In re Reinstatement of Jellinger, A05-2091.
| Citation | 728 N.W.2d 917 |
| Decision Date | 22 March 2007 |
| Docket Number | No. A05-2091.,A05-2091. |
| Parties | In re Petition for REINSTATEMENT OF Richard T. JELLINGER, a Minnesota Attorney, Registration No. 137765. |
| Court | Supreme Court of Minnesota (US) |
A panel of the Lawyers Professional Responsibility Board recommended that petitioner Richard T. Jellinger, who was indefinitely suspended from the practice of law, be reinstated subject to a four-year probationary period and other terms and conditions, including a restriction on the practice of law as a solo practitioner and a requirement that he apply for malpractice insurance. Jellinger argues that the length of the probationary period and the terms and conditions on his probation are inconsistent with the panel's findings of fact. The Director of the Office of Lawyers Professional Responsibility (the Director) supports the panel's recommendations. We have independently reviewed the file and conclude that Jellinger is entitled to be reinstated to the practice of law, subject to a probationary period and a number of conditions which are described more fully below.
Jellinger was admitted to practice law in Minnesota on May 13, 1982. For eight years, he practiced in a number of different settings. Jellinger then spent four years working for the Minnesota State Bar Association. In 1994, he opened his own practice, where he continued to work until we temporarily suspended him in 2001.
On May 3, 2001, because Jellinger "did not read or respond to the Director's inquiries, * * * commingled client funds with operating funds in the trust account, neglected a client matter, failed to place a client's retainer in trust, and repaid the client with funds from a personal account," we publicly reprimanded Jellinger and placed him on probation, subject to certain conditions. In re Jellinger, 625 N.W.2d 143, 146-48 (Minn.2001).
Thereafter, Jellinger failed to comply with the terms of his probation, and the Director filed a petition for temporary suspension. The Director alleged that Jellinger failed to respond to correspondence regarding his probation and failed to respond to notices of investigation of additional complaints of professional misconduct. In re Jellinger, 632 N.W.2d 640, 641 (Minn.2001). Jellinger did not respond to the petition, so we deemed the allegations admitted,1 and on August 17, 2001, we temporarily suspended Jellinger from the practice of law, pending final determination of the disciplinary proceedings. Id.
On November 29, 2001, the Director filed a supplementary petition for further disciplinary action, and the matter was referred to a referee. In re Jellinger, 655 N.W.2d 312, 313 (Minn.2002). We upheld the referee's findings of misconduct—that Jellinger had misappropriated client funds, that he had failed to communicate with his clients, that he had neglected clients, that he had made false statements to clients, and that he had failed to cooperate with the Director's investigation—and we concluded that Jellinger failed to prove his claim of mitigation by clear and convincing evidence. Id. at 315-16. We noted that Jellinger's treating psychologist had testified that Jellinger had a major depressive disorder and that, in the psychologist's opinion, Jellinger's misconduct was "in large part a result of his depressive disorder." Id. at 314. But we concluded that Jellinger had failed to prove that his depression was the cause of his misconduct. Id. at 315-16.
While we acknowledged that Jellinger's depression might have caused his passive misconduct, we concluded that the psychologist's testimony did not indicate that the depression was the likely cause of Jellinger's "affirmative acts of dishonesty (misappropriating funds from client accounts, making false statements to clients and making false statements to the Director's office)." Id. at 315. Further, we concluded that, because he had only been undergoing treatment for two months, and his psychologist had prescribed a course of treatment that would take from two to three years to complete, Jellinger failed to prove that his recovery was sufficient to arrest the misconduct and therefore failed to prove that his misconduct was not apt to recur. Id.
