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Grievance Administrator v.6/27/2000
Chief Justice Elizabeth A. Weaver
BEFORE THE ENTIRE BENCH
In this disciplinary matter, the Grievance Administrator, on behalf of the Attorney Grievance Commission (AGC), appeals an Attorney Discipline Board (ADB) order reducing the discipline imposed on respondent by a hearing panel from a forty-five-day suspension to a reprimand. We hold that the ADB erred as a matter of law in concluding that our prior order denying the Grievance Administrator's application for leave to appeal barred it from suspending respondent for longer than forty-five days. In light of that error, and because the ADB did not have the benefit of our guidance regarding use of the American Bar Association (ABA) Standards for Imposing Lawyer Sanctions, we remand this case to the ADB for reconsideration of its order of discipline.
I. The ABA Standards
Today, we direct the ADB and hearing panels to follow the ABA Standards for Imposing Lawyer Sanctions when determining the appropriate sanction for lawyer misconduct. We have historically utilized an ad hoc approach to determine the appropriate sanction after a finding of professional misconduct. A comprehensive set of written standards for imposing sanctions has never existed in this state. Only our occasional opinion has provided guidance to the public, the disciplinary body, and the legal profession on this subject. We conclude that written standards are needed to guide the ADB and hearing panels.
In the past twenty years, the number of Michigan attorneys has nearly doubled. With this increase, we have experienced a significant increase in complaints regarding attorney conduct. Although only a small fraction of our bar is disciplined each year, we conclude that a written set of principles will provide guidance during the process of fixing discipline for lawyer misconduct. We therefore adopt the ABA standards on an interim basis. Their use will further the purposes of attorney discipline, help to identify the appropriate factors for consideration in imposing discipline and establish a framework for selecting a sanction in a particular case, and promote consistency in discipline. Application of the standards will produce reasoned decisions that will also facilitate our review.
A.
The ABA standards establish an analytical framework to guide the disciplinary body in determining the appropriate sanction in a case.
he standards are not designed to propose a specific sanction for each of the myriad of fact patterns in cases of lawyer misconduct. Rather, the standards provide a theoretical framework to guide the courts in imposing sanctions. The ultimate sanction imposed will depend on the presence of any aggravating or mitigating factors in that particular situation. The standards thus are not analogous to criminal determinate sentences, but are guidelines which give courts the flexibility to select the appropriate sanction in each particular case of lawyer misconduct. [ABA Standards, p 6.]
Under the framework, the disciplinary body initially answers three questions:
(1) What ethical duty did the lawyer violate? (A duty to a client, the public, the legal system, or the profession?)
(2) What was the lawyer's mental state? (Did the lawyer act intentionally, knowingly, or negligently?)
(3) What was the extent of the actual or potential injury caused by the lawyer's misconduct? (Was there a serious or potentially serious injury?) [ABA Standards, p 5. See also ABA Standard 3.0.]
Through this inquiry, the disciplinary body identifies the type of misconduct involved in a particular case.
The disciplinary b
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