Disciplinary Action Against Ray, In re, No. CX-81-1120

CourtSupreme Court of Minnesota (US)
Writing for the CourtPER CURIAM
Citation452 N.W.2d 689
PartiesIn re Petition for DISCIPLINARY ACTION AGAINST Harry N. RAY, an Attorney at Law of the State of Minnesota.
Decision Date16 March 1990
Docket NumberNo. CX-81-1120

Page 689

452 N.W.2d 689
In re Petition for DISCIPLINARY ACTION AGAINST Harry N. RAY,
an Attorney at Law of the State of Minnesota.
No. CX-81-1120.
Supreme Court of Minnesota.
March 16, 1990.

Page 690

William J. Wernz, Director of the Office of Lawyers Professional Responsibility, Kenneth L. Jorgenson, Sr. Asst. Director, St. Paul, for appellant.

Jack S. Nordby, Minneapolis, for respondent.

Heard, considered and decided by the court en banc.

PER CURIAM.

This court suspended respondent, Harry N. Ray, for 3 years by order dated June 14, 1985. In re Ray, 368 N.W.2d 924 (Minn.1985). The charges now before this court are related to respondent's actions while under suspension. Those charges were referred to a referee who, after holding a hearing on the petition and supplementary petition for disciplinary action, concluded that respondent engaged in improper activities for a suspended attorney and recommended disbarment if respondent refused to resign permanently from the bar. In the alternative, the referee recommended continuing respondent's suspension for 1 year under supervision of an attorney if respondent works for an attorney. Because respondent ordered a transcript, the referee's findings, conclusions and recommendation are at issue pursuant to Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR). We modify the referee's recommendation and continue respondent on suspension.

Respondent was admitted to practice law in Minnesota in October 1953. He is now 67 years old, married and has eight children and six grandchildren.

The parties do not dispute all the referee's findings. They agree on the following facts: Respondent was the sole shareholder, officer and director of Harry N. Ray, Ltd., a professional corporation, and practiced law in Bloomington, Minnesota. John F. Markert, an attorney admitted to practice law in Minnesota since 1956, was an associate with the Harry N. Ray, Ltd. law firm. After respondent's suspension, respondent amended the articles of incorporation to change the corporate name to John F. Markert, Ltd. and to transfer all shares to Markert. Respondent continued as an employee of this organization at least

Page 691

until the time the referee issued his report on July 28, 1989. Respondent did pro bono work for various charitable organizations, churches and needy clients and served in the military.

The incidents giving rise to the latest petition are as follows:

On October 12, 1987, respondent notarized the signatures at the execution of a will drafted by Markert for Mary Voita. No licensed attorney was present at the execution. In January of 1988, Voita's daughter, Mary Binek, called respondent and asked him to send her a copy of her mother's will. Respondent refused to send a copy to Binek, but sent one to Voita. In February of 1988, Binek filed a complaint with the director's office alleging that respondent held himself out as Voita's lawyer and drafted Voita's October 12, 1987 will. In their statements and testimony, respondent and Markert made inconsistent statements about the number of times they visited Voita together and individually.

In October 1986, Virginia O'Neill was involved in a redemption from foreclosure with a company represented by Jeffrey Lang. Lang wrote respondent and said that O'Neill identified respondent as her lawyer. In January and February 1987, Lang talked with respondent on the telephone about settling the case. Markert, not respondent, appeared as O'Neill's attorney at a March 1987 hearing on a related unlawful detainer action. At the time of respondent's suspension in 1985, Lang's law firm was notified by certified mail of the suspension.

In February 1985, before respondent's suspension, Lois McNamara retained respondent to represent her in an automobile accident matter. Shortly after respondent's suspension, McNamara agreed to have Markert represent her. McNamara expressed dissatisfaction with Markert's representation and later discharged both respondent and Markert and retained another lawyer. McNamara then discharged her new lawyer and rehired John F. Markert, Ltd. Between May and December 1988, respondent made several attempts to negotiate a settlement with McNamara's insurance company. In the fall of 1988, respondent told McNamara that if her case went to trial, an attorney other than Markert would handle the case. McNamara knew that respondent was suspended, but thought he was in the process of being reinstated.

Based on a memo to the Voita file, the referee concluded that respondent drafted the will while suspended. In addition, the referee concluded that respondent engaged in improper activities for a suspended attorney in the O'Neill and McNamara matters. The director agrees with these findings, but asserts, disputing the referee, that there is clear and convincing evidence of respondent knowingly making false statements to the director's office about the Voita matter and holding himself out as a lawyer to O'Neill. Further, the director objects to the referee's failure to find that respondent lied to McNamara about his ability to represent her.

