PROPOSED AMENDMENTS OF SUBCHAPTER

not contrary to the public interest.

(2) If the respondent alleges impairment by physical or mental disability or by drug or alcohol addiction pursuant to subrule (C)(1), the hearing panel may order the respondent to submit to a physical or mental examination

by a physician selected by the hearing panel or the board, which physician shall report to the hearing panel or board. The parties may obtain a psychiatric or medical evaluation at their own expense by examiners of their own choosing. No physician-patient privilege shall apply under this rule. The respondent's attorney may be present at an examination, in accord with the procedure set forth in MCR 9.121(B)(1)(a). The panel may direct that the expense of the examination be paid by the respondent. A respondent who fails or refuses to comply with an examination order, or refuses to undergo an examination requested by the administrator, shall not be eligible for probation.

(3) The probation order may

(a) must specify the treatment the respondent is to undergo,

(b) may require the respondent to practice law only under the direct supervision of other attorneys, or

(c) may include any other terms the evidence shows are likely to eliminate the impairment without subjecting the respondent's clients or the public to a substantial risk of harm because the respondent is permitted to continue to practice law during the probation period.

(4) A respondent may be placed on probation for up to 3 years. The probation order expires on the date specified in it unless the administrator petitions for, and the hearing panel, board, or court grants, an extension. An extension may not exceed

2 3years. A probation order may be dissolved if the respondent demonstrates that the impairment giving rise to the probation order has been removed and that the probation order has been fully complied with, but only one motion to accelerate dissolution of a probation order may be filed during the probation period.

(5) On proof that a respondent has violated a probation order, he or she may be suspended or disbarred.

(D) Publication of Change in Status. The board must publish in the Michigan Bar Journal a notice of transfer to inactive status. Atopy of the notice and the order must be filed and served under MCR 9.118.

(E) Reinstatement. An attorney transferred to inactive status under this rule may not resume active status until reinstated by the board's order and, if inactive 3 years or more, recertified by the Board of Law Examiners. The attorney may petition for reinstatement to active status once a year or at shorter intervals as the board may direct. A petition for reinstatement must be granted by

the board a panel on a showing by clear and convincing evidence that the attorney's disability has been removed and that he or she is fit to resume the practice of law. The board A panel may take the action necessary to determine whether the attorney's disability has been removed, including an examination of the attorney by qualified medical experts that the board designates conducted in accord with the procedure set forth in MCR 9.121(B)(1)(a). The board a panal direct that the expense of the examination be paid by the attorney. If an attorney was transferred to inactive status under subrule 9.121(A) and subsequently has been judicially declared to be competent, the board a panel may dispense with further evidence that the disability has been removed and may order reinstatement to active status on terms it finds proper and advisable, including recertification.

(F) Waiver of Privilege. By filing a petition for reinstatement to active status under this rule, the attorney waives the doctor-patient privilege with respect to treatment during the period of his or her disability. The attorney shall disclose the name of every psychiatrist, psychologist, physician, and hospital or other institution by whom or in which the attorney has been examined or treated since the transfer to inactive status. The attorney shall furnish to

the board a panel written consent for each to divulge whatever information and records are requested by the board's panel's medical or psychological experts.

AGC comment: Paragraph (B) has been expanded to add particulars about a medical examination that can either be demanded by the grievance administrator or ordered by a hearing panel in a proceeding brought by the grievance administrator alleging incapacity of the respondent. The proposed new language details the necessity of obtaining a medical report, the content of the report, and that it becomes part of the record. A respondent may also obtain such a report and, provided that it is properly served upon the administrator, it is admissible into the record. A new paragraph (B)(2) specules how the respondent shall be served with the petition by referencing MCR 9.115(C). Changes to paragraph (B)(3) would require a finding of good cause after a request by a party or a hearing panel acting on its own motion in order for a hearing panel to recommend to the attorney discipline board the appointment of a lawyer to represent an unrepresented respondent in a proceeding brought under this rule.

Modifications to paragraph (B)(5) reflect current terminology and procedure.

Changes to paragraph (C)(2) provide that examinations are to be conducted in accordance with the new proposed provisions of paragraph (B)(1)(a). A provision allowing the presence of a respondent's counsel during an examination has been deleted. Paragraph (C)(4) has been changed to expand the initial term of probation from a maximum of two to a period of up to three years. Paragraph (C)(3) has been modified to clarify that the probation order must specify the treatment the respondent is to undergo. The remaining subparagraphs (b) and (c) remain discretionary.

Paragraph (E) has been changed to clarify that reinstatement proceedings pertaining to lawyers transferred to inactive status under this rule are heard by a hearing panel and that examinations sought in a reinstatement proceeding will be handled in accordance with paragraph (B)(1). Consistent with these changes, references to "board" are changed to "panel" in paragraph (F). Also in paragraph (F), a reference to medical experts is modified with the addition of "or psychological" before "experts."

