In re Bosse, A19-0595
| Decision Date | 28 October 2020 |
| Docket Number | A19-0595 |
| Citation | 951 N.W.2d 469 |
| Parties | IN RE Petition for DISCIPLINARY ACTION AGAINST Richard Edward BOSSE, a Minnesota Attorney, Registration 0245501. |
| Court | Minnesota Supreme Court |
Susan M. Humiston, Director, Binh T. Tuong, Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.
Steven R. Sunde, Saint James, Minnesota, for respondent; and Richard E. Bosse, Henning, Minnesota, pro se.
We appointed a referee after the Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Richard Edward Bosse. After a hearing, the referee determined that Bosse committed professional misconduct during his representation of two clients, T.H. and D.H. The misconduct included failing to diligently represent and properly communicate with both clients, entering into improper flat fee and availability fee agreements with both clients, failing to safeguard the funds of both clients, dishonestly entering into fee agreements with T.H. and unreasonably charging him for the same services under multiple fee agreements, failing to refund unearned fees to T.H., and knowingly making a false statement to D.H. The referee recommended a 4-month suspension. Bosse challenges the referee's findings of fact and conclusions, arguing that the recommended suspension is excessive. We conclude that the referee did not clearly err and that the appropriate discipline for Bosse's misconduct is a 60-day suspension.
Bosse was admitted to practice law in Minnesota in 1994, and was previously admitted to practice law in Florida in 1972. Bosse has practiced law for over 45 years, mostly in the medical malpractice field. Prior to the present misconduct, he received an admonition in 1997 and a public reprimand in 2000. In re Bosse , 607 N.W.2d 448, 448–49 (Minn. 2000) (order).
The Director filed a petition for disciplinary action against Bosse, alleging that Bosse committed professional misconduct during his representation of T.H. and D.H. As to T.H., the Director asserted that Bosse entered into improper fee agreements, dishonestly entered into and failed to fulfill his obligations under two of those agreements, charged unreasonable fees, failed to communicate with and diligently represent T.H., failed to place T.H.’s funds in trust, failed to return unearned fees, and improperly charged for copying the file. As to D.H., the Director similarly alleged that Bosse failed to communicate and provide diligent representation, entered into an improper flat fee agreement, failed to place client funds in trust, and made a false statement to D.H. about his matter.
On December 30, 2010, T.H. had coronary artery bypass surgery
. Following the surgery, T.H. suffered complications. In May 2013, he consulted with Bosse about a potential medical malpractice claim. Four months later, in September 2013, T.H. and Bosse moved forward with the case. Over the next 2 years, T.H. signed three fee agreements with Bosse: (1) the Flat Fee Agreement, (2) the Availability Fee Contract for Pre-Suit Mediation of Potential Malpractice Claim (Availability Agreement), and (3) the Hourly Retainer/Contingency Fee contract (Hourly Agreement).
During those 2 years, Bosse did not respond to reasonable requests from T.H. for updates on the status of his case. T.H. explained that, although he requested an update on his case in December 2013, he did not speak with Bosse until March 6, 2014. He also requested updates by sending four emails to Bosse from April 2 through June 2, 2014; none were answered. T.H. also affirmed that Bosse never provided "any communication about legal research," discussions with necessary witnesses, or a "recommendation as to the potential cause of action."
Despite the communication issues, Bosse prepared and served the summons and complaint on December 23, 2014, just before the statute of limitations expired on December 31, 2014. T.H. terminated the representation on February 20, 2015, for "[u]nreasonable charges for services rendered." Bosse then sent T.H. a copy of the client file. T.H. was unable to find another attorney to take his case; in the end, and after paying Bosse more than $50,000 for legal fees and expenses, T.H. agreed to dismiss the litigation.
On April 12, 2015, D.H. entered into a Flat Fee Agreement with Bosse for representation on a medical malpractice claim. D.H. contacted Bosse's office "probably half a dozen times" to request a case status update. Although he left messages asking that someone return his calls, no one ever did.
In July 2016, Bosse finally left a message on D.H.’s answering machine. After that message, D.H. had no further communication with Bosse.
Over a year later, prompted by the Director's investigation, D.H. received his file from Bosse. The file included an opinion from an expert that no medical malpractice occurred. Bosse admits that he never sent a copy of the expert opinion to D.H. With about 6 months remaining before the statute of limitations expired, D.H. contacted other attorneys, but none were willing to represent him in the medical malpractice litigation.
