In Re Petition For Disciplinary Action v. Robert H. Aitken, A09-1066.

• Decision Date: 29 July 2010
• Docket Number: No. A09-1066.,A09-1066.
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Robert H. AITKEN, III, a Minnesota Attorney, Registration No. 301711.
• Court: Minnesota Supreme Court

787 N.W.2d 152

In re Petition for DISCIPLINARY ACTION AGAINST Robert H. AITKEN, III, a Minnesota Attorney, Registration No. 301711.

No. A09-1066.

Supreme Court of Minnesota.

July 29, 2010.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. Forging the client's signature on a plea petition, submitting that plea petition to the court, and failing to cooperate with the subsequent disciplinary investigation violate Minn. R. Prof. Conduct 4.1 and 8.1(b).

2. An attorney's lack of disciplinary history and lack of familiarity with rules and procedures are not mitigating factors.

3. Attorney's forgery of his client's signature on a plea petition, submission of that plea petition to the court without the client's knowledge or consent, and failure to cooperate with the disciplinary investigation by the Office of Lawyers Professional Responsibility warrant suspension for 90 days.

Martin A. Cole, Director, Cassie Hanson, Senior Assistant Director, Office of

Lawyers Professional Responsibility, St. Paul, MN, for petitioner.

Thomas S. Kuesel, Bemidji, MN, for respondent attorney.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition seeking disciplinary action against respondent Robert H. Aitken, III, alleging that Aitken violated Rules 3.4(a) (alteration of document), 4.1 (truthfulness), 8.1(b) (noncooperation), 8.4(c) (dishonesty) and (d) (conduct prejudicial to the administration of justice) of the Minnesota Rules of Professional Conduct (MRPC), and Rule 25 of the Minnesota Rules on Lawyers Professional Responsibility (RLPR), for forgery, knowingly making a false statement of fact to a tribunal in the course of representing a client and for failing to correct the false statement, and failing to cooperate with a disciplinary investigation. The referee concluded that Aitken's conduct violated Rules 8.4(c) and (d), MRPC, and Rule 25, RLPR, but not Rules 3.4(a), 4.1, or 8.1(b), MRPC. The referee recommended that Aitken be publicly reprimanded and be placed on probation for 2 years.¹

The Director contends that the referee failed to make certain conclusions of law that were warranted by the facts, and contests the referee's finding of mitigating factors and recommended discipline. The Director requests that Aitken be indefinitely suspended from the practice of law for at least 6 months. Aitken contests two of the referee's findings of fact, but agrees with the referee's recommendation for discipline. We conclude that the referee erred in failing to conclude that Aitken violated Rules 4.1 and 8.1(b), MRPC, and clearly erred with respect to two of the mitigating factors. We suspend Aitken from the practice of law for 90 days.

Aitken was admitted to practice law in Minnesota in October 2000. Aitken was in private practice from 2000 to 2007. From February 2007 until July 2008 Aitken worked as a public defender in the Ninth Judicial District. Shortly after Aitken began working as a public defender, Aitken took over representation of R.C., who was charged with trespass and obstruction in Beltrami County. R.C. was previously represented by another public defender in the Ninth Judicial District.

Several hearings were conducted in the R.C. matter beginning on March 21, 2007. Aitken appeared on behalf of R.C. at these hearings. After this first hearing, the prosecutor tendered a plea offer to Aitken providing that if R.C. pled guilty to the trespass charge, the obstruction charge would be dismissed. R.C. was not present at the hearing because Aitken failed to provide her notice of the hearing. Aitken agreed to the terms of the plea offer, but neither consulted with nor conveyed the sentencing terms to R.C. The second hearing occurred on April 24, 2007, during which the district court requested that Aitken file a plea petition reciting the parties' agreement. Additional hearings were held on May 9 and May 23, 2007. Aitken attended the hearings, but R.C. did not appear at any of these three hearings because Aitken failed to notify her of the court dates. As of May 23, 2007, no plea petition had been filed.

The district court scheduled another hearing for May 30, 2007. On May 24 Aitken mailed R.C. a plea petition together with correspondence, but again did not include notice of the May 30 hearing.² R.C. received the mailing on May 25 or May 26, but set it aside without looking at it. Aitken appeared at the May 30 hearing but R.C. did not appear. The district court again continued the matter to June 1, 2007.

One of the disputed findings of fact involves a telephone conversation that allegedly occurred between the May 30 and June 1 hearings between R.C.'s brother, A.C., and Aitken. Aitken claimed that A.C. told him during this conversation to sign the plea petition on R.C.'s behalf; ³ the referee, however, rejected Aitken's claim, although he did find that Aitken and A.C. had a telephone conversation.