SBM Workgroup comment: All members of the Workgroup other than the AGC representatives concur about the SBM version of paragraph (B)(1) that is proposed. The Workgroup majority believe that good cause ought to have to be shown before the administrator can obtain a hearing panel's order that a respondent submit to one or more medical examinations. Paragraphs (B)(l)(a)(ii), (iii), and (iv) address circumstances where the administrator and respondent concur on the selection of the expert to conduct the examination, where each party selects his or her own, and where the hearing panel selects its own. The Workgroup version retains unaltered the provision appointing an unrepresented respondent (paragraph (B)(l)(b)[2]), the provision holding pending disciplinary proceeding in abeyance (paragraph (B)(l)(b)[4]) and the language providing a 2-year maximum for a period of probation (paragraph (C)[4]), all of which are consistent with current practice.

RULE 9.122. REVIEW BY SUPREME COURT.

(A) Kinds Available; Time for Filing.

(1) A party aggrieved, including the

person who made a request for investigation complainant, by a final order of discipline or dismissal entered by the board on review under MCR 9.118, may apply for leave to appeal to the Supreme Court under MCR 7.302 within 28 days after the order is entered. If a motion for reconsideration is filed before the board's order takes effect, the application for leave to appeal to the Supreme Court may be filed within 28 days after the board enters its order granting or denying reconsideration.

(2) If a request for investigation has been dismissed under MCR 9.112(C)(1) (a) or 9.114(A), a party aggrieved by the dismissal may file a complaint in the Supreme Court under MCR 7.304.

(B) Rules Applicable. Except as modified by this rule, subchapter 7.300 governs an appeal.

(C) Stay of Order. If the discipline order is a suspension of 179 days or less, a stay of the order will automatically issue on the timely filing of an appeal by the respondent. The stay remains effective

until for 21 days following the conclusion of the appeal or further order of the Supreme Court. The respondent may petition the Supreme Court for a stay pending appeal of other orders of the board.

(D) Record on Appeal. The original papers constitute the record on appeal. The board shall certify the original record and file it with the Supreme Court promptly after the briefs of the parties have been filed. The record must include a list of docket entries, a transcript of testimony taken, and all pleadings, exhibits, briefs, findings of fact, and orders in the proceeding. If the record contains material protected, the protection continues unless otherwise ordered by the Supreme Court.

(E) Disposition. The Supreme Court may make any order it deems appropriate, including dismissing the appeal. The parties may stipulate to dismiss the appeal with prejudice.

Staff comment: The proposed changes in this rule would make primarily technical updates to the current language.

RULE 9.123. ELIGIBILITY FOR REINSTATEMENT.

(A) Suspension, 179 Days or Less. An attorney whose license has been suspended for 179 days or less is automatically reinstated by filing with the Supreme Court clerk, the board, and the administrator an affidavit showing that the attorney has fully complied with the terms and conditions of the suspension order. A materially false statement contained in the affidavit is ground for disbarment.

(B)

Revocation Disbarment or Suspension More Than 179 Days. An attorney whose license to practice law has been revoked or suspended for more than 179 days is not eligible for reinstatement until the attorney has petitioned for reinstatement under MCR 9.124 and has established by clear and convincing evidence that:

(1) he or she desires in good faith to be restored to the privilege of practicing law in Michigan;

(2) the term of the suspension ordered has elapsed or 5 years have elapsed since his or her

revocation of the license disbarment or resignation;

(3) he or she has not practiced or attempted to practice law contrary to the requirement of his or her suspension or

revocation disbarment;

(4) he or she has complied fully with the order of discipline;

(5) his or her conduct since the order of discipline has been exemplary and above reproach;

(6) he or she has a proper understanding of and attitude toward the standards that are imposed on members of the bar and will conduct himself or herself in conformity with those standards;

(7) taking into account all of the attorney's past conduct, including the nature of the misconduct that led to the revocation or suspension, he or she nevertheless can safely be recommended to the public, the courts, and the legal profession as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the court;

(8) he or she is in compliance with the requirements of subrule (C), if applicable; and

(9) he or she has reimbursed the client security fund of the State Bar of Michigan or has agreed to an arrangement satisfactory to the fund to reimburse the fund for any money paid from the fund as a result of his or her conduct. Failure to fully reimburse as agreed is ground for revocation vacating an order of a reinstatement.

(C) Reinstatement After Three Years. An attorney who, as a result of disciplinary proceedings, resigns, is disbarred, or is suspended for any period of time, and who does not practice law for 3 years or more, whether as the result of the period of discipline or voluntarily, must be recertified by the Board of Law Examiners before the attorney may be reinstated to the practice of law.

(D) Petition for Reinstatement; Filing Limitations.

(1) Except as provided in subrule (D)(3), an attorney whose license to practice-law has been suspended may not file a petition for reinstatement earlier than 56 days before the term of suspension ordered has fully elapsed.

(2) An attorney whose license to practice law has been revokedor who has resigned may not file a petition for reinstatement until 5 years have elapsed since

revocation of the license the attorney's resignation or disbarment.

(3) An attorney whose license to practice law has been suspended because of conviction of a felony for which a term of incarceration was imposed may not file a petition for reinstatement until six months after completion of the sentence, including any period of parole.

