Grievance Administrator v. James Sterling Lawrence

Order Michigan Supreme Court
Lansing, Michigan
June 18, 2021 Bridget M. McCormack,
Chief Justice
162155 & (9) Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
GRIEVANCE ADMINISTRATOR, Megan K. Cavanagh
Petitioner-Appellee, Elizabeth M. Welch,
Justices
v SC: 162155
ADB: 18-000130-GA
JAMES STERLING LAWRENCE,
Respondent-Appellant.
_________________________________________/
On order of the Court, the motion to file a response to the amicus curiae brief is
GRANTED. The application for leave to appeal is considered and, pursuant to MCR
7.305(H)(1), in lieu of granting leave to appeal, we REVERSE the Attorney Discipline
Board’s September 29, 2020 opinion, and REINSTATE the May 20, 2020 order of
suspension and restitution with condition of the Tri-County Hearing Panel #101. “While
we are mindful of the careful consideration that has been given to this matter by the
Attorney Discipline Board, the power to regulate and discipline members of the bar rests
ultimately with this Court pursuant to constitutional mandate.” In re August, 441 Mich
1207 (1993), citing Grievance Administrator v August, 438 Mich 296, 304 (1991), and In
re Schlossberg v State Bar Grievance Board, 388 Mich 389, 395 (1972); Const 1963, art
6, § 5. In Grievance Administrator v Lopatin, 462 Mich 235 (2000), the Court directed the
Board and hearing panels to follow the ABA Standards for Imposing Lawyer Sanctions
when determining the appropriate sanction for lawyer misconduct, id. at 238, and directed
that “relevant aggravating and mitigating factors” should be considered prior to elevating
or lowering a sanction. Id. at 240. As stated in Standard 1.3, the “Standards constitute a
model, setting forth a comprehensive system for determining sanctions, permitting
flexibility and creativity in assigning sanctions in particular cases of lawyer misconduct.”
Standards 4.1-4.3 (failure to preserve the client’s property) are the governing standards in
this case. They provide in relevant part:
Absent aggravating or mitigating circumstances, upon application of the
factors set out in 3.0, the following sanctions are generally appropriate in
cases involving the failure to preserve client property:
4.11 Disbarment is generally appropriate when a lawyer knowingly converts
client property and causes injury or potential injury to a client.
4.12 Suspension is generally appropriate when a lawyer knows or should
know that he is dealing improperly with client property and causes injury or
potential injury to a client.
2
4.13 Reprimand is generally appropriate when a lawyer is negligent in
dealing with client property and causes injury or potential injury to a client.
[Emphasis added.]
We agree with the conclusion reached in the Report of Tri-County Hearing Panel
#101, that “disbarment is too extreme given the particular facts and circumstances of this
matter.” The Hearing Panel found that respondent did not act with a fraudulent or larcenous
intent and it concluded that his misconduct occurred as a result of gross mismanagement
and ignorance. The Board rejected this characterization, stating “the concepts at play here
are not difficult to grasp. Simply put, the money deposited with a lawyer to secure payment
for work is not the lawyer’s until the work is done. This is not complicated or obscure.”
While we agree with the Board that respondent’s actions of mishandling and spending his
client’s refundable advanced fee was a knowing violation of MRPC 1.15(d) and MRPC
1.15(g), the Board erred by applying “a rule of presumptive disbarment,” instead of
considering the range of reasonable outcomes to select the most appropriate sanction based
on the facts and circumstances of the matter at hand.
While disbarment is generally the appropriate sanction for a Standard 4.11 violation,
the Board did not adequately consider the presence of mitigating factors under Standard
9.3 or the absence of aggravating factors under Standard 9.2. Our review reflects that the
mitigating factors—Standard 9.32(a), (d), (e), and (g)—in this matter clearly preponderate
over aggravating factors, none of which were identified by the Hearing Panel or the Board
as being applicable or material to their decisions. Under these circumstances, while
perhaps reasonable minds could disagree as to whether respondent’s conduct is better
characterized as a 4.11 violation or a 4.12 violation or whether respondent moved quickly
enough to make his client whole, the presence of several mitigating factors makes
suspension a more appropriate sanction than disbarment. And while the Board was rightly
concerned by the panel’s mere 100-day suspension, we note that the respondent has
effectively been suspended for over a year and that Hearing Panel’s conditions will remain
in place.
CAVANAGH, J., did not participate due to her prior service as a member of the
Attorney Grievance Commission.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 18, 2021
b0615
Clerk