Disciplinary Action Against Pinotti, In re, No. C8-97-1955

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: PER CURIAM; RUSSELL A. ANDERSON
• Citation: 585 N.W.2d 55
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Michael A. PINOTTI, an Attorney at Law of the State of Minnesota.
• Decision Date: 22 October 1998
• Docket Number: No. C8-97-1955

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585 N.W.2d 55 In re Petition for DISCIPLINARY ACTION AGAINST Michael A.
PINOTTI, an Attorney at Law of the State of Minnesota. No. C8-97-1955. Supreme Court of Minnesota. Oct. 22, 1998.

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Edward J. Cleary, Henry C. Granison, Office of Lawyers Prof. Resp., St. Paul, for appellant.

Michael A. Pinotti, Little Canada, pro se.

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

OPINION

PER CURIAM.

On October 22, 1997, the Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent, attorney Michael A. Pinotti, alleging violations of Minnesota Rules of Professional Conduct 1.1 (incompetence), 3.1 (filing frivolous claims), 3.4(c) (knowingly disobeying an obligation under rules of a tribunal), and 8.4(d) (engaging in conduct prejudicial to administration of justice). Following a two-day hearing in January of 1998 at which numerous witnesses testified, the referee made 77 findings of fact, concluding that the Director had proven the allegations of the petition by clear and convincing evidence, and recommending that respondent be suspended from the practice of law indefinitely with no right to apply for reinstatement for 90 days. Respondent appeals to this court contesting the referee's findings, conclusions and recommendation that he be suspended from the practice of law.

Respondent is a solo practitioner who was admitted to practice law in Minnesota in 1981. He was previously admonished in 1990 for asking a client not to file an ethical complaint against him. The current charges against respondent are based on his behavior in three separate lawsuits over a period of approximately ten years.

1. Dahlgren v. Caring and Sharing, Inc.

Dean R. Dahlgren, doing business as Advance Therapies, provided physical therapy services to elderly and handicapped clients of Caring and Sharing, Inc. (C & S) pursuant to a services agreement which provided that C & S could terminate the agreement "for any reason" by giving two weeks written notice to Dahlgren. C & S sent Dahlgren a notice of termination in August of 1987. On behalf of Dahlgren, respondent filed a complaint alleging numerous claims against C & S stemming from the termination of the contract but failed to attach a signed acknowledgement as required by Rule 11, Minn. R. Civ. P. The complaint was amended twice to include additional claims.

In August of 1988 the trial court granted C & S's motion to dismiss the complaint filed by respondent because it failed to state a claim upon which relief could be granted. On respondent's appeal, the court of appeals affirmed holding the provision that Dahlgren could be terminated "for any reason" could only be interpreted as allowing C & S to terminate him at will or without cause. ¹

Respondent filed a complaint on March 15, 1989 against Nancy Wolff, a consultant who had reviewed the therapy services of C & S. Respondent alleged that through Wolff's report to C & S she had committed numerous offenses against Dahlgren including tortious interference, restraint of trade, unfair competition, deceit, fraud, interference with prospective economic advantage, gender discrimination, and defamation. Several weeks later, respondent filed a "Corrected Complaint" against C & S which alleged tortious interference, fraud and negligent hiring, defamation, restraint of trade, deceit, tortious interference by defamation, and tortious interference

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by fraudulent or deceitful acts. This second suit against C & S contained many of the same allegations and claims dismissed in the first suit.

During the course of discovery, respondent's deposition of Wolff was terminated because respondent asked inappropriate questions regarding the financial arrangements between Wolff and her counsel. Respondent attempted further discovery by motion to compel Wolff to appear for a second deposition and to respond to discovery requests for information on financial arrangements with her counsel. The motion was denied, and respondent was sanctioned $1000 for his "mudslinging and conjecture." ²

In October of 1989, the trial court granted summary judgment in favor of both Wolff and C & S. Each was awarded $1000 for attorney fees under Rule 11, Minn. R. Civ. P. ³ Respondent again appealed the order of summary judgment to the court of appeals, which affirmed awarding an additional $2000 to Wolff and C & S for attorney fees and costs incurred on appeal. ⁴

