In re Hawkins

• Citation: 834 N.W.2d 663
• Decision Date: 31 July 2013
• Docket Number: No. A11–1454.,A11–1454.
• Parties: In re Petition for DISCIPLINARY ACTION against Allan R. HAWKINS, III, a Minnesota Attorney, Registration No. 42663.
• Court: Supreme Court of Minnesota (US)

834 N.W.2d 663

In re Petition for DISCIPLINARY ACTION against Allan R. HAWKINS, III, a Minnesota Attorney, Registration No. 42663.

No. A11–1454.

Supreme Court of Minnesota.

July 31, 2013.

Syllabus by the Court

1. The attorney disciplinary proceedings conducted in Texas were fundamentally fair and consistent with due process.

2. Disbarment is the appropriate reciprocal discipline to impose on the attorney.

Martin A. Cole, Director, Timothy M. Burke, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

Allan R. Hawkins, III, Scottsdale, Arizona, pro se.

OPINION

PER CURIAM.

A Texas court disbarred respondent attorney Allan R. Hawkins, III. After the Director of the Office of Lawyer's Professional Responsibility (“the Director”) learned of Hawkins's disbarment, the Director petitioned this court to impose reciprocal discipline on Hawkins in Minnesota. Because we conclude that the disciplinary proceedings in Texas were fundamentally fair and that disbarment would not be unjust or substantially different from the discipline that would be imposed in Minnesota, we disbar Hawkins.

I.

At one time, Hawkins was admitted to practice law in at least four states: Arizona, Minnesota, North Dakota, and Texas. In 1997, the State Bar of Texas filed a disciplinary petition against Hawkins, alleging that Hawkins committed professional misconduct in his representation of a criminal defendant. In Texas, state district court judges conduct disciplinary trials and impose attorney discipline. During the trial, the court afforded Hawkins numerous procedural protections, including permitting him to retain counsel, respond to the petition, present evidence, participate in the proceedings, and testify in his own defense.

The Texas district court made the following factual findings after the trial. ¹ In August 1994, a Texas district court ordered Hawkins to represent D.S. in a misdemeanor marijuana-possession case. At that time, Hawkins's practice focused on estate planning and taxation, not criminal defense. Hawkins filed a motion requesting that the court discharge him as D.S.'s counsel because, in his view, he was not competent to represent D.S. in a criminal matter without violating the Texas Disciplinary Rules of Professional Conduct. Nonetheless, Hawkins filed a number of motions and made several court appearances in the criminal proceeding. When the State offered a plea deal, Hawkins forwarded the offer to D.S., but refused to discuss the State's offer with him. Without D.S.'s consent, Hawkins rejected the plea deal, explaining to the prosecutor that D.S. did not have sufficient funds to pay the fine included as part of the plea deal. Hawkins then filed a second motion requesting his discharge as D.S.'s counsel.

The court rejected Hawkins's motion following a hearing. The court found that Hawkins was competent to represent D.S. and issued an order that required Hawkins to continue his representation of D.S. in the criminal proceeding. Contrary to the court's order, Hawkins sent D.S. the following letter:

I am enclosing a copy of an order which I received today. Judge Fitz—Gerald has decided that you are not entitled to a lawyer.

Judge Fitz—Gerald swore an oath to God and to man that he would uphold the Constitution and laws of the United States and Texas. He has decided that you are not entitled to a lawyer.

Apparently you are only entitled to a lawyer if a cash pay-off is made. I will not make a cash pay-off to obtain judicial favoritism. I believe it is a crime. Apparently that means that you don't get a lawyer. That is peculiar.

I must know even less about the Constitution than I thought. I thought the United States Constitution applies to you. I thought you are entitled to a lawyer under the Constitution.

Although I am not permitted to represent you on the substance of this matter. I have done what I can do. I wish you well.

When Hawkins received notice of a docket call for the case, he did not attend or notify D.S. about it. At the docket call, the court scheduled D.S.'s case for trial, but neither Hawkins nor D.S. appeared for trial.

After D.S. failed to appear for trial, the district court clerk left a message for Hawkins regarding the possible revocation of D.S.'s bond. In response, Hawkins wrote to the court as follows:

Today my office received a call for [D.S.] I do not represent [D.S.] This is not news. The court knows it. The file in your office demonstrates that. I am not his courier. I do not work for him. He does not work for me. He is not at this office. He is not at this telephone number.

If you wish to contact [D.S.], do not call me or write me.

