In re Richard J Doud and Andrew Ferguson (P 49450)
OPINION and ORDER. Signed by District Judge Mark A. Goldsmith, District Judge Laurie J. Michelson and District Judge Matthew F. Leitman. (ATee)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
IN RE RICHARD J. DOUD
Case No. 15-mc-50494
Hon. Mark A. Goldsmith
Hon. Laurie J. Michelson
Hon. Matthew F. Leitman
ANDREW M. FERGUSON
OPINION & ORDER
Respondents 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.
The 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.1 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
After 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.3 These violations warrant suspending Doud from practicing
before this Court for 90 days and publicly reprimanding Ferguson for his misconduct.
I. FINDINGS OF FACT
A. General Factual Background
The 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
The depositions, also referred to as sworn statements, were filed on the docket. See Doud Tr. (272); Ferguson Tr. (Dkt. 27-3); Steele Tr. (Dkt. 27-5); McHugh Tr. (Dkt. 27-6); Wood Tr. (Dkt. 277); M. Doud Tr. (Dkt. 27-8); Smith Tr. (Dkt. 35-1); Lupisella Tr., at 10, 19-20 (Dkt. 37).
See Prosecuting Counsel’s Proposed Findings (Dkt. 27); Ferguson Resp. to Proposed Findings
(Dkt. 29); Doud Resp. to Proposed Findings (Dkt. 30); Prosecuting Counsel’s Supplemental
Proposed Findings (Dkt. 36); Ferguson Resp. to Supplemental Proposed Findings (Dkt. 38).
The Michigan Rules of Professional Conduct are applicable to lawyers admitted to this Court.
See E.D. Mich. LR 83.22(b).
question, the Firm was managed by three shareholders, Ferguson, Michael Doud,4 and Floyd
Steele.5 There were also two non-equity partners, James Smith and Philip Dellasantina, as well as
Doud 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, 1314. Certain shareholders and other Firm employees were uncertain as to Doud’s actual status visà-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).
Unless otherwise stated, all references to simply “Doud” refer to Richard Doud. The Court will
refer to Doud’s son, Michael Doud, by his full name.
Ferguson noted in a motion (Dkt. 39) that Michael Doud has since left the Firm to start his own
practice. The current status of the firm is unclear, as it appears to be in the process of dissolution.
See Davidson, Breen, Doud, Steele & Ferguson P.C. v. Michael P. Doud, et al., No. 16-30525-CB
(Saginaw Cir. Ct. August 2, 2016).
Much of 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. at 14-16.
Beginning 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, 19-20.6 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 December 2011.
After 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
Lupisella, who had no prior experience in social security, explained that his training consisted of
reading books on the subject at the Firm, shadowing, and meeting some of the administrative
judges. Lupisella Tr. at 10-11.
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.7 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.”).
For all 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.
If the 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
As an example of Doud’s lack of credibility, he testified that he first received his CM/ECF login
nearly two decades ago. Doud Tr. at 21. However, the CM/ECF system was not operational until
2005, and court records reflect that Doud’s login was not obtained until after Lupisella left in the
Firm in December 2011. Further, Ferguson is more believable because he consistently expressed
remorse for his misconduct and attempted to rectify the situation, while Doud tried to provide a
rationalization for his ethical violations. See Doud Tr. at 36 (noting that he misled the public and
courts about his role with the Firm “because I wanted to make sure they did well. Hell, I’m sorry,
my son is in the Firm.”).
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.
When it 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.8 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).9 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
Doud’s testimony on this point was contradictory. At one point he stated that he assumed
Lupisella would be filing items under Lupisella’s name, Doud Tr. at 22-23, but elsewhere he stated
that he presumed some of the brief-writers were filing briefs under his name, Id. at 22.
Zanot retired in 2015, but for the five years prior, he had ceased practicing law and was
responsible for some of the Firm’s administrative matters. See Ferguson Tr. at 25.
obtained CM/ECF username. McHugh Tr. at 11-12; Lemmens Tr. at 33, 34-36, 39-40, 56; Wood
Tr. at 23.10
Following 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 49.11 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.
B. Events Leading to the Referral
The 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
Court records confirm that Doud’s ECF login was obtained in December 2011.
A review of the district court opinions shows that in one case, Fielder v. Comm’r of Soc. Sec.,
No. 13-10325, 2014 WL 1207865 (E.D. Mich. Mar. 24, 2014), an objection was filed to the R&R.
