The Attorney Grievance Process in Michigan – Part 1

Episode Notes

Transcript

State Bar of Michigan

The Attorney Grievance Process in Michigan – Part 1

03/08/2021

 

[Music]

 

Male:  Welcome to State Bar of Michigan’s On Balance Podcast where we talk about practice management at Lawyer Wellness for a thriving law practice here on Legal Talk Network.

 

Molly Ranns:  Hello and welcome to another edition of the State Bar of Michigan’s On Balance Podcast on Legal Talk Network. I’m Molly Ranns.

 

JoAnn Hathaway:  And I’m JoAnn Hathaway. We are very pleased to have Michael Goetz, attorney and grievance administrator for the Michigan Attorney Grievance Commission join us today to talk about and help demystify the attorney grievance process in Michigan. This is part I of a two-part series on the discipline process in Michigan. Following Mike’s podcast, we will be ushering in our guest Mark Armitage, attorney and executive director of the Attorney Discipline Board in Michigan to help demystify its processes with his podcast to launch next month in April. So Mike, would you share some information about yourself with our listeners?

 

Michael Goetz:  I’d be happy to JoAnn. I want to say thank you to you and Molly. Basically, I am a 30-year career prosecutor, major crimes prosecutor with Oakland County, Michigan. I came from the attorney general’s office when the Supreme Court was kind enough to give me this position and it’s so far been one of the best positions I’ve ever had in my career.

 

Molly Ranns:  Thanks so much Mike for being here with us today. Well, let’s get started. What is the Michigan Attorney Grievance Commission?

 

Michael Goetz:  Well, the Michigan Attorney Grievance Commission is one of two co-equal arms of the Michigan Supreme Court. There is the Attorney Grievance Commission and the Attorney Discipline Board that is run by my counterpart, Mark Armitage, who’s the executive director. Our job is to carry out the constitutional mandates of overseeing all attorneys in the State of Michigan to make sure that they are complying with their ethical obligations. And if they’re not, we are charged with the investigation of those particular attorneys and if warranted, we will take steps necessary to issue a formal complaint. The one thing I don’t know that people are knowledgeable about is the fact that what we do is not geared toward punishment. It is geared toward the protection of the public, the protection of the profession and the court’s. That is our primary role as part of the Attorney Grievance Commission.

 

JoAnn Hathaway:  So Mike, who can make a complaint about an attorney.

 

Michael Goetz:  Well quite frankly, it can come from anywhere. We have judges that make complaints about attorneys, other attorneys, clients. You can have somebody come in off of the street or I on my own initiative can see something in the newspaper or on the news that if I feel it’s warranted to send out what we call a grievance administrators request for investigation, I can initiate that in my own name. So, I mean realistically, anybody can make complaint to our office. It has to be done in writing. It’s got to be signed by the individual and it’s got to be directed toward an attorney, it cannot be directed at a law firm. And once we receive that information, the commission itself is comprised of nine individuals; six attorneys and three lay people who will meet once a month to determine what we’re going to do with any particular cases.

 

Now, for example, we get into a situation where we receive a request for investigation. It’ll go into my intake department and they will make a determination whether or not we should just summarily close out the case or whether or not it should be reviewed by one of our staff counsel. If it goes to the staff counsel, then they will investigate the matter. They may call an individual in for a sworn statement. We may subpoena bank records. We may subpoena other things. And once a staff attorney indicates that something needs to be done, they will draft up a memo from my review and then I’ll make a determination whether or not that’s going to get sent to the commission or whether or not we were going to close it out.

 

JoAnn Hathaway:  I do have a follow-up question on that Mike. You mentioned on the panel that in addition to attorneys, it’s comprised of lay people.

 

Michael Goetz:  Yes.

 

JoAnn Hathaway:  How are those lay people chosen and do they stay on the panel for short periods or long periods of time?

 

Michael Goetz:  They are assigned a term of three years which can be renewed one time and the appointments are done by the Michigan Supreme Court. Now, what methods they use to make these choices, I couldn’t tell you. All I know is that when someone’s term is up, we will be notified by the Supreme Court that we’re going to have a new commissioner on the board.

