Changes to Attorney Disciplinary Procedural Rules

On September 1, 2011, changes to several attorney discipline procedural rules went into effect. The full text of the new changes is available here.

MCR 9.103. Standards of Conduct for Attorneys.

• An attorney cannot charge or collect a fee for answering an investigation request unless the fee is compensation as counsel for a respondent.

MCR 9.104. Grounds for Discipline.

• Violating a tribal law or ordinance in addition to a state or federal criminal law is grounds for discipline.
• Entering into an agreement to prevent a party from bringing a grievance, requiring the party to drop a grievance, or to seal evidence of a grievance from court records are grounds for discipline.

MCR 9.108. Attorney Grievance Commission.

• An officer appointed to fill a mid-term vacancy may be reappointed to serve up to two more full terms rather than only one.

MCR 9.110. Attorney Discipline Board.

• Out-of-state lawyers appearing in Michigan pro hac vice are subject to discipline.
• The ADB can review a non-final order of a hearing panel.

MCR 9.111. Hearing Panels.

• A lawyer who have been disciplined, admonished, or placed on contractual probation within the past five years cannot serve as a hearing panelist.
• A lawyer facing a formal discipline proceeding will not be assigned to a panel until the proceeding is resolved.
• The hearing panel now has 35 days instead of 28 to report its actions to the ADB.

MCR 9.112. Requests for Investigation.

• State bar and county clerk offices are no longer required to provide misconduct forms to the public.
• A subpoena can be quashed or modified by the ADB if it finds compliance is unreasonable or oppressive.
• If an attorney is subpoenaed but does not answer, the attorney's license to practice law can be suspended until the attorney complies.

MCR 9.113. Answer to Respondent.

• A respondent must sign the answer to show he has read the response.
• A respondent refusing to answer may do so under seal. If the panel finds that the refusal was not proper, it will direct the attorney to answer the request.

MCR 9.114. Action After Answer.

• The maximum contractual probation time increased from two to three years.
• Qualifying behavior for contractual probation includes mental or physical infirmity.
• Probation now includes periodic alcohol or drug testing, support group meeting attendance, counseling, or a medical treatment plan updated quarterly.

MCR 9.115. Hearing Panel Procedure.

• Only the complaint and default need be personally served.
• Separate terms of discipline can be concurrent or consecutive.
• Panel reports must summarize previous misconduct unless privileged.
• If a motion to disqualify a panelist is not filed within 14 days after grounds for disqualification are discovered, the untimeliness is a factor in deciding the motion. The motion must be accompanied by an affidavit detailing the grounds.
• Names of those with facts are required within 21 days of the answer.
• Witnesses with good cause may testify by telephone, voice, or videoconference.
• Complainants may be present unless a panel finds that their testimony will be affected by other testimony.
• A respondent with actual notice of a hearing will be suspended 7 days after the order of suspension if they fail to appear unless excused by the panel.

MCR 9.118. Review of the Hearing Panel.

• Interlocutory appeals may be granted without a hearing.
• If suspension is for 179 days or less, timely filing of a motion for reconsideration will automatically stay the order. If suspension is greater than 179 days, the respondent may petition for a stay.

MCR 9.119. Conduct of Disbarred, Suspended, or Inactive Attorneys

• A suspended, disbarred, inactive, or resigned lawyer cannot contact clients in person, by telephone, or by electronic means as a paralegal, law clerk, legal assistant, or lawyer.
• A suspended or former lawyer must withdraw or substitute counsel for all active client matters at the time of the status change.
• Any law firm that takes over a case from a suspended or former lawyer must get signed consent by the client.
• If the suspended or former lawyer had no active clients at the time of status change, an affidavit of compliance must state the same.

MCR 9.120. Criminal Convictions and Reciprocal Discipline.

• Lawyers licensed outside Michigan must report discipline in other jurisdictions, including a transfer to inactive status or resigning in lieu of discipline.
• Detailed instructions for reciprocal discipline procedures have been added.

MCR 9.121. Incompetent, Incapacitated, or Impaired.

• A hearing panel rather than the ADB may hear a reinstatement from disability inactive status.
• Circumstances governing expert examination and reports to prove incapacitation have been added. The expert is absolutely immune from suit for statements made in the disciplinary proceeding.

Coauthored by Rebecca Stephen and Pat Gallagher