In Re Petition For Disciplinary Action v. Lisa Jane Mayne

• Decision Date: 10 June 2010
• Docket Number: No. A08-1522.,A08-1522.
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Lisa Jane MAYNE, a Minnesota Attorney, Registration No. 308705.
• Court: Minnesota Supreme Court

783 N.W.2d 153

In re Petition for DISCIPLINARY ACTION AGAINST Lisa Jane MAYNE, a Minnesota Attorney, Registration No. 308705.

No. A08-1522.

Supreme Court of Minnesota.

June 10, 2010.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

A lawyer suffering from a psychological disorder must prove all five Weyhrich factors by clear and convincing evidence in order to qualify for mitigation of discipline for intentional misconduct.

A lawyer's conviction of a felony involving dishonesty warrants disbarment unless the lawyer can prove the existence of significant mitigating factors.

Martin A. Cole, Director, Robin J. Crabb, Assistant Director, Office of Lawyers

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

Peter Erlinder, St. Paul, MN, for respondent.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility petitions our court to take disciplinary action against Minnesota lawyer Lisa Jane Mayne. The Director asserts that Mayne violated Minn. R. Prof. Conduct 8.4(b) and (c) by taking money from her father in violation of Minn.Stat. § 609.2335, subd. 1(1) (2008) (financial exploitation of a vulnerable adult). At the time of the misconduct, Mayne was attorney-in-fact for her father who was in his mid-seventies and suffered from diabetes and the early stages of Alzheimer's syndrome. Mayne was charged with and pleaded guilty to the criminal charge of financial exploitation of a vulnerable adult. Because Mayne admits to misconduct in violation of Rule 8.4, the only issues for us to address are the presence of mitigating factors and the appropriate discipline. We conclude that Mayne has not proven the existence of significant mitigating factors that would warrant departure from the sanctions we generally impose for similar misconduct. Therefore, we impose the Director's recommended discipline of disbarment.

Mayne was admitted to practice law in Minnesota on May 11, 2001. At some point in 2005, Mayne's elderly father, who suffered from diabetes and the early stages of Alzheimer's syndrome, executed a power of attorney, and Mayne became his attorney-in-fact. From the time Mayne became attorney-in-fact until April 2007 when the power of attorney was terminated, Mayne took approximately $60,000 from her father's bank accounts for her personal use. Further, Mayne failed to pay approximately $45,000 in bills to care facilities in which her father lived. After Mayne's sister alerted authorities regarding Mayne's conduct, Mayne was charged with and pleaded guilty to one count of felony financial exploitation of a vulnerable adult in violation of Minn.Stat. § 609.2335, subd. 1(1). Mayne was convicted of this crime and sentenced to 18 months in prison. The execution of her prison term was stayed during the pendency of 10 years probation. The terms of Mayne's probation included payment of $46,000 in restitution to her father, continuing psychological counseling, submission to DNA testing, serving 90 days in jail, and the payment of a $100 fine.

On August 19, 2008, the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against Mayne. The petition alleged that the actions underlying Mayne's criminal conviction violated Minn. R. Prof. Conduct 8.4(b) and (c).¹ Mayne responded to the petition, admitting its allegations and requesting discipline in the form of a suspension followed by a period of probationary reinstatement. We appointed a referee to hear the matter.

Mayne did not testify at her disciplinary hearing but called two witnesses to testify on her behalf-a counseling social worker who treated Mayne, and a psychologist who diagnosed and treated Mayne. Both the social worker and the psychologist worked at Ramsey County Mental Health Center where Mayne was a patient being treated for psychological disorders. Both witnesses testified that Mayne had been a patient at Ramsey County Mental Health Center since February or March 2008, which testimony is corroborated by treatment-progress reports entered into evidence. Both witnesses also testified that Mayne began intensive outpatient treatment after the criminal complaint against her was filed but before she pleaded guilty in June 2008.

The social worker testified that Mayne regularly attended her therapy sessions, was a dedicated patient, and made progress in therapy. The treatment-progress reports in evidence generally corroborate the social worker's testimony. The psychologist testified that he had diagnosed Mayne with major depressive disorder and obsessive-compulsive disorder, which is a type of anxiety disorder. He testified that Mayne's disorders manifested themselves primarily through hoarding behavior. Hoarding, in the sense the psychologist used the term, means buying and saving items, which the hoarder irrationally believes she will run out of, motivating the hoarder to buy more and more of the same or similar items. Mayne's hoarding eventually resulted in the accumulation of so much clutter that her home was condemned.