(4) An attorney

whose license to practice law has been revoked who has been disbarred or suspended and who has been denied reinstatement may riot file a new petition for reinstatement until at least 180 days 1 year from the effective date of the most recent hearing panel order granting or denying reinstatement.

Staff comment: The proposed changes are primarily technical updates. However, the AGC recommends that under paragraph (D)(4) the period between filing reinstatement petitions be increased to one year for reasons of administrative economy and to ensure that the applicant for reinstatement has time outside of any supervision in order to provide an appropriate track record for a panel's review. The SBM workgroup would prefer that the time period in (D)(4) remain at 180 days.

RULE 9.124. PROCEDURE FOR REINSTATEMENT.

(A) Filing of Petition. An attorney petitioning for reinstatement shall file the original petition for reinstatement with the Supreme Court clerk and a copy with the board and the commission.

(B) Petitioner's Responsibilities.

(1) Separately from the petition for reinstatement, the petitioner must serve only upon the administrator a personal history affidavit. The affidavit is to become part of the administrator's investigative file and may not be disclosed to the public except under the provisions of MCR 9.126.

The following information affidavit must be attached to or contained in the affidavit the following information:

(a) every residence address since the date of disqualification from the practice of law;

(b) employment history since the time of disqualification, including the nature of employment, the name and address of every employer, the duration of such employment, and the name of the petitioner's immediate supervisor at each place of employment; if requested by the grievance administrator, the petitioner must provide authorization to obtain a copy of the petitioner's personnel file from the employer;

(c) a copy of a current driver's license; (d) any continuing legal education in which the petitioner participated during the period of disqualification from the practice of law;

(e) bank account statements, from the date of disqualification until the filing of the petition for reinstatement, for each and every bank account in which petitioner is named in any capacity;

(f) copies of the petitioner's personal and business federal, state, and local tax returns from the date of disqualification until the filing of the petition for reinstatement, and if the petitioner owes outstanding income taxes, interest, and penalties, the petitioner must provide a current statement from the taxation authority of the current amount due; if requested by the grievance administrator, the petitioner must provide a waiver granting the grievance administrator authority to obtain information from the tax authority;

(g) any and all professional or occupational licenses obtained or maintained during the period of disqualification and whether any were suspended or revoked;

(h) any and all names used by petitioner since the time of disqualification;

(i) petitioner's place and date of birth;

(j) petitioner's social security number;

(k) whether, since the time of disqualification, petitioner was a party or a witness in any civil case, and the title, docket number, and court in which the

such case occurred;

(l) whether the petitioner was a party to any civil case, including the title, docket number, and court in which such case was filed; the petitioner must provide copies of the complaints and any dispositional orders or judgments, including settlement agreements, in such cases;

(m) whether the petitioner was a defendant or a witness in any criminal case, and the title, docket number, and court in which such case was filed; the petitioner must provide copies of the indictments or complaints and any dispositional orders or judgments of conviction in cases in which the petitioner was a defendant;

(n) whether the petitioner was subject to treatment or counseling for mental or emotional impairments, or for substance abuse or gambling addictions since the time of disqualification; if so, the petitioner must provide a current statement from the petitioner's service provider setting forth an evaluative conclusion regarding the petitioner's impairment(s), the petitioner's treatment records, and prognosis for recovery.

(2) The petitioner must, contemporaneously with the filing of the petition for reinstatement and service on the administrator of the personal history affidavit, remit

(a) to the administrator the fee for publication of a reinstatement notice in the Michigan Bar Journal.

(b) to the board the basic administrative costs required under MCR 9.128(B)(1)

(i) an administrative cost of $750 where the discipline imposed was a suspension of less than 3 years;

(ii) an administrative cost of $1,500 where the discipline imposed was a suspension of 3 years or more or disbarment.

(3) If the petition is facially sufficient and the petitioner has provided proof of service of the personal history affidavit upon the administrator and paid the publication fee required by subrule (B)(2), the board shall assign the petition to a hearing panel. Otherwise, the board may dismiss the petition without prejudice, on its own motion or the motion of the administrator

(4) A petitioner who files the petition before the term of suspension ordered has fully elapsed must file an updated petition and serve upon the administrator an updated personal history affidavit within 14 days after the term of suspension ordered has fully elapsed. All petitioners remain under a continuing obligation to provide updated information bearing upon the petition or the personal history affidavit.

(5) The petitioner must cooperate fully in the investigation by the administrator into the petitioner's eligibility for reinstatement by promptly providing any information requested. If requested, the petitioner must participate in a recorded interview and answer fully and fairly under oath all questions about eligibility for reinstatement.

(C) Administrator's Responsibilities.

(1) Within 14 days after the commission `receives its copy of the petition for reinstatement, the administrator shall submit to the Michigan Bar Journal for publication a notice briefly describing the nature and date of the discipline, the misconduct for which the petitioner was disciplined, and the matters required to be proved for reinstatement.

(2) The administrator shall investigate the petitioner's eligibility for reinstatement before a hearing on it, report the findings in writing to the board and the hearing panel within 56 days of the date the board assigns the petition to the hearing panel, and serve a copy on the petitioner. (a) For good cause, the hearing panel may allow the administrator to file the report at a later date, but in no event later than 7 days before the hearing.

