In re Petition for Disciplinary Action Against Tayari-Garrett, A14–0995.

• Decision Date: 01 July 2015
• Docket Number: No. A14–0995.,A14–0995.
• Citation: 866 N.W.2d 513
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Mpatanishi Syanaloli TAYARI–GARRETT, a Minnesota Attorney, Registration No. 342075.
• Court: Minnesota Supreme Court

866 N.W.2d 513

In re Petition for DISCIPLINARY ACTION AGAINST Mpatanishi Syanaloli TAYARI–GARRETT, a Minnesota Attorney, Registration No. 342075.

No. A14–0995.

Supreme Court of Minnesota.

July 1, 2015.

Rehearing Denied Aug. 5, 2015.

Martin A. Cole, Director, Timothy M. Burke, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, MN, for petitioner.

Stephen V. Grigsby, Minneapolis, MN, for respondent attorney.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (the Director) filed a petition for disciplinary action against respondent, Mpatanishi Syanaloli Tayari–Garrett, alleging that Tayari–Garrett violated the rules of professional conduct by, among other things, being convicted of willfully disobeying a court mandate and by making multiple false or misleading statements to a court. Following an evidentiary hearing, the referee concluded that Tayari–Garrett violated Minn. R. Prof. Conduct 3.4(c) and 8.4(b)-(d) and recommended that Tayari–Garrett be indefinitely suspended with no right to petition for reinstatement for a minimum of 120 days. We hold that the referee did not clearly err by concluding that Tayari–Garrett violated Minn. R. Prof. Conduct 3.4(c) and 8.4(b)-(d) and that the referee's recommendation for discipline is the appropriate sanction in this case.

Tayari–Garrett was admitted to practice law in Minnesota on November 22, 2004, and currently practices in Texas and Minnesota. Her misconduct occurred during her representation of E.M.M. in a criminal matter. The referee made the following findings and conclusions.

At a January 21, 2011, pretrial conference, the district court established a May 2, 2011, trial date. On April 14, Tayari–Garrett filed a motion to continue the trial date, citing, among other reasons, an undefined personal commitment. Before the hearing on the motion, Tayari–Garrett purchased a nonrefundable plane ticket for travel to Paris from May 4 to May 9 to attend her brother's wedding. The court ultimately denied the motion.

Tayari–Garrett failed to appear for the first day of trial, May 2. A lawyer who appeared on her behalf informed the court that Tayari–Garrett called him on May 1, told him that she was in the hospital in Dallas, and asked him to appear and request a continuance. The court continued the proceedings to the following day, May 3, and ordered Tayari–Garrett to provide documentation of her hospitalization; her prognosis, including her ability to travel and conduct trial; and the plans she had made for traveling from Dallas to Minneapolis for trial on May 2. At a hearing the next day, Tayari–Garrett failed to appear and did not produce the ordered documentation. The court again continued the proceedings, to May 5.

Tayari–Garrett later established that she had been admitted to the hospital around 9 a.m. on May 2 and released at approximately 3 p.m. on May 3. Shortly after her release from the hospital, Tayari–Garrett e-mailed the trial judge's law clerk, stating, “Please inform Judge Howard that I have just been released from a hospital and will definitely not be able to attend a scheduling conference this Thursday [May 5]. Too soon.” The next morning, May 4, Tayari–Garrett flew from Dallas to Paris via a connecting flight at the Minneapolis–St. Paul International Airport. After the State brought a motion for an order to show cause, the court scheduled a hearing on May 5 and allowed Tayari–Garrett to appear by telephone.

Tayari–Garrett appeared by telephone from Paris for the May 5 hearing. She discussed her medical situation and prognosis, but made no mention of having traveled to France. During the hearing, the court scheduled a contempt hearing for May 9. In response, Tayari–Garrett stated, “I have a follow-up appointment next week so I cannot, and I believe the Court is aware of that, that I cannot be there on Monday [May 9].” Tayari–Garrett did not appear for the May 9 hearing either in person or by telephone. In fact, at the time of the May 9 hearing, Tayari–Garrett was en route from Paris to Dallas. By order dated May 25, the court found that probable cause existed to find Tayari–Garrett in constructive contempt of court. The court then referred the matter to prosecutors for further handling. Tayari–Garrett was criminally charged with and eventually convicted of misdemeanor contempt of court, Minn.Stat. § 588.20, subd. 2(4) (2014), for her willful disobedience of a court mandate between April 16, 2011, and May 9, 2011. The court of appeals affirmed Tayari–Garrett's conviction. State v. Tayari–Garrett, 841 N.W.2d 644, 656 (Minn.App.2014), rev. denied (Minn. Mar. 26, 2014).

