In re Petition for Disciplinary Action Against Randall D. B. Tigue, No. A13–0519.

CourtSupreme Court of Minnesota (US)
Writing for the CourtPER CURIAM.
Citation843 N.W.2d 583
Docket NumberNo. A13–0519.
Decision Date12 March 2014
PartiesIn re Petition for DISCIPLINARY ACTION AGAINST Randall D. B. TIGUE, a Minnesota Attorney, Registration No. 110000.

843 N.W.2d 583

In re Petition for DISCIPLINARY ACTION AGAINST Randall D. B. TIGUE, a Minnesota Attorney, Registration No. 110000.

No. A13–0519.

Supreme Court of Minnesota.

March 12, 2014.


[843 N.W.2d 584]



Syllabus by the Court

1. The referee's failure to address remorse was not clear error because neither party raised the issue of remorse at the evidentiary hearing.

2. Respondent's misconduct warrants a 30–day suspension.


Martin A. Cole, Director, Julie E. Bennett, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

Randall D. B. Tigue, Golden Valley, Minnesota, pro se.


OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Randall D. B. Tigue. Following an evidentiary hearing, the referee found that Tigue failed to maintain trust account books and records, failed to retain trust account bank records for the required period of time, and negligently misappropriated client funds. The referee recommended a public reprimand and 3 years of supervised probation. The Director challenges the referee's recommended discipline, arguing that Tigue should be indefinitely suspended for a minimum of 90 days and required to petition for reinstatement. We conclude that Tigue's trust account violations warrant a 30–day suspension.

I.

Tigue was admitted to practice law in Minnesota in October 1973. In October 2007, Tigue was publicly reprimanded and placed on 2 years of probation for failing to properly maintain his trust account books and records in connection with a 2005 overdraft. In re Tigue, No. A07–1936, Order at 2 (Minn. filed Oct. 26, 2007). He was also required to make his trust account books and records available to the Director during the probation. Id. Tigue's probation ended in October 2009.

The Director filed the instant petition for disciplinary action against Tigue for similar trust account violations. The

[843 N.W.2d 585]

petition alleged that between May 2010 and June 2012, Tigue again failed to properly maintain his trust account, leading to a shortage and causing the trust account to become overdrawn. Tigue timely answered the petition, and we appointed a referee.

Following an evidentiary hearing, the referee issued findings of fact, conclusions of law, and a recommendation for discipline. The referee made the following findings and conclusions.

In January 2012, Tigue's trust account became overdrawn, and the bank reported the overdraft to the Director. The Director initiated an overdraft inquiry and discovered that the overdraft resulted from Tigue's failure to maintain and reconcile his trust account. The overdraft inquiry was converted into a formal disciplinary investigation. After obtaining copies of some records from his bank because he had not retained them, Tigue submitted complete trust account books and records dating back to October 2009.

The Director audited those records and discovered that Tigue's trust account balance was “continuously short of [the] amount necessary to cover aggregate client balances” from May 5, 2010, to June 14, 2012. The shortages ranged from $0.30 to $481.80. In each instance, the shortage was caused by Tigue issuing a check to himself in an amount exceeding the funds available for disbursement. In February 2012, Tigue began making deposits into his trust account to cover the shortages. However, it took him until June 2012 to eliminate the overall shortage. Tigue admitted that in October 2009 he let maintenance of his trust account books and records “slide” because he was no longer on probation and no longer had an obligation to submit his trust account records to the Director.

The referee concluded that, between October 2009 and June 2012, Tigue failed to maintain and retain the required trust account books and records, in violation of Minn. R. Prof. Conduct 1.15(c)(3) and (h) and Appendix 1 thereto.1 The referee also found that Tigue negligently misappropriated client funds, in violation of Minn. R. Prof. Conduct 1.15 and Appendix 1 thereto, and 8.4(d).2 The Director and Tigue agree with the referee's determination that Tigue violated the above-mentioned rules.

The referee identified four factors that aggravated Tigue's professional misconduct, specifically that Tigue: (1) has a disciplinary history, having been disciplined for similar misconduct in 2007; (2) engaged in misconduct similar to past misconduct “almost immediately” after completing probation in 2009; (3) overdrew his trust account in January 2012 and failed to remedy the shortage for over 5 months; and (4) had been practicing law for nearly 40 years at that time.

The referee found three mitigating factors, concluding that Tigue: (1) admitted

[843 N.W.2d 586]

his misconduct; (2) submitted monthly trust account records to the Director between June 2012 and June 2013 showing his compliance with applicable rules; and (3) did not cause monetary loss to any of his clients, evidenced by the fact that Tigue's clients were unaware of any trust account irregularities.

The referee recommended that Tigue be publicly reprimanded and placed on supervised probation for 3 years. The referee also recommended that the terms of Tigue's probation require him to: (1) maintain trust account books and records in compliance with the rules, and that these be made available to the Director; (2) hire a certified public accountant (CPA) to directly supervise Tigue's maintenance of his trust account books and records; (3) provide the Director with monthly certifications, signed by the CPA, that all trust account books and records are being maintained and that Tigue's trust account has not been overdrawn; and (4) fully cooperate with the Director's monitoring of Tigue's probation.

