United States District Court, E.D. Michigan, Southern Division
IN RE RICHARD J. DOUD and ANDREW M. FERGUSON
OPINION & ORDER
Richard J. Doud and Andrew M. Ferguson, both principals at
pertinent times with Davidson, Breen, Doud, Steele &
Ferguson, P.C. (the “Firm”), were referred to the
undersigned three-judge panel for disciplinary proceedings
pursuant to E.D. Mich. LR 83.22. The referral resulted from
the filing in this Court of numerous social security appeals
under Doud's name, from 2012 to 2015, which were woefully
deficient both as to the quality of the briefs and the
management and monitoring of the appeal process on behalf of
clients. The “one-size-fits-all” briefs often had
very little to do with the facts of the particular case in
which they were filed; and, except in one case, there was no
lawyer review of opposing briefs and magistrate judge rulings
in the cases. This repeated pattern of derelict performance
led several magistrate judges and district judges to impose
sanctions on Doud. In connection with the imposition of
sanctions in one case, Doud and Ferguson misled the
sanctioning judge regarding their compliance with his order
by submitting a false affidavit.
questions raised by these revelations in 2015 prompted
then-Chief Judge Gerald Rosen to convene the Panel to address
misconduct that may have been committed by Doud and Ferguson.
To initiate the proceeding, the Panel issued an order to show
cause to both Respondents, who appeared by counsel and
responded to the show cause order. The Chief Judge also
appointed the Grievance Administrator of the Michigan
Attorney Grievance Commission as Prosecuting Counsel under
E.D. Mich. LR 83.22(e)(6)(a) to conduct the investigation and
present evidence to the Panel. Prosecuting Counsel did so by
conducting depositions of the Respondents and several lawyers
and a legal secretary who worked at the Firm. After receiving
proposed findings from the Prosecuting Counsel and responses
thereto, the Panel conducted a full hearing at which Doud and
Ferguson testified; the parties later submitted supplemental
proposed findings and a supplemental response.
reviewing all of the evidence, the Panel concludes that both
Doud and Ferguson engaged in serious violations of the
Michigan Rules of Professional Conduct, with Doud's
violations being more egregious. These violations warrant
suspending Doud from practicing before this Court for 90 days
and publicly reprimanding Ferguson for his misconduct.
FINDINGS OF FACT
General Factual Background
Firm's practice consisted of workers' compensation,
personal injury, and social security, with the Firm's
bread and butter being workers' compensation. During the
period in question, the Firm was managed by three
shareholders, Ferguson, Michael Doud,  and Floyd
Steele. There were also two non-equity partners,
James Smith and Philip Dellasantina, as well as associate
was a shareholder of the Firm from 1977 until January 1,
2012, when a shareholder buyback agreement that he had
executed on December 31, 2011 became effective. Doud's
full level of involvement with the Firm following the
execution of the agreement remains unclear. But what is clear
is that Doud was permitted to manage various aspects of the
Firm as he saw fit and to practice as much or as little as he
wanted even after the agreement went into effect.
See Ferguson Tr. at 103-104; Steele Tr. at 6, 39-40;
McHugh Tr. at 13, 40; M. Doud Tr. at 7, 11, 13-14. Certain
shareholders and other Firm employees were uncertain as to
Doud's actual status vis-à-vis the Firm.
See Ferguson Tr. at 130-131. In fact, Ferguson was
unsure of Doud's status until March 2015, when Doud
instructed Ferguson to inform the Court that Doud had retired
as of December 2011. Id.; see also Letter
of Referral at 3 (Dkt. 2) (noting that Ferguson, in a letter
responding to sanctions imposed by Judge Gershwin Drain,
informed the Court that Doud had retired as of 2011).
