In re Disciplinary Action against Andrade

• Decision Date: 19 July 2007
• Docket Number: No. A06-426.,A06-426.
• Citation: 736 N.W.2d 603
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Sergio Roberto ANDRADE, a Minnesota Attorney, Registration No. 261750.
• Court: Minnesota Supreme Court

736 N.W.2d 603

In re Petition for DISCIPLINARY ACTION AGAINST Sergio Roberto ANDRADE, a Minnesota Attorney, Registration No. 261750.

No. A06-426.

Supreme Court of Minnesota.

July 19, 2007.

Rehearing Denied August 23, 2007.

Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Petitioner Martin A. Cole.

William L. Davidson, Lind, Jensen, Sullivan & Peterson, PA, Minneapolis, MN, for Respondent Paul C. Peterson.

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

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against Sergio Roberto Andrade after Andrade was convicted of attempted theft by swindle of more than $2,500. We referred the matter to a referee for findings of fact, conclusions of law, and recommendation for discipline. Although both Andrade and the Director disagree with the referee's recommended discipline, neither Andrade nor the Director contest the referee's findings of fact or conclusions of law. Based on those findings of fact and conclusions of law, and on the facts of the matter as found by the district court in Andrade's criminal trial,¹ we conclude that disbarment of Andrade is necessary to protect the integrity of the judicial system and to protect the public.

Andrade's conviction of attempted theft by swindle stems from his representation of client M, whom Andrade had represented since 1995 or 1996 in some 30 different matters. In 2004, narcotics officers from the Minneapolis Police Department executed a search warrant on M's home, where they found cocaine and marked bills used in an earlier controlled drug buy from M. Andrade eventually negotiated an agreement between M and the Minneapolis police under which M would not be prosecuted in exchange for M's assistance in making controlled drug buys from two drug dealers. At the time, M owed Andrade at least $5,500 in legal fees.

It is undisputed that over the years M had urged Andrade to bribe a judge or the police to eliminate M's various legal problems and that Andrade had, at least to the point in time when cocaine was found in M's home, refused. But shortly after making the first of the two required controlled drug buys, M told officers that Andrade had asked for $50,000 to bribe an unnamed high-ranking police official to dismiss the pending drug charges. In a series of meetings, recorded by law enforcement with M's cooperation, Andrade alternately told M that he had personally paid $25,000 to the official and needed to pay the $25,000 balance, and that he had paid another $15,000 to the "person who is in charge of all the police of the Drug Task Force," leaving an additional $10,000 to be paid. Andrade further told M that this was not the first time he had asked this person for a favor. At the last meeting between M and Andrade, M gave Andrade $5,000 in cash, provided by law enforcement, as partial payment of the would-be bribe. Andrade was arrested after leaving the meeting with M, and the cash was recovered. There is no evidence that Andrade actually offered or paid any bribe on M's behalf. Andrade contends in these proceedings that his statements to M were a means of obtaining payment of M's past-due legal bills but, as the district court observed in the criminal proceedings, the amount of money Andrade sought from M was far more than what M owed Andrade.

On December 12, 2005, the district court found Andrade guilty of attempted theft by swindle of over $2,500, in violation of Minn.Stat. § 609.52, subds. 2(4) and 3(2) (2006). On February 14, 2006, the Director filed a petition for disciplinary action and later filed a petition requesting that we temporarily suspend Andrade pending this court's final determination of discipline. We denied the petition for temporary suspension but required Andrade to be supervised by another attorney pending final resolution of these proceedings.

We referred the case to a referee for findings of fact and conclusions of law, as provided for in Rule 14, Rules on Lawyers Professional Responsibility (RLPR). The referee conducted an evidentiary hearing at which Andrade testified and called character witnesses on his behalf. At the hearing, Andrade did not dispute the factual findings supporting his felony conviction and agreed that some public discipline was appropriate. Andrade further testified that when M suggested that Andrade bribe a judge or a police officer, Andrade took that as "an opportunity to get paid." After the evidentiary hearing, the referee concluded that Andrade's conduct violated Minn. R. Prof. Conduct 1.7(a)(2)² and 8.4(b), (c), (d), and (e).³ Although the presumptive punishment for a felony conviction is disbarment, the referee recommended indefinite suspension with leave to petition for reinstatement after two years.

