State Bar Grievance Administrator v. Baun

M. S. Coleman, J.

Three viable questions are presented by this appeal from a decision of the State Bar Grievance Board.

(1) Was appellant Baun denied due process in that the procedures under which the Bar Grievance Board operate are inherently biased?

(2) After having been advised that the respondent intended to claim his Fifth Amendment privilege, was it error for the State Bar to request that respondent take the stand under State Bar Rule 16, § 16.11?

(Conversely, the Bar Grievance Administrator has cross-appealed to inquire whether the Board erred when it ruled against any cross-examination under § 16.11.)¹

(3) Did the Board err when it increased the hearing panel’s penalty of a two-year suspension to disbarment?

Leonard A. Baun was disbarred² by the State Bar Grievance Board after a hearing panel had suspended his license to practice law for two years.³ The hearings disclosed that Mr. Baun had failed to maintain separate accounts for four estates and had commingled those funds with his personal funds. He had eventually converted $147,-019.14 to his own use. He and his sureties repaid all funds which were so converted.

I.

Attorney Baun submits that he was denied a fair hearing before an impartial tribunal. He contends that in effect the State Bar Grievance Board requested the investigation, investigated, determined probable cause, charged, prosecuted, and then found appellant guilty. The Grievance Board maintains that the nexus between the State Bar Grievance Administrator, the hearing panel and itself is sufficiently attenuated as to negate that contention. We agree with the Grievance Board.

In a recent case which is dispositive of this issue, Withrow v Larkin, 421 US 35; 95 S Ct 1456; 43 L Ed 2d 712 (1975), involving the revocation of a medical license, the United States Supreme Court said:

"The initial charge or determination of probable cause and the ultimate adjudication have different bases and purposes. The fact that the same agency makes them in tandem and that they relate to the same issues does not result in a procedural due process violation.

* * *

"That the combination of investigative and adjudicatory functions does not, without more, constitute a due process violation, does not, of course, preclude a court from determining from the special facts and circumstances present in the case before it that the risk of unfairness is intolerably high.”

In the instant case, the State Bar Grievance Administrator found probable cause, prepared, filed and prosecuted the complaint. A hearing panel initially adjudicated the matter and then the State Bar Grievance Board reviewed it. The functions are separate. The people are different in each instance.

Withrow is clear. Absent a contrary showing, the hearing panel, the Grievance Board and the Grievance Administrator, in addition to being functionally separate, are assumed to be fair and honest — composed of "men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances”. We have been presented with no special facts or circumstances which suggest that the risk of unfairness is "intolerably high” or that it even minimally exists.⁴ We find no denials of due process.

II

Attorney Baun also argues that the mere attempt by the State Bar to call him for cross-examination was prejudicial and violative of his right against self-incrimination. Before Mr. Baun was called for cross-examination, counsel to the State Bar Grievance Administrator had been informed that Baun would invoke his right against self-incrimination. Appellant contends that the only purpose in calling him to the stand was to emphasize that he was invoking his Fifth Amendment rights. This, contends appellant, is akin to a prosecutor arguing to a jury that it should draw an inference of guilt from a defendant’s failure to testify.

On the other hand, the Grievance Board contends that the question is not whether appellant can invoke his Fifth Amendment rights, but rather when can he invoke those rights. State Bar Rule 16, § 16.11 permits cross-examination. Respondent’s right of refusal extends only to those questions which might incriminate him. The appellant has no blanket right to refuse cross-examination on everything involved in the proceedings, including his name, place of practice, date of admission to the bar and other non-incriminating matters.

We find State Bar Grievance Administrator v Moes, 389 Mich 258; 205 NW2d 428 (1973), coupled with State Bar of Michigan v Block, 383 Mich 384; 175 NW2d 769 (1970), to be controlling. The Block Court said:

"It is not requisite, so far at least in our developing area of ultraism, that a lawyer be proved a criminal before he can be disbarred. It is requisite only that his conduct be that which proves clearly that he is unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney.

