Disciplinary Action Against Milloy, In re

• Decision Date: 04 December 1997
• Docket Number: No. C4-91-2460,C4-91-2460
• Citation: 571 N.W.2d 39
• Parties: 11 NDLR P 226 In re Petition for DISCIPLINARY ACTION AGAINST Marianne M. MILLOY, an Attorney at Law of the State of Minnesota.
• Court: Minnesota Supreme Court

Page 39

571 N.W.2d 39

11 NDLR P 226

In re Petition for DISCIPLINARY ACTION AGAINST Marianne M.

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

No. C4-91-2460.

Supreme Court of Minnesota.

Dec. 4, 1997.

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

Richard L. Pemberton, Pemberton, Sorlie, Sefkow, Rufer & Kershner, P.L.L.P., Fergus Falls, for Respondent.

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against Marianne Milloy. The director asserts that Milloy committed professional misconduct by failing to act diligently and promptly for two clients, failing to communicate appropriately with her clients, withdrawing from her representation of one client without giving the client reasonable notice or adequately protecting his interests, and failing to cooperate with the disciplinary investigations. At the time these alleged acts of misconduct occurred, Milloy was on probation for prior professional misconduct. The director claims that Milloy's misconduct violated Minn. R. Prof. Cond. 1.3, 1.4, 1.16(d), and 8.1; Rule 25, Rules on Lawyers Professional Responsibility (RLPR); and the terms of her probation. A referee found that Milloy had violated several rules of professional conduct and recommended either that she voluntarily resign from the practice of law or that this court suspend her indefinitely until she can clearly demonstrate that she is competent to practice law.

Milloy appealed, arguing that the referee's findings are clearly erroneous and that no discipline is warranted, or, alternatively, that any discipline should be mitigated by her diagnosis of Attention Deficit Disorder (ADD). We conclude that Milloy's conduct violated the rules of professional conduct and the terms of her probation. We suspend Milloy from the practice of law for a minimum of 90 days and require that before being readmitted to the practice of law she prove her competence in a Rule 18, RLPR, reinstatement proceeding.

Marianne Milloy was admitted to practice law in Minnesota in 1970. After working for two Twin Cities law firms, she opened her own law office in Brainerd in 1975. Milloy practiced mainly in the family law area. She had a very active practice, generally maintaining over 100 active client files. In the fall of 1995, Milloy closed her Brainerd law office. She testified that she did so partly because of problems she had with the attorney disciplinary authorities, but mostly because of her desire to spend more time with her family.

Milloy is not new to the disciplinary process. She has been put on probation four times for professional misconduct. In May 1984 and again in July 1987, she entered into stipulations for private probation. Her misconduct included incompetence, failure to communicate with her clients, and failure to cooperate with the disciplinary investigation. In April 1992, this court publicly reprimanded Milloy and placed her on two years supervised probation. In re Milloy, 484 N.W.2d 251, 251-52 (Minn.1992). The misconduct that led to the 1992 public reprimand and probation included neglect of client matters and failure to communicate with clients. Id. at 251.

In July 1995, Milloy entered into yet another stipulation for supervised probation. In this stipulation, she admitted that she had neglected a client matter, failed to communicate with two clients, failed to obtain the consent of a former client before representing an adverse party against the client, and failed to cooperate with the disciplinary investigation. The conditions of her probation included cooperating with the director to monitor her compliance, responding promptly to the director's correspondence, cooperating with the director on any allegations of misconduct, abiding by the Minnesota Rules of Professional Conduct, and submitting a monthly inventory of all active client files to her supervising attorney. Milloy committed the misconduct we consider here while she was on probation for a fourth time. This misconduct consists of three matters: her representation of Mary Ellen Rockwell, her representation of Eric Remmick, and her failure to cooperate with the disciplinary investigation.

A. The Rockwell Matter

The first allegation of misconduct involves Milloy's representation of Mary Ellen Rockwell. Milloy first represented Rockwell in a dissolution proceeding in 1980. Rockwell was very satisfied with Milloy's work, so she returned to Milloy in May 1995 when she had questions about her ex-husband's upcoming retirement and pension benefits. During this meeting, Milloy telephoned the Minnesota State Retirement Director to inquire about Rockwell's interest in her ex-husband's benefits. Rockwell gave Milloy a retainer and later testified that it was her understanding that Milloy would be in contact with her.