(b) The report must summarize the facts of all previous misconduct and the available evidence bearing on the petitioner's eligibility for reinstatement. The report is part of the record but does not restrict the parties in the presentation of additional relevant evidence at the hearing. Any evidence omitted from the report or received by the administrator

subsequent to after the filing of the report must be disclosed promptly to the hearing panel and the petitioner to the opposing party.

(D) Hearing on Petition. A reinstatement hearing may not be held earlier than 28 days after the administrator files the investigative report with the hearing panel unless the hearing panel has extended the deadline for filing the report. The proceeding on a petition for reinstatement must conform as nearly as practicable to a hearing on a complaint. The petitioner shall appear personally before the hearing panel for cross-examination by the administrator and the hearing panel and answer fully and fairly under oath all questions regarding eligibility for reinstatement. The administrator and the petitioner may call witnesses or introduce evidence bearing upon the petitioner's eligibility for rein-statement. The hearing panel must enter an order granting or denying reinstatement and make a written report signed by the chairperson, including a transcript of the testimony taken, pleadings, exhibits and briefs, and its findings of fact. A reinstatement order may grant rein-statement subject to conditions that are relevant to the established misconduct or otherwise necessary to insure the integrity of the profession, to protect the public, and to serve the interests of justice. The report and order must be filed and served under MCR 9.118(F).

(E) Review. Review is available under the rules governing review of other "hearing panel orders. The administrator may request a stay of an order granting eligibility for reinstatement. Staff comment: The amendments proposed in this rule are primarily technical and clarifying ones. But according to the AGC, the proposed change to paragraph (E), would effect a substantive change to case law. In Probert v Michigan Attorney Discipline Board, SC #70448 (December 29, 1982), the Court acted on a mandamus complaint filed by a petitioner seeking reinstatement whose reinstatement had been stayed by the board at the request of the administrator. The Court vacated the board's order, holding that it was without authority to issue a stay. The proposed change would grant such authority.

RULE 9.125. IMMUNITY.

A person is absolutely immune from suit for statements and communications transmitted solely to the administrator, the commission, or the commission staff, or given in an investigation or proceeding on alleged misconduct or reinstatement. The administrator, legal counsel, investigators, members of hearing panels, masters, receivers appointed under MCR 9.119(G), voluntary investigators, fee arbitrators, mentors, practice monitors, the commission, the board, and their staffs are absolutely immune from suit for conduct arising out of the performance of their duties.

A medical or psychological expert who administers testing or provides a report pursuant to MCR 9,114(C) or MCR 9,131 is absolutely immune from suit for statements and communications transmitted solely to the administrator, the commission, or the commission staff, or given in an investigation or formal disciplinary proceeding. Staff comment: As described by the AGC and SBM, "the intention of the changes is to expand the application of the existing immunity rule to regular and periodic nonparty participants in the process who should be afforded immunity for their roles." See jointly-submitted side-by-side chart provided by the AGC and SBM.

RULE 9.126. OPEN HEARINGS; PRIVILECED, CONFIDENTIAL FILES AND RECORDS.

(A) Investigations. Except as provided in these rules, investigations by the administrator or the staff are privileged from disclosure, confidential. and may not be made public. At the respondent's option, final disposition of a request for investigation not resulting in formal charges may be made public. In addition, any interested person may inspect the request for investigation and the respondent's answer thereto if a

formal complaint disciplinary proceeding has been filed.

(B) Hearings. Hearings before a hearing panel and the board must be open to the public, but not their deliberations.

(C) Papers. Formal pleadings, reports, findings, recommendations, discipline, reprimands, transcripts, and orders resulting from hearings must be open to the public. A personal history affidavit filed pursuant to MCR 9.124(B)(1) is a confidential document that is not open to the public. This subrule does not apply to a request for a disclosure authorization submitted to the board or the Supreme Court pursuant to subrules (D)

(7) (8) or (E) (5) (8)

(D) Other Records. Other files and records of the board, the commission, the administrator, legal counsel, hearing panels and their members, and the staff of each may not be examined by or disclosed to anyone except

(1) the commission,

(2) the administrator,

(3) the respondent as provided under MCR 9.115(F)(4), Alternative A (AGC Proposal) Alternative B (SBM Proposal) (4) a respondent's employer as [The [The state bar proposed no changes here and state bar proposed no provided under would not publish for comment the AGC's MCR 9.114(b) proposed new language in (D)(4).]

(4) (5) members of hearing panels or the board,

(5) (6)authorized employees, (6) (7) the Supreme Court, or

(7) (8) other persons who are expressly authorized by the board or the Supreme Court.

If a disclosure is made to the Supreme Court, the board, or a hearing panel, the information must also be disclosed to the respondent, except as it relates to an investigation, unless the court otherwise orders.

