In re Edinger, A04-1276.

• Decision Date: 28 July 2005
• Docket Number: No. A04-1276.,A04-1276.
• Citation: 700 N.W.2d 462
• Parties: In re PETITION FOR DISCIPLINARY ACTION AGAINST Richard Edward EDINGER, a Minnesota Attorney, Registration No. 263965.
• Court: Minnesota Supreme Court

700 N.W.2d 462

In re PETITION FOR DISCIPLINARY ACTION AGAINST Richard Edward EDINGER, a Minnesota Attorney, Registration No. 263965.

No. A04-1276.

Supreme Court of Minnesota.

July 28, 2005.

Kenneth L. Jorgensen, Director, Craig Donald Klausing, Senior Assistant Director, St. Paul, MN, for Appellant.

Bruce Douglas Quick, Fargo, ND, for Respondent Edinger.

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

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility made inquiries concerning a series of overdrafts from the trust account of attorney Richard Edward Edinger. When Edinger failed to timely respond to those inquiries and then responded minimally, the Director began a formal disciplinary investigation. During that investigation, Edinger made a series of false statements concerning the nature of the funds deposited in his trust account and why the overdrafts occurred. The Director filed a petition for disciplinary action, alleging both trust account violations and noncooperation with the investigation.¹ Edinger waived a panel proceeding. A referee was appointed and, after a hearing, recommended that Edinger be suspended for 3 months. The Director disagreed with the referee's recommendation and requested this court's review. We accept the referee's recommendation and determine that Edinger has committed serious misconduct warranting indefinite suspension from the practice of law, with no right to apply for reinstatement for at least 3 months.

Edinger was admitted to practice in Minnesota on May 10, 1996, and also admitted to practice in North Dakota in October 1996. Edinger practices in the Fargo-Moorhead area and focuses his practice on family law and contract public defender work for Cass County, North Dakota.

On January 14, 2002, the Director received a notice pursuant to Minn. R. Prof. Conduct 1.15(j)-(o) that Edinger's trust account was overdrawn on January 4, 2002. The Director wrote to Edinger on January 15 requesting an explanation for the overdraft and certain documents related to the trust account. Edinger contacted the Director on January 16 to give notice that his trust account was again overdrawn and to request that the Director mail him a copy of the informational trust account brochure. Edinger did not respond to the Director's January 15 letter. On January 23, the Director received a notice that confirmed a January 15 overdraft on Edinger's trust account.

The Director mailed a second letter on February 8, 2002, to Edinger requesting that he explain the January 4 overdraft. The Director received a fax from Edinger stating that Edinger had mailed his response that same day, but Edinger had not done so. On February 15 and 16, Edinger sent two faxes to the Director containing his explanation for the January 4 overdraft and supporting documentation. Edinger informed the Director that the January 4 overdraft resulted from a delay in depositing a $650 retainer check from a client, W.R. Edinger included a handwritten client subsidiary ledger documenting W.R.'s payment of the retainer. He also explained that the January 15 overdraft was caused by an inadvertent delay in depositing an $840 payment from W.R. for the hiring of an expert witness.

The Director received another notice that Edinger's trust account was overdrawn on April 15, 2002. The Director wrote to Edinger on April 22 requesting an explanation for the April 15 overdraft and supporting documents, including Edinger's trust account bank statements and client subsidiary ledgers from February through April 2002. By early May 2002, the Director had not received a response from Edinger and the Director sent Edinger a follow-up request on May 13. Edinger responded to the Director's request by fax on May 28. The Director also received Edinger's response by mail on June 7, 2002, but the response was incomplete because it included only Edinger's April 2002 trust account bank statement. Edinger attributed the April 15 overdraft to the deposit of a check from a client, P.B., that was returned for insufficient funds after Edinger had made expenditures related to P.B.'s case. Edinger included with his explanation a signed statement from P.B. that authorized Edinger to withdraw funds from the client trust account to cover expenses incurred by Edinger's representation of P.B.

The Director wrote to Edinger on June 21, requesting that Edinger submit his May 2002 trust account bank statement, his client subsidiary ledgers, and the trust account check that caused the April 15 overdraft. Edinger responded by fax on July 8, 2002, and informed the Director that the requested documentation had been mailed and that his delay in responding was due to his having been on vacation when the June 21 letter was received. The only document that the Director received from Edinger was a signed statement from a client that the client's insufficient funds check had caused the April 15 overdraft.

