In re Jellinger

• Decision Date: 03 May 2001
• Docket Number: No. C3-00-1681.,C3-00-1681.
• Citation: 625 N.W.2d 143
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Richard T. JELLINGER, an Attorney at Law of the State of Minnesota.
• Court: Minnesota Supreme Court

625 N.W.2d 143

In re Petition for DISCIPLINARY ACTION AGAINST Richard T. JELLINGER, an Attorney at Law of the State of Minnesota.

No. C3-00-1681.

Supreme Court of Minnesota.

May 3, 2001.

Edward J. Cleary, Director, Eric T. Cooperstein, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, for appellants.

Richard T. Jellinger, pro se.

Heard, considered and decided by the court en banc.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition and supplementary petition for disciplinary action against respondent Richard T. Jellinger requesting indefinite suspension for respondent's failure to cooperate in the disciplinary investigations of overdrafts to his trust account, misuse of his trust account as an operating account and neglect of a client matter. Respondent did not answer and the allegations were deemed admitted pursuant to Rule 13(b), Rules on Lawyers Professional Responsibility (RLPR). Respondent appeared on his own behalf at the oral argument held for the purpose of imposing the appropriate discipline.

Respondent was admitted to practice law in Minnesota on May 13, 1982. Respondent was admonished nearly 13 years ago in July of 1988 for his failure to work diligently on a client matter and communicate with the client in violation of Rules 1.3 and 1.4, Minnesota Rules of Professional Conduct (MRPC). Respondent is engaged as a sole practitioner in general practice in the Anoka County area, practicing primarily in family law and criminal defense. Respondent alleged at oral argument to have a number of existing clients with pending legal matters that needed immediate attention. Respondent further alleged that a suspension would cause delay, disruption and additional costs to his existing clients.

On March 24, 2000, the Director received a notice of overdraft for respondent's client trust account. The Director opened an inquiry file and wrote to respondent twice requesting an explanation and documentation relating to the overdraft. Respondent sent a letter of explanation and the requested documentation on May 11, 2000. Respondent explained that the overdraft was caused by an unexpected debit on the account and stated that no client funds had been deposited in the account. Respondent paid his attorney registration fee in May of 2000 with a check from the trust account and falsely certified that he was properly maintaining his trust account books and records.

In response to the admission that respondent was using his trust account as an operating account, the Director initiated a disciplinary investigation and requested that respondent provide trust and business account records for the previous year. Respondent provided an explanation and some of the requested records on June 12, 2000. Along with his explanation, respondent acknowledged that client funds for a transaction respondent was handling had passed through the trust account between February 28 and March 2, 2000. Respondent indicated that he began using the trust account as an operating account in December 1999, after his business account was closed by the bank following a number of overdrafts. Respondent later acknowledged that use of the trust account as an operating account was improper.

The Director wrote to respondent on June 23, 2000, requesting further explanation and directing respondent to immediately cease using the trust account for business or personal expenses. Respondent made no reply. The Director received notices of nine additional overdrafts on the trust account from the bank during July, indicating that respondent continued to mismanage the account. The Director wrote to respondent three times in July regarding the overdrafts but received no response.

On August 3, 2000, the Director issued charges of unprofessional conduct. Respondent did not reply when served with the charges and failed to appear at the pre-hearing meeting. On September 20, 2000, the Director personally served respondent with a petition for disciplinary action requesting indefinite suspension from the practice of law and alleging misuse of a trust account and failure to cooperate. Respondent did not answer.

On August 23, 2000, the Director received a complaint regarding respondent from a client alleging that respondent neglected to serve the client's petition for divorce in a timely manner, resulting in adverse financial consequences for the client. The complaint and further investigation revealed that the client terminated representation and requested the return of the $1,000 retainer he paid to respondent. Respondent promised to mail a refund, but did not do so until the client confronted respondent in his office several weeks later. Respondent had not deposited the client's retainer in the trust account but instead signed the check over to a third party. Respondent repaid the client.

