In re McCloud, A20-0089

• Decision Date: 24 February 2021
• Docket Number: A20-0089
• Parties: IN RE Petition for DISCIPLINARY ACTION AGAINST Samuel A. MCCLOUD, a Minnesota Attorney, Registration No. 0069693.
• Court: Minnesota Supreme Court

955 N.W.2d 270

IN RE Petition for DISCIPLINARY ACTION AGAINST Samuel A. MCCLOUD, a Minnesota Attorney, Registration No. 0069693.

A20-0089

Supreme Court of Minnesota.

Filed: February 24, 2021

Susan M. Humiston, Director, Nicole S. Frank, Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

Samuel A. McCloud, Cambridge, Minnesota, pro se.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Samuel A. McCloud. We appointed a referee and, after holding an evidentiary hearing, the referee concluded that McCloud committed professional misconduct by instructing his client P.G. not to attend a pretrial hearing regarding his felony criminal charge, failing to request a continuance or otherwise communicate with the court regarding his planned absences from two hearings, and failing to appear at these hearings. The referee recommended a 60-day suspension with the requirement that McCloud petition for reinstatement under Rule 18 of the Rules on Lawyers Professional Responsibility ("RLPR"). McCloud challenges certain of the referee's factual findings and legal conclusions. He also urges us to reject the referee's recommended discipline. After review of the record, we conclude that, with the exception of one legal conclusion, the referee did not clearly err. We further conclude that the appropriate discipline for McCloud's misconduct is a 60-day suspension, with reinstatement by affidavit under Rule 18(f), RLPR.

FACTS

McCloud was admitted to practice law in 1977 and has practiced mainly in the area of criminal defense. McCloud's 40-year legal career includes numerous disciplinary violations. McCloud has received eight admonitions, two of which involved failure to appear at court hearings in 1986 and 2005, has been subject to a private probation, and has been publicly reprimanded. In addition, we indefinitely suspended McCloud in 2013 for his federal tax evasion conviction,¹ In re McCloud , 826 N.W.2d 529, 529 (Minn. 2013) (order), and we reinstated him in 2015 subject to a 5-year probation period, In re McCloud , No. A13-1381, Order at 2–3 (Minn. filed Feb. 3, 2015). McCloud was on this disciplinary probation when he committed the conduct underlying the current matter.

This petition for discipline arises out of McCloud's representation of a criminal defendant, P.G., from 2018 to 2019.² The State charged P.G. with two counts of issuing a dishonored check over $500. P.G.’s alleged victim also sued P.G. in a civil action. The prosecutor agreed to a continuance for dismissal of the criminal case if P.G. settled with the victim in the civil suit. Accordingly, McCloud began working with the victim's attorney to negotiate a settlement.

McCloud made his first appearance in the criminal matter on May 10, 2018. At this hearing, McCloud received notice of a pretrial hearing scheduled for December 4, 2018. On November 30, 2018, the prosecutor moved for a continuance of the December 4 pretrial hearing. The district court denied the motion on December 3.

McCloud and P.G. did not appear at the December 4 pretrial hearing. The district court rescheduled the hearing for March 29, 2019, and mailed McCloud a notice of the new date. The notice stated "You are expected to appear fully prepared." McCloud also received notice of an April 8, 2019, trial date.

The prosecutor e-mailed McCloud and the victim's attorney multiple times in March 2019, asking for updates on the status of settlement discussions in the civil case. McCloud responded on March 22, stating they were still working on the settlement.

McCloud called the prosecutor's office on March 28, 2019, spoke to an assistant, and asked for a continuance of the March 29 pretrial hearing. The prosecutor told her assistant that she did not object but that McCloud would need to contact the court directly. The prosecutor's assistant relayed this message to McCloud.

McCloud failed to contact the district court directly and failed to appear at the March 29 pretrial hearing. He also instructed P.G. not to appear. The prosecutor informed the court that McCloud had called her the day before and the parties were close to a settlement of the civil case. The prosecutor relayed McCloud's request that the April 8 trial date remain only as a status hearing because McCloud did not anticipate going to trial. The prosecutor also informed the court that she would not prepare for trial. The court responded, "I know."