Notwithstanding the uncertainty of Doud's exact status
within the Firm, the Firm did not publicly announce any new
status for Doud, because it and Doud sought to conceal from
clients and adversaries any “reduced” role for
him. See Doud Tr. at 30 (describing his appearance
as a fully active member of the Firm as a
“façade, ” which the Firm was able to
“play” for a year or two).
the Firm's social security work was driven by its
workers' compensation practice, because claimants often
were contractually required to apply for disability benefits
with the Social Security Administration (“SSA”).
See Doud Tr. at 7. Doud hired Ruth Wood, a legal
secretary, to assist with the social security practice and
“trained [her] over the years with regard to handling
Social Security files.” Doud Tr. at 12. It appears that
once Doud was comfortable with Wood's competence, he
allowed her to file initial applications for social security
on her own. See Doud Tr. at 12-13. Doud began
reducing his social security practice in the mid-1980s, and
the responsibility for handling the administrative hearings
shifted to younger, newer attorneys with the Firm. Doud Tr.
in 2002 a new associate attorney, Mikel Lupisella, took over
the social security practice within a month of starting his
employment; he was the attorney primarily responsible for
social security through the end of 2011. Doud Tr. at 23-24;
Ferguson Tr. at 89, 134, 143; Lupisella Tr., at 10,
19-20. Doud stated that when Lupisella took over
the practice, Doud was not involved in the social security
practice beyond “keeping [an] eye on [his]
[w]orkers' [c]ompensation cases.” Doud. at 22-23.
When the district court transitioned to electronic filing,
Lupisella obtained his own electronic filing credentials
(CM/ECF username and password); he did not use one associated
with Doud. Lupisella Tr. at 14-15. Lupisella left the Firm in
Lupisella's departure, Doud was concerned about the
future and stability of the social security practice and
attempted to recruit one of the partners to take over the
practice. Doud Tr. at 31; Ferguson Tr. at 22-23. Ferguson
agreed to step into the social security practice at the
administrative level of the social security proceedings, even
though he had no prior experience in that area. Ferguson Tr.
at 23, 24 While Doud insists that he told Ferguson to take
over the entire social security practice, the Panel credits
Ferguson's testimony that Doud asked him to handle only
the administrative stage, not court appeals. Because Ferguson
was never told by Doud to supervise the Firm's social
security appeals, he assumed that those cases were being
handled by a process put into place by Doud and Wood.
Ferguson Tr. at 24, 52-53, 108 (“I didn't know that
I had to ask [questions about the brief-writing process for
appeals in district court] because I assumed that [Doud] had
set up a good system.”).
intents and purposes, it was legal secretary Wood who ran the
Firm's social security practice after Lupisella's
departure. If the initial application for benefits was
denied, Wood would meet with the clients and prepare the
necessary documents for the hearing before an administrative
law judge. Wood Tr. at 9-10. If the administrative law judge
denied the claim, Wood would automatically file an appeal of
the decision to the SSA Appeals Council. Id. at 16,
19-20; see also Ferguson Tr. at 46 (stating that
once the administrative hearing was completed, the case was
essentially done from his perspective); Id. (stating
that if a client wanted to pursue an unfavorable decision he
would direct the client to speak to Wood). If the Appeals
Council denied an appeal, the client could further appeal the
administrative decision in federal court by speaking with
Wood or the assigned attorney. Wood Tr. at 20-21.
client wanted to proceed to federal court, Wood would
instruct either Aaron Lemmens or Paul McHugh, two associate
attorneys who joined the Firm after Lupisella left, to begin
writing briefs. Lemmens Tr. at 32-33; McHugh Tr. at 8-9, 10.
