Opinions and Orders

STATE OF MICHIGAN Attorney Discipline Board

fiLED AHORNEY DISCIPLINE BOARD ,It APR -3 PH 3: 11

Grievance Administrator, Petitioner/Appellee,

v Daniel L. Mercier, P 72620, Respondent!A ppellant, Case No. 11-24-GA Decided: April 3, 2014 Appearances: Frances A. Rosinski, for the Grievance Administrator, Petitioner/Appellee Daniel L. Mercier, In Pro Per, for the Respondent/Appellant (brief on review) and, Philip J. Thomas, for the Respondent/Appellant (at argument)

BOARD OPINION Tri-County Hearing Panel #67 found that respondent, while he was an applicant for admission to the State Bar ofMichigan, failed to update his affidavit ofpersonal history in support ofhis application, thereby violating MRPC 8.1 (b)(2) (continuing obligation to assure truthfulness ofaffidavit accompanying bar application) and MRPC 8.4(b ) (dishonest conduct), among other rules. The panel issued an order of disbarment in this matter, and respondent has petitioned for review. The Attorney Discipline Board has conducted review proceedings in accordance with MCR 9.118. For the reasons discussed below, we will modify the discipline imposed by the panel and order that respondent's license to practice law in Michigan be suspended for three years. Respondent graduated from law school in Florida in 1998 and sought admission to practice law in Michigan. In 2001, respondent was denied admission to the Michigan bar by the Board of Law Examiners. In March of2006, respondent again sought admission to practice law in Michigan. As part of the application process, respondent was required, as are all applicants, to acknowledge in his own handwriting that he had a continuing obligation to immediately inform the Standing

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Committee on Character and Fitness ifany ofthe answers in his personal history affidavit included with his application to the bar ceased to be true. 1 On April 6, 2007, respondent was found by the Standing Committee on Character and Fitness to have the requisite character and fitness for admission to the Michigan bar, subject to passing the Michigan Bar Examination. In July of2008, respondent took the bar examination, but learned in November of 2008 that he had failed the examination. In February of 2009, respondent took the bar examination again, and subsequently passed. On May 26,2009, respondent was sworn in. On June 1,2009, he was assigned a bar license number (P number) by the State Bar of Michigan. The Grievance Administrator filed a formal complaint against respondent in which it was alleged that he intentionally failed to inform the State Bar of Michigan's Standing Committee on Character and Fitness (the State Bar) ofcriminal charges originating from the City ofGrosse Pointe on April 30, 2009, and a personal protection order that was served on him on May 27, 2009. It was further alleged that respondent's failure to do so constituted "a misrepresentation by omission of relevant information," engaged in by respondent so that he could obtain admission to the State Bar ofMichigan. The formal complaint specifically charged violations of MRPC 8.1 (b )(2), 2 8.4(a ), and 8.4(b), and MCR 9.104(A)(2)-(4).3 Respondent filed an answer to the complaint denying the allegations ofmisconduct. The Grievance Administrator filed a first amended formal complaint which alleged that, in addition to the two matters referenced in the original formal complaint, respondent also received a citation on January 15, 2009, for failing to stop and identify himself at the scene of a property

1 Applicants are required to acknowledge, in their own handwriting, the following: "The answers in this affidavit are to be considered as continuing to be true from the date ofthis affidavit until the date ofmy admission to the State BarofMichigan, and ifany answer or portion ofan answer ceases to be true, I acknowledge that I have a continuing obligation to inform and I will immediately inform the Standing Committee on Character and Fitness."

2 8.1 (b) An applicant for admission to the bar * * * (2) has a continuing obligation, until the date ofadmission, to inform the standing committee on character and fitness, in writing, ifany answers in the applicant's affidavit ofpersonal history change or cease to be true.

3 MCR 9.104 was subsequently amended in 2011, after the formal complaint in this matter was filed, to eliminate the "(A)."

