Opinion
A18-1149
09-11-2019
IN RE Petition for DISCIPLINARY ACTION AGAINST Christopher J. NELSON, a Minnesota Attorney, Registration No. 0259779.
ORDER
The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action and a supplementary petition alleging that respondent Christopher J. Nelson committed professional misconduct warranting public discipline, namely: failure to pay a law-related judgment, failure to respond to court orders, and failure to comply with court orders to show cause why he should not be held in contempt; failure to appear for a court hearing, failure to communicate with a client, and making improper solicitations to provide legal services; and failure to cooperate with the Director’s investigation. See Minn. R. Prof. Conduct 1.4(a)(4), 3.4(c), 7.3(c), 8.1(b), and 8.4(d) ; and Rule 25, Rules on Lawyers Professional Responsibility (RLPR). We referred the matter to a referee.
Respondent failed to appear for proceedings before the referee. As a result, the referee struck respondent’s answer and deemed the allegations of the petition and the supplementary petition admitted. Following a hearing on the harm caused by respondent’s misconduct and the presence of any aggravating factors, the referee made findings, conclusions, and a recommendation. The referee concluded that respondent committed the misconduct alleged in the petition and supplementary petition, that the harm caused was substantial, and that five aggravating favors were present. The referee recommended that respondent be indefinitely suspended with no right to petition for reinstatement for 6 months.
Because no party ordered a transcript of the proceedings before the referee, the referee’s findings and conclusions are conclusive. See Rule 14(e), RLPR. We issued a briefing schedule. In her brief, the Director recommends that the court impose the 6-month suspension recommended by the referee. Respondent did not file a brief with this court.
Based upon all the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1. Respondent Christopher J. Nelson is indefinitely suspended from the practice of law, effective 14 days from the date of the filing of this order, with no right to petition for reinstatement for 6 months.
2. Respondent may petition for reinstatement pursuant to Rule 18(a)–(d), RLPR. 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, 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(a), RLPR.
CONCURRENCE
HUDSON, Justice (concurring). I concur in the court’s disposition of this case. The court recites that among other things, respondent failed to pay a law-related judgment, failed to respond to court orders, and failed to comply with orders to show cause. Such misconduct is indeed serious, but the abbreviated description in the court’s order does not do justice to the outrageousness of respondent’s actions. According to the allegations of the petition, which were deemed admitted because of respondent’s failure to appear, one of respondent’s former clients secured a money judgment against him based on respondent’s failure to resolve the client’s case. Respondent refused to respond to or comply with court orders intended to facilitate collection of the judgment; avoided service of an order to show cause why he should not be held in contempt for failing to comply with the previous orders; and failed to appear before the court when he eventually was successfully served, leading the court to issue a bench warrant for his arrest. By his repeated failure to comply with his obligations to the court, respondent was successful in avoiding satisfaction of the judgment for 10 years until the judgment expired.
In my view respondent’s flouting of the legal system, conducted in service of an effort to avoid responsibility for respondent’s own professional failing, and sustained for a decade, merits a lengthy suspension. The Director recommends that we impose a minimum 6-month indefinite suspension. In my view, that is the absolute floor of possible sanctions that could be considered appropriate for respondent’s misconduct. It is only because respondent, if he seeks reinstatement, will be required to demonstrate by clear and convincing evidence that he has undergone the requisite moral change to render him fit to practice law, see In re Griffith , 883 N.W.2d 798, 799 (Minn. 2016), that I concur.
McKEIG, Justice (concurring).
I join in the concurrence of Justice Hudson.
CONCURRENCE
THISSEN, Justice (concurring).