2. Radloff v. First American National Bank

Respondent filed an action on behalf of Steven and Barbara Radloff in May of 1988 against First American National Bank of St. Cloud, N.A. (First American) and First Farm Corporation, Inc. (First Farm), and two organizations for which First American was allegedly a managerial agent, Royalton Partners and Country Fresh Produce. Although the complaint named all four entities, only First American was served. The claims involved events surrounding the Radloffs' 1985 bankruptcy and alleged that First American breached its lending contracts, conspired to deceive the Radloffs, breached its fiduciary obligations to the Radloffs, and committed acts of trespass, deceit, fraud, economic coercion, outrage, contract interference, and prospective economic advantage interference. The complaint was amended three times to include additional claims. In September of 1989, the trial court issued an order which, inter alia, required additional parties to be added no later than October 22, 1989. Because respondent failed to serve Royalton Partners and Country Fresh Produce, they were dismissed with prejudice from the lawsuit in December of 1989.

Respondent moved to amend the complaint a fourth time in order to add a RICO claim in March of 1990, one month before the close of discovery. The trial court denied the motion and in the same order denied defendant's request to join First American Farm Credit Company (Farm Credit) as a defendant since Farm Credit, although included as a defendant in the amended complaints, had not been served prior to the October cut-off date. Summary judgment was granted for the defendants on two of the claims alleging personal injury. ⁵

Respondent moved the court to take judicial notice of a Minnesota Supreme Court case which affirmed the burglary conviction of a potential witness, the First American employee who had overseen the Radloffs' farming operations. The trial court denied the motion finding the assertion that the court should take judicial notice of a 22-year old burglary conviction of a witness "highly improper." ⁶

The remaining defendants, First American and First Farm, moved for summary judgment on the remaining claims. In his memorandum opposing summary judgment, respondent stated that many of the original

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claims against the defendants had been withdrawn when he failed to include them in a court-ordered damage study submitted several months earlier. This was the first notice to the court and the defendants that these claims had been abandoned.

At the summary judgment hearing, the court raised the issue of whether the Radloffs' claim against First American should be referred back to the bankruptcy court as a claim extant at the time of the bankruptcy or whether the bankruptcy trustee's abandonment of the claim was final. The next day, July 12, 1990, the trial court placed an ex parte telephone call to Jean Didier, counsel for First American, to discuss tabs which had fallen off First American's exhibits. The trial court asked Didier's opinion on the abandonment, and Didier responded that she agreed with respondent that the bankruptcy trustee's abandonment was final.

The trial court granted summary judgment on all remaining counts on July 19, 1990. ⁷ In so ruling, the trial court adopted the position advocated by respondent--that the abandonment of the claim by the trustee was final and irrevocable. ⁸ Respondent subsequently learned of the ex parte conversation between the court and Didier when First American submitted a timesheet noting the July 12 telephone call as part of the supporting documentation for its motion for disbursements and attorney fees. Respondent brought up the ex parte conversation during a hearing on September 17, 1990, and asked that the issue of costs and disbursements be postponed pending depositions regarding the contact. The trial court denied the postponement. On October 2, 1990 the trial court issued an order finding that numerous claims, motions and positions taken by respondent were frivolous and in bad faith including respondent's insufficient service of Royalton Partners and Country Fresh Produce, the attempt to join Farm Credit, the RICO and personal injury claims and respondent's failure to unambiguously withdraw the claims he was no longer pursuing. ⁹ The court sanctioned respondent by awarding attorney fees of $22,037 against respondent and the Radloffs, with an additional $6,104.37 in costs and disbursements awarded only against the Radloffs. ¹⁰ Respondent appealed both the July summary judgment order and the October sanctions order, and both were upheld by the court of appeals. ¹¹

Apparently unwilling to accept the trial court's order of summary judgment, affirmed by the court of appeals, respondent sought to reopen the matter based upon the trial court's ex parte communication with opposing counsel, a communication the trial court acknowledged was inappropriate but which in fact resulted in a ruling favorable to respondent. The motion was denied. ¹² The court noted that respondent had raised the issue during the appeal of the summary judgment, thereby exhausting his right of appeal and leaving the trial court without jurisdiction of the matter. ¹³ Respondent sought to appeal but review was denied by both the court of appeals and this court. ¹⁴

On April 1, 1993, respondent filed another lawsuit on the Radloff matter, this time in the U.S. District Court, District of Minnesota, against First American, First...