In re Petition For Disciplinary Action v. Jay Gerard Swokowski

• Decision Date: 27 April 2011
• Docket Number: No. A10–1756.,A10–1756.
• Citation: 796 N.W.2d 317
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Jay Gerard SWOKOWSKI, a Minnesota Attorney, Registration No. 199710.
• Court: Minnesota Supreme Court

796 N.W.2d 317

In re Petition for DISCIPLINARY ACTION AGAINST Jay Gerard SWOKOWSKI, a Minnesota Attorney, Registration No. 199710.

No. A10–1756.

Supreme Court of Minnesota.

April 27, 2011.

Syllabus by the Court

Disbarment is the appropriate discipline for a lawyer who commits forgery; misappropriates client funds; fails to comply with Rule 26, Rules of Lawyers Professional Responsibility; fails to pay a law-related judgment against him; fails to cooperate with the Director's investigation; and engages in a pattern of failing to communicate, neglecting client matters, and failing to return client property.

Martin A. Cole, Director, Craig D. Klausing, Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, Minnesota, for petitioner.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (Director) petitions our court to take disciplinary action against respondent Jay Gerard Swokowski, a Minnesota lawyer. The Director alleges that Swokowski: (1) committed forgery and misappropriated client funds in violation of Rules 8.4(b) and (c) of the Minnesota Rules of Professional Conduct (MRPC); (2) failed to notify clients of his suspension in violation of Rule 26, Rules of Lawyers Professional Responsibility (RLPR), and Rule 3.4(c), MRPC; (3) engaged in a pattern of neglecting client matters, failing to communicate, and failing to return client property, in violation of Rules 1.3, 1.4(a) and (b), and 1.16(d), MRPC; (4) failed to pay a law-related judgment in violation of Rule 8.4(d), MRPC; and (5) failed to cooperate in the Director's investigation of these matters in violation of Rule 8.1(b), MRPC, and Rule 25, RLPR. Swokowski failed to respond to the petition for disciplinary action, and the Director moved our court for summary relief ordering that the allegations in the petition be deemed admitted and that Swokowski be disbarred. We deemed the allegations in the petition admitted and ordered Swokowski to show cause why he should not be disbarred. Swokowski has failed to respond to the order to show cause and, based on our review of the admitted facts, we conclude that Swokowski's conduct warrants disbarment.

Swokowski was admitted to practice law in Minnesota in 1989. In June 2009, we suspended Swokowski from the practice of law for 90 days, effective June 25, 2009. In re Swokowski, 767 N.W.2d 3, 3 (Minn.2009). The suspension stemmed from Swokowski's failure to maintain the appropriate books and records for his lawyer trust account, adequately communicate and act diligently on his clients' behalf, and properly handle a client's retainer. Id. This behavior constituted a violation of Rules 1.3, 1.4(a)(3) and (4), 1.15(a) and (c)(5), 5.5(a), and 8.1(b), MRPC, and Rule 25, RLPR. Swokowski, 767 N.W.2d at 3. Swokowski never applied for reinstatement to the practice of law.

The facts deemed admitted, as alleged in the petition, are as follows.

Count One—Forgery and Misappropriation of Client Funds

J.F. Matter

In June 2008, J.F. retained Swokowski to represent him on a contingency fee basis in a personal injury claim arising out of an automobile accident. In June 2009, J.F. agreed to settle the claim for $1,000. The insurer sent a check to Swokowski, made payable to “[J.F.] AND HIS ATTORNEY OF RECORDS [sic] SWOKOWSKI LAW OFFICE, ONLY.” Swokowski endorsed the check by signing J.F.'s name without J.F.'s knowledge, and deposited the check into an unknown bank account. He never paid any of the proceeds of the settlement to J.F. The Director alleges that Swokowski's forgery of J.F.'s signature on the settlement check and misappropriation of the settlement funds violated Rules 8.4(b) and (c), MRPC.¹

Count Two—Failure to Comply with Rule 26, RLPR

Swokowski was suspended from the practice of law on June 11, 2009, effective June 25, 2009. Swokowski, 767 N.W.2d at 3. Swokowski failed to notify three of his clients of his suspension as required by Rule 26, RLPR. He also failed to submit an affidavit to the Director demonstrating compliance with Rule 26's notification requirements, identifying the jurisdictions in which he was licensed to practice law and providing the Director with an accurate mailing address. The Director wrote to Swokowski twice, reminding him of his compliance obligations. Swokowski failed to respond to either letter and never submitted the required affidavit. On August 11, 2009, the Director filed an affidavit of noncompliance with our court. The Director alleges that Swokowski's conduct in failing to comply with Rule 26, RLPR,² violated Rule 3.4(c), MRPC.³

Count Three—Pattern of Neglecting Client Matters, Failing to Adequately Communicate with Clients, and Failing to Return Client Property

C.W. Matter

In December 2008, C.W. retained Swokowski to represent her in a marriage dissolution proceeding and paid Swokowski a $2,000 retainer fee. On January 6, 2009, opposing counsel served Swokowski with discovery requests. Swokowski never responded to the discovery requests despite having the necessary information. Swokowski attended a hearing in the case on January 9, 2009, but failed to take any further action on his client's behalf. In March 2009, Swokowski received a proposed marital termination agreement from opposing counsel. He forwarded the proposed agreement to C.W., but failed to respond to numerous requests from C.W. to discuss it with her. C.W. terminated Swokowski's representation on May 8, 2009.

