In re Mose
| Docket Number | A20-0198 |
| Decision Date | 12 July 2023 |
| Parties | In re Petition for Reinstatement of William G. Mose, a Minnesota Attorney, Registration No. 125659. |
| Court | Minnesota Supreme Court |
Original Jurisdiction, Office of Appellate Courts
Edward F. Kautzer, Ruvelson & Kautzer, Ltd., Roseville Minnesota; and Daniel S. Kufus, Kufus Law, LLC, Roseville Minnesota, for petitioner.
Susan M. Humiston, Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for respondent.
A suspended attorney who proves that he has undergone the requisite moral change but fails to establish that he has the intellectual competence to practice law is not entitled to reinstatement, notwithstanding the attorney's agreement to resign his license upon reinstatement.
Petition denied. Considered and decided by the court without oral argument.
This petition presents a question of first impression: does our traditional test for attorney reinstatement apply when an attorney agrees that upon reinstatement, he will resign his law license and not apply for admission or re-admission to practice in any jurisdiction? We hold that under these circumstances, it does. Applying our traditional reinstatement test, we conclude that although petitioner William G. Mose has proven the requisite moral change for reinstatement, he has not demonstrated that he has the intellectual competence to practice law. We therefore deny the petition for reinstatement.
Mose was admitted to the practice of law in Minnesota in 1980. But Mose did not begin practicing law until 1984, when he opened a solo law practice in the Twin Cities area. In 1986, he moved his law practice to the Pequot Lakes area, focusing primarily on family law. In 1989, Mose moved his practice back to the Twin Cities area.
Mose engaged in the active practice of law for only 5 years-1984 to 1985, and 1986 to 1990. In those 5 years, the Director of the Office of Lawyers Professional Responsibility received 19 complaints against Mose, all of which resulted in discipline.
In 1988, the Director received three complaints against Mose involving incompetence, client neglect, and failing to follow court orders. On July 19, 1989, based on a stipulation for discipline, we publicly reprimanded Mose and placed him on supervised probation for 2 years, subject to several conditions, including completion of a trial advocacy course. In re Mose (Mose I), 443 N.W.2d 191, 191-92 (Minn. 1989) (order). Our order provided for Mose's immediate suspension if he failed to comply with those conditions. Id. at 192.
In 1990, the Director petitioned to revoke Mose's probation for failing to comply with probation conditions and for additional client-related misconduct involving incompetence failure to adequately communicate with clients, and false statements to clients. On July 16, 1990, we indefinitely suspended Mose from the practice of law for failing to comply with the terms of probation. In re Mose (Mose II), 458 N.W.2d 100, 100 (Minn. 1990) (order).
While Mose was suspended, the Director filed a petition alleging that Mose committed additional misconduct in eight more client matters. The allegations involved incompetence, client neglect, lack of diligence, false statements to clients, failure to adequately communicate with clients, failure to account for or refund unearned retainer fees, failure to secure client consent before transferring client files to substitute counsel, failure to comply with the requirements of Rule 26, Rules on Lawyers Professional Responsibility (RLPR), and failure to cooperate with the Director's investigations.
On May 20, 1991, based on a stipulation for discipline, we suspended Mose for a minimum of 5 years, retroactive to the date of his original suspension. In re Mose (Mose III), 470 N.W.2d 109, 109-10 (Minn. 1991) (order). Reinstatement was conditioned upon, among other things: successful completion of the entire bar exam; full compliance with the terms of probation set forth in our July 1989 order; and refunding certain unearned client retainers. Id. at 110.
In addition to the public reprimand and suspensions detailed above, Mose received four admonitions between June of 1989 and August of 1990 for client neglect and failure to adequately communicate with clients.
In 2007, Mose filed a petition for reinstatement to the practice of law; the Director opposed the petition. We concluded that Mose should not be reinstated to the practice of law because Mose failed to (1) satisfy several of the previous conditions of reinstatement, (2) prove that he had undergone the requisite moral change, and (3) prove that he is competent to practice law. In re Mose (Mose IV), 754 N.W.2d 357, 359 (Minn. 2008).
