The Michigan Constitution authorizes the Supreme Court to provide for the confidentiality of complaints to and investigations by the Commission, Michigan Constitution; article 6, section 30. The court rules provide that complaints and investigations are privileged and confidential, subject to certain exceptions, unless and until a formal complaint is issued. MCR 9.261.
The instances where the confidentiality and privilege provisions may not be applicable are fully addressed in MCR 9.261. One provision is that under MCR 9.261(B)(2), the Commission may make public statements during the investigating stage if, on its sole determination by majority vote, it is in the public interest to do so. Nevertheless, the Commission’s statement, if any, is limited to the fact that (1) there is an investigation pending, (2) the investigation is complete and there appears to be insufficient evidence for the Commission to file a complaint, or (3) with the consent of the respondent, that the investigation is complete and some specified disciplinary action has been taken.
Pursuant to MCR 9.261(D), when formal proceedings are instituted, the formal complaint, answer, and all subsequent filings, the hearing, and the hearing before the commission provided for in MCR 9.241 are open to the public. Materials filed with and proceedings before the commission prior to the issuance of a formal complaint remain confidential unless offered into evidence in a formal hearing. Commission deliberations during formal proceedings remain confidential.
Additional provisions addressing discretionary waiver of confidentiality or privilege, a public safety exception, and terms of disclosure to the grievant, state court administrator, attorney grievance commission and the local chief judge (if a respondent is a magistrate or referee) are also contained within MCR 9.261.