(E) Other Information. Notwithstanding any prohibition against disclosure set forth in this rule or elsewhere, the commission shall disclose the substance of information concerning attorney or judicial misconduct to the Judicial Tenure Commission, upon request. The commission also may make such disclosure to the Judicial Tenure Commission, absent a request, and to:

(1) the State Bar of Michigan Client Security Fund;

(2) the State Bar of Michigan:

(a) Committee on Judicial Qualifications;

(b) Lawyers and Judges Assistance Program; (c) District and Standing Committees on Character and Fitness; or. (d) Unauthorized Practice of Law Committee,

(3) any court-authorized attorney disciplinary or admissions agency,

or including any federal district court or federal disciplinary agency considering the licensing of attorneys in its jurisdiction,

(4) the Michigan Appellate Assigned Counsel System, Alternative A (AGC Proposal) Alternative B (SBM Proposal) (5) any Michigan court considering [Does not include the AGC's pro-vision the appointment of a lawyer in a pending in (E)(5).] matter as house counsel, or as a standing appointment

(5) (6) a lawyer (5) a lawyer representing the respondent representing the respondent in an in an unrelated disciplinary investigation or unrelated, disciplinary investigation or proceeding proceeding (6) (7) law enforcement (6) law enforcement agencies; or agencies: or (4) (8) other persons (4) (7) other persons who are who are expressly authorized by the board expressly authorized by the board or or the Supreme Court. the Supreme Court. (F) Summary of Disclosures. The board shall include in its annual report to the Supreme Court an accounting of all requests for disclosure that have been filed with the board pursuant to subrules (D)(7) and (E)(4). The accounting shall include the board's disposition of each request. Staff comment: The proposal would make primarily technical and clarifying changes, and would explicitly expand the list of agencies that would be entitled to information regarding an attorney regarding misconduct. The AGC version includes language that would allow the AGC to disclose AGC files and records to an attorney's employer (under (D)[4]) and would require the AGC to disclose information concerning attorney or judicial misconduct to a court considering appointment of an attorney as house counsel or to a standing appointment (under (E)[5]). The SBM opposes these proposed changes.

RULE 9.127. ENFORCEMENT.

(A) Interim Suspension. The Supreme Court, the board, or a hearing panel may order the interim suspension of a respondent who fails to comply with its lawful order. The suspension shall remain in effect until the respondent complies with the order or no longer has the power to comply. If the respondent is ultimately disciplined, the respondent shall not receive credit against the disciplinary suspension or disbarment for any time of suspension under this rule. All orders of hearing panels under this rule shall be reviewable immediately under MCR 9.118. All orders of the board under this rule shall be appealable immediately under MCR 9.122. The reviewing authority may issue a stay pending review or appeal.

(B) Contempt. The administrator may enforce a discipline order or an order granting or denying reinstatement by proceeding against a respondent for contempt of court. The proceeding must conform to MCR 3.606. The petition must be filed by the administrator in the circuit court in the county in which the alleged contempt took place, or in which the respondent resides, or has or had an office. Enforcement proceedings under this rule do not bar the imposition of additional discipline upon the basis of the same noncompliance with the discipline order. The circuit court shall waive fees and costs in an action brought by the administrator to enforce a disciplinary order. Staff comment: The proposed change in this rule would require the circuit court to waive fees in an action brought by the grievance administrator on a disciplinary action.

RULE 9.128. COSTS.

(A) Generally. The hearing panel and the board, in an order of discipline or an order granting or denying reinstatement, must include a provision directing the payment of costs within a specified period of time. Under exceptional circumstances, the board may grant a motion to reduce administrative costs assessed under this rule, but may not reduce the assessment for actual expenses. Reimbursement must be a condition in a reinstatement order.

(B) Amount and Nature of Costs Assessed. The costs assessed under these rules shall include both basic administrative costs and disciplinary expenses actually incurred by the board, the commission, a master, or a panel for the expenses of that investigation, hearing, review and appeal, if any.

(1) Basic Administrative Costs:

(a) for discipline by consent pursuant to MCR 9.115(F)(5), $750;

(b) for all other orders imposing discipline, $1,500;

(c) with the filing of a petition for reinstatement

under MCR 9.124(A), where the discipline imposed was a suspension of less than 3 years, $750 as set forth in MCR 9.124(BH2)(b)(i) and (ii): (d) with the filing of a petition for reinstatement under MCR 9.184(A), where the discipline imposed was a suspension of 3 years or more or disbarment, $1,500.

(2) Actual Expenses. Within 14 days of the conclusion of a proceeding before a panel or a written request from the board, whichever is later, the grievance administrator shall file with the board an itemized statement of the commission's expenses allocable to the hearing, including expenses incurred during the grievance administrator's investigation. Copies shall be served upon the respondent and the panel. An itemized statement of the expenses of the board, the commission, and the panel, including the expenses of a master, shall be a part of the report in all matters of discipline and reinstatement.

(C) Certification of Nonpayment. If the respondent fails to pay the costs within the time prescribed, the board shall serve a certified notice of the nonpayment upon the respondent. Copies must be served on the administrator and the State Bar of Michigan. Commencing on the date a certified report of nonpayment is filed, interest on the unpaid fees and costs shall accrue thereafter at the rates applicable to civil judgments.

