The legal profession traditionally has enjoyed the privilege of policing its own members. Michigan’s legal profession, under the supervision of our Supreme Court, has policed its members since 1978 by means of the Attorney Grievance Commission (AGC).
As the Supreme Court’s prosecution arm for attorney discipline, the AGC is obliged by court rule to handle most of its duties out of the public eye. Investigations by the commission’s grievance administrator are deemed by MCR 9.126 to be “privileged from disclosure, confidential, and may not be made public.” The intent of MCR 9.126 is to protect the reputation of attorneys who find themselves facing groundless charges of professional misconduct.1
From my time with the AGC, roughly 5% of the grievances filed with the commission end up in the spotlight of public proceedings in front of the Attorney Discipline Board (ADB). The others will be concluded in confidence, with the final disposition communicated by the commission to no one other than the complainant and the respondent-attorney.
Confidentiality attaches to a grievance from the moment it is filed with the grievance administrator, and it is supposed to remain in place forever unless and until the grievance administrator files a formal complaint with the ADB. Given the ease with which an accusation of professional misconduct can be made, the importance of confidentiality is obvious. It begins with the fact that anyone can file a grievance. Most grievances are filed by clients, but the existence of an attorney-client relationship is not a prerequisite to act as a complainant. Moreover, the format of a grievance is uncomplicated. There are only three requirements: (1) it must be in writing; (2) it must describe the alleged misconduct, including the approximate time and place it took place; and (3) it must be signed by the complainant.2 Unlike a grievant who files a request for investigation against a judge, a complainant who wants to file a grievance against an attorney does not have to verify on oath the truthfulness of the allegations.3
And even though most grievances are filed reasonably close in time to the alleged misconduct, that is not a requirement either. There is no statute of limitations for professional misconduct. The mere passage of time does not preclude a complainant from filing a grievance.4
Finally, and most significantly, complainants are absolutely immune under MCR 9.125 for statements and communications they transmit to the AGC. An attorney has no legal redress even for an untruthful grievance that may have been maliciously filed by a complainant in bad faith.5 Absolute immunity is meant to allay any skepticism on the part of laypersons about the fairness of a system in which attorneys regulate attorneys. Without the shield of absolute immunity, would-be complainants who fear possible retaliation might be discouraged from filing grievances.
Granting absolute immunity to complainants helps encourage those who have some doubts about an attorney’s conduct to submit the matter to the proper agency for determination. This encouragement is necessary, according to the American Bar Association, because “a profession that wants to retain the power to police its own members must be prepared to sacrifice to that cause.”6
Figures reported by the AGC help illustrate the extent to which Michigan’s legal profession is making that sacrifice. From 2012 through 2020, there were 20,998 grievance files opened; the grievance administrator dismissed 15,700 of them — that’s roughly 75% of the grievances that did not warrant further investigation.7 The grievance administrator has the discretion to reject a grievance either at the first step when it is filed (if it is determined to be facially insufficient)8 or at the next step when the intake department reviews the answer submitted by the respondent-attorney.9
One must be cautious about drawing conclusions from the commission’s raw data. There are many reasons why further investigation of a grievance may not be warranted. Prosecutorial discretion requires the grievance administrator look at all the circumstances, not just the apparent truthfulness of the complainant’s allegations.
For example, a grievance alleging a simple fee dispute, no matter how truthful, is a likely candidate for dismissal. Fee disputes are supposed to be resolved by the courts, not by the attorney discipline system, so further investigation is pointless. Thus, without knowing the basis for the grievance administrator’s exercise of discretion in a particular file, one cannot estimate with any accuracy how many of the dismissed grievances might have been untruthful or perhaps malicious.
