Opinion
A21-0268
02-10-2023
IN RE Petition for REINSTATEMENT OF Jorge L. SANCHEZ, a Minnesota Attorney, Registration No. 0388556.
ORDER
In February 2016, we imposed reciprocal discipline on petitioner Jorge L. Sanchez after the Nevada Supreme Court suspended him. In re Sanchez , 874 N.W.2d 439, 439 (Minn. 2016) (order). Specifically, we indefinitely suspended Sanchez from the practice of law, effective as of December 8, 2014, with no right to petition for reinstatement until 5 years after the beginning of his suspension. See id.
In February 2021, Sanchez petitioned for reinstatement. A hearing was held before a panel of the Lawyers Professional Responsibility Board. The divided panel submitted its findings of fact, conclusions, and recommendation. The panel found that Sanchez had proven by clear and convincing evidence that he had undergone the requisite moral change to render him fit to resume the practice of law, that he possessed the intellectual competency to practice law, and that he had otherwise met the conditions of reinstatement set forth in our prior order. The panel recommended that Sanchez be reinstated to the practice of law and placed on probation.
Sanchez and the Director of the Office of Lawyers Professional Responsibility have entered into a stipulation for terms of probation upon reinstatement. In it, they waive their procedural rights under Rule 18, Rules on Lawyers Professional Responsibility, and ask us to decide whether to reinstate Sanchez without a referee hearing or briefing and oral argument before us. They jointly recommend that if we reinstate Sanchez, we place him on probation, subject to the terms to which they have stipulated, and that his probation begin when he resumes practicing law.
We have the sole responsibility to decide whether to reinstate an attorney. In re Stockman , 896 N.W.2d 851, 856 (Minn. 2017). We give no deference to a panel's recommendation about reinstatement, and instead, "[w]e independently review the entire record to determine whether an attorney should be reinstated." In re Dedefo , 781 N.W.2d 1, 7 (Minn. 2010). At the same time, we review the panel's factual findings under a clearly erroneous standard. In re Sand , 951 N.W.2d 918, 921 (Minn. 2020) (explaining that when we order the parties to provide a transcript, we review the panel's findings using a clearly erroneous standard).
An attorney seeking reinstatement must prove by clear and convincing evidence that the attorney "has undergone such a moral change as now to render [the attorney] a fit person to enjoy the public confidence and trust once forfeited." In re Tigue , 960 N.W.2d 694, 700 (Minn. 2021) (citation omitted) (internal quotation mark omitted). "Generally, to prove moral change a lawyer must show remorse and acceptance of responsibility for the misconduct, a change in the lawyer's conduct and state of mind that corrects the underlying misconduct that led to the suspension, and a renewed commitment to the ethical practice of law." In re Mose , 843 N.W.2d 570, 575 (Minn. 2014). Although moral change is one of several things a lawyer seeking reinstatement must prove, it "is the most important factor." Stockman , 896 N.W.2d at 857.
The panel made 13 pages of factual findings related to the standard to prove moral change. Key portions of those findings include that Sanchez credibly testified that he is remorseful for his misconduct. Sanchez presented the testimony of two witnesses, who credibly testified that Sanchez is remorseful and has significantly changed his behavior since being suspended. Sanchez apologized to some clients he harmed. And he has made a good-faith effort to pay restitution to the clients that he harmed.
Sanchez's mental health was a mitigating factor in the Nevada disciplinary proceeding. Some of the panel's findings related to moral change address Sanchez's mental health. The panel found that Sanchez has been consistent in mental-health treatment since 2015. He has regularly seen a psychiatrist and a psychologist and taken his prescribed medication. And since 2014, his mental illness has not caused any episodes of aberrant behavior that interfered with his ability to work or attend school or damaged his personal relationships.
Sanchez has never lived or practiced law in Minnesota. The panel made findings related to Sanchez's plan for his legal practice. Sanchez intends to move, along with his mother who is part of his support network, to Minnesota. He will not work as a solo practitioner and instead intends to find a job where another lawyer will supervise him. Until he finds legal work, Sanchez will maintain his present, nonlegal employment, which he can do remotely. Sanchez has met with a lawyers’ mental-health support group in Minnesota and has talked with a Minnesota psychologist about transferring his care after he moves here. The panel also found that Sanchez has deep, meaningful relationships with family members to whom he turns for support and that he will be able to maintain these relationships with family members who do not live in Minnesota through technology.
