We alone have the final responsibility to determine the appropriate discipline to be imposed on an attorney who violates the rules of professional conduct. In re Disciplinary Action Against Selmer, 529 N.W.2d 684, 687 (Minn. 1995). Unlike the Panel, our authority to determine the appropriate form of discipline is not subject to the limits of Rule 9(j) (iii), RLPR. Rather, "[t]he discipline to be imposed depends on the specific facts of the misconduct, together with mitigating circumstances."
In making that determination, we consider the nature of the misconduct, the cumulative weight of the violations, the harm to the public, and the harm to the legal profession. In re Selmer, 529 N.W.2d 684, 687 (Minn. 1995). Although each case is decided on its own facts, prior cases may be helpful by analogy when considering what sanction to impose.
In 1995 Attorney Selmer was publically reprimanded and placed on probation for several violations, including abusing the discovery process. In re Selmer, 529 N.W.2d 684, 685 (Minn.1995). In 1995, the Minnesota Supreme Court affirmed an admonition issued to Attorney Selmer for improperly charging a client.
In 1995 we publicly reprimanded Selmer and placed him on probation for several violations, including abusing the discovery process. In re Selmer, 529 N.W.2d 684, 685 (Minn.1995). In 1995 we also affirmed an admonition issued to Selmer for improperly charging a client.
I certainly understand that this court gives great weight to a referee's recommendation for discipline. See, e.g., In re Selmer, 529 N.W.2d 684, 687 (Minn.1995). I also recognize that the Director and Griffith agreed not to challenge the referee's recommendation.
Additionally, Selmer was publicly reprimanded and put on probation for 2 years for the following violations: failing to promptly provide an accounting of the distribution of an arbitration award, charging an unreasonable fee, abusing the discovery process, failing to maintain proper trust account books and records, falsely certifying that he maintained proper trust account records, and commingling personal and client funds. In re Selmer, 529 N.W.2d 684 (Minn. 1995). After being privately admonished, publicly reprimanded, and placed on probation, Selmer was also subject to reciprocal disciplinary proceedings in Wisconsin, where he had been admitted to the bar in 1978, for the same conduct.
In 1995, Attorney Selmer received a public reprimand as reciprocal discipline for a reprimand imposed upon him by the Minnesota Supreme Court. In re Disciplinary Action Against Selmer, 529 N.W.2d 694 (Minn. 1995). Misconduct consisted of failing to promptly provide his client in a personal injury matter a full accounting of funds he received on her behalf, charging and suing that client to collect an unreasonable fee, abusing the discovery process in that action, failing to maintain proper trust account books and records and falsely certifying that he had done so, and commingling personal and client funds in his trust account.
"[T]he Code of Professional Responsibility requires an attorney to comply with applicable disciplinary rules at all times, regardless of whether he is acting in a professional capacity." In re Disciplinary Action Against Selmer, 529 N.W.2d 684, 687 (Minn. 1995). The CDC argues that respondents are collaterally estopped from denying the allegations of misrepresentation because the federal district court found that respondents had submitted false discovery responses.
Milloy has ordered a transcript of the disciplinary hearing; therefore, the referee's findings of fact and conclusions of law are not conclusive. 14(e), RLPR. Nevertheless, in attorney discipline matters, the referee's findings will not be set aside unless they are clearly erroneous. In re Selmer, 529 N.W.2d 684, 686 (Minn. 1995). Moreover, this court will defer to a referee's findings when the findings rest on "disputed testimony or in part on a respondent's demeanor, credibility or sincerity."
Respondent was admitted to practice law in the State of Minnesota on May 11, 1984. He has been disciplined by this court on two earlier occasions, one of which resulted in a public reprimand with two years' probation for respondent's failure to promptly provide an accounting; for his charge of and suit to collect an unreasonable fee; for his abuse of the discovery process in litigation against his client; for his failure to maintain proper trust account records; for his false certification that he had maintained those records; and for his commingling of personal and client funds. In re Disciplinary Action against Selmer, 529 N.W.2d 684 (Minn. 1995). In that matter, we had the occasion to note that "[a]t the heart of this disciplinary matter is Selmer's misuse of the litigation process to harass his client; this is not a matter which could be settled in fee arbitration.