IN RE DISCIPLINARY ACTION AGAINST NATHAN, C5-02-519.

• Decision Date: 26 November 2003
• Docket Number: No. C5-02-519.,C5-02-519.
• Citation: 671 N.W.2d 578
• Parties: In re PETITION FOR DISCIPLINARY ACTION AGAINST Dale C. NATHAN, a Minnesota Attorney, Registration No. 77227.
• Court: Minnesota Supreme Court

671 N.W.2d 578

In re PETITION FOR DISCIPLINARY ACTION AGAINST Dale C. NATHAN, a Minnesota Attorney, Registration No. 77227.

No. C5-02-519.

Supreme Court of Minnesota.

November 26, 2003.

Kenneth L. Jorgensen, Director, Timothy M. Burke, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Relator.

Dale C. Nathan, Eagan, MN, pro se.

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

OPINION

PER CURIAM.

This disciplinary action arises out of the misconduct of the respondent, Dale C. Nathan, in a child custody matter and a CHIPS proceeding. The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition for disciplinary action on May 2, 2002. A hearing was held on October 2 and 3, 2002, before the Honorable Warren E. Litynski acting as referee. The referee found that Nathan: (1) violated Minn. R. Prof. Conduct 3.1, 3.4(c), 4.4, and 8.4(d) by engaging in a pattern of harassing and frivolous litigation; (2) violated Rules 3.4(c) and 8.4(d) by violating, threatening to violate, and assisting his client in violating court orders; (3) violated Rules 3.4(c) and 8.4(d) by violating and threatening to violate confidentiality statutes and rules; (4) made baseless and derogatory statements about judges in violation of Rules 8.2(a) and 8.4(d); (5) made false statements contrary to Rules 4.1 and 8.4(c); and (6) failed to pay or arrange to pay sanctions, violating Rules 3.4(c) and 8.4(d). The referee recommended that Nathan be indefinitely suspended from the practice of law, with leave to apply for reinstatement after six months.

Nathan was admitted to practice law in Minnesota in 1965. Nathan has been admonished twice before. Nathan's misconduct in these matters falls into three general categories. The first is a pattern of harassing and frivolous conduct; the second is a pattern of violating, threatening to violate and assisting others in violating court orders and confidentiality statutes; and the third is making unfounded derogatory statements about judges and false statements to others. We will consider Nathan's conduct in the child custody and CHIPS matters in turn.

Child Custody Matter

In late 1999 or early 2000, Nathan began representing a mother in a child custody matter arising out of a paternity proceeding. The father was seeking unsupervised visitation of the child and the mother sought to prevent unsupervised visitation. The pattern of harassing and frivolous litigation that the referee found Nathan engaged in was pervasive in this matter.

Nathan sent the guardian ad litem several harassing letters. In one letter he called her "worse than worthless" and threatened to "deal with her accordingly." In another letter addressed to her, he threatened to inform others involved in the case that she was not "truthful or impartial and cannot be trusted." Nathan also wrote letters to the judge complaining that the guardian ad litem was biased. Because of Nathan's conduct, an attorney was appointed to represent the guardian ad litem. Nathan then sent the guardian ad litem's attorney a letter threatening to publish the guardian ad litem's letters to him and the judge on Nathan's website "as examples of outrageous actions by a court-appointed quasi-expert."

Nathan engaged in a similar pattern of conduct towards the individual appointed as the visitation investigator. The judge ordered the parties to split the cost of hiring the investigator and to cooperate with her by giving her access to all necessary records and individuals. In a letter to the investigator, Nathan stated that he would not pay for her services, as he believed that the judge's order was "premature and unjustified." Nathan was also upset because he learned that during a supervised visitation session the investigator asked the child to refer to her father as "Dad." Nathan stated that this was "not acceptable" and threatened to discontinue visitation. Three days later, Nathan sent the investigator another letter, stating that she could not have direct contact with the mother or any member of her family. That letter included several derogatory statements about the investigator's professional reputation and threatened to publish a description of her actions on Nathan's website.