On July 9, 2002, the Director received a notice that Edinger's trust account was again overdrawn as of July 8. The Director wrote to Edinger on July 10, requesting an explanation for the July 8 overdraft and supporting documentation. The Director also sent a letter to Edinger on July 11 noting that Edinger had failed to fully respond to the Director's June 21 request and instructing Edinger to appear at a meeting with the Director on August 6, 2002, to discuss the overdrafts. Edinger attended the August 6 meeting and informed the Director that he had closed his client trust account. Edinger also stated that he had mistakenly believed that his secretary had mailed the documents that the Director had requested in the June 21 letter. The Director requested that Edinger provide his trust account bank statements and client subsidiary ledgers from April through August 2002, as well as an explanation for the July 2002 overdraft. Edinger partially responded to the Director's request on August 13 by faxing to the Director his July and August trust account bank statements.

On August 22, the Director received from Edinger: (1) a statement from Edinger that the July 8 overdraft resulted from a bookkeeping error; (2) the May through July 2002 trust account bank statements; (3) the subsidiary client ledgers for four clients, P.B., P.D., T.E. and D.M.; and (4) a signed statement from P.B. The P.B. ledger reflected the issuance of several trust account checks for "investigative" and "travel" expenses, an April 22, 2002, cash retainer and a June 8, 2002, $1,292 deposit described as a "Retainer for Investigator (cash)." The Director observed that Edinger's trust account bank statements reflected significant activity not reflected in Edinger's subsidiary client ledgers.

The Director initiated a formal disciplinary investigation. The Director wrote to Edinger on September 16, 2002, requesting that within 14 days Edinger provide complete trust account books and records from January 1, 2001, to August 30, 2002. By October 25, the Director had not received the requested documentation from Edinger. The Director sent a letter to Edinger instructing him to appear for a meeting on November 12, 2002, and to bring the requested documentation with him. On November 12, Edinger faxed a letter to the Director requesting that the meeting be rescheduled for November 14 or 15. The meeting was rescheduled for November 14, but Edinger failed to attend and did not explain his absence to the Director.

In February 2003, the Director called Edinger to schedule a meeting for February 19 and to encourage him to participate in the investigation process. Edinger attended the meeting and acknowledged that he had not maintained the proper records and that he had used the trust account as a personal account. Edinger produced trust account bank statements for most of the requested period of January 2001 through August 2002, and copies of some trust account checks. The trust account bank statements not produced were for May through July 2001 and for September 2001.

At the February 19 meeting, the Director had requested that by March 5, 2003, Edinger provide a reconstructed trust account checkbook register, missing bank statements, and his original trust account checks. The Director received the missing trust account bank statements and some of Edinger's original trust account checks on March 7. In the cover letter of Edinger's March 7 response, Edinger wrote that he had requested the missing cancelled checks and deposit slips, forwarded all originals to the Director, and completed 90% of the reconstructed trust account checkbook register. Edinger also admitted to violating the Minnesota Rules of Professional Conduct by using the trust account to pay his personal expenses and failing to keep appropriate trust account records.

The Director called Edinger on March 21 to request that he send all information that he had received since his last submission on March 7. Edinger agreed to provide that information to the Director but failed to do so. On April 1, 2003, the Director wrote to Edinger again and requested his appearance at an April 10 meeting. On April 10, Edinger's attorney informed the Director that he would represent Edinger in the Director's proceedings from that point forward. By January 23, 2004, Edinger's attorney had provided the Director with most of the requested documentation.

Ultimately, Edinger acknowledged that he had falsified the documentation that he submitted to the Director in order to conceal his misuse of the trust account. Edinger's representations to the Director about W.R. were false. W.R. was Edinger's former girlfriend and not a client. The $650 deposit into the trust account in her name was a personal loan to Edinger, not a retainer. Edinger admitted that the $840 deposit attributed to W.R. was actually a personal loan to Edinger by another attorney. Edinger also acknowledged that the checks and deposits attributed to P.B. had nothing to do with...