In re Disciplinary Action against Sklar, A18-1330

• Decision Date: 15 May 2019
• Docket Number: A18-1330
• Parties: IN RE Petition for DISCIPLINARY ACTION AGAINST Lori J. SKLAR, a Minnesota Attorney, Registration No. 0208218.
• Court: Minnesota Supreme Court

929 N.W.2d 384

IN RE Petition for DISCIPLINARY ACTION AGAINST Lori J. SKLAR, a Minnesota Attorney, Registration No. 0208218.

A18-1330

Supreme Court of Minnesota.

Filed: May 15, 2019

Susan M. Humiston, Director of the Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

Lori J. Sklar, Minnetonka, Minnesota, pro se.

Considered and decided by the court without oral argument.

OPINION

PER CURIAM.

Respondent Lori J. Sklar is licensed to practice law in Minnesota and California, among other states. On March 22, 2017, the California Supreme Court suspended Sklar from the practice of law for 1 year, stayed execution of that suspension for all but the first 30 days, and placed Sklar on probation for 2 years. The Director of the Office of Lawyers Professional Responsibility petitioned our court to impose the same discipline (a suspension of 30 days) on Sklar in Minnesota under Rule 12(d) of the Rules on Lawyers Professional Responsibility (RLPR). Because we conclude that the disciplinary proceedings in California were fundamentally fair and that a 30-day suspension would be neither unjust nor substantially different from the discipline we would impose in Minnesota for Sklar’s misconduct, we grant the Director’s petition.

FACTS

Sklar’s misconduct stems from her representation of a class of plaintiffs in a California lawsuit. In 2005, Sklar filed, and shortly thereafter settled, a class-action lawsuit against Toshiba America Information Systems, Inc. After the California trial court preliminarily approved the class settlement, Sklar sought approximately $ 24 million in fees and costs—which represented 25 percent of what she claimed to be the benefit of the class settlement. This fee request prompted a decade-long dispute between Sklar and Toshiba, during which Sklar engaged in several acts of misconduct.

First, Sklar sought to mislead the California trial court about the amount of her fee request. Between August 2006 and April 2009, Sklar and her personal attorney repeatedly informed the trial court that Sklar was seeking between $ 22 and $ 24 million in attorney fees. These representations were made in documents filed with the court and orally to the trial judge. Despite these representations, Sklar appeared before the trial court on April 5, 2010 and stated that she had never sought more than $ 12 million in attorney fees. Specifically, she claimed that the $ 24 million figure only represented the maximum amount of recovery she could receive but that $ 12 million was always the actual amount of her fee request. That claim was not true.

Second, Sklar disobeyed two orders of the California trial court during the fee dispute. On August 15, 2007, the trial court ordered Sklar and Toshiba to select a neutral expert to search Sklar’s computer backup files and produce anything that was not privileged after Sklar claimed that original versions of her electronic time records had been deleted. Sklar objected to the manner in which the court-ordered inspection was to take place and brought two unsuccessful challenges to the court’s order. Ultimately, Sklar and Toshiba did not agree on a neutral expert, and an inspection did not take place. Almost a year later, on June 24, 2008, the court ordered Sklar to allow an inspection of her computer by Toshiba’s chosen expert on July 22 and 23, 2008. Sklar challenged the court’s second order, but was unsuccessful again. The day before the inspection was to take place, Sklar told opposing counsel that she would not allow it to proceed.

The California district court imposed a discovery sanction against Sklar, and the California Court of Appeal for the Second District affirmed. Ellis v. Toshiba Am. Info. Sys., Inc. , 218 Cal.App.4th 853, 160 Cal. Rptr. 3d 557 (2013), rev. denied (Cal. Nov. 26, 2013). Sklar sought review in the California Supreme Court and the United States Supreme Court, but both denied her petitions. Sklar v. Toshiba Am. Info. Sys., Inc. , 572 U.S. 1138, 134 S.Ct. 2692, 189 L.Ed.2d 215 (2014).

After Sklar exhausted her avenues of appeal for the discovery sanction, the California State Bar filed disciplinary charges against her. The hearing department of the state bar court held a four-day trial on the charges. Sklar was present and fully participated. At trial, Sklar was represented by two attorneys, testified on multiple days, entered 54 exhibits, and presented the support of 14 character witnesses. A little over a month later, the hearing department issued an opinion recommending that Sklar be disciplined. The hearing department judge concluded, by clear and convincing evidence, that Sklar sought to mislead the California trial court judge by "artifice or false statement of fact" and willfully disobeyed court orders, violating two California rules of professional conduct. After weighing aggravating and mitigating factors, the hearing department judge recommended that Sklar be suspended from the practice of law in California for 1 year, that execution of her suspension be stayed for all but the first 30 days, and that Sklar be placed on probation for 2 years.