I concur in the discipline imposed in this case. Christopher J. Nelson’s conduct in failing to pay a law related judgment, failing to respond to court orders, failing to show cause why he should not be held in contempt, failing to appear for a court hearing, failing to communicate with his client, making improper solicitations to provide legal services, and failing to cooperate with the Director’s investigation warrant a suspension with no right to seek reinstatement for 6 months. Minn. R. Prof. Conduct 1.4(a)(4), 3.4(c), 7.3(c), 8.1(b) and 8.4(d) ; Rule 25, Rules on Lawyers Professional Responsibility (RLPR). Because the 6-month suspension imposed in this case is appropriate based on Nelson’s violations of the rules and his prior disciplinary history without any need to resort to consideration of other aggravating factors, I write separately to express concern regarding several aggravating factors the referee found to be present in this case.
For example, we imposed indefinite suspensions of at least 90 days in In re Ruffenach , 486 N.W.2d 387, 391 (Minn. 1992), and In re Pokorny , 453 N.W.2d 345, 349 (Minn. 1990), for similar conduct—failure to pay malpractice or law-related debts and failure to appear at court hearings. In each case, the disciplined lawyer, like Nelson, had prior disciplinary history. In Pokorny , the court also found aggravating factors ("no contrition, no remorse, and no willingness to make amends"), but also found those aggravating factors were somewhat counterbalanced with a mitigating factor ("no evidence of a selfish or dishonest motive"). 453 N.W.2d at 348. Nelson’s conduct here was more egregious.
First, the referee cited Nelson’s substantial legal experience as an aggravating factor. As I have discussed elsewhere, see In re Sea , 932 N.W.2d 28, 43 (Minn. 2019) (Thissen, J., concurring in part & dissenting in part), I find the invocation of legal experience as an aggravating factor to be problematic without an analysis of why an attorney’s legal experience actually aggravates either the wrongfulness of the attorney’s conduct or the harm it causes. In particular, I see nothing in this case that would explain why Nelson’s legal experience makes the particular conduct at issue in this matter worse than similar conduct by other, less experienced, lawyers. Certainly neither the Director nor the referee provided such an explanation. In my view, a greater showing should be made before legal experience is treated as an aggravating factor.
Second, the referee points to Nelson’s selfish motive in failing to pay the law-related judgment entered against him as an aggravating factor. Certainly, not paying money plainly owed to someone else is selfish, but that is true in most situations where a debt is unpaid. I see no reason to conclude that Nelson’s conduct was particularly selfish compared to any other lawyer who failed to repay a debt in violation of the Rules of Professional Conduct, and again, neither the Director nor the referee provided an explanation. Accordingly, I cannot agree that selfish motive should be an aggravating factor in this case.
Finally, the referee determined that Nelson’s failure to participate in the disciplinary proceedings before the referee is an aggravating circumstance that requires additional discipline. As noted earlier, the referee also and separately determined that Nelson violated Minn. R. Prof. Conduct 8.1(b) and Rule 25, Rules on Lawyers Professional Responsibility, for failing to cooperate with the Director’s investigation. In short, the findings in this case call for us to impose discipline on Nelson for failing to cooperate with disciplinary proceedings and then to also treat his non-cooperation with the disciplinary proceedings as an aggravating circumstance requiring an even greater sanction.
A lawyer’s failure to cooperate with an ethics investigation has been considered a professional ethics violation requiring discipline in Minnesota since the 1930s. We reasoned that the failure of a lawyer to respond to important letters and notices—like letters from the ethics committee—called into question the lawyer’s competence and professionalism. See In re Larson , 210 Minn. 414, 298 N.W. 707, 708–09 (1941) ; In re Chmelik , 203 Minn. 156, 280 N.W. 283, 284–85 (1938) ; In re Breding , 188 Minn. 367, 247 N.W. 694, 694–95 (1933) ; In re Gurley , 184 Minn. 450, 239 N.W. 149, 149 (1931). In 1979, we reaffirmed that "it is incumbent upon an attorney to cooperate with disciplinary authorities in their investigation and resolution of complaints against him" and that failure to do so "constitute[s] a separate act of professional misconduct." In re Cartwright , 282 N.W.2d 548, 551–52 (Minn. 1979). We also encouraged the Lawyers Professional Responsibility Board to adopt a rule that delineates the scope of a lawyer’s duty of cooperation. Id. at 552.
