Opinion
A22-1836
06-06-2023
IN RE Petition for DISCIPLINARY ACTION AGAINST Donald B. NEMER, a Minnesota Attorney, Registration No. 0207913.
ORDER
The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Donald B. Nemer has committed professional misconduct warranting public discipline—namely, in one matter, failing to properly document a cash payment received from the client; failing to demonstrate thoroughness, preparedness, and legal knowledge reasonably necessary for a representation; failing to diligently represent the client; failing to communicate with the client, causing an unreasonable delay in the resolution of the client's case proceedings; knowingly disobeying an instruction from the court; and making knowingly false and misleading statements to a court on two separate occasions; and, in a second matter, failing to clearly communicate the basis or rate of his fee in a written fee agreement, and splitting legal fees with a lawyer not in his firm without obtaining written agreement from the client about the share each lawyer would receive. See Minn. R. Prof. Conduct 1.1, 1.3, 1.4(a)(2), 1.4(a)(3), 1.4(b), 1.5(b), 1.5(e), 1.15(h) as interpreted by Appendix 1(II)(2), 3.2, 3.3(a)(1), 3.4(c), 4.1, 8.4(c), and 8.4(d).
Respondent and the Director have entered into a stipulation for discipline. In it, respondent waives his right to answer, waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and unconditionally admits the allegations in the petition. The parties jointly recommend that the appropriate discipline is a 90-day suspension followed by 2 years of probation.
The court has independently reviewed the file and approves the recommended disposition.
Based upon all the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1. Respondent Donald B. Nemer is suspended from the practice of law for a minimum of 90 days, effective 14 days from the date of this order.
2. Respondent shall pay $900 in costs pursuant to Rule 24(a), RLPR.
3. Respondent shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals).
4. Respondent shall be eligible for reinstatement to the practice of law following the expiration of the suspension period provided that, not less than 15 days before the end of the suspension period, respondent files with the Clerk of the Appellate Courts and serves upon the Director an affidavit establishing that he is current in continuing legal education requirements, has complied with Rules 24 and 26, RLPR, and has complied with any other conditions for reinstatement imposed by the court.
5. Within 1 year of the date of this order, respondent shall file with the Clerk of the Appellate Courts and serve upon the Director proof of 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 4.A.(5), Rules for Admission to the Bar (requiring evidence that an applicant has successfully completed the Multistate Professional Responsibility Examination). Failure to timely file the required documentation shall result in automatic suspension, as provided in Rule 18(e)(3), RLPR. 6. Upon reinstatement to the practice of law, respondent shall be placed on probation for 2 years, subject to the following conditions:
a. Respondent shall cooperate fully with the Director's Office in its efforts to monitor compliance with this probation. Respondent shall promptly respond to the Director's correspondence by its due date. Respondent shall provide to the Director a current mailing address and shall immediately notify the Director of any change of address. Respondent shall cooperate with the Director's investigation of any allegations of unprofessional conduct that may come to the Director's attention. Upon the Director's request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Within 2 weeks from the filing of the order reinstating respondent to the practice of law, respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent's supervisor. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, respondent shall on the first day of each month provide the Director with an inventory of active client files, as described in paragraph d. below. Respondent shall make active client files available to the Director upon request.
d. Respondent shall cooperate fully with the supervisor in their efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client's name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent's supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts, and other persons interested in matters that respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
f. Within 30 days from the filing of the court's order reinstating respondent to the practice of law, respondent shall provide to the Director and to the probation supervisor, if any, a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.
BY THE COURT:
/s/ Natalie E. Hudson
Natalie E. Hudson
Associate Justice
MOORE, III, Justice (dissenting).
I respectfully dissent. I would have rejected the stipulation because I believe respondent's misconduct calls for stronger discipline.
MCKEIG, Justice (dissenting).
I join in the dissent of Justice Moore.