In re Disciplinary Action against Berg, No. A07-563.

CourtSupreme Court of Minnesota (US)
Writing for the CourtPer Curiam
Citation741 N.W.2d 600
PartiesIn re PETITION FOR DISCIPLINARY ACTION AGAINST James L. BERG, a Minnesota Attorney, Registration No. 139105.
Decision Date29 November 2007
Docket NumberNo. A07-563.
741 N.W.2d 600
In re PETITION FOR DISCIPLINARY ACTION AGAINST James L. BERG, a Minnesota Attorney, Registration No. 139105.
No. A07-563.
Supreme Court of Minnesota.
November 29, 2007.

[741 N.W.2d 601]

Cassie Breta Hanson, Office of Lawyer's Professional Responsibility Saint Paul, MN, for Petitioner.

Phillip A. Cole, Lommen, Nelson, Cole, Stageberg, Minneapolis, MN, for Respondent.

[741 N.W.2d 602]

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

OPINION

PER CURIAM.


This attorney discipline case concerns the appropriate discipline to be imposed on respondent James L. Berg. The Director of the Office of Lawyer's Professional Responsibility filed a petition and a supplementary petition for discipline alleging several acts of misconduct. Berg agreed that he committed the acts of misconduct alleged in the petitions by entering a stipulation for discipline with the Director. In the stipulation, Berg and the Director jointly recommended that Berg be suspended from the practice of law in Minnesota for a minimum of five years with conditions placed on reinstatement. Because of the presence of numerous mitigating factors and because it is appropriate in this case to give some deference to the Director's recommendation in the stipulation, we impose the discipline of a five-year suspension.

In October 1982, Berg was admitted to practice law in Minnesota. Until the Director filed the petition in this case, Berg had never been the subject of a disciplinary action. Berg initially filed an answer to the petition, but withdrew that answer and agreed to the allegations and those of the supplementary petition. Berg's acts of misconduct include misappropriation and mishandling of client funds, a single instance of forgery, making false statements, failing to communicate with clients, neglecting client matters, failing to enter written contingency fee agreements, and failing to cooperate with the disciplinary investigation underlying this case.

Berg admitted to misappropriating the funds of six different clients. During his representation of C.W., Berg misappropriated funds he received on C.W.'s behalf by disbursing the proceeds from his client trust account prior to April 1, 2005. To whom Berg made these disbursements is unclear, but his trust account retained a sufficient balance to cover the C.W. funds at other times during the Director's audit of this account. Then in May and June 2005, Berg misappropriated settlement funds he received on behalf of J.R. by withdrawing the entire amount from his client trust account. In October or November 2005, Berg misappropriated settlement funds he received on K.S.'s behalf by disbursing those funds from his client trust account. Berg made these disbursements after negotiating the check by forging K.S.'s signature on the endorsement. Sometime before November 18, 2005, Berg misappropriated funds he received on behalf of B.C. by disbursing them from his client trust account for his own use. Berg also misappropriated insurance premium and mortgage escrow funds he received for L.H. by disbursing them for his own use in February 2007. Finally, Berg misappropriated funds he received from G.B. as an advance fee payment and an appellate filing fee, by failing to deposit them in his client trust account. Berg agreed that each of these disbursements, and his failure to deposit money he received from G.B., violated Minn. R. Prof. Conduct 1.15(a) & (b) and 8.4(b) & (c). Berg agreed that his forgery of K.S.'s signature, though made under the mistaken belief that he was authorized to negotiate the check for K.S., violated Minn. R. Prof. Conduct 8.4(b) and (c).

During an audit of Berg's trust account from April 2005 through April 2006, the Director discovered that Berg deposited personal funds into and made personal cash withdrawals from his client trust account. Berg also authorized his own creditors to make electronic withdrawals from that account. He also failed to disburse

741 N.W.2d 603

funds to clients by trust account checks. Berg and the Director agreed that these actions violated Minn. R. Prof. Conduct 1.15(a) and (b).

Berg failed to enter written contingency fee agreements with four different clients. Berg made these unwritten contingency fee arrangements with J.R. in March 2005, with K.S. in October 2003, with L.L.P. sometime before December 23, 2005, and with T.L. sometime before January 4, 2006. Berg also received settlement funds on behalf of J.R. for which he has never accounted. Berg agreed that his failure to execute written contingency fee agreements violated Minn. R. Prof. Conduct 1.5(c).

Berg disbursed to L.L.P. the portion of the settlement funds to which she was entitled, but he did not provide her a written statement showing the outcome of the matter or the method by which the funds were divided between his fees and her remittance. Berg did not provide K.S. and T.L. with documentation showing the outcome of their cases. Nor did he provide them with documentation showing the method of division between his fees and their remittance. Berg agreed that his failure to provide appropriate documentation to these clients violated Minn. R. Prof. Conduct 1.5(c).

