IN RE DISCIPLINARY ACTION AGAINST KOSS, C2-96-2024.

• Decision Date: 01 June 2000
• Docket Number: No. C2-96-2024.,C2-96-2024.
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Lewis M. KOSS, an Attorney at Law of the State of Minnesota.
• Court: Minnesota Supreme Court

611 N.W.2d 14

In re Petition for DISCIPLINARY ACTION AGAINST Lewis M. KOSS, an Attorney at Law of the State of Minnesota.

No. C2-96-2024.

Supreme Court of Minnesota.

June 1, 2000.

Lewis M. Koss, Law Offices of Robert J. Vars, Encino, CA, for appellant.

Edward J. Cleary, Kenneth Jorgensen, Mary L. Galvin, Office of Lawyers Professional Responsibility, St. Paul, for respondent.

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

OPINION

PER CURIAM

On December 11, 1997, we suspended respondent Lewis M. Koss from the practice of law in Minnesota as a result of his convictions for mail fraud and racketeering in California in 1991. Respondent requested a disciplinary hearing and a referee was appointed. After a full hearing on the merits, the referee concluded the respondent violated Minn. R. Prof. Conduct 8.4(b), (c), (d), relating to engaging in criminal conduct, dishonesty, and conduct prejudicial to the administration of justice, and recommended his disbarment.

Respondent was convicted of three counts of felony mail fraud and one count of felony racketeering in the United States District Court for the Southern District of California on June 25, 1991. The convictions were based on respondent's participation in a network of attorneys known as the "Alliance" which engaged in the defrauding of insurance companies of millions of dollars in legal fees in a series of schemes involving the manipulation of civil litigation, including the payment of kickbacks to opposing attorneys and to clients to encourage them to continue litigation, splitting of fees, sharing of office expenses among adverse counsel, and delaying the settlement of lawsuits until the insurance companies were unable or unwilling to pay further legal fees. Respondent was sentenced to concurrent sentences of 46 months for each of his four convictions and fined $100,000. On appeal to the Ninth Circuit Court of Appeals, his convictions were affirmed. See United States v. Mason, Nos. 91-50690, et al., 1994 WL 266102, at *35 (9th Cir. June 15, 1994).

The California Supreme Court ordered respondent's summary disbarment on May 1, 1996, based upon respondent's felony convictions. In Minnesota, the Director of the Office of Lawyers Professional Responsibility filed a petition for reciprocal discipline pursuant to Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR). In addition, the Director sought disbarment based upon respondent's criminal activities in violation of Minn. R. Prof. Conduct 8.4(b), (c), and (d), relating to engaging in criminal conduct, dishonesty and conduct prejudicial to the administration of justice. We temporarily suspended respondent from the practice of law on December 11, 1997, but declined to impose reciprocal discipline under Rule 12(d), RLPR, because the California Supreme Court, in accordance with California's summary disbarment statute,¹ had failed to provide for a hearing or allow the consideration of mitigating circumstances. See In re Koss, 572 N.W.2d 276, 277-78 (Minn. 1997)

. We ordered that respondent petition the court for a disciplinary hearing by April 12, 1999, a date six months subsequent to his scheduled release from prison, and if he failed to do so, the court would order his disbarment. See id. at 278. We also warned respondent that he would have a heavy burden at a future disciplinary hearing because a felony conviction generally warrants disbarment absent significant mitigating factors. See id.

On April 6, 1999, the New York Supreme Court, Appellate Division, ordered that respondent be stricken from the roll of attorneys in that state due to his felony convictions.

Respondent timely petitioned this court for a disciplinary hearing on April 9, 1999. Respondent appeared and testified at the hearing, and in recommending disbarment the referee concluded that respondent's criminal conduct violated Minn. R. Prof. Conduct 8.4(b), (c) and (d).² The referee further noted that respondent did not offer any character evidence in mitigation or any expression of contrition, and that there were no mitigating factors.

Respondent did not order a transcript of the hearing and therefore the referee's findings of fact and conclusions of law are deemed admitted pursuant to Rule 14(e), RLPR. We only consider the appropriate discipline. We give the referee's recommendation great weight but have the final responsibility for determining a disciplinary sanction. See In re Shoemaker, 518 N.W.2d 552, 554-55 (Minn.1994)

. In determining an appropriate sanction, we consider the nature of the misconduct, the cumulative weight of the disciplinary violations, the harm to the public and the harm to the legal profession. See In re Sigler, 512 N.W.2d 899, 901 (Minn.1994). We impose sanctions on a case-by-case basis, considering both aggravating and mitigating circumstances, but look to similar cases for guidance. See id; In re Iliff, 487 N.W.2d 234, 236 (Minn.1992). We also weigh the relevant considerations in light of the purpose of attorney discipline which is not to punish the attorney but to protect the courts, the public and the legal profession, and to guard the administration of justice. See In re Madsen, 426 N.W.2d 434, 435 (Minn.1988) (citing In re Peck, 302 N.W.2d...