754 N.W.2d 357 (Minn. 2008), A07-0437, In re Reinstatement of Mose

Docket NºA07-0437.
Citation754 N.W.2d 357
Opinion JudgePER CURIAM.
Party NameIn re Petition for REINSTATEMENT OF William G. MOSE, a Minnesota Attorney, Registration No. 125659.
AttorneyEdward F. Kautzer, St. Paul, MN, for Relator., Cassie Breta Hanson, Kenneth R. White, Office of Lawyers Professional Responsibility, St. Paul, MN, for Respondents.
Case DateAugust 07, 2008
CourtSupreme Court of Minnesota (US)

Page 357

754 N.W.2d 357 (Minn. 2008)

In re Petition for REINSTATEMENT OF William G. MOSE, a Minnesota Attorney, Registration No. 125659.

No. A07-0437.

Supreme Court of Minnesota.

August 7, 2008

Page 358

Syllabus by the Court

A lawyer is not entitled to be reinstated to the practice of law when he fails to meet several of his reinstatement conditions, fails to prove by clear and convincing evidence that he has undergone sufficient moral change to merit reinstatement, and fails to prove that he has the intellectual competence to reenter the practice of law.

Edward F. Kautzer, St. Paul, MN, for Relator.

Cassie Breta Hanson, Kenneth R. White, Office of Lawyers Professional Responsibility, St. Paul, MN, for Respondents.

Heard, considered, and decided by the court en banc.

OPINION

PER CURIAM.

William G. Mose, a lawyer admitted to the practice of law in Minnesota in 1980 and indefinitely suspended from said practice in 1991, filed a petition for reinstatement to the practice of law. The Director of the Office of Lawyers Professional Responsibility contested the petition. A panel

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of the Lawyers Professional Responsibility Board recommended Mose not be reinstated, concluding that Mose failed to meet several of his reinstatement conditions, and that Mose did not show by clear and convincing evidence that he has undergone the requisite moral change for reinstatement or now possesses the intellectual competence necessary to be a lawyer. Mose appeals the panel's findings, conclusions, and recommendation. We conclude that Mose should not be reinstated to the practice of law because he has failed to (1) satisfy several of his reinstatement conditions; (2) prove that he has undergone the requisite moral change for reinstatement; and (3) prove that he is competent to return to the practice of law.

William G. Mose was admitted to practice law in Minnesota in 1980. He began practicing law in 1984 when he opened a solo practice that dealt mainly with family law issues. In 1989, the Director of the Office of Professional Responsibility filed a petition for disciplinary action against Mose, alleging that he had committed misconduct involving incompetence, neglect, and a failure to adequately communicate with clients in two client matters, in violation of Minn. R. Prof. Conduct 1.1, 1.3, 1.4, 3.4(c) and (d), and 8.4(d).1 Mose and the Director entered a stipulation for discipline, which recommended a public reprimand and placing him on 2 years of supervised probation.2 We accepted the stipulation and imposed the recommended sanctions. In re Mose, 443 N.W.2d 191 (Minn.1989).

In 1990, the Director petitioned to revoke Mose's probation. The Director alleged that Mose had not complied with his probation conditions and that he had committed new acts of misconduct in five client matters.3 Based on the Director's petition, we suspended Mose indefinitely from the practice of law in Minnesota. In re Mose, 458 N.W.2d 100 (Minn.1990). The Director filed another petition for disciplinary action in 1991, alleging that Mose committed further misconduct in eight client matters both before and after his

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suspension.4 Mose again entered into a stipulation with the Director. We accepted the stipulation and indefinitely suspended Mose from the practice of law in Minnesota for a minimum of 5 years. In re Mose, 470 N.W.2d 109 (Minn.1991). The record reflects that at the end of all the disciplinary proceedings, the Director had received 19 separate complaints against Mose.

After his suspension, Mose spent the next 16 years working at several different jobs, mostly as an official at sports games. He officiated an average of 20 to 25 hours a week, generally in the evenings or on the weekend. Mose did not hold any law-related jobs during his suspension. But in 2006, Mose began volunteering for Home Line, an advocacy organization where tenants can receive information and advice regarding their legal rights. Mose testified that he volunteered at Home Line for about 6 to 8 hours a week for the first few months and then about 3 hours a week for the next 8 months. Mose volunteered at Home Line for a little over 1 year until he stopped in 2007 to “ concentrate on [his] reinstatement process."

In February 2007, Mose petitioned for reinstatement to the practice of law. The Director opposed reinstatement. After a hearing, a panel of the Lawyers Professional Responsibility Board 5 unanimously recommended that Mose not be reinstated. The panel concluded that Mose had failed to (1) satisfy some of the original conditions required for reinstatement; (2) prove by clear and convincing evidence that he had undergone the requisite moral change for reinstatement; and (3) prove that he possessed the organizational skills, work ethic, and motivation to practice law.

