Opinion
A21-0312
03-11-2022
IN RE Petition for DISCIPLINARY ACTION AGAINST John Michael HUBERTY, a Minnesota Attorney, Registration No. 0320274.
ORDER
The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent John Michael Huberty has committed professional misconduct warranting public discipline, namely, that on January 14, 2021, he was convicted of the felony crime, Attempted Criminal Sexual Conduct in the Third Degree, Victim 13-15, Actor greater than 24 months older, in violation of Minn. Stat. § 609.344, subd. 1(b) (2018), and Minn. Stat. § 609.17, subd. 4(2) (2020). See Minn. R. Prof. Conduct 8.4(b). Respondent was sentenced and received a stay of imposition, conditioned on, among other things, 5 years’ probation.
Respondent and the Director have entered into a stipulation for discipline. In it, respondent withdraws his previously filed answer, unconditionally admits the allegations of the petition, and waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR). The parties jointly recommend that the appropriate discipline is an indefinite suspension for a minimum of 2 years, with respondent granted permission to apply for reinstatement 3 months prior to the end of the suspension period.
The purpose of discipline for professional misconduct is not to punish the attorney but rather to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys. In re Engel , 859 N.W.2d 788, 789 (Minn. 2015). In determining the appropriate discipline to impose, 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 Hummel , 839 N.W.2d 78, 81 (Minn. 2013). "Because we strive for consistency in attorney discipline, we look to similar cases for guidance in setting the proper sanction." In re Rooney , 709 N.W.2d 263, 268 (Minn. 2006). Nevertheless, "the discipline is tailored to the specific facts of each case." In re McCloud , 955 N.W.2d 270, 278 (Minn. 2021) (citing In re Greenman , 860 N.W.2d 368, 376 (Minn. 2015) ).
Respondent's conduct was a serious breach of the standards of professional conduct required of an attorney licensed in Minnesota. Respondent pleaded guilty to a felony punishable by up to 7 1/2 years in prison. See Minn. Stat. § 609.344, subd. 2(1) (2018) (providing that the punishment for criminal sexual conduct in the third degree includes imprisonment for up to 15 years); Minn. Stat. § 609.17, subd. 4 (providing that the penalty for an attempt to commit a crime is half the penalty for the completed crime). We "generally view felony convictions as serious misconduct." In re Pitera , 827 N.W.2d 207, 210 (Minn. 2013) (quoting In re Perez , 688 N.W.2d 562, 567 (Minn. 2004) ) (internal quotation marks omitted). "When an attorney commits criminal conduct unrelated to the practice of law," we have " ‘typically imposed suspensions or public reprimands.’ " Id. (quoting In re Farley , 771 N.W.2d 857, 864 (Minn. 2009) ).
Respondent's criminal conduct is unrelated to the practice of law. But we have imposed lengthy suspensions when attorneys commit sexual offenses involving minors. See , e.g. , In re Lorentzen , 935 N.W.2d 435, 436 (Minn. 2019) (order) (3-year suspension for lawyer who solicited a minor to engage in prostitution); In re Bohanek , 928 N.W.2d 744, 744 (Minn. 2015) (order) (3-year suspension for lawyer who engaged in online solicitation of a minor for sexual conduct).
Occasionally, when an attorney has been sentenced to probation in a criminal matter, we have tied the length of a disciplinary suspension to that period of criminal probation. See Farley , 771 N.W.2d at 866 (suspending attorney for 1 year, to "extend to a future date that approximates [attorney's] three-year probation period," for attorney who was convicted for criminal solicitation of a child over the internet for sexual conduct); In re Hanson , 592 N.W.2d 130, 130-31 (Minn. 1999) (order) (suspending attorney for 5 years or until her successful discharge from criminal probation, whichever is later, for attorney convicted of a drug crime); In re Olkon , 324 N.W.2d 192, 196 (Minn. 1982) (suspending attorney for the remainder of his criminal probation, for attorney convicted of attempted theft by swindle). Under the facts of this case, we believe that is the appropriate sanction for respondent's misconduct.
Based upon all the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1. Respondent John Michael Huberty is indefinitely suspended from the practice of law, effective 14 days from the date of this order, until such time as he is successfully discharged from criminal probation.
2. Respondent may petition for reinstatement pursuant to Rule 18(a)-(d), RLPR, not more than 3 months prior to the predicted end of the minimum suspension period. Reinstatement is conditioned on successful completion of the written examination required for admission to the practice of law by the State Board of Law Examiners on the subject of professional responsibility, see Rule 18(e)(2), RLPR ; see also Rule 4.A.(5), Rules for Admission to the Bar (requiring evidence that an applicant has successfully completed the Multistate Professional Responsibility Examination), and satisfaction of continuing legal education requirements, see Rule 18(e)(4), RLPR.
3. Respondent shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals), and shall pay $900 in costs pursuant to Rule 24, RLPR.
BY THE COURT:
/s/ __________
Natalie E. Hudson
Associate Justice