In re Disciplinary Action against Rooney

• Decision Date: 16 February 2006
• Docket Number: No. A04-1959.,A04-1959.
• Citation: 709 N.W.2d 263
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Edward F. ROONEY, a Minnesota Attorney, Registration No. 9321X.
• Court: Minnesota Supreme Court

709 N.W.2d 263

In re Petition for DISCIPLINARY ACTION AGAINST Edward F. ROONEY, a Minnesota Attorney, Registration No. 9321X.

No. A04-1959.

Supreme Court of Minnesota.

February 16, 2006.

COPYRIGHT MATERIAL OMITTED

Patrick R. Burns, St Paul, MN, for Lawyers Professional Responsibility Board.

Paul C. Peterson, William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, MN, for Respondent Edward F. Rooney.

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

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Edward F. Rooney, alleging that Rooney misappropriated $27,700 of his clients' funds. Rooney answered and admitted the misappropriation, but offered several mitigating circumstances. After a hearing, the referee concluded that Rooney had violated Minn. R. Prof. Conduct 1.15 (safekeeping of client funds) and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The referee recommended that Rooney be suspended from the practice of law for 8 months with a 3-year probationary period following his reinstatement, and that he be permanently prohibited from maintaining a client trust account in the future. The Director appealed, disputing the referee's disciplinary recommendation and arguing that disbarment is warranted. We conclude that an 18-month suspension is the appropriate discipline in this case.

Rooney was admitted to the practice of law in Minnesota in October 1972 and has practiced as a sole practitioner since October 1973. Rooney has not previously been the subject of professional discipline.

Rooney's misconduct involves a client trust account that he maintained at M & I Bank in connection with his practice of law. From July 7, 2003, through June 30, 2004, Rooney, without his clients' knowledge or permission, withdrew from his client trust account a total of $27,700 in 17 separate withdrawals ranging in amount from $350 to $4,000. Rooney kept accurate records of these withdrawals and maintained accurate trust account records throughout the period of the misappropriations. Rooney admits that he misappropriated these funds, using them for various personal and business expenses. At the time of the withdrawals, Rooney was not entitled to the funds and knew that he was not entitled to them.

On July 30, 2004, Rooney's client trust account became overdrawn due to his misappropriations. As a result, M & I Bank sent the Director's Office a notice of the overdraft. The Director then contacted Rooney, requesting an explanation of the overdraft. In his response, Rooney admitted that the overdraft was the result of his misappropriation of client funds.

Through four separate deposits into his client trust account, Rooney repaid all of the funds that he had taken. He made the first two deposits, in the amounts of $4,850 and $500, during the period in which he was still misappropriating client funds. His last two deposits into the trust account, made on August 2, 2004, and August 5, 2004, repaid the balance of the $27,700 that he had misappropriated. These final two deposits occurred after M & I Bank had contacted Rooney regarding the overdraft, but before the Director sent his inquiry letter to Rooney.

The referee held a hearing on March 30, 2005. At the hearing, Rooney testified and presented four character witnesses on his behalf. Because Rooney admitted the misappropriation, his evidence at the hearing primarily went to establishing mitigating factors. Rooney testified that his law practice has long been financially unstable because he often takes clients who are unable to pay him. Rooney testified that he experienced serious financial difficulties in 2003 and that he misappropriated his clients' money because he felt it was the only way to keep his practice afloat. Rooney also detailed numerous personal problems that he suffered during 2003, including his mother's stroke in December 2002 and his subsequent responsibilities as her primary caretaker, his wife's emergency surgery, and his sister-in-law's death from brain cancer. At the hearing, Rooney expressed remorse and apologized for his misconduct.

On April 26, 2005, the referee issued findings of fact, conclusions of law, and a recommendation for discipline. The referee found that Rooney had misappropriated $27,700 in client funds over the span of a year.¹ The referee also found that Rooney had repaid all of the funds taken and had cooperated fully with the disciplinary investigation. In addition, the referee determined that Rooney was suffering from serious personal and financial stress during the time when the misconduct occurred and that, over the course of his legal career, Rooney has made substantial contributions to the community. The referee concluded that Rooney's conduct violated Minn. R. Prof. Conduct 1.15 and 8.4(c). The referee recommended that Rooney be suspended from the practice of law for 8 months followed by a 3-year probationary period and that he be permanently prohibited from maintaining a client trust account.