Mose ordered a transcript of the hearing, therefore, the panel's findings “ ‘ are not binding on this court.’ " In re Selmer, 749 N.W.2d 30, 37 (Minn.2008) (quoting In re Peterson, 718 N.W.2d 849, 853 (Minn.2006)); see also Rule 14(e), RLPR (providing that if respondent orders a transcript, the findings of fact and conclusions of law are not conclusive). Accordingly, we independently review the entire record to determine whether a petitioner should be reinstated. In re Singer, 735 N.W.2d 698, 703 (Minn.2007). But we will uphold the panel's factual findings if they have evidentiary support in the record and are not clearly erroneous. Id. We also “ defer[ ] to the credibility assessments of lower courts and tribunals." In re Kadrie, 602 N.W.2d 868, 871 (Minn.1999).

A petitioner applying for reinstatement must show he has met the reinstatement conditions we imposed in our suspension order. See Singer, 735 N.W.2d at 703-4. The petitioner then “ ‘ must establish by clear and convincing evidence that she or he has undergone such a moral change as now to render him a fit person to enjoy the public confidence and trust once forfeited.’ " Singer, 735 N.W.2d at 703 (quoting In re Jellinger, 728 N.W.2d 917, 922 (Minn.2007)). We have said that moral change is a central focus of the reinstatement inquiry, but it is only one factor.

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Jellinger, 728 N.W.2d at 922; Kadrie, 602 N.W.2d at 870. We also consider the following factors when determining whether reinstatement is appropriate:

(1) the petitioner's recognition of the wrongfulness of his conduct; (2) the length of time since the original misconduct and the suspension; (3) the seriousness of the original misconduct; (4) the existence of physical or mental illness or pressures that are susceptible to correction; and (5) the petitioner's intellectual competency to practice law.

Singer, 735 N.W.2d at 703. Each of these reinstatement factors will be considered in turn.

Compliance with the Suspension Order

In our 1991 order suspending Mose from the practice of law, we conditioned his reinstatement on, among other things:

1. complying with Rule 26, RLPR;

2. successfully completing the Minnesota bar examination;

3. satisfying CLE requirements pursuant to Rule 18(e), RLPR;

4. refunding unearned retainers to three clients;

5. fully complying with the terms of our July 18, 1989 discipline order. Mose, 470 N.W.2d at 110.

Our previous order required Mose to, among other things, (1) complete a course in family law and a course in professional responsibility; (2) complete a 4- or 8-day course in trial advocacy skills; (3) complete 30 CLE credits; and (4) certify to the Director that he made restitution to two clients. Mose, 443 N.W.2d at 192.

The panel concluded that Mose failed to (1) comply with Rule 26, RLPR; (2) comply with his CLE reporting requirement; (3) pay his lawyer registration fee; and (4) pay restitution to two clients. It is not disputed that Mose successfully completed the Minnesota bar examination and that he completed a course on family law and one on professional responsibility.

Rule 26(a), RLPR, required Mose to notify his clients of his suspension. The Director asserted, and the panel found, that Mose failed to notify his clients of his suspension and instead vacated his law office without notice. But the Director's report references clients whom Mose failed to tell about his 1990 suspension. Mose was already disciplined for his failure to notify those clients when we suspended him in 1991. Mose, 470 N.W.2d at 109. Nowhere in the record does it indicate that Mose violated the Rule 26 notification requirements after his 1991 suspension. Because Mose was already disciplined for his 1990 violations of Rule 26, these violations should not prevent him from reinstatement if he is able to meet the other reinstatement requirements. The same is true of the retainers Mose took from clients after his 1990 suspension-Mose was already disciplined for this misconduct in 1991, Id., and did not commit any further similar misconduct after his 1991 suspension.

Nevertheless, Mose still owes restitution to two clients, and we conditioned his reinstatement on payment of that restitution. Id. at 110. Further, Mose testified and submitted an affidavit showing that he has earned 60.5 CLE credits, but Mose failed to report these credits to the Board of Continuing Legal Education. While we recognize that Mose's earned CLE credits, if reported, would satisfy the CLE requirements we imposed on him, we note that CLE credits must be reported before an attorney may be reinstated. Rule 18(e)(4), RLPR; Rule 9, Rules of the Minnesota State Board of Continuing Legal Education. Finally, Mose attended a 4-day trial advocacy course, which was a condition of his reinstatement. But he missed parts of 2 days of the course and

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therefore did not fully complete the course as we required. Because Mose did not pay restitution to two clients, properly report his CLE credits, or complete the required trial advocacy course, we conclude that Mose failed to satisfy his reinstatement conditions.6

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