(D) Automatic Suspension for Nonpayment. The respondent will be suspended automatically, effective 7 days from the mailing of the certified notice of nonpayment, and until the respondent pays the costs assessed or the board approves a suitable plan for payment. The board shall file a notice of suspension with the clerk of the Supreme Court and the State Bar of Michigan. A copy must be served on the respondent and the administrator. A respondent who is suspended for nonpayment of costs under this rule is required to comply with the requirements imposed by MCR 9.119 on suspended attorneys.

(E) Reinstatement. A respondent who has been automatically suspended under this rule and later pays the costs or obtains approval of a payment plan, and is otherwise eligible, may seek automatic reinstatement pursuant to MCR 9.123(A) even if the suspension under this rule exceeded 179 days. However, a respondent who is suspended under this rule and, as a result, does not practice law in Michigan for 3 years or more, must be recertified by the Board of Law Examiners before the respondent may be reinstated.

(F) Assessment of Costs, Other than for costs assessed under this rule, sanctions in the form of fines or costs are unavailable in disciplinary proceedings, except that, in granting an adjournment, a panel may require that a party pay costs associated with witnesses. Staff comment: The proposed amendments in this rule would make primarily technical changes, with the exception of subsection (F).

AGC comment; Under proposed paragraph (F), neither side could be assessed sanctions in the form of fines or costs except as otherwise provided, or to obtain an adjournment. The rule is proposed in an attempt to avoid expensive, time-wasting, overly litigious collateral attacks during disciplinary pleadings.

SBM Workgroup comment: The AGC-proposed new paragraph (F) is intended by the AGC as a way of exempting the grievance administrator and its staff attorneys from being subjected to sanctions. Workgroup members other than the AGC representatives believe such an exemption is inappropriate.

RULE 9.129. EXPENSES; REIMBURSEMENT.

The state bar must reimburse each investigator, legal counsel, hearing panel member, board member, master, and commission member for the actual and necessary expenses the board, commission, or administrator certifies as incurred as a result of these rules.

RULE 9.130. MCR 8.122 CASES; ARBITRATION; DISCIPLINE; FILING COMPLAINT BY ADMINISTRATOR.

(A) Proceedings. A proceeding on alleged misconduct to which MCR 8.122 is applicable is the same as for a request for investigation. No investigation may be made on a claim by an attorney against a client. (B) (A) Arbitration. On written agreement between an attorney and his or her client, the administrator or an attorney the administrator assigns may arbitrate a dispute and enter an award in accordance with the arbitration laws. Except as otherwise provided by this subrule, the arbitration is governed by MCR 3.602. The award and a motion for entry of an order or judgment must be filed in the court having jurisdiction under MCR 8.122. If the award recommends discipline of the attorney, it must also be treated as a request for investigation.

(C) (B) Complaint. If the administrator finds that the filing of a complaint in the appropriate court under MCR 8.122 will be a hardship to the client and that the client may have a meritorious claim, the administrator may shall file the complaint on behalf of the client and prosecute it to completion without cost to the client.

Staff comment: The proposed change in this rule would eliminate unnecessary and confusing language in subsection (A); the proposed amendments would not eliminate the ability of a client to seek compensation from an attorney under MCR 8.122.

RULE 9.131. INVESTIGATION OF MEMBER OR EMPLOYEE OF BOARD OR COMMISSION; INVESTIGATION OF ATTORNEY REPRESENTING RESPONDENT OR WITNESS; REPRESENTATION BY MEMBER OR EMPLOYEE OF BOARD OR COMMISSION.

(A) Investigation of Commission Member or Employee. If the request is for investigation of an attorney who is a member or employee of the commission, the following provisions apply:

(1) The administrator shall serve a copy of the request for investigation on the respondent by ordinary mail. Within 21 days after service, the respondent shall file with the administrator an answer to the request for investigation conforming to MCR 9.113. The administrator shall send a copy of the answer to the

person who filed the request for investigation complainant

(2) After the answer is filed or the time for answer has expired, the administrator shall send copies of the request for investigation and the answer to the Supreme Court clerk.

(3) The Supreme Court shall review the request for investigation and the answer and shall either dismiss the request for investigation or appoint volunteer legal counsel to investigate the matter.

(4) If, after conducting the investigation, appointed counsel determines that the request for investigation does not warrant the filing of a formal complaint, he or she shall file a report setting out the reasons for that conclusion with the administrator, who shall send a copy of the report to the Supreme Court clerk, the respondent, and the

person who filed the request for investigation complainant. Review of a decision not to file a formal complaint is limited to a proceeding under MCR 9.122(A)(2). If appointed counsel determines not to file a complaint, the administrator shall close and maintain the file under MCR 9.114(E). MCR 9.126(A) governs the release of information regarding the investigation.

(5) If, after conducting the investigation, appointed counsel determines that the request for investigation warrants the filing of a formal complaint, he or she shall prepare and file a complaint with the board under MCR 9.115(B).

(6) Further proceedings are as in other cases except that the complaint will be prosecuted by appointed counsel rather than by the administrator.