The remaining district court opinions merely adopted the R&Rs with some discussing Doud’s
deficient performance and some imposing sanctions.
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).
In one 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 font:
“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
A copy of the cover letter or memorandum must be attached to the
statement he files.
Id. (emphasis added).
Judge 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 32.12
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.
At some 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
By happenstance, Smith was informed of the Radford Order by a rival attorney whom he ran
into at the workers’ compensation agency. See Smith Tr. at 31-32.
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.
The 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 signature on the affidavit was not his,
and that he did not know whose it was. Doud Tr. at 43. However, Doud reiterated that he
“authorized anything that was necessary to clean up the mess.” Id.
II. CONCLUSIONS OF LAW
A. Richard Doud
This recitation of troubling facts establishes that Doud violated Michigan Rule of
Professional Conduct (MRPC) 5.1 – which requires appropriate supervisory monitoring of
subordinate attorneys – when he failed to supervise the preparation of briefs that were submitted
using his signature and CM/ECF login. Doud also violated MRPC 5.1 by failing to supervise the
Indeed, after the fact, and because he had not spoken with Doud directly, Ferguson became
concerned that he may not have had Doud’s permission to sign. Ferguson Tr. at 62-63. Ferguson
asked Wood how Wood knew that Doud had given Ferguson permission to sign; Wood provided
Ferguson with the email correspondence between her and Doud. Ferguson Tr. at 62-63.
appeal after the briefs were filed. The evidence before the Panel shows that once briefs were filed,
no one in the Firm reviewed the R&R or decided whether to file objections. Further, by authorizing
the submission of briefs bearing his name – thereby representing that he had properly reviewed or
monitored their preparation – Doud violated MRPC 3.3, which mandates a lawyer’s candor to
courts. Doud also violated MRPC 3.3 by authorizing Ferguson to sign and submit an affidavit
stating that he – Doud – had personally met with Ms. Radford (as Judge Cleland had ordered). In
light of these violations, the Panel orders that Doud be suspended from practice before this Court
for 90 days.14
1. MRPC 5.1 (Responsibilities of a Partner or Supervisory Lawyer)
Michigan Rule of Professional Conduct 5.1(b) states that “[a] lawyer having direct
supervisory authority over another lawyer shall make reasonable efforts to ensure that the other
lawyer conforms to the Rules of Professional Conduct.” After Lupisella’s departure, Wood
informed Doud that Lupisella had been filling briefs using his own signature and CM/ECF login.
Wood Tr. at 23. Doud told Wood that this was not the proper procedure and that all future briefs
should be filed under his name in order to prevent any departing attorneys from taking Firm clients
with them. Id.
Because Doud directed Firm personnel to file social security briefs using his name, he had
a duty to make reasonable efforts to ensure that the briefs were being prepared in conformity with
the Rules of Professional Conduct. See MRPC 5.1(b). Testimony from Lemmens and McHugh
In his post-hearing supplemental proposed findings, Prosecuting Counsel agrees that “Doud’s
conduct . . . in allowing his name to be used on briefs in federal court when he knew he was not
preparing or reviewing the briefs, was a knowing violation of . . . his duty to supervise . . . ” Supp.
Prop. Find. at 9. Doud did not dispute this, as he did not file any response to the supplemental
proposed findings. Prosecuting Counsel did not address – either in his initial or supplemental
proposed findings – Doud’s culpability for aiding and abetting and/or soliciting Ferguson’s
submission of a false affidavit to Judge Cleland. However, Doud failed to address it, as well,
although the Panel asked several questions about the issue at the hearing.
makes it clear that Doud made no such efforts. Lemmens testified that he began drafting social
security briefs within a month or two after starting at the Firm and that his training consisted
primarily of speaking with Wood, a non-lawyer assistant, and Ferguson, a lawyer with no social
security experience, who offered no substantive advice about cases. McHugh was similarly
directed to write briefs without training and without a senior lawyer offering any substantive
Doud also failed to supervise the appeals process after the briefs were filed. Wood testified
that once the briefs were filed, the appeals process was essentially over from the Firm’s
perspective. Wood Tr. at 28, 49. Doud made no effort to read the opposing party’s briefs, review
the magistrate judge’s R&R, or determine whether filing objections was appropriate.
This profound dereliction of any oversight of the Firm’s inexperienced lawyers
demonstrates that Doud violated his duty to supervise pursuant to MRPC 5.1(b).
