In re Pitera, No. A12–0274.

CourtSupreme Court of Minnesota (US)
Writing for the CourtPER CURIAM.
Citation827 N.W.2d 207
PartiesIn re Petition for DISCIPLINARY ACTION AGAINST Brian Louis PITERA, a Minnesota Attorney, Registration No. 298475.
Decision Date06 March 2013
Docket NumberNo. A12–0274.

827 N.W.2d 207

In re Petition for DISCIPLINARY ACTION AGAINST Brian Louis PITERA, a Minnesota Attorney, Registration No. 298475.

No. A12–0274.

Supreme Court of Minnesota.

March 6, 2013.


[827 N.W.2d 208]



Syllabus by the Court

Disbarment is the appropriate sanction for an attorney who was convicted of first-degree felony assault, neglected a client matter, failed to return an unearned fee, failed to pay a law-related judgment, and failed to cooperate in the disciplinary process.


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

Brian Louis Pitera, Saint Cloud, MN, pro se.


OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (Director) seeks disciplinary action against respondent Brian Louis Pitera, a Minnesota attorney. The most serious misconduct alleged by the Director arises from Pitera's conviction of first-degree felony assault. The Director also alleges that Pitera engaged in professional misconduct by failing to (1) pay a law-related judgment, (2) appear at a hearing, (3) communicate his anticipated absence at that hearing to the district court or his client, (4) refund any portion of an unreasonable fee, and (5) cooperate with the disciplinary process.

Pitera was admitted to the practice of law on December 29, 1999, and the Director has disciplined him on one previous occasion. On January 10, 2005, the Director placed Pitera on private probation for 2 years because he accepted representation of a client and appeared in district court three times on that client's behalf while suspended from the practice of law for nonpayment of his lawyer registration fee. Pitera also failed to communicate his suspension to the client, appear in court for the client's trial, or cooperate with the Director's disciplinary investigation.

The Director served Pitera with the present disciplinary petition on February 9, 2012. Pitera did not respond to the Director's petition, and we deemed the allegations contained therein admitted, pursuant to Rule 13(b), Rules on Lawyers Professional Responsibility (RLPR). The serious nature of Pitera's admitted misconduct compels our conclusion that disbarment is the appropriate sanction.

I.

Because we deemed the allegations in the Director's disciplinary petition admitted, the sole question before us is the appropriate discipline to impose for Pitera's misconduct. We summarize that misconduct below.

The Felony Assault Matter

On or about December 25, 2010, Pitera assaulted and seriously injured his roommate. On August 1, 2011, Pitera pleaded guilty to first-degree felony assault, Minn.Stat. § 609.221, subd. 1 (2012), and the district court sentenced him to 75 months in prison. Pitera violated Minn. R. Prof. Conduct 8.4(b) because of his conviction of a felony offense.1

K.G. Matter

K.G. was charged with two felony narcotics offenses. K.G.'s father paid Pitera a flat fee of $2,000 to represent his son at trial. Pitera appeared in court two or three times on K.G.'s behalf, but subsequently failed to appear at a scheduled hearing on August 8, 2011. Pitera did not

[827 N.W.2d 209]

notify K.G., the prosecutor, or the judge of his absence, and the court rescheduled the hearing as a result. Thereafter, K.G. repeatedly tried to contact Pitera to no avail. Despite failing to represent K.G. through trial, Pitera has not returned any portion of the $2,000 fee. Pitera's neglect of the K.G. matter and failure to refund an unearned fee violated Minn. R. Prof. Conduct 1.3, 1.4(b), 1.5(a), 3.2, 3.4(c), and 8.4(d).2

Dr. T.H.E. Matter

Pitera represented a client who was involved in a personal injury action. Prior to the representation, Dr. T.H.E. (“the doctor”) provided post-accident chiropractic services to Pitera's client. On June 7, 2000, Pitera requested that the doctor draft a narrative report that described the client's injuries. He also asked the doctor to send him the client's medical records. Pitera informed the doctor in writing that all charges for the requested information would be paid by his office upon “receipt of an invoice.” The doctor drafted the narrative report and provided it to Pitera, along with the requested medical records, in July 2000.

Pitera never paid the doctor for the report or records, and he did not cooperate with the doctor's attempts to collect the debt. On October 1, 2002, the doctor obtained a $421.71 judgment against Pitera. Pitera never paid the judgment. The doctor eventually retained an attorney to assist him in recovering the 2002 judgment and took various steps to collect on the judgment, all of which were unsuccessful. Pitera has not paid, and has made no progress toward paying, the judgment. Pitera's failure to pay the judgment violated Minn. R. Prof. Conduct 8.4(d).

Failure to Cooperate

The doctor filed an ethics complaint against Pitera. On October 18, 2010, the Director sent Pitera notice of the investigation into the doctor's complaint. Pitera timely responded to the initial complaint, but failed to respond to the Director's five subsequent requests for information over a 3–month period. Similarly, Pitera failed to respond to requests for information from the Director regarding his conviction of first-degree felony assault. He also failed to respond to the ethics complaint filed against him arising out of the K.G. matter or any of the Director's requests for information about Pitera's failure to appear at K.G.'s August 8, 2011 hearing. Pitera's failure to cooperate with the disciplinary investigation violated Minn. R. Prof. Conduct 8.1(b) and Rule 25, RLPR.3

[827 N.W.2d 210]

II.

