Opinion
No. 2002-14.
June 4, 2002.
On order of the Court, this is to advise that the Court is considering an amendment of Rule 9.128 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment. The Court welcomes the views of all who wish to address the form or the merits of the proposal or to suggest alternatives. Before adoption or rejection, the proposal will be considered by the Court at a public hearing. Notice of future public hearings will be provided by the Court and posted atwww.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[The following language would replace the current
provisions of MCR 9.128 in their entirety.]
Rule 9.128 Attorney Discipline Board
(A) Generally. The hearing panel and the board, in an order of discipline or an order granting or denying reinstatement, must include a provision directing the payment of costs within a specified period of time. Under exceptional circumstances, the board may grant a motion to reduce administrative costs assessed under this rule, but may not reduce the assessment for actual expenses. Reimbursement must be a condition in a reinstatement order.
(B) Amount and Nature of Costs Assessed. The costs assessed under these rules shall include both basic administrative costs and disciplinary expenses actually incurred by the board, the commission, a master, or a panel for the expenses of that investigation, hearing, review and appeal, if any.
(1) Basic Administrative Costs:
(a) for discipline by consent pursuant to MCR 9.115(F)(5), $750;
(b) for all other orders imposing discipline, $1,500;
(c) with the filing of a petition for reinstatement under MCR 9.124(A), where the discipline imposed was a suspension of less than three years, $750;
(d) with the filing of a petition for reinstatement under MCR 9.124(A), where the discipline imposed was a suspension of three years or more or disbarment, $1,500.
(2) Actual Expenses. Within fourteen days of the conclusion of a proceeding before a panel or a written request from the board, whichever is later, the grievance administrator shall file with the board an itemized statement of the commission's expenses allocable to the hearing, including expenses incurred during the grievance administrator's investigation. Copies shall be served upon the respondent and the panel. An itemized statement of the expenses of the board, the commission, and panel, including the expenses of a master, shall be a part of the report in all matters of discipline and reinstatement.
(C) Certification of Nonpayment. If the respondent fails to pay the costs within the time prescribed, the board shall serve a certified notice of the nonpayment upon the respondent. Copies must be served on the administrator and the State Bar of Michigan. Commencing on the date a certified report of nonpayment is filed, interest on the unpaid fees and costs shall accrue thereafter at the rates applicable to civil judgments.
(D) Automatic Suspension for Nonpayment. The respondent will be suspended automatically, effective seven days from the mailing of the certified notice of nonpayment, and until the respondent pays the costs assessed or the board approves a suitable plan for payment. The board shall file a notice of suspension with the clerk of the Supreme Court and the State Bar of Michigan. A copy must be served on the respondent and the administrator. A respondent who is suspended for nonpayment of costs under this rule is required to comply with the requirements imposed by MCR 9.119 on suspended attorneys.
(E) Reinstatement. A respondent who has been automatically suspended under this rule and later pays the costs or obtains approval of a payment plan, and is otherwise eligible, may seek automatic reinstatement pursuant to MCR 9.123(A) even if the suspension under this rule exceeded 179 days. However, a respondent who is suspended under this rule and, as a result, does not practice law in Michigan for three years or more, must be recertified by the Board of Law Examiners before the respondent may be reinstated.
Staff Comment: The proposed amendment of MCR 9.128 has been suggested by the Attorney Grievance Commission and the Attorney Discipline Board. It would allocate a greater share of the cost of operating the discipline system to those who are disciplined. Among other changes, the new provisions would permit an assessment for basic administrative costs as well as actual expenses, and would expressly include investigative costs in actual expenses.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction 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 in writing or electronically by September 1, 2002. Clerk's Office, Michigan Supreme Court, P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@jud.state.mi.us. When filing a comment, please refer to file 2002-14. Your comments and the comments of others will be posted at www.courts.michigan.gov/supremecourt.