COMMENTARY: Attorney general's criticism of Michigan's AGC was unwarranted

By Alan Gershel

The following comments are in response to the recent article in The Detroit Free Press, wherein Michigan Attorney General Dana Nessel stated the Attorney Grievance Commission (AGC) has mishandled cases involving attorneys who are facing criminal charges.

I served as the Grievance Administrator from 2014 until 2019. During that time there were cases involving attorneys who were facing pending criminal trials. The practice was to ordinarily wait until the criminal proceedings were completed. There are several sound prosecutorial reasons for this policy.

First, in most cases it’s the same evidence that is being sought by both the AGC and the law enforcement agency charged with investigating the matter. This not only creates a potential issue regarding possession of the evidence, but also could create a chain of custody problem. In some situations, such as a federal grand jury investigation, the AGC is precluded from seeing it because of secrecy rules pertaining to grand jury investigations.

Similarly, both agencies are often interested in the same witnesses. As any prosecutor knows, the more times a witness is interviewed, the greater the likelihood there will be some inconsistent statements no matter how well intentioned the witness. These discrepancies must be turned over to defense counsel and can have an adverse impact on the case. In addition, it would not be unusual for a witness in an AGC investigation to refuse to testify and invoke the Fifth Amendment guarantee against self-incrimination if there is a potential for exposure in a parallel criminal investigation.

This is especially true of an attorney who is the subject of both an AGC and law enforcement investigation. Ordinarily an attorney under investigation solely by the AGC will sit for an interview. It would be foolhardy to do so knowing there is an ongoing criminal investigation. Thus, the AGC loses the benefit that may flow from an interview. If the attorney is convicted of a felony offense, the Michigan Rules of Professional Responsibility mandate an immediate suspension until the disciplinary matter is completed.

It would have been a better display of professionalism for the Attorney General to have met with the Grievance Administrator to discuss her concerns. I understand that she has been given multiple opportunities to do so but for some inexplicable reason believes her concerns are better addressed in the court of public opinion than with the entity she is criticizing.

Finally, it is important to note that the Attorney General’s Office represents the AGC in various legal matters. Her criticism of the agency creates a potential conflict of interest regarding future representation.
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Alan Gershel is a former federal prosecutor and law school professor who retired in 2019 after heading the Attorney Grievance Commission for 5 years.