Ordinarily, a Michigan attorney who is disciplined in another state or federal jurisdiction will face discipline in Michigan, too. Michigan attorneys also have a duty to report discipline in other state or federal jurisdictions. But what happens when the other jurisdiction imposing discipline is a tribal court—a judicial body of one of America’s sovereign tribes?
A hearing panel of Michigan’s Attorney Discipline Board just ruled on that issue for the first time. It held that the Michigan Court Rules do not provide for reciprocal discipline based on tribal court orders. It also held that attorneys have no duty to report discipline in tribal courts. The Attorney Grievance Commission plans to appeal that decision.
Under Rule 2.615, tribal-court decisions are generally enforceable in Michigan.
First, a little background on tribes and their sovereign authority. The United States Supreme Court put it this way: “Indian tribes are domestic dependent nations that exercise inherent sovereign authority.” Congress can pass legislation affecting tribes, but, unless and until Congress acts, tribes retain their historic sovereign authority. So, from Michigan’s perspective, tribal courts have the same kind of authority as the courts of Canada or Scotland. They’re the judicial bodies of sovereign nations.
Still, Michigan has a special relationship with the twelve federally-recognized tribes within its borders. That’s why the Michigan Supreme Court enacted Michigan Court Rule 2.615, which generally makes tribal-court orders enforceable in Michigan courts.
Retired Justice Michael F. Cavanagh is one of the architects of that rule and a driving force in connecting the Michigan judiciary with tribal courts. His remarks about the development of Rule 2.615 are worth reading.
But Rule 2.615 may not be the last word on the effect of discipline in tribal courts.
Rule 9.120 governs reciprocity and the duty to report discipline.
Michigan attorneys must report to the Attorney Grievance Commission when they’re disciplined in certain other jurisdictions. And disciplinary orders from certain other jurisdictions are a basis for automatic discipline in Michigan.
The Michigan Supreme Court codified these two rules—reciprocity and the duty to report discipline—in Michigan Court Rule 9.120. Although the reciprocity and reporting rules have slightly different language, both focus on two bodies: (1) courts of record, and (2) bodies that derive their authority to discipline attorneys from state or federal laws and rules.
Recently, the Grievance Administrator of Michigan’s Attorney Grievance Commission charged an attorney with failing to report tribal discipline. He also sought reciprocal discipline based on the tribal-court order. Applying Rule 9.120, the hearing panel had to answer this question: is a tribal court a “court of record” or a body authorized to discipline attorneys by state or federal law and rules? It answered both questions with “no.”
“Court of record” is a term of art in Michigan law. Michigan’s Constitution defines “courts of record” as including certain Michigan courts and those that the Legislature designates as courts of record. So tribal courts can be courts of record only if the Legislature says so. And the Legislature has never designated tribal courts as courts of record. As the Grievance Administrator conceded, tribal courts are not “courts of record.”
Nor do tribal courts fit the second category. Tribes are sovereigns. They can discipline attorneys because of their inherent authority, not because of any authority granted under state or federal law. A tribal court no more depends on state or federal law to discipline attorneys than an Ontario court does.
Discipline depends on Rule 9.120, not Rule 2.615.
Applying the plain language of Rule 9.120 leads to the conclusion that a disciplinary order from a tribal court isn’t entitled to automatic reciprocity and doesn’t trigger an attorney’s reporting duty.
What about Rule 2.615 and the rule of tribal-court reciprocity? The Grievance Administrator argued that a tribal court’s disciplinary order is entitled to reciprocal enforcement just like any other tribal-court order.
The hearing panel rejected that argument, concluding that the specific disciplinary rules in Rule 9.120 controlled. Even with Rule 2.615, the Grievance Administrator still had to establish that the tribal court was a court of record or a body authorized to discipline attorneys by federal or state law. Rule 2.615 didn’t turn tribal courts into courts of record; under Michigan’s Constitution, only the Legislature can do that. Nor did Rule 2.615 turn tribal courts into bodies authorized to discipline attorneys by federal or state law. Tribal courts can discipline attorneys because tribes are sovereigns, not because of authority granted under federal or state law.
The hearing panel concluded, therefore, that a tribal-court order disciplining an attorney isn’t entitled to automatic reciprocity under Rule 9.120. It also held that attorneys have no duty to notify the Attorney Grievance Commission about discipline in tribal courts:
While a tribal court . . . may be authorized to impose discipline on attorneys appearing before it, there has been no showing by [the Grievance Administrator] that [the tribal court] has been authorized by the State of Michigan to conduct disciplinary proceedings against Michigan attorneys, or to show that [the tribal court] has been authorized by any other state, or territory of the United States or of the District of Columbia, a United States court, or a federal administrative agency to conduct disciplinary proceedings against Michigan attorneys. Because [the Grievance Administrator] has failed to make such a showing, the panel is of the opinion that respondent’s motion to reject reciprocal discipline must be granted.
The Attorney Grievance Commission has indicated that it will seek review of the hearing panel’s dismissal. Stay tuned.