Immediately after the March 29 hearing, the prosecutor e-mailed McCloud and the victim's attorney, stating that the district court was keeping the case on for trial on April 8. She asked that the settlement papers be sent to her by the next Tuesday. McCloud responded the same day, "I apologize. I did not realize that I would have to make contact with the Court. We will get it done." Also on March 29, the court's law clerk e-mailed all parties who had trials scheduled for the week of April 8, including McCloud and the prosecutor. The end of this e-mail stated:

[The prosecutor] indicated [McCloud] was contacting the court. No such communication has been received and [neither McCloud] nor his client were present at pre-trial. As such, per [the district court], and as discussed on record, this matter remains on for trial beginning 4/8/19. [The prosecutor's] comments to the court are noted.

McCloud received the e-mail but did not respond. The law clerk sent a similar e-mail on April 4; again, McCloud received the e-mail but did not respond.³

McCloud failed to appear on April 8. P.G. arrived alone and tried to talk to the prosecutor, but the prosecutor declined to speak with him because he was a represented party. McCloud called the prosecutor shortly before the hearing and advised that they needed more time to finalize the settlement and that he could be available by phone if needed.⁴

The prosecutor relayed McCloud's message to the district court. The court expressed relief to see P.G. in court on April 8, and stated that she would have issued a warrant for his arrest if he failed to appear.

The district court did issue an order to show cause, requiring McCloud to explain his failure to appear on March 29 and April 8. The hearing to show cause was scheduled for April 24.⁵ McCloud requested to appear by phone because he lives 3 hours from the court. The court denied the request, indicating that McCloud needed to appear in person so that the judge could assess his credibility.

At the hearing to show cause, McCloud explained that he relied on the prosecutor to relay information to the court. He said that he failed to appear because the settlement in the civil case was not finalized and it is a 3-hour drive to the courthouse. From the bench, the district court sanctioned McCloud and ordered him to pay $2,000. Later in the hearing, the court accepted the continuance for dismissal of P.G.’s criminal charges. And after the hearing, the court rescinded the verbal sanction in a written contempt order. The order was submitted as a complaint to the Office of Lawyers Professional Responsibility.

We then referred the matter to a referee. After hearing testimony from the district court judge, the prosecutor, the prosecutor's assistant, and McCloud himself, the referee made factual findings consistent with the facts we describe above. The referee concluded that McCloud violated Minn. R. Prof. Conduct 1.1,⁶ 3.4(c),⁷ and 8.4(d),⁸ and the terms of his probation. The referee found that McCloud's failure to appear or communicate with the district court caused confusion and wasted judicial resources by requiring the district court judge to prepare for trial, confer with her mentor judge, and research appropriate sanctions. The referee found four aggravating factors and no mitigating factors. The referee recommended McCloud be indefinitely suspended with no right to petition for reinstatement for a minimum of 60 days and that he petition for reinstatement under Rule 18, RLPR.

ANALYSIS

McCloud disputes several of the referee's findings of fact, conclusions of law, and recommendations for discipline. Because McCloud requested a transcript of the hearing, the referee's findings and conclusions are not conclusive. Rule 14(e), RLPR. We "give great deference to the referee's findings and conclusions and will uphold them if they have evidentiary support in the record and are not clearly erroneous." In re Paul , 809 N.W.2d 693, 702 (Minn. 2012). A referee's findings and conclusions are clearly erroneous when they leave us "with the definite and firm conviction that a mistake has been made." In re Albrecht , 779 N.W.2d 530, 535 (Minn. 2010) (citation omitted) (internal quotation marks omitted).

I.

We begin by addressing McCloud's argument that the referee's findings of fact are clearly erroneous. First, McCloud disputes the referee's finding that he did not contact the court after failing to attend the December 4 hearing. McCloud states that he was never told about the denial of the prosecutor's continuance motion. Our review of the record confirms the referee's finding. At the disciplinary hearing, McCloud himself testified that he did not contact the court after the December 4 hearing. Moreover, McCloud is not truly disputing the referee's finding of fact; he is merely providing an explanation for why he failed to appear. This factual finding is therefore not clearly erroneous.

Second, McCloud objects to the referee's finding that he did not communicate with the district court regarding the March 29 or April 8 hearings. McCloud claims that he did so through the prosecutor. But McCloud admits that he failed to directly communicate with the court. Accordingly, we cannot conclude that the referee's finding is clearly erroneous.

Third, McCloud disputes the referee's finding regarding the harm caused by his misconduct. McCloud claims that the district court's waste of judicial resources was "of the Court's...