Discipline of Benson, Matter of, No. C5-87-1989

CourtSupreme Court of Minnesota (US)
Writing for the CourtPER CURIAM
PartiesIn the Matter of the Application for the DISCIPLINE OF John T. BENSON, an Attorney at Law of the State of Minnesota.
Docket NumberNo. C5-87-1989
Decision Date04 November 1988

Page 120

431 N.W.2d 120
In the Matter of the Application for the DISCIPLINE OF John
T. BENSON, an Attorney at Law of the State of
Minnesota.
No. C5-87-1989.
Supreme Court of Minnesota.
Nov. 4, 1988.

Candice M. Hojan, Office of the Lawyers Professional Responsibility, St. Paul, for appellant.

Jack S. Nordby, Minneapolis, for respondent.

Considered and decided by the court en banc without oral argument.

Page 121

OPINION

PER CURIAM.

This petition for the discipline of respondent John T. Benson raises serious charges of misappropriation of an elderly client's funds through the use of invalid documents and subsequent conspiracy with a second attorney to alter the documents and present perjured testimony to make the documents appear valid. We have already dealt with aspects of the case in the disciplinary proceeding of the second attorney. In re Kaine, 424 N.W.2d 64 (Minn.1988). We now address the disciplinary petition brought against the instigating attorney and order his disbarment.

Respondent was admitted to the Minnesota bar in 1978. On November 10, 1987, this court temporarily suspended his license to practice law pending the outcome of the disciplinary proceeding. The petition and two supplementary petitions filed by the Director of the Board of Professional Responsibility on September 24, November 6 and December 4, 1987, allege eleven counts of misconduct which occurred between 1984 and the present time, while respondent was acting as attorney and trustee for an elderly client, Vivian Young.

A four-day hearing was held before a referee. The director called 23 witnesses and submitted numerous documentary exhibits. The respondent did not testify but thoroughly cross-examined witnesses and submitted depositions of two witnesses of his own. On February 22, 1988 the referee issued findings of fact, conclusions of law and a recommendation for discipline. The referee found the respondent had:

1) drafted documents to benefit himself without adequate disclosures, informed consent or independent legal counsel, in violation of DR 1-102(A)(6), DR 5-101(A) and DR 7-101(A)(3) of the Minnesota Code of Professional Responsibility (MCPR);

2) misappropriated client funds in violation of DR 1-102(A)(4) and (6), DR 7-101(A)(3), DR 9-102(A) and (B), MCPR, and Rules 1.15(a) and (b), 1.7(b) and 8.4(c), Minnesota Rules of Professional Conduct (MRPC);

3) made false certification to the Supreme Court regarding trust funds in violation of DR 1-102(A)(4) and DR 9-104(B) MCPR and Rules 1.15(h) and 8.4(c) MRPC;

4) induced a client through undue influence and fraudulent misrepresentation to sign a trust agreement drafted for his own benefit in violation of Rules 1.8(a) and (c) and Rule 8.4(c) MRPC;

5) violated fidiciary duties in forgiving his own debt, in violation of Rules 1.7(b) and 8.4, MRPC;

6) refused to account for assets in violation of Rules 1.15(b), 3.1, 3.4(a) and (d) and 8.4(d) MRPC;

7) altered and fabricated documents in violation of Rule 3.4(a) and Rules 8.4(a), (c) and (d) MRPC;

8) made false statements under oath in violation of Rules 3.3(a), 3.4(b), 8.1(a) and Rules 8.4(b), (c) and (d) MRPC;

9) conspired to alter documents and give false testimony, in violation of Rule 3.4(b) and Rules 8.4(a), (b), (c) and (d) MRPC;

10) failed to timely file income tax returns in violation of DR 1-102(A)(5) and (6) MCPR and Rule 8.4(d) MRPC;

11) failed to provide copies of his tax returns to the Director's office or to execute authorizations, violating Rule 8.1(a)(3) MRPC and Rule 25, Rules on Lawyers Professional Responsibility (RLPR);

12) falsely notarized a power of attorney in violation of DR 1-102(A)(3) and (4) and DR 7-102(A)(8) MCPR;

13) used the falsely notarized document in violation of DR 1-102(A)(4) and (6) MCPR and Rules 4.1 and 8.4(b) and (c) MRPC;

14) presented the falsely notarized document to the Director's office in violation of Rules 3.4(b), 8.1(a)(1) and 8.4(d) MCPR;

15) impeded the Director's investigation by concealing evidence of the alteration of the Young Trust in violation of Rules 3.4(a) and 8.4(b), (c) and (d) MRPC; and

16) failed to comply strictly with the terms of his temporary suspension in violation of Rule 26 RLPR, and Rules 3.4(c),

Page 122

8.1(a)(3) and 8.4(d) MRPC. The referee found the lack of a previous disciplinary record to be the only mitigating factor. The referee recommended disbarment and assessed costs, disbursements and $2,800 in attorney fees against respondent.