McHugh testified that he was given no training prior to
writing the briefs. Id. at 8. Lemmens indicated his
“training” was limited to sitting in on
administrative hearings and speaking with Wood - a non-lawyer
- and Ferguson, who lacked any experience in the subject
area. Lemmens Tr. at 9. Lemmens also testified he did not
discuss the merits of cases with Ferguson, and that Ferguson
never reviewed his social security work product or gave any
type of formal evaluation. Id. at 30, 55. Nor did
Ferguson or other senior lawyers give any substantive advice
in terms of pointing out appropriate case law or statutory
authority to assist McHugh or Lemmens. McHugh Tr. at 17.
came to filing cases in district court, Lupisella, while at
the Firm, filed both complaints and briefs under his name
using a CM/ECF username specific to him. Lupisella Tr. at
14-15, 16. According to Wood, this was not the appropriate
procedure, as the filings should have been done under
Doud's name; consequently, when Lupisella departed, Wood
was instructed by Doud to return everything to Doud's
name. Wood Tr. at 22-23. Craig Zanot, then a
shareholder of the Firm, and Wood together obtained a CM/ECF
username for Doud in December 2011. See Emails at
5-6 (cm/ecf page) (Dkt. 35-2). The purported purpose of placing
everything into Doud's name was to prevent departing
lawyers from stealing Firm clients; there never was an
expectation by anyone at the Firm that Doud would be working
on the case. Wood Tr. at 46-47. Going forward, associates
were instructed by Wood to file all briefs in Doud's
name, using Doud's newly obtained CM/ECF username. McHugh
Tr. at 11-12; Lemmens Tr. at 33, 34-36, 39-40, 56; Wood Tr.
the filing of a brief, no further work would be done on a
social security appeal. Lemmens Tr. at 39; McHugh Tr. at
15-16. Attorneys did not see the opposing party's brief,
did not submit any type of response, and never saw a report
and recommendation (“R&R”) or a final
decision; nor did they ask to see any of those items. Lemmens
Tr. at 38-39; McHugh Tr. at 15-17. Lemmens and McHugh saw
their jobs as completed once they filed a brief. Lemmens Tr.
at 39; McHugh Tr. at 15. Wood was responsible for monitoring
all electronic filings in the district court, but she neither
reviewed the filings nor did she inform any of the attorneys
that something had been filed. Wood Tr. at 26-28. Wood
testified that no one reviewed R&Rs to determine whether
objections should be filed. Id. at 49. Wood merely
printed off the final judgment and placed it in the case
file, then sent a letter to the client informing the client
of the decision. Id. at 28, 49.
Events Leading to the Referral
systemic and structural deficiencies in the Firm's social
security practice resulted in numerous filings, in the name
of Doud, that suffered from myriad significant defects.
Several members of this Court have taken note of the
Firm's repeated deficient performance. See,
e.g., Fielder, No. 13-10325, 2014 WL 1207865 at
*1 n. 1 (E.D. Mich. Mar. 24, 2014) (discussing magistrate
judges who have critiqued Doud and warning that failure to
advance properly supported arguments could lead to sanctions
and disciplinary action); Swadling v. Comm'r of Soc.
Sec., No. 14-10251, 2015 WL 1511048, at *2 (E.D. Mich.
Mar. 24, 2015) (fining Doud $7, 500 and referring him for
disciplinary action); Leveque v. Comm'r of Soc.
Sec., No. 13-10685, 2014 WL 172297, at *1 (E.D. Mich.
Jan. 15, 2014) (adopting R&R that critiqued Doud for
failure to substantiate arguments); Servantes v.
Comm'r of Soc. Sec., No. 14-10250, 2015 WL 870255,
at *17 (E.D.Mich. Feb. 27, 2015) (fining Doud $2, 500).
instance, Doud was ordered to take specific remedial action;
Doud's and Ferguson's responses to this order gave
rise to additional allegations of misconduct. On March 6,
2015, District Judge Robert Cleland issued an Order in
Radford v. Comm'r of Soc. Sec., No. 14-10831,
2015 WL 998332 (E.D. Mich. Mar. 6, 2015) (“the
Radford Order”), adopting an R&R issued in
that social security case. In the R&R, the Magistrate
Judge observed that the filing bearing Doud's name was
“yet another one-size-fits-all brief, containing
virtually the same conclusory allegations and absence of
developed argument that other courts had found
insufficient.” Radford v. Comm'r, No.
