Disciplinary Action Against Moeller, In re

• Citation: 582 N.W.2d 554
• Decision Date: 30 July 1998
• Docket Number: No. C3-97-891,C3-97-891
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST David G. MOELLER, an Attorney at Law of the State of Minnesota.
• Court: Supreme Court of Minnesota (US)

Page 554

582 N.W.2d 554

In re Petition for DISCIPLINARY ACTION AGAINST David G.

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

No. C3-97-891.

Supreme Court of Minnesota.

July 30, 1998.

Syllabus by the Court

Disbarment is warranted by attorney's pattern of dishonesty, fraud, deceit, and misrepresentation including backdating client retainer agreements and filing them without explaining the date or misrepresenting the date to judges and/or opposing counsel; improperly altering a settlement stipulation after it was signed by opposing counsel; giving Edward J. Cleary, Director of the Office of Lawyers Professional Responsibility, Patrick R. Burns, Senior Asst. Director, St. Paul, for appellant.

false testimony; directing the forgery of a client's name; counseling a client to stage an accident; making false statements to the Director's office; and submitting false billing statements.

Michael J. Hoover, Minneapolis, for respondent.

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

OPINION

PER CURIAM.

Attorney David G. Moeller is before this court on a petition and three supplementary petitions for disciplinary action filed by the Director of the Office of Lawyers Professional Responsibility alleging that Moeller committed approximately 30 violations of the Minnesota Rules of Professional Conduct. The alleged violations include backdating client retainer agreements and failing to explain and/or misrepresenting the dates of the agreements to judges and/or opposing counsel, altering a settlement stipulation after it was signed by opposing counsel, directing the forgery of a client's name on a retainer agreement, counseling a client to stage an accident, testifying falsely, and making false statements to a former law partner regarding an attorney lien and to the Director regarding matters under investigation. However, all of these allegations were included within one count: that Moeller engaged in a pattern of dishonesty, fraud, deceit and misrepresentation in violation of Minn. R. Prof. Conduct 3.3(a)(1) and (a)(4), 3.4(b), 4.1, 8.1(a)(1), 8.4(c) and (d). The referee filed his Findings of Fact, Conclusions of Law and Recommendation for Discipline on December 19, 1997. Because the referee recommended disbarment, this court temporarily suspended Moeller pending our final determination of the matter. We now order disbarment.

Moeller was admitted to practice law in Minnesota in 1981 and has concentrated his practice in the areas of workers' compensation and personal injury. From February 1990 to April 1997, Moeller practiced as the sole proprietor of David G. Moeller & Associates. It was during this period of time that the conduct underlying this disciplinary action occurred.

Following a ten-day contested hearing in November and December of 1997, the referee concluded that Moeller had engaged in a pattern of dishonesty, fraud, deceit and misrepresentation in violation of Minn. R. Prof. Conduct 3.3(a)(1) and (4), 3.4(b), 4.1, 8.1(a)(1),(c)(1) and (d). In support of this conclusion, the referee made findings of fact which may be summarized as follows:

1) In six workers' compensation matters, Moeller had his clients sign settlement stipulations that falsely recited that Moeller had retainer agreements with the clients for a maximum contingent fee of $13,000, when in fact, the retainers were for $6,500. ¹ After the clients signed the stipulations, Moeller then had them sign new retainer agreements providing for a $13,000 maximum contingent fee, which he backdated to a date prior to the client's settlement stipulation. In three of these cases, Moeller submitted the backdated retainer agreements for filing with the compensation judge and/or the Department of Labor and Industry (D.L.I.) without explanation and in one case, Moeller made a misleading statement to the compensation judge regarding the date the retainer agreement was executed. Additionally, Moeller made a misleading statement about the date of the retainer agreement to opposing counsel in one case and to the Director's office in another. In none of these client matters did the new retainer contain the notice required by Minn. R. 5220.2920, informing the clients that they did not have to agree to a higher fee than already agreed upon.

2) In a social security disability matter, Moeller submitted a backdated retainer agreement without explanation to an administrative law judge and misled the Director regarding the date on the retainer agreement.

3) In the course of representing a Minneapolis police lieutenant, Moeller altered a settlement stipulation previously signed by opposing counsel to increase the amount of his contingent fee and forwarded it to a third party for filing with D.L.I. without informing opposing counsel.