 

(00:05:00)

 

And then we make ever accommodation to make their transition into the way we do things as easy as possible.

 

Molly Ranns:  Great, that is so helpful, Mike. Can you help the listeners understand what the differences between maybe an informal and a formal complaint?

 

Michael Goetz:  Absolutely. The best way that I can describe it is this office receives anywhere from 2500 to 3000 complaints every year. And of those complaints, about 80, maybe 80 to 100 actually go to formal complaint. So let me just describe this for you.

 

Anytime we get something that comes into our office, we make a determination whether it warrants a formal complaint or not. If not, we can handle it in the house. It could be we don’t determine that there’s enough evidence to say that misconduct happened. We can just close out the case. We’ll notify the respondent, we’ll notify the complainant. We may send a cautionary letter along with the closing to the respondents saying we find no misconduct has occurred. However, you may in the future want to be a little bit more cognizant of this area just to make sure you don’t get yourself and into an issue.

 

The next aspect would be contractual probations whereby we could do a formal complaint or what have you. A lot of times, those are in relation to people with substance abuse problems, mental health problems where they’re agreeing to say, “Yes, I need some help.” And if I promised to get that help and we’ll monitor you for a year or two, then it won’t go by way of formal complaint.

 

The final aspect is an admonishment. An admonishment is basically indicating that you have committed misconduct, you’re being admonished. The respondent has the consent to that however and they have 21 days with which to do that. If they say, “No, I don’t want an admonishment,” it will come back to the commission and the commission will at that point in time make a determination, “Okay, do we have enough to go forward?” We may just send out and close it or we may send it for a formal complaint.

 

Now, what’s the difference between an informal and a formal complaint? Informal complaints and resolutions are not discipline. Therefore, they are not a matter of public records. Most attorneys, the first thing they do when they get their bar journal is they flip open to the back of the bar journal, they go, “Okay. Let’s see who I know that’s been sanctioned or just barred or suspended this month.” It’s just a nature of the animal. You will not find anything as far as an informal nature in the bar journal. Once a formal complaint and just by way of letting you know is that, I can neither confirm nor deny anyone coming to this office say, “Hey, have you gotten a complaint on this attorney?”

 

I can’t even mention that pursuant to the court rule. Once we file a formal complaint however, the rules change then it becomes a matter of public record then I can comment on it and then that is once it goes to the Attorney Discipline Board, a determination or an order comes down. That’s what attorney see when they open up the bar journal and look for the disciplinary section.

 

JoAnn Hathaway:  Mike, you’ve talked about investigating cases. Can you delve a little bit into that? In particular, can you talk about some of the steps you might take during the investigation?

 

Michael Goetz:  Oh, absolutely. You know every investigation is different. I mean, one of the unique things about this office that my staff counsel have to kind of become experts in in just a myriad of different legal areas, whether it’s bankruptcy, Securities and Exchange, divorce what have you. But normally, we will get a request for investigation in by whomever or wherever and it will go to our intake department. Our intake department will give it a cursory look and say, “Okay, this just deserves to be closed out.” Or they may say this deserves further investigation. It’ll be assigned to one of my staff counsel. My staff counsel then who has access, who has an investigator and a paralegal at their disposal will obtain as much information as they can.

 

We get a lot of trust account overdraft notifications that banks are required to contact us if an IOLTA account becomes overdrawn. One of the things that we may do is we may subpoena three months or more of the bank records to make sure that nothing nefarious is going on. We may ask the attorney to provide their entire client to send it to us so that we can review any allegations that complainants are making about that particular attorney. We can even call them in for a sworn statement and it’s just like a deposition. They’re entitled to counsel or they’re free to come in by themselves. We will have a court reporter there and staff counsel will ask them a number of questions under oath to more fully explore what’s going on.

 

We will take all of that information. The staff counsel will put it together and then they will make a recommendation by form of memo to me of what should happen with the case. If they’re recommending a formal complaint, I’ll come, I’ll prove it and then I’ll submit it to the commission at our monthly meeting. We have on average between 60 and 70 memos that the commission has to review every month.

