In re Griffith

• Decision Date: 17 August 2016
• Docket Number: No. A15–1186.,A15–1186.
• Citation: 883 N.W.2d 798
• Parties: In re Petition for Reinstatement of Clark Calvin GRIFFITH, II, a Minnesota Attorney, Registration No. 0175638.
• Court: Minnesota Supreme Court

883 N.W.2d 798

In re Petition for Reinstatement of Clark Calvin GRIFFITH, II, a Minnesota Attorney, Registration No. 0175638.

No. A15–1186.

Supreme Court of Minnesota.

Aug. 17, 2016.

Clark Calvin Griffith, II, Minneapolis, MN, pro se.

Susan M. Humiston, Director, Julie E. Bennett, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, MN, for respondent.

OPINION

PER CURIAM.

By order dated November 5, 2013, we suspended petitioner Clark Calvin Griffith, II, indefinitely with no right to petition for reinstatement for 90 days. Griffith filed a petition for reinstatement on July 23, 2015. After a hearing, a panel of the Lawyers Professional Responsibility Board (the panel) concluded that Griffith did not prove by clear and convincing evidence that he has undergone a moral change, and therefore recommended denial of Griffith's petition for reinstatement. Griffith contests the panel's findings and recommendation, arguing that he should be reinstated. The Director of the Office of Lawyers Professional Responsibility (the Director) agrees with the panel's recommendation. After independently reviewing the record, we conclude that the panel's determination was not clearly erroneous. Therefore, we deny Griffith's petition for reinstatement.

I.

Griffith was admitted to practice law in Minnesota in 1986. In 2013 we suspended Griffith indefinitely with no right to petition for reinstatement for a minimum of 90 days due to his: (1) sexual harassment of a law student that he was supervising at William Mitchell College of Law (WMCL); and (2) attempts to pressure the law student into recanting her complaints against him. In re Griffith, 838 N.W.2d 792, 793 (Minn.2013)

.

On January 24, 2012, Griffith, an adjunct professor, and the law student met at a restaurant in Saint Paul as part of an independent study clinic. As Griffith has stipulated, during the meeting, he “engaged in verbal and physical conduct and communications of a sexual nature that were not welcomed by [the student] and heightened her feelings of discomfort with [Griffith].” The meeting ended and Griffith walked the student to her car. As Griffith has further stipulated, he then “unzipped his pants, exposed his penis to [the student], and then took [the student's] hand and forced her to touch his penis.”

The next day the student reported the incident to WMCL. WMCL directed Griffith to have no contact with the student, but he continued to call, text, and send messages. These communications included multiple attempts by Griffith to convince the student to recant the complaints she made to authorities. WMCL was notified of the communications and sent Griffith a second notice to have no contact with the student. Griffith again disregarded the instruction and contacted the student to ask why she had filed a criminal complaint against him. The student told Griffith to stop contacting her. WMCL conducted an investigation into the incident and terminated Griffith's employment. On June 12, 2012, Griffith entered an Alford plea and was found guilty of indecent exposure.

On July 23, 2015, Griffith filed his petition for reinstatement. The Director opposed reinstatement. After a hearing, the panel recommended denial of Griffith's petition. The panel concluded that Griffith “ha[d] not proven by clear and convincing evidence that he has undergone the requisite moral change to render him fit to resume the practice of law.”

II.

“ ‘[A]n attorney applying for reinstatement must establish by clear and convincing evidence that ... he has undergone such a moral change as now to render him a fit person to enjoy the public confidence and trust once forfeited.’ ” In re Jellinger, 728 N.W.2d 917, 922 (Minn.2007)

(quoting In re Porter, 472 N.W.2d 654, 655 (Minn.1991) ). Clear and convincing evidence is “unequivocal, intrinsically probable and credible, and free from frailties.” Gassler v. State, 787 N.W.2d 575, 583 (Minn.2010).

