Disciplinary Action Against Koss, In re, C2-96-2024

• Decision Date: 11 December 1997
• Docket Number: No. C2-96-2024,C2-96-2024
• Citation: 572 N.W.2d 276
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Lewis M. KOSS, an Attorney at Law of the State of Minnesota.
• Court: Minnesota Supreme Court

Page 276

572 N.W.2d 276

In re Petition for DISCIPLINARY ACTION AGAINST Lewis M. KOSS, an Attorney at Law of the State of Minnesota.

No. C2-96-2024.

Supreme Court of Minnesota.

Dec. 11, 1997.

Syllabus by the Court

California's summary disbarment procedures do not meet Minnesota's standards for procedural due process and therefore, we decline to impose the reciprocal discipline contemplated by Rule 12(d) of the Rules on Lawyers Professional Responsibility on the respondent at this time. However, respondent's felony convictions in California for mail fraud and racketeering, occurring within the course of his practice of law, warrant immediate suspension of his license to practice in Minnesota pending further proceedings.

Kenneth L. Jorgensen, Office of Lawyers Prof. Responsibility, St. Paul, for petitioner.

Lewis M. Koss, Florence, CO, pro se.

Considered and decided by the court en banc without oral argument.

ORDER

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility has filed a petition seeking the reciprocal disbarment of respondent, Lewis M. Koss, pursuant to Rule 12(d), Rules on Lawyers Professional Responsibility. The petition is predicated upon an order of the Supreme Court of California, filed May 1, 1996, disbarring the respondent for felony racketeering and mail fraud convictions. The Director alleges that the activities underlying the respondent's convictions violated Minnesota Rules of Professional Conduct 8.4(b) (criminal act that reflects adversely on lawyer's honesty or fitness as a lawyer); 8.4(c) (conduct involving dishonesty, fraud deceit or misrepresentation); and 8.4(d) (conduct prejudicial to the administration of justice). Respondent has filed an answer to the petition attacking both California's disbarment procedures and the underlying convictions. By order filed February 24, 1997, we directed the respondent to show cause why he should not receive discipline identical to that imposed by the Supreme Court of California.

Respondent was admitted to practice law in Minnesota on February 18, 1969 and began practicing in California in 1976. His license to practice law in Minnesota is currently suspended for non-payment of his attorney registration fee and he is on CLE restricted status. On June 25, 1991, respondent was convicted in California of three felony counts of mail fraud and one felony count of racketeering for his involvement as an attorney in a network of Southern California attorneys, referred to as the "Alliance." The Alliance defrauded insurance companies of millions of dollars in legal fees through manipulating and prolonging complex civil litigation. In September 1991, respondent was sentenced to 46 months on each count, to run concurrently, and fined $100,000.

On February 14, 1996, the California State Bar Court recommended respondent's disbarment in accordance with Cal. Bus. & Prof.Code § 6102(c), California's summary disbarment statute. ¹ The statute mandates disbarment of an attorney convicted of a felony perpetrated within the course of the practice of law which involves the specific intent to deceive, defraud, steal or make a false statement. The Supreme Court of California ordered summary disbarment on May 1, 1996. The Director of Minnesota's Office of Lawyers Professional Responsibility now requests that respondent receive identical discipline in this state pursuant to Rule 12(d), RLPR, which provides in relevant part,

[Following an order to show cause], this Court may thereafter impose the identical discipline unless it appears that discipline procedures in the other jurisdiction were unfair, or the imposition of the same discipline would be unjust or substantially different from discipline warranted in Minnesota.

We decline to impose reciprocal discipline at this time. While we recognize that the use of reciprocal discipline promotes the conservation of judicial resources, In re Morin, 469 N.W.2d 714, 717 (Minn.1991), we will impose reciprocal discipline only when we are persuaded that the attorney was afforded sufficient due process in the underlying proceedings to meet our standards of fundamental fairness. Accordingly, we have examined the California summary disbarment proceedings in light of the Minnesota Lawyers Professional Responsibility Rules, and our need to protect the public and the court and to deter future misconduct. In re Weyhrich, 339 N.W.2d 274, 279 (Minn.1983).

Critical to our inquiry is the question of whether California provided the respondent the opportunity for a hearing at which he could present evidence of good character and other mitigating circumstances. See In re Morin, 469 N.W.2d 714, 716 (Minn.1991) (where we considered the fact that Montana offered the respondent attorney a hearing in determining that reciprocal discipline should be imposed). Even in cases involving felony convictions, this court does not automatically disbar attorneys, but will consider the circumstances surrounding the criminal act to determine if some discipline, short of disbarment, is appropriate. In re Hedlund, 293 N.W.2d 63, 66 (Minn.1980).

California did not afford the respondent the opportunity for a disciplinary hearing. California Business and Professions Code § 6102(c), under which the respondent was disciplined, requires that an attorney be summarily disbarred regardless of mitigating circumstances if the elements of the statute are met. In re Utz, 48 Cal.3d 468, 256 Cal.Rptr. 561, 568,...