In re Farley, No. A08-1178.
| Decision Date | 13 August 2009 |
| Docket Number | No. A08-1178. |
| Citation | 771 N.W.2d 857 |
| Parties | In re Petition for Disciplinary Action against Patrick Joseph FARLEY, a Minnesota Attorney, Registration No. 387773. |
| Court | Minnesota Supreme Court |
Martin A. Cole, Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for petitioner.
Eric T. Cooperstein, Law Office of Eric T. Cooperstein, PLLC, Minneapolis, MN, for respondent attorney.
In February 2008, respondent Patrick J. Farley was convicted of one felony count of criminal solicitation of a minor over the internet. Subsequently, a petition for attorney disciplinary action against Farley was filed, and the case was assigned to a retired district court judge to act as referee. Following a hearing, the referee concluded that Farley violated Minnesota Rule of Professional Conduct 8.4(b). The referee recommended a six-month suspension. We affirm the finding of misconduct and suspend Farley indefinitely with no right to petition for reinstatement for a minimum of one year.
The material facts are undisputed. Farley graduated from William Mitchell College of Law in 2006 and was admitted to practice law in Minnesota on October 26, 2007.
On November 1, 2007, Farley entered an internet chat room and engaged in a sexually explicit conversation with a St. Paul police officer posing as a 14-year-old female. Subsequently, Farley was arrested and charged with one count of internet solicitation of a child for sexual conduct in violation of Minn.Stat. § 609.352 (2008). Farley pleaded guilty, was convicted of the felony charge against him, and sentenced on the conviction. The sentence imposed was stayed for three years, provided that, among other things, Farley be placed on probation for three years, register as a sex offender, and complete sex offender treatment. Upon successful completion of his probation, Farley's offense will be deemed a misdemeanor pursuant to Minn.Stat. § 609.13 (2008).
At the disciplinary hearing, Farley admitted that he was convicted of criminal solicitation of a minor and stated that he was participating in sex offender treatment required by the State, as well as individual and group therapy through a religious organization. He also described some of the family tensions he experienced growing up, which included two incidents of sexual abuse during his childhood that resulted in treatment at a psychiatric institution for three weeks.
Two officials from Farley's church testified to Farley's good character, his participation in church activities, and his successful participation in therapy with the religious organization. Farley's wife also testified to his good character and described some of the measures they were taking to comply with Farley's probation.
Dr. Douglas Frey, a clinical psychologist with experience in diagnosing and treating sexual disorders, performed a psychological evaluation of Farley and concluded that Farley has an anxiety disorder. Based on his evaluation, Dr. Frey concluded that it was unlikely that Farley would re-offend. Dr. Mark Laaser, Farley's primary therapist, concurred with Dr. Frey's assessment of Farley, and concluded that Farley is making progress in his treatment and that it was unlikely Farley would re-offend.
On January 8, 2009, the referee issued his Findings of Fact, Conclusions of Law, and Recommendation for Discipline. The referee found that Farley had violated Minnesota Rule of Professional Conduct 8.4(b), but that Farley's conduct was mitigated on the grounds that the offense occurred outside the practice of law and that Farley was making progress in his sex offender treatment.1 The referee recommended that Farley be suspended from the practice of law for six months.
Farley concedes that the conduct underlying his felony conviction constitutes a violation of Minnesota Rule of Professional Conduct 8.4(b). Farley argues, however, that the referee erred in not finding that his psychological condition, his remorse, the lack of harm to his clients, his good character, and his cooperation with authorities were mitigating factors in determining the appropriate discipline.
Because a transcript was ordered, the referee's findings of fact and conclusions of law are not binding on our court. In re Peterson, 718 N.W.2d 849, 853 (Minn.2006). Nonetheless, we give "great deference" to the referee's findings. In re Wentzell, 656 N.W.2d 402, 405 (Minn. 2003). We will uphold a referee's findings and conclusions "if they have evidentiary support in the record and are not clearly erroneous." In re Moulton, 721 N.W.2d 900, 905 (Minn.2006). Further, we will review the lack of particular findings for clear error. In re Grigsby, 764 N.W.2d 54, 60 (Minn.2009). The court must be "left with the definite and firm conviction that a mistake has been made" before determining that a referee's findings are clearly erroneous. Peterson, 718 N.W.2d at 853 (internal quotation marks omitted).