P.F. Matter

In October 2008, P.F. retained Swokowski to represent her in the dissolution of her marriage. P.F. paid Swokowski a $2,500 cash retainer fee and signed a retainer agreement. Swokowski asked P.F. to assemble some documents and bring them to his office. But when P.F. arrived at the scheduled time for the appointment, Swokowski's office was empty. P.F. waited for over an hour and a half, but no one arrived. P.F. also left many telephone messages for Swokowski, which Swokowski failed to return. Swokowski did prepare and serve a petition for dissolution of marriage on P.F.'s husband. Swokowski also attended a meeting with P.F.'s husband to discuss the division of the marital estate, but failed to discuss the division of assets with P.F. beforehand. Swokowski informed P.F. by letter dated June 18, 2009, that he was withdrawing from representation.

L.A. Matter

On June 4, 2008, L.A. retained Swokowski to represent him in expunging a misdemeanor conviction for domestic abuse. L.A. signed a retainer agreement and paid Swokowski a $2,500 retainer fee, which by the terms of the agreement was to cover all work necessary to complete the matter. Swokowski obtained a copy of the conviction to be expunged and an affidavit from the victim of the alleged assault, but did not take any more steps to resolve the matter. Swokowski did not attempt to present the matter to any court and failed to return most of L.A.'s telephone messages.

After Swokowski was suspended from the practice of law, he informed L.A. of the suspension and recommended that L.A. retain substitute counsel. Swokowski also told L.A. that he would forward the balance of the retainer to L.A.'s new counsel. Indeed, L.A.'s new counsel was waiting for receipt of the retainer before commencing work on the file. Despite several reminders and requests, Swokowski never forwarded the retainer balance to L.A. or his new counsel.

R.C. Matter

Swokowski represented R.C. in a marriage dissolution proceeding. On January 15, 2009, R.C. retained Swokowski to prepare two qualified domestic relations orders (QDROs) that were required by the judgment and decree entered in R.C.'s marriage dissolution proceeding. R.C. did not sign a retainer agreement, but paid a $1,500 retainer fee. Despite receiving many phone messages from R.C., Swokowski did not communicate with R.C. until May 2009, when R.C. visited Swokowski's office unannounced. Swokowski told R.C. that he had completed the QDROs and would submit them the next day. R.C. reviewed the QDROs and discovered that they were improperly prepared. Swokowski never corrected the errors, never submitted them as required, or otherwise completed the work for which he had received the $1,500 retainer. Swokowski also did not give R.C. notice of his suspension from the practice of law.

C.B. Matter

On February 11, 2009, C.B. retained Swokowski to represent her in a marriage dissolution proceeding, paying a $2,500 retainer fee. Swokowski prepared a summons and petition for dissolution and served them on C.B.'s husband, but took no further action on C.B.'s behalf. Swokowski never informed C.B. of his suspension. Swokowski also failed to respond to C.B.'s requests for the refund of $2,000 of her retainer and for return of her original petition for dissolution of marriage and the affidavit of service. The petition as drafted contained numerous errors, requiring C.B.'s new attorney to re-draft and re-serve it.

J.M. Matter

On October 1, 2008, J.M. retained Swokowski to represent him in his marriage dissolution proceeding, paying a $2,350 retainer and signing a retainer agreement. Swokowski prepared and served a petition for dissolution of marriage on J.M.'s behalf. The petition contained several errors, the most significant of which was a failure to allege that J.M.'s wife had hidden approximately $50,000 in income. The petition also failed to specify the amount of requested parenting time. Swokowski met once with opposing counsel, but did not take any further action on J.M.'s behalf. Finally, Swokowski failed to return numerous telephone messages from J.M.

J.F. Matter

During his representation of J.F., Swokowski failed to return numerous telephone calls and failed to communicate with him regarding his case.

The Director alleges that Swokowski's pattern of neglect of client matters, failure to communicate, and failure to return client property as detailed in count 3 violated Rules 1.3,⁴ 1.4(a) and (b),⁵ and 1.16(d), ⁶ MRPC.

Count Four—Failure to Pay Law–Related Judgment

M.H....