In re Lieber

• Decision Date: 31 July 2013
• Docket Number: No. A10–1705.,A10–1705.
• Citation: 834 N.W.2d 200
• Parties: In re Petition for Reinstatement to the Practice of Law of Daniel Martin LIEBER, a Minnesota Attorney, Registration No. 207731.
• Court: Minnesota Supreme Court

834 N.W.2d 200

In re Petition for Reinstatement to the Practice of Law of Daniel Martin LIEBER, a Minnesota Attorney, Registration No. 207731.

No. A10–1705.

Supreme Court of Minnesota.

July 31, 2013.

Syllabus by the Court

1. Although reinstatement to the practice of law after disbarment is rare, a disbarred attorney who proves by clear and convincing evidence that he has undergone a moral change sufficient for clients to have complete confidence in his competence and morality, and who complies with Rule 18, Rules on Lawyers Professional Responsibility, may be reinstated.

2. Having independently reviewed the entire record, we conclude that the attorney should be conditionally reinstated to the practice of law.

Eric T. Cooperstein, Law Office of Eric T. Cooperstein, PLLC, Minneapolis, MN, for petitioner.

Martin A. Cole, Director, Patrick R. Burns, First Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, MN, for respondent.

OPINION

PER CURIAM.

Petitioner Daniel Martin Lieber seeks reinstatement to the practice of law in the State of Minnesota pursuant to Rule 18, Rules on Lawyers Professional Responsibility (RLPR). Following a hearing, a panel of the Lawyers Professional Responsibility Board recommended that we reinstate Lieber, subject to an indefinite period of supervised probation and several conditions. We ordered a de novo hearing before a referee after expressing concerns with the panel's findings. Following that hearing, the referee issued findings of fact, conclusions of law, and a recommendation that we reinstate Lieber subject to various conditions. The Director of the Office of Lawyers Professional Responsibility initially deferred to the referee's recommendation, but changed his position after we ordered briefing and currently opposes Lieber's reinstatement. After independently reviewing the record, we conclude that Lieber has satisfied the requirements for reinstatement to the practice of law in Minnesota, subject to a period of supervised probation with conditions that we describe more fully below.

Lieber was admitted to the practice of law in Minnesota in May 1990. On May 2, 2005, a referee recommended that we disbarLieber for professional misconduct. The next day, Lieber executed the sale of his law practice to his employee, attorney Reino Paaso. One month later we suspended Lieber “from the practice of law pending final determination of the disciplinary proceeding[s]” and ordered Lieber to comply with Rule 26, RLPR, which requires a suspended attorney to give notice of that suspension to clients, opposing counsel, and any tribunal involved in pending proceedings.

Lieber stipulated to the referee's findings of fact, conclusions of law, and recommendation for disbarment, and we disbarred Lieber on June 30, 2005. In re Lieber, 699 N.W.2d 722, 722 (Minn.2005). More specifically, we disbarred Lieber for making “improper financial advances to clients,” charging those clients interest at a monthly rate of 15 percent, failing “to disclose his conflict of interest in the transactions,” making false statements under oath about his involvement in one of the transactions, ratifying “the false sworn testimony of one of his employees about one of the transactions,” temporarily misappropriating the funds of some clients in order to pay other clients, commingling personal and client funds in his trust account, and failing to maintain proper trust account books and records. Id.

In the years since we disbarred Lieber, he has continued to accumulate continuing legal education credits. In 2009 Lieber retook and passed the Minnesota Bar Examination, and in 2010 he retook and passed the Multistate Professional Responsibility Examination (MPRE). In September 2010 Lieber petitioned our court for reinstatement to the practice of law in Minnesota pursuant to Rule 18, RLPR. Following a hearing, a panel of the Lawyers Professional Responsibility Board made findings and recommended that we reinstate Lieber to the practice of law subject to an indefinite period of supervised probation with several conditions. The Director deferred to the panel's recommendation.