Respondent disputes the referee's conclusion that he acted improperly in the Voita, O'Neill and McNamara matters. Specifically, he challenges as unsupported by clear and convincing evidence the referee's finding that respondent must have drafted an earlier will for Voita. Respondent also denies that he led McNamara to believe that he would soon be reinstated or would handle the case as the referee's findings suggest.

The issues before us are:

I. Whether clear and convincing evidence supports the referee's finding of the unauthorized practice of law;

II. Whether the referee erred in finding that clear and convincing evidence did not support allegations that respondent made false statements to the director's office and to a client; and

III. What the appropriate discipline should be.

The director has the burden of proof in disciplinary proceedings. In re Witherow, 226 Minn. 58, 60, 32 N.W.2d 176, 177 (1948). This court has explained the standard of proof in attorney disciplinary proceedings as requiring full, clear

Page 692

and convincing evidence. In re Miera, 426 N.W.2d 850, 853 (Minn.1988). That is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt. Id. This court has repeatedly afforded great weight to findings of fact and conclusions of a referee. In re Schmidt, 402 N.W.2d 544, 545 (Minn.1987). Although recommendations for discipline of an attorney made by a referee are afforded the...

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13 practice notes
  • In Re Petition For Disciplinary Action v. Donald W. Fett, No. A09-1862.
    • United States
    • Supreme Court of Minnesota (US)
    • 24 Noviembre 2010
    ...Lack of harm to the client can be a mitigating factor when determining the appropriate sanction for attorney misconduct. In re Ray, 452 N.W.2d 689, 694 (Minn.1990); see also In re Farley, 771 N.W.2d 857, 863 (Minn.2009). We have also considered the lack of improper motive or harmful intent ......
  • In re Overboe, No. A07-259.
    • United States
    • Supreme Court of Minnesota (US)
    • 13 Marzo 2008
    ...this case. Mitigating Factors We have considered the absence of harm to clients to be a mitigating factor in discipline cases. In re Ray, 452 N.W.2d 689, 694 (Minn.1990). The referee found that no clients were harmed here. But we do not consider the lack of client harm a mitigating factor i......
  • In re Farley, No. A08-1178.
    • United States
    • Supreme Court of Minnesota (US)
    • 13 Agosto 2009
    ..."lack of harm to clients" as a mitigating factor. Lack of harm to clients may be considered as a mitigating factor. In re Ray, 452 N.W.2d 689, 694 (Minn.1990). The referee made no specific finding regarding lack of harm to clients, but did find that Farley's crime occurred outside......
  • In Re Petition For Disciplinary Action v. Lisa Jane Mayne, No. A08-1522.
    • United States
    • Supreme Court of Minnesota (US)
    • 10 Junio 2010
    ...mitigates Mayne's misconduct. Lack of harm to clients may be considered as a mitigating factor in lawyer discipline cases. In re Ray, 452 N.W.2d 689, 694 (Minn.1990). And it is uncontested that Mayne's misconduct took place outside the practice of law, and that no clients were harmed. Thus ......
  • Request a trial to view additional results
13 cases
  • In Re Petition For Disciplinary Action v. Donald W. Fett, No. A09-1862.
    • United States
    • Supreme Court of Minnesota (US)
    • 24 Noviembre 2010
    ...Lack of harm to the client can be a mitigating factor when determining the appropriate sanction for attorney misconduct. In re Ray, 452 N.W.2d 689, 694 (Minn.1990); see also In re Farley, 771 N.W.2d 857, 863 (Minn.2009). We have also considered the lack of improper motive or harmful intent ......
  • In re Overboe, No. A07-259.
    • United States
    • Supreme Court of Minnesota (US)
    • 13 Marzo 2008
    ...this case. Mitigating Factors We have considered the absence of harm to clients to be a mitigating factor in discipline cases. In re Ray, 452 N.W.2d 689, 694 (Minn.1990). The referee found that no clients were harmed here. But we do not consider the lack of client harm a mitigating factor i......
  • In re Farley, No. A08-1178.
    • United States
    • Supreme Court of Minnesota (US)
    • 13 Agosto 2009
    ..."lack of harm to clients" as a mitigating factor. Lack of harm to clients may be considered as a mitigating factor. In re Ray, 452 N.W.2d 689, 694 (Minn.1990). The referee made no specific finding regarding lack of harm to clients, but did find that Farley's crime occurred outside......
  • In Re Petition For Disciplinary Action v. Lisa Jane Mayne, No. A08-1522.
    • United States
    • Supreme Court of Minnesota (US)
    • 10 Junio 2010
    ...mitigates Mayne's misconduct. Lack of harm to clients may be considered as a mitigating factor in lawyer discipline cases. In re Ray, 452 N.W.2d 689, 694 (Minn.1990). And it is uncontested that Mayne's misconduct took place outside the practice of law, and that no clients were harmed. Thus ......
  • Request a trial to view additional results

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