In Re Petition For Disciplinary Action v. Gregory J. Rebeau
| Decision Date | 05 August 2010 |
| Docket Number | No. A09-382.,A09-382. |
| Citation | 787 N.W.2d 168 |
| Parties | In re Petition for DISCIPLINARY ACTION AGAINST Gregory J. REBEAU, a Minnesota Attorney, Registration No. 89977. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
Indefinite suspension with no right to petition for reinstatement for a minimum of 12 months, conditional reinstatement, and a minimum of four years probation is the appropriate discipline when a lawyer fails to timely file and pay employer withholding tax returns for numerous quarters, commits a series of trust account violations, fails to clearly communicate to clients how he will handle their initial fee retainers, fails to bill in accordance with the retainer agreement, makes a false statement to a third party, and fails to cooperate with the Director of the Office of Lawyers Professional Responsibility.
Martin A. Cole, Director, Julie E. Bennett, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for petitioner.
Gregory J. Rebeau, St. Paul, MN, pro se.
The Director of the Office of Lawyers Professional Responsibility served and filed a petition 1 for discipline in January 2009 alleging that respondent Gregory J. Rebeau failed to timely file and pay employer withholding taxes, committed trust account violations, engaged in other acts of dishonesty and conduct prejudicial to the administration of justice, misrepresented his licensure as an attorney in Florida, and failed to cooperate with the Director's office. Following a hearing, a referee appointed pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), concluded that Rebeau had committed the violations as alleged, except for the Florida licensure charge, and recommended that Rebeau be suspended from the practice of law for 90 days and thereafter be automatically reinstated. Because we conclude that Rebeau's misconduct is more serious than recognized by the referee, we suspend Rebeau from the practice of law for a minimum of 12 months and condition his reinstatement as expressed more fully in this opinion.
Rebeau was admitted to practice law in Minnesota on September 29, 1978. He is a sole practitioner engaged in the general practice of law. Rebeau has no prior disciplinary history.
In January 2009, the Director served and filed a petition for discipline alleging that Rebeau engaged in six separate types of misconduct. Rebeau filed an answer admitting some of the alleged misconduct but specifically challenging the allegations that he failed to maintain the required trust account books and records, failed to bill a client according to the retainer agreement, failed to place unearned payments made by a client in the client trust account, engaged in acts of dishonesty, and failed to cooperate with the director. The matter proceeded to hearing before a referee, and the referee concluded Rebeau committed five of the six alleged violations.2 Our discussion of Rebeau's violations is drawn from the referee's findings.
Rebeau largely admitted and the referee found that Rebeau either failed to file or filed late his employer withholding tax returns for thirteen quarters between 1999 and the first quarter of 2008.3 Additionally, the referee found that Rebeau failed to file his employer withholding tax returns for the second quarter of 2008 through the second quarter of 2009 despite the implementation of new office procedures.4 Finally, the referee found that Rebeau had not yet filed the missing returns or paid the IRS. The referee concluded that Rebeau's failure to file and pay employer withholding taxes violated Rule 8.4(d),5 Minnesota Rules of Professional Conduct (MRPC).
Rebeau admitted that to protect his funds from attachment by the IRS beginning in 2006 he routinely deposited earned fees into his trust account and disbursed those earned fees directly to himself, his business, and personal creditors. Also, Rebeau admitted that he commingled personal and client funds, misappropriated client funds, and failed to promptly disburse earned fees from the trust account. Rebeau denied that he failed to maintain the required books and records. The referee found that Rebeau committed trust account violations consisting of fraudulent use of a trust account, commingling, misappropriation, failure to promptly disburse earned fees, and failure to maintain required trust account books and records, in violation of Rules 1.15(a), (b), and (c)(3), and 8.4(c), MRPC, and Appendix 1 thereto (formerly Lawyers Professional Responsibility Board Opinion No. 9).6 The referee also found that from January 2004 through November 2006 Rebeau failed to maintain the trust account books and records required by Rule 1.15, MRPC, and that the Director's office was required to obtain many trust account records directly from the bank because Rebeau was unable to produce the requested documents.
In April 2005, Rebeau was retained by M.M. and J.M. They signed a retainer agreement, and M.M. and J.M. paid a retainer fee. One paragraph of the agreement stated that the retainer would be deposited in trust, but another paragraph stated that the retainer was nonrefundable and would not be held in trust. Rebeau admits that these two paragraphs were inconsistent and failed to clearly communicate how he would handle the retainer. Rebeau entered into retainer agreements with six other clients that included the same inconsistent paragraphs.
The retainer agreement also stated that Rebeau would provide monthly billing statements. The referee found that Rebeau failed to provide those monthly statements, even when requested by M.M. and J.M. M.M. and J.M. terminated Rebeau's representation and requested that the balance of the unearned retainer fee be refunded.
Rebeau refunded $610 to M.M. and J.M., claiming that was the amount to which M.M. and J.M. were entitled. In June 2007, the Director prepared an accounting, based on Rebeau's monthly statements, showing that the total amount to which M.M. and J.M. were entitled was $4,471.50. Rebeau then provided the Director with two additional invoices, which reduced M.M. and J.M.'s credit balance to $3,911.50.
