Grievance Administrator v. Underwood

612 N.W.2d 116 (2000) 462 Mich. 188

GRIEVANCE ADMINISTRATOR, Attorney Grievance Commission, State of Michigan, Petitioner-Appellant,
v.
David L. UNDERWOOD, P-44754, Respondent-Appellee.

Docket No. 113180, Calendar No. 10.

Supreme Court of Michigan.

Argued March 7, 2000. Decided June 27, 2000.

Robert E. Edick, Cynthia C. Bullington, and Richard L. Cunningham, Detroit, MI, for petitioner-appellant.

Dunnings & Frawley, P.C., by Stuart J. Dunnings, Jr., Lansing, MI, for respondent-appellee.

Moore, Vestrand & Pozehl, P.C., by Joan P. Vestrand, Southfield, MI, amicus curiae for State Bar Grievance Committee on Behalf of the State Bar of Michigan.

Opinion

MICHAEL F. CAVANAGH, J.

This attorney discipline case requires us to decide whether respondent Underwood's delayed petition for review was timely under MCR 9.118(A)(3). That rule directs the Attorney Discipline Board (ADB) to treat the one-year limitation period in MCR 7.205(F) as a guideline, rather than as an absolute deadline. Because we hold that under the circumstances of this case, the ADB did not abuse its discretion in considering respondent's petition despite the one-year "guideline," we must determine the appropriate sanction for Underwood's misconduct. In light of our recent decision in Grievance Administrator v. Lopatin, 462 Mich. 235, 612 N.W.2d 120 (2000), adopting new guidelines for sanctions in attorney discipline cases, we remand this case for a determination of the appropriate sanction.

I

On July 15, 1991, David Underwood was admitted to the State Bar of Michigan. While he was working as a sole practitioner, two complaints were lodged against him with the Attorney Grievance Commission (AGC). The complaints alleged that Underwood misappropriated the proceeds of a client's worker's compensation award, and that he had failed to pursue another client's cause of action.

In response, the AGC began to investigate the allegations. It sent inquiry letters to Underwood, but he responded only to the letters about the alleged misappropriation. The AGC then subpoenaed Underwood to appear before it, but he failed to appear. As a result, Underwood was ordered to show cause why he should not be held in contempt for failing to comply with the subpoena. However, he failed to appear at the show cause hearing.

These events culminated in the AGC filing a formal complaint against Underwood on October 14, 1996. In five counts, the complaint charged Underwood with misappropriating $3,269.76 in client funds, neglecting a client matter, making false statements to the AGC during the investigation, failing to answer letters and comply with the subpoena, and failing to appear at the show cause hearing. Underwood did not respond to the formal complaint, and did not appear at the December 9, 1996, hearing on the complaint. Therefore, a default was entered against him. On February 7, 1997, the ADB entered an order revoking Underwood's license to practice law.

Later that year, Underwood retained counsel to represent him in this disciplinary matter. On November 20, 1997, counsel sent a letter to the ADB requesting it to reconsider its decision and grant a stay of discipline until further judgment. The ADB Executive Director replied, but the content of that reply is not a matter of record.^[1] Counsel again contacted the ADB by letter on February 13, 1998, inquiring about the status of the delayed petition for review, which he believed was initiated by the November 20, 1997, letter. On February 16, 1998, the Executive Director again replied, and apologized if he gave counsel the impression that the November 20, 1997, letter would be treated as a delayed petition for review. The Executive Director went on to clarify the filing requirements for a delayed petition for review, and advised that "[u]pon receipt of such a pleading, it will be forwarded to the Board chairperson for consideration in accordance with MCR 9.118(A)(3)."

On March 6, 1998, Underwood filed a formal delayed petition for review. The AGC opposed the petition, arguing that it was untimely because the deadline for filing a delayed petition for review was one year after the revocation order's effective date, which had passed. On April 6, 1998, however, the ADB granted the petition. It noted that through the November 20, 1997, letter, the ADB was on notice that Underwood was seeking review, and that "[u]nder the circumstances, neither the public, the courts, the legal profession [nor] the [AGC] are prejudiced by a delayed review." After considering Underwood's responses to the misconduct charges, the ADB vacated the revocation of Underwood's license, suspended his license for three years, and imposed conditions upon his reinstatement. The AGC appealed the ADB's decision, and this Court granted leave. 461 Mich. 1213, 603 N.W.2d 787 (1999).

II

The Michigan Constitution grants to this Court the power to "establish, modify, amend and simplify the practice and procedure in all courts of this state." Const. 1963, art. 6, § 5. Pursuant to that power, this Court has established rules to regulate and discipline members of the state bar, In re Schlossberg, 388 Mich. 389, 395, 200 N.W.2d 219 (1972), which are incorporated into the Michigan Court Rules. Chapter 9.100 of our rules governs professional disciplinary proceedings, and provides:

(A) Authority of Board. The Attorney Discipline Board is the adjudicative arm of the Supreme Court for discharge of its exclusive constitutional responsibility to supervise and discipline Michigan attorneys.

* * *

(E) Powers and Duties. The board has the power and duty to

* * *

(4) on request of the respondent, the administrator, or the complainant, review a final order of discipline or dismissal by a hearing panel.... [MCR 9.110.]

