In re Petition for Disciplinary Action Against Susanne Marie Glasser

• Decision Date: 05 June 2013
• Docket Number: No. A11–2126.,A11–2126.
• Citation: 831 N.W.2d 644
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Susanne Marie GLASSER, a Minnesota Attorney, Registration No. 272978.
• Court: Minnesota Supreme Court

831 N.W.2d 644

In re Petition for DISCIPLINARY ACTION AGAINST Susanne Marie GLASSER, a Minnesota Attorney, Registration No. 272978.

No. A11–2126.

Supreme Court of Minnesota.

June 5, 2013.

Syllabus by the Court

A 30–day suspension and upon reinstatement supervised probation for a period of five years is the appropriate sanction for an attorney who was convicted of two misdemeanor crimes of dishonesty, in violation of Minn. R. Prof. Conduct 8.4(b), when substantial mitigating factors are present.

Martin A. Cole, Director, Office of Lawyers Professional Responsibility, Saint Paul, MN, for petitioner.

Edward F. Kautzer, Ruvelson & Kautzer, Ltd., Saint Paul, MN, for respondent.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (“the Director”) petitioned for disciplinary action against respondent Susanne Marie Glasser, alleging that she violated Minn. R. Prof. Conduct 8.4(b) based on her conviction of two counts of misdemeanor theft by swindle. Following a hearing on the petition, a referee recommended a public reprimand and supervised probation for a period of five years. The Director disputes several of the referee's findings of fact regarding mitigation and the recommended sanction. The Director asserts that a suspension from the practice of law for a period of 18 months is the appropriate sanction. Glasser admits that her convictions of misdemeanor theft by swindle violated Minn. R. Prof. Conduct 8.4(b) and requests that we impose the discipline recommended by the referee. Based on the professional misconduct Glasser committed and the mitigating factors present, we suspend Glasser from the practice of law for a minimum of 30 days and, upon reinstatement, place her on supervised probation for a period of five years.

Glasser was admitted to practice law in Minnesota in 1997. In 2009, the State of Minnesota charged Glasser with three counts of felony theft by swindle. The complaint alleged that Glasser made approximately $31,000 in unauthorized charges on the credit card account of her deceased father. A trial on the felony charges resulted in a hung jury. The case was scheduled for retrial, but the parties reached a plea agreement. Glasser pleaded guilty to two misdemeanor counts of theft by swindle. The district court convicted Glasser of both counts, imposed concurrent sentences of 90 days in jail, and stayed the sentences for one year on the condition that Glasser commit no same or similar conduct. The facts underlying Glasser's convictions are conclusive evidence that Glasser committed misdemeanor theft by swindle. Rule 19(a), Rules on Lawyers Professional Responsibility (RLPR).

The Director filed a petition for disciplinary action against Glasser, alleging that she violated Minn. R. Prof. Conduct 8.4(b). In her answer, Glasser admitted the violation, but she asserted that she was entitled to mitigation.

At the disciplinary hearing that followed, Glasser called a clinical psychologist who testified regarding Glasser's “severe and chronic” alcohol dependency. Before her sobriety, the psychologist testified, Glasser was a habitual drinker who blacked out almost every night and neglected her disabled child. The psychologist testified that Glasser is currently in “full recovery” and her diagnosis is “alcohol dependence in full remission.” The psychologist also testified that Glasser's alcoholism played a role in her misconduct because “alcoholism impairs money management.” Because Glasser is in full remission, the psychologist opined that the risk of Glasser committing this misconduct again is “minimal to low to none.”

Glasser also called several witnesses who testified about her rehabilitation. The witnesses testified that Glasser was a severe alcoholic for much of her life, but that she has “turned her life around.” According to this testimony, Glasser is very serious about addressing her alcoholism and maintains her sobriety through participation in Alcoholics Anonymous and Lawyers Concerned for Lawyers. In addition to meeting with her sponsor, she sponsors other alcoholics. The witnesses and Glasser also testified about other stress-inducing circumstances that were present during the time of Glasser's misconduct. These include the death of her father, raising a child with autism, single-parenting without any child support, having a former husband convicted of criminal sexual conduct, and substantial financial problems.

The referee concluded that Glasser violated Minn. R. Prof. Conduct 8.4(b). The referee also made several findings of fact that support mitigation, expressly finding that Glasser's stress, chemical dependency, self-reporting, absence of a prior disciplinary history, and misconduct being unrelated to the practice of law are mitigating factors. Although alcoholism did not cause Glasser's misconduct, the referee found, it “contribute[d] to [the] misconduct, in that it ... contribut[ed] to her financial instability and erratic employment history.” The referee recommended a public reprimand and supervised probation for a period of five years.