The Director appealed the referee's disciplinary recommendation, arguing that Rooney should be disbarred. The Director timely ordered a transcript of the referee hearing, thereby preserving his right to challenge the referee's findings of fact and conclusions of law pursuant to Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR).² However, the Director does not actually challenge any of the referee's factual findings.³

The Director argues that we should reject the referee's recommendation on discipline and should instead disbar Rooney. The Director contends that the recommended sanction is insufficient to fulfill the purposes of attorney discipline. In addition, the Director argues that the referee incorrectly determined that the existence of several mitigating factors warrants a sanction less than disbarment.

In opposition, Rooney argues that we should adopt the referee's recommended discipline, or a lesser sanction. Rooney contends that the significant mitigating factors in his case, including his lack of prior disciplinary history, his restitution and remorse, his cooperation with the Director's investigation, his attempt to rectify the problems that led to the misconduct, and his substantial community involvement, warrant a sanction less than disbarment. Further, Rooney argues that suspension, rather than disbarment, would be consistent with this court's previous attorney discipline cases involving misappropriation.

The only issue before us is the appropriate discipline to impose. While a referee's recommendation for discipline carries great weight, we have final responsibility for determining the appropriate discipline. In re Edinger, 700 N.W.2d 462, 467 (Minn.2005).

We have established that "[t]he purposes of disciplinary sanctions for professional misconduct are to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys." In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004). When determining the appropriate sanction for attorney misconduct, we consider four factors: "1) the nature of the misconduct, 2) the cumulative weight of the violations of the rules of professional conduct, 3) the harm to the public, and 4) the harm to the legal profession." Id. (quoting In re Singer, 541 N.W.2d 313, 316 (Minn.1996)). Sanctions are determined on a case-by-case basis after considering both aggravating and mitigating circumstances. In re Wentzell, 656 N.W.2d 402, 408 (Minn.2003). Because we strive for consistency in attorney discipline, we look to similar cases for guidance in setting the proper sanction. See In re Thedens, 557 N.W.2d 344, 347 (Minn.1997); In re Wyant, 533 N.W.2d 397, 401 (Minn. 1995).

Misappropriation of client funds constitutes serious misconduct that generally warrants disbarment. In re Olson, 577 N.W.2d 218, 220-21 (Minn.1998); see, e.g., In re Vaught, 693 N.W.2d 886, 891 (Minn.2005); In re Samborski, 644 N.W.2d 402, 409 (Minn.2002); In re LaChapelle, 491 N.W.2d 17, 21 (Minn.1992). "[M]aintenance of public confidence in the legal profession requires the strictest discipline in misappropriation cases." In re Austin, 333 N.W.2d 633, 635 (Minn.1983). Yet, while misappropriation alone may merit disbarment, many of the misappropriation cases in which we have ordered disbarment involved other misconduct in addition to the misappropriation, particularly misrepresentations and noncooperation with the disciplinary investigation. See, e.g., Vaught, 693 N.W.2d at 887; Samborski, 644 N.W.2d at 405; In re Ruttger, 566 N.W.2d 327, 328-31 (Minn. 1997).

We have not always disbarred attorneys who have misappropriated client funds. See, e.g., In re Hanvik, 609 N.W.2d 235, 242 (Minn.2000); In re Pyles, 421 N.W.2d 321, 327 (Minn.1988). "In cases where this court has not imposed disbarment for extensive misappropriation of client funds, substantial mitigating circumstances were present." In re Weems, 540 N.W.2d 305, 308 (Minn.1995). However, even in such cases, severe sanctions, typically lengthy suspensions, generally have been imposed. See, e.g., Pyles, 421 N.W.2d at 327; In re Bernstein, 404 N.W.2d 804, 805 (Minn. 1987).

Both Rooney and the Director cite numerous misappropriation cases they feel are analogous to Rooney's situation to provide us guidance as to the appropriate sanction to impose. But none of these cases is precisely on point. As we have often noted, attorney discipline cases are decided on a case-by-case basis, making the specific factual circumstances of each case particularly important. See In re Brooks, 696 N.W.2d 84, 88 (Minn.2005); see also In re Cutting, 671 N.W.2d 173, 174 (Minn.2003). In the cases most heavily relied on by the Director to support disbarment, the attorney's misconduct was more severe than Rooney's misconduct, typically involving active concealment of the...