Based on our independent review of the record, we agree that Sanchez has proven moral change and that he should be reinstated to the practice of law, subject to certain conditions.
The dissent contends that Sanchez has not shown moral change for two reasons. First, the dissent notes that Sanchez has never practiced law in Minnesota and asserts that he has not presented a coherent plan about his legal practice if he is reinstated. "[A]n attorney's plan to return to the practice of law or implement systems to avoid future misconduct are factors that may be relevant to whether an attorney has shown a renewed commitment to the ethical practice of law." In re Severson , 923 N.W.2d 23, 32 (Minn. 2019). It is true that Sanchez has not identified specific legal employment that he would have in Minnesota if he were reinstated. All the same, many other facts establish that Sanchez has shown a renewed commitment to the ethical practice of law, including his steady employment since suspension, which includes educating businesses on legal compliance issues, and his consistent mental-health treatment, which includes meeting with a Minnesota-based legal support group. And our conditions of probation will preclude Sanchez from being a solo practitioner. Based on the specific facts here, Sanchez's lack of a specific employer "is not a barrier to his reinstatement." Id. at 33.
The dissent further contends that Sanchez has failed to establish moral change because he has not presented evidence showing support from legal professionals or other third parties aside from his family members. We disagree. We recently rejected a similar argument made by a dissent in a reinstatement matter, explaining that we have not required "the existence of a specific type of evidence" to prove moral change and instead have "considered the quality of a petitioner's evidence." Sand , 951 N.W.2d at 923 (reinstating disbarred lawyer when the lawyer did not present the testimony of any third parties at the hearing). Here the panel heard and credited testimony from Sanchez and two of his family members, and the record includes hundreds of pages of Sanchez's medical records. Just like in Sand , "[b]ased on the record and the panel's ability to best understand the quality and credibility of [Sanchez's] testimony, we have no reason to conclude" that Sanchez has not proven moral change. Id.
Based upon all the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:
1. Petitioner Jorge L. Sanchez is reinstated to the practice of law, effective upon payment of the required registration fees to the Minnesota Lawyer Registration Office.
2. Petitioner is placed on probation for 3 years, subject to the following terms and conditions:
(a) Petitioner's probation shall begin at the time he resumes the practice of law.
(b) Petitioner shall provide written notice to the Director of his intention to practice law. Petitioner shall provide as much advance notice to the Director as practicable, and no less than 60 days advance notice.
(c) Petitioner shall cooperate fully with the Director's Office in its efforts to monitor compliance with this probation. Petitioner shall promptly respond to the Director's correspondence by the due date. Petitioner shall provide the Director with a current mailing address and shall immediately notify the Director of any change of address. Petitioner 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, petitioner shall authorize the release of information and documentation to verify compliance with the terms of this probation.
(d) Petitioner shall abide by the Minnesota Rules of Professional Conduct.
(e) Petitioner shall not engage in the solo practice of law.
(f) Upon resuming the practice of law, petitioner shall be supervised by a licensed Minnesota attorney appointed by the Director to monitor compliance with the terms of his probation. Petitioner shall provide the Director with the names of up to four attorneys who have agreed to be nominated as petitioner's supervisor within 2 weeks from the date that petitioner notifies the Director that he intends to engage in the practice of law. If, after diligent effort, petitioner 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, petitioner shall, on the first day of each month, provide the Director with an inventory of active client files described in paragraph 2(g). Petitioner shall make active client files available to the Director upon request.
(g) Petitioner shall cooperate fully with the supervisor's efforts to monitor compliance with his probation. Petitioner shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Petitioner shall submit to the supervisor an inventory of all active client files by the first day of each month during his 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. Petitioner's supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may be requested by the Director.
(h) Petitioner shall initiate and maintain office procedures enabling him to maintain a current case list and keep track of the status, deadlines, and next steps in every case.
(i) Within 2 weeks of notifying the Director of his intent to return to the active practice of law, petitioner shall provide the Director and the probation supervisor, if any, a written plan outlining office procedures designed to ensure that petitioner complies with all probation requirements. Such office procedures shall outline petitioner's specific
plans and resources available to him to address any practice-related issues.