In 1981, Rule 25 of the Rules on Lawyers Professional Responsibility was adopted. Rule 25 currently provides that "[i]t shall be the duty of any lawyer who is the subject of an investigation or proceeding under these Rules to cooperate with the District Committee, the Director, or the Director’s staff, the Board, or a Panel, by complying with reasonable requests" including requests to appear for conferences and hearings. The Rule further provides that violation of Rule 25 "is unprofessional conduct and shall constitute a ground for discipline." The Minnesota Rules of Professional Conduct adopted in 1985 included Rule 8.1(a)(3). That language, now found in Rule 8.1(b), currently provides that "a lawyer ... in connection with a disciplinary matter, shall not ... knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority." We have employed Minn. R. Prof. Conduct 8.1 and Rule 25, RLPR, interchangeably as a basis for disciplining lawyers for lack of cooperation with disciplinary proceedings. In re Aitken , 787 N.W.2d 152, 161 (Minn. 2010).
I acknowledge that our past decisions have condemned double counting of non-cooperation while simultaneously allowing that very double-counting where one act of non-cooperation (usually non-cooperation with an investigation) is used to support the imposition of discipline for violating Minn. R. Prof. Conduct 8.1 and Rule 25, RLPR, and a different act of non-cooperation (usually non-cooperation in the proceedings before a referee) is used as an aggravating factor to augment the sanction. See In re Villanueva , 931 N.W.2d 816, 824 (Minn. 2019) ; In re Gorshteyn , 931 N.W.2d 762, 771–72 (Minn. 2019) ; In re Hulstrand , 910 N.W.2d 436, 444 (Minn. 2018) ; In re O'Brien , 809 N.W.2d 463, 466–67 (Minn. 2012) ; see also In re Albrecht , 845 N.W.2d 184, 193 n.16 (Minn. 2014) (reversing a referee’s reliance on acts of non-cooperation to support both a determination of a Rule 8.1(b) violation and an aggravating factor finding); In re Jones , 834 N.W.2d 671, 680 n.9 (Minn. 2013) (same). I believe this practice of allowing non-cooperation to count as both an independent rules violation and an aggravating factor is improper.
First, we have long held that failure to attend a panel hearing is a "serious violation" of Rule 8.1 that itself merits a suspension. In re Thedens , 557 N.W.2d 344, 350 (Minn. 1997). If a lawyer fails to participate in the panel hearing, the Director should assert a formal violation of the rules rather than side-stepping normal processes and urging instead a finding of aggravating circumstances. Cf. In re Charges of Unprofessional Conduct in Panel File 42735 , 924 N.W.2d 266, 273 (Minn. 2019) (stating that "to comport with due process, lawyers facing discipline must be given notice of the charges against them" (quoting In re Taplin , 837 N.W.2d 306, 311 (Minn. 2013) )). Indeed, before 2002, we never cited failure to cooperate with a disciplinary proceeding as an aggravating circumstance. We only disciplined an attorney for failure to cooperate when the Director charged and litigated the non-cooperation as a substantive rule violation. Second, our jurisprudence that non-cooperation can be both an independent rules violation and/or an aggravating factor emerged without any meaningful analysis. In In re Westby , 639 N.W.2d 358, 370-71 (Minn. 2002), we affirmed the imposition of discipline for failure to cooperate under Rule 8.1 and then, at the end of a string of six "aggravating factors" and without citation, we noted that the lawyer’s "lack of candor and cooperation throughout the disciplinary proceedings is also an aggravating factor." In In re Pierce , 706 N.W.2d 749, 757 (Minn. 2005), we cited Westby in holding that failure to cooperate in disciplinary proceeding may be an independent violation of Minn. R. Prof. Conduct 8.1 and Rule 25, RLPR, and an aggravating factor as well. See also In re Mayrand , 723 N.W.2d 261, 269 (Minn. 2006) (citing In re Brooks , 696 N.W.2d 84, 88 (Minn. 2005), for the proposition that "failure to cooperate with the disciplinary process constitutes separate misconduct warranting discipline independent from the conduct underlying the petition" despite the fact that in Brooks the Director asserted failure to cooperate as an independent violation of Rule 8.1 and not as an aggravating factor) (emphasis added); In re Rhodes, 740 N.W.2d 574, 580 (Minn. 2007) (stating that repeated failure to cooperate with the disciplinary process is a significant aggravating factor, again without citation). Notably, we have expressly overruled Westby , Pierce , and Mayrand . In re Jones , 834 N.W.2d at 680 n.9.
