STATE OF MICHIGAN BEFORE THE JUDICIAL TENURE COMMISSION IN RE HON. J. CEDRIC SIMPSON, Respondent. JTC Formal Complaint #96 Hon. Peter D. Houk, Master RESPONDENT S MOTION TO DISQUALIFY EXAMINER AND JTC STAFF Now comes Hon. J. Cedric Simpson, Respondent herein, by and through his attorneys, Kenneth M. Mogill and Erica N. Lemanski, and moves the Master for an Order disqualifying Paul J. Fischer and Margaret N. S. Rynier and all other staff members of the Judicial Tenure Commission from prosecuting this matter further for the following reasons: 1. On August 31, 2015, the Commission issued its Decision and Recommendation in this matter. On October 27, 2015, Respondent timely petitioned the Michigan Supreme Court to reject or, in the alternative, to modify the Commission s recommendation. 2. Also on October 27, 2015, Respondent moved in the Supreme Court to remand the matter to the Commission for further proceedings because Respondent had learned that the Examiner had failed to disclose to him prior to the trial in this matter material to which he was entitled pursuant to MCR 9.208(C)(1)(a)(ii). 3. On December 23, 2015, the Supreme Court granted Respondent s motion, directing that, on remand, the Commission shall consider the information that the respondent has obtained and that was in the possession of the JTC Examiner before the hearing in this matter, but was not made available to the respondent for inspection or copying, see MCR 9.208(C)(1)(a)(ii). 4. On January 11, 2016, the Commission, in turn, remanded the matter to the Master for consideration of the evidence at issue and for a determination of whether the evidence would alter his findings in this matter. We further remand this matter to the
Master for a determination of how the non-disclosure occurred and the reasons for the non-disclosure. The Master may supplement the record with further testimony as to all issues contained in this Statement on Remand as he deems it appropriate. (emphasis added). 5. The Master has now scheduled an evidentiary hearing in this matter for February 29, 2016. 6. Because the Commission s remand order requires the Master to determine how the nondisclosure occurred and the reasons for the non-disclosure, Paul J. Fischer and Margaret N. S. Rynier, the attorneys responsible for investigating and prosecuting this matter, and all other Commission staff attorneys must be disqualified from prosecuting this matter further for the following reasons, as more fully addressed below: a. Mr. Fischer and Ms. Rynier are now necessary witnesses in this matter; b. Mr. Fischer and Ms. Rynier now each have a personal conflict of interest; c. Disqualification of Mr. Fischer and Ms. Rynier is required in order to avoid both unfairness and the appearance of unfairness; and d. Given Mr. Fischer s supervisory role in his office, disqualification of all attorneys in the office is required to avoid both unfairness and the appearance of unfairness. 7. As a result of the remand order, Mr. Fischer and Ms. Rynier are necessary witnesses at the evidentiary hearing. Indeed, it would be virtually impossible for the Master to determine how the non-disclosure occurred and the reasons for the non-disclosure without the testimony of both Mr. Fischer and Ms. Rynier. The undersigned counsel has previously advised both the Master and Mr. Fischer that he will call both of them as witnesses at the hearing, and each should expect to be questioned, inter alia, as to their involvement in the process of reviewing material potentially subject to disclosure, how decisions as to disclosure and non-disclosure were made in this case, steps taken 2
in general and in this case to ensure that the requirements of MCR 9.208(C)(1)(a)(ii) are satisfied, their communications with each other as to disclosure and non-disclosure in this matter, and their communications with others as to what material should and should not be disclosed to Respondent. It is well-settled that a prosecutor is disqualified from prosecuting a matter in which he or she will be a necessary witness. People v Tesen, 276 Mich App 134, 135 (2007) (prosecutor who had conducted forensic interview of alleged victim disqualified as a necessary witness despite availability of five others who had been present during the interview); see also MRPC 3.7(a). 