On the day of the June 1 hearing, Aitken printed and signed R.C.'s name on the plea petition without her knowledge or consent and dated it May 24, 2007, to make it appear as if R.C. had signed and returned the plea petition to Aitken at an earlier date. Aitken also altered his handwriting to make it appear as if R.C. had signed the plea petition herself. Aitken signed the acknowledgment of counsel and dated it June 1, 2007. Aitken filed the plea petition and the district court approved it at the June 1 hearing. By forging R.C.'s signature on the plea petition and filing it with the district court, Aitken submitted a misleading document to the district court. Aitken did not forward a copy of the signed plea petition to R.C., provide her with any sentencing information, or otherwise make her aware of the sentencing conditions.

Approximately a year later, the Beltrami County Court Administrator sent R.C. a letter about her failure to pay various fines and costs imposed by the plea petition. R.C., who had no knowledge of the plea petition or plea conditions, requested a copy of the signed plea petition. R.C. did not recognize her signature on the plea petition. She contacted Kristine Kolar, the Chief Public Defender in the district, and informed her that the signature on the plea petition was not hers.

After reviewing the public defender and court files and interviewing Aitken and other witnesses, Kolar confronted Aitken about the forged signature on R.C.'s plea petition. Aitken admitted to Kolar that he signed the plea petition in R.C.'s name, but claimed he did so with her permission. Aitken also claimed that he signed R.C.'s name based on A.C.'s suggestion. The referee found both statements to be misleading and designed to conceal his forgery and neglect of R.C.'s matter.

By a nunc pro tunc order dated July 2, 2008, the district court vacated R.C.'s conviction order dated June 1, 2007. After Kolar spoke with R.C., a plea petition actually signed by R.C., agreeing to the same sentence, was entered by the district court on July 14, 2008.

In a letter dated July 8, 2008, Kolar filed a complaint with the Director regarding Aitken's conduct. The Director's Office mailed a notice of investigation to Aitken on July 17, 2008. Aitken failed to respond to the notice, and four other letters regarding the disciplinary investigation dated between August 25, 2008, and March 26, 2009. The Director also attempted to contact Aitken by telephone and left him a voicemail regarding pending charges of unprofessional conduct, which Aitken did not return.

On May 1, 2009, the Director sent Aitken notice of charges of unprofessional conduct, alleging that Aitken had violated Rules 3.4(a), 4.1, and 8.4(c) and (d), MRPC.⁴ The petition alleged that Aitken committed forgery, made misleading statements, and failed to cooperate with the Director. The mailing also included notice of a pre-hearing meeting ⁵ on May 14, 2009. Aitken failed to attend the pre-hearing meeting, and failed to submit a timely answer regarding the charges of unprofessional conduct. The Director's Office subsequently filed a petition for disciplinary action, charging Aitken with additional violations of Rule 8.1(b), MRPC, and Rule 25, RLPR,⁶ for non-cooperation with the investigation. Based on the charges, the Director requested that Aitken be suspended from the practice of law.

The hearing on the charges of unprofessional conduct occurred on September 30, 2009. On November 12, 2009, the referee filed findings of fact and conclusions of law that Aitken violated Rules 8.4(c) and (d), MRPC, and Rule 25, RLPR, and a recommendation that Aitken receive a 30-day stayed suspension, be publicly reprimanded, and be placed on probation for 2 years. Aitken contests the referee's factual findings that: (1) he did not have permission to sign the plea petition; and (2) he was not remorseful for his actions. The Director disputes the referee's failure to make certain conclusions of law, findings of mitigating factors, and the referee's recommended discipline.

I.

At a disciplinary hearing, the Director bears the burden of proving misconduct by clear and convincing evidence. In re Houge, 764 N.W.2d 328, 334 (Minn.2009). Because the Director ordered a transcript of the disciplinary hearing, we are not bound by the referee's findings of fact and conclusions. See Rule 14(e), RLPR. Even where one of the parties orders a transcript, we give great deference to a referee's findings and will not reverse those findings unless they are clearly erroneous, especially in cases where the referee's findings rest on disputed testimony or on an attorney's credibility, demeanor, or sincerity. In re Barta, 461 N.W.2d 382, 382 (Minn.1990).

We have previously stated that a referee's failure to make certain findings of fact is reviewed for clear error. In re Grigsby, 764 N.W.2d 54, 60 (Minn.2009). But we have not previously addressed a claim that a referee made sufficient factual findings, but failed to make conclusions of law based on those findings. We will review the...