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damage accident and for careless driving. Again, it was alleged that respondent violated the foregoing rules by intentionally failing to inform the State Bar ofthe criminal charges and personal protection order in order to obtain admission to the State Bar of Michigan, thus committing "a misrepresentation by omission of relevant information." Respondent's amended answer admitted the factual statements, but indicated that, for an approximate six month time period when the three incidents occurred, he was "going through personal problems including his impairment from the use of alcohol," and that he "did not make a conscious decision, or act intentionally in failing to report the incidents." At the August 29, 2011 hearing, respondent acknowledged the admissions made in his amended answer and admitted to violating MRPC 8. 1( b)(2) and 8.4(a) and (b). With regard to MRPC 8.4(b), respondent admitted that there was a misrepresentation by omission of relevant information, but denied that he had any intent to violate the provisions of the mle. (Tr 8/29/11, pp 29-30,32.) Following arguments and briefing as to the appropriate sanction, the panel ordered disbarment. Respondent petitioned the Attorney Discipline Board for review ofthe hearing panel's order, arguing that the panel erred in making various evidentiary rulings and in ordering disbarment. The Grievance Administrator's reply brief argues for affirmance on the grounds that there was proper evidentiary support for the panel's findings offact and misconduct; that the panel properly exercised its discretion in making evidentiary rulings; and that the panel appropriately applied the ABA Standards to deternline that disbarment was the appropriate discipline to impose. I. Hearing Panel Rulings. A trial court's decision to admit evidence is discretionary and will not be disturbed "absent a clear abuse ofdiscretion." People vAldrich, 246 MichApp 101, 113;631 NW2d67 (2001). "An abuse ofdiscretion occurs when the [trial] court chooses an outcome that falls outside the range of reasonable and principled outcomes." People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). If a trial court admits evidence that as a matter of law is inadmissible, it abuses its discretion. Id. A trial court's decision on a close evidentiary question, however, cannot be an abuse ofdiscretion. People v Sabin (After Remand), 463 Mich 43, 67; 614 NW2d 888 (2000). Claims of

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error as to rulings excluding evidence must be preserved by an offer ofproof. MRE 103(a) (2). And, to require reversal, any error must not be harmless. MCR 9.107(A); MCR 2.613(A).4 Respondent contends that the panel erred in sustaining the Administrator's objections to testimony supporting respondent's assertion that MCR 9.121(C) applied here.5 The panel upheld the Grievance Administrator's objections and did not allow further testimony because respondent could not show, as required by MCR 9.121(C)(1)(a), that during the period when the conduct that is the subject of the complaint occurred, respondent's "ability to practice law competently was materially impaired." (Tr 5124/12, pp 98-100.) The Administrator also argued that the testimony ofMolly Dean, a clinical counselor with the State Bar ofMichigan' s Lawyers and Judges Assistance Program (LJAP), would not establish this point because Ms. Dean had not met respondent prior to August 2011 when his alcohol dependency was assessed before he entered into a two year treatment contract with LJAP. (Tr 5/24/12, pp 79, 103-105.) The conduct that is the subject ofthe complaint in this matter, respondent's failure to update his affidavit to disclose the events ofearly 2009, clearly occurred during a time when respondent was an applicant to the bar, not a practicing lawyer. The panel's decision to follow the plain language of the rule and deny respondent's use ofMCR 9.121(C) was not an abuse of discretion. And it certainly was not a violation of due process, as respondent suggests in comparing the applicability

4 MCR 2.613(A) provides, in relevant part: "An error in the admission or the exclusion ofevidence...is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing ajudgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice."

5 MCR 9.121provides the following: (C) Assertion ofImpaired Ability; Probation (1) If, in response to a formal complaint filed under subrule 9 .1IS(B), the respondent asserts in mitigation and thereafter demonstrates by a preponderance of the evidence that

(a) during the period when the conduct that is the subject ofthe complaint occurred, his or her ability to practice law competently was materially impaired by physical or mental disability or by drug or alcohol addiction, (b) the impairment was the cause ofor substantially contributed to that conduct, (c) the cause ofthe impairment is susceptible to treatment, and (d) he or she in good faith intends to undergo treatment, and submits a detailed plan for such treatment, the hearing panel, the board, or the Supreme Court may enter an order placing the respondent on probation for a specific period not to exceed 3 years if it specifically finds that an order ofprobation is not contrary to the public interest.

