In re Riehm, A13–1786.

• Decision Date: 27 July 2016
• Docket Number: No. A13–1786.,A13–1786.
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Michael John RIEHM, a Minnesota Attorney, Registration No. 0296570.
• Court: Minnesota Supreme Court

883 N.W.2d 223

In re Petition for DISCIPLINARY ACTION AGAINST Michael John RIEHM, a Minnesota Attorney, Registration No. 0296570.

No. A13–1786.

Supreme Court of Minnesota.

July 27, 2016.

Susan M. Humiston, Director, Timothy M. Burke, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, MN, for petitioner.

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

Considered and decided by the court.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (the Director) filed two amended petitions for disciplinary action against respondent Michael John Riehm alleging two counts of misconduct: (1) an improper referral and fee-sharing arrangement and (2) a first-degree assault conviction. At a hearing before the referee, Riehm admitted the allegations in the Director's petitions as part of an oral stipulation for discipline, and the parties agreed to recommend that we indefinitely suspend Riehm for a minimum of 5 years. But Riehm now contends that he may withdraw his admissions if we decide not to impose the parties' recommended discipline. We conclude that Riehm unconditionally admitted the Director's allegations of misconduct as part of the oral stipulation; therefore, he cannot now withdraw his admissions. We further hold that, as a matter of law, an attorney may not condition his or her admissions to allegations of misconduct on receiving a particular disposition from our court. Finally, after considering Riehm's admissions and the recommendations of the Director and the referee, we indefinitely suspend Riehm from the practice of law for a minimum of 5 years.

I.

This case has an unusual procedural history. The Director first filed a petition for disciplinary action against Riehm more than 2 years ago. Between then and now, the parties filed two stipulations for discipline, both of which we rejected. The Director also filed two amended petitions for disciplinary action, both of which are now before us. Additionally, we are presented with the parties' oral stipulation regarding the two most recent petitions, accompanied by an unusual ruling by the referee: an order confirming that the oral stipulation is enforceable. To properly understand the context of this case, a detailed discussion of its procedural history, as well as the allegations of misconduct, is necessary.

Improper Referral and Fee–Sharing Arrangement

Riehm's misconduct began with an improper referral and fee-sharing arrangement. Around August 2010 Riehm entered into a secret referral agreement with M.M., an associate at another law firm. Riehm promised to pay M.M. one-third of any attorney fees recovered in matters referred by M.M. M.M. referred over 100 matters to Riehm, and Riehm undertook representation in at least 23 of these matters. Riehm paid M.M. approximately $11,000 in return for the referrals. Although Riehm's retainer agreements with the referred clients stated that Riehm may share attorney fees with another lawyer, the retainer agreements did not disclose Riehm's referral and fee-sharing arrangement with M.M. Additionally, Riehm took steps to prevent M.M.'s firm from learning about the arrangement. Riehm wrote checks for the referral fees payable to M.M. personally, used M.M.'s home address on the checks, delivered the checks personally, and sent communications to M.M.'s personal e-mail account.

Beginning around March 2011 Riehm entered into a similar arrangement with R.D., another associate at M.M.'s firm. Riehm undertook representation of at least one client that R.D. referred, but Riehm did not make any payments to R.D. Riehm's retainer agreement with the referred client did not disclose that he had agreed to share fees with R.D.

In September 2013 the Director filed a petition for disciplinary action alleging that Riehm had violated Minn. R. Prof. Conduct 8.4(c)¹

by entering into the referral and fee-sharing scheme. The parties immediately filed a stipulation for discipline in which Riehm “unconditionally admit[ted] the allegations of the petition.” But the Director's petition did not discuss Riehm's violations of Minn. R. Prof. Conduct 1.5(e),² which arose out of the same conduct as the Rule 8.4(c) violations. Accordingly, we ordered the Director to file an amended petition so that we could consider the two rule violations together to better determine the appropriate discipline. See

In re Petition for Review of Panel Decision Against Respondent, Panel Case No. 35104, 851 N.W.2d 620, 624–26 (Minn.2014). Because the amended petition would allege an additional rule violation, we rejected the parties' September 2013 stipulation.

