COMMENTARY: Public deserves protection from unscrupulous attorneys

By Dana Nessel

I am writing in response to the opinion piece posted in the Oakland County Legal News on August 29, 2023, in which former Grievance Administrator Alan Gershel criticized me for my comments regarding the Attorney Grievance Commission’s (AGC) handling of certain attorney grievances.

To begin, it is important to correct some misstatements in Mr. Gershel’s piece. I note that neither Mr. Gershel nor the Legal News reached out to me or my office before the piece was published. And when my office reached out to Mr. Gershel to inform him of the errors and give him a chance to correct the record, he declined to respond.

Mr. Gershel says that he understands that I had “been given multiple opportunities to” meet with the grievance administrator to discuss my concerns. While this might be Mr. Gershel’s “understanding,” it would have been better for him to confirm whether his understanding was correct — and that could have been easily done here. Yet, the grievance administrator has never reached out to me to discuss my concerns with the handling of attorney grievances, including the three cases for which I am one of the grievants. It is ironic and unfortunate that, in discussing these cases of attorneys spreading false allegations without confirming whether they are true, Mr. Gershel committed the same error.

Mr. Gershel also asserted that my criticism of the AGC “creates a potential conflict of interest regarding future representation.” I am disappointed that Mr. Gershel, as a former expert in attorney ethics, was not more careful in levelling such accusations. Had he looked into the matter, he could have learned that my office frequently uses mechanisms like conflict walls and isolation walls in order to provide zealous, conflict-free representation of our many state clients, including the Attorney Grievance Commission. There is no conflict presented here. The fact that my department employs attorneys who represent the AGC does not bar me from carrying out my duty of speaking publicly about matters of public concern.

Turning to the substance of Mr. Gershel’s response, he misses the point. Of course, there are potential pitfalls when two agencies are investigating the same subject. As Michigan’s chief law enforcement officer, I am acutely aware of this. But in this instance my concern is protection of the public and the fact that these attorneys are able to continue to misuse their law licenses while both criminal and ethical investigations are pending — a privilege Michigan extends to no other regulated profession. When there is evidence that your dentist or your hairdresser has committed misconduct, there is a swift interim suspension to protect patients or clients from further misconduct. But the attorneys now under investigation are allowed to abuse their law licenses to further attempt to undermine democracy while years-long investigations play themselves out. Michiganders deserve better protection than this.

Mr. Gershel points out that the Michigan Rules of Professional Responsibility mandate the suspension of an attorney who is convicted of a felony. While that is certainly a start, it is not enough. And Mr. Gershel fails to point out that further remedy is within the purview of the AGC itself. Indeed, under the Michigan Court Rules, the AGC can seek an injunction from the Michigan Supreme Court against an attorney’s law license “when prompt action is required.” For these attorneys, prompt action is required.

These attorneys have used their law licenses to seek to undermine our very system of government, by sowing distrust in democracy itself. They have done so by filing lawsuits completely ungrounded in law or fact, calculated to lend legitimacy to their conspiracy theories. And some of these attorneys continue to misuse their law licenses, in Michigan and elsewhere, to continue this dangerous mission — despite being charged with, or even bound over on, felony charges that are directly related to this professional misconduct. Even without awaiting a felony conviction, our Supreme Court has empowered the AGC to act to protect the public by seeking an injunction. It must do so.
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A former criminal prosecutor and civil rights attorney, Dana Nessel was sworn in as Michigan’s 54th Attorney General on January 1, 2019. She is a graduate of the University of Michigan and Wayne State University Law School.