In addition to threatening to violate the court order to cooperate with and pay for the investigator, the referee found that Nathan violated and assisted his client in violating other court orders in this matter. After the judge adopted the investigator's visitation recommendation and ordered a transition from supervised to unsupervised visitation, the mother did not bring the child to a scheduled supervised visitation. The father's attorney moved for a contempt hearing and the mother went into hiding and did not appear. In an affidavit, the mother stated that she did not appear on Nathan's advice, and that throughout the time she was in hiding with the child, Nathan advised her not to turn herself in.¹ The father did not see the child again for over a year.

The judge asked Nathan multiple times to disclose his client's location and whether his client was in the state. Nathan stated that he advised his client not to appear but refused to give the legal basis for that advice. Nathan repeatedly refused to disclose any information relating to his client's location, citing attorney-client privilege. The judge found Nathan in contempt. Nathan still refused to disclose the location of his client and was incarcerated for 54 days. Nathan never complied with the court's order.

The referee also found that Nathan made a frivolous request for a stay in this matter when he requested that visitation be stayed until a claim of abuse was investigated. The same claim of abuse had been raised one year earlier and after an investigation was determined to be unfounded.

There are two statements that Nathan made about the judge in this case that the referee found to be baseless or derogatory. Both statements came in a petition that Nathan filed in the court of appeals to overturn the visitation order. In that petition, Nathan wrote that the judge "is a bad judge," who "substituted his personal view for the law" and "won election to the office of judge by appealing to racism." The referee found that the only evidence of a personal view the judge expressed was not inconsistent with the law. The referee also found that Nathan's sole basis for the allegation that the judge won election by appealing to racism was that the judge's opponent in the previous election had what Nathan referred to as a Hmong-sounding name.

In addition to the false statements Nathan made about the judge, the referee found that Nathan made a false statement to opposing counsel. During a telephone conversation, Nathan told opposing counsel that he had been recording the conversation without counsel's knowledge. Nathan did not in fact record the conversation.

CHIPS Proceeding

Nathan represented the mother of four children in a CHIPS proceeding in which Ramsey County sought to terminate the mother's parental rights to the two youngest children. The referee found that Nathan engaged in a pattern of harassing and frivolous litigation, violated and threatened to violate court orders and confidentiality statutes and rules, made baseless derogatory statements about judges, and made false statements.

The pervasive nature of the harassing and frivolous litigation and the threats to violate and violations of court orders and confidentiality statutes and rules in this matter are closely linked. Nathan sent a letter to the psychologist hired by the county demanding that she provide a written response to 31 questions. Nathan wrote: "If you do not provide satisfactory bases for your allegations, I will publish your letter on my website." Nathan also harassed the social worker in the case. In a memorandum to the court Nathan wrote: "What is happening in this case is madness. It is uncivilized. [The mother] is being denied custody of her children * * * by an out-of-control power crazed social worker on the basis of a report by a psychologist * * *. The person who is crazy is [the psychologist]." Nathan also repeatedly called the social worker a racist, including a statement in a memorandum to the court of appeals. Nathan continued with a similar course of conduct toward all involved in the case. For example, Nathan asked the court to order the foster parent of one of the children to send the child to the school of the mother's choice and threatened to sue the foster parent if the court did not grant his request.

As a result of Nathan's conduct and threats to disclose information, the judge issued a protective order restraining "Nathan from making public any part of the juvenile protection case record in this case without first obtaining a court order." The judge also ordered Nathan to pay $1,500 in sanctions and restrained him from further harassing any witnesses or parties. After the judge issued this order Nathan sent him a letter threatening to publish an article about the case "regardless of the consequences to me." Nathan then published an article on his website describing the case entitled The Young Sex Perverts and placed an ad in the newspaper directing individuals to the article. Nathan also sent letters to the assistant county attorney and others threatening to violate the protective order. In a memorandum responding to a contempt motion that followed, Nathan admitted that he published materials in violation of the court order because "[o]ccasionally, it is necessary to violate a court order or even a law in order to correct serious injustices."

The court found Nathan in contempt for violating the protective order and ordered him to remove all information regarding the case from his website, fined him $500, and again restrained him from publishing any information regarding the case. Two days later Nathan sent the judge a letter stating that if the...