In re Petition for Disciplinary Action Against Linda A. Brost, A13–2307.

• Decision Date: 23 July 2014
• Docket Number: No. A13–2307.,A13–2307.
• Citation: 850 N.W.2d 699
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Linda A. BROST, a Minnesota Attorney, Registration No. 182692.
• Court: Minnesota Supreme Court

850 N.W.2d 699

In re Petition for DISCIPLINARY ACTION AGAINST Linda A. BROST, a Minnesota Attorney, Registration No. 182692.

No. A13–2307.

Supreme Court of Minnesota.

July 23, 2014.

Syllabus by the Court

Where respondent stole $43,000 from client, stole the same client's identity, and failed to cooperate with a disciplinary investigation, the appropriate discipline is disbarment.

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

Linda A. Brost, Saint Paul, MN, pro se.

OPINION

PER CURIAM.

On December 16, 2013, the Director of the Office of Lawyers Professional Responsibility (OLPR) filed a petition for disciplinary action against Linda A. Brost. The petition alleged that Brost engaged in professional misconduct when she committed theft by swindle and identity theft, stealing approximately $43,000 from a client. The petition also alleged that Brost failed to cooperate in the Director's disciplinary investigation. Brost did not respond to the petition. By order filed on February 5, 2014, we deemed all allegations in the petition for disciplinary action admitted. The only issue in this case is what discipline to impose. The Director seeks disbarment.

I.

Respondent, Linda A. Brost, was admitted to practice law in Minnesota on October 12, 1987. Brost was indefinitely suspended on March 31, 2009, for using the expired notary stamp of a deceased notary to fraudulently notarize her own signature on a certificate of trust prepared for a client, submitting the fraudulent document to a bank, and failing to cooperate with the Director's investigation, in violation of Minn. R. Prof. Conduct 8.1(a), 8.1(b),¹8.4(c) ² and 8.4(d),³ and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).⁴In re Brost, 763 N.W.2d 637, 638 (Minn.2009). Brost remains suspended. The Director now seeks disbarment for Brost's theft of $43,000, Brost's identity theft, and Brost's non-cooperation with the Director's investigation.⁵

A. Theft by Swindle and Identity Theft

Brost's theft arose from her representation of A.F., which dates back to 1993 when Brost drafted a will for A.F. Two friends of A.F. were each to receive gifts of $10,000 upon A.F.'s death and A.F.'s remaining assets were to be evenly distributed to the Church of St. Francis De Sales of St. Paul and Shriners Hospital, Twin Cities Unit. A.F. died in September 2005. When A.F. passed away, he owned two annuity policies he had purchased from Jackson National Life Insurance in 1997. His two friends were beneficiaries of one policy and his estate was the beneficiary of the other policy.

Brost knowingly and intentionally devised a scheme to avoid reporting A.F.'s two annuities to A.F.'s estate during probate. Between March 31, 2011, and March 31, 2012, Brost cashed or collected monthly annuity payments from A.F.'s annuities. In early 2012, Brost, pretending to be A.F., surrendered one of the two annuities for a cash payment of $28,641.60. Brost stole a total of approximately $43,000.

Based on this conduct, Brost was charged with six felonies, including theft by swindle, identity theft, aggravated forgery, and insurance fraud. In July 2013, Brost pleaded guilty and was later convicted of one count of theft by swindle, in violation of Minn.Stat. § 609.52, subd. 2(4) (2012), and one count of identity theft, in violation of Minn.Stat. § 609.527, subd. 2 (2012), both felonies. The Director alleges this conduct violated Minn. R. Prof. Conduct 8.4(b) ⁶ and (c), which make it professional misconduct to commit a criminal act that reflects dishonesty or to engage in dishonest, fraudulent, or deceitful conduct.

B. Non–Cooperation with the Director's Investigation

In April 2013 a former client of Brost's filed a complaint with the Director alleging that Brost had engaged in professional misconduct. The Director mailed a notice of investigation to Brost on May 14, 2013, directing Brost to provide the former client and the Director with a written response within 14 days. Brost did not provide a response. The Director sent letters on May 31, 2013, June 20, 2013, and July 22, 2013, to Brost's Saint Paul address, which was her address of record with the Minnesota Attorney Registration System. In these letters, the Director continued to advise Brost that failing to respond may constitute a separate disciplinary offense. The Director also sent a letter to Brost's secondary address in Wisconsin, advising her that the Director had not received her response to the notice of investigation and that failure to respond may constitute a separate disciplinary offense. Brost failed to respond to any of the letters sent by the Director.