I.

The Director argues that the referee erred by finding that Glasser is entitled to mitigation because she reported her misconduct and has no prior discipline. The Director also asserts that the referee erred when he failed to make a finding regarding Glasser's remorse for her misconduct. Because we were provided a transcript of the proceedings, the referee's findings of fact and conclusions of law are not binding. In re Peterson, 718 N.W.2d 849, 853 (Minn.2006). We, nonetheless, give “great deference to a referee's findings and will not reverse” them unless they are clearly erroneous. In re Aitken, 787 N.W.2d 152, 158 (Minn.2010). A referee's findings are clearly erroneous when they leave us “with the definite and firm conviction that a mistake has been made.” In re Albrecht, 779 N.W.2d 530, 535 (Minn.2010) (citation omitted) (internal quotation marks omitted).

After a careful review of the record, we conclude that the referee erred by (1) finding that Glasser self-reported her misconduct; (2) concluding that Glasser was entitled to mitigation because she had not been disciplined in the past; and (3) failing to make findings regarding Glasser's remorse for her misconduct. Contrary to the referee's finding that Glasser self-reportedthe misconduct, Glasser admitted at the hearing before the referee that the Director “first became aware [of the conviction when] the prosecutor in Hennepin County sent [the Director] a letter detailing the charges.” Thus, although self-reporting is a mitigating factor, self-reporting did not occur in this case. See, e.g., In re Arbeiter, 764 N.W.2d 814, 814 (Minn.2009). In addition, because “an attorney's lack of disciplinary history is not a mitigating factor but is instead the absence of an aggravating factor,” Aitken, 787 N.W.2d at 162, the referee's conclusion that Glasser's lack of prior discipline is a mitigating factor also is erroneous.

Whether Glasser is remorseful for her misconduct is an important consideration in an attorney discipline case, and the referee erred by not addressing it. Albrecht, 779 N.W.2d at 538. And there is insufficient evidence in the record regarding remorse for us to make an independent determination. See, e.g., In re Fairbairn, 802 N.W.2d 734, 745–46 (Minn.2011) (finding an attorney was remorseful and entitled to mitigation because the attorney testified that her actions were “just not right” and “horrible”). As in Albrecht, we therefore decline the Director's suggestion to consider Glasser's alleged lack of remorse as an aggravating factor, because there is not sufficient evidence regarding this factor to change the assessment of appropriate discipline. See779 N.W.2d at 542.

II.

We next consider the appropriate discipline in this case. The referee recommends a public reprimand and supervised probation for a period of five years. The Director counters that this discipline is too lenient and recommends an 18–month suspension. We decline both options.

The purpose of disciplinary sanctions “is not to punish the attorney, but rather ‘to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.’ ” In re Vaught, 693 N.W.2d 886, 890 (Minn.2005) (quoting In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004)). While “we place great weight 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). The four factors we consider to determine appropriate discipline are the nature of the misconduct, the cumulative weight of the violations, the harm to the public, and the harm to the legal profession. In re Lundeen, 811 N.W.2d 602, 608 (Minn.2012). We also consider any aggravating or mitigating circumstances. In re Mayrand, 723 N.W.2d 261, 268 (Minn.2006). We impose discipline on a case-by-case basis, but similar cases provide guidance as to appropriate discipline. Lundeen, 811 N.W.2d at 608.

We first consider the nature of Glasser's misconduct. “It is professional misconduct for a lawyer to ... commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects.” Minn. R. Prof. Conduct 8.4(b). Glasser's misconduct reflected negatively on her honesty and trustworthiness because theft by swindle, Minn.Stat. § 609.52, subds. 2(4), 3(5) (2012), is a crime that directly involves dishonesty or a false statement. State v. Sims, 526 N.W.2d 201, 202 (Minn.1994).

A conviction of a crime of dishonesty is a serious violation of Minn. R. Prof. Conduct 8.4(b). At a minimum, we have imposed public discipline when an attorney commits a misdemeanor crime involving dishonesty.¹See, e.g., In re Morris, 796 N.W.2d 152, 152–53 (Minn.2011) (suspending an attorney for a minimum of six months after he was convicted of a misdemeanor for...