Disciplinary Action Against Merlin, In re, C4-96-1201

• Decision Date: 28 January 1998
• Docket Number: No. C4-96-1201,C4-96-1201
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Carol Sue MERLIN, an Attorney at Law of the State of Minnesota.
• Court: Minnesota Supreme Court

Page 737

572 N.W.2d 737

In re Petition for DISCIPLINARY ACTION AGAINST Carol Sue

MERLIN, an Attorney at Law of the State of Minnesota.

No. C4-96-1201.

Supreme Court of Minnesota.

Jan. 28, 1998.

Syllabus by the Court

Neglect of client matters, unauthorized practice of law, failure to file income taxes, and noncooperation with disciplinary proceedings warrants indefinite suspension.

Martin A. Cole, Acting Director, Craig D. Klawsing, Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, for Appellant.

Carol Sue Merlin, Richfield, pro se.

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

OPINION

PER CURIAM.

The director of the Lawyers Board on Professional Responsibility petitioned this court to take disciplinary action against Carol Sue Merlin for neglect of client matters, unauthorized practice of law, failure to file income taxes, and noncooperation with the director's office. Merlin was admitted to practice law in Minnesota in 1981 and practiced almost exclusively in the area of immigration law. Merlin failed to pay her 1994-95 attorney registration fee when due on September 30, 1994, and she was suspended from the practice of law under Rule 3, Rules of the Supreme Court for Registration of Attorneys, until the dues were paid on December 5, 1994. ¹ On October 1, 1995, Merlin was again suspended from the practice of law for failure to pay her attorney registration fee.

This court appointed the director of the Lawyers Board of Professional Responsibility trustee for Merlin's files on June 13, 1996 because Merlin appeared to have abandoned her law practice and failed to respond to inquiries from the director's office. ² The director filed a petition for disciplinary action on June 21, 1996 concerning neglect of three client matters, unauthorized practice of law and noncooperation with the director's office. Because Merlin could not be found and served with the petition, we issued an order on July 1, 1996 suspending her under Rule 12(c)(1), Rules on Lawyers Professional Responsibility (RLPR). ³ The order stated that Merlin had one year to move to vacate the suspension order and to request leave to answer the disciplinary petition.

Merlin filed an answer to the petition on July 23, 1996, denying some of the conduct and offering some mitigating circumstances. An evidentiary hearing before a referee was scheduled for February 21, 1997. The director served Merlin by mail with a supplementary petition on November 7, 1996, reciting four additional bases for discipline: neglect of two more client matters, failure to file income taxes, and continued noncooperation with the director's office. Merlin did not file an answer to the supplementary petition. Two days before the referee hearing, Merlin telephoned the director's office to say that she was medically unable to attend. The director's office told her that she needed to make a motion for a continuance with the referee, but Merlin refused to discuss the matter further and no motion was filed.

The hearing before the referee proceeded on February 21, 1997 based upon the initial disciplinary petition and supplementary petition. Merlin did not attend. The referee issued his findings of fact, conclusions of law, and recommendation for discipline on March 20, 1997. Merlin did not order a transcript, and thus under Rule 14(e), RLPR, the referee's findings and conclusions are conclusive. The findings summarized below include neglect of five client matters, unauthorized practice of law, failure to file tax returns, and noncooperation with the director's office.

The first complaint received by the director's office was from Okon E. Okon, who had retained Merlin in 1994 to help bring his children into the United States after the petitions he filed pro se to the Immigration and Naturalization Services (INS) had been returned. Okon telephoned Merlin sometime after June 22, 1994, to inquire about his case and learned that she had resubmitted the petitions on April 10, 1994. He asked that she mail copies of the resubmitted petitions to him, but he never received them. Okon tried unsuccessfully to telephone Merlin several times, but she did not return his calls. Eventually, in November 1994, Okon wrote Merlin a letter questioning the status of his case--she did not reply. Merlin was suspended from October 1, 1994, through December 5, 1994 but she did not notify Okon of her suspended status. In February 1995, Okon hired a new attorney. The new attorney sent Merlin a letter asking for the file, but Merlin did not reply and never forwarded the file.

Geoffrey Card retained Merlin in 1991 to handle an immigration matter for his son. In August 1995, Card discharged Merlin and retained new counsel because Merlin failed to return his letters or telephone calls concerning the status of the case. Card requested that Merlin forward his file to Melissa Arndt, his new attorney. Arndt wrote Merlin four times over the next four months requesting the file, but Merlin never replied and never sent the file. Arndt eventually filed a complaint with the director's office.

Merlin represented Richard Anyanwu in an immigration matter but formally withdrew from representation in December 1995. Merlin never contacted Anyanwu about picking up his file from her, and failed to appear at several scheduled meetings. Merlin also failed to tell Anyanwu that her license to practice law was suspended in October 1995 for failure to pay her attorney registration fee. Anyanwu eventually retained new counsel, but Merlin did not return the telephone calls and letters from the new attorney and never forwarded Anyanwu's file as requested. Anyanwu complained to the director's office about Merlin's conduct, as did the INS, because Merlin failed to disclose in her motion to withdraw as Anyanwu's counsel that she had been suspended on October 1, 1995.

Richard Olawole retained Merlin in the fall of 1995 to handle an immigration matter concerning his adult daughter in Nigeria. Olawole paid Merlin $580, including $80 for an INS filing fee. Merlin never paid the filing fee. Olawole could not contact Merlin, either by telephone or in person at her office, and filed a complaint with the director's office. Additionally, Merlin failed to advise Olawole that she had been suspended from the practice of law for failure to pay her attorney registration fee, and she failed to advise him that she was withdrawing from further representation.

Alaere Wariebi Williams and Harrison Williams retained Merlin to represent them in an immigration matter in 1995, and Merlin filed a notice of appearance with the INS as an attorney on their behalf. On March 30, 1995, the INS notified Merlin of a February 6, 1996, hearing concerning the Williamses' immigration matter. Harrison Williams tried to reach Merlin, on the telephone and in person at her office, but she never returned his messages. Merlin did not notify the Williamses of her October 1995 suspension and failed to attend the February 6, 1996 hearing.

The Minnesota Department of Revenue filed a complaint with the director's office because Merlin failed to file her individual income tax returns for 1989 through 1995, and failed to pay her personal income taxes for 1987 and 1988. Additionally, in connection with her law practice, Merlin failed to file employee withholding returns for September 1989 through December 1992, June 1993 through June 1994, and September 1994 through December 1995. She also failed to file sales tax returns for March 1994 through December 1995.

Throughout this period Merlin has continually failed to cooperate with the director's office during its investigation of these complaints. The director's office wrote Merlin a letter on February 14, 1995 concerning her unauthorized practice of law during the period of suspension. Merlin did not reply. A follow-up letter also went unanswered. Merlin answered the director's third letter concerning the matter and asserted that the payment had been made late, she had not practiced law while suspended, and she had paid her registration fees through September 30, 1995. After receiving this letter, the director's office learned that the check for Merlin's 1995-96 attorney registration fee had not been honored by the bank. Merlin did not reply to any of the three following letters from the director's...