Over the two decades following the adoption of Minn. R. Prof. Conduct 8.1 and Rule 25, RLPR, we held on numerous occasions that failure to cooperate in a disciplinary proceeding constituted an independent rule violation and ground for discipline:
Failure to cooperate with the disciplinary process constitutes separate misconduct warranting discipline independent from the conduct underlying the petition. We have stressed that failure to cooperate with a disciplinary investigation, in and of itself, constitutes an act of misconduct that warrants indefinite suspension.
In re Brooks , 696 N.W.2d 84, 88 (Minn. 2005) (citations omitted). At times, we used somewhat imprecise language when imposing discipline for an independent non-cooperation violation in combination with other conduct that violates the Rules of Professional Responsibility. For instance, in In re Nelson , we stated that "noncooperation with the disciplinary process, by itself, may warrant indefinite suspension and, when it exists in connection with other misconduct, noncooperation increases the severity of the disciplinary sanction." 733 N.W.2d 458, 464 (Minn. 2007) (citing In re Samborski , 644 N.W.2d 402, 407 (Minn. 2002) ); see also In re De Rycke , 707 N.W.2d 370, 375 (Minn. 2006) ; In re Davis , 585 N.W.2d 373, 377–78 (Minn. 1998). Our point was not surprising: a violation of Rule 8.1 and Rule 25 for non-cooperation may warrant indefinite suspension by itself and, if other professional ethics violations are also established, non-cooperation can support an even heavier sanction. In a few later cases, the latter part of this conclusion referring to a heavier sanction has been read without close analysis as supporting the notion that "non-cooperation is an aggravating factor" rather than an independent rules violation that the Director must prove. See, e.g., In re Aitken , 787 N.W.2d 152, 162 (Minn. 2010) (stating that non-cooperation is an aggravating factor despite the fact that the court had a few paragraphs earlier affirmed the referee’s conclusion that the lawyer’s non-cooperation was a violation of Rule 8.1 and Rule 25 ). In my opinion, that reading of the prior cases is incorrect.
In Pierce , we also cited In re Engel , 538 N.W.2d 906, 907 (Minn. 1995). There was no finding of aggravating circumstances in Engel.
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In my view, the proper response to this since-overruled evolution of our jurisprudence is not the course first charted in O'Brien —allowing double counting of non-cooperation where different acts of non-cooperation in the course of a single disciplinary proceeding can be put into different boxes to support a rule violation on the one hand and a finding of aggravating circumstances on the other. The better course would be to return to the state of the law before Westby , Pierce , and Mayrand . Non-cooperation should not be used as an aggravating factor.
There are practical reasons for my position. The O'Brien rule has caused confusion among referees requiring repeated warnings from us about the proper application of the rule. See In re Albrecht , 845 N.W.2d at 193 n.16 ; In re Jones , 834 N.W.2d at 680 n.9. Further, a referee and our court have many tools to hold accountable a lawyer who fails to cooperate or participate in a hearing. Most significantly, when a lawyer fails to show up for his hearing, the Director’s allegations against him are deemed admitted. In re Gorshteyn , 931 N.W.2d at 762. Finally, a clear rule that non-cooperation is a violation of the professional conduct rules, that the violation must be alleged and proved, and that non-cooperation cannot also be treated an aggravating factor, makes our system of lawyer discipline seem less arbitrary, more understandable, and fairer. And that in the end serves the public interest.