 

(00:10:05)

 

I’m not saying that all of those are formal complaints. I mean, they will concur in closings, they will concur in admonishments, they will approve contractual probations. But sometimes, they don’t agree with our recommendation. They say, “Well no, I think there should be a formal complaint” or “I think this should be just a closing with caution” in which case they are the final say of what happens with that particular case. They lay down the law so to speak and we follow it.

 

Molly Ranns:  You mentioned contractual probation and is the director of LJAP with the lawyers and judges assistance program were always thrilled to be a part of those cases and to do our best to get attorneys the help that they need. One of the things we hear is folks coming in and talking about should I lawyer up, should I fully cooperate or should I simply disregard for the request for investigation? Can you talk about that?

 

Michael Goetz:  Oh, absolutely. You know, it’s funny because it amazes me how many attorneys will either not respond to a request for investigation or they respond late. And quite frankly I mean, when lawyers are in law school and they were being taught like criminal law and whatnot, they’re always told, “Todd, make sure your client doesn’t say anything to the police. Just keep quiet. Lawyer up.” The problem is the way that our system works out, like I said, we’re not here to punish anybody and where you can have a case where if we were to have the full knowledge upfront, we may have decided, “Okay, look, you know what, that’s a reasonable explanation.” We’re not going to proceed further with it. The problem is now that the attorney has decided not to answer our request for investigation, that is misconduct in and of itself.

 

So another case, we would have just closed it out or closed it with caution or maybe even admonished and done with it. Now, they’re entering a whole new bailiwick by not answering the complaint. So it really it really benefits the attorney to be forthcoming with the Attorney Grievance Commission. We’re not the scary cloak and dagger organization that attorneys seem to think we are although it is what it is. Like I said, we have maybe 80 complaints a year that go to formal complaint over — divide that by the 2500 3000 cases that we get every year and it shows that it’s really a pretty miniscule amount. What I have found doing this job is that the majority of attorneys do a great job. I mean, there’s a very small percentage that are out there doing – they are intentionally trying to harm the general public.

 

But as a general rule for the most part, I found that most attorneys want to do a good job. They may not be up to date on the rules, Michigan rules of professional conduct or the disciplinary rules, and sometimes that’s where they get into trouble. It’s not that they were trying to do something wrong. It’s that they may not have understood like one example is, when an attorney gets convicted of a crime, they are required within 14 days of the plea to notify not only myself but Mark Armitage at the ADB to let them know that there’s been a conviction and there’s a lot of attorneys that don’t do that. And that goes along for the prosecutor and the defense attorney as well. All three are required to make that disclosure to our agency.

 

JoAnn Hathaway:  One thing I would like to point out Mike and I know you are well-aware of this but some of our listeners may not be is that many lawyer’s professional liability and insurance policies do provide for coverage for the appointment of a lawyer in the event of a disciplinary proceeding. However, I would like to say that I have seen different carriers interpret that differently based upon the exact same policy language based upon if they will appoint a lawyer during the AGC or investigatory stage or wait until the ADB has become involved. So I would encourage everyone to check with their agent and be aware that that coverage is available for them.

 

Michael Goetz:  Yeah. I mean, quite honestly, that’s something I didn’t even know. And like I said, attorneys just like anybody else are eligible to hire their own attorney to come in. I mean the hearings that Mark Armitage will talk about are done by civil bench trial rules. I mean, they can bring in their own attorney. They can be in pro per if they like to. But that’s an interesting piece of information that I even I didn’t know.

 

JoAnn Hathaway:  So Mike what are some of the common problems attorneys face aside from voluntary and intentional misconduct.

 

Michael Goetz:  You know there’s a whole host. When I talked about the issue of trust account overdraft notifications, that seems to be a big one. We get a lot of those types of cases in and it’s not necessarily that somebody’s trying to — there’s a difference between writing a check where maybe the funds didn’t pass the right time.

 

(00:15:04)

 

You deposit a check in your IOLTA account and you waited two days. You wrote a check out to somebody else but then it didn’t clear for four days. The banks are still required to send us notification. We send out a grievance administrator’s request for investigation. It’s just a matter of being familiar with the rules. What I did or the practice that I made and I started this more than 30 years ago is once a year during the slow time, near Christmas time whatever, I would basically crack open the Michigan court rules and I crack open the MRPC and I just read it for refreshment. And there were times that I’d say, “Hey look, I forgot about that.” That’s a good thing.