Berg made false statements to G.B. and L.H. while representing them. He also made false statements to the Director during the disciplinary investigation. Berg told L.H. that he was unable to release funds to which she was entitled without first obtaining additional signatures. This statement was false because Berg had actually misappropriated the funds. Berg told G.B. that opposing counsel had asked Berg to withdraw G.B.'s appeal in March 2007 in order to settle the case. This statement was false because opposing counsel had actually contacted Berg about settling the case more than a month earlier. In response to a complaint K.S. made to the Director about Berg's representation, Berg falsely stated that he had received a settlement offer in December 2005 to which K.S. agreed. Berg had actually agreed to the settlement without K.S.'s consent in August 2005. Berg agreed that these acts violated Minn. R. Prof. Conduct 4.1 and 8.4(c).

Berg admitted to several instances of failing to communicate with clients and neglecting client matters. He failed to communicate with J.R.'s bankruptcy attorney in late 2005 about the status of funds Berg held on J.R.'s behalf. Berg also failed to resolve a lien on J.R.'s property. Berg failed to respond to K.S.'s attempts to contact him from August through December 2005. While handling an appeal for G.B., Berg failed to file a memorandum ordered by the court of appeals. This failure led to the dismissal of G.B.'s appeal. Berg never informed G.B. of the dismissal. Berg agreed that these acts violated Minn. R. Prof. Conduct 1.1, 1.3, 1.4(a), 1.4(a)(4), 3.2, 3.4(c), and 8.4(d).

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9 practice notes
  • In Re Petition For Disciplinary Action v. Robert H. Aitken, No. A09-1066.
    • United States
    • Supreme Court of Minnesota (US)
    • 29 Julio 2010
    ...of disciplinary history is not a mitigating factor but is instead the absence of an aggravating factor. Accord 787 N.W.2d 163 In re Berg, 741 N.W.2d 600, 605 (Minn.2007). We therefore reject consideration of Aitken's lack of disciplinary history as a mitigating factor. Additionally, we have......
  • In Re Petition For Disciplinary Action v. Donald W. Fett, No. A09-1862.
    • United States
    • Supreme Court of Minnesota (US)
    • 24 Noviembre 2010
    ...occasions that an attorney's disciplinary history may be an aggravating factor in determining the appropriate discipline. See In re Berg, 741 N.W.2d 600, 605 (Minn.2007) ( “[A]n attorney's prior disciplinary history can be considered as an aggravating factor while considering the cumulative......
  • In re Farley, No. A08-1178.
    • United States
    • Supreme Court of Minnesota (US)
    • 13 Agosto 2009
    ...treated individual Weyhrich factors as independent mitigating factors in the case of unintentional or passive misconduct. See In re Berg, 741 N.W.2d 600, 605 (Minn.2007) ("Berg's depression does not mitigate his intentional misconduct. ... [B]ut our decisions have occasionally consider......
  • IN RE DISCIPLINARY ACTION AGAINST ALBRECHT, No. A08-2082.
    • United States
    • Supreme Court of Minnesota (US)
    • 18 Marzo 2010
    ...history and the harm to his client were aggravating factors in Albrecht's case and that there were no mitigating factors. See In re Berg, 741 N.W.2d 600, 605 (Minn.2007) ("An attorney's prior disciplinary history can be considered as an aggravating factor while considering the cumulati......
  • Request a trial to view additional results
9 cases
  • In Re Petition For Disciplinary Action v. Robert H. Aitken, No. A09-1066.
    • United States
    • Supreme Court of Minnesota (US)
    • 29 Julio 2010
    ...of disciplinary history is not a mitigating factor but is instead the absence of an aggravating factor. Accord 787 N.W.2d 163 In re Berg, 741 N.W.2d 600, 605 (Minn.2007). We therefore reject consideration of Aitken's lack of disciplinary history as a mitigating factor. Additionally, we have......
  • In Re Petition For Disciplinary Action v. Donald W. Fett, No. A09-1862.
    • United States
    • Supreme Court of Minnesota (US)
    • 24 Noviembre 2010
    ...occasions that an attorney's disciplinary history may be an aggravating factor in determining the appropriate discipline. See In re Berg, 741 N.W.2d 600, 605 (Minn.2007) ( “[A]n attorney's prior disciplinary history can be considered as an aggravating factor while considering the cumulative......
  • In re Farley, No. A08-1178.
    • United States
    • Supreme Court of Minnesota (US)
    • 13 Agosto 2009
    ...treated individual Weyhrich factors as independent mitigating factors in the case of unintentional or passive misconduct. See In re Berg, 741 N.W.2d 600, 605 (Minn.2007) ("Berg's depression does not mitigate his intentional misconduct. ... [B]ut our decisions have occasionally consider......
  • IN RE DISCIPLINARY ACTION AGAINST ALBRECHT, No. A08-2082.
    • United States
    • Supreme Court of Minnesota (US)
    • 18 Marzo 2010
    ...history and the harm to his client were aggravating factors in Albrecht's case and that there were no mitigating factors. See In re Berg, 741 N.W.2d 600, 605 (Minn.2007) ("An attorney's prior disciplinary history can be considered as an aggravating factor while considering the cumulati......
  • Request a trial to view additional results

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