The ADB's review of a hearing panel order is governed by MCR 9.118. Generally, petitions for review must be filed within twenty-one days after the hearing panel's order is served, MCR 9.118(A)(1), but delayed petitions for review are permitted under MCR 9.118(A)(3). That subrule provides that "[a] delayed petition for review may be considered by the board chairperson under the guidelines of MCR 7.205(F)." In turn, MCR 7.205(F)(3) provides that "if an application for leave to appeal is filed more than 12 months after entry of the order or judgment on the merits, leave to appeal may not be granted."

A

When called on to construe a court rule, this Court applies the legal principles that govern the construction and application of statutes. McAuley v. General Motors Corp., 457 Mich. 513, 518, 578 N.W.2d 282 (1998). Accordingly, we begin with the plain language of the court rule. When that language is unambiguous, we must enforce the meaning expressed, without further judicial construction or interpretation. See Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 135, 545 N.W.2d 642 (1996). Similarly, common words must be understood to have their everyday, plain meaning. See M.C.L. § 8.3a; MSA 2.212(1); see also Perez v. Keeler Brass Co., 461 Mich. 602, 609, 608 N.W.2d 45 (2000).

We conclude that the plain language of MCR 9.118(A)(3) provides that MCR 7.205(F)'s one-year limitation period serves as a guide to the ADB's decision to hear a delayed petition, rather than as an unbending rule governing that decision. MCR 9.118(A)(3) provides that when the ADB considers a delayed petition for review, it should do so under the "guidelines" of MCR 7.205(F), which provides for a one-year limitation period. The plain meaning of "guideline" is "an indication or outline of policy or conduct." Merriam Webster's Collegiate Dictionary (10th ed.), p. 517. Thus, the rule directs the ADB to consider the one-year limitation period as an "outline" or "indication," rather than directing it to consider delayed petitions for review under the "mandate," "regulation," or "stricture" of MCR 7.205.

Indeed, construing MCR 9.118 to simply incorporate the one-year limitation period would be contrary to the canons of construction. The maxim that every word of a court rule should be given meaning, and that courts should not render any part of a court rule surplusage, is well settled. See In re MCI, 460 Mich. 396, 414, 596 N.W.2d 164 (1999). If we read MCR 9.118(A)(3) to do nothing more than direct the ADB to follow the one-year limitation period, the word "guidelines" would become surplusage, because the rule would then effectively provide that "[a] delayed petition for review may be considered by the board chairperson under ... MCR 7.205(F)." This Court will not ignore this maxim and read "guidelines" out of the court rule. Therefore, although recognizing that MCR 9.118(A)(3) incorporates the one-year limitation period of MCR 7.205(F)(3) as a guiding principle, we acknowledge that it does not set an absolute deadline for delayed petitions for review that must be followed without exception.

B

Because the one-year limitation period is a guide rather than a mandate, the ADB has discretion to hear delayed petitions for review filed later than one year after the hearing panel's order became effective. In determining whether to hear a delayed petition for review, the ADB may take into account myriad relevant equitable considerations. Here, it considered that it had notice of Underwood's intention to file a delayed petition for review, along with whether hearing the delayed petition would be prejudicial to the public, the courts, the legal profession, or the Grievance Administrator. Those are relevant considerations, and were appropriately considered by the ADB. An additional factor favoring the ADB's decision to hear the delayed petition in this case was the Executive Director's first reply to Underwood's counsel, which created confusion about whether Underwood's delayed petition was pending after counsel's November 20, 1997, letter. Thus, the ADB appropriately exercised its discretion under MCR 9.118(A)(3) when it considered Underwood's delayed petition under the guidelines of MCR 7.205(F).

III

Our holding that the ADB was correct to hear Underwood's petition for delayed review requires us to consider the appropriate sanction for his misconduct. As we noted in Grievance Administrator v. Lopatin, supra, Michigan has not historically had a uniform system for determining sanctions in attorney discipline cases. Rather, "[o]nly our occasional opinion has provided guidance to the public, the disciplinary body, and the legal profession...." Op. at 123. Otherwise, the AGC and ADB were left to their own designs when imposing sanctions on miscreant attorneys. Because we decided that "a written set of principles will provide guidance during the process of fixing discipline for lawyer misconduct," we directed the ADB and hearing panels to use the American Bar Association Standards for Imposing Lawyer Sanctions until this Court could take final action adopting a uniform system of sanctions. Id. at 123.

In the wake of our decision in Lopatin, rather than initially applying the ABA standards to Underwood's actions ourselves, we remand this case to the ADB for that application. On remand, the ADB is to follow the analytical framework of the ABA standards, first identifying the misconduct involved by considering the ethical duty Underwood breached, his mental state, and the actual or potential injury caused. It then is to determine the recommended sanction under the ABA standards, and account for any aggravating or mitigating circumstances when it imposes discipline.

IV

For the reasons stated in this opinion, we affirm the ADB's decision to entertain the delayed petition for review. We remand this case to the ADB to determine the appropriate sanction under the ABA standards.

WEAVER, C.J., and MARILYN J. KELLY, TAYLOR, CORRIGAN, YOUNG, and MARKMAN, JJ ., concurred with MICHAEL F. CAVANAGH, J.

NOTES

[1] The only information provided to this Court about the response is that the director advised counsel that a petition for review "filed in accordance with MCR 9.118(A)(3)" would be referred to the board's chairperson.