8. Regardless of whether Mr. Fischer s and Ms. Rynier s failure to disclose material they possessed and failed to disclose to Respondent is ultimately found to have been inadvertent or to have occurred for some other reason or combination of reasons, Mr. Fischer and Ms. Rynier now each have a personal conflict of interest that precludes either from participating as counsel in this matter, as the determination as to how the non-disclosure occurred will also determine whether or not any rule or rules of professional conduct have been violated, including MRPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists ), MRPC 3.8(d) (a prosecutor shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the degree of the offense ), and MRPC 8.4(a) and (c) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct or engage in conduct that is prejudicial to the administration of justice ). Mr. Fischer and Ms. Rynier each have a clear interest in defending their own actions in relation to the non-disclosure, an interest separate from the Commission s interests in the matter and which could reasonably be expected to affect the positions they assert going forward as to issues of substance, strategy and/or tactics. A lawyer is 3
disqualified from participating in the litigation of a matter in which he or she has a conflict of interest. See MRPC 1.7(b) (a lawyer is presumptively disqualified and, except in limited circumstances, is, in fact, disqualified from representing a client if the representation of that client may be materially limited by the lawyer s... own interests ; emphasis added); see also Comment to MRPC 1.7 ( If the probity of a lawyer s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. ); see also ABA/BNA Lawyers Manual on Professional Conduct 51:411 ( A conflict between an attorney s self-interest and a client s interest is generally presented whenever the lawyer s own conduct in the client s matter is questioned... This conflict occurs most often when a lawyer is accused of unethical conduct or malpractice in the client s matter, when an attorney and client share potential liability for litigation sanctions, or when a criminal defense lawyer is investigated or charged in the same matter as the lawyer s client. More often than in instances of business conflicts, these types of conflicts require the lawyer s withdrawal... ); see also Restatement (Third) of the Law Governing Lawyers, 125. 9. Permitting either Mr. Fischer or Ms. Rynier to continue prosecuting this matter in these circumstances would be incompatible with the requirement that these proceedings not only be fair in fact but also that they satisfy the appearance of fairness. As the Court of Appeals stated in People v Doyle, 159 Mich App 632, 643-44 (1987), a prosecutor s disqualification is required where the prosecutor has a personal interest in the litigation. This rule exists not only to protect fairness to the accused but also to serve the vital policy interest of preservation of public confidence in the impartiality and integrity of the... system... American courts have consistently held that the appearance of impropriety is sufficient to justify disqualification of a prosecuting attorney. A 4
defendant need not prove actual bad faith or unethical conduct on the part of the prosecutor and his staff. See also Tesen, supra, 276 Mich App at 142 ( A prosecutor is both an administrator of justice and an advocate whose duty is to seek justice, not merely to convict. ). 10. Because Mr. Fischer is the Commission s Executive Director and General Counsel and, therefore, supervises all attorneys on the Commission s staff, all other staff members must also be disqualified from prosecuting this matter. The Court of Appeals spoke to this point as well in Doyle, concluding that a conflict of interest involving the chief prosecutor requires recusal of the prosecutor and the entire staff. Since assistant prosecutors act on behalf of the elected county prosecutor and are supervised by him, the policies of fairness to the defendant and the avoidance of an appearance of impropriety require this result. 159 Mich App at 644-45. See also RI-43 (1990), RI-280 (1996), Barkley v City of Detroit, 204 Mich App 194, 208 (1994) and New Mexico Attorney General Opinion #05-01 (2005) (each citing Doyle with approval as to this point). WHEREFORE, Respondent prays the Master for an Order disqualifying Paul J. Fischer, Margaret N. S. Rynier and all other Commission staff members from prosecuting this matter further and for such other relief as equity and justice require. Dated: February 1, 2016 Respectfully submitted, Kenneth M. Mogill P17865 Erica N. Lemanski P79018 Mogill, Posner & Cohen nd 27 E Flint St, 2 Floor Lake Orion MI 48362 248.814.9470