In re Disciplinary Action Against Gherity, No. C5-87-1684.

• Decision Date: 15 January 2004
• Docket Number: No. C5-87-1684.
• Citation: 673 N.W.2d 474
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST David J. GHERITY, a Minnesota Attorney, Registration No. 140181.
• Court: Minnesota Supreme Court

673 N.W.2d 474

In re Petition for DISCIPLINARY ACTION AGAINST David J. GHERITY, a Minnesota Attorney, Registration No. 140181.

No. C5-87-1684.

Supreme Court of Minnesota.

January 15, 2004.

Rehearing Denied February 23, 2004.¹

Kenneth L. Jorgensen, Director, Betty M. Shaw, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Petitioner.

David J. Gherity, Burnsville, MN, for Respondent.

Heard, considered and decided by the court en banc.

OPINION

PER CURIAM.

In this lawyer discipline case, we conclude that respondent David J. Gherity was not denied due process in the disciplinary proceedings and that the referee's findings of fact, and the conclusions drawn from those findings, are not clearly erroneous and are supported by the evidence. We also conclude that the appropriate discipline is indefinite suspension from the practice of law with no right to apply for reinstatement for a period of five years from date of this decision.

On June 20, 2001, Gherity was convicted in Hennepin County District Court of fifth-degree assault and disorderly conduct. He was sentenced to 90 days confinement, 75 days of which were stayed for one year on the conditions that he obtain a full chemical dependency evaluation, a mental health assessment, anger management counseling, and that he pay a fine and restitution and have no contact with the victims. The convictions, which were affirmed by the court of appeals, arose from an incident on October 29, 2000 in which Gherity assaulted his girlfriend by repeatedly kicking her in the hallway outside of her 26th floor apartment and when a neighbor attempted to intervene, Gherity also assaulted the neighbor by chasing him to the 26th floor balcony, forcing him against the railing with his hands around his throat, and then repeatedly punching him. State v. Gherity, No. C8-01-1086, 2002 WL 1837912 (Minn.App. Aug.13, 2002), rev. denied (Oct. 29, 2002).

As a result of Gherity's convictions in district court, the Director of the Office of Lawyer's Professional Responsibility filed a petition for disciplinary action, alleging that Gherity had engaged in professional misconduct in violation of Minn. R. Prof. Conduct 8.4(b)² and (d).³ In the petition, the Director also requested revocation of the professional probation that had been imposed on Gherity for earlier professional misconduct violations. See In re Gherity, 464 N.W.2d 719, 720 (Minn.1991)

; In re Gherity, 446 N.W.2d 371, 371-72 (Minn. 1989); In re Gherity, 424 N.W.2d 63, 63 (Minn.1988).

At the evidentiary hearing before the referee, Gherity requested a continuance, claiming that counsel he retained had failed to appear, despite numerous reminders. The Director opposed the continuance, noting that the hearing date had been known for some time. The referee indicated that his court reporter's call to the counsel Gherity had earlier indicated he might retain had never been returned. Noting that counsel Gherity claimed to have retained had made no appearance in this matter and could not be reached at his office or by cell phone, the referee denied Gherity's requests for a continuance of the evidentiary hearing or, in the alternative, court-appointed counsel. The referee also denied Gherity's motion to dismiss the petition on grounds of investigatory misconduct by the Director's office. The Director presented evidence at the hearing of Gherity's June 2001 fifth-degree assault and disorderly conduct convictions, as well as evidence of Gherity's past disciplinary record. Gherity testified, offering his explanation of the incident that resulted in his convictions for fifth-degree assault and disorderly conduct, and also offering explanations for prior misconduct that resulted in earlier convictions and professional discipline. He also asserted that he suffered from depression and a head injury resulting from a motorcycle accident 12 years before. He asked that his depression and head injury be considered mitigating factors.

The referee found that Gherity's June 2001 convictions for fifth-degree assault and disorderly conduct constituted conclusive evidence of the conduct underlying those convictions and also conclusive evidence of professional misconduct in violation of Minn. R. Prof. Conduct 8.4(b) and (d). The referee also concluded that Gherity's convictions violated professional probation imposed on Gherity in 1988 for disciplinary violations and continued for subsequent violations and that Gherity's "extensive" prior discipline and criminal record constituted a "pattern of misconduct" and an aggravating factor. The referee also concluded that Gherity's "last minute" claims of depression and a head injury were not sufficiently developed to constitute mitigating factors. The referee recommended that Gherity be disbarred.