The Director immediately sent respondent a notice of investigation of the complaint and a request for an explanation, but respondent made no reply. The Director received notice of an overdraft on respondent's trust account on September 1, 2000, indicating continuing misuse of the trust account. The Director filed a supplementary petition for disciplinary action on October 26, 2000, alleging neglect and additional non-cooperation with the disciplinary investigation and again requesting indefinite suspension. Respondent failed to answer the supplementary petition.

We granted the Director's motion for summary relief on November 28, 2000, and ordered that the allegations in the petition be deemed admitted pursuant to Rule 13(b), RLPR. We directed the parties to submit written proposals regarding the appropriate discipline. The Director requested indefinite suspension. Respondent did not submit a proposal.

Respondent appeared before this court at oral argument. He expressed remorse and stated that he took responsibility for his misuse of the trust account and neglect of the client file. Respondent offered to cooperate with the Director and asked for the opportunity to complete his current client matters and rehabilitate himself under the supervision of an attorney while continuing to practice law. Respondent asserted that he was receiving medical treatment for depression.

Because the allegations against respondent have been deemed admitted, the only issue before us is the appropriate discipline to be imposed. The purpose of an attorney disciplinary proceeding is not to punish the attorney but to protect the public, the courts and the profession. In re Madsen, 426 N.W.2d 434, 435 (Minn. 1988). When determining the appropriate discipline for attorney misconduct, this court considers: "(1) the nature of the misconduct; (2) the cumulative weight of the rule violations; (3) the harm to the public; and (4) the harm to the legal profession." Id. at 436. Mitigating or aggravating circumstances relating to the misconduct may also be taken into consideration. In re Haugen, 543 N.W.2d 372, 375 (Minn.1996). Although we may look to cases involving similar misconduct as a guide in enforcing consistent discipline, "each case is unique and must be examined on its own facts." In re Dvorak, 554 N.W.2d 399, 403 (Minn.1996).

Although respondent cooperated with the investigation at first, he failed to cooperate for several months before his appearance at oral argument. By respondent's own admission, he did not read or respond to the Director's inquiries, he commingled client funds with operating funds in the trust account, neglected a client matter, failed to place a client's retainer in trust, and repaid the client with funds from a personal account.

Trust account violations and false certification of compliance with the rules governing trust account maintenance constitute serious misconduct, but trust account violations do not always warrant suspension. E.g., In re Haefele, 508 N.W.2d 780, 780-81 (Minn.1993)

. Similarly, while failure to cooperate in a disciplinary investigation is grounds for discipline, suspension is not always warranted. E.g., In re Stanbury, 614 N.W.2d 209, 213-14 (Minn. 2000).

Respondent has engaged in misconduct over a period of months. However, respondent's statements of remorse, his renewed commitment to professional and ethical duties, and his offer to cooperate fully with the Director in rehabilitating himself appear sincere. Respondent admitted to the one instance of commingling client funds between February 28 and March 2, 2000, and there is no allegation that the misconduct harmed a client and therefore no restitution was needed. Respondent's failure to place a retainer in trust was serious misconduct, but we note that respondent refunded the client's money with his own personal funds. Respondent committed a series of trust account violations and compounded his misconduct by failing to cooperate in the disciplinary investigation that could have assisted him in returning to proper financial procedures, but it appears that respondent's misconduct was primarily driven by recent escalating difficulty with his finances rather than a history of such misconduct. Further, respondent has practiced law for over 18 years and the only disciplinary matter on his record occurred nearly 13 years ago. Respondent also recognized the need for continuing medical-psychological treatment.

The Director conceded at oral argument that but for respondent's failure to cooperate, indefinite suspension may not be an appropriate sanction for the other instances of misconduct in this case. While in the past it is true that we have used suspension as a sanction for trust account violations or non-cooperation, those acts of misconduct have generally been accompanied by other aggravating factors. For example, in In re Engel, 538 N.W.2d 906, 906-07 (Minn.1995), the attorney had a prior disciplinary history and, during the course of the investigation into allegations of client neglect, was suspended...