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ofMRPC 8.1 to the inapplicability ofMCR 9.121. While it may seem incongruous to apply one and not the other, respondent's argument makes the very point that rules of professional conduct and rules of procedure to enforce them ordinarily do not apply to applicants for admission to the bar. MRPC 8.1(b) is an exception because of its specific and unique wording. In any event, respondent did not make an offer of proofbelow or persuasive argument on review that probation under MCR 9.121(C) would be available or appropriate. A central issue in this case was respondent's state ofmind during the period when he failed to update his affidavit. Respondent was not precluded from arguing that he did not knowingly or intentionally fail to update his application. Indeed, he characterized his own testimony in a sanctions brief as follows: "he never really made a conscious decision to not report his court cases to Character and Fitness, it just wasn't something that he thought about." After noting respondent's admission that he violated MRPC 8.1 (b )(2) and 8A(a) and (b), the panel made the following findings: Here, respondent has violated his duties to the public (ABA Standard 5.0) and to the profession (ABA Standard 7.0) by admittedly engaging in a misrepresentation by omission by failing to inform the Standing Committee that, prior to his date of admission to the State Bar of Michigan, he had been charged with two separate misdemeanors rendering his Personal History Affidavit no longer true and accurate. The panel also finds that respondent intentionally and knowingly failed to update his Personal History Affidavit with the intent and hope that he would finally obtain his law license. Respondent stipulated that he had full knowledge of the fact that he was required to supplement his Personal History Affidavit and, indeed, previously supplemented his original Personal History Affidavit. (Tr 08129/11, pp 61-62). Respondent also admitted that he knew ifhe were arrested it would hurt his ability to be admitted to the practice of law. (Tr OS/24112, p 59.) Testimony revealed that, in 2009, respondent had nothing - no income, no law license and no prospects. (Tr OS/24/12, p 209.) [HP Report, p 3; emphasis in origina1.]

The Administrator introduced significant evidence to support the theory that respondent was cognizant ofmany things during the relevant period, and that such awareness and high functioning ofrespondent in those instances would be inconsistent with claims that he was unaware ofhis failure

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to update his affidavit or of his duty to do so. The panel noted that the evidence to sustain such a finding included respondent's own testimony: Q. But you knew when you were worried about being thrown in jail that if you were arrested and thrown injail it was going to hurt your ability to be admitted to the practice oflaw, and you told your friends that? And your acquaintances?

A. I know that a lot of things crossed my mind. Q. That's a yes-or-no answer. CHAIRPERSON GRAMZOW: Please answer yes or no, Mr. Mercier.

A. I knew. BY MS. ROSINSKI: Q. That you told your friends and acquaintances that if you were arrested, it was going to affect your ability to be licensed in the state of Michigan?

A. I may have said something like that. [Tr 5/24/2012, pp 59-60.] Finally, although precluded from eliciting further testimony regarding the elements ofMCR 9.121(C), respondent was not precluded from introducing mitigating evidence, such as testimony to support the elements ofABA Standard 9.32(i),6 and respondent did elicit testimony to the effect that he was getting the appropriate treatment for his addiction. (Tr 5/24112, p 115.) Respondent also argues that the panel committed a "highly prejudicial error" in denying him the right to present character witnesses pursuant to MRE 608.7 Susan Hubbard had a child with

6 ABA Standard 9.32(i) provides that mental disability or chemical dependency including alcoholism or drug abuse can be considered in mitigation when:

(1) there is medical evidence that the respondent is affected by a chemical dependency ormental disability; (2) the chemical dependency or mental dependency caused the misconduct; (3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and, (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.

7 MRE 608 provides, in relevant part: "(a) Opinion and reputation evidence ofcharacter. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these