Farley argues that his psychological condition is a mitigating factor. When an attorney raises a psychological disorder as a mitigating factor, the attorney must prove by clear and convincing evidence: (1) a severe psychological disorder; (2) the psychological disorder caused the misconduct; (3) the attorney is undergoing treatment and is making progress to recover from the psychological disorder that caused or contributed to the misconduct; (4) recovery has arrested the misconduct; and (5) the misconduct is not apt to recur. In re Weyhrich, 339 N.W.2d 274, 279 (Minn.1983). When the Director of the Office of Lawyers Professional Responsibility has proven misconduct, the burden shifts to the attorney to prove the psychological disorder. See id.
Farley contends that the referee erred in finding that his conduct was not caused by his sexual dysfunction. Specifically, he argues that the referee should not have applied the "right from wrong" test used in In re Jellinger, 655 N.W.2d 312, 315 (Minn.2002). He urges us to adopt a "proximate cause" test. But Farley misconstrues our case law regarding psychological disorder as a mitigating factor.
In Jellinger, we considered whether the attorney's "moderate depression" satisfied the Weyhrich test. Jellinger, 655 N.W.2d at 314-15. The referee found that Jellinger's "misconduct was largely the byproduct of inadequate treatment of his depression" and therefore Jellinger proved mitigation. Id. at 314. On appeal we reversed, concluding, among other things, that Jellinger's expert testimony did not establish that Jellinger had a psychological disorder that was severe or that a causal relationship existed between Jellinger's depression and his affirmative acts of dishonesty. Id. at 315. We observed that in In re Pyles, 421 N.W.2d 321 (Minn.1988), we affirmed the referee's rejection of a psychological disorder as a mitigating factor based on the finding that the disorder was not "a severe problem on a recognized psychological diagnostic scale and did not result in impairment of [Pyles'] cognitive functions, his ability to direct his actions, or to know right from wrong." Jellinger, 655 N.W.2d at 315 (quoting Pyles, 421 N.W.2d at 325) (internal quotation marks omitted).
Thus, Jellinger did not adopt a new "right from wrong" test to satisfy the Weyhrich factors regarding severity or causation. Rather, Jellinger simply concluded that the expert testimony failed to establish severity and causation under Weyhrich. As a result, we concluded that Jellinger had not met all of the Weyhrich factors for psychological disorder as a mitigating factor. We reiterate that to satisfy the Weyhrich test, the attorney must prove, by clear and convincing evidence, that (1) he or she has a severe psychological disorder; (2) the psychological disorder caused the misconduct; (3) the attorney is undergoing treatment and is making progress to recover from the psychological disorder that caused or contributed to the misconduct; (4) recovery has arrested the misconduct; and (5) the misconduct is not apt to recur. See Weyhrich, 339 N.W.2d at 279.
Here, the referee found that "Respondent knew that his conduct was ethically and morally wrong so that his behavior was not caused by his sexual addiction/dysfunction," and did not find that this dysfunction was severe. We conclude that the referee conflated the first and second Weyhrich factors, regarding severity and causation respectively. To establish severity, Farley must show that the psychological disorder was severe, not that he knew that his conduct was "ethically and morally wrong." Farley presented no evidence that he suffered from a severe psychological disorder on a recognized psychological diagnostic scale. See Pyles, 421 N.W.2d at 325.
Further, the referee found that Farley's "behavior was not caused by his sexual addiction/dysfunction." Farley's own expert witness testified that Farley's disorder "indirectly" led to the offense. Indirect causation, however, is not sufficient to justify a finding of causation under Weyhrich. See In re Shoemaker, 518 N.W.2d 552, 554 (Minn.1994). Thus, we conclude that Farley failed to satisfy two of the Weyhrich factors, and therefore his psychological disorder is not a mitigating factor.
Farley next argues that the referee erred in not crediting his remorse as a mitigating factor. The referee found that Whether an attorney has expressed remorse over his misconduct is an important consideration in determining the appropriate discipline for an attorney. See In re Houge, 764 N.W.2d 328, 339 (Minn.2009). We conclude that examination of remorse is an important issue and that the referee erred in failing to address it. Based on our review of the record, it appears that Farley has established that he had remorse for his conduct.
Farley next argues that the referee erred by not finding that his cooperation was a mitigating...
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