IN RE PANEL CASE NO. 17289

• Decision Date: 16 October 2003
• Docket Number: No. A03-0141.,A03-0141.
• Citation: 669 N.W.2d 898
• Parties: In re PANEL CASE NO. 17289.
• Court: Minnesota Supreme Court

669 N.W.2d 898

In re PANEL CASE NO. 17289.

No. A03-0141.

Supreme Court of Minnesota.

October 16, 2003.

Pro se, John E. Mack, Mack & Daby P.A., New London, MN, for Appellant.

Kenneth L. Jorgensen, Director Cassie Hanson, Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Respondent.

Considered and decided by the court en banc without oral argument.

OPINION

PER CURIAM.

Appellant was issued an admonition by the Director of the Office of Professional Responsibility for submitting frivolous claims on his client's behalf in violation of Minn. R. Prof. Conduct 3.1. An admonition is a private sanction for violations of lawyer ethical rules. A panel of the Lawyers Board on Professional Responsibility affirmed the admonition. Appellant appeals to this court to overturn that decision. We affirm the admonition.

Appellant was admitted to the practice of law in the State of Minnesota on October 17, 1969, and is currently engaged in the practice of law here. Appellant has a history of disciplinary actions. In 1985, he was admonished for a conflict of interest, failure to deposit client funds in his trust account, and failure to promptly deliver client property. In 1991, he was indefinitely suspended from the practice of law for numerous ethics violations, including misappropriating funds from his client trust account, improperly permitting nonlawyers to withdraw funds from the account, depositing personal funds into the trust account to avoid paying withholding taxes, falsely certifying that he kept proper trust books, and knowingly serving a client's false answer to an interrogatory. In 1994, his suspension was continued because he failed to take reasonable remedial measures after learning that his client had testified falsely in a deposition. Appellant was reinstated to the practice of law in 1996. In 2000, he was again admonished, this time for making unsupported allegations against opposing counsel.

Because the admonition subject to review here is directly related to a civil action in which appellant served as counsel, a detailed factual summary of the civil case is in order. The admonition is the result of appellant's conduct in a civil action in which he represented M.G.D., who alleged assault and defamation by H.L.B. The action arose out of a burglary incident at H.L.B.'s cabin.

On September 14, 1997, at approximately 5:00 a.m., M.G.D., who was then a minor, drove two male passengers to a cabin owned by H.L.B. The two passengers intended to break into the cabin, promising M.G.D. they would give him half of anything they took from it. M.G.D. waited in his car while the two passengers pried open a window screen and entered the cabin. Approximately two to three minutes later, the passengers came running out of the cabin toward the car. They told M.G.D. that alarms were going off and they should leave. According to M.G.D., the passengers did not have any property in their possession when they ran out of the cabin. At the same time, H.L.B., who lived only two miles away from the cabin, received a call from his alarm company alerting him that there was a possible break-in at the cabin. H.L.B. requested that the police be called and then drove to the cabin. Upon arriving at the cabin, H.L.B. saw M.G.D.'s car parked in front of the cabin. H.L.B. stopped his car on the road, attempting to block the road with his car. H.L.B. then got out of his car, taking with him an uncased shotgun. The shotgun was loaded with shells used by H.L.B. for goose hunting.

H.L.B. confronted M.G.D. and his two passengers, who by this time had left the cabin and returned to the car. H.L.B. attempted to detain the suspected burglars until the police arrived, but M.G.D. started to drive his car around H.L.B., at which point H.L.B., who was only a few feet away from M.G.D., shot at the left rear tire of M.G.D.'s car. M.G.D. stopped his car and together with the two passengers got out of the car and started yelling at H.L.B. The four individuals yelled at each other for approximately 30 seconds. After H.L.B. told M.G.D. and the two passengers that the police were on their way, the two passengers ran away from the scene. M.G.D. remained at the scene with his car. A short time later, another car approached on the road. H.L.B., wishing to move his car so the other car could pass by, got into his car, set down his shotgun, and began to move his car to the side of the road. Upon seeing H.L.B. move his car, M.G.D. got into his car and sped away from the cabin. As M.G.D. drove away, H.L.B. fired at least two additional shotgun blasts at M.G.D.'s car. H.L.B. then got into his car and chased M.G.D., but soon gave up the chase.

Upon arriving at the scene, the police examined the cabin for missing items. The police concluded that certain items had been removed from an upstairs cabinet. H.L.B. told the police that a TV and VCR were missing, and subsequently provided receipts for the purchase of these items.

