In re Petition for Disciplinary Action Against George E. Hulstrand, A16-1589

• Decision Date: 18 April 2018
• Docket Number: A16-1589
• Citation: 910 N.W.2d 436
• Parties: IN RE Petition for DISCIPLINARY ACTION AGAINST George E. HULSTRAND, Jr., a Minnesota Attorney, Registration No. 0048033.
• Court: Minnesota Supreme Court

910 N.W.2d 436

IN RE Petition for DISCIPLINARY ACTION AGAINST George E. HULSTRAND, Jr., a Minnesota Attorney, Registration No. 0048033.

A16-1589

Supreme Court of Minnesota.

Filed: April 18, 2018

Susan M. Humiston, Director, Binh T. Tuong, Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

George E. Hulstrand, Jr., Willmar, Minnesota, pro se.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action and two supplementary petitions for disciplinary action against George E. Hulstrand, Jr. After an evidentiary hearing, the referee found, among other things, that Hulstrand misappropriated client funds, failed to safeguard client funds, neglected client matters, made false statements to a tribunal, failed to follow court orders, and failed to cooperate with disciplinary investigations. The referee recommended that we disbar Hulstrand. The only issue before us is the appropriate discipline to impose for Hulstrand’s professional misconduct. We conclude that it is disbarment.

FACTS

George E. Hulstrand, Jr., is a general practitioner in Willmar; he has been licensed to practice law in Minnesota since 1976. Hulstrand has been disciplined on four prior occasions for similar types of misconduct. He received three private admonitions in 2002, 2010, and 2012 for neglecting client matters, failing to communicate with clients, violating trust account rules, and failing to appear for hearings. He was also publicly reprimanded in 2008 for lacking competence, improperly withdrawing from representation, failing to communicate with clients, and failing to appear for hearings. See In re Hulstrand , 757 N.W.2d 690 (Minn. 2008) (order).

This disciplinary action involves professional misconduct based on violations of 18 rules in 13 client matters over 4 years, as well as Hulstrand’s subsequent failure to cooperate with disciplinary investigations. We summarize his misconduct below.

Misappropriation of Client Funds

Hulstrand misappropriated the funds of two clients, violating Rules 1.15(a)¹ and 8.4(c) 2 of the Minnesota Rules of Professional Conduct. Each client gave Hulstrand a filing fee, $335 and $350 respectively, so that Hulstrand could file their bankruptcy actions. He deposited their filing fees into his business account and then used their filing fees for his own expenses and purposes other than filing their bankruptcy actions. Even though Hulstrand never filed one client’s bankruptcy action, he refused to refund the filing fee.

Failing to Safeguard Client Funds and Return Unearned Fees

Hulstrand failed to safeguard client funds in seven client matters,³ violating Rules 1.5(b)(1),⁴ 1.15(a), and 1.15(c)(5) 5 of the Minnesota Rules of Professional Conduct. Hulstrand deposited a total of $4,070 of clients' funds, ranging from $200 to $1,350, into his business account rather than a trust account. He also failed to return unearned legal fees to his clients in three client matters, violating Rules 1.15(c)(4)⁶ and 1.16(d) 7 of the Minnesota Rules of Professional Conduct.

Neglecting Client Matters and Failing to Communicate with Clients

Hulstrand failed to perform work on seven client matters and failed to communicate with clients in eight matters, violating Rules 1.1,⁸ 1.3,⁹ 1.4(a)(3)–(4),¹⁰ and 3.2 11 of the Minnesota Rules of Professional Conduct. He repeatedly failed to work competently or diligently on seven client matters. For example, in one matter, Hulstrand took over a year to file his clients' bankruptcy action, and when he did file, he failed to file the necessary paperwork, which caused the court to dismiss the action. Hulstrand failed to successfully file this bankruptcy action and another client’s bankruptcy action. These clients were forced to hire new counsel, who completed their bankruptcy actions.

Additionally, Hulstrand failed to appear at a criminal proceeding involving another client. He did not tell this client that he would not attend. This omission forced this client to appear without counsel and the court to continue the matter.

In another matter, Hulstrand represented a vulnerable adult in a civil case arising out of the sale of real property. The opposing party filed a counterclaim, but Hulstrand failed to reply to the counterclaim. The court granted default judgment against the client for $44,274.53. The client hired a new attorney to appeal the default judgment. The new attorney successfully argued to the court of appeals that Hulstrand’s representation was "egregiously inadequate" and obtained a reversal of the default judgment.

