Discipline of Bernstein, Matter of, C1-86-716

• Decision Date: 08 May 1987
• Docket Number: No. C1-86-716,C1-86-716
• Citation: 404 N.W.2d 804
• Parties: In the Matter of the Application for the DISCIPLINE OF Lewis S. BERNSTEIN, an Attorney at Law of the State of Minnesota.
• Court: Minnesota Supreme Court

Page 804

404 N.W.2d 804

In the Matter of the Application for the DISCIPLINE OF Lewis S. BERNSTEIN, an Attorney at Law of the State of Minnesota.

No. C1-86-716

Supreme Court of Minnesota.

May 8, 1987.

William J. Wernz, Director of the Office of Prof. Respc., St. Paul, for appellant.

Theodore Collins, St. Paul, for respondent.

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

PER CURIAM.

This matter comes to us for discipline based on a referee's findings of misappropriation, attempted fraud, unauthorized endorsement of a check, misrepresentation to a client's insurer, perjury, fabrication of documentary evidence, trust account improprieties, and false certification to this court. The referee found no mitigating circumstances, one aggravating circumstance, and recommended 18 months' suspension. We adopt the referee's findings but in light of the seriousness of respondent's misconduct require that he be suspended for 4 years.

The facts, as found by the referee, are deemed conclusive because neither party ordered a transcript of the hearing before the referee. Minn.R.Law.Prof.Resp. 14(d) (1987). The referee found that in December 1985 respondent Lewis S. Bernstein negotiated a $2,500 personal injury settlement for his client. The insurance company sent Bernstein a check for $2,500 and a release mistakenly reflecting a $2,000 settlement. From December 17, 1985, through February 11, 1986, Bernstein attempted to defraud his client of $325 of his net settlement proceeds. In a series of letters and phone calls, Bernstein repeatedly lied to his client, telling him the settlement was for $2,000, and attempted to intimidate him into signing the $2,000 release. On December 21, 1985, Bernstein forged his client's name on the settlement check, deposited the check in his trust account, and then issued himself a check for $1,100, $325 in excess of the attorney fees to which he was entitled. With rare exceptions, from December 24, 1985, to February 17, 1986, Bernstein did not have the appropriate amount in his trust account. After the client contacted the insurance company in February 1986 and learned of the actual settlement amount, Bernstein paid the client the money due. The client complained against respondent to the Office of Lawyers Professional Responsibility.

The director's petition alleged four counts of misconduct related to the attempted fraud and one count alleging failure to maintain proper trust account records and false certification to this court. A supplementary petition alleging perjury and fabrication of evidence in the disciplinary proceedings was filed after the referee's hearing. Bernstein's verified answer to the original petition included many falsehoods. In addition, at his deposition and during the hearing before the referee, Bernstein repeatedly lied under oath and he fabricated a bank deposit slip which was introduced into evidence. After a bank employee's testimony exposed the falsified deposit slip, Bernstein testified truthfully that he had fabricated the evidence and lied under oath.

As appropriate discipline, the director recommends respondent be disbarred. The referee recommends 18 months' suspension. We place great weight on the referee's recommendations but retain final responsibility for determining the appropriate discipline. In re Fling, 316 N.W.2d 556, 559 (Minn.1982).

The director argues that the present case is similar to In re Parks, 396 N.W.2d 560 (Minn.1986). Parks had been privately reprimanded twice and was on 2-year probation for a third ethics violation when he misappropriated for his own use $4,800 of a $6,000 settlement. Parks lied to the client for 3 years regarding the whereabouts of the funds. He also initially lied to the director to cover up his misconduct, but finally told the truth when the director produced irrefutable evidence of Park's wrongdoing. Although Parks did...