Opinion
No. 112061.
Decided June 2, 1998.
Rehearings Denied June 2, 1998.
On order of the Court, this Court having received the decision of the Judicial Tenure Commission and its recommendation for an order of suspension and restitution, and having the respondent's stipulation to the commission's findings set forth in ¶¶ (1) through (19), infra, and his consent to the recommended order of suspension and restitution, we adopt the following portion of the Judicial Tenure Commission's decision and recommendation for order of discipline:
1) Respondent was retained by Sandra Van Buren in September 1994, to act as co-counsel with attorney Ralph Barbier, Jr., in a civil suit earlier filed by Mr. Barbier on behalf of Ms. Van Buren in the Presque Isle Circuit Court: Van Buren v. Timm Construction Co, 94-001964-CK.
2) One of Respondent's principal duties was to secure the services of a builder who would testify as an expert witness. Under the financial arrangements agreed on, Respondent was paid a $3,000 retainer against which his services were to be billed.
3) On several occasions, Respondent falsely advised Ms. Van Buren and Mr. Barbier that Respondent and hired a builder as an expert witness to testify in the case and further advised them that the builder had examined the Van Buren home, which was the subject of the controversy.
4) In January 1995, Respondent admitted to Ms. Van Buren and Mr. Barbier that he had not been truthful in stating Respondent had arranged for the services of a local builder to act as an expert witness and that the builder had inspected the Van Buren home.
5) Respondent represented Ms. Van Buren between approximately September 1994 and January 1995. In the course of that representation, he submitted only one billing for services. That billing, dated November 28, 1994, claimed Respondent had expended services in the amount $1,663.75; leaving an overall credit to to Van Buren of $1,305.75 out of the original $3.000.
6) Following the filing of Grievance No. 95-8000 by Ms. Van Buren, Respondent submitted a reply dated December 11, 1995. In Respondent's reply, he acknowledged to the Commission having "regretfully misstated" his lack of progress in arranging for an expert witness. Additionally, Respondent's answer expressed a willingness to abide by the Commission's decision with respect to fees.
7) On April 12, 1996, pursuant to MCR 9.207(D), the Commission sent Respondent a letter admonishing him for misleading Ms. Van Buren and co-counsel about having arranged for an expert witness to testify in the matter. The letter also advised Respondent of the Commission's decision that an appropriate refund should be made to Ms. Van Buren. The Commission's admonitory letter requested that Respondent provide written notification that an appropriate settlement or accounting had been made to Ms. Van Buren that the outstanding claims between Respondent and his former client had been resolved.
8) On June 12, 1996, the Commission sent a letter requesting that Respondent advise the Commission within 14 days of its receipt about the status of the fee dispute between Respondent and Ms. Van Buren.
9) In the absence of a reply by Respondent, on July 19, 1996, the Commission sent a second follow-up letter concerning the refunding of any unearned portion of the retainer paid by the former client.
10) As a result of Respondent's failure to cooperate with the Commission, a 28-day letter pursuant to MCR 9.207(C) was sent on December 23, 1996.
11) Respondent replied to the Commission's 28-day letter and stated that he had rendered a final statement and accounting to Ms. Van Buren for his services, as directed by the Commission. On January 17, 1997, Respondent remitted a check to Ms. Van Buren in the amount of $942.64.
12) Respondent's conduct, as described in paragraphs 1) through 11) above, constitutes:
(a) misconduct in office, as defined by Const 1963, art 6, § 30, as amended, and MCR 9.205;
(b) conduct clearly prejudicial to the administration of justice, as defined by Const 1963, art 6, § 30, as amended, and MCR 9.205;
(c) conduct violative of relevant portions of MCR 9.104, in that such conduct:
is prejudicial to the proper administration of justice, contrary to MCR 9.104(1);
exposed the legal profession or courts to obloquy, contempt, censure, or reproach, contrary to MCR 9.104(2);
is contrary to justice, ethics, honesty, or good morals, contravening MCR 9.104(3); and
violates the standards or rules of professional responsibility adopted by the Supreme Court, contrary to MCR 9.104(4).
(d) conduct contrary to Rules 8.4(a) and 8.4(c) of the Rules of Professional Conduct, in that Respondent:
violated the Rules of Professional Conduct (8.4[a]); and
engaged in conduct that is prejudicial to the administration of justice (8.4[c]).
13) Respondent represented William Paasche, a long-time client, in a criminal case in the 89th District Court: People v. William Markus Paasche, Case No. 89-4249-SM.
14) Following Mr. Paasche's conviction in district court, he appealed that conviction and Respondent posted a $1,000 appeal bond on behalf of Mr. Paasche. Mr. Paasche later reimbursed Respondent for the aforesaid sum and also agreed that the balance of Respondent's fee for handling the appeal could be taken out of the $1,000 bond at the conclusion of the appeal.
15) While an appeal was still pending, Mr. Paasche died in January 1993. As a result of Mr. Paasche's death, the bond was to be returned. Although the bond money became an asset of the decedent's estate by operation of law immediately upon his death, and had to be accounted for as such, Respondent secured a refund of those funds form the 89th District Court and applied them to unpaid legal fees.
16) Respondent was co-counsel of record for Joanne Paasche, Mr. Paasche's surviving spouse and personal representative of the probate estate of William Paasche. ( In the Matter of the Estate of William Kirk Bennett, a/k/a William Markus Paasche, Deceased, St. Clair Probate Court File No. 93-093-242-00SE). In this connection, Respondent failed to account to the probate court for the amount of the bond refund he had applied to unpaid legal fees. Further, Respondent was responsible for the filing of a false and incomplete inventory of estate assets, in that the inventory failed to list funds.
