In re Disciplinary Action against Holker

• Decision Date: 21 May 2009
• Docket Number: No. A06-896.,A06-896.
• Citation: 765 N.W.2d 633
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Kenneth M. HOLKER, a Minnesota Attorney, Registration No. 46267.
• Court: Minnesota Supreme Court

765 N.W.2d 633

In re Petition for DISCIPLINARY ACTION AGAINST Kenneth M. HOLKER, a Minnesota Attorney, Registration No. 46267.

No. A06-896.

Supreme Court of Minnesota.

May 21, 2009.

Edward F. Kautzer, Ruvelson & Kautzer, Chartered, St. Paul, MN, for petitioner attorney.

Martin A. Cole, Director, Craig D. Klausing, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for respondent.

OPINION

PER CURIAM.

Kenneth M. Holker filed a petition for reinstatement following his indefinite suspension from the practice of law. After a hearing, a panel of the Lawyers Professional Responsibility Board recommended against Holker's reinstatement. The panel concluded that Holker failed to demonstrate by clear and convincing evidence that he had undergone the requisite moral change for reinstatement or recognized that his conduct was wrong. Holker contests the panel's findings in this appeal; the Director of the Office of Lawyers Professional Responsibility supports the panel's recommendation. After independently reviewing the record, we conclude that Holker should not be reinstated to the practice of law because he failed to prove by clear and convincing evidence a sufficient moral change or recognition of wrongful conduct.

Kenneth M. Holker was admitted to practice law in Minnesota in October 1977. Holker established a solo firm after admittance, and he eventually spent 15 years practicing in the areas of estate planning and probate. Before the suspension at issue in this case, Holker had been previously disciplined with five separate admonitions and a public reprimand and probation for state and federal income tax problems. See In re Holker, 605 N.W.2d 104 (Minn.2000).

On May 3, 2007, Holker was indefinitely suspended from the practice of law for conduct related to his handling of a probate matter. See In re Holker, 730 N.W.2d 768 (Minn.2007). In 1997, a 78-year-old client retained Holker to represent her in her role as the personal representative of her recently-deceased sister's estate. In the course of that representation, Holker committed numerous violations of the Minnesota Rules of Professional Conduct and the Minnesota Rules on Lawyers Professional Responsibility (RLPR).¹ We indefinitely suspended Holker for a minimum of six months. Holker, 730 N.W.2d at 776.

On December 27, 2007, Holker filed a petition for reinstatement with the Office of Lawyers Professional Responsibility. The Director's report, in response, acknowledged that Holker had complied with the general preconditions for reinstatement set forth by this court. See id. at 776-77. Ultimately, the Director found no misconduct since Holker's suspension and stated that "[i]f the Panel can find by clear and convincing evidence that petitioner acknowledges and appreciates the unprofessional nature of [his] conduct, despite petitioner's belief that he did not engage in some of the misconduct, then the Director has no objection to petitioner's reinstatement."

On July 18, 2008, a panel appointed by the Lawyers Professional Responsibility Board conducted a reinstatement hearing. Holker presented testimony from four witnesses and testified himself.

The first witness, M.E., is an attorney who had practiced law in an office down the hall from Holker from about 2002 to 2006. After 2006, M.E. estimated he saw Holker briefly one or two times a week, with less frequency after Holker's suspension. M.E. testified that he had used Holker as a resource and mentor and that he fully appreciated and trusted in Holker's skills. M.E. had received few details about Holker's suspension, but when the details of Holker's misconduct were disclosed to him, he said his opinion of Holker did not change "because I know him for who he is."

The second witness, J.B., met Holker when they worked together on a case in the late 1980s and early 1990s. In the following years, they consulted each other on professional matters two or three times a year. J.B. was not told most of the details of Holker's suspension until Holker asked J.B. to testify at the reinstatement hearing, at which time J.B. read our disciplinary order. J.B. said he was surprised by the contents of the order and found some findings "so completely out of [Holker's] character as to in some respects not to be believable." J.B. said that while Holker still "takes issue" with some of the findings in his suspension, Holker recognizes that some things should have been done differently. As to whether J.B. had seen a moral change in Holker, J.B. stated: "I think Ken Holker has a bedrock of honesty and integrity. And I would not expect to see any change in Ken Holker."

