Author: LegalEase Solutions

QUESTION PRESENTED

How is the statement “Procedures must be as expeditious as possible” under MCR 9.102(A) interpreted?

SHORT ANSWER

There is no specific statute of limitations for filing a grievance with the Attorney Grievance Commission and no limitation on time for the AGC to bring a charge against an attorney after receiving a grievance.

RESEARCH FINDINGS

In Attorney Discipline Board (ADB) opinion DP 186/84 of Ronald R. Kubik, ADB held that Panel erred in granting Respondent’s Motion to Dismiss. In this matter the Board reviewed “the issue of the Hearing Panel’s dismissal of a Formal Complaint on the grounds that the Panel’s failure to hold a hearing within fifty-six days from the date of the filing of the Complaint as required by MCR 9.111(B)(1) constituted a jurisdictional defect.”[1]

That Court Rule describes the powers and duties of a hearing panel and directs that a panel “shall do the following:

1) hold a public hearing on a Complaint or Reinstatement Petition assigned to it within fifty-six days after the date the Complaint is filed with the Board or the date that Notice of the Reinstatement Petition is published. The hearing must be concluded within ninety-one days after it has begun, unless the Board grants an extension for good cause.”[2]

Here, while discussing “the powers and duties of a hearing panel, MCR 9.111(B) directs that a hearing panel ‘shall’ observe several time limits.”[3] However, ADB relied on “the Supreme Court’s prior interpretation of the word ‘shall’ recited in former Supreme Court Rule 16.3(d), the predecessor of the present Rule.”[4]. In State Bar Grievance Administrator v Poler, 393 Mich 38 (1974), “[t]he hearing panel filed its report and order 77 days after the hearing. Respondent claims that the delay violates Rule 16.3.3(d) which states, ‘each hearing panel shall . . . (r)eport their actions to the board; within 30 days of conclusion of a hearing.'” Id. at 40-41. ADB found that in Poler, the Supreme Court specifically rejected the jurisdictional argument and explained that”

“This must be read in conjunction with Rule 16.33 [MCR 9.102(A)] which requires the procedures shall be as expeditious as possible The 30 day period . . . should be regarded as a goal and not jurisdictional. We are not faced with a protracted hearing process . . . We are concerned with the time needed to reach a decision after the facts are gathered. It would be unreasonable and unfair to both sides to impose a rigid rather than a reasonable time limitation on such process. (Id. 40-41). Cf. State Bar Grievance Administrator v Donigan, 403 Mich 172 (1978).”[5]

Further, ADB stated that, “[a]ll proceedings before hearing panels and the Board are, of course, subject to the Court’s direction that ‘procedures must be as expeditious as possible,’ MCR 9.102(A).”[6] However, ADB explained and interpreted that, “Rule also provides . . . that the Rules governing these discipline matters are ‘to be liberally construed for the protection of the public, the courts and the legal profession.'”[7] (quoting MCR 9.102(A)).

Accordingly,ADB concluded that, “[a]utomatic dismissal of a Complaint brought in good faith and without a hearing on the merits because a hearing has not commenced within fifty-six days or because a hearing panel report is not submitted with twenty-eight days would simply not be consistent with the goals of these proceedings.”[8] Therefore, ADB vacated the Hearing Panel Order Granting Respondent’s Motion to Dismiss and remanded this matter to a hearing panel for hearing.[9]

CONCLUSION

From the foregoing it appears that, “Procedures must be as expeditious as possible” under MCR 9.102(A), should be regarded as a goal and not jurisdictional. Additionally, Rules governing the discipline matters should be construed liberally enabling to protect the public, the courts and the legal profession. Further, relying on Poler, ADB is concerned with the time required to reach a decision after gathering the facts. Therefore, ADB opines that it would be unreasonable and unfair to both sides to impose a rigid rather than a reasonable time limitation on such process.

[1] http://www.adbmich.org/coveo/opinions/1987-02-02-186-84.pdf#search=%22as expeditious as possible MCR 9.102 A%22

[2] Id. at 1

[3] Id. at 2

[4] Id.

[5] Id.

[6] Id. at 3

[7] Id.

[8] Id.

[9] Id.