2. MRPC 3.3 (Candor Toward the Tribunal)
In addition to violating his duty to supervise, Doud’s conduct surrounding the filing of
social security briefs also violated his duty of candor toward the tribunal.
The Rules of
Professional conduct state that “[a] lawyer shall not knowingly make a false statement of material
fact or law to a tribunal or fail to correct a false statement of material fact or law previously made
to the tribunal by the lawyer.” MRPC 3.3(a)(1).
Doud’s instruction to sign his name to all future briefs after Lupisella’s departure –
knowing that he would have no involvement in their preparation – violated his duty of candor,
because it constituted “a false statement of material fact,” MRPC 3.3(a)(1). Doud’s signature on
the briefs unmistakably conveyed to the judges in this District the untrue assertion that he was
personally involved in the drafting of the documents or involved in supervising their preparation
when, in fact, he did nothing in that regard after 2011.
Doud’s conduct in response to the Radford Order also constituted a violation of MRPC
3.3(a)(1). In his Order adopting the R&R, Judge Cleland found that Doud submitted work product
that was both careless and professionally incompetent. Radford, 2015 WL 998338, at *1. As a
consequence, Judge Cleland ordered that Doud file a statement, made under oath, that he had
personally delivered to Ms. Radford printed copies of the R&R and the order adopting it, as well
as a cover letter explaining that the case had been dismissed and that Ms. Radford should read the
R&R and Order. Id.
Rather than meeting with Ms. Radford and providing her with the necessary documents as
ordered by Judge Cleland, Doud told Ferguson to “draft whatever is necessary” and sign his name
to it. 3/18/2015 Email at 3. By giving this instruction, Doud was aiding and abetting and/or
soliciting the submission of a “false statement of material fact.” MRPC 3.3(a)(1). Not only did
Doud fail to actually meet with Ms. Radford, he authorized the submission to the Court of an
affidavit stating that he had. This lack of candor constitutes a violation of MRPC 3.3(a)(1).
Standard 3.0 of the American Bar Association’s Standards for Imposing Lawyer Sanctions
states that, “[i]n imposing a sanction after a finding of lawyer misconduct, a court shoulder
consider the following factors: (a) the duty violated; (b) the lawyer’s mental state; (c) the actual or
potential injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or
mitigating factors.” Standard 7.2 states “[s]uspension is generally appropriate when a lawyer
knowingly engages in conduct that is a violation of a duty owed to the profession, and causes
injury or potential injury to a client, the public, or the legal system.”
The record indicates that Doud knowingly failed to supervise, in contravention of MRPC
5.1(b). To prevent attorneys from stealing Firm clients, Doud ensured that all appeals to federal
court were filed in his name. Because these briefs were filed in his name, Doud had a duty to make
reasonable efforts to ensure that the lawyers drafting the briefs acted in conformity with the Rules
of Professional Conduct. See MRPC 5.1(b). By his own admission, Doud had abdicated all
responsibility regarding the social security practice after his purported retirement in December
2011. Doud Tr. at 32. This demonstrates that he knowingly failed to make any effort to supervise
the work of McHugh and Lemmens. This violation caused actual injury to the legal system by
burdening it with deficient social security appeals; this burden could have been avoided had Doud
exercised his supervisory responsibility. This misconduct also contributed to depriving clients of
proper representation, thereby potentially depriving them of meritorious claims.
This conduct also constituted a knowing violation of MRPC 3.3(a)(1). Standard 6.1, which
addresses false statements, fraud, and misrepresentation, states that “[s]uspension is generally
appropriate when a lawyer knows that false statements or documents are being submitted to the
court . . . and causes injury or potential injury to a party to the legal proceeding, or causes an
adverse or potentially adverse effect on the legal proceeding.” Standard 6.12. Doud knew that
briefs were being submitted in his name even though he did not assist in their preparation. This
misconduct had an adverse effect on the legal proceedings in that it misled judges as to who was
actually representing parties before them.