In 2012, Mose again filed a petition for reinstatement; the Director again opposed the petition. We once more concluded that Mose should not be reinstated to the practice of law. In re Mose (Mose V), 843 N.W.2d 570, 577 (Minn. 2014). First, we observed that Mose had failed to complete a trial advocacy course as required by a condition of his suspension. Id. at 574.
With respect to moral change, we concluded that Mose "has not established that he has changed either his conduct or his state of mind that resulted in his misconduct." Id. at 575. We noted the significant length of time that Mose had taken before trying to locate his former clients to make restitution. Id. We also noted that Mose had continued to demonstrate neglect and lack of diligence in his volunteer and student-teaching positions. Id. at 576. Additionally, we observed that Mose had no "deliberate plan to return to the practice of law [nor] systems in place to avoid future misconduct." Id.
Finally, we concluded that Mose had still not demonstrated his intellectual competence to re-enter the practice of law. Despite passing the bar exam an additional time (the third since his suspension), "[w]e conclude[d] that when an attorney is suspended for incompetence and lack of diligence, and has not practiced law for an extended period of time, the attorney must not only pass the bar examination, but also demonstrate legal reasoning and case management skills through paid- or volunteer-work experience." Id. at 577 &n.1. Although we noted that "[a] petitioner need not work at a law firm or as a paralegal to prove he or she is competent to practice law," id. at 576, Mose had not shown any work experience that required legal reasoning and case management:
Mose has neither worked in a law-related field nor demonstrated through his part-time volunteer work that he has the intellectual competence to practice law.... Since his suspension 23 years ago, Mose has not had any full-time employment. Instead, he has worked on average 25 hours per week officiating sporting events, a job he retired from in 2013. Given the length of time since Mose has practiced law, his lack of legal employment since his suspension, and the type of work he performed as a volunteer, the panel's conclusion that Mose lacks the competence to practice law is supported by the record.
Id. at 577.[1]
Mose filed his current petition for reinstatement in February 2020. The matter was investigated by the Office of Lawyers Professional Responsibility, and the Director prepared her report on the petition.
In her report, the Director indicated that Mose has stated that he does not intend to practice law. Describing the case as "unique," the Director concluded that Mose "has not established his intellectual competency to practice law," and that his last passage of the bar examination was in 2010, and therefore not current.[2] However, the Director recognized that "those facts, while conditions for reinstatement, may be appropriate for a Court waiver since petitioner does not plan to practice law."
The Director also noted that Mose had "taken numerous and specific steps indicative of a specific plan to work in a law adjacent field," namely his desire to become an alternative dispute resolution (ADR) neutral. The Director explained that Mose plans to provide mediation services to parents who are having trouble with their children following a divorce.
Although the Director opined that she had "not yet seen the moral change required of a petitioner," she acknowledged that "[i]f petitioner is able to meet his burden" to demonstrate moral change, "the Director would not challenge that determination if petitioner's readmission was also conditioned on the immediate resignation of his license . . . and provided the Court is willing to waive the requirements of a current bar exam score and competence to practice law."
A panel of the Lawyers Professional Responsibility Board held a hearing on October 18, 2021. At the hearing, Mose informed the panel that he sought reinstatement in order to resign from the practice of law and practice as an ADR neutral providing early neutral evaluation services. Mose explained that he wished to be reinstated and resign so that he could be placed on the Minnesota Judicial Branch's roster of qualified neutrals, which he is prohibited from joining with a suspended law license. See Minn. Gen. R. Prac. 114.12, subd. 2(a) ().
The panel received 37 exhibits and heard the testimony of Dr Paul Reitman (a forensic psychologist), Janet Goehle (an ADR practitioner), and Mose himself. Dr. Reitman testified that he diagnosed Mose with generalized anxiety disorder and social phobia. Dr. Reitman attributed Mose's prior misconduct to his mental health, explaining, ...
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