Gherity, who was admitted to practice on October 15, 1982, has been publicly disciplined on three prior occasions and privately admonished twice. He was on professional probation from 1988 until suspended from practice on March 13, 2003, pending resolution of this matter.

In 1988, Gherity was placed on professional probation for two years after acknowledging in a stipulation with the Director that he had been found guilty following trial of violating an order for protection and that he had pleaded guilty to a charge of disorderly conduct for an unrelated incident. In re Gherity, 424 N.W.2d at 63. In 1989, his professional probation was extended to May 1991 when, by stipulation with the Director, Gherity admitted that he had failed to pay his attorney registration fee, had arrived late for a court proceeding and had failed to follow the terms of the professional probation ordered by this court in 1988. In re Gherity, 446 N.W.2d at 371-72. In November 1990, following allegations by the Director that he had failed to appear for a pretrial hearing on behalf of a client, had failed to return an unearned portion of a retainer when discharged by a client, and was involved in an altercation which resulted in minor injuries to two women, Gherity, again by stipulation with the Director, admitted the allegations and agreed to discipline which we subsequently ordered, modifying his professional probation and prohibiting him from practicing law unless he associated with attorneys accountable for Gherity's actions. In re Gherity, 464 N.W.2d at 719-20. The stipulation and our order allowed Gherity to petition for an order terminating his probation upon presentation of clear and convincing evidence that he had successfully completed his criminal probation, had complied with all terms of his professional probation, and was psychologically fit to represent clients without supervision. Id. Following further stipulation between Gherity and the Director, we issued an order on March 20, 1991, modifying the terms of Gherity's probation by allowing him to represent up to ten clients in his solo capacity. In 1992, Gherity received a private disciplinary admonition for filing an appeal without attaching a copy of the order appealed from and failing to correct the deficiency when requested by the clerk of appellate courts. In 1996, he again received a private disciplinary admonition for violating Minn. R. Prof. Conduct 4.4,⁴ by threatening at a hearing to reveal an alleged affair between an opposing party and her former employer. Gherity never petitioned this court for an order terminating professional probation first imposed in 1988 and his probation remained in effect until March 13, 2003, when he was suspended from practice pending resolution of this matter.

I.

We first address Gherity's claim that he has been denied due process in the disciplinary proceedings. While disciplinary proceedings are not encumbered by technical rules and formal requirements, this court observes due process in exercising disciplinary jurisdiction. In re Gillard, 271 N.W.2d 785, 808 (Minn.1978). The charges to which an attorney must answer need to be sufficiently clear and specific and the attorney must be afforded an opportunity to anticipate, prepare and present a defense. Id.; In re Peterson, 260 Minn. 339, 345, 110 N.W.2d 9 (1961)

.

Gherity claims that his due process rights were violated because he was not given timely notice that the Director would seek disbarment. According to Gherity, the Director only requested disbarment after Gherity refused to sign a stipulation for indefinite suspension at the preliminary hearing. Gherity points out that disbarment was not specifically requested in the Director's petition.

We have held that an attorney has a right to know the nature of the charges filed against him but we have never suggested that he has a due process right to know the exact discipline that will be requested by the Director following the evidentiary hearing. See In re Peterson, 260 Minn. at 345, 110 N.W.2d at 13

("the charges of professional misconduct, though informal, should be sufficiently clear and definite * * * to afford the respondent an opportunity to prepare and present his defense"); In re Rerat, 232 Minn. 1, 4-5, 44 N.W.2d 273, 275 (1950) (discussing the importance of due process safeguards in attorney discipline cases). There is no dispute that Gherity had knowledge of the specific charges against him when he accepted service of the petition on May 8, 2002. The petition recited that the Director sought an order "revoking [Gherity's] probation, suspending [Gherity's] license to practice law or imposing otherwise appropriate discipline." Our professional responsibility rules make clear that an attorney may be disbarred, suspended, placed on probation, reprimanded and/or required to pay costs upon conclusion of disciplinary proceedings. Rule 15(a), Rules on Lawyers Professional Responsibility (RLPR). We hold that even if the Director's petition in disciplinary proceedings does not specifically state that disbarment is the discipline the Director is seeking, the attorney's due process rights...