If you wish to contact [D.S.], contact [D.S.] [D.S.] is easy to contact. He responds to contacts. [D.S.] moved to Midland County so that he would be available when the court needed him. I will not act as an intermediary between the court and [D.S.] I will not pass messages back and forth. If you have any message for him it is up to you to contact him.

Several days later, the court notified D.S. that it intended to revoke his bond and had issued a warrant for his arrest. The district court clerk also attempted to notify Hawkins, but could not reach him. The next day, Hawkins wrote the following message to the court: “I was out of the office yesterday. Last evening I reviewed a telephone message ... relating to a hearing yesterday. As the Court knows, I do not represent [D.S.].” The court reinstated D.S.'s bond, but D.S. represented himself at the bond hearing. After the bond hearing, the court appointed new counsel to represent D.S. in the criminal matter.

The Texas district court concluded that Hawkins committed professional misconduct in his representation of D.S. by failing to communicate with D.S., to continue his representation of D.S. after the court ordered him to do so, and to take steps to protect D.S.'s interest after termination of the representation. The court imposed a 1–year suspension from the practice of law followed by a 3–year probationary period. The court also ordered Hawkins to pay $15,000 in attorney fees to the State Bar of Texas and to provide 15 hours per month of pro bono services to indigent persons during the probationary period, which he was required to verify by filing a monthly report of his pro bono activities with the State Bar of Texas. The Texas Court of Appeals affirmed. Hawkins v. Comm'n for Lawyer Discipline, 988 S.W.2d 927, 942 (Tex.App.1999).

In 2003, the State Bar of Texas moved for further discipline against Hawkins because he did not comply with the requirements of his suspension and probation. Specifically, Hawkins failed to pay the $15,000 in attorney fees and to demonstrate that he had complied with any of the pro bono requirements. The State Bar of Texas sent Hawkins a series of letters via both regular and certified mail inquiring about his failure to comply with the terms of his suspension, but Hawkins did not respond. The State Bar of Texas also gave Hawkins notice of the new disciplinary petition, but Hawkins's failure to respond led the Texas district court to conclude that Hawkins had defaulted on the matter. On September 23, 2003, the court disbarred Hawkins from the practice of law in Texas.

Other states have imposed reciprocal discipline on Hawkins. Following Hawkins's initial suspension in Texas, the North Dakota Disciplinary Board sought reciprocal discipline. In re Hawkins, 623 N.W.2d 431, 434 (N.D.2001). Hawkins contested the imposition of discipline and participated in the proceedings, but the North Dakota Supreme Court suspended him for 1 year and placed him on probation for an additional 3 years. Id. at 433.

The State Bar of Arizona also sought reciprocal discipline against Hawkins. It notified him through a 2001 letter requesting additional information about the Texas disciplinary proceedings. Following the notification, the Arizona disciplinary action did not resume until 2011, when the Supreme Court of Arizona imposed a 1–year suspension on Hawkins followed by 2 years of probation.²

Hawkins did not notify the Director of any of the disciplinary actions against him, which constitutes a violation of Rule 12(d) of the Minnesota Rules on Lawyers Professional Responsibility (RLPR). Instead, the State Bar of Arizona informed the Director in May 2011 about Arizona's disciplinary proceedings. The Director began his investigation into Hawkins's misconduct by sending Hawkins multiple letters notifying him of the investigation and requesting additional information. Hawkins did not respond to or cooperate in any way with the Director's investigation.

On August 17, 2011, the Director filed a petition for disciplinary action against Hawkins, seeking reciprocal discipline under Rule 12(d), RLPR. The Director unsuccessfully attempted to serve Hawkins personally at his last known address. The Director then applied to this court for an order suspending Hawkins under Rule 12(c), RLPR, which allows for the suspension of an attorney who cannot be located. On September 2, 2011, we suspended Hawkins and gave him 1 year in which to file a motion to vacate the suspension order. Hawkins did not move to vacate our order. On October 9, 2012, we deemed the allegations in the disciplinary petition admitted, pursuant to Rule 13(b), RLPR. In that same order, we directed Hawkins to serve and file a response explaining the reasons why we should not impose reciprocal discipline on him. We also asked the parties to submit written briefs and the Director to serve the order by publication. Hawkins failed to respond to any of our orders. The Director seeks to disbar Hawkins.

II.

The sole question presented by this case is whether we should impose reciprocal discipline on Hawkins. Under Rule 12(d), RLPR, the Director may petition for reciprocal discipline based on his knowledge, from any source, “that a lawyer licensed to practice in Minnesota has been publicly disciplined...