If the request is for investigation of the administrator, the term "administrator" in this rule means a member of the commission or some other employee of the commission designated by the chairperson.

(B) Investigation of Board Member or Employee. Before the filing of a formal complaint, the procedures regarding a request for investigation of a member or employee of the board are the same as in other cases. Thereafter, the following provisions apply:

(1) The administrator shall file the formal complaint with the board and send a copy to the Supreme Court clerk.

(2) The

C chief J justice shall appoint a hearing panel and may appoint a master to conduct the hearing. The hearing procedure is as provided in MCR 9.115, or 9.117 or 9.120, as is appropriate, except that no matters shall be submitted to the board. Procedural matters ordinarily within the authority of the board shall be decided by the hearing panel, except that a motion to disqualify a member of the panel shall be decided by the C chief J justice.

(3) The order of the hearing panel is effective 21 days after it is filed and served as required by MCR 9.115(J), and shall be treated as a final order of the board. The administrator shall send a copy of the order to the Supreme Court clerk.

(4) MCR 9.118 does not apply. Review of the hearing panel decision is by the Supreme Court as provided by MCR 9.122.

(C) Investigation of Attorney Representing a Respondent or Witness in Proceedings Before Board or Commission. (1) Request by a former client. A request for investigation filed by an attorney or witness against his or her counsel for alleged misconduct occurring in a disciplinary investigation or proceeding, shall be treated under the procedures set forth in MCR 9.112. (2) Request by person ether than former client. If a person other than the attorney's former client requests an investigation

If the request is for an investigation of an attorney for alleged misconduct committed during the course of that attorney's representation of a respondent or a witness in proceedings before the board or the commission, the procedures in subrule (A) shall be followed. A request for investigation that alleges misconduct of this type may be filed only by the chairperson of the commission, and only if the commission passes a resolution authorizing the filing by the chairperson.

(D) Representation by Commission or Board Member or Employee. A member or employee of the Attorney Grievance Commission or the Attorney Discipline Board and its hearing panels may not represent a respondent in proceedings before the commission, the board, or the Judicial Tenure Commission, including preliminary discussions with employees of the respective commission or board prior to the filing of a request for investigation.

Staff comment: The proposed amendments in this rule would make technical and clarifying changes.

RULE 8.110. CHIEF JUDGE RULE.

(A)-(B) [Unchanged.]

(C) Duties and Powers of Chief Judge.

(1)-(7) [Unchanged.]

(8) Notice to the Attorney Grievance Commission. The chief judge of every judicial and circuit court shall provide to the commission a certified copy of any written opinion or order entered by the court holding a lawyer in contempt or finding that a lawyer has provided incompetent representation or engaged in misconduct that reflects adversely upon the lawyer's fitness to engage in the practice of law.

(D) [Unchanged.]

Staff comment: The proposed change in this rule would require the chief judge of every court to send a certified copy to the AGC of any order or opinion that holds a lawyer in contempt or includes a finding that a lawyer has provided incompetent representation or engaged in misconduct.

RULE 8.120. LAW STUDENTS AND RECENT GRADUATES; PARTICIPATION IN LEGAL AID CLINICS, DEFENDER OFFICES, AND LEGAL TRAINING PROGRAMS.

(A) [Unchanged.]

(B) Legal Training Programs. Law students and recent law graduates may participate in legal training programs organized in the offices of county prosecuting attorneys, county corporation counsel, city attorneys, the Attorney Grievance Commission, and the Attorney General.

(C) [Unchanged.]

(D) Scope; Procedure.

(1)-(3) [Unchanged.]

(4) A law student or graduate serving in a prosecutor's, county corporation counsel's, city attorney's, Attorney Grievance Commission's, or Attorney General's program may be authorized to perform comparable functions and duties assigned by the prosecuting attorney, county attorney, city attorney, Attorney Grievance Commission attorney, or Attorney General, except that

(a) the law student or graduate is subject to the conditions and restrictions of this rule; and

(b) the law student or graduate may not be appointed as an assistant prosecutor, assistant corporation counsel, assistant city attorney, assistant Attorney Grievance Commission attorney, or assistant Attorney General.

Staff comment: The proposed changes in this rule would allow law students and recent law graduates to work in the AGC's offices as they can now for other public service agencies and offices.

The staff comment is not an authoritative construction by the Court.

A copy of this order will be given to the Secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court Clerk in writing or electronically by March 1, 2011, at PO. Box 30052, Lansing, MI 48909, or MSC_clerk courts.mi.gov. All comments will be posted on the Court's website. When filing a comment, please refer to ADM File No. 2006-38.

CORRIGAN, J. I oppose the State Bar of Michigan's proposed amendment of MCR 9.104 (Alternative B). Under Alternative B, the State Bar would circumscribe the existing grounds for attorney discipline and impinge on the Judicial Tenure Commission's ability to discipline judges. By contrast, the Attorney Grievance Commission's cogent proposed amendment of MCR 9.104 (Alternative A) not only lacks the flaws of Alternative B, but it also maintains or in certain cases expands the existing grounds for discipline. Consequently, I support publishing Alternative A for public comment, but I oppose publishing Alternative B at this juncture.

