In re Nickitas
| Decision Date | 11 January 2023 |
| Docket Number | A20-1529 |
| Parties | IN RE Petition for DISCIPLINARY ACTION AGAINST Peter James NICKITAS, a Minnesota Attorney, Registration No. 0212313. |
| Court | Minnesota Supreme Court |
Susan M. Humiston, Director, Nicole S. Frank, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.
Mitchell R. Hadler, Law Office of Mitchell R. Hadler, Minneapolis, Minnesota, for respondent.
The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition for disciplinary action against respondent Peter James Nickitas, alleging that Nickitas violated the Minnesota Rules of Professional Conduct by (1) failing to properly apply for in forma pauperis status for his client; (2) using profane and abusive language while communicating with court staff; (3) making false and disparaging comments about a judge; and (4) attempting to exert improper pressure on a judge.
Following a hearing, the referee concluded that Nickitas's conduct violated Minnesota Rules of Professional Conduct 1.1,1 1.3,2 4.4(a),3 8.2(a),4 and 8.4(d).5 The referee found that Nickitas's history of prior discipline for similar conduct, his long experience as a lawyer, and his lack of remorse for his misconduct were aggravating factors. The referee did not find any mitigating factors, but he did state that Nickitas's current work with legal aid was a factor to consider when fashioning discipline.
The referee recommended that Nickitas be suspended from law indefinitely, with no right to petition for reinstatement under Rule 18 until he fulfilled a minimum suspension period of 120 days. The referee proposed that, if practicable, Nickitas should serve his suspension in a series of four discrete 30-day suspensions separated by limited interim periods when he could practice law and represent his legal aid clients. Both parties agree that the staggered suspension is not practical and we concur. We conclude that the referee's recommended discipline of a minimum 120-day suspension with a requirement that Nickitas petition for reinstatement is the appropriate sanction.
Nickitas was admitted to practice law in Minnesota in 1990. He has been subject to three prior admonishments and two suspensions. In 1993, Nickitas was admonished for disclosing information related to a former client to the former client's disadvantage. In 1999, Nickitas was admonished again for failing to handle a client's matter with adequate diligence and promptness by failing to send notice of a federal tort claim in a timely manner and failing to pursue filing suit against an entity. In 2003, Nickitas was admonished a third time for directing a sexist epithet to a self-represented opposing party. In 2005, we suspended Nickitas for 90 days for engaging in a consensual sexual relationship with a client; entering into multiple business transactions with the client—including a $9,900 interest-free loan—without making a written disclosure of the potential conflicts and without advising the client to obtain independent counsel; and for failing to file a timely appeal of a final judgment in a matter. In re Nickitas , 702 N.W.2d 727, 728 (Minn. 2005). Lastly, in 2013, we suspended Nickitas for 30 days, followed by 2 years of unsupervised probation, for undertaking representation despite a conflict of interest, engaging in inappropriate conduct toward opposing counsel, and bringing a claim in bad faith and for an improper purpose. In re Nickitas , 830 N.W.2d 162, 162 (Minn. 2013).
The current petition for disciplinary action arises from Nickitas's representation of H.B. and L.A. prior to his current employment with a legal aid office and his interactions with court staff and judges related to those matters.
In 2016, H.B. filed a suit pro se in Ramsey County and obtained in forma pauperis (IFP) status. The IFP order required H.B. to renew his IFP status annually. H.B. did not renew his status in 2017. On April 6, 2017, after the time to renew his IFP status passed, Nickitas filed a notice of appearance as H.B.’s counsel.
In May 2018, Nickitas sought to address H.B.’s lapsed IFP status. Nickitas called Ramsey County court administration and spoke with a court operations supervisor to discuss filing a supplemental IFP order for the matter. The court operations supervisor testified that he likely informed Nickitas that a new IFP application would need to be submitted on H.B.’s behalf before the court could consider an order to proceed IFP. During the phone call, Nickitas became belligerent and used obscene and offensive language while describing his frustrations with the court's process for considering and granting IFP applications and the court's apparent unwillingness to simply approve the supplemental order to proceed IFP.
