Found Radzibon was Suspended in 1998

June 2, 1998 112061 In the Matter of HONORABLE KENNETH A. RADZIBON,Judge of the Presque Isle Probate Court and Friend of the CourtReferee, 26th Judicial Circuit_________________________________ SC: 112061 On order of the Court, this Court having received thedecision of the Judicial Tenure Commission and its recommendationfor an order of suspension and restitution, and having therespondent's stipulation to the commission's findings set forthin ¶¶ (1) through (19), infra, and his consentto the recommended order of suspension and restitution, we adoptthe following portion of the Judicial Tenure Commission'sdecision and recommendation for order of discipline: 1) Respondent was retained by Sandra Van Buren inSeptember 1994, to act as co-counsel with attorneyRalph Barbier, Jr., in a civil suit earlier filed byMr. Barbier on behalf of Ms. Van Buren in the PresqueIsle Circuit Court: Van Buren v TimmConstruction Co, 94-001964-CK. 2) One of Respondent's principal duties was to securethe services of a builder who would testify as anexpert witness. Under the financial arrangementsagreed on, Respondent was paid a $3,000 retaineragainst which his services were to be billed. 3) On several occasions, Respondent falsely advisedMs. Van Buren and Mr. Barbier that Respondent had hireda builder as an expert witness to testify in the caseand further advised them that the builder had examinedthe Van Buren home, which was the subject of thecontroversy. 4) In January 1995, Respondent admitted to Ms. VanBuren and Mr. Barbier that he had not been truthful instating Respondent had arranged for the services of alocal builder to act as an expert witness and that thebuilder had inspected the Van Buren home. 5) Respondent represented Ms. Van Buren betweenapproximately September 1994 and January 1995. In thecourse of that representation, he submitted only onebilling for services. That billing, dated November 28,1994, claimed Respondent had expended services in theamount of $1,663.75; leaving an overall credit to Ms.Van Buren of $1,305.75 out of the original $3,000. 6) Following the filing of Grievance No. 95-8000 byMs. Van Buren, Respondent submitted a reply datedDecember 11, 1995. In Respondent's reply, heacknowledged to the Commission having "regretfullymisstated" his lack of progress in arranging for anexpert witness. Additionally, Respondent's answerexpressed a willingness to abide by the Commission'sdecision with respect to fees. 7) On April 12, 1996, pursuant to MCR 9.207(D), theCommission sent Respondent a letter admonishing him formisleading Ms. Van Buren and co-counsel about havingarranged for an expert witness to testify in thematter. The letter also advised Respondent of theCommission's decision that an appropriate refund shouldbe made to Ms. Van Buren. The Commission's admonitoryletter requested that Respondent provide writtennotification that an appropriate settlement oraccounting had been made to Ms. Van Buren and that theoutstanding claims between Respondent and his formerclient had been resolved. 8) On June 12, 1996, the Commission sent a letterrequesting that Respondent advise the Commission within14 days of its receipt about the status of the feedispute between Respondent and Ms. Van Buren. 9) In the absence of a reply by Respondent, on July19, 1996, the Commission sent a second follow-up letterconcerning the refunding of any unearned portion of theretainer paid by the former client. 10) As a result of Respondent's failure to cooperatewith the Commission, a 28-day letter pursuant to MCR9.207(C) was sent on December 23, 1996. 11) Respondent replied to the Commission's 28-dayletter and stated that he had rendered a finalstatement and accounting to Ms. Van Buren for hisservices, as directed by the Commission. On January17, 1997, Respondent remitted a check to Ms. Van Burenin the amount of $942.64. 12) Respondent's conduct, as described in paragraphs1) through 11) above, constitutes: (a) misconduct in office, as defined by Const1963, art 6, § 30, as amended, and MCR 9.205; (b) conduct clearly prejudicial to theadministration of justice, as defined by Const1963, art 6, § 30, as amended, and MCR 9.205; (c) conduct violative of relevant portions of MCR9.104, in that such conduct: is prejudicial to the proper administrationof justice, contrary to MCR 9.104(1); exposes the legal profession or courts toobloquy, contempt, censure, or reproach,contrary to MCR 9.104(2); is contrary to justice, ethics, honesty, orgood morals, contravening MCR 9.104(3); and violates the standards or rules ofprofessional responsibility adopted by theSupreme Court, contrary to MCR 9.104(4). (d) conduct contrary to Rules 8.4(a) and 8.4(c)of the Rules of Professional Conduct, in thatRespondent: violated the Rules of Professional Conduct(8.4[a]); and engaged in conduct that is prejudicial to theadministration of justice (8.4[c]). 