Disciplinary Action v. Wolff, No. A11–1358.

Decision Date15 February 2012
Docket NumberNo. A11–1358.
PartiesIn re Petition for DISCIPLINARY ACTION AGAINST Erin Marie WOLFF, (f/k/a Erin M. Alavez) a Minnesota Attorney, Registration No. 285766.
CourtMinnesota Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court

Because the disciplinary proceedings in Arizona were fair and because respondent's misconduct supports disbarment in Minnesota, respondent's disbarment in Arizona warrants reciprocal disbarment.

Martin A. Cole, Director, Cassie Hanson, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, MN, for petitioner.

Erin Marie Wolff, Eden Prairie, MN, pro se.

OPINION

PER CURIAM.

On March 17, 2009, respondent Erin Marie Wolff was disbarred in Arizona under her married name, Erin M. Alavez, for several instances of professional misconduct.1 Respondent then returned to Minnesota and resumed practicing law under her maiden name, Erin Marie Wolff. Respondent did not inform the Director of the Minnesota Office of Lawyers Professional Responsibility (Director) of her Arizona disbarment. In April 2011, the State Bar of Arizona informed the Director of respondent's disbarment in Arizona. 2 The Director thereafter filed this petition for reciprocal discipline under Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR). Because we conclude that reciprocal discipline is warranted, respondent is disbarred from the practice of law in Minnesota.

Respondent was admitted to practice law in Minnesota on October 30, 1998. In 2001, respondent married, changed her last name to Alavez, and moved her practice to Arizona. Respondent was admitted to practice under her married name, Erin M. Alavez, in Arizona on October 29, 2001.3

On February 29, 2008, the State Bar of Arizona filed a disciplinary complaint against respondent alleging six counts of misconduct. On March 5, 2008, the complaint was sent by certified mail to the address respondent had provided to the State Bar of Arizona. Respondent failed to answer the complaint, a notice of default was filed on April 22, 2008, and default was entered on May 13, 2008.

A hearing regarding respondent's discipline was held on June 4, 2008, before a hearing officer of the Arizona Supreme Court. Respondent failed to appear for the hearing despite being mailed notice of it on May 19, 2008. The hearing officer found that respondent violated a number of professional rules. Specifically, the hearing officer found that respondent lacked competence and diligence; misappropriated client funds; failed to abide by clients' decisions; failed to communicate and consult with clients; failed to promptly inform a client of a plea agreement; failed to expedite litigation; failed to properly withdraw from client matters; collected unreasonable fees; knowingly made false statements to a tribunal; knowingly disobeyed orders of a tribunal; brought a frivolous claim; engaged in conduct prejudicial to the administration of justice; engaged in conduct involving dishonesty; violated professional probation; and refused to cooperate with disciplinary proceedings.

The hearing officer further found that there were no mitigating circumstances for respondent's conduct.4 Finally, the hearing officer found that the following aggravating circumstances existed: prior discipline, multiple offenses, pattern of misconduct, dishonest motives, vulnerability of victims, refusal to cooperate in the disciplinary process, and substantial experience in the law.

Based on all of these findings, the hearing officer recommended that respondent be disbarred. Arizona's Disciplinary Commission unanimously recommended acceptance of the hearing officer's recommendation and the Arizona Supreme Court disbarred respondent on March 17, 2009.

After Arizona disbarred her, respondent returned to Minnesota. Respondent did not notify the Director of her Arizona disbarment, as required by Rule 12(d), RLPR.5 Instead, she resumed practice under her maiden name, Erin Marie Wolff.

The Director initiated an investigation of respondent after being notified of her disbarment by the State Bar of Arizona. Respondent hired private counsel and initially cooperated with the investigation.6 On August 1, 2011, the Director filed a petition for reciprocal discipline and respondent's attorney admitted to being served with the petition. On August 22, 2011, we ordered respondent to file a memorandum within 30 days indicating why disbarment should not be imposed. Respondent failed to respond. Respondent did not file a brief, appear at oral argument, or otherwise participate in this disciplinary proceeding.

I.