Nonetheless, the rate at which grievances were dismissed during those nine years suggests that complainants are not afraid to come forward even in doubtful cases of misconduct. It shows that Michigan’s attorney discipline system is functioning as envisioned by the ABA recommendations. The raw data also reflects the magnitude of the task the AGC faces in keeping confidential the many thousands of grievance files that have been opened during the 44 years of its existence. Maintaining the confidentiality of all files which come within Rule 9.126 is part of the commission’s daily routine.10
To that end, the grievance administrator never confirms or denies the existence of a grievance. Specific details of pending investigations are not disclosed either to the complainant or the respondent-attorney. Subpoenas for confidential files are met with a motion to quash. Requests pursuant to the Freedom of Information Act MCL 15.231 et seq. are denied.11
Commission employment is at will. Both the grievance administrator and the deputy administrator are appointed by, and serve at the pleasure of, the Michigan Supreme Court. All employees, attorneys and non-attorneys alike, sign confidentiality agreements as a condition of employment. Strict compliance with MCR 9.126 is expected from everyone on the commission’s staff.
Not so for a complainant. Nothing in the text of MCR 9.126 suggests that it imposes a duty of confidentiality on complainants. Furthermore, the court rule must be construed so as not to infringe on the complainant’s constitutional right to engage in the free exercise of truthful speech.12
If a grievance is dismissed because it did not warrant further investigation, the complainant has a First Amendment right to publicly discuss and disagree with the grievance administrator’s determination. Preventing injuries to the reputation of attorneys is an insufficient reason to repress speech that would otherwise be free.13 In any event, even though complainants are not bound by MCR 9.126, the risk of being sued gives them an incentive to comply with the rule in order not to forfeit their absolute immunity.
Absolute immunity from suit pursuant to MCR 9.125 only shields statements and communications transmitted solely to the AGC. It does not apply when complainants publicize their allegations of misconduct in another forum.14 Faced with the prospect of having to defend their allegations in legal proceedings, complainants may decide that it is more prudent to keep the matter confidential.
Compared to a complainant, the leeway for a respondent-attorney regarding confidentiality is more limited. MCR 9.126 provides that at the respondent-attorney’s option, “final disposition of a grievance not resulting in formal charges may be made public.”
A respondent-attorney electing to waive the confidentiality of a grievance should keep two points in mind. First, if the final disposition of a grievance is being offered into evidence in civil litigation against a former client, the respondent-attorney must not mischaracterize its probative value. An exercise of prosecutorial discretion to dismiss a grievance is not a judicial act nor does it rise to the level of an adjudication. The doctrine of res judicata does not apply to dismissal of a grievance.15
Second, it is only the final disposition of the grievance that the respondent-attorney is allowed to make public under MCR 9.126. A respondent-attorney tempted to disclose other details about the grievance must take care not to breach the separate duty under MRPC 1.6 regarding confidences and secrets of a former client.
How should MCR 9.126 be construed when the person who filed the grievance is also an attorney? Is it a breach of confidentiality for a complainant-attorney to announce that a grievance has been filed with the AGC against another attorney? That type of disclosure arguably violates the spirit, if not the letter, of MCR 9.126.
Protecting the reputation of attorneys under investigation has been a longstanding concern of our discipline system. Confidentiality is a procedural device which acknowledges that an attorney’s reputation is, in the memorable words of former U.S. Supreme Court Justice Benjamin Cardozo, “a plant of tender growth, and its bloom, once lost, is not easily restored.”16
Cardozo’s flowery metaphor captures an essential truth — namely, that the mere fact of an investigation threatens to become in the public’s mind “a slur and a reproach.”17 Revealing that a grievance already has been or will be filed with the commission serves no purpose other than to publicly embarrass the respondent-attorney. That is especially true if the disclosure occurs before the grievance administrator has been able to review the allegations. At best, such disclosures are unprofessional.
A system of self-regulation, credibly administered, helps support the independence of the legal profession from government domination. A credible system of self-regulation requires absolute immunity for complainants. Absolute immunity will necessarily increase the number of grievances involving doubtful matters. By drawing a veil of confidentiality across those doubtful matters, MCR 9.126 equitably balances the interests of the public and the legal profession.