Our scope of review in matters such as this is well established. When, as here, a petitioner orders a transcript of a reinstatement hearing, “the panel's findings ‘are not binding on this court.’ ” In re Mose, 754 N.W.2d 357, 360 (Minn.2008)

(quoting In re Selmer, 749 N.W.2d 30, 35 (Minn.2008) ); see also Rule 14(e), Rules on Lawyers Professional Responsibility. After independently reviewing the record, we “will uphold the panel's factual findings if they have evidentiary support in the record and are not clearly erroneous.” Mose, 754 N.W.2d at 360. “As a general rule we will defer to a panel's finding that a petitioner's testimony that he has undergone the requisite moral change is not credible....” Id. at 362.

“Evidence of this moral change ‘must come not only from an observed record of appropriate conduct, but from the petitioner's own state of mind and his values.’ ” Porter, 472 N.W.2d at 655

(quoting In re Hanson, 454 N.W.2d 924, 925 (Minn.1990) ). “This standard requires stronger proof of good character and trustworthiness than is required in an original application for admission to practice.” Id. at 655–56. “Generally, to prove moral change a lawyer must show remorse and acceptance of responsibility for the misconduct, a change in the lawyer's conduct and state of mind that corrects the underlying misconduct that led to the suspension, and a renewed commitment to the ethical practice of law.” In re Mose, 843 N.W.2d 570, 575 (Minn.2014).

In addition to moral change, on a petition for reinstatement we also consider:

(1) compliance with the terms of the suspension order; (2) the attorney's recognition of the wrongfulness of his or her misconduct; (3) the length of time since suspension; (4) the seriousness of the original misconduct; (5) the attorney's physical or mental illness or pressures that may be susceptible to correction; and (6) the attorney's intellectual competence to practice law.

Id. at 574. Moral change and recognition of wrongfulness are overlapping factors. “While moral change and recognition of wrongfulness are considered to be only two factors in the overall analysis, we have previously recognized the ‘decisive’ nature of these factors.” In re Holker, 765 N.W.2d 633, 639 n. 2 (Minn.2009)

(citation omitted).

III.

The panel addressed each factor. It determined that: (1) Griffith had complied with the terms of the suspension order; (2) he had not demonstrated insight into the wrongfulness of his conduct and accepted personal responsibility for his actions; (3) he had been suspended for 2 years; (4) he was convicted of misdemeanor indecent exposure; (5) no evidence or testimony was received that would indicate a physical or mental illness or pressure; and (6) evidence suggested that he was competent to practice law. Finally, the panel concluded that Griffith had not demonstrated moral change.

In support of its determinations on moral change and recognition of wrongfulness, the panel made multiple findings:

1. Griffith agreed to an Alford plea, which did not require him to acknowledge guilt. The transcript shows that the panel had difficulty getting Griffith to acknowledge the conviction and the finding of guilt.

2. Griffith attempted what the panel called “moral shifting of blame” by suggesting that his misconduct had been caused by the side effects of a “medical cocktail.”

3. Griffith “did not articulate the difference between his past and present attitudes.”

4. Griffith testified, contrary to his stipulation in the disciplinary proceeding, that both he and the student engaged in verbal and physical conduct of a sexual nature.

5. Griffith implied that the student was pursuing him. He did not acknowledge the student's experience or express an understanding of or appreciation for the suffering that his actions inflicted on his victim.

Based on these findings, the panel concluded that Griffith “has not proven by clear and convincing evidence that he has undergone the requisite moral change to render him fit to resume the practice of law.”

Based on our independent review of the record, we hold that the panel's findings and conclusions are not clearly erroneous, and are well supported by the record. In particular, we note, as did the panel, that in the underlying disciplinary proceeding, Griffith stipulated that he took the student's hand and forced her to touch his penis. But, before the panel, Griffith said, “I don't know whether I exposed myself or not.” Similarly, although Griffith had stipulated previously that his advances were not welcomed by the student, he told the panel that he “thought that meant that we both...