The sole question before us is the appropriate discipline to impose on Pitera because the allegations in the petition are deemed admitted. In re Rymanowski, 809 N.W.2d 217, 224 (Minn.2012). 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) (citations omitted). The four factors that guide our imposition of discipline are “the nature of the misconduct, the cumulative weight of the disciplinary violations, the harm to the public, and the harm to the legal profession.” In re Lundeen, 811 N.W.2d 602, 608 (Minn.2012) (citation omitted). We also consider aggravating and mitigating circumstances. Id. We look to similar cases for guidance, but ultimately tailor discipline to the specific facts of each case. Id.

The Nature of the Misconduct

We first consider the nature of Pitera's misconduct. Minnesota Rule of Professional Conduct 8.4(b) states that an attorney commits professional misconduct by committing “a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects.” We generally view “felony convictions as serious misconduct,” and we are more likely to disbar “[w]hen a lawyer's felony criminal misconduct occurs within the practice of law.” In re Perez, 688 N.W.2d 562, 567, 569 (Minn.2004). When an attorney commits criminal conduct unrelated to the practice of law, however, “[w]e have typically imposed suspensions or public reprimands.” In re Farley, 771 N.W.2d 857, 864 (Minn.2009). Nonetheless, we have occasionally disbarred attorneys for engaging in “criminal conduct unrelated to the practice [of] law, including serious drug-related offenses, crimes of violence, and acts involving dishonesty.” 4Id. at 864–65.

Here, the district court convicted Pitera of first-degree felony assault and sentenced him to 75 months' imprisonment. Nothing in the record suggests that Pitera's criminal conduct was related to the practice...

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12 practice notes
  • In re Petition for Disciplinary Action against Usumanu, A21-1666
    • United States
    • Supreme Court of Minnesota (US)
    • September 14, 2022
    ...by the disciplined attorney as well as by other attorneys.'" In re Klotz, 909 N.W.2d 327, 335 (Minn. 2018) (quoting In re Pitera, 827 N.W.2d 207, 210 (Minn. 2013)). We "consider four factors in determining the appropriate discipline to impose '(1) the nature of the misconduct; (2) the cumul......
  • In re Klotz, A16-1631
    • United States
    • Supreme Court of Minnesota (US)
    • March 21, 2018
    ...protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.’ " In re Pitera , 827 N.W.2d 207, 210 (Minn. 2013) (quoting In re Rebeau , 787 N.W.2d 168, 173 (Minn. 2010) ). We give "great weight" to the referee’s recommended disciplin......
  • In re Siders, A17-0514
    • United States
    • Supreme Court of Minnesota (US)
    • October 27, 2017
    ...5 years in prison. See Minn. Stat. § 609.324, subd. 1(c)(3). "We generally view felony convictions as serious misconduct." In re Pitera, 827 N.W.2d 207, 210 (Minn. 2013) (quoting In re Perez, 688 N.W.2d 562, 567 (Minn. 2004) ) (internal quotation marks omitted). But respondent's criminal co......
  • In re Matson, A16-0137
    • United States
    • Supreme Court of Minnesota (US)
    • January 18, 2017
    ...conduct and merits severe discipline"). And Matson failed to cooperate in six disciplinary investigations. See, e.g. , In re Pitera , 827 N.W.2d 207, 211 (Minn. 2013) (stating that noncooperation with the disciplinary process itself may warrant indefinite suspension and that it increases th......
  • Request a trial to view additional results
12 cases
  • In re Petition for Disciplinary Action against Usumanu, A21-1666
    • United States
    • Supreme Court of Minnesota (US)
    • September 14, 2022
    ...by the disciplined attorney as well as by other attorneys.'" In re Klotz, 909 N.W.2d 327, 335 (Minn. 2018) (quoting In re Pitera, 827 N.W.2d 207, 210 (Minn. 2013)). We "consider four factors in determining the appropriate discipline to impose '(1) the nature of the misconduct; (2) the cumul......
  • In re Klotz, A16-1631
    • United States
    • Supreme Court of Minnesota (US)
    • March 21, 2018
    ...protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.’ " In re Pitera , 827 N.W.2d 207, 210 (Minn. 2013) (quoting In re Rebeau , 787 N.W.2d 168, 173 (Minn. 2010) ). We give "great weight" to the referee’s recommended disciplin......
  • In re Siders, A17-0514
    • United States
    • Supreme Court of Minnesota (US)
    • October 27, 2017
    ...5 years in prison. See Minn. Stat. § 609.324, subd. 1(c)(3). "We generally view felony convictions as serious misconduct." In re Pitera, 827 N.W.2d 207, 210 (Minn. 2013) (quoting In re Perez, 688 N.W.2d 562, 567 (Minn. 2004) ) (internal quotation marks omitted). But respondent's criminal co......
  • In re Matson, A16-0137
    • United States
    • Supreme Court of Minnesota (US)
    • January 18, 2017
    ...conduct and merits severe discipline"). And Matson failed to cooperate in six disciplinary investigations. See, e.g. , In re Pitera , 827 N.W.2d 207, 211 (Minn. 2013) (stating that noncooperation with the disciplinary process itself may warrant indefinite suspension and that it increases th......
  • Request a trial to view additional results

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