4) Moeller made misleading statements to his former law partner, Arthur W. Priesz, Jr., in a letter dated October 13, 1993, regarding his negotiations to settle a matter on which Priesz had placed an attorney's lien in the amount of $1,903.71.

5) Moeller either gave intentionally false testimony regarding the extent of his representation of a client at a March 1, 1996 hearing or filed an intentionally false attorney's lien. Moeller testified that his partner, retired Judge Donald Lais, handled the entire file when in fact, an attorney's lien reflected that he performed 73.5 hours of service and that Lais had only performed 7.05 hours.

6) Moeller submitted numerous billing statements to D.L.I. in support of requests for contingent fees which inaccurately listed the date on which work was performed, the name of the attorney who performed the work, or included bills for legal work which could not be substantiated by a review of the files.

7) On or about September 26, 1994, Moeller directed his secretary to forge a client's signature on a retainer agreement providing for a $13,000 maximum contingent fee. Moeller also performed or directed another forgery of the client's signature, which was submitted to D.L.I.

8) Moeller counseled a client to stage a workplace accident to enhance the client's ability to make a future workers' compensation claim.

On appeal to this court, Moeller does not contest the bulk of the referee's findings, and he concedes that some discipline is appropriate for his ethical violations. However, he contests the referee's findings that he was involved in the forgery of his client's signature and that he counseled a client to stage a workplace accident. Additionally, he argues that the allegation that he counseled a client to stage an accident was not properly before the referee. Moeller also argues that inaccuracies found by the referee in his billing statements did not violate the Minnesota Rules of Professional Conduct. Finally, Moeller contests the recommended discipline. ²

Because Moeller timely ordered a transcript pursuant to Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR), the referee's findings are not conclusive. On review, this court will not set aside the referee's findings of fact unless they are clearly erroneous. ³ Allegations of professional misconduct must be proved by clear and convincing evidence. ⁴

We first consider Moeller's claim that the referee's finding that he was responsible for two separate forgeries of his client's signature was not supported by clear and convincing evidence. The referee found that on or around September 26, 1994, after Moeller had client William Ferganchick execute a settlement stipulation which falsely stated that Ferganchick had signed a retainer agreement for a $13,000 maximum contingent fee, Moeller directed his secretary, Tracy Sigrid, to forge Ferganchick's signature to a retainer agreement for this amount. After registering her protest with Moeller, Sigrid performed the forgery. Two other secretaries in the law firm witnessed the forgery and were told by Sigrid that Moeller had directed her to perform the forgery and that she was doing it under duress. However, this particular forged document was not filed with D.L.I. Rather, another retainer was filed which contained Ferganchick's signature forged through a "cut and paste" method. The referee also found that Moeller either performed or directed this second forgery.

In finding that Moeller directed the first forgery, the referee credited the testimony of Sigrid that Moeller directed her to perform the forgery over Moeller's conflicting testimony that he did not. Sigrid's testimony was corroborated by two secretaries, who testified that they heard Sigrid argue with Moeller and then saw Sigrid perform the forgery. This court accords deference to a referee's factual findings when they are based on weighing conflicting testimony. ⁵ Therefore, we uphold the referee's finding that Moeller directed the forgery.

The referee's findings as to the second forgery are supported by circumstantial evidence. For example, while Moeller knew he did not have a signed retainer agreement in the Ferganchick file for a $13,000 contingent fee, he went ahead and sent opposing counsel a settlement stipulation and statement of attorney fees which referenced an attached retainer in that amount. And, in fact, the forged retainer was attached to these documents. Further evidence that Moeller was responsible for the forged retainer is gleaned from the fact that Moeller had Ferganchick sign a new retainer identical to the forged document after the settlement stipulation was filed, but did not file this new retainer with D.L.I. This action indicates that Moeller knew that the forged retainer agreement had already been submitted. "Clear and convincing proof will be shown where the truth of the facts asserted is 'highly probable.' " ⁶ These circumstances, in conjunction with the fact that Moeller had ordered Sigrid to forge the first retainer agreement, make it highly probable that Moeller was responsible for the second forged document and therefore, we uphold the referee's finding on this issue.

Next, we review the...