"So far as Michigan is concerned, this Court long since has directed that the circuit court, when it determines and orders discipline of an attorney under Rule 15, should administer such discipline 'as a measure necessary for the protection of the public, the courts and the legal profession, and not as punishment for wrongdoing.’ * * *

"In the application of Rule 15 to this respondent we find no taint of unconstitutionality.”

The Moes Court added:

"Respondent misconceives the office of the Fifth Amendment’s privilege. The choice of whether to appear and to offer proofs lies with the one charged, but the obligation to meet charges never entails an obligation of self incrimination.”

Here the appellant tried to invoke his Fifth Amendment rights in order to shed his obligation to meet charges and answer questions which could have been non-incriminating. True, if respondent were obliged to answer any and all questions asked, some of his utterances might have been incriminating. But the injection of that argument at this stage is inappropriate. The Administrator was precluded from asking any question at all.

Respondent’s contention presupposes a blanket immunity from cross-examination. He claims prejudice because of alleged undue emphasis placed upon the mere taking of the stand and the invocation of his right against self-incrimination. But there was no undue influence. The State Bar Grievance Administrator had the right to cross-examine the appellant concerning non-incriminating acts, words and deeds which bore upon his fitness as an attorney to perform the duties and responsibilities entrusted to him.

The hearing panel and State Bar Grievance Board would be no more influenced by his failure to answer some of the questions while on the stand than by Mr. Baun’s failure to take the stand. These are experienced people selected for their integrity, objectivity and intelligence. A considerable trust reposes in them and absent a specific showing to the contrary, we cannot find "undue influence” in requesting respondent to take the stand.

In this context, we must keep in mind the purpose of this proceeding, to wit: the ultimate "protection of the public, the courts and the legal profession”.⁵

It therefore follows that the board erred in denying all cross-examination of respondent.

Ill

As to the administrator’s cross-appeal, we find the error to his case harmless. Respondent was found guilty of the alleged offenses. However, this point of procedure may well be crucial in future matters.

IV

Although the bar grievance procedure withstands the challenges herein, we have not been enlightened by the board as to the findings and reasoning which prompted the extension of the two-year suspension to disbarment. Therefore, pursuant to State Bar Grievance Administrator v Gillette, 393 Mich 26; 222 NW2d 513 (1974), we remand to the State Bar Grievance Board for the purpose of setting forth reasons in support of the order of discipline.

We retain jurisdiction.

T. G. Kavanagh, C. J., and Williams and J. W. Fitzgerald, JJ., concurred with M. S. Coleman, J.

1 State Bar Rule 16, § 16.11 provides:

"Respondent shall appear in person before the Hearing Panel at the time and place named by the Hearing Panel, and he shall be subject to cross-examination in like manner as an opposite party under CL 600.2161. * * * Pleadings and proceedings before a Hearing Panel shall conform as near as practicable with requirements of the General Court Rules for trials of non-jury civil causes in circuit courts, except as otherwise provided hereunder.”

MCLA 600.2161; MSA 27A.2161 provides:

“In any suit or proceeding in any court in this state, either party, if he shall call as a witness in his behalf, the opposite party, employee or agent of said opposite party, or any person who at the time of the happening of the transaction out of which such suit or proceeding grew, was an employee or agent of the opposite party, shaU have the right to cross-examine such witness the same as if he were called by the opposite party; and the answers of such witness shall not interfere with the right of such party to introduce evidence upon any issue involved in such suit or proceeding, and the party so calling and examining such witness shall not be bound to accept such answers as true.”

2 July 9, 1974.

3 April 23, 1974.

4 To the contrary, the most frequent complaint is that lawyers sitting in judgment upon lawyers are likely to be protective.

5 State Bar Rule 15, § 4 provides in part:

"Discipline for misconduct is not intended as punishment for wrongdoing but is for the protection of the public, the courts and the legal profession.”