Experts: AG Nessel's disclosure of complaint against judge creates ethical concerns

Legal experts are raising concerns after state Attorney General Dana Nessel criticized the hiring of a state judge by Michigan State University in part by publicly disclosing that he was the subject of a dismissed attorney grievance complaint.

Nessel’s revelation of the complaint against retired Michigan Court of Claims Judge Michael Talbot is problematic, experts said, since such accusations are usually kept confidential by the Attorney Grievance Commission until and unless public admonishment is deemed necessary.

The gravity of the disclosure is compounded by the fact that the complaint against Talbot had been dismissed months before — something the Attorney General's office initially did not reveal. One expert said the result of such disclosures is "besmirching reputations," while another called Nessel's conduct an "unseemly inconsistency" between two separate parts of government. 

Michigan’s Attorney Grievance Commission receives roughly 2,000 complaints a year, but takes public action on about 160, or 8%, of them, commission Administrator Alan Gershel said.

The commission's rules of confidentiality — developed by the Michigan Supreme Court — protect accused lawyers against many “frivolous” complaints that don’t end in a public reprimand, Gershel said. 

“Those individuals need to be protected,” said former Supreme Court Justice Maura Corrigan, who was appointed by Republican former Gov. John Engler. “There’s the concern of someone’s reputation being destroyed when there’s no determination that there is merit to the complaint.”

Nessel's office defended the public release of the information, arguing that it was motivated by concern over Talbot's work at MSU. 

"A prosecutor’s office was so concerned about the conduct of Judge Talbot that it took the highly unusual step of filing a grievance," said Kelly Rossman-McKinney, a spokeswoman for the Democratic attorney general. "It is immaterial to us that the AGC decided to dismiss that complaint because we found the description of events provided to us by the Saginaw County Prosecutor’s Office to be very concerning."

The Attorney Grievance Commission has not confirmed or denied a complaint was ever filed against Talbot, citing rules that prevent the commission from commenting on a specific complaint. The same rules don't apply to the complainant and respondent in a case, though the commission advises against premature disclosure by those parties.

“Many of the complaints we get are frivolous, so in fairness to the respondent it should not become public,” Gershel said.

Confidential grievance process

Though Nessel's office argues the events leading to the complaint against Talbot were worrisome, it is difficult to uncover any details to corroborate the claim.

Nessel denied a Detroit News public records request seeking communications regarding Talbot, the Saginaw County Prosecutor’s Office or the Diocese of Saginaw. Her office cited an ongoing investigation.

The Saginaw County Prosecutor’s Office denied a News public records request seeking its communications with the Attorney General’s office or Attorney Grievance Commission. The Saginaw County office, which has refused to speak with The News regarding the Talbot complaint, cited in its records request denial attorney-client privilege, ongoing “law enforcement proceedings” and professional rules that forbid the “disclosure of material prior to trial.”

The commission itself is barred from commenting on a specific case or even confirming its existence until or unless it decides to take public action. But the complainant or respondent may speak about it publicly, and both are informed if there is a non-public resolution or closure to the case, Gershel said.

The non-disclosure rules for attorney grievances allow the commission to close a case without any discipline, make private admonishments, or file public charges against the individual that are then considered by the Attorney Discipline Board, Gershel said. 

The strict non-disclosure rules protect attorneys against unfounded claims, especially those commonly made by the losing side against a winning attorney, said Robert Hirshon, a legal ethics professor at University of Michigan and former president of the American Bar Association.

“We shouldn’t be putting those names out there, besmirching reputations when the person didn’t do anything wrong,” Hirshon said. “You’re not supposed to out the process.”

The Attorney Grievance Commission retains the ability to close a case without a negative finding or address minor violations with a private reprimand to avoid “dragging someone through the mud,” he said.

“Those two approaches, as sort of arrows in the quiver, should remain in the quiver,” Hirshon said.

Putting a gag order on the complainant or respondent in a grievance complaint — in this case, the Saginaw County Prosecutor’s Office or Talbot — could violate their First Amendment rights, said Phil Pucillo, a professor of law in residence at MSU. The same could go for any rules governing a third party privy to the complaint, he said.  

But the attorney general’s role in revealing the complaint creates “an unseemly inconsistency” between policies that silence the Attorney Grievance Commission but apparently don’t apply to a separate branch of state government, Pucillo said.

“One arm has decided this information should not be disclosed and another arm is doing the contrary,” Pucillo said. “It suggests there’s some dissonance in the state following its own rules.”

Nessel sets off controversy

Nessel released the information about Talbot in early April, first hinting on Twitter of a complaint against him after reading that he was hired by MSU in February to help implement a court-ordered change to its Title IX process that required the university to allow defendants to cross-examine sexual assault accusers.

Larry Nassar victim Amanda Thomashow retweeted an article about Talbot's new MSU role and indicated in comments that, by hiring Talbot, the university was continuing to botch its responsibility to sexual assault victims.

Nessel, who is investigating the Catholic Church and MSU’s handling of sexual abuse complaints, chimed in, tweeting, “What Amanda said.”

In a reply on Twitter, Rep. Beau LaFave, R-Iron Mountain, called Nessel's comments a blatant instance of anti-Catholicism against a judge for whom there was "not even an allegation of misconduct."

Nessel asked if LaFave had contacted the AGC to confirm as much and then said the next day in a press release that a complaint had been filed July 18, 2018, by the Saginaw County Prosecutor’s Office against Talbot, a former state Court of Appeals judge whom Engler had appointed. Engler resigned under controversy as interim MSU president in January. 

The complaint against Talbot was uncovered during the attorney general’s investigation into the Catholic Church and confirmed the morning of its April 2 disclosure to the media, Rossman-McKinney said.

Nessel’s office later acknowledged that the complaint against Talbot had been dismissed, a fact Saginaw County Chief Assistant Prosecutor Mark Gaertner failed to divulge during their April 2 conversation, Rossman-McKinney said.

“I don’t think he was aware that it had been dismissed,” she said about Gaertner.

Talbot declined comment for this article. But last month he told The News the grievance complaint was lodged after he argued with the Saginaw County prosecutor over a raid of the Saginaw bishop’s house.

Talbot said the ailing bishop had arrived back from cancer treatment when law enforcement raided his home with guns drawn as part of an investigation into sexual abuse complaints in the diocese. Talbot had been hired to assist the diocese through the investigation because of the bishop’s health. Bishop Joseph Cistone died in October.

In addition to his work in Saginaw, Talbot is chairman for the Archdiocese of Detroit’s board that conducts internal reviews of priests or employees accused of wrongdoing.

Talbot received a lifetime achievement award from the Michigan Appellate Bench Bar Conference Foundation this year and will receive the Frank J. Kelley Distinguished Public Service Award from the State Bar of Michigan in September. 

Nessel alleged Talbot’s argument with the Saginaw prosecutor included “veiled threats and a demand to shut down the office’s investigation into clergy abuse in the Diocese,” behavior that “bordered on obstruction of justice.” Talbot called Nessel's characterization "flat-out false."

Talbot's descriptions of his interactions with the prosecutor "do not meet with our understanding of what occurred," Rossman-McKinney said.

Talbot's MSU service ended in April because of scheduling conflicts.

eleblanc@detroitnews.com

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