party or attorney;
". . .
"(7) is disqualified by law for any other reason."
Under MCR 2.003(B)(2), a hearing panelist is automatically disqualified if personally biased or prejudiced for or against a party or a party's lawyer. Disqualification is required not only when there is actual bias, People v Elmore, 92 Mich App 678; 258 NW2d 417 (1979), but also in the absence of actual bias if the circumstances may reasonably call an adjudicator's objectivity into question. In People v Lowenstein, 118 Mich 475; 325 NW2d 462 (1982), the Court of Appeals agreed with the proposition set forth in Merritt v Hunter, 575 P2d 623, 624 (Okl 1978), that, "even though a judge personally believes himself to be unprejudiced, unbiased and impartial, he should nevertheless certify his disqualification where there are circumstances of such a nature to cause doubt as to his partiality, bias, or prejudice." Emphasis added. See also JI-43.
The Lowenstein court goes on to favorably quote the following passage by the Arizona Supreme Court. Id at 485:
"'[N]ormally a judge should not sit on litigation involving a party who is a party to other litigation in which the judge himself is a litigant.' Smith v Smith, 115 Ariz 299, 303; 564 P2d 1266, 1270 (1977)."
MCR 9.105 states that the purpose of the disciplinary proceedings is as "protection of the public, the courts, and the legal profession." MCJC 1 and 2 require a judge to promote public confidence in the impartiality of the judiciary and to avoid bias, impropriety and the appearance of impropriety in all of the judge's activities. In this situation, the perception might arise that the hearing panelist, who is the subject of formal complaint, might act more leniently toward another member of the bar who is also charged with misconduct. Conversely, the hearing panelist who is the subject of a formal complaint might favor the prosecution in those hearings in an effort to appear fair and impartial or in the hopes of obtaining some advantage in the hearing panelist's case. Favoritism for any reason would deprive those parties who come before the panel of a fair and impartial hearing. Public confidence in the self-regulatory system would also be affected.
Is a hearing panelist personally biased or prejudiced if the panelist is also the subject of a confidential investigation? Such a determination is factual in nature. At a minimum, the panelist should disclose that the panelist is the subject of an investigation so that either party appearing before the panelist may make a motion for recusal. If the panelist does not wish to disclose to the parties that the lawyer is the subject of a confidential investigation, then the panelist should recuse on the basis that the panelist could not hear the case impartially. This will avoid disclosure of a private matter while providing the parties with an unbiased hearing panel.
If a hearing panelist is the subject of a confidential disciplinary investigation, the panelist should disclose that fact to the parties.