Doud’s misconduct with respect to the submission of the Radford affidavit also constituted
a knowing violation of MRPC 3.3. Despite being sent a copy of the Radford Order, which required
Doud to personally meet with Ms. Radford, he told Wood to have Ferguson “draft whatever is
necessary” and sign his name to it. 3/18/2015 email at 3 (cm/ecf page). By instructing Ferguson
to sign the affidavit in his place, Doud knowingly aided and abetted the submission of a false
document. This action had an adverse effect on the legal proceeding because it misled Judge
In regard to aggravating factors, Doud had a selfish motive. See Standard 9.22(b).15 By
ordering the briefs to be filed in his name, he was attempting to retain clients in order to keep the
Firm profitable. Doud stood to gain from the Firm’s success because, under the shareholder
buyback agreement, he was receiving a salary and health benefits.
Doud’s actions constituted a
pattern of misconduct by allowing numerous briefs to be submitted in his name without
supervision. See Standard 9.22(c). As discussed above, Doud’s misconduct included violations
of multiple ethical rules over a period of years. See Standard 9.22(d). Doud also made a false
statement during the disciplinary process when he stated that he obtained a CM/ECF login nearly
20 years ago. See Standard 9.22(f). Finally, Doud had substantial experience in the practice of
law at the time these violations occurred. See Standard 9.22(i). Doud’s lack of a prior disciplinary
record serves as a mitigating factor. See Standards 9.32(a). There is no evidence of any other
Doud’s knowing violations of MRPC 5.1(b) and MRPC 3.3(a)(1) warrant a 90-day
suspension from practice before this Court.
As noted above, courts should consider so-called “aggravating factors” when choosing a
sanction. ABA Standard 9.2 lists aggravating factors including prior disciplinary record, dishonest
or selfish motive, multiple offenses, bad faith obstruction, submission of false evidence, refusal to
acknowledge wrongful nature of conduct, vulnerability of victim, substantial experience in
practicing law, indifference to restitution, and illegal conduct. See Standard 9.22(a)-(k). Courts
should also consider mitigating factors, including absence of a prior disciplinary record, absence
of a dishonest or selfish motive, personal or emotional problems, effort to make restitution or to
rectify misconduct, cooperative attitude, inexperience in practice of law, character or reputation,
physical or mental disability, delay in the proceedings, imposition of other penalties, remorse, and
remoteness of prior offenses. See Standard 9.32(a)-(m). The Panel has considered all of these
factors and sets forth the applicable ones in the text.
B. Andrew Ferguson
Ferguson committed violations of MRPC 5.1 and MRPC 5.3 when he failed to properly
supervise the Firm’s social security practice after Lupisella departed and Doud began to take a
reduced role. However, unlike Doud, Ferguson’s failure to supervise was committed negligently.
On the other hand, Ferguson’s actions in response to the Radford Order constituted a knowing
violation of MRPC 3.3. In light of several mitigating factors, the Panel concludes that Ferguson’s
conduct warrants a public reprimand.
1. MRPC 5.1 (Responsibilities of a Partner or Supervisory Lawyer); MRPC 5.3
(Responsibilities Regarding Non-Lawyer Assistants)
Ferguson’s conduct after Doud began his reduced role with the Firm violated multiple
ethical rules regarding supervision. Specifically, MRPC 5.1(a) states “[a] partner in a law firm
shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable
assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” Further,
MRPC 5.3(a) states that “[w]ith respect to a nonlawyer employed by, retained by, or associated
with a lawyer, a partner in a law firm shall make reasonable efforts to ensure that the firm has in
effect measures giving reasonable assurance that the person’s conduct is compatible with the
professional obligations of the lawyer.”
As a managing shareholder of the Firm, Ferguson was required to adhere to these rules.
The record indicates that Ferguson fell well short of this responsibility. After Lupisella’s departure
in December 2011, the Firm’s social security practice was essentially run by Wood, a non-lawyer
assistant. After an application for social security benefits was denied, Wood oversaw each stage
of the appeal, from the administrative stage through the appeal to federal court.
Other than contributing occasionally at the administrative level, Ferguson conducted no
oversight of the Firm’s social security practice. Ferguson “assumed it was being handled the way
it always was in the past,” because he figured Doud had left a “good system” in place. But that
was not the reality of how the Firm operated. And Ferguson did nothing to verify – as he should
have – that proper procedures and practices were being followed. This led to consistently deficient
work product, an outcome that could have been avoided had Ferguson engaged in proper
supervision. While Ferguson assumed things were being handled properly, it was his duty, as a
managing shareholder, to make reasonable efforts to ensure that the social security practice was
being run in conformity with the Rules of Professional Conduct. His failure to make such efforts
constituted a violation of MRPC 5.1(1) and MRPC 5.3(a).
