State Bar Grievance Administrator v. Posler

390 Mich. 581 (1973) 213 N.W.2d 133

STATE BAR GRIEVANCE ADMINISTRATOR
v.
POSLER

No. 6 September Term 1973, Docket No. 54,407.

Supreme Court of Michigan.

Decided December 18, 1973.

Louis Rosenzweig, for the State Bar Grievance Administrator.

Donald M. Posler, in propria persona.

T.G. KAVANAGH, J.

The respondent was suspended from the practice of law for 30 days for gross negligence in the handling of a claim in the Common Pleas Court for the City of Detroit.

On appeal he poses one question:

"In a State Bar Grievance Proceeding, does a mere preponderance of the evidence sustain a Hearing Panel's finding of gross negligence by Respondent in the performance of his professional duties?"

He cites decisions of this Court in State Bar of Michigan v Woll, 387 Mich 154; 194 NW2d 835 (1972); Matter of Hamilton Baluss, 28 Mich 507 (1874); and In re Clink, 117 Mich 619; 76 NW 1 (1898) in support of his contention that the evidence must be "clear and convincing" and not simply "a preponderance of the evidence".

Section 16.13 of the State Bar Grievance Rules provides in pertinent part:

"If the Hearing Panel finds that the charges of misconduct are established as true by a preponderance of the evidence, the Hearing Panel shall enter an order for discipline." (Emphasis supplied.)

Thus, whatever the standard may have been prior to the adoption of that rule effective March 1, 1970, the Court has established the preponderance of the evidence test to be the one applied since that date.

The case at bar offers no persuasive reason to change the test.

The respondent was retained in December, 1965, to represent Mr. & Mrs. Milieo DeJohn in their claim for damages arising out of an auto accident in that month. In December, 1968, he started suit on their behalf in the Common Pleas Court for the City of Detroit. On March 5, 1969, a motion to dismiss or in the alternative to compel answers to interrogatories was filed by the defendants in the common pleas suit, and an order to that effect was entered on March 11, 1969.

No answers having been filed by respondent on October 24, 1969, a motion to dismiss was again filed by the defendants. After two adjournments the case was dismissed on November 14, 1969.

On July 13, 1972 the case was reinstated upon proof that the respondent had in fact filed the answers to the interrogatories on November 9, 1969.

The undisputed fact is that the respondent made no effort to determine the status of his clients' case from November 14, 1969, until they complained to the Bar Association on October 8, 1971. He denies misleading them when they repeatedly asked him when the case would be tried, but says he informed them that the case would be tried "soon".

This undisputed fact is sufficient evidence to support the conclusion of gross negligence in failing to advance the lawsuit to its judicial conclusion whatever standard be applied.

Here the dispute is not over the facts or whether the evidence supports them, but rather whether the conclusion to be drawn from the admitted facts warrants censure.

We are not presently disposed to change the rule as it applies to the fact finders. If their conclusion be based on a preponderance of evidence we will not set it aside.

In any event, we are not bound by the fact finders' conclusion, and because we have the ultimate responsibility for approving the censure imposed we will examine the whole record so that we may conclude whether the penalty is appropriate.

Here we see no reason to alter the Grievance Board's order.

Affirmed.

T.M. KAVANAGH, C.J., and T.E. BRENNAN, SWAINSON, WILLIAMS, LEVIN, and M.S. COLEMAN, JJ., concurred with T.G. KAVANAGH, J.