In re Disciplinary Action against Mayrand, No. A04-1704.
| Decision Date | 02 November 2006 |
| Docket Number | No. A04-1704. |
| Citation | 723 N.W.2d 261 |
| Parties | In re Petition for DISCIPLINARY ACTION AGAINST Peter MAYRAND, a Minnesota Attorney, Registration No. 69206. |
| Court | Minnesota Supreme Court |
Martin A. Cole, Director, Timothy M. Burke, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Appellant.
Peter Mayrand, Motley, MN, pro se.
Heard, considered, and decided by the court en banc.
The Director of the Office of Lawyers Professional Responsibility (Director) served a petition and two supplementary petitions for disciplinary action against Peter Mayrand. The petitions allege that Mayrand failed to communicate with clients, failed to provide an accounting of client funds upon request, failed to provide refunds to clients for unearned fees, failed to return files upon client requests, abandoned clients after accepting fees, failed to follow court orders and rules, lacked diligence in prosecuting cases, failed to timely file tax returns, overdrew his client trust account, and failed to cooperate with disciplinary proceedings. The Director alleges that Mayrand violated Rules 1.1, 1.3, 1.4, 1.15, 1.16(d), 3.2, 3.3(a)(1), 3.4(c), 4.1, 8.1(a)(3), 8.4(b)-(d), Minnesota Rules of Professional Conduct;1 Rule 25, Rules on Lawyers Professional Responsibility (RLPR);2 and Lawyers Professional Responsibility Board Opinion Nos. 13 and 15. The Director made many unsuccessful attempts to address these allegations with Mayrand.3 On January 7, 2005, this court suspended Mayrand for one year and ordered that the allegations in the petitions be deemed admitted if Mayrand failed to appear in the matter within the year. Mayrand failed to appear. We deem the allegations admitted and agree with the Director that disbarment is warranted.
The misconduct at issue in this matter involves Mayrand's representation of eight clients. Mayrand represented R.C. on an appeal from a federal criminal conviction. R.C. paid Mayrand $15,000, which was never deposited into a trust account. Mayrand claimed it was a non-refundable flat fee, but there was no written fee agreement to that effect. Over the next several months, R.C. became dissatisfied with the progress of his appeal and Mayrand's lack of communication, causing R.C. to retain new counsel. Mayrand promised to account for the funds that R.C. had paid him and to return the unused balance. Mayrand never provided R.C. with an accounting or refund.
Mayrand agreed to represent D.C. on appeal from a federal criminal conviction to the United States Court of Appeals for the Seventh Circuit. Over the course of representation, Mayrand failed to submit the appellant's brief for one year and six months, missing a total of four court-imposed deadlines. The court sent a total of four orders directing Mayrand to show cause why the court should not take disciplinary action for his failure to prosecute the appeal. Mayrand responded twice, stating that his client had been advised of and agreed with the use of Mayrand's "delaying tactic," but D.C. stated that he never consented. Mayrand finally submitted the brief, but the court found it deficient. Mayrand failed to resubmit the brief, resulting in another show cause order, to which Mayrand never responded. The Seventh Circuit finally struck Mayrand's name from its roll of attorneys, due to his failure to prosecute the appeal and respond to the latest show cause order. The court appointed alternative counsel to D.C.
J.H. retained Mayrand to represent her in a bankruptcy proceeding. He accepted $950, which he claimed was a flat fee pursuant to a retainer agreement, but he never produced a written agreement. J.H. had difficulty contacting Mayrand about her case for several months. When she met with Mayrand nearly a year later, he told her that he would file the bankruptcy case the next week and that discharge would occur within 5 weeks. J.H. learned later that what Mayrand told her was false. She sent Mayrand a certified letter, requesting that he return the fee and her file materials, but she never heard from him. J.H. never recovered her money or file.
P.L. paid Mayrand a $1,000 retainer for the purpose of collecting a debt owed P.L. from the proceeds of a property sale. Mayrand requested documents from the debtor 2 months later, but this is the last action Mayrand took on P.L.'s behalf. P.L. made numerous attempts to contact Mayrand over the next several months, including three times by regular mail, two times by certified mail, and many phone calls. P.L. never received a response and was forced to retain other counsel at additional expense.