The issue before us is whether respondent should be reciprocally disciplined in Minnesota because of her disbarment in Arizona. Under Rule 12(d), RLPR, the Director may petition for reciprocal discipline based solely on knowledge, from any source, “that a lawyer licensed to practice in Minnesota has been publicly disciplined ... in another jurisdiction.” Rule 12(d), RLPR. Unless we determine otherwise, a final determination in another jurisdiction that a lawyer has committed misconduct conclusively establishes that misconduct for purposes of our reciprocal discipline proceeding. Id. After a petition for reciprocal discipline is filed, we may impose identical discipline “unless it appears that discipline procedures in the other jurisdiction were unfair, or the imposition of the same discipline would be unjust or substantially different from discipline warranted in Minnesota.” Id. We therefore must determine whether Arizona's disciplinary procedures were fair to respondent and, if so, whether we would impose substantially different discipline for respondent's misconduct.

A.

Arizona's disciplinary procedures were fair to respondent if they “were consistent with [the principles of] fundamental fairness and due process.” See, e.g., In re Schmidt, 586 N.W.2d 774, 775 (Minn.1998). We have consistently held that another jurisdiction's disciplinary proceedings are fair if the attorney is given notice of the proceedings and an opportunity to “present evidence of good character and other mitigating circumstances.” In re Koss, 572 N.W.2d 276, 277 (Minn.1997). And an attorney's decision not to participate in the disciplinary proceedings in another jurisdiction is not relevant to our determination of the fairness of those proceedings. In re Roff, 581 N.W.2d 32, 34 (Minn.1998) (concluding that Arizona's disbarment proceedings were fair, despite the attorney's failure to participate in them, because the proceedings gave the attorney notice and a chance to be heard); In re Morin, 469 N.W.2d 714, 716–17 (Minn.1991) (concluding that, despite the attorney's failure to participate in them, Montana's disbarment proceedings were fair because the attorney “was served with the complaint ... and with notice of the hearing”).

To determine whether the procedures were consistent with these principles, we review the record of Arizona's proceedings. See Schmidt, 586 N.W.2d at 775–76. If we conclude that Arizona gave respondent notice of the proceedings and an opportunity to present evidence of her good character or mitigating circumstances for her conduct, then the disciplinary procedures were consistent with the principles of fundamental fairness and due process. Arizona gave respondent notice of the disciplinary complaint against her on March 5, 2008. The notice was sent by certified mail to the address respondent had provided to the State Bar of Arizona. Respondent's actions indicate that she had actual knowledge of Arizona's disciplinary proceedings. Indeed, she requested, and was granted, two extensions to reply to disciplinary complaints. After respondent failed to respond to the factual allegations against her, Arizona sent notice of the upcoming hearing to the same address. Respondent failed to appear at, or otherwise participate in, the hearing. But this decision does not impact our determination as to the fairness of Arizona's proceedings. See, e.g., Roff, 581 N.W.2d at 34. Because Arizona gave notice to respondent of the disciplinary proceedings and respondent had an opportunity to present evidence in those proceedings, we hold that respondent's disciplinary proceedings in Arizona were consistent with the principles of fundamental fairness and due process.

B.

Having concluded that the Arizona proceedings were fair, we turn next to the question of discipline. Rule 12(d), RLPR, provides that reciprocal discipline should be imposed only if similar discipline would be warranted in Minnesota. In Minnesota, we consider four factors when determining what discipline to impose: (1) the nature of the misconduct; (2) the cumulative weight of the disciplinary violations; (3) the harm to the public; and (4) the harm to the legal profession.” In re Ulanowski, 800 N.W.2d 785, 799 (Minn.2011) (quoting In re Nelson, 733 N.W.2d 458, 463 (Minn.2007)). We also consider any aggravating factors and mitigating circumstances that are found. Id. While “prior decisions guide and aid us in enforcing consistent discipline,” In re Rebeau, 787 N.W.2d 168, 174 (Minn.2010), sanctions are ultimately determined “based on the unique facts of each case.” Ulanowski, 800 N.W.2d at 799.

Under Rule 12(d), RLPR, we may deem another jurisdiction's final adjudication that a lawyer has committed misconduct to conclusively establish that misconduct in Minnesota disciplinary proceedings. Rule 12(d), RLPR (“Unless the Court determines otherwise, a final adjudication in another jurisdiction that a lawyer had committed certain misconduct shall establish conclusively the misconduct for purposes of disciplinary proceedings in Minnesota.”). The Arizona Supreme Court concluded that respondent's conduct violated numerous professional rules. Specifically, the court found that respondent lacked competence and diligence; misappropriated client funds; failed to abide by clients' decisions; failed to communicate and consult with clients; failed to promptly inform...

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