We said that "ample precedent supports the sanction of disbarment in cases involving misappropriation of client funds." Id. at 316. But we noted, as mitigating factors, that there was a causative relationship between Jellinger's depression and his passive misconduct and that Jellinger's former clients did not ultimately suffer any pecuniary loss as a result of his misconduct. Id. Therefore, on December 26, 2002, we disbarred Jellinger, but stayed the disbarment subject to indefinite suspension. Id. at 316. We ordered that Jellinger could not petition for reinstatement for at least two years, and said that "[u]pon reinstatement, [Jellinger] shall be on supervised probation for a period of two years under the conditions set forth in this court's order of May 3, 2001." Id. at 317.2
After we indefinitely suspended him, Jellinger found employment for a short time as a tax preparer, and as a driver for a local courier service. Since July 2003 Jellinger has worked as a part-time paralegal.3
On October 19, 2005, Jellinger petitioned for reinstatement pursuant to Rule 18 of the Rules on Lawyers Professional Responsibility (RLPR). The panel heard the matter on June 30, 2006.4
The panel received testimony from Jellinger's psychologist by way of deposition. The psychologist opined that Jellinger's depression "has dropped from the moderate range to the no concern range." The psychologist also stated that "there does not seem to be any data that would preclude his ability to practice law" and that Jellinger "has been maintaining good mental health and practicing good self care." Finally, the psychologist suggested that it would be important for Jellinger to have a "network of colleagues" to consult with on a semi-regular basis.
W.K., who has known Jellinger since 1985, and for whom Jellinger has worked in a paralegal capacity, also testified before the panel. According to the panel's findings, W.K. testified that he and Jellinger had discussed Jellinger's past misconduct in detail, and W.K. had discussed with Jellinger at length how to successfully and ethically operate as a solo practitioner. Additionally, W.K. told the panel that if Jellinger were to be reinstated, W.K. would be willing to act as a co-signer on Jellinger's trust account. W.K. acknowledged that this responsibility would require him to be familiar with the client files and services being performed by Jellinger. W.K. also told the panel that he did not believe he could hire Jellinger as an employee, because Jellinger's practice was different and because W.K. wanted to reduce, rather than increase, overhead.
Jellinger also testified before the panel. According to the panel's findings, Jellinger expressed shame and remorse over his misconduct. He acknowledged that he will continue to struggle with "depression and honesty issues," but said that he feels better equipped to handle such issues, in part because of his anti-depression medication and because of his work with his psychologist to identify the warning signs of depression. The panel also noted that Jellinger testified about his business plan, and that W.K. has taught him about the network of lawyers available for him to contact in various areas of law practice.
Jellinger's attorney argued to the panel that Jellinger should be reinstated subject to supervised probation for a period of two years, provided that Jellinger enter into an "of counsel" arrangement with W.K.5 The Director argued that Jellinger should be denied reinstatement for failing to show by clear and convincing evidence that he had achieved the requisite moral change required for reinstatement. In the alternative, the Director argued for reinstatement subject to a two-year period of supervised probation and subject to further terms and conditions including: monitoring by an attorney approved by the Director, no practice as a solo practitioner for one year, and the adoption of approved office procedures related to the handling of client funds and maintenance of a trust account.
The panel concluded that Jellinger had proven by clear and convincing evidence that he has:
(a) completed the required two-year period of suspension, (b) continued treatment for his depression and arranged for his psychologist to report periodically to the Director concerning the progress of his treatment, (c) paid the costs required by Rule 24, RLPR, (d) successfully completed the professional responsibility exam, (e) satisfied his CLE requirements, and (f) complied with Rule 26, RLPR.
The panel also concluded that Jellinger "possesses current legal skills and knowledge," "is psychologically fit to resume the practice of law, as it relates to his prior passive misconduct," "currently has in place adequate personal and professional support systems to assist him in managing the stress and practicalities of a law practice," and "has shown the requisite moral change as to his prior dishonesty."
On the basis of these findings of fact and conclusions of law, the panel recommended reinstatement, subject to a four-year period of supervised probation under a number of terms, including (1) that Jellinger not engage in the practice of law as a solo practitioner for two years from the date of the reinstatement order; and (2) that Jellinger apply for malpractice insurance.6
Our first consideration is whether Jellinger should be reinstated to the practice of law. We independently review the entire record in reinstatement proceedings to determine if an attorney should be reinstated. In re...
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