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respondent and represented him during character and fitness proceedings. She testified that she met respondent in 1999 when she was a defense attorney in the Wayne County Juvenile Court and respondent was a student prosecutor. (Tr 5/24/12, p 156.) Ms. Hubbard and respondent had a daughter together who was born in January of2001. She had never known respondent to drink alcohol until she saw him drinking wine on a few occasions in 2008 and 2009. (Tr 5/24112, pp. 159­ 160, 162, 179, 206.) At the time, she believed respondent was on a "downward spiral" and becoming self-destructive because his house was in foreclosure, he was eventually evicted, was living with his grandparents, and was bitter about the whole process of trying to get licensed. (Tr 5/24112,pp 163, 176, 180,208-209.) In Mayof2009, a series ofpositive events occurred including passing the bar examination that got respondent "back on track." (Tr 5/24/12, p 177.) Ms. Hubbard testified that after respondent stopped drinking she had no hesitation in co-parenting with respondent or entrusting her daughter to his care, and recited various positive attributes regarding his parenting. When specifically asked whether she had an opinion about respondent's character for truthfulness and honesty when he is not drinking as opposed to when he is using alcohol, the panel sustained an objection by the Administrator on the grounds that respondent's character for truthfulness or untruthfulness had not been attacked. (Tr 5/24/12, pp 170-171, 198-200.) Respondent's claim that the panel erred in excluding testimony from various witnesses regarding his character for truthfulness lacks merit for several reasons. First, based on the arguments and citations to the record and law in respondent's brief on review, it has not been shown that the panel abused its discretion in applying MRE 608. Further, as to character witnesses generally, none ofthe other witnesses subsequently referred to by respondent as such were on respondent's amended witness list, and after careful consideration the panel limited respondent to the listed witnesses with the exception of Ms. Dean. (Tr 5/24112, pp 147-148, 150.) We find no error or unfairness in this decision. Finally, respondent waived the right to call additional witnesses. (Brief in Support of Respondent's Answer to Grievance Administrator's Motion to Strike Witness Thomas C. Fitzpatrick, pp 1,4.)8

limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character ofthe witness for truthfulness has been attacked by opinion or reputation evidence or otherwise."

8 Respondent has attempted, in June and October of2013, to supplement this record with affidavits of Ms. Hubbard attesting to respondent's excellent reputation, to comments by the Chairperson of the Standing

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Finally, as the Administrator's briefa sserts: "Respondent belatedly argues that MRPC 8A(a) and (b) do not apply to him because he was an applicant to the Bar, not a lawyer, at the time he engaged in the conduct at issue." Although respondent may have a point, we need not decide this issue.9 The Administrator also contends that respondent's violation ofMRPC 8.1 (b)(2) warrants the discipline imposed by the panel. We are ofthe opinion that the presence or absence ofa conclusion that respondent violated MRPC 8.4(a) and (b) does not change the calculus with regard to the appropriate level ofdiscipline in this case. In summary, none of respondent's claims of error require reversal or modification of the panel's findings with regard to misconduct. II. Level of Discipline. In accordance with the holding ofGrievance Administrator vLopatin, 462 Mich 235 (2000), the Board and its hearing panels follow the American Bar Association (ABA) Standards for Imposing Lawyer Sanctions (Standards) in determining the appropriate level ofdiscipline to impose when misconduct has been established. Also, under Lopatin, it is the Board's duty on review to assure consistency, continuity and proportionality in discipline, taking into account the Standards and factors including precedent and the particular circumstances of the case. See, e.g., Grievance Administrator v Kathy Lynn Henry, 09-107-JC (ADB 2010), Grievance Administrator v Albert J. Dib, 02-78-GA (ADB 2007), and Grievance Administrator v Ralph E. Musil/i, 98-216-GA (ADB 2000). In applying the Standards, panels start by examining the factors set forth in ABA Standard 3.0 -the duty violated, the lawyer's mental state, injury caused- to help select applicable standards recommending generally appropriate discipline. The panel in this matter did so, and focused on

Committee on Character and Fitness leaving her "with the clear impression" that respondent had no further duty to update his affidavit ofpersonal history, and that "there was no intent on Mr. Mercier's part to violate any rules." The affidavit also revisits some ofher testimony before the panel. We find no good cause to consider this attempt to enlarge the record, and the contents have not, therefore, been considered by this body in making this decision. Additionally, testimony consistent with the affidavit (such as testimony as to respondent's state of mind, or a committee member's asserted utterance ostensibly at variance with MRPC 8.1 or the terms ofthe Bar application) would almost certainly not be admissible or persuasive in any event.

9 See, Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics: The Lawyer's Deskbookon Professional Responsibility 2013-2014, §8.l-1(a), pp 1278-1279 (Noting that Model Rule 8.1 is an exception to the following axiom: "The Model Rules, in general, do not govern nonlawyers.").