Alternative B provides in pertinent part:

(A) The following acts or omissions by an attorney, individually or in concert with another person, are misconduct and grounds for discipline, whether or not occurring in the course of an attorney-client relationship:
(1) conduct prejudicial to the proper administration of justice; (2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach; (3) conduct that is contrary to justice, ethics, honesty, or good morals; (4) (A) conduct that violates the standards or rules of professional responsibility conduct adopted by the Supreme Court;
(5) conduct that violates a criminal law of a state or of the United States; (6) (B) knowing misrepresentation of any facts or circumstances surrounding a request for investigation or complaint;
(7) (C) failure to answer a request for investigation or complaint in conformity with MCR 9.113 and 9.115(D);
(8) (D) contempt of the board or a hearing panel; or
(9) (E) violation of an order of discipline.

Alternative A provides in pertinent part:
(A) The following acts or omissions by an attorney, individually or in concert with another person, are misconduct and grounds for discipline, whether or not occurring in the course of an attorney-client relationship:
(1) conduct prejudicial to the proper administration of justice;
(2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach;
(3) conduct that is contrary to justice, ethics, honesty, or good morals;
(4) conduct that violates the standards or rules of professional conduct

responsibility adopted by the Supreme Court;
(5) conduct that violates a criminal law of a state or of the United States, an ordinance, or tribal law pursuant to MCR 2.615:
(6) knowing misrepresentation of any facts or circumstances surrounding a request for investigation or complaint;
(7) failure to answer a request for investigation or complaint in conformity with MCR 9.113 and 9.115(D);
(8) contempt of the board or a hearing panel;or
(9) violation of an order of discipline; or
(10) entering into an agreement or attempting to obtain an agreement, that; (a) the professional misconduct or the terms of a settlement of a claim for professional misconduct shall not be reported to the administrator: (b) the plaintiff shall withdraw a request, for investigation or shall not cooperate with the investigation or prosecution of misconduct by the administrator: or (c) the record of any civil action for professional misconduct shall be sealed from review by the administrator. (B) It is also misconduct and a ground for discipline iff through multiple acts and omissions, a lawyer demonstrates the absence of fitness to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and counselor and as an officer of the court. MCR 9.103(A). This is misconduct for which discipline cap be imposed for the protection of the public, the courts. and the legal profession. MCR 9.105. In proceedings brought under this subrule. prior acts and omissions of the lawyer are admissible.

One disconcerting aspect of Alternative B is that it would amend MCR 9.104 to constrict the existing grounds for attorney discipline. The State Bar asserts that Alternative B better aligns the grounds for discipline in MCR 9.104 with MRPC 8.4 and that it encourages attorneys to rely on the rules of professional conduct for information about misconduct. However, the State Bar fails to explain why its sizeable changes are necessary or advisable when it is undisputed that the standards set forth in subchapter 9.100 et seq., "include, but are not limited to, the rules of professional responsibility and the rules of judicial conduct that are adopted by the Supreme Court." MCR 9.103(A). The State Bar also offers no persuasive justification for deleting four grounds for discipline from the current rule. See MCR 9.104(A)(1)-(3), (5). Additionally, the State Bar tends to ignore the practical effect of Alternative B — that is, Alternative B narrows significantly rather than maintains the existing grounds for discipline. For example, one ground for discipline under the current rule is "conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach." MCR 9.104(A)(2). The State Bar proposes deleting this ground for discipline although MRPC 8.4 has no parallel provision. I would not circumscribe the existing grounds for attorney discipline. Insofar as the State Bar supports such efforts, I think that its proposal offends the underlying purpose of disciplinary proceedings, which this Court enacted not "as punishment for wrongdoing, but for the protection of the public, the courts, and the legal f profession." MCR 9.105. 4

Another problematic aspect of Alternative B is the State Bar's apparent failure to consider how its proposal could hinder the Judicial Tenure Commission's ability to discipline judges for lapses in professional conduct identified in the current rule. To the extent that the Judicial Tenure Commission relies on MCR 9.104 as a basis for establishing the grounds for judicial discipline, any proposed amendment of MCR 9.104 will affect the rules governing that body. Therefore, the State Bar's proposal to delete four grounds for discipline from the current rule likely could impinge on the Judicial Tenure Commission's ability to discipline judges under subchapter 9.200 et seq. Nonetheless, the State Bar views any effects of Alternative B on the Judicial Tenure Commission as outside the scope of its inquiry. I question whether the State Bar's willful disinterest in considering the practical effects of Alternative B on the Judicial Tenure Commission embodies a serious effort to draft the proposed amendment of MCR 9.104 that best protects "the public, the courts, and the legal profession" in accordance with MCR 9.105. At a minimum, I would instruct the State Bar to carefully deliberate about the potential impact of its proposal on the Judicial Tenure Commission and address any drafting deficiencies before publishing Alternative B for public comment.

Accordingly, I oppose the inclusion of Alternative B in the Court's order regarding the proposed amendment of MCR 9.104. I would publish Alternative A only.