The psychologist further testified that Mayne's major depressive disorder and obsessive-compulsive disorder negatively reinforce each other. He testified that the effects of the two disorders include low energy levels, a poor self-image, a poor view of life, as well as problems eating, sleeping, and leaving the house. He also testified that a major impact of all of these effects was that Mayne has had extreme trouble making affirmative decisions. An opinion letter written by the psychologist summarizing his diagnosis and treatment of Mayne was admitted into evidence at the hearing.

After the hearing ended, the referee made his recommendation. The referee concluded that Mayne's actions violated Minn. R. Prof. Conduct 8.4(b) and (c), a conclusion Mayne does not dispute. The referee noted that a felony conviction generally warrants disbarment unless significant mitigating factors exist and then proceeded to address a number of mitigating factors. See In re Koss, 572 N.W.2d 276, 278 (Minn.1997).

The referee addressed the Weyhrich factors for mitigation due to psychological disorder. See In re Weyhrich, 339 N.W.2d 274, 279 (Minn.1983). The referee found that Mayne had proven by clear and convincing evidence that she met the first factor by showing that she suffered from a severe psychological condition and the third factor by showing that she was progressing in treatment for that disorder. But the referee further found that Mayne failed to prove the three other Weyhrich factors: that her psychological condition caused the misconduct, that her treatment had arrested the misconduct, and that the misconduct is not likely to recur. Despite his findings that Mayne failed to prove three of the five of the Weyhrich factors, the referee concluded that Mayne was still entitled to mitigation due to a psychological disorder, citing In re Berg, 741 N.W.2d 600, 605 (Minn.2007). The referee observed that “the Courts are giving more empathy to cases where there are significant mental health issues.”

The referee next addressed other mitigating factors. He found that Mayne was not entitled to mitigation for remorse. He did find, however, that Mayne was entitled to mitigation due to a number of factors discussed in In re Rooney, 709 N.W.2d 263 (Minn.2006). In particular, the referee found that Mayne was entitled to mitigation because she (1) had no prior discipline, (2) is in the process of paying restitution, (3) cooperated with the Director, (4) was under extraordinary stress when she engaged in misconduct, and (5) acknowledged her problems and sought counseling.

Based on his findings, the referee recommended discipline in the form of an indefinite suspension with leave to apply for reinstatement at the end of Mayne's criminal probation, which is set to end in 2018. The referee added that the suspension should be “in no case less than five years.” Further, the referee recommended that Mayne be required to pass the ethics part of the multi-state bar exam and pay costs of $100.

Both Mayne and the Director take exception to the referee's findings and recommendation, and both asked our court for review. On review, we must address two issues: whether the referee clearly erred in making his mitigation findings and whether the referee's recommended discipline is appropriate.

I.

We begin our analysis by addressing the issue of whether the referee clearly erred in any of his findings regarding mitigation. Mayne admits that her actions underlying the felony conviction violated the Minnesota Rules of Professional Conduct, but she argues that the referee clearly erred in some of his mitigation findings. In particular, Mayne argues that the referee clearly erred by (1) finding that she failed to prove several of the Weyhrich factors; (2) rejecting mitigation based on Mayne's remorse, and (3) by failing to consider lack of harm to clients as a mitigating factor. The Director contends the referee (1) correctly found that Mayne failed to prove several Weyhrich factors; (2) clearly erred in considering psychological disability as a mitigating factor even though he found that Mayne had not proven all of the Weyhrich factors; (3) correctly found Mayne lacked remorse; (4) clearly erred in considering extreme stress as a mitigating factor; (5) clearly erred in considering restitution as a mitigating factor; and (6) clearly erred in finding Mayne was entitled to mitigation for her cooperation with the Director.

A. Mitigation based on psychological disorder Weyhrich factors

We turn first to the question of whether the referee clearly erred in his findings regarding the Weyhrich factors. A lawyer seeking mitigation for a psychological disorder must prove by clear and convincing evidence each of five Weyhrich factors. In re Farley, 771 N.W.2d 857, 861 (Minn.2009) (citing Weyhrich, 339 N.W.2d at 279). The five Weyhrich factors are: (1) the lawyer suffered from a severe psychological disorder; (2) the psychological disorder...