In re Disciplinary Action against Dedefo

• Decision Date: 17 July 2008
• Docket Number: No. A07-573.,A07-573.
• Citation: 752 N.W.2d 523
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Nuro Bedhaso DEDEFO, a Minnesota Attorney, Registration No. 309989.
• Court: Minnesota Supreme Court

752 N.W.2d 523

In re Petition for DISCIPLINARY ACTION AGAINST Nuro Bedhaso DEDEFO, a Minnesota Attorney, Registration No. 309989.

No. A07-573.

Supreme Court of Minnesota.

July 17, 2008.

Martin A. Cole, Director Office of Lawyers Professional Responsibility, Cassie Hanson, Senior Assistant Director, St. Paul, MN, for appellant.

William E. Sjoholm, Debra M. Newel, Thomsen & Nybeck, P.A., Edina, MN, for respondent.

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

OPINION

PER CURIAM.

In March 2007, the Director of the Office of Lawyers Professional Responsibility (the Director) filed a petition for disciplinary action against respondent Nuro Bedhaso Dedefo. We appointed a referee to conduct a hearing and make findings of fact and recommendations for discipline, if necessary. After the hearing, the referee found that Dedefo violated various rules of professional conduct by: (1) improperly maintaining client trust accounts, books, and records; (2) incompetently representing himself; (3) obstructing another party's access to relevant evidence; (4) knowingly offering false evidence; and (5) engaging in conduct prejudicial to the administration of justice. Based on those findings, the referee recommended Dedefo be suspended from the practice of law in the State of Minnesota and be ineligible to petition for reinstatement for a minimum of 6 months. Dedefo now challenges the referee's evidentiary rulings, findings of fact and conclusions of law, and disciplinary recommendation. We conclude that the appropriate discipline for Dedefo's misconduct is the indefinite suspension of Dedefo's license to practice law with no right to petition for reinstatement for a minimum of 6 months.

In 1995, Dedefo moved to the United States from Ethiopia. B.G., Dedefo's wife, joined him in the United States in 1999. Dedefo graduated from Hamline University Law School and was admitted to practice law in Minnesota in October 2001. Since early 2002, he has maintained a general practice focusing on personal injury law.

In February 2001, B.G. sought an order for protection (OFP) against Dedefo, claiming that he had hit her in the eye, choked her, and pulled out clumps of her hair. At a hearing on the OFP petition, B.G. testified that Dedefo abused her and produced photographs of her injuries. Dedefo denied that any abuse occurred. The district court issued the OFP, finding B.G.'s testimony more credible than Dedefo's.

Dedefo blamed three former friends for encouraging B.G. to seek the OFP. As a result, Dedefo commenced legal action (the lawsuit) against the three, alleging defamation, misrepresentation, intentional infliction of emotional distress, and interference with marital relationship. The defendants deposed Dedefo. During the deposition, Dedefo refused to disclose the factual basis for the allegations in his complaint on the ground that the information was protected by the work product doctrine. He also refused to answer questions about his relationship with B.G., saying, "I'm not here to talk about my wife. I'm here to talk about what they did to me." He responded to questions about his claims with such statements as, "Be specific"; "It's already stated in the complaint"; and "I will produce evidence when time is right. So I'm not here to tell you how I got the evidence." At the end of the deposition, Dedefo demanded to be paid for his time.

Defendants moved for summary judgment. In opposition to the motion, Dedefo prepared and submitted, among other things, an affidavit signed by B.G. The affidavit retracted B.G.'s allegations of abuse and stated that the three defendants "influenced me to falsely accuse [Dedefo]." The district court granted the defendants' summary judgment motion but denied defendants' request for sanctions against Dedefo. Defendants incurred some $7,500 in attorney fees; Dedefo does not dispute the referee's finding that those fees "placed substantial financial burden" on the defendants.

In February 2003, the Director received notification of an overdraft on Dedefo's trust account and opened a disciplinary file. During the Director's investigation, B.G. met with an attorney in the Director's office. Dedefo drove her to the meeting and waited for her in the lobby. At the meeting, B.G. retracted her statements that Dedefo had abused her and stated that the three defendants coerced her into seeking the OFP. B.G. later testified that she made these statements because "I feared for my life, and at that time I was also pregnant. * * * I afraid he might hit me, or I don't know what would happen to me."