14-10831, 2015 WL 998338, at *6 (E.D. Mich. December 1,
2014). The Magistrate Judge found it significant that the
brief had been filed despite prior significant criticism of
the briefing style leveled by another district judge.
Id. In adopting the R&R, Judge Cleland made
additional findings, concluding that Doud had effectively
abandoned his client, and submitted work product to the Court
that was not only careless, but professionally incompetent.
Radford, 2015 WL 998332 at *1. Consequently, Judge
Cleland ordered the following:
Plaintiff's attorney, Richard J. Doud, must file a
statement by March 20, 2015, made under oath, that he has
personally delivered to Plaintiff Kimberly Radford
(1) a printed copy of the Magistrate Judge's report and
recommendation, (2) a printed copy of this order, and (3) a
written cover letter or memorandum to Ms. Radford that
contains the following statement printed in at least 13-point
“Your case has been dismissed. I have been ordered by
the court to deliver the court orders to you. The court also
ordered me to tell you that you should carefully read 1) the
Magistrate Judge's report and recommendation and 2) the
order of the District Court accepting the recommendation and
commenting on the case that I presented to the court on your
of the cover letter or memorandum must be attached to the
statement he files.
Id. (emphasis added).
Cleland's Order, issued on March 6, was ignored by the
Firm until March 16, 2015, just four days before the
statement was due. Smith Tr. at 31-32. James Smith was the
first to take some action relative the Radford
Order; he faxed a copy to Wood's attention. Smith Tr. at
32.Wood conveyed the Radford Order
to Ferguson, who wanted nothing to do with it, and Ferguson
instructed Wood to call Doud, give Doud the information, and
tell Doud the court was directing Doud to respond to the
order. Ferguson Tr. at 25-26. Wood emailed Doud a document on
March 16, requesting Doud sign and return it as soon as
possible. See 3/16/2015 Email at 2 (cm/ecf page)
(Dkt. 35-4). In response, Doud requested the actual Order,
indicating he would write a response. Id. Wood sent
the Radford Order to Doud on March 18, explaining,
“the judge does not want our response just the
statement signed.” 3/18/2015 Email at 3 (cm/ecf page)
(Dkt. 35-4). Doud then instructed Wood to “[p]lease
have Andrew [Ferguson] draft whatever is necessary. Sign my
name to it.” Id.
point between learning about the Radford Order and
March 18, Wood made an appointment for Ms. Radford to come
into the office and meet with Ferguson. Ferguson Tr. at 26.
Wood provided Ferguson with a number of materials and
explained that Doud wanted Ferguson to handle it, and that
the Court needed a response by March 20. Id.
Ferguson reviewed the materials Wood had sent him, noticing
that information needed to be delivered to the client and
then returned to the Court. Id. at 27. The specific
materials included an affidavit, the statement to the client,
and the court's decision. Id. at 28. According
to Ferguson, because Wood told Ferguson he had the authority
to sign for Doud, Ferguson thought it was okay. Id.
at 27. Ferguson told Ms. Radford that he was “stepping
in for Richard Doud in this case, ” and that he was
“going to sign for Richard.” Id. at 28.
At that time, Ferguson had not personally communicated with
Doud. Id. at 31.
affidavit in question avers that “Richard Doud”
was “duly sworn, deposes and states, that pursuant to
the [Radford Order], that he has personally
delivered to Plaintiff” the required materials. See
Radford Aff. at 5-6 (cm/ecf pages) (Dkt. 35-4). The
signature on the affidavit purports to be Doud's and was
notarized. Id. at 6 (cm/ecf page). The statement
ordered to be provided to Ms. Radford also bears a signature
purporting to be Doud's. See Radford Statement
at 4 (cm/ecf page) (Dkt. 35-4). There is nothing on either of
those two documents to indicate that they were signed by
someone other than Doud or signed with Doud's permission.
Doud confirmed that he had nothing to do with drafting the
affidavit, that the ...