The next day, a local police officer responded to a call from M.G.D.'s parents' residence, informing the officer that M.G.D. may have been involved in the incident. The officer questioned M.G.D. and examined his car. The officer observed that the left-rear hubcap was missing and concluded that it had probably been shot off by a shotgun blast. The officer also observed that there was a small hole on a valance on the rear of the car, possibly made by BB's that had struck the car. This was the extent of the damage observed by the officer.

M.G.D. was charged with Liabilities for Crimes of Another-Second Degree Burglary, in violation of Minn.Stat. §§ 609.05 and 609.582, subd. 2(a) (2002). On April 2, 1998, M.G.D. pleaded guilty to the charge. In a claim for restitution, H.L.B. provided evidence that a TV and VCR were stolen from his cabin. However, M.G.D. continued to insist that neither he nor his passengers took anything from the cabin. In the restitution order, the district court ordered M.G.D. to pay $250 to H.L.B., representing approximately one-third of the value of the stolen property and damage suffered by H.L.B. as a result of the burglary, as well as the amount of H.L.B.'s deductible for insurance on his cabin. Based on the same incident, H.L.B. was charged with and pleaded guilty to possession of an uncased firearm. M.G.D.'s two passengers were never charged.

Later that same month, after paying the $250 in restitution, M.G.D. and his mother approached appellant to discuss the matter with him. Appellant agreed to represent M.G.D. in a civil action against H.L.B. M.G.D. told appellant that the shots fired by H.L.B. had hit the entire trunk area of his car. Appellant was given papers related to the case, and indicated to M.G.D. that there was no doubt he was guilty of burglary. Appellant did not view the car before submitting the complaint, though he claims he was told at this point that the car had been destroyed.

A few days after meeting with M.G.D., appellant commenced a civil action on M.G.D.'s behalf against H.L.B. Count I of the complaint alleged that [H.L.B.] assaulted M.G.D., stating in part: "In the course of said assault, defendant H.L.B. shot bullets into the vehicle well above the tire-line, including the entire back trunk of the car." Count II of the complaint alleged defamation by H.L.B. and reads as follows:

I.

After the aforesaid incident, at various times and places, defendant claimed that plaintiff had stolen various items of his personal property.

II.

Defendant further made false statements to police and prosecutorial authorities, claiming that plaintiff had stolen property of great value from him, knowing that plaintiff had not stolen such item.

III.

Defendant abused process by making the aforesaid statements to the police and prosecutorial authorities.

IV.

Defendant maliciously caused plaintiff to be prosecuted by making the aforesaid statements to the police and prosecutorial authorities.

V.

As a result of such false and defamatory statements to police and prosecutorial authorities and others, plaintiff suffered a loss of reputation and has been forced to expend considerable sums of money to defend himself and clear his name, and has undergone stress and emotional suffering.

H.L.B. answered the complaint and filed a counterclaim against M.G.D. H.L.B. generally denied any liability, making reference to the guilty plea entered by M.G.D. for aiding and abetting burglary. At a pretrial conference in July 1999, the district court inquired about the merits of the defamation claim, but nevertheless the case proceeded to trial.

A jury trial was held December 14-15, 1999. Appellant attempted to submit as evidence pictures that he had recently taken of M.G.D.'s car. The district court refused to admit the pictures into evidence because of their late disclosure and because they had been taken over two years after the incident. The court noted that the photographs did not reveal any visible bullet holes or dents. Appellant presented no evidence in support of the defamation claim. At the close of evidence, appellant successfully sought to amend the complaint to drop the defamation claim and to add a claim of battery. The jury returned a verdict, finding that (1) H.L.B. did not assault M.G.D.; (2) H.L.B. did commit a battery on M.G.D.; (3) M.G.D. did not assault H.L.B.; and (4) M.G.D. did take or cause loss of property owned by H.L.B. or did aid and abet others in doing so. The jury found that $20 was fair and adequate compensation for the battery, and also awarded $250 to H.L.B., which the jury understood to be the amount already paid by M.G.D. in restitution. The court then ordered H.L.B. to pay M.G.D. $20.

Following the trial, appellant made motions on behalf of M.G.D. for a new trial and additur. H.L.B. then made a motion for sanctions under Rule 11 seeking reimbursement for attorney fees and costs. The district court denied M.G.D.'s motions, but awarded H.L.B. $300 in...