Leading up to a disciplinary hearing, the Director retained an expert witness to testify about Bosse's handling of the T.H. matter (but not Bosse's representation of D.H.). The expert prepared a report, concluding that Bosse violated many of the Minnesota Rules of Professional Conduct.
The expert testified at the hearing. At one point, the Director asked the expert whether Bosse had fulfilled his obligation under a specific paragraph of the Flat Fee Agreement that required Bosse to gather documents. Bosse objected "to foundation" because the expert had "testified he has not seen all the medical records in Mr. Bosse's file." Because the referee required the Director to lay additional foundation, the Director asked the expert additional questions to establish foundation. The expert testified that he relied on "all the documents that were in [T.H.’s] file," which included Bosse's letters. The expert explained that his conclusion as to whether Bosse had "gathered all the documents necessary to complete this part of the agreement" was based on Bosse's admissions in his "own correspondence" that "he still didn't have all the medical records that he needed in order to evaluate the case" at the time he entered into the Availability Agreement. The referee overruled the objection.
Following the hearing, the referee found that Bosse committed multiple acts of professional misconduct, including the following: Bosse entered into improper Flat Fee Agreements with both clients, an improper Availability Agreement with T.H., and failed to deposit fees related to these agreements into trust, in violation of Minn. R. Prof. Conduct 1.2(a),1 1.2(c),2 1.5(b)(2),3 1.5(b)(3),4 and 1.15(c)(5).5 T.H.’s Availability Agreement and Hourly Agreement were unreasonable, and Bosse engaged in deceptive conduct with respect to those agreements by charging for services that he should have performed under prior agreements, in violation of Minn. R. Prof. Conduct 1.5(a),6 8.4(c), and 8.4(d).7 Bosse failed to perform services under the Flat Fee Agreement and the Availability Agreement and failed to return unearned fees to T.H., in violation of Minn. R. Prof. Conduct 1.5(b)8 and 1.16(d).9 In a message that Bosse left on D.H.’s answering machine, Bosse was dishonest with D.H. about his matter, in violation of Minn. R. Prof. Conduct 4.110 and 8.4(c). Finally, Bosse failed to diligently represent and properly communicate with D.H. and T.H., in violation of Minn. R. Prof. Conduct 1.3,11 1.4(a),12 and 1.4(b).13
After making these findings, the referee concluded that our case law did not directly address the appropriate discipline for Bosse's misconduct. The referee determined that the appropriate discipline was a suspension within the range of 60 days to 1 year. The referee recommended a 4-month suspension.
Bosse challenges the referee's findings of fact and conclusions, arguing that the recommended suspension is excessive.
We begin by reviewing the referee's findings of fact and conclusions for clear error. See In re Varriano , 755 N.W.2d 282, 288 (Minn. 2008). When we agree with the referee's findings and conclusions, then we determine the appropriate discipline. See In re Nathanson , 812 N.W.2d 70, 78 (Minn. 2012).
The Director bears the burden of proving misconduct by clear and convincing evidence. Varriano , 755 N.W.2d at 288. This standard requires a high probability that the facts are true. In re Houge , 764 N.W.2d 328, 334 (Minn. 2009).
Because Bosse ordered a transcript, the referee's findings of fact and conclusions are not conclusive. See Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR); In re Ryerson, 760 N.W.2d 893, 901 (Minn. 2009). We give "great deference to a referee's findings and will not reverse those findings unless clearly erroneous, especially in cases where the referee's findings rest on disputed testimony or in part on respondent's credibility, demeanor, or sincerity." In re Wentzell , 656 N.W.2d 402, 405 (Minn. 2003). We review a challenge to a referee's legal interpretation of the Rules of Professional Conduct de novo. In re Aitken , 787 N.W.2d 152, 158 (Minn. 2010).
Bosse challenges the referee's findings and conclusions, making four arguments. First, he argues that any finding or conclusion based on the Director's expert witness is clearly erroneous because the expert's testimony lacked foundational reliability. Second, he asserts that the fee agreements with T.H. comply with the Rules of Professional Conduct and that he performed all of the services required by those agreements. Third, in the D.H. matter, he challenges the referee's finding that he was dishonest in an answering-machine message, claiming that the absence...
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...assessing the harm to the public, we consider the number of clients harmed and the extent of the clients’ injuries." In re Bosse , 951 N.W.2d 469, 482 (Minn. 2020). Roach harmed only a single client. But because of his misconduct, his client was unable to make an informed decision about the......