17) Respondent's conduct, as described in paragraphs 13) through 16) above, constitutes:
(a) misconduct in office, as defined by Const 1963, art 6, § 30, as amended, and MCR 9.205;
(b) conduct clearly prejudicial to the administration of justice, as defined by Const 1963, art 6, § 30, as amended, and MCR 9.205;
(c) failure to present a claim against a decedent's estate, as required by MCL 700.712; and
(d) conduct violative of relevant portions of MCR 9.104, in that such conduct:
is prejudicial to the proper administration of justice, contrary to MCR 9.104(1);
exposes the legal profession or courts to obloquy, contempt, censure, or reproach, contrary to MCR 9.104(2);
is contrary to justice, ethics, honesty, or good morals, contrary to MCR 9.104(3); and
violates the standards or rules of professional responsibility adopted by the Supreme Court, contrary to MCR 9.104(4).
18) After the death of William Paasche, Respondent acted as legal counsel for Joanne Paasche in various matters between approximately February 1993 and October 1994. Respondent failed and neglected to send timely billing statements to Ms. Paasche for legal services he performed during this period.
19) Respondent's conduct, as described in paragraph 18) above, constitutes:
(a) misconduct in office, as defined by Const 1963, art 6, § 30, as amended, and MCR 9.205;
(b) conduct clearly prejudicial to the administration of justice as defined by Const 1963, art 6, § 30, as amended, and MCR 9.205;
(c) failure to act with reasonable diligence and promptness in submitting billings or accountings to a client, contrary to Rule 1.3 of the Rules of Professional Conduct; and
(d) conduct violative of relevant portions of MCR 9.104, in that such conduct:
is prejudicial to the proper administration of justice, contrary to MCR 9.104(1);
exposes the legal profession or courts to obloquy, contempt, censure, or reproach, contrary to MCR 9.104(2);
is contrary to justice, ethics, honesty, or good morals, contrary to MCR 9.104(3); and
violates the standards or rules of professional responsibility adopted by the Supreme Court, contrary to MCR 9.104(4).
The Judicial Tenure Commission having found that the respondent committed misconduct, the respondent having stipulated to the above-mentioned findings of the commission, and the respondent having consented to a 90-day suspension without pay and an order of restitution, we ORDER that the Honorable Kenneth A. Radzibon, Judge of the Presque Isle Probate Court and Friend of the Court Referee of the 26th Judicial Circuit, be and hereby is suspended without pay for a period of 90 days, effective seven days after the date of this order. We further ORDER that the Honorable Kenneth A. Radzibon pay restitution in the amount of $1,000 to the Estate of William Markus Paasche, plus interest.
PROPOSED ADMINISTRATIVE ORDER. JUDICIAL LEAVE.
On order of the Court, this is to advise that the Court is considering entering the following Administrative Order. Before determining whether the Administrative is given to afford any interested person the opportunity to comment on the form or the merits of the proposal. We welcome the views of all who wish to address the proposal or who wish to suggest alternatives.
As whenever this Court publishes and administrative proposal for comment, we emphasize that publication of this proposal does not mean that the Court will issue and order on the subject, nor does it imply probable adoption of the proposal in its present form.
The proposed order is as follows:
Pursuant to the Court's responsibility for management oversight of the judiciary, in order to strengthen the ability of chief judges to manage judicial workload while ensuring that judges have the opportunity to take leave for vacation, to participate in education to ensure currency in the law and to participate in the continuing improvement of judicial administration, it is ordered that the following judicial leave policy is effective and will apply to all trial and appellate judges and justices in the state.
1. JUDICIAL VACATIONS.
A judge is entitled to annual vacation leave of twenty-one (21) to thirty (30) days each calendar year. Unused vacation leave may not be accumulated and carried over form one calendar year to the next calendar year. Vacation days do not include:
a) attendance at Michigan judicial conferences;
b) attendance, with the chief judge's approval, at education meetings or seminars;
c) attendance, with the chief judge's approval, at meetings of judicial committees or committees substantially related to judicial administration of justice;
d) absence due to illness; or
e) administrative leave, approved by the chief judge.
2. JUDICIAL EDUCATION LEAVE.
A judge is entitled to education leave of a minimum of two (2) weeks every three (3) years to participate in continuing legal education and training at Michigan judicial training programs and nationally recognized judicial education programs, including graduate and refresher courses. Judicial education leave does not include judicial conferences for which attendance is mandatory.
3. JUDICIAL PROFESSIONAL LEAVE.
Judges are encouraged, as part of their regular judicial responsibilities, to participate in professional meetings and conferences that advance the administration of justice or the public's understanding of the judicial system; to serve on commissions and committees of state and national organizations that contribute to the improvement of the law or that advance the interests of the judicial system; and for service on Supreme Court appointed in-house assignments or committees.
4. APPROVAL OF JUDICIAL ABSENCES.
A judge may not be absent form the court without the chief judge's prior approval, except for personal illness. In making the decision on a request to approve a vacation, education, or professional leave, or other absence, the chief judge shall consider, among other factors, the pending caseload of the judge involved and the status of outstanding opinions. The chief judge shall maintain records of absences to be available at the request of the Supreme Court or the State Court Administrator.
_______________________________________________________ | Publication of this proposal does not mean that the | | Court will issue an order on the subject, nor does | | it imply probable adoption in its present form. | | Timely comments will be substantively considered | | and your assistance is appreciated by the Court. | |_______________________________________________________|
A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court Clerk within 60 days after it is published in the Michigan Bar Journal. When filing a comment, please refer to our file No. 97-53.