The referee concluded that Rebeau failed to clearly communicate to M.M. and J.M. and the other clients how he would handle their initial fee retainers, failed to bill in accordance with the retainer agreement, and failed to hold M.M. and J.M.'s unearned fees in trust, violating Rules 1.15(a) and (c)(5), 1.4(b), and 1.5(b), MRPC.7
Rebeau represented C.S., who, in December 2006, was involved in an automobile accident resulting in damage to his vehicle and was charged with second-degree driving while impaired. Pursuant to Minn.Stat. § 169A.63 (2006), the Ramsey County Sheriff's Office seized the vehicle and served a notice of forfeiture of the vehicle on C.S. and his insurer. C.S. retained Rebeau to represent him in both matters. In March 2007, C.S. pleaded guilty to second-degree DWI. As a result, both the title to the vehicle and the insurance proceeds for the damages to the vehicle vested in the Sheriff's Office. See Schug v. $9,916.50 in U.S. Currency, 669 N.W.2d 379, 384 (Minn.App.2003). The City of Shoreview then commenced a vehicle forfeiture action and moved for summary judgment. When the city initially moved for summary judgment, C.S. and Rebeau did not appear at the hearing, and the court granted the motion in favor of the city. Subsequently, the order was vacated pursuant to stipulation, and the motion for summary judgment was rescheduled.
Before the hearing, Rebeau wrote to the insurer, enclosing a copy of the court's order vacating summary judgment and stating that the vehicle was “solely owned by [C.S.]” and payment of the insurance proceeds should be issued to C.S. or else Rebeau would pursue all available remedies including a “bad faith claim and the possibility of personal liability.” Rebeau, however, did not send a copy of the letter to the city. The insurer issued a check for the insurance proceeds to C.S. When the city discovered that Rebeau had obtained the insurance proceeds, it brought a motion for contempt. The district court granted the motion, concluding that Rebeau had acted in bad faith and abused the process of the court. The referee concluded that Rebeau's conduct in making a false statement to the insurer in order to obtain insurance proceeds violated Rules 4.1 and 8.4(c) and (d), MRPC.8
In October 2008, the City of Shoreview submitted a complaint to the Director regarding Rebeau's conduct in the vehicle forfeiture matter. The Director forwarded to Rebeau a notice of investigation, and Rebeau responded to the city's complaint. Subsequently, the Director sent six letters to Rebeau, including a second notice of investigation and a request for an appearance, to which Rebeau did not respond. Rebeau asserted that he did not receive the Director's letters. The referee found that Rebeau's assertion that he did not receive the letters “was not credible.” The referee concluded that Rebeau's conduct in failing to cooperate with the Director's investigation of the vehicle forfeiture matter violated Rule 25, RLPR.9
The referee concluded that Rebeau had engaged in the alleged misconduct and further concluded that Rebeau's misconduct was aggravated by its cumulative nature and the length of time over which it was committed, but was mitigated by Rebeau's 31 years of practice without discipline. The referee recommended that Rebeau be suspended from the practice of law for 90 days followed by automatic reinstatement. Both parties appealed.
Initially, Rebeau argued that the referee erred in his finding involving the handling of retainer fees and monthly billings. Also, Rebeau argued that the referee erred in finding that he failed to cooperate in the Director's investigation of the vehicle forfeiture matter. Prior to oral argument, Rebeau...
To continue reading
Request your trial
-
In re MacDonald, A16-1282
...on the referee's recommended discipline, we retain ultimate responsibility for determining the appropriate sanction." In re Rebeau , 787 N.W.2d 168, 173 (Minn. 2010).12 The purpose of attorney discipline "is not to punish the attorney, but rather to protect the public [and] the judicial sys......
-
In re Petition for Disciplinary Action Against Severson, A13–1382.
...the public, safeguard the judicial system, and deter future misconduct by the disciplined attorney and other attorneys. In re Rebeau, 787 N.W.2d 168, 173 (Minn.2010). In imposing the appropriate discipline, four factors guide us: (1) the nature of the misconduct; (2) the cumulative weight o......
-
In re Sand, A18-1795
...of the public, protection of Minnesota's judicial system, and deterring other attorneys from engaging in misconduct. In re Rebeau , 787 N.W.2d 168, 173 (Minn. 2010).We fully acknowledge the seriousness of Sand's misconduct and the legitimate concerns raised by the dissenting panel member an......
-
In re Disciplinary Action Against Montez , A11–0125.
...is part of our record on review. Finally, we retain ultimate responsibility for determining appropriate discipline. See In re Rebeau, 787 N.W.2d 168, 173 (Minn.2010). With this standard of review in mind, we turn to the parties' arguments.I. We turn first to Montgomery's contention that BFA......
-
Don't Mind the Gap: Practical and Ethical Consequences of Domestic Planetary Protection Regulations
...Arabia, 495 P.3d 1103, 1110 (Nev. 2021); In re Disciplinary Action against Montez, 812 N.W.2d 58, 68 (Minn. 2012) (citing In re Rebeau, 787 N.W.2d 168, 173 (Minn. 2010)); In re Kelley, 801 P.2d 1126, 1130 (Cal. 1990). 1168 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:1151 continually sup......