In re Disciplinary Action Against Coleman, A09-1656.

• Decision Date: 26 January 2011
• Docket Number: No. A09-1656.,A09-1656.
• Citation: 793 N.W.2d 296
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Richard J. COLEMAN, a Minnesota Attorney, Registration No. 136141.
• Court: Minnesota Supreme Court

793 N.W.2d 296

In re Petition for DISCIPLINARY ACTION AGAINST Richard J. COLEMAN, a Minnesota Attorney, Registration No. 136141.

No. A09-1656.

Supreme Court of Minnesota.

Jan. 26, 2011.

Syllabus by the Court

Indefinite suspension with no right to petition for reinstatement for a minimum of six months, and, upon reinstatement, two years of supervised probation is the appropriate discipline when a lawyer failed to act with reasonable diligence and to communicate with his clients, had a conflict of interest in representing codefendants in a criminal matter, failed to comply with applicable law regarding termination of representation and upon termination failed to protect the client's interests, and engaged in conduct prejudicial to the administration of justice.

Martin A. Cole, Director, Robin J. Crabb, Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for petitioner.

Richard J. Coleman, St. Paul, MN, pro se.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action. The petition alleged that respondent Richard J. Coleman violated the Minnesota Rules of Professional Conduct when he failed to act with reasonable diligence (Rule 1.3) and communicatewith his clients (Rule 1.4), had a conflict of interest in representing codefendants in a criminal matter (Rule 1.7), knowingly failed to comply with applicable law regarding termination of representation (Rules 1.16 and 3.4) and to protect his client's interests (Rule 1.16(d)), and engaged in conduct prejudicial to the administration of justice (Rule 8.4(d)). Following a hearing, the referee concluded that Coleman committed the violations as alleged, and recommended that Coleman be suspended from the practice of law for six months and, upon reinstatement, be subject to two years of supervised probation. We agree with all but two of the referee's conclusions, and adopt the referee's recommended discipline that Coleman be suspended from the practice of law for a minimum of six months.

I.

In August 2007, the Director served and filed a petition for discipline alleging that Coleman violated various rules of the Minnesota Rules of Professional Conduct. We appointed a referee to conduct a hearing, and then file findings of fact, conclusions of law, and issue a recommendation to the court. In December 2009, the Director amended the petition to assert an additional rule violation arising out of the same facts in the original petition.¹ Before the hearing, Coleman challenged the Director's right to amend the petition and moved to dismiss the petition for improper service. The referee denied the motions.

Coleman was admitted to the practice of law in Minnesota on May 7, 1982, and practices law in St. Paul. At the referee's hearing, the parties presented evidence regarding two client matters that related to the alleged misconduct.

A. The S.A. Matter

In September 2006, S.A. and E.M. were arrested and charged with possession of a controlled substance and illegal possession of a firearm arising out of a police stop of the car that they occupied. Both S.A. and E.M. admitted they possessed a controlled substance but denied knowing that a firearm was in the car. When Coleman was engaged to represent them, he failed to disclose to either client the potential conflict of interest in representing both of them, either orally or in the written fee agreement with each client.

At an omnibus hearing, Coleman moved to suppress the evidence obtained by police at the time of the arrest. The motion was denied by the district court in an order filed on October 12, 2007. In a letter dated November 30, 2007, S.A. complained to the court that Coleman failed to communicate to him the outcome of the omnibus hearing. On December 5, 2007, Coleman notified S.A. of the October 2007 court order denying the motions to suppress.

Before trial, the prosecutor made an offer to Coleman that if E.M. pleaded guilty to a reduced charge and testified truthfully at S.A.'s trial, the State would dismiss the other charges against E.M. When advised of the offer, the district court told S.A. and E.M. that it believed Coleman may have a conflict of interest, and arranged for E.M. to discuss the conflict of interest issue with a different attorney. Thereafter, S.A. and E.M. consented to Coleman's continued representation. Subsequently, the prosecutor informed Coleman that a new witness had come forward who would testify that he purchased the firearm in question for S.A. Coleman responded that S.A. would testifythat he sold the firearm to E.M. Because E.M. was expected to testify that he did not have knowledge of the firearm, the prosecutor notified the court of her belief that Coleman had an unwaivable conflict of interest.