M.M. retained Mayrand to represent him on a parole violation, paying a $1,500 retainer fee. Mayrand appeared at an initial hearing, where M.M. was released without bail, but M.M. was then unable to contact Mayrand regarding his parole violation hearing. A warrant was later issued for M.M.'s arrest, and he was still unable to contact Mayrand.
R.R. retained Mayrand to represent M.H. Throughout the course of representation, Mayrand appeared in court twice on M.H.'s behalf, but he failed to file forfeiture papers for personal property seized by the police, despite assuring R.R. that the papers had been filed. After learning that the papers were not filed, R.R. left numerous messages for Mayrand, but he never returned the calls. R.R. also requested that Mayrand obtain a copy of a search warrant, but Mayrand again failed to return her calls. Mayrand orally notified R.R. of his withdrawal from the case, without ever sending a letter to either M.H. or R.R. to that effect. R.R. had arranged for Mayrand to receive a total of $8,400 prior to his withdrawal. Mayrand did not refund any of this money.
Mayrand agreed to represent G.C. on driving under the influence charges and in a civil forfeiture proceeding. Mayrand appeared at several hearings on G.C.'s behalf, but he then withdrew as counsel. G.C. twice sent Mayrand a letter requesting the return of his file, but he never heard from Mayrand after the withdrawal.
C.G. retained Mayrand to represent him in both a forfeiture matter and an implied consent matter, and paid him $5,000 for the representation. Mayrand failed to respond to C.G.'s numerous phone inquiries regarding his hearings. The opposing attorney in the forfeiture matter filed a motion for summary judgment, but Mayrand failed to file responsive documents at least 9 days before the summary judgment hearing, pursuant to Minn. Gen. R. Prac. 115.03(b). When Mayrand did file a response, one day before the hearing, it was only one paragraph long and violated the requirements of Minn. Gen. R. Prac. 115.03(d). The court granted the motion for summary judgment, partially due to Mayrand's violation of the practice rules. C.G.'s vehicle, consequently, was forfeited.
The Director alleges, and we agree, that Mayrand committed several violations of the Minnesota Rules of Professional Conduct in his representation of the clients discussed above. Mayrand violated Rule 1.1 (competence) in his representation of C.G. for failing to follow the minimum requirements required by court rules.4 He violated Rules 1.3 (diligence) and 1.4(a) (communication) in his representation of R.C., D.C., J.H., P.L., M.M., M.H., and C.G. for lack of diligence in addressing their cases, abandoning them without reaching a resolution, and repeatedly failing to respond to client phone calls and questions.5
Mayrand violated Rules 4.1 () and 8.4(c) (dishonesty) for lying to R.C., D.C., J.H., and R.R. (on behalf of M.H.) in connection with their matters.6 Mayrand also violated Rule 3.3(a)(1) () in the D.C. matter by misrepresenting to the court that he acted with D.C.'s consent in delaying the case.7
Mayrand's failure to return J.H. and G.C.'s files upon their request violated Lawyers Professional Responsibility Board Opinion 13 (return of client files).8 Mayrand violated Rule 1.15(b) () and Board Opinion 15 (placement of advanced fees in trust account) by failing to place retainer fees from R.C. and J.H. into a client trust account, failing to draw money only when earned, and failing to provide R.C. with an accounting.9 Mayrand also violated Rule 1.16(d) () by failing to communicate with G.C. and failing to return files after Mayrand withdrew from the representation.10
By missing deadlines and failing to respond to the Seventh Circuit's show cause orders in the D.C. matter, Mayrand violated Rule 3.2 ().11 Mayrand violated Rules 3.4(c) () and 8.4(d) () in the D.C. and C.G. matters by disobeying court rules and orders.12
In addition to his misconduct in connection with client representation, Mayrand failed to timely file his personal state and federal income tax returns for 1997 and 1998. He also failed to file quarterly unemployment tax returns for most quarters, dating back to 1991. He accrued past due unemployment taxes, penalties, and interest totaling $3,768. Mayrand's failure to pay taxes violated Rule 8.4(b) ().13 See also In re Bunker, 294 Minn. 47, 50-54, 199 N.W.2d 628, 630-32 (1972) (). Mayrand also had a $70 overdraft from his client trust account. The account was later closed because the shortage was not covered. Mayrand's client trust account overdraft violated Rule 1.15 ().14
Finally, Mayrand failed to cooperate with the Director's disciplinary investigations. Mayrand did not respond to a...
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