When determining the discipline to be imposed for attorney misconduct, this court accords great weight to the referee's recommendations; however, we are ultimately responsible for determining the appropriate sanction. In re Hartke, 529 N.W.2d 678, 683 (Minn. 1995). In making that determination, this court weighs the nature of the misconduct; the cumulative weight of the disciplinary violations; harm to the public; and harm to the legal profession.
Therefore, we uphold the referee's finding that Moeller directed the forgery. In Re Hartke, 529 N.W.2d 678, 679-80 (Minn. 1995). The referee's findings as to the second forgery are supported by circumstantial evidence.
[R]espondent's adamant stance against voluntary payment of valid debts, especially when such obligations were for goods and services used in respondent's law practice, "reflects adversely on his commitment to the rights of others, thereby reflecting adversely on his fitness for the practice of law."Id. at 348 (citation omitted); see also In re Haugen, 543 N.W.2d 372, 375 (Minn. 1996) (concluding that failure to timely pay court reporter fees is unprofessional conduct); In re Hartke, 529 N.W.2d 678, 683 (Minn. 1995) (concluding that failure to satisfy a fee arbitration award until two months after an ethics complaint was filed — and after a check was returned for insufficient funds — violated Minn.R.Prof.Conduct 8.4(d)); In re Ruffenach, 486 N.W.2d 387, 390 (Minn.
That an attorney has obtained "excellent results" for "sometimes difficult clients" has been treated as a mitigating factor by a referee. In re Hartke, 529 N.W.2d 678, 683 (Minn. 1995). But we have also stated that, where evidence of reputation or "excellent results" comes only from testimony, the "referee is in the best position to assess the relative weight to give to witnesses' testimony."
Likewise, his misuse of his trust account harmed the legal profession because it called into question the ability of attorneys to safeguard their clients' money. See In re Hartke, 529 N.W.2d 678, 680 (Minn.1995) (“The maintenance of proper trust account records is one of the fundamental responsibilities of a practicing attorney because it is the only method for maintaining the identity of the client's money.”).We also consider aggravating and mitigating circumstances when determining the appropriate discipline for attorney misconduct.
As to the underlying misconduct, maintenance of proper trust account records is “one of the fundamental responsibilities of a practicing attorney because it is the only method for maintaining the identity of the client's money.” In re Hartke, 529 N.W.2d 678, 680 (Minn.1995). Further, it is important that attorneys avoid “taking advantage of unrepresented parties when acting on behalf of a client.”
A loan to a client where repayment is expected—even when no interest is charged—is a business transaction and should comply with the entirety of rule 32:1.8(a). SeeIowa R. Prof'l Conduct 32:1.8 cmt. 1 (“A lawyer's legal skill and training, together with the relationship of trust and confidence between lawyer and client, create the possibility of overreaching when the lawyer participates in a business, property, or financial transaction with a client, for example, a loan....”); see also In re Discipline of Hartke, 529 N.W.2d 678, 681 (Minn.1995) (noting a loan from a client to a lawyer is a “business transaction requiring the attorney to meet the disclosure requirements”); In re Disciplinary Proceedings Against Trewin, 275 Wis.2d 116, 684 N.W.2d 121, 131 (2004) (noting that in order for a loan from a lawyer to a client to be properly disclosed, a “client must give separate consent to the transaction with the lawyer, waiving the conflict of interest, and the client must indicate in writing he or she has been given a reasonable opportunity to consult with independent counsel”). Although comment 1 to the rule exempts “standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others,” this was not such a transaction.
In re Pokorny, 453 N.W.2d at 348 (internal quotations and citations omitted). See also In re Stanbury, 561 N.W.2d at 510-11 (sanctioning attorney for refusal to pay law library charges and court filing fee); In re Haugen, 543 N.W.2d 372, 375 (Minn. 1996) (sanctioning attorney for failure to timely pay court reporter fees); In re Hartke, 529 N.W.2d 678, 683 (Minn. 1995) (sanctioning attorney for failure to promptly satisfy a fee arbitration award); In re Ruffenach, 486 N.W.2d 387, 390 (Minn. 1992) (sanctioning attorney for failure to voluntarily pay legal malpractice judgment).
Albrecht points out that, in past disciplinary proceedings, the fact that an attorney in a disciplinary proceeding has an "extensive, busy practice" and has obtained "excellent results" for "sometimes difficult clients" has been treated as a mitigating factor. In re Hartke, 529 N.W.2d 678, 683 (Minn. 1995). We have also treated an attorney's "reputation in the legal community for integrity and hard work" as a mitigating factor.
In re Florida Bar Re Amendments to Rules Regulating the Florida Bar, 635 So.2d 968 (Fl. 1994) (A lawyer's gift to a client for basic needs without expectation of repayment does not violate the rules. Florida Bar. v. Taylor, 648 So.2d 1190 (Fl. 1995)); In re Reed, 599 N.E.2d 601 (Ind. 1992);Curtis v. Kentucky Bar Ass'n, 959 S.W.2d 94 (Ky. 1998); Attorney Grievance Comm'n of Md. v. Eisenstein, 635 A.2d 1327 (Md. 1994); In re Discipline of Hartke, 529 N.W.2d 678 (Minn. 1995); Mississippi Bar v. Attorney HH, 671 So.2d 1293 (Miss. 1995), withdrawn, substitute opinion, reh'g denied, 1996 Miss. LEXIS 75 (Miss. 1996) (opinion substantially unchanged; imposing private reprimand) (Rule was amended in 1999 to explicitly allow advances for "[r]easonable and necessary living expenses." Attorney AAA v. Mississippi Bar, 735 So.2d 294 (Miss.