The third witness, N.P., met Holker in 1982 when they were involved in a mutual transaction with a client. N.P. and Holker worked together and became personal friends in the years that followed, visiting each other once or twice a year. Holker had expressed embarrassment and shame to N.P. about the events. N.P. said that Holker is truly remorseful and had implemented procedures to ensure that nothing similar would happen again. N.P. said that Holker did not blame anyone else for the mistakes, and other than his disagreement with the findings on the document fabrication, Holker accepts responsibility for his misconduct.

The fourth witness, G.O., was a personal friend of Holker's since they were young, although for the past 30 years G.O. has lived and worked in Texas. He usually saw Holker two or three times a year. Holker also worked on several legal matters for G.O. and his family, work with which G.O. said he was very satisfied. Holker had described some of the details of his suspension to G.O., such as the fact that Holker had taken money from his client's trust account as "[Holker's] customer had told him to do." G.O. also took exception with the conclusion in our suspension order that Holker fabricated letters—G.O. instead believed the chain of events that Holker told him, that Holker had simply recreated the documents at a later date.

Holker testified that he would like to be reinstated because he wants to practice law with his son, who was admitted to the bar in 2006. Holker then testified about changes he had made to his law practice. Holker believed that implementing a more advanced electronic tickler system was the most meaningful change—it would "get more eyeballs on each case." Another new policy required that each file be reviewed by at least one person in the office every 30 days.

Holker testified that seeing the complaint that led to his suspension signaled that there were problems with office protocol, and "hard-core" discussions had to happen.

I didn't beat around the bush, I mean, you know, I recognized that stuff was falling through the cracks that shouldn't have fallen through the cracks. And while I'm the guy that signs the checks and as one of the witnesses said, the buck does stop here, you do have a tendency to rely on your support staff on occasion. It's ultimately my responsibility, but I—I expect them to crack the whip if I need to get something done.

Holker also testified:

If I could look at this whole situation that we're all here on today for, the one thing that I think I screwed up on, for lack of a better term, is that I didn't paper the file.... I realize now that it probably would benefit both [the client and me] and I have undertaken to be much more diligent in the innocuous, at times to the client perhaps an irritant, of sending the reminder letters.

When asked what Holker does when clients will not respond, Holker noted that his office had handled about 4,000 estate plans and this one just "got out of control." Holker testified that the relationship with the particular client was also a factor in how he handled the matter professionally: "I didn't feel, at that time, that I needed to beat up on her all the time.... I would leave her with a handwritten page out of my legal tablet on what to do. Now I know I should have gone back or either made a copy of that or followed up." Holker noted that "in 31 years it's only happened once and I just would say it would not happen again."

On the topic of withdrawing payment from his client's trust fund before he earned it, Holker testified that the client had given permission for Holker to take the money, and he "didn't know we had to have it in writing." Holker now understands that fee agreements must describe such details and must be signed, although he maintains that his law office does not normally deal with trust accounts.

Holker continued to argue at the reinstatement hearing that he did not fabricate various documents he gave to the Director during the investigation of the complaint, asserting that his office reproduced the documents at a later time because the file had been damaged. He testified: "I don't want to go back and retry the case, I want to go forward. But I'm not going to sit here and apologize for something I didn't do." On cross-examination by the Director's office, Holker also questioned our conclusions regarding his noncooperation with the Director's office. In the end, however, Holker said he fully acknowledged that he is responsible, he knows what he did was wrong, the problem has been corrected, and the wrongdoing was nobody's fault but his own.

In determining whether Holker had evidenced moral change, the panel focused on (1) whether Holker recognized the nature of his misconduct; (2) whether there was some assurance that the public is protected from future misconduct; and (3) what the character witnesses said about Holker. The panel found that "as to a number of the specific acts of wrongdoing, [Holker] equivocated,...