After the hearing department issued its recommendation, the review department of the California bar court independently reviewed the record, determined by clear and convincing evidence that Sklar committed the charged misconduct, and adopted the hearing judge’s discipline recommendation. Subsequently, the California Supreme Court declined review of Sklar’s case and adopted the California bar court’s recommended discipline. Sklar’s petition to the United States Supreme Court for a writ of certiorari was denied. Sklar v. State Bar of Cal. , ––– U.S. ––––, 138 S. Ct. 190, 199 L.Ed.2d 128 (2017).

Upon learning that the California Supreme Court had suspended Sklar, the Director filed a petition under Rule 12(d), RLPR, asking that we impose the same discipline on Sklar in Minnesota. In response, Sklar filed memoranda arguing that reciprocal discipline is unwarranted.

ANALYSIS

If a lawyer licensed to practice in Minnesota has been publicly disciplined in another jurisdiction, we may, without further proceedings, "impose the identical discipline unless it appears that discipline procedures in the other jurisdiction were unfair, or the imposition of the same discipline would be unjust or substantially different from discipline warranted in Minnesota." Rule 12(d), RLPR. In addition, "a final adjudication in another jurisdiction that a lawyer had committed certain misconduct shall establish conclusively the misconduct for purposes of disciplinary proceedings in Minnesota," unless we "determine otherwise." Id.

I.

We turn first to the issue of fairness. Disciplinary proceedings in another jurisdiction are fair if they are " ‘consistent with [the principles of] fundamental fairness and due process.’ " In re Wolff , 810 N.W.2d 312, 316 (Minn. 2012) (alteration in original) (quoting In re Schmidt , 586 N.W.2d 774, 775 (Minn. 1998) ). In assessing fairness, we consider "the underlying record to see if the attorney received notice of the proceedings and the allegations against him, and had the opportunity to respond to those allegations and offer evidence of mitigating circumstances." In re Overboe , 867 N.W.2d 482, 486 (Minn. 2015). We have repeatedly held that, when "an attorney receives notice and an opportunity to respond to the charges, the proceedings are fair under Rule 12(d)." In re Huff , 872 N.W.2d 750, 753 (Minn. 2015) ; see also In re Hawkins , 834 N.W.2d 663, 668 (Minn. 2013) ; In re Keller , 656 N.W.2d 398, 401 (Minn. 2003) ; In re Schmidt , 586 N.W.2d 774, 775–76 (Minn. 1998).

In this case, it is clear that the California disciplinary proceedings were fundamentally fair and consistent with due process. Sklar received notice of the charges against her and participated in a four-day trial. According to the trial transcript that Sklar filed with us, over 75 percent of the trial was dedicated to her defense. Sklar entered 54 exhibits and presented 14 character witnesses. She was represented by two attorneys at the trial. Her counsel cross-examined the California bar’s witnesses, objected to the admission of unfavorable exhibits, and gave both opening and closing statements. Sklar also had three opportunities for appellate review—with the state bar court review department, the California Supreme Court, and the United States Supreme Court. Given these facts, the California proceedings were undoubtedly fair.

Sklar makes several unavailing arguments about the purported unfairness of the California proceedings. The majority of these arguments focus on why she did not deserve to be given a discovery sanction in the underlying class-action matter or why she should not have been disciplined by the California Supreme Court. But, under Rule 12(d), the California Supreme Court’s decision conclusively establishes Sklar’s misconduct for the purpose of imposing reciprocal discipline in Minnesota unless we determine otherwise. Although we have never elaborated on what circumstances would cause us to determine otherwise, we see no reason to depart from California’s fact-finding in this case. Sklar had ample opportunity to litigate the merits of the claims against her, in both the class-action matter and the discipline matter. We see no reason for further litigation here. Accordingly, it is conclusively established that Sklar made a false statement to a court¹ and disobeyed two court orders.²

In addition to attacking the basis for the discipline imposed by California, Sklar makes two arguments focused on the procedures followed in that disciplinary matter. These arguments are without merit.

First, Sklar argues that the prosecutors in the disciplinary proceeding were allowed to enter "new records, that were not produced in discovery, in the middle of trial." She argues that these additional exhibits added "nearly 30% more records without prior notice or an opportunity to prepare any defense ... which amounted to a denial of...