Nickitas demanded that the court operations supervisor speak to the judge assigned to the case. In response, the court operations supervisor contacted the judge's law clerk, who confirmed that a new application to proceed IFP must be filed on H.B.’s behalf prior to the court considering a new order to proceed IFP. When the court operations supervisor called Nickitas to inform him, Nickitas again used offensive language and abruptly ended the conversation. Nickitas ultimately filed a supplemental application for proceeding IFP on H.B.’s behalf, which the court granted.
On March 26, 2019, Nickitas filed a lawsuit on behalf of his client, L.A. He had served the complaint on the defendant nearly a year before and the 1-year deadline for filing the action was soon approaching. See Minn. R. Civ. P. 5.04(a) ().
The same day, Nickitas filed an application on L.A.’s behalf seeking to proceed IFP. L.A. asked Nickitas to submit an incomplete IFP application, answering only one question regarding means-tested public assistance. L.A. stated that he qualified for medical assistance and left the answers to other questions of the form blank. L.A. did not want to provide all of the information on the IFP form because he had not done so on other IFP forms that previous courts had granted.
Nickitas knew that the IFP application process in Ramsey County required more information than just whether an applicant received means-tested public assistance. He told L.A. that information; however, he did not advise L.A. of the importance of having the IFP application approved in a timely manner due to the 1-year filing deadline. L.A. told Nickitas to file the incomplete application. Nickitas did so. He included with the IFP application a single informal email, dated March 26, 2019, between Nickitas and a "financial worker at Ramsey county [sic] Human Services." The email was not official documentation that L.A. received medical assistance.
A district court judge (Judge) reviewed L.A.’s IFP application. On March 28, 2019, the Judge denied L.A.’s IFP request because the form had not been completed in its entirety and failed to provide sufficient information. The Judge also questioned the legitimacy of the limited evidentiary support for L.A.’s IFP application. The order denying L.A.’s IFP application allowed L.A. until April 11, 2019, to submit additional evidence for the court to consider. Both Nickitas and L.A. testified that neither of them received the March 28, 2019, order by mail or e-service. Neither Nickitas nor L.A. submitted additional evidence on L.A.’s behalf by the deadline.
On or about April 12, 2019, Nickitas called the courthouse to inquire about the status of L.A.’s IFP application and spoke with the civil division lead worker. Nickitas immediately, and without provocation, began speaking to the civil division lead worker in a "heated tone." While on the phone with the civil division lead worker, Nickitas screamed loudly and used the word "fuck" multiple times to express his discontent over the court's denial of L.A.’s IFP application. The civil division lead worker testified that she attempted to explain to Nickitas that a judge made the decision to grant or deny an IFP application, but Nickitas repeatedly and loudly interrupted her, in effect preventing her from speaking. While cutting off her attempts to obtain and provide information, Nickitas told her to "shut up" because he wanted her to listen to him and he believed she was talking over him. Nickitas also stated, "You people do not know what the fuck you are doing."
Despite the civil division lead worker's calm manner, Nickitas spoke loudly enough that her supervisor, who was seated approximately 10 feet away, heard Nickitas's voice coming from the phone. The supervisor understood, even from that distance, that Nickitas's tone and volume was offensive and abusive. When prompted to rate Nickitas's call on a scale with zero or one as the least intense and ten as the most intense, the civil division lead worker emphatically testified that she categorized the call as a ten and stated that Nickitas's call was "the worst one ever."
The supervisor had the call transferred to him. Nickitas's belligerent and profane statements continued. Nickitas asked which judge made the determination. When he learned which Judge had made the determination, Nickitas began using disparaging, obscene, and profane language toward the Judge, stating, "She doesn't even know what the fuck she's doing" and "she probably barely passed the fucking bar." Nickitas also stated that he should report the Judge to the "board," which the supervisor understood to be the board governing judicial conduct and ethics.
Nickitas insisted that the supervisor immediately address his concerns, stating, "I don't give a shit about the bureaucratic bullshit, I want something done right now." The supervisor calmly and politely informed Nickitas that he would reach out to the Judge and he would then contact Nickitas with an update. After concluding the...
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