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ABA Standards 5.0 and 7.0. The panel also referenced only the failure to update the application as to the two misdemeanor charges: Here, respondent has violated his duties to the public (ABA Standard 5.0) and to the profession (ABA Standard 7.0) by admittedly engaging in a misrepresentation by omission by failing to inform the Standing Committee, that prior to his date of admission to the State Bar of Michigan, he had been charged with two separate misdemeanors rendering his Personal History Affidavit no longer true and accurate. [HP Report 1122/13, p 3. Emphasis added.]

The allegations regarding failure to inform the State Bar of the personal protection order (PPO) served upon respondent on May 27, 2009 were not referenced in the panel's report. Respondent argues that this is appropriately excluded from the findings of misconduct for which sanctions are to be imposed because he did not have a duty to report a PPO "that was issued without a hearing and without notice to respondent" and served upon him ''the day after he was sworn-in as a lawyer." It appears that the hearing panel did not include this among the acts ofmisconduct for which discipline was imposed. MRPC 8.1 (b )(2) provides that "an applicant for admission to the bar has a continuing obligation, until the date ofadmission, to inform the standing committee on character and fitness, in writing, ifany answers in the applicant's affidavit ofpersonal history change or cease to be true" (emphasis added). The amended formal complaint references not only the January and April 2009 incidents (the Birmingham and Grosse Pointe incidents), but also the PPO issued against respondent in May of2009. Our review ofRule 15, Sec. 3 (1) and (2)10 ofthe Rules Concerning the State Bar, calls into question whether respondent had a duty to update his affidavit to disclose the issuance of this PPO. Respondent's admission was moved and he took his oath on May 26, 2009. (Tr 8/29/11, pp 139-140.) Therefore, respondent was admitted to the bar ofthis State, pursuant to the provisions ofRule 15 of the Rules Concerning the State Bar, on May 26,2009. It was not until the next day,

to Rule 15, Sec. 3 states, in relevant part: "(1) Each applicant to whom a certificate of qualification has been issued by the Board of Law Examiners is required to appear personally and present such certificate to the Supreme Court or one ofthe circuit courts of this State. Upon motion made in open court by an active member of the State Bar ofMichigan, the court may enter an order admitting such applicant to the bar ofthis State. The clerk of such court is required to administer to such applicant in open court the following oath of office. .. (2) The applicant is required to subscribe to such oath of office by signing a copy and to register membership in the State Bar of Michigan in the manner prescribed in Rule 2 of these rules and to pay the required dues before practicing law in this State."

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May 27,2009, that respondent received actual notice ofthe personal protection order issued by the Wayne County Circuit Court. The affidavit ofpersonal history was not admitted into evidence (and the Administrator does not contest this ruling on review). Perhaps, in light ofthe lack of detail in the record regarding respondent's asserted duty to update his affidavit with respect to the PPO, the panel did not consider this as a basis for misconduct, or at least did not consider it one which constituted a clear violation of the rules warranting adjustment of the sanction to be imposed for failing to disclose the two criminal charges notwithstanding respondent's pleadings and briefing belowY In assessing which ofthe ABA Standards afford appropriate guidance here, the panel noted the discussion in the commentary to Standard 7.1, which cites In Re W Jason Mitan, 75 I112d 118; 387NE2d278 (1979), certden444 US 916 (1979). There, the respondent was disbarred for making false statements and deliberately failing to disclose certain information on his bar application. The Administrator relies on Mitan, while respondent distinguishes it, noting that respondent Mitan was found to have made several false statements in addition to failing to disclose a felony conviction. Here, respondent argues that he "is not charged with making false statements or concealing information on his 2/28/06 bar application. Rather, he was charged with failing to update his application three years after completing it, before being sworn in as an attorney, to include two misdemeanor charges that were later dismissed." The black letter language ofStandard 7.1 contemplates disbarment when "a duty owed as a professional" is knowingly violated with the intent to obtain a benefit and causes "serious or potentially serious injury to a client, the public, or the legal system.,,12 The panel below found that "no evidence exists to establish actual injury in this case," but that potential injury may be inferred. The hearing panel then applied Standard 7.1 rather than Standard 7.2 (suspension).