Rule 9.114 Action by Administrator or Commission After Answer

(A) Action After Investigation. After an answer is filed or the time for filing an answer has expired, the administrator may

(1) dismiss the request for investigation and notify the complainant and the respondent of the reasons for the dismissal,

(2) conduct further investigation. Upon completion of the investigation, the grievance administrator shall refer the matter to the commission for its review. The commission may direct that a complaint be filed, that the file be closed, that the respondent be admonished or placed on contractual probation with the respondent’s consent, or

(3)   close a file administratively where warranted under the circumstances.

(B)   Admonition. With a respondent’s consent, a respondent may be admonished by the commission without filing a complaint. An admonition does not constitute discipline and shall be confidential except as provided by this rule, MCR 9.115(J)(3) and by MCR 9.126(D)(4).

(1)   The administrator shall notify the respondent of the provisions of this rule by ordinary mail at the respondent’s address on file with the state bar as required by Rule 2 of the Supreme Court Rules Concerning the State Bar of Michigan, or as otherwise directed by respondent.

(2)   The respondent may, within 21 days of service of the admonition or such additional time as permitted by the administrator, notify the commission in writing that respondent objects to the admonition. Upon timely receipt of the written objection, the commission shall vacate the admonition and either dismiss the request for investigation or authorize the filing of a complaint. Failure of a respondent to object constitutes an acceptance.

(C) Contractual Probation. For purposes of this subrule, “contractual probation” means the placement of a consenting respondent on probation by the commission, without the filing of formal charges. Contractual probation does not constitute discipline, and shall be confidential under MCR 9.126 except as provided by MCR 9.115(J)(3).

(1) If the commission finds that the alleged misconduct, if proven, would not result in disbarment or a substantial suspension of a respondent’s license to practice law, the commission may defer disposition of the matter and place the respondent on contractual probation for a period not to exceed three years, provided the following criteria are met:

(a) the misconduct is significantly related to respondent’s substance abuse problem, or mental or physical infirmity or disability,

(b) the terms and conditions of the contractual probation, which shall include an appropriate period of treatment, are agreed upon by the commission and the respondent, and

(c) the commission determines that contractual probation is appropriate and in the best interests of the public, the courts, the legal profession, and the respondent.

(2)   A contractual probation may include one or more of these requirements:

(a)   Periodic alcohol or drug testing.

(b)   Attendance at support-group or comparable meetings.

(c)   Professional counseling on a regular basis.

(d)   An initial written diagnosis and prognosis by the provider followed by quarterly verification of treatment by the provider as agreed upon by the commission and the respondent. The provider shall notify the commission of any failure to adhere to the treatment plan.

(3) The respondent is responsible for any costs associated with the contractual probation and related treatment.

(4) Upon written notice to the respondent and an opportunity to file written objections, the commission may terminate the contractual probation and file disciplinary proceedings or take other appropriate action based on the misconduct, if

(a) the respondent fails to satisfactorily complete the terms and conditions of the contractual probation, or

(b) the commission concludes that the respondent has committed other misconduct that warrants the filing of a formal complaint.

(5) The placing of a respondent on contractual probation shall constitute a final disposition that entitles the complainant to notice in accordance with MCR 9.114(D), and to file an action in accordance with MCR 9.122(A)(2).

(D) Assistance of Law Enforcement Agencies. The administrator may request a law enforcement office to assist in an investigation by furnishing all available information about the respondent. Law enforcement officers are requested to comply promptly with each request.

(E)   Assistance of Courts. If the grievance administrator determines that a nonpublic court file exists, including files on expunged convictions, and that it is relevant to a pending investigation concerning a respondent attorney, the administrator may request that a court release to the Attorney Grievance Commission the nonpublic court file. Courts are requested to comply promptly with each request.

(F) Report by Administrator. The administrator shall inform the complainant and, if the respondent answered, the respondent, of the final disposition of every request for investigation.

(G) Retention of Records. All files and records relating to allegations of misconduct by an attorney must be retained by the commission for the lifetime of the attorney, except as follows:

(1)   Where 3 years have passed from the conclusion of formal disciplinary action or the issuance of an admonishment, nonessential documents may be discarded.

(2) The administrator may destroy the files or records relating to a closed or dismissed request for investigation after 3 years have elapsed from the date of dismissal or closing.

(3) If no request for investigation was pending when the files or records were created or acquired, and no related request for investigation was filed subsequently, the administrator may destroy the files or records after 1 year has elapsed from the date when they were created or acquired by the commission.