Because the panel's findings and recommendation raised several concerns with our court, we referred the matter to a referee to conduct a de novo hearing, and instructed the referee to give no deference to the panel's findings. In re Lieber, No. A10–1705, Order at 4 (Minn. filed Sept. 20, 2011). We noted that the panel had made few findings as to Lieber's “observed record of appropriate conduct since his disbarment or as to the evidence supporting moral change.” Id. at 3 (citation omitted) (internal quotation marks omitted). We expressed concern that the “evidentiary support for some of the panel's findings” relating to the sale of Lieber's law practice was “subject to question.” Id. We also noted that, although the panel made extensive findings concerning Lieber's alcoholism and his recovery, “[t]he referee who heard the disciplinary petition [leading to] Lieber's 2005 disbarment found that Lieber had failed to prove ... that alcoholism had caused his misconduct.” Id. Thus, we directed the referee to make the following specific findings: (1) “whether Lieber has undergone the requisite moral change [including] ... all evidence supporting and contrary to the existence of moral change”; (2) “Lieber's ‘observed record of appropriate conduct’ since his disbarment, as well as his state of mind and personal values, and how those things demonstrate that, if reinstated, clients could submit their affairs to Lieber with complete confidence,” and (3) “the circumstances of the sale of Lieber's law practice, the method by which the parties determined the price and other terms of the sale, and the parties' compliance since June 2005 with the stock purchase and associated agreements.” Id. at 5.

In June 2012, following a 2–day hearing, the referee submitted his findings of fact, conclusions of law, and recommendation. After several pages of factual findings—which we address in more detail below—the referee concluded that Lieber: (1) “recognizes the wrongfulness of his misconduct and has demonstrated remorse for his misconduct,” (2) “has the necessary competence to return to the practice of law,” and (3) proved “by clear and convincing evidence that he has undergone the requisite moral change to render him fit to be reinstated to the practice of law.” ¹ The referee recommended that we reinstate Lieber to the practice of law subject to certain conditions. Although the Director initially deferred to the referee's recommendation, the Director changed his position after we ordered briefing and currently opposes Lieber's reinstatement.

The primary question we must decide is whether Lieber has established that he is fit to be reinstated to the practice of law. In Minnesota, a disbarred attorney may petition our court for reinstatement to the practice of law. Rule 18(a), RLPR. “While reinstatement after disbarment is the rare exception to the rule, a disbarred attorney who meets the heavy burden of demonstrating ... rehabilitation will be reinstated.” In re Ramirez, 719 N.W.2d 920, 924 & n. 4 (Minn.2006) (observing that, from 1985 through 2006, we had disbarred 57 attorneys but had only reinstated 4 disbarred attorneys). We have explained that if disbarment were permanent in every case, Rule 18, RLPR, “would be a cruel hoax.” Id. at 924 (citation omitted) (internal quotation marks omitted).

“The attorney seeking reinstatement must prove by clear and convincing evidence that he [or she] has undergone a moral change such that clients can have complete confidence in his competence and morality.” In re Anderley, 696 N.W.2d 380, 384–85 (Minn.2005). In addition to proof of moral change, we consider: “(1) the attorney's recognition that [his or] her conduct was wrong; (2) the length of time since the misconduct and disbarment; (3) the seriousness of the original misconduct; (4) the attorney's physical or mental illness or pressures that are susceptible to correction; and (5) the attorney's intellectual competency to practice law.” ²In re Ramirez, 719 N.W.2d at 924–25. We independently review the record to determine whether an attorney should be reinstated to the practice of law and, while we consider the recommendation of a referee, that recommendation is not binding. See In re Anderley, 696 N.W.2d at 385. We nonetheless will defer to a referee's credibility assessments and uphold factual findings “if they have evidentiary support in the record and are not clearly erroneous.” See In re Holker, 765 N.W.2d 633, 637 (Minn.2009) (citation omitted) (internal quotation marks omitted).

A. Proof of Moral Change

The only factor that the Director disputes is whether Lieber has established the requisite moral change. Evidence of moral change must come from an observed record of appropriate conduct and the petitioner's state of mind and values. In re Kadrie, 602 N.W.2d 868, 870 (Minn.1999). In our September 2011 order we instructed the referee to develop the record and make findings on those particular factors. We address those factors below. We also evaluate the circumstances surrounding the sale of Lieber's law practice and address the Director's assertion that Lieber has not complied with the spirit of Rule 26, RLPR.

1. Lieber's Observed Record of Appropriate Conduct

In 2011 the panel made a number of findings with respect to the substantial progress Lieber has made in addressing his alcoholism and the negative character traits underlying his prior misconduct. More specifically, the panel found that Lieber discussed his alcoholism with the panel, acknowledged that greed and control drove his misconduct, described his participation in Alcoholics Anonymous, and presented several witnesses who testified that Lieber has changed his negative character traits. But we noted in our September 2011 order that those findings were inconclusive of Lieber's moral change in...