 

So, I mean trust account overdraft notifications, not returning phone calls not communicating well with your clients, that’s an area that a lot of attorneys seem to get themselves in trouble with; returning calls, quickly responding. The one thing I don’t advise people to do is text with their clients. You want some type of paper trail and text often aren’t the best especially if there’s a disagreement between the attorney and the client or the complainant. So, I mean, there’s various things. Some of us are not even negligence, it’s just may be that they don’t thoroughly understand what the rules dictate.

 

Molly Ranns:  Well that makes sense. You’ve mentioned the Attorney Discipline Board a couple of times. Can you talk about how that entity really interacts with the attorney grievance commission?

 

Michael Goetz:  Well, I tell you it was very fortunate to have Mark Armitage as the executive director. I mean, when I took office here at the Attorney Grievance Commission, he was very helpful in helping me kind of get acclimated to the whole nine yards. Basically, when we file a complaint with the Attorney Discipline Board, and Mark will expound on this a little bit more, is that it’ll be assigned to a panel. There’s several panels throughout the State of Michigan. But acting is the court aspect of the Supreme Court. The cases are tried as I indicated before in a civil bench trial style.

 

As opposed to having one judge, you’re going to have three volunteer lawyers that hear all the evidence and they will make a decision as far as what the eventual outcome is whether or not — there’s really two phases; misconduct and aggravation and mitigation phases and their kind of bifurcated. Once misconduct is determined then they move into the mitigation and aggravation phases to then consult the ABA model standards for professional discipline to come up with an appropriate sanction if you will. Anything from essentially no reprimand to all the way through disbarment. It’s kind of like sentencing guidelines in a criminal case where you’ve got certain factors, you look into it and kind of go in a horizontal grid and then figure out what needs to be done.

 

But I mean, we work very good together. We try to keep both of our agencies. If we got a procedural issue that maybe the ADB is having an issue with us the way we do things, we’re more than willing to open up and say, “Hey, okay, how can we do it better.” And Mark and his agency have been just tremendous in working very well with us.

 

JoAnn Hathaway:  Great information. Thank you. So Mike, it looks like we’ve come to the end of our show. We’d like to thank our guest today, Mike Goetz, for a wonderful program.

 

Molly Ranns:  Mike, if our guest would like to follow up with you, how can they best reach you?

 

Michael Goetz:  Well, I’ll tell you. There’s one of two ways. We’re actually moving our office from Detroit to Troy come April first, however, the email address and the telephone number is not going to change. If they have a question, they can get in touch with me directly at area code (313) 961-6585 and if they care to visit our website, it’s agcmi.org.

 

Molly Ranns:  Wonderful. Thank you so much.

 

Michael Goetz:  Molly, thank you.

 

Molly Ranns:  Yeah, I learned so much today even being with the bar and LJAP for 10 years and having a relationship with AGC, I still have learned so much and I know our listeners will too. This has been another edition of the State Bar of Michigan’s On Balance Podcast.

 

JoAnn Hathaway:  I’m JoAnn Hathaway.

 

Molly Ranns:  And I’m Molly Ranns. Until next time.  Thank you for listening.

 

Male:  Thank you for listening to the State Bar of Michigan On Balance Podcast brought to you by the State Bar of Michigan and produced by the broadcast professionals at Legal Talk Network. If you’d like more information about today’s show, please visit legaltalknetwork.com. Subscribe via Apple podcast and RSS. Find the State Bar of Michigan and Legal Talk Network on Twitter, Facebook and LinkedIn or download Legal Talk Network’s free app in Google Play and iTunes. The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network or the State Bar of Michigan or their respective offices, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

 

(00:20:23)

 

<a href=”https://www.tech-synergy.com/podcast-transcription” target=”_blank”>Podcast transcription</a> by <a href=”https://www.tech-synergy.com ” target=”_blank”>Tech-Synergy.com</a>