At the next court hearing, Coleman advised the court that S.A. would testify he sold the firearm to E.M., and that E.M. would testify he had no knowledge of the firearm. Thereafter, S.A. requested that the court terminate Coleman's representation due to the conflict of interest and lack of communication. As a result, Coleman made a motion to withdraw, which the court granted.

B. The M.M. Matter

Coleman was engaged to represent M.M. in a criminal matter and filed a certificate of representation with the court. In May 2007, Coleman appeared in court on behalf of M.M., but M.M. did not appear. Consequently, Coleman requested that the court allow him to withdraw from the representation. There is no record of an order, written or oral, permitting Coleman to withdraw from the representation of M.M.

M.M.'s case was set for trial on October 1, 2007, but Coleman did not receive notice of the court date and did not appear. As a result of Coleman's absence, the district court rescheduled the trial for Monday, October 8, 2007. On Friday, October 5, 2007, Coleman received a telephone message that asked whether "[M.M. was] still on for Monday morning." Coleman made no effort to contact his client, the prosecutor, or the court regarding the hearing and did not appear on October 8. The district judge assigned to the case sent a letter to the Director complaining about Coleman's nonappearance. After learning of the judge's complaint, Coleman submitted a written motion to withdraw, which was granted by the court.

Coleman has a history of professional misconduct. In 2001, Coleman received two private admonitions for trust account violations. In 2004, we publicly reprimanded Coleman, and placed him on probation for two years, for misconduct that included leaving a courtroom during trial, failing to adequately supervise a nonlawyer assistant, failing to appear in court on time, failing to deposit advance retainers in trust, failing to return client property, and failing to cooperate with the Director's investigation. In re Coleman, 679 N.W.2d 330, 330-32 (Minn.2004). Coleman also received in 2004 a private admonition for failing to communicate with a client, failing to act diligently in the course of representing a client, and failing to deposit client funds into a trust account. In August 2007, Coleman agreed to an additional two years of probation for failing to diligently represent clients and expedite litigation, failing to obey court rules, and engaging in conduct prejudicial to the administration of justice.

In February 2010, the referee filed with this court written findings of fact, conclusions of law, and a recommendation for discipline. The referee concluded that Coleman's actions violated Minn. R. Prof. Conduct 1.4(a)(3), 1.7(a)(1) and (2), 1.3, 1.4(a)(3), 1.16(c) and (d), 3.4(c), and 8.4(d). The referee recommended that Coleman be suspended from the practice of law with no right to petition for reinstatement for a minimum of six months and, if reinstated to the practice of law, be placed on supervised probation for a period of two years.

II.

Initially, Coleman argues that the referee erred in denying his pretrial motions. First, Coleman contends the referee erroneously allowed the Director toamend his petition for disciplinary action without the approval of the panel chair, contrary to Rule 10(e) of the Rules on Lawyers Professional Responsibility (RLPR). We have not previously determined the applicable standard of review of a referee's decision in this context.

The referee's hearing "shall be conducted" in the manner provided by the Minnesota Rules of Civil Procedure, and the referee "shall have all the powers of a district court judge." Rule 14(b), RLPR. Thus, a referee has the power to rule on a motion to amend a petition for discipline. See Minn. R. Civ. P. 15.01. We review a decision of the district court to grant a motion to amend for an abuse of discretion. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993); see also In re Charges of Unprofessional Conduct Involving File No. 17139, 720 N.W.2d 807, 811 (Minn.2006) (concluding abuse of discretion standard was applicable to a decision by a district court denying the Director's motion for disclosure pursuant to Rule 25(a), RLPR). Consequently, we review a referee's decision on a motion to amend a petition for discipline for an abuse of discretion.

Rule 10(e), RLPR, requires the Director to obtain the approval of the Panel Chair of the Lawyers Professional Responsibility Board "before amending the petition to include additional charges based upon conduct committed before or after the petition was filed." Here, the proposed amendment was of minimal significance given that the amendment asserted a new rule violation based on the same facts set forth in the original petition. Coleman failed to show that the amendment prejudiced him. Thus, the referee did not abuse his discretion. Moreover, Coleman agreed, as part of a stipulation for discipline in 2007, that if the Director concluded during the period of probation that Coleman engaged in further misconduct, the Director could file a petition for disciplinary action "without the necessity of submitting the matter to a...