13) Respondent represented William Paasche, a long-time client, in a criminal case in the 89th DistrictCourt: People v William Markus Paasche,Case No. 89-4249-SM. 14) Following Mr. Paasche's conviction in districtcourt, he appealed that conviction and Respondentposted a $1,000 appeal bond on behalf of Mr. Paasche. Mr. Paasche later reimbursed Respondent for theaforesaid sum and also agreed that the balance ofRespondent's fee for handling the appeal could be takenout of the $1,000 bond at the conclusion of the appeal. 15) While an appeal was still pending, Mr. Paaschedied in January 1993. As a result of Mr. Paasche'sdeath, the bond was to be returned. Although the bondmoney became an asset of the decedent's estate byoperation of law immediately upon his death, and had tobe accounted for as such, Respondent secured a refundof those funds from the 89th District Court and appliedthem to unpaid legal fees. 16) Respondent was co-counsel of record for JoannePaasche, Mr. Paasche's surviving spouse and personalrepresentative of the probate estate of WilliamPaasche. (In the Matter of the Estate of WilliamKirk Bennett, a/k/a William Markus Paasche,Deceased, St. Clair Probate Court File No.93-093-242-00SE). In this connection, Respondentfailed to account to the probate court for the amountof the bond refund he had applied to unpaid legal fees. Further, Respondent was responsible for the filing of afalse and incomplete inventory of estate assets, inthat the inventory failed to list these funds. 17) Respondent's conduct, as described in paragraphs13) through 16) above, constitutes: (a) misconduct in office, as defined by Const1963, art 6, § 30, as amended, and MCR 9.205; (b) conduct clearly prejudicial to theadministration of justice, as defined by Const1963, art 6, § 30, as amended, and MCR 9.205; (c) failure to present a claim against adecedent's estate, as required by MCL 700.712; and (d) conduct violative of relevant portions of MCR9.104, in that such conduct: is prejudicial to the proper administrationof justice, contrary to MCR 9.104(1); exposes the legal profession or courts toobloquy, contempt, censure, or reproach,contrary to MCR 9.104(2); is contrary to justice, ethics, honesty, orgood morals, contrary to MCR 9.104(3); and violates the standards or rules ofprofessional responsibility adopted by theSupreme Court, contrary to MCR 9.104(4). 18) After the death of William Paasche, Respondentacted as legal counsel for Joanne Paasche in variousmatters between approximately February 1993 and October1994. Respondent failed and neglected to send timelybilling statements to Ms. Paasche for legal services heperformed during this period. 19) Respondent's conduct, as described in paragraph18) above, constitutes: (a) misconduct in office, as defined by Const1963, art 6, § 30, as amended, and MCR 9.205; (b) conduct clearly prejudicial to theadministration of justice, as defined by Const1963, art 6, § 30, as amended, and MCR 9.205; (c) failure to act with reasonable diligence andpromptness in submitting billings or accountingsto a client, contrary to Rule 1.3 of the Rules ofProfessional Conduct; and (d) conduct violative of relevant portions of MCR9.104, in that such conduct: is prejudicial to the proper administrationof justice, contrary to MCR 9.104(1); exposes the legal profession or courts toobloquy, contempt, censure, or reproach,contrary to MCR 9.104(2); is contrary to justice, ethics, honesty, orgood morals, contrary to MCR 9.104(3); andviolates the standards or rules ofprofessional responsibility adopted by theSupreme Court, contrary to MCR 9.104(4). The Judicial Tenure Commission having found that therespondent committed misconduct, the respondent having stipulatedto the above-mentioned findings of the commission, and therespondent having consented to a 90-day suspension without payand an order of restitution, we ORDER that the Honorable KennethA. Radzibon, Judge of the Presque Isle Probate Court and Friendof the Court Referee of the 26th Judicial Circuit, be and herebyis suspended without pay for a period of 90 days, effective sevendays after the date of this order. We further ORDER that theHonorable Kenneth A. Radzibon pay restitution in the amount of$1,000 to the Estate of William Markus Paasche, plus interest.