Milloy continued her investigation into the Rockwell matter. She recalls discussing with the Retirement Director the possibility of amending Rockwell's dissolution decree and concluding that it was in Rockwell's best interests to leave the decree language as it was. Milloy believed that she communicated her conclusion to Rockwell, but she could not recall a specific telephone call or office meeting when they discussed a possible amendment. Milloy did testify that when she advised Rockwell of her conclusion, she had a "feeling that [she] had not communicated appropriately" with Rockwell, and that Rockwell "wasn't * * * understanding and I was going too fast."

Rockwell, on the other hand, did not recall any conversations with Milloy between their initial meeting and the time Rockwell contacted the director. She testified that she called Milloy several times trying to determine the status of her case, but Milloy did not respond. She also sent Milloy a letter inquiring about the status of her case; again, Milloy did not respond. Finally, in the summer of 1995, Milloy returned one of Rockwell's messages by leaving a voice mail message for her. Milloy's message provided very few details and failed to address Rockwell's questions about her case. Later that summer, Rockwell found Milloy's home telephone number and left a message at her home. Again, Milloy did not respond.

In August 1995, Milloy filed a list of her active client files with her supervising attorney as her probation required, but she did not include the Rockwell matter on the list. Milloy testified that she did not consider the matter to be an open file because there were no court proceedings and she believed that there was nothing more to be done on the file.

In the fall of 1995, Rockwell telephoned the director to solicit her help in locating Milloy. Rockwell testified that she did not want to start a complaint against Milloy; rather, she simply wanted to find her. Milloy stated that she called Rockwell after she received notice of this complaint. Rockwell said that she and Milloy "had a good conversation"; Milloy explained her version of the situation and then returned Rockwell's retainer. Rockwell testified that she was not pleased with how Milloy handled her matter, but she felt that the issue had been brought to an end.

After her conversation with Milloy, Rockwell asked the director to end her investigation. In a letter to the director, Rockwell stated that there was no need to continue the investigation because she had heard from Milloy and received a refund of her retainer. In the letter, Rockwell said that she "deplore[d] the unprofessional delay and ignoring of [her] case." Nevertheless, Rockwell testified that she still appreciates how well Milloy handled her divorce in 1980.

The director concluded that Milloy met the applicable standards of care and professional responsibility in handling the substantive matter undertaken, but concluded that Milloy failed to communicate appropriately with Rockwell to report the final status of her case and to end the representation. Milloy testified that she "could have handled [the Rockwell matter] better" and that she accepted complete responsibility for the communication breakdown. The referee found that Milloy's failure to communicate appropriately did not directly harm Rockwell. But the referee concluded that Milloy had failed to act diligently and failed to communicate with Rockwell, and concluded that Milloy's conduct violated Minn. R. Prof. Cond. 1.3 and 1.4, as well as her 1995 probation.

B. The Remmick Matter

The second allegation of misconduct involves Milloy's representation of Eric Remmick. In April 1995, Remmick retained Milloy to represent him in a matter involving child custody and visitation. A hearing on Remmick's case was scheduled for May 31, 1995, but the guardian ad litem in the case, attorney David Hermerding, testified that he requested a continuance because he did not have his report ready. Hermerding requested this continuance the day before the hearing, and did not notify all the parties because he believed that the court administrator would contact them. Milloy did not contact Remmick about the continuance. Remmick drove 90 miles from Duluth to Brainerd to attend the May 31 hearing, only to find that the hearing was canceled. Milloy did not come to the Brainerd courthouse that day for the scheduled hearing. However, Remmick did meet with Hermerding that day and did resolve certain visitation issues.

Another hearing was scheduled for September 18, 1995. Milloy testified that she never really expected a hearing to occur on that date, but a date was scheduled in order to keep things moving. She claimed that she explained this to Remmick. In August, Milloy sent Remmick a letter about the September hearing. When Milloy sent this letter to Remmick, she had already decided to close her law office and was negotiating the sale of her practice to Hermerding. On September 7, 1995, Milloy wrote Remmick a letter to terminate her...