We give significant weight to the referee's recommendations for discipline. In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004). But Andrade has been convicted of a felony, and the presumptive discipline for a felony conviction is disbarment, particularly where the criminal conduct occurs (as in this case) within the practice of law. See In re Perez, 688 N.W.2d 562, 567-69 (Minn.2004). We have ordered a lesser sanction than the presumptive discipline of disbarment where there exist substantial mitigating circumstances. See, e.g., In re Olkon, 324 N.W.2d 192, 196 (Minn.1982). In this case, the referee found as mitigating factors Andrade's lack of prior disciplinary history, his substantial community service and pro bono work in the Hispanic community, his reputation with the judiciary and the practicing bar, his cooperation with the Director's investigation, and the fact that the violations involved only one person. The referee found as aggravating factors that Andrade's violations took place within the practice of law and that Andrade initially denied the allegations against him even in the face of recordings of his conduct.

We agree with Andrade that, in the proper case, mitigating factors can warrant a sanction less than disbarment for a felony conviction. For example, in Olkon we cited such mitigating factors as a long history of pro bono work and the attorney's competence and integrity as justification for not disbarring an attorney convicted of attempted theft by swindle involving insurance fraud. Id. at 196. In In re Daffer, 344 N.W.2d 382, 385 (Minn.1984), we similarly declined to disbar an attorney convicted of mail fraud, citing the referee's findings regarding the attorney's remorse, full and prompt restitution, good character, cooperation, and the fact that all of the acts constituting the fraud occurred within a very brief time and arose from a single transaction.

The primary purpose of disciplinary action is "to guard the administration of justice and to protect the courts, the legal profession, and the public." In re Hanson, 258 Minn. 231, 233, 103 N.W.2d 863, 864 (1960). Accordingly, we consider whether, in light of the mitigating factors found by the referee, a sanction less than disbarment would adequately serve those interests in this case. Daffer, 344 N.W.2d at 385. We conclude it would not.

First, the person Andrade attempted to swindle was his own client. Moreover, Andrade attempted to swindle a long-time client, someone he had represented for many years in some 30 different matters. As we observed in In re Benson, a case in which we also disbarred the attorney, if an attorney would misappropriate funds from a long-time client and friend, "[t]he general public, with no such relationship, would hardly be protected from similar misconduct." 431 N.W.2d 120, 124 (Minn.1988).

Second, although we allowed Andrade to practice under supervision for the brief time this matter has been pending, and although Andrade urges us to impose suspension and supervised probation as an alternative to disbarment, the nature of the supervised probation we impose as a disciplinary sanction is unlikely to detect this type of misconduct. We typically order the appointment of a supervisor to monitor the practice of an attorney who has neglected client matters in the past as a means of ensuring that the attorney meets court-imposed deadlines, returns phone calls and correspondence promptly, and otherwise completes client matters on a timely basis. See, e.g., In re Berndt, 719 N.W.2d 642, 643 (Minn.2006) (outlining conditions of supervision). Andrade makes no argument that supervised probation would have prevented him from committing this crime or that supervised probation would have detected it afterwards. As a result, supervised probation is unlikely to deter similar misconduct in the future.

Finally, Andrade has violated Minn. R. Prof. Conduct 8.4(e). We have rarely been faced with the task of disciplining attorneys charged with implying the ability to improperly influence a government agency or official, but when we have, we have disbarred the attorney. See, e.g., In re Gillard, 271 N.W.2d 785, 805 (Minn.1978). We have done so because such misconduct calls into question the very integrity of the judicial system, a system the attorney has sworn to uphold. And in this case, Andrade's actions effectively reinforced his client's cynical view of the legal system as corrupt and subject to influence. The harm of such conduct to the public and to the judicial system outweighs the mitigating circumstances found by the referee.

Andrade urges us to impose upon him only a short suspension followed by supervised probation, comparing his case to that of Olkon. Olkon unwittingly represented two undercover police officers posing as automobile accident victims, and negotiated an insurance settlement on behalf of one of them knowing that the client's claimed injuries were faked. Olkon, 324 N.W.2d at 193-95. While Olkon was also convicted of attempted theft by swindle, we declined to impose automatic disbarment and instead suspended Olkon and barred him from practicing personal...