Respondent ordered a transcript on March 1, 1988. Thus the referee's findings are not conclusive under Rule 14(e), RLPR. It is for us to determine whether the evidence supporting those findings of fact meets the clear and convincing standard of proof. In re Schmidt, 402 N.W.2d 544, 545 (Minn.1987). We have described this standard as requiring cogent and compelling evidence. Id.

Respondent filed a brief with this court, admitting the alteration of documents but insisting that the original documents were valid transfers of assets and reflected the wishes of Vivian Young. Less than one month after filing that brief, respondent pled guilty in Ramsey County Court to one felony count of theft by swindle and one felony count of perjury in a seven count felony complaint which arose out of his dealings with Vivian Young's assets. His sentences were stayed on condition that he serve one year in the workhouse with ten years' active probation and pay restitution in the amount of $207,000 to Vivian Young's guardian. Under Rule 19(a), RLPR, these convictions are conclusive evidence that respondent committed the conduct for which he was convicted. In addition, our careful review of the evidence presented at the hearing leads us to affirm the findings of the referee.

This case graphically presents a lawyer's capacity to do injury to vulnerable members of the public who rely on the lawyer in the handling of their assets. Vivian Young and her husband, John, were long-time family friends of the respondent. Just before John Young died of cancer on August 9, 1984, he asked respondent to care for Vivian's needs after his death. Purportedly as part of that arrangement, respondent drafted a September 1, 1984 agreement, signed by himself and Vivian Young. The agreement indicated that respondent was to care for Mrs. Young and would receive the bulk of her estate...

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9 practice notes
  • Disciplinary Action against Wylde, In re, No. C8-88-782
    • United States
    • Supreme Court of Minnesota (US)
    • 20 Abril 1990
    ...in trust account, failure to maintain proper financial records, and failure to cooperate with Lawyers Board investigation); In re Benson, 431 N.W.2d 120, 121 (Minn.1988) (lawyer drafted documents to benefit himself, misappropriated client funds, made false certifications to this court, frau......
  • In re Disciplinary Action against Holker, No. A06-896.
    • United States
    • Supreme Court of Minnesota (US)
    • 3 Mayo 2007
    ...clearly distressed over her sister's death. There is great public concern over protecting vulnerable persons. See, e.g., In re Benson, 431 N.W.2d 120, 124-25 (Minn.1988) (disbarment ordered where lawyer's misconduct was directed at an elderly, dependent person who was a lifelong friend of t......
  • In re Disciplinary Action against Andrade, No. A06-426.
    • United States
    • Supreme Court of Minnesota (US)
    • 19 Julio 2007
    ...from a long-time client and friend, "[t]he general public, with no such relationship, would hardly be protected from similar misconduct." 431 N.W.2d 120, 124 Second, although we allowed Andrade to practice under supervision for the brief time this matter has been pending, and although Andra......
  • In re Knutson, No. A05-808.
    • United States
    • Supreme Court of Minnesota (US)
    • 6 Abril 2006
    ...(quoting In re Salmen, 484 N.W.2d 253, 254 (Minn.1992)). Lack of a previous disciplinary record is a mitigating factor, see In re Benson, 431 N.W.2d 120, 122 (Minn.1988), but we determine that it is insufficient to overcome Knutson's numerous violations of professional Knutson has engaged i......
  • Request a trial to view additional results
9 cases
  • Disciplinary Action against Wylde, In re, No. C8-88-782
    • United States
    • Supreme Court of Minnesota (US)
    • 20 Abril 1990
    ...in trust account, failure to maintain proper financial records, and failure to cooperate with Lawyers Board investigation); In re Benson, 431 N.W.2d 120, 121 (Minn.1988) (lawyer drafted documents to benefit himself, misappropriated client funds, made false certifications to this court, frau......
  • In re Disciplinary Action against Holker, No. A06-896.
    • United States
    • Supreme Court of Minnesota (US)
    • 3 Mayo 2007
    ...clearly distressed over her sister's death. There is great public concern over protecting vulnerable persons. See, e.g., In re Benson, 431 N.W.2d 120, 124-25 (Minn.1988) (disbarment ordered where lawyer's misconduct was directed at an elderly, dependent person who was a lifelong friend of t......
  • In re Disciplinary Action against Andrade, No. A06-426.
    • United States
    • Supreme Court of Minnesota (US)
    • 19 Julio 2007
    ...from a long-time client and friend, "[t]he general public, with no such relationship, would hardly be protected from similar misconduct." 431 N.W.2d 120, 124 Second, although we allowed Andrade to practice under supervision for the brief time this matter has been pending, and although Andra......
  • In re Knutson, No. A05-808.
    • United States
    • Supreme Court of Minnesota (US)
    • 6 Abril 2006
    ...(quoting In re Salmen, 484 N.W.2d 253, 254 (Minn.1992)). Lack of a previous disciplinary record is a mitigating factor, see In re Benson, 431 N.W.2d 120, 122 (Minn.1988), but we determine that it is insufficient to overcome Knutson's numerous violations of professional Knutson has engaged i......
  • Request a trial to view additional results

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