The Director filed an amended and supplementary petition for discipline in August 2014 (“the first amended petition”), alleging violations of both Rule 8.4(c)

and Rule 1.5(e). In November 2014 the parties entered into a second stipulation for discipline. Once again, Riehm “unconditionally admit[ted] the allegations of the amended and supplementary petition.” But there was an internal inconsistency within the second stipulation. One of the allegations in the petition, which Riehm unconditionally admitted, was that Riehm had “assisted M.M. in secreting the arrangement from” M.M.'s firm. Yet, the stipulation stated that Riehm “unknowingly assisted M.M. in the conduct referenced in the petition.” (Emphasis added.) Because of these contradictory statements, we ordered the parties to file memoranda or a new stipulation clarifying whether Riehm admitted to purposefully hiding the referral arrangement from M.M.'s firm. The parties' memoranda expressed conflicting interpretations of the stipulation, and we therefore rejected the second stipulation.

First–Degree Assault Matter

During the time period in which we were considering the first stipulation, Riehm committed an assault. In the early morning hours of January 1, 2014, Riehm stabbed a fellow bar patron with a steak knife, puncturing the victim's lung. Riehm was charged with one count of first-degree assault, Minn.Stat. § 609.221, subd. 1 (2014)

. After a bench trial on stipulated facts, the district court found Riehm guilty and convicted him of the offense.

The presumptive sentence for an individual convicted of first-degree assault with a criminal history score of zero is 86 months. Minn. Sent. Guidelines 4.A. At a June 15, 2015 sentencing hearing, the parties requested that the district court stay Riehm's 86–month sentence for 7 years, during which time Riehm would serve probation. The parties also requested that Riehm serve 365 days in the workhouse and pay $43,503.78 in restitution. The district court imposed the parties' recommended sentence. The district court imposed this downward dispositional departure, in part, because the victim agreed with the terms, Riehm was amenable to probation, and Riehm would be better able to pay restitution to the victim if he was placed on probation rather than imprisoned.

The Present Phase of the Disciplinary Proceedings

The Director filed a second amended and supplementary petition for disciplinary action (“the second amended petition”) alleging that Riehm had violated Minn. R. Prof. Conduct 8.4(b)³

by committing the assault. The parties appeared before the referee for a trial on July 13, 2015. Minutes into the trial, Riehm's attorney requested a break to discuss a settlement offer. After a brief recess, the parties indicated that they had orally agreed to a stipulation for discipline.

Due to the procedural history of this case, in which we had rejected two prior stipulations for discipline, the referee decided that the parties' oral stipulation should “be placed on the record” before the referee so the referee could “at least take a look at” the stipulation. The Director represented that the oral stipulation included the following terms: (1) the parties would recommend that the Minnesota Supreme Court suspend Riehm indefinitely for a minimum of 5 years; (2) because of the “unique procedural history of this matter,” the parties would ask the referee to approve their stipulation; (3) Riehm would “admit[ ] without equivocation the allegations” in the first amended petition and the second amended petition; (4) certain documents from Riehm's criminal proceedings would be made part of the record before the Minnesota Supreme Court; and (5) Riehm would pay $900 in costs. The referee asked Riehm's counsel if he had any response or additions, to which he responded, “No, Your Honor.”

The referee then asked “Riehm to personally admit [the allegations] on the record.” Riehm took the stand and was administered the oath. The Director presented the first amended petition, paragraphs 1 through 12 of which listed the factual allegations related to the fee-sharing arrangement and paragraph 13 of which stated the rules of professional conduct that Riehm had violated. The Director asked Riehm whether he admitted “each of the allegations in paragraphs 1 through 13” of the first amended petition. Riehm answered, “I do.” The Director then presented the second amended petition, which discussed the assault. Riehm similarly admitted all the allegations in the second amended petition.

The referee then asked Riehm whether he had “any questions with regard to the effect of [his] admission at this point.” Riehm said no and indicated that he understood the oral stipulation. He also confirmed that he was given sufficient time to speak with his attorney about the stipulation.

The referee told the parties that he would approve the oral stipulation for discipline. He asked the Director to “put together a detailed document” describing the stipulation and submit it to the referee so that the referee could issue his recommendation. The Director submitted a draft document to the referee and Riehm's counsel. The draft document contained boilerplate language stating that Riehm waived his “right to a hearing before a referee on the petition” and “to a hearing before the [Minnesota] Supreme Court upon the records, briefs and...