State Bar v. Lewis

394 Mich. 224 (1975)

229 N.W.2d 316

STATE BAR GRIEVANCE ADMINISTRATOR v. LEWIS

Docket No. 56046, (Calendar No. 6).

Supreme Court of Michigan.

Argued January 8, 1975.

Decided May 27, 1975.

Eugene N. LaBelle, for the State Bar Grievance Administrator.

Stuart J. Dunnings, Jr., and Alphonse Lewis, Jr., in propria persona, for respondent.

Decided May 27, 1975. Rehearing denied 395 Mich 902.

T.G. KAVANAGH, C.J.

Respondent was ordered suspended from the practice of law for 130 days as a discipline for violation of 68A Stat 851-852 (1954), 26 USCA 7203 willful failure to file an income tax return. His conviction of that offense was based upon his plea of nolo contendere.

The hearing panel's order provided that respondent should be given 40 days credit against the 130-day suspension upon application for reinstatement. The State Bar Grievance Board affirmed the panel's finding and order of suspension, but removed the provision for credit.

This appeal makes six assertions of error:

I. Former § 15.17 of the Procedural and Administrative Rules of the State Bar Grievance Board[1] does not apply to a Federal misdemeanor.

II. A plea of nolo contendere may not be treated as an admission of conduct.

III. Discipline for a first offender for violation of a statute not previously construed is fundamentally unfair.

*227 IV. The hearing panel's conclusion that conviction of a misdemeanor is proof of misconduct proscribed in State Bar Rule 15, § 2, subsections (1), (2) and (3), is not supported by the record, for the question was neither raised nor argued.

V. The hearing panel erred in requiring corroboration of respondent's testimony.

VI. The evidence produced by respondent amounted to mitigation as a matter of law which absolved respondent.

We find no error warranting disturbance of the Grievance Board's conclusion.

State Bar Grievance Administrator v Lewis, 389 Mich 668; 209 NW2d 203 (1973), controls disposition of most of the assignments of error.

Rule 16.17, which authorizes sanctions for conviction of crimes punishable by imprisonment for one year or more, embraces Federal misdemeanors such as this 26 USCA 7203 which authorizes imprisonment for one year, and accordingly we find no merit in respondent's first assertion of error.

State Bar Rule 15, § 2(5), provides for sanction of conduct resulting in conviction without regard to whether the conviction resulted from trial or plea. As we held in Lewis, supra, there is no merit in this, respondent's second charge of error.

Regarding respondent's third assertion, we are not convinced of unfairness in a procedure allowing for discipline of even a first offender for there has to be some beginning. A prior spotless record and the fact (conceded arguendo) that no one else had been punished for violation of a particular statute are matters to be weighed in assessing the penalty. We do not find the sanction here excessive.

Whether or not the conviction is proof of misconduct as argued in the fourth assertion, Rule 15, *228 § 2(5), as stated above, authorizes sanction for the conviction, so that any error on this point is harmless. See Lewis, supra.

The fifth and sixth charges of error both touch on the evidence of mitigation and the weight assigned it by the hearing panel.

We see no rulings of law with regard to this in the panel's conclusion, but rather the expression of a lack of persuasion by whatever evidence was offered. This is the fact finder's privilege.

From our examination of the whole record, we are not persuaded that the proceedings were erroneous or the penalty undue. But because the Grievance Board has failed to articulate its reasons for increasing the penalty imposed by the hearing panel, we restore the credit for 40 days suspension removed by the Grievance Board, lest we be seen to approve a practice bound to discourage appeals granted as a matter of right. State Bar Grievance Administrator v Gillette, 394 Mich 1; 228 NW2d 220 (1975).

Affirmed as modified. No costs.

WILLIAMS, LEVIN, M.S. COLEMAN, and J.W. FITZGERALD, JJ., concurred with T.G. KAVANAGH, C.J.

SWAINSON, J., and the late Justice T.M. KAVANAGH took no part in the decision of this case.

[1] Former State Bar Rule 15, which these rules supplement, was renumbered as Rule 16 on January 12, 1972, 386 Mich lxxiii. The procedural rule formerly numbered § 15.17 is now § 16.17 REPORTER.