A wrong without a remedy

A minor was injured in a car crash. The parties agreed to settle. The child's attorney assured the trial judge that the probate court would appoint a conservator soon.

The judge entered a $55,000 judgment and dismissed the case, even though MCR 2.420(B)(4)(a) said at the time: appoint the conservator first, then enter the judgment and dismiss the case. The insurance company wrote the check to the child's mother and the attorney.

You could almost smell it coming. The attorney swindled the funds. When this was discovered several years later, the Court of Appeals wouldn't let the judgment be reopened.

This should have been an easy one for the Michigan Supreme Court to fix.

And that's why Justice Elizabeth A. Weaver was fit to be tied when Chief Justice Clifford A. Taylor and Justices Maura D. Corrigan, Robert P. Young, Jr. and Stephen J. Markman, booted Bierlein v. Schneider, from the court's docket.

"[T]he majority chooses to visit the 'tragic' injustice on the minor child, who suffered betrayal first at the hands of the attorney charged with protecting her interests; then at the hands of the defense and the trial court, which failed to follow our rule, despite being explicitly informed that it had been ignored; and now at the hands of this Court, which today refuses to enforce its own plainly worded rule. Our duty is clear. Just as clearly, the majority has abdicated that duty in favor of the insurer," Justice Weaver fumed.

The case had a bumpy ride to the top floor of the Hall of Justice. After two rounds of motions with two successor trial judges, and two trips to the Court of Appeals, the minor plaintiff still had an empty bag.

Plaintiff asked the Michigan Supreme Court for leave to appeal. The MSC ordered oral arguments to help it decide whether to take up the case.

Briefs were filed. Arguments were heard. A 7-0 vote put the case on the docket. More briefs and another round of arguments. If things followed the usual course, an opinion was due by the end of July 2007.

Hopeful signs for an empty-handed plaintiff.

But late last June, instead of an opinion, one more order from the court. This time, a four-justice majority decided that the case didn't belong on the docket after all.

The real issue had become crystal-clear: MCR 2.420(B)(4)(a) doesn't address who is liable for a violation, and the only sure-fire way the child was going to get her money was to make the insurer write another check.

Justice Markman, joined by Justice Corrigan, took on the task of explaining why that wasn't going to happen.

He called the case "tragic" and the plaintiff "sympathetic" but argued that under the court rule, it was the trial judge's job, not defendants', to make sure the child had a conservator.

But there's no recourse against the judge unless judicial immunity gets tossed out the window.

The child's former attorney caused the injustice, said Justice Markman. Nobody griped on the child's behalf when the judgment was entered without a conservator standing by to receive the funds. And, had a conservator been appointed, it would have been the child's mother, and there's nothing to suggest she would have done anything different in terms of managing the money.

In Justice Markman's view, defendants did no wrong when they paid the first time, so it was unfair to make them pay again.

Justice Markman said the child's former attorney was "the proper source of relief" but conceded that seeking relief from him was pointless.

The former attorney had no malpractice insurance. He had played fast and loose with other people's money in many cases. When the dust settled at the Attorney Discipline Board, he was disbarred. When the gavel stopped banging in circuit court, he was sent to prison.

Justice Markman suggested that another "proper source of relief" was the State Bar of Michigan's Client Protection Fund, which already helped out with a $10,221 award. He said the fund should dig deeper for plaintiff, a "deserving beneficiary."

As of now, the fund is still thinking things over.

Justice Michael F. Cavanagh, in a dissent joined by Justice Marilyn Kelly, saw the case as an opportunity for the court to exercise its inherent power to enforce its own rules. So did Justice Weaver in her own, super-heated dissent.

According to Justice Cavanagh, MCR 2.420(B)(4)(a) has two functions: safeguarding minor plaintiffs and protecting defendants from liability when dealing with them.

"All parties to a proceeding are responsible for following the court rules," he said.

He asserted that when "defendants pay settlements to someone other than a conservator, or pay when there has been no conservator appointed, they do so at their own peril."

Alright, then. Whose take do you like, Justice Markman's or Justice Cavanagh's? And what about Justice Weaver and her scolding of the majority?

One more thing: the Client Protection Fund has a $200,000 cap on what it will pay cheated clients for any one attorney's wrongdoing. That cap was reached with the multiple claims against the child's attorney. But the State Bar of Michigan's Board of Commissioners has the discretion to exceed that cap, so here's an extra credit question: Should they?

Be sure to see Two wrongs don't make a right: Plaintiff cannot require defendant to pay out settlement a second time to recoup funds stolen by her own lawyer in our Sept. 17 issue.