B.G. secured a second OFP against Dedefo in August 2003 after a contested hearing. Dedefo did not contest the issuance of a third OFP in October 2004, although he continued to deny ever abusing B.G. Dedefo eventually filed for dissolution, which was finalized in 2005.

In 2007, the Director petitioned for disciplinary action based on alleged trust account violations, obstruction of the defendants' access to evidence in the defamation case, and knowing presentation of a false affidavit to the court. We appointed a referee, who conducted a hearing. The parties stipulated to factual findings regarding the trust account violations, but Dedefo challenged the allegations of obstructing access to evidence and filing a false affidavit. B.G., Dedefo, and Dedefo's mother and daughter testified at the hearing.

Following the hearing, the referee found that Dedefo had commingled personal and client funds in his trust account and had negligently misappropriated client funds. The referee concluded that Dedefo had violated Minn. R. Prof. Conduct 1.15(h) by "failing to maintain proper trust account records." The referee further concluded that the Director had proved by clear and convincing evidence that in the defamation lawsuit against his former friends Dedefo: (1) incompetently represented himself in violation of Minn. R. Prof. Conduct 1.1; (2) obstructed the defendants' access to evidence in violation of Minn. R. Prof. Conduct 3.4(a); (3) knowingly offered evidence that he knew to be false in violation of Minn. R. Prof. Conduct 3.3(a)(3); and (4) engaged in conduct prejudicial to the administration of justice in violation of Minn. R. Prof. Conduct 8.4(d). The referee recommended that Dedefo be suspended from the practice of law and ineligible to apply for reinstatement for a minimum of 6 months.

Dedefo ordered a transcript of the hearing; therefore, the referee's findings are not binding on this court. Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR). In this proceeding, Dedefo raises three issues. First, he argues that evidence relating to his relationships with B.G. and the three defendants in the lawsuit was not relevant and that the referee erred in admitting it. Second, Dedefo argues that the referee's findings of fact regarding obstruction of access to evidence, the false affidavit, and incompetent representation were clearly erroneous and that therefore the referee's conclusion that Dedefo violated the rules of professional conduct is not supported by clear and convincing evidence. Finally, he argues that the recommended discipline is excessive.

I.

We turn first to Dedefo's argument that evidence relating to his relationships with the defendants in the lawsuit and his ex-wife was not relevant to any of the issues in the case and, therefore, the referee erred in admitting it. The evidence at issue includes the testimony of B.G. and two of the three defendants in the lawsuit; evidence relating to the OFPs, including the petitions, hearing transcripts, and the OFPs themselves; and the court of appeals opinion adjudicating Dedefo's challenge to the second OFP.

The Minnesota Rules of Evidence apply to disciplinary hearings. Rule 9(i)(4), RLPR; In re Wood, 716 N.W.2d 341, 346 (Minn.2006). Only relevant evidence is admissible. Minn. R. Evid. 402. "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Minn. R. Evid. 401. A referee may exclude evidence if the danger of unfair prejudice substantially outweighs its probative value. Minn. R. Evid. 403. We will not reverse a referee's evidentiary rulings absent an abuse of discretion. Wood, 716 N.W.2d at 346.

We agree with the referee that the evidence regarding Dedefo's abuse of B.G. is relevant to whether Dedefo filed an affidavit that he knew contained false testimony. Specifically, the evidence supports the Director's contention that Dedefo knew the following statements in B.G.'s affidavit were false: that Dedefo never abused her, that the three defendants in the lawsuit coerced her into making false claims of abuse, and that B.G. gave false testimony during the domestic abuse hearing. The evidence tends to show that the abuse occurred, which in turn shows that B.G.'s denials of it were false and that Dedefo must have known the denials were false. The evidence is also relevant as impeachment of Dedefo's testimony before the referee. We believe the significant probative value of the evidence outweighs any potential unfair prejudice. We therefore conclude that the referee did not abuse his discretion by admitting evidence of Dedefo's personal relationships.

II.

We next examine whether the referee's findings of fact and conclusions of law that Dedefo obstructed the defendants' access to evidence in the lawsuit and knowingly filed a false affidavit were clearly erroneous. "On review, this court will uphold a referee's findings and conclusions unless they are clearly erroneous." In re Erickson, 653 N.W.2d 184, 189 (Minn. 2002); see Rule 14(e), RLPR. "In other words, findings of fact will be reversed `only if, upon review of the entire evidence, a reviewing court is left with the definite and firm conviction that a mistake has been made.'" Erickson, 653 N.W.2d at 189 quoting In re Pinotti, 585...