After Brost pleaded guilty to the theft of A.F.'s annuity payments, the Director mailed a notice to Brost's Saint Paul address on July 30, 2013, of a new investigation regarding Brost's criminal matter and requesting a complete written explanation within two weeks. The Director sent additional letters regarding the investigation to Brost's Saint Paul and Wisconsin addresses on August 15, 2013, September 12, 2013, and October 3, 2013. Brost failed to respond. Although none of the letters sent by the Director were returned as undeliverable, the Director has not received any communication from Brost regarding the alleged misconduct. The Director alleges that this failure to cooperate violates Minn. R. Prof. Conduct 8.1(b) and Rule 25, RLPR, which require cooperation with the Director during a disciplinary investigation.

Brost was personally served with the petition for disciplinary action on December 6, 2013. Brost failed to respond to the petition. Based on Brost's failure to respond, the Director filed a motion for summary relief requesting the court deem all allegations in the petition admitted pursuant to Rule 13(b), RLPR.⁷ We issued an order directing that all allegations contained in the petition for disciplinary action are deemed admitted. SeeRule 13(b), RLPR; see also In re Vaught, 693 N.W.2d 886, 890 (Minn.2005) (“[U]nder the RLPR and our case law, when an attorney subject to disciplinary proceedings fails to file an answer within the time provided, the allegations set forth in the petition shall be deemed admitted.”). Furthermore, Brost's criminal convictions are conclusive evidence that Brost committed theft by swindle and identity theft. Rule 19(a), RLPR (“A lawyer's criminal conviction ... [is] conclusive evidence that the lawyer committed the conduct for which the lawyer was convicted.”). Based on the foregoing misconduct, we determine that Brost violated Minn. R. Prof. Conduct 8.1(b), 8.4(b), 8.4(c), and Rule 25, RLPR. Thus, the only issue before us is the appropriate discipline to impose for an attorney who stole over $43,000 from a client, stole her client's identity, and failed to cooperate with the Director's investigation.

II.

The purpose of discipline 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). The four factors that guide this court's imposition of discipline are: “(1) the nature of the misconduct; (2) the cumulative weight of the disciplinary violations; (3) the harm to the public; and (4) the harm to the legal profession.” In re Fru, 829 N.W.2d 379, 388 (Minn.2013) (citation omitted) (internal quotation marks omitted). Aggravating and mitigating circumstances are also considered. Id. This court looks to past cases for guidance as to the discipline to impose, but the discipline is tailored to the specific facts of each case. Id.

A. Nature of the Misconduct

An attorney's felony conviction for theft, fraud, or embezzlement has long been treated as serious professional misconduct that often warrants disbarment, “particularly where the criminal conduct occurs ... within the practice of law.” In re Andrade, 736 N.W.2d 603, 605 (Minn.2007); see also In re Perez, 688 N.W.2d 562, 567–69 (Minn.2004); In re Ossanna, 288 Minn. 541, 180 N.W.2d 260 (1970). However, “felony convictions do not result in automatic disbarment.” In re Hedlund, 293 N.W.2d 63, 67 (Minn.1980) (citing In re Scholle, 274 N.W.2d 112 (Minn.1978)). We will “look at the circumstances surrounding the criminal act to see whether some discipline less than disbarment would be appropriate.” Id. at 66.

Brost's theft of $43,000 through the collection of A.F.'s annuity payments was serious misconduct, and it occurred within the practice of law. ⁸ Her misconduct directly stemmed from her relationship with her former client, A.F. The presumptive discipline for misappropriation of client funds is disbarment, unless there are substantial mitigating circumstances. In re Jones, 834 N.W.2d 671, 681 (Minn.2013). We have disbarred attorneys for misappropriating far less than $40,000 of client funds. See, e.g., In re Hummel, 839 N.W.2d 78, 81–82 (Minn.2013) (disbarring attorney who misappropriated more than $10,000 in client funds, failed to maintain required trust account records, made false statements to the Director, and failed to cooperate); In re Lundeen, 811 N.W.2d 602, 608–09 (Minn.2012) (disbarring attorney who misappropriated more than $7,800 of client funds). Brost has not offered any mitigating factors.

Brost also failed to cooperate with the disciplinary investigation, in violation of Minn. R. Prof. Conduct 8.1(b) and Rule 25, RLPR. The “noncooperation with the disciplinary process, by itself, may warrant indefinite suspension and, when it exists in connection with other misconduct, noncooperationincreases the severity of the disciplinary sanction.” In re Nelson, 733 N.W.2d 458, 464 (Minn.2007). Here, Brost failed to cooperate with the disciplinary proceeding by failing to respond to lawful demands for information from the OLPR. We consider this lack of cooperation in conjunction...