Based on these facts, the Director filed a petition against Tayari–Garrett alleging that she violated the rules of professional conduct by, among other things, willfully disobeying a court mandate, making false or misleading statements to a tribunal, and being convicted of willfully disobeying a court mandate. Following an evidentiary hearing on the petition, the referee found that Tayari–Garrett was criminally convicted for “willful disobedience to [a] court mandate” and that Tayari–Garrett made false or misleading statements in her May 3 e-mail to the court and at the May 5 hearing. Based on these findings, the referee concluded that Tayari–Garrett violated Minn. R. Prof. Conduct 3.4(c) and 8.4(b), (c), and (d).¹ The referee also found several aggravating factors, but no mitigating factors. The referee recommended that Tayari–Garrett be indefinitely suspended with no right to petition for reinstatement for a minimum of 120 days.

I.

Tayari–Garrett challenges the referee's conclusions that she violated Minn. R. Prof. Conduct 3.4(c) and 8.4(b), (c), and (d), as well as several of the findings underlying those conclusions. Specifically, Tayari–Garrett challenges the referee's findings that a statement in her May 3 e-mail to the court was false or misleading, and that statements she made during the May 5 hearing were false or misleading.

The Director bears the burden of proving professional misconduct by clear and convincing evidence. In re Voss, 830 N.W.2d 867, 874 (Minn.2013). If either party timely orders a transcript of the hearing, as Tayari–Garrett did here, the referee's finding and conclusions are not conclusive. Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR). Nonetheless, when a party orders a transcript, we give “great deference” to the referee's findings and will uphold those findings if they have evidentiary support in the record and are not clearly erroneous. Voss, 830 N.W.2d at 874. We give particular deference to the referee's findings when those findings “rest on disputed testimony or in part on credibility, demeanor, and sincerity.” In re Lyons, 780 N.W.2d 629, 635 (Minn.2010). A referee's findings are clearly erroneous only when they leave us “with the definite and firm conviction that a mistake has been made.” Id. (citation omitted) (internal quotation marks omitted).

Given the evidentiary support in the record for the referee's findings and our deferential standard of review, Tayari–Garrett's challenges to the referee's findings and conclusions fail. First, the referee found, and the record confirms, that Tayari–Garrett was convicted, after a jury trial, of misdemeanor contempt of court, in violation of Minn.Stat. § 588.20, subd. 2(4) —specifically for the “willful disobedience to [a] court mandate between April 16 and May 9, 2011.” This conviction constitutes conclusive evidence that Tayari–Garrett willfully disobeyed a court mandate. See Rule 19(a), RLPR (“A lawyer's criminal conviction in any American jurisdiction ... is, in proceedings under these rules, conclusive evidence that the lawyer committed the conduct for which the lawyer was convicted.”). Nonetheless, Tayari–Garrett argues that her contempt conviction cannot be used to support any conclusion that she committed professional misconduct because “neither the conviction nor the Director's charges embrace any particular act for which [Tayari–Garrett] must be disciplined.”

Tayari–Garrett's argument is without merit. First, Tayari–Garrett cannot relitigate her conviction in this disciplinary proceeding. See Rule 19(a), RLPR ; In re Dvorak, 554 N.W.2d 399, 402 (Minn.1996) (“[A]ttorneys may not avoid the consequences of criminal conviction by attempting to relitigate the issue of guilt or innocence in subsequent disciplinary proceedings.”). Thus, to the extent that Tayari–Garrett seeks to challenge the specificity of the factual basis for her contempt conviction, or to challenge the court of appeals' affirmance of her conviction based on evidence presented at the disciplinary hearing, she is precluded from doing so.

Second, Tayari–Garrett's criminal contempt conviction for willfully disobeying a court mandate from April 16, 2011, to May 9, 2011, is a sufficiently specific basis upon which the referee could find that Tayari–Garrett committed professional misconduct. Rule 8.4(b) of the Minnesota Rules of Professional Conduct prohibits a lawyer from “commit[ing] a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects.” A criminal conviction for willfully disobeying a court mandate clearly has a direct relationship to, and “reflects adversely on,” Tayari–Garrett's “fitness as a lawyer.” See, e.g., In re Lundeen, 811 N.W.2d 602, 606 (Minn.2012).

The act of willfully disobeying a court mandate also constitutes a violation of Minn. R. Prof. Conduct 3.4(c) and 8.4(d). Rule 3.4(c) provides that “[a] lawyer shall not ... knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” Tayari–Garrett contends that because the Director and referee failed to specify the obligation or mandate that Tayari–Garrett knowingly disobeyed, the referee erred by concluding that Tayari–Garrett violated Minn. R. Prof. Conduct 3.4(c)...