(j) Petitioner shall notify the Director within 10 business days of becoming a signatory on an IOLTA. Petitioner shall maintain trust account books and records in compliance with Minnesota Rule of Professional Conduct 1.15 and Appendix 1 to those rules. These books and records shall include the following: client subsidiary ledgers, checkbook register, monthly trial balance reports, monthly reconciliation reports, bank statements, canceled checks (if they are provided with the bank statements), duplicate deposit slips, bank reports of interest, service charges and interest payments to the Minnesota IOLTA Program and bank wire, electronic, or telephone transfer confirmations. Such books and records shall be made available to the Director within 30 days of petitioner becoming a signatory on an IOLTA and thereafter shall be made available to the Director at such intervals as the Director deems necessary to determine compliance.
(k) Petitioner shall continue to participate in therapy with a licensed therapist on a schedule determined by the therapist. Petitioner shall also continue treating with a psychiatrist and comply with all prescribed medication regimens. Petitioner shall cooperate with the Director's efforts to monitor compliance with this provision, including providing authorizations for the release of medical information to the Director as requested.
(l) Petitioner shall continue to make his best efforts to complete the outstanding restitution owed pursuant to the Nevada Supreme Court's September 21, 2015, order approving conditional guilty plea agreement.
(m) The Director may, as a term of petitioner's probation, establish a restitution payment schedule or structure for petitioner. When establishing the schedule, the Director shall consider relevant information supplied by petitioner. The schedule must provide that the obligation to pay restitution continues throughout the term of probation.
(n) Within 3 years from the time petitioner resumes the practice of law, petitioner shall fulfill his restitution requirements and serve upon the Director proof that petitioner has made all restitution owed pursuant to the Nevada Supreme Court's September 21, 2015, order approving conditional guilty plea agreement. Petitioner's failure to provide proof of fulfilling his restitution obligations within 3 years from the resumption of the practice of law may be considered a violation of the terms of his probation and the Director may seek revocation of probation and additional discipline.
(o) If after successfully completing probation, petitioner plans to return to the solo practice of law within 2 years of the completion of his supervised probation, petitioner shall provide the Director as much advance notice as practicable, but no less than 60 days advance notice. Petitioner shall be placed on unsupervised probation for an additional year while practicing solo. If the Director believes petitioner's probation should be supervised or require additional terms, the Director may file a motion requesting that the Court amend the terms of probation.
(p) If at any time during the period of probation or such additional period of probation as may be applicable, after giving petitioner an opportunity to be heard by the Director, the Director concludes that petitioner has violated the conditions of the probation or engaged
in further misconduct, the Director may file a petition for disciplinary action against petitioner in the Minnesota Supreme Court without the necessity of submitting the matter to a panel or panel chair. Petitioner waives the right to such consideration by the panel or panel chair.
BY THE COURT:
/s/ __________
Natalie E. Hudson
Associate Justice
DISSENT
McKEIG, Justice (dissenting).
I respectfully dissent. An attorney applying for reinstatement "must establish by clear and convincing evidence that she or he has undergone such moral change as now to render him [or her] a fit person to enjoy the public confidence and trust once forfeited." In re Porter , 472 N.W.2d 654, 655 (Minn. 1991) (citation omitted) (internal quotation marks omitted). Clear and convincing evidence means evidence that is "unequivocal, intrinsically probable and credible, and free from frailties." Gassler v. State , 787 N.W.2d 575, 583 (Minn. 2010), abrogated on other grounds by Henderson v. State , 906 N.W.2d 501 (Minn. 2018). In determining whether an attorney has shown a renewed commitment to the ethical practice of law, we consider as a factor "an attorney's plan to return to the practice of law or implement systems to avoid future misconduct." In re Severson , 923 N.W.2d 23, 32 (Minn. 2019). Sanchez has never practiced law in Minnesota and does not present a coherent plan regarding what his legal practice in Minnesota would involve should he be reinstated. Sanchez's evidence of moral change is neither clear nor convincing and does not include a showing of support from legal professionals or other third parties aside from his family members—considerations we have previously held to be important in the reinstatement determination. See In re Swanson , 343 N.W.2d 662, 665 (Minn. 1984). In other words, "[b]efore we reinstate, more than petitioner's word ... is required." In re Williams , 433 N.W.2d 104, 108 (Minn. 1988) (Simonett, J., dissenting).
Because the evidence that Sanchez offered does not establish by clear and convincing evidence that he has undergone a moral change, or his renewed commitment to the ethical practice of law, I respectfully dissent.
MOORE III, Justice (dissenting).
I join the dissent of Justice McKeig.