2. MRPC 3.3 (Candor Toward the Tribunal)
By signing Doud’s name to the Radford affidavit, Ferguson made a “false statement of
material fact” to the court in violation of MRPC 3.3(a)(1). Ferguson, like Doud, knew that Judge
Cleland had ordered Doud to personally meet with Ms. Radford. Thus, despite knowing that Doud
was in another state, Ferguson communicated to the court, by his signature, that Doud had met
with Ms. Radford and had personally delivered to her the required cover letter and copies of the
R&R and Order adopting it. Furthermore, when he signed the affidavit, Ferguson did not indicate
that he was signing with Doud’s permission. He simply signed as Doud to give the impression
that Doud had followed Judge Cleland’s instructions. This conduct violated MRPC 3.3(a)(1).
Regarding the failure to supervise, the Panel observes that “[r]eprimand is generally
appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a
professional, and causes injury or potential injury to a client, the public, or the legal system.”
Ferguson believed that the Firm’s social security practice was being run in accordance with
a system put into place by Doud, and that his role was limited to contributing at the administrative
level only. Because he was told by Doud that his help was only needed at the administrative level,
Ferguson was genuinely unaware that the attorneys preparing the briefs in federal court were not
being properly supervised. Nonetheless, Ferguson’s conduct caused actual injury to the legal
system, in the form of burdening the Court, and injury to clients who lost out on potentially
While Ferguson negligently violated his duty of supervision, he knowingly violated his
duty of candor. Despite knowing that Doud had not met with Ms. Radford, Ferguson submitted
an affidavit to Judge Cleland falsely swearing that he did. Not only was Ferguson aware that the
meeting never took place, he also forged Doud’s signature on the affidavit. Although Ferguson
had Doud’s permission to sign for him, he failed to indicate that he was signing as Doud’s agent.
He also did not indicate that he met with Ms. Radford in Doud’s place. This misrepresentation
was made knowingly and had an adverse effect on the legal system, because it falsely led Judge
Cleland to believe that his Order had been complied with.
Regarding aggravating factors, Ferguson’s failure to supervise was not limited to one
incident. See Standard 9.22(c). His failure to supervise began after Doud’s purported retirement
in 2011 and continued until the issuance of the Radford Order. Like Doud’s actions, Ferguson’s
misconduct amounted to a violation of multiple ethical rules over a period of years. See Standard.
9.22(d). Further, Ferguson had substantial experience practicing law. See Standard 9.22(i). This
experience should have prepared Ferguson to handle the supervisory responsibilities that came
with being a managing shareholder at the Firm. Ferguson also should have been aware of how to
properly discharge his duty of candor to the Court.
On the other hand, Ferguson’s misconduct is mitigated by several factors. He made
significant efforts to rectify the situation by urging his Firm to cease all federal court appeals and
cooperating with Prosecuting Counsel during his investigation. See Standards 9.32(d)-(e). Further,
he does not have a prior disciplinary record. See Standard 9.32(a). Finally, Ferguson has expressed
remorse for his conduct, which the Panel concludes is genuine. See Ferguson Tr. at 139; 6/18/2016
Hr’g Tr. at 13, 33; Standard 9.32(l).
In light of these factors, the Panel concludes that a public reprimand is both warranted
and sufficient to express this Court’s profound disapproval of his misconduct.
For the foregoing reasons, the Panel orders that Doud be suspended from the practice of
law before this Court for 90 days; Ferguson is hereby publicly reprimanded for his misconduct.
Doud is reminded that, by virtue of his suspension, the requirements of E.D. Mich. LR 83.22(e)(8)
and (9) have been triggered. Doud and Ferguson are also ordered to pay, within 28 days of this
Opinion and Order, the costs and attorney fees incurred by Prosecuting Counsel. If there is any
dispute regarding that issue, Prosecuting Counsel shall file a motion within 28 days of this Opinion
and Order; if that issue is resolved by the parties, Prosecuting Counsel shall file a certificate to that
Pursuant to E.D. Mich. LR 83.22(e)(6)(H), this Opinion and Order is made public. The
remainder of the docket remains under seal.
Dated: June 23, 2017
s/ Mark A. Goldsmith
Mark A. Goldsmith
United States District Judge
s/Laurie J. Michelson
Laurie J. Michelson
United States District Judge
s/ Matthew F. Leitman
Matthew F. Leitman
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on June 23, 2017.
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