The Director challenges the referee's consideration of aggravating factors and argues that Tigue should be suspended for 90 days and be required to petition for reinstatement. Tigue urges the court to impose the recommended discipline, although he argues that modifications should be made to the recommended terms of probation.

II.

The Director ordered a transcript of the disciplinary hearing; therefore, the referee's findings of fact and conclusions of law are not conclusive, and we are not bound by them. SeeRule 14(e), Rules on Lawyers Professional Responsibility (RLPR); In re Ulanowski, 800 N.W.2d 785, 793 (Minn.2011). When a party orders a transcript, we apply a clearly erroneous standard and will only reverse the referee's findings and conclusions if they are unsupported by the record. In re Jones, 834 N.W.2d 671, 677 (Minn.2013). Although not binding, the “referee's recommendation for discipline carries great weight”; however, we have “the ultimate responsibility for determining what discipline, if any, is appropriate.” In re Selmer, 749 N.W.2d 30, 36 (Minn.2008) (citation omitted) (internal quotation marks omitted).

Because neither party challenges any of the referee's findings or conclusions with respect to Tigue's acts of misconduct, the only issue before us is the appropriate discipline to impose. The purpose of disciplinary sanctions for professional misconduct 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 Rebeau, 787 N.W.2d 168, 173 (Minn.2010). Four factors guide our imposition of discipline: (1) the nature of the misconduct; (2) the cumulative weight of the violations; (3)...

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11 practice notes
  • In re Tigue, A19-1603
    • United States
    • Supreme Court of Minnesota (US)
    • June 16, 2021
    ...failing to properly maintain trust account books and records and for negligent misappropriation of client funds. In re Tigue (Tigue II) , 843 N.W.2d 583, 588–89 (Minn. 2014). We noted that Tigue had "intentionally stopped maintaining his trust account books and records shortly after hi......
  • In re Klotz, A16-1631
    • United States
    • Supreme Court of Minnesota (US)
    • March 21, 2018
    ...(Minn. 1992). In contrast, negligent misappropriation often results in a short suspension or lesser discipline. See, e.g. , In re Tigue , 843 N.W.2d 583, 585, 589 (Minn. 2014) (suspending an attorney for 30 days for negligent misappropriation); In re Fogel , 812 N.W.2d 81, 82 (Minn. 2012) (......
  • In re Swanson, A20-1027
    • United States
    • Supreme Court of Minnesota (US)
    • December 22, 2021
    ...clearly erroneous unless the basis for that finding "is raised as an issue in the proceedings before the referee." In re Tigue, 843 N.W.2d 583, 588 (Minn. 2014); see also In re Tayari-Garrett, 866 N.W.2d 513, 520 (Minn. 2015) ("[The respondent] did not ask the referee to find......
  • In re Petition for Disciplinary Action Against Tayari-Garrett, No. A14–0995.
    • United States
    • Supreme Court of Minnesota (US)
    • July 1, 2015
    ...a result, her claim that the referee clearly erred by declining to find any mitigating factors for her misconduct fails. See In re Tigue, 843 N.W.2d 583, 588 (Minn.2014) (“[A] referee's failure to make a factual finding regarding remorse is clear error only when the respondent's remorse or ......
  • Request a trial to view additional results
11 cases
  • In re Tigue, A19-1603
    • United States
    • Supreme Court of Minnesota (US)
    • June 16, 2021
    ...failing to properly maintain trust account books and records and for negligent misappropriation of client funds. In re Tigue (Tigue II) , 843 N.W.2d 583, 588–89 (Minn. 2014). We noted that Tigue had "intentionally stopped maintaining his trust account books and records shortly after hi......
  • In re Klotz, A16-1631
    • United States
    • Supreme Court of Minnesota (US)
    • March 21, 2018
    ...(Minn. 1992). In contrast, negligent misappropriation often results in a short suspension or lesser discipline. See, e.g. , In re Tigue , 843 N.W.2d 583, 585, 589 (Minn. 2014) (suspending an attorney for 30 days for negligent misappropriation); In re Fogel , 812 N.W.2d 81, 82 (Minn. 2012) (......
  • In re Swanson, A20-1027
    • United States
    • Supreme Court of Minnesota (US)
    • December 22, 2021
    ...clearly erroneous unless the basis for that finding "is raised as an issue in the proceedings before the referee." In re Tigue, 843 N.W.2d 583, 588 (Minn. 2014); see also In re Tayari-Garrett, 866 N.W.2d 513, 520 (Minn. 2015) ("[The respondent] did not ask the referee to find......
  • In re Petition for Disciplinary Action Against Tayari-Garrett, No. A14–0995.
    • United States
    • Supreme Court of Minnesota (US)
    • July 1, 2015
    ...a result, her claim that the referee clearly erred by declining to find any mitigating factors for her misconduct fails. See In re Tigue, 843 N.W.2d 583, 588 (Minn.2014) (“[A] referee's failure to make a factual finding regarding remorse is clear error only when the respondent's remorse or ......
  • Request a trial to view additional results

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