Hulstrand also failed to communicate with clients in eight matters. After accepting fees from clients, he often failed to return client calls for months on end. For example, one client attempted to contact Hulstrand for 9 months without success, while other clients, a couple, struggled to communicate with Hulstrand over the 3 years that he claimed to be assisting them in filing their bankruptcy action. In another matter, Hulstrand failed to forward a negative court ruling to his client until he was prompted to do so, which was 2 weeks after the ruling.

Making a False Statement to a Tribunal

Hulstrand made a false statement to a court, violating Rules 3.3(a)(1),¹² 4.1,¹³ and 8.4(c) of the Minnesota Rules of Professional Conduct. Hulstrand attended a criminal proceeding on his client’s behalf, but his client did not appear for the hearing. When the judge asked Hulstrand about his client’s absence, Hulstrand falsely told the judge that he had informed opposing counsel that his client may not be coming to that day’s hearing. In fact, he never told opposing counsel that his client would be absent from the hearing.

Failing to Comply with Court Orders and Rules

Hulstrand failed to comply with court orders and rules in three client matters, violating Rules 1.1, 1.3, 3.1,¹⁴ 3.4(c)–(d),¹⁵ and 8.4(d) 16 of the Minnesota Rules of Professional Conduct. As previously noted, he failed to reply to a counterclaim and discovery requests, which caused the court to enter a default judgment for over $44,000 against the client. In another matter, the district court sanctioned Hulstrand for filing a frivolous motion and failing to obey an order that sought to prevent the assertion of frivolous claims. And, as previously noted, Hulstrand filed his clients' bankruptcy actions but failed to file the necessary supporting documents. The court then ordered his clients to produce the necessary documents. Hulstrand failed to file the documents on their behalf and failed to file a request for an extension to file.

Failing to Cooperate with the Director’s Disciplinary Investigations

Hulstrand failed to cooperate with the Director’s disciplinary investigations, violating Rule 8.1 17 of the Minnesota Rules of Professional Conduct and Rule 25 18 of the Rules on Lawyers Professional Responsibility (RLPR). Between 2015 and 2016, he repeatedly failed to respond or timely respond to the several complaints filed against him. And when Hulstrand did reply, he failed to provide substantive responses to the complaints.

Following an evidentiary hearing, the referee concluded that Hulstrand committed the misconduct that was alleged in the petition and two supplementary petitions. The referee found several aggravating factors and no mitigating factors. The referee recommended that we disbar Hulstrand.

After the referee recommended disbarment, we temporarily suspended Hulstrand pending final resolution of this matter. See Rule 16(e), RLPR. We issued a briefing order, but Hulstrand did not file a brief. He also did not appear for oral argument.

ANALYSIS

Because no party ordered a transcript from the disciplinary hearing, the referee’s findings of fact and conclusions of law are conclusive, and the only issue before us is the appropriate discipline to impose. See Rule 14(e), RLPR ; In re Greenman , 860 N.W.2d 368, 371 (Minn. 2015). The referee recommended disbarment. "Although we give ‘great weight’ to the referee’s recommendation, we maintain the ultimate responsibility for determining the appropriate sanction." Greenman , 860 N.W.2d at 376 (citation omitted).

The purpose of attorney discipline "is not to punish the attorney, but rather to protect the public [and] the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys." In re Fairbairn , 802 N.W.2d 734, 742 (Minn. 2011) (citation omitted) (internal quotation marks omitted). Four factors guide our discipline determination: "(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 Nelson , 733 N.W.2d 458, 463 (Minn. 2007). We also consider aggravating and mitigating circumstances, as well as the discipline imposed in similar cases. See In re Tigue , 900 N.W.2d 424, 431 (Minn. 2017). We look to similar cases to guide our discipline determination, but we "tailor the discipline to the specific facts of each case." Greenman , 860 N.W.2d at 376.

A.

We first consider the nature of Hulstrand’s misconduct, which is serious and extensive. Hulstrand’s misappropriation of two clients' funds, totaling $685, by itself, "is particularly serious misconduct and usually warrants disbarment absent clear and convincing evidence of substantial mitigating factors." In re Garcia , 792 N.W.2d 434, 443 (Minn. 2010) (citation omitted) (internal quotation marks omitted). Misappropriation occurs when "funds are not kept in trust and are used for a purpose other than one specified by the client," or when a lawyer "perform[s] no work on [client] matters and never return[s] the funds to the client[ ]." In re Taplin , 837 N.W.2d 306, 311 (Minn. 2013) (citations omitted) (internal quotation marks omitted). Here, Hulstrand failed to keep his clients' funds in trust and used their funds for purposes other than the purpose specified by his clients.

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