In re Sand, A18-1795

• Decision Date: 16 December 2020
• Docket Number: A18-1795
• Citation: 951 N.W.2d 918
• Parties: IN RE Petition for REINSTATEMENT OF Richard A. SAND, a Minnesota Attorney, Registration No. 0095540.
• Court: Minnesota Supreme Court

951 N.W.2d 918

IN RE Petition for REINSTATEMENT OF Richard A. SAND, a Minnesota Attorney, Registration No. 0095540.

A18-1795

Supreme Court of Minnesota.

Filed: December 16, 2020

OPINION

PER CURIAM.

In 2012, we disbarred petitioner Richard Sand. In 2018, Sand filed a petition for reinstatement to the practice of law. After considering Sand's petition and evidence, a panel of the Lawyers Professional Responsibility Board recommended that he be reinstated, concluding that Sand had proven by clear and convincing evidence that he had undergone the requisite moral change. The Director of the Office of Lawyers Professional Responsibility and Sand agree with the panel.

Based on our independent review of the record, we hold that the panel's factual findings are not clearly erroneous. Because Sand has shown by clear and convincing evidence that he has satisfied the requirements for reinstatement to the practice of law in Minnesota, we grant the petition and reinstate Sand, subject to a 3-year period of probation.

FACTS

Sand was admitted to practice law in Minnesota in 1979. From 1979 to 2011, Sand worked in private practice on criminal defense and related civil forfeiture proceedings. Since August 2013, Sand has worked as a paralegal at Sand Law, LLC, a practice owned by his two sons.

In August 2011, Sand was sentenced to 30 months in federal prison for aiding and abetting wire fraud, in violation of 18 U.S.C. § 1343, and engaging in a monetary transaction in criminally derived property, in violation of 18 U.S.C. § 1957. In summary, Sand participated in a criminally fraudulent scheme by submitting false loan applications in the name of his mother and then diverting the loan funds for his own purposes. Sand also used criminally derived funds to purchase a cashier's check. Sand was ordered to pay $1,100,000.00 in restitution to Bank of America, and $189,481.54 in restitution to U.S. Bank.

On March 22, 2012, we disbarred Sand for his criminal conduct, which violated Rule 8.4(b) and (c) of the Minnesota Rules of Professional Conduct. In re Sand , 932 N.W.2d 791, 791 (Minn. 2012) (order). On December 3, 2012, after serving approximately 14 months of his sentence, Sand was released from prison. In December 2013, the Director received an additional complaint against Sand. At the time, the Director declined to investigate the additional complaint because we had already disbarred Sand.

On November 6, 2018, Sand filed a petition for reinstatement under Rule 18 of the Rules on Lawyers Professional Responsibility. Following this, the Director investigated the additional complaint that she had received in December 2013. She concluded that the additional complaint alleged the same or similar type of misconduct as the underlying misconduct giving rise to Sand's disbarment.

A panel of the Lawyers Professional Responsibility Board held a hearing regarding Sand's petition for reinstatement. During that hearing, Sand and a longtime friend testified. By a 2-1 vote, the panel concluded that Sand had "proven by clear and convincing evidence that he has undergone a significant moral change since committing the misconduct such that he is now fit to be reinstated to the practice of law," and recommended that Sand be reinstated. Subsequently, we ordered the parties to provide us with a transcript of the hearing and to file briefs addressing the standards for reinstatement. Both Sand and the Director agree with the panel's recommendation.

ANALYSIS

We have the sole responsibility for determining whether an attorney should be reinstated to the practice of law in Minnesota. In re Kadrie , 602 N.W.2d 868, 870 (Minn. 1999). An attorney "seeking reinstatement bears the burden of establishing that reinstatement should be granted." In re Stockman , 896 N.W.2d 851, 856 (Minn. 2017). To determine whether reinstatement is appropriate, "[w]e independently review the entire record." In re Singer , 735 N.W.2d 698, 703 (Minn. 2007). Although the panel's recommendations are considered, they are not binding. See, e.g. , In re Williams , 433 N.W.2d 104, 104 (Minn. 1988) (reinstating attorney where the panel recommended denial).

When neither party orders a transcript, but we later order the parties to provide the transcript, the panel's factual findings are not conclusive; rather, we review them under a clearly erroneous standard. See In re Lieber , 834 N.W.2d 200, 203 (Minn. 2013) (applying clear-error standard of review to findings following receipt of court-ordered transcript of a reinstatement hearing).

I.

To secure reinstatement, a petitioner must prove "by clear and satisfactory evidence ... that [he] has undergone such a moral change as now to render him a fit person to enjoy the public confidence and trust once fortified." In re Wegner , 417 N.W.2d 97, 98 (Minn. 1987) (citation omitted) (internal quotation marks omitted). In determining whether an attorney should be reinstated, proof of moral change "is the most important factor." Stockman , 896 N.W.2d at 857.

To prove moral change, an attorney must show (a) "remorse and acceptance of responsibility for the misconduct," (b) "a change in the [attorney's] conduct and state of mind that corrects the underlying misconduct that led to the [discipline]," and (c) "a renewed commitment to the ethical practice of law." In re Mose , 843 N.W.2d 570, 575 (Minn. 2014). The evidence of this moral change "must come not only from an observed record of appropriate conduct, but from the petitioner's own state of mind and his values." In re Swanson , 405 N.W.2d 892, 893 (Minn. 1987).

The panel found that Sand "demonstrated the required moral change" to be reinstated to the practice of law. We agree.

A.

The panel found Sand remorseful and that he accepted responsibility for his misconduct. Sand testified that, initially, "I felt like I was unjustly targeted because I was a lawyer and because I was a public official, and that's why I was prosecuted.... I felt that I was the victim." Sand talked about how his incarceration began a process that allowed him to see his wrongs and accept responsibility. "It was through that process and through the recognition that ... it was my behavior, not somebody else's behavior.... It was my responsibility as an attorney to avoid criminal conduct, immoral conduct, [and] unethical conduct. It was my responsibility, and it wasn't that somebody else was doing it to me." Sand testified that he apologized to his mother for using her in his fraudulent scheme and that after being released from prison, he chose to return to the same community so that he could redeem himself. Sand testified that whenever anyone has asked him about his criminal conduct, he tells them "how [he] did wrong" and "how badly [he] feels" about it. Our independent review of the record supports the panel's finding that Sand credibly showed remorse and accepted responsibility for his misconduct.

B.

Next, Sand must prove a "change in [his] conduct and state of mind that corrects the underlying misconduct that led to the [discipline]." Mose , 843 N.W.2d at 575 (emphasis added). The panel made several findings regarding Sand's change in conduct and his state of mind.

Concerning change in conduct, the panel made numerous findings about Sand's substantial progress in addressing his chemical use issues, all of which are supported by the record. See Lieber , 834 N.W.2d at 204 (considering panel's findings on disbarred attorney's "substantial progress ... in addressing his alcoholism" when concluding that he had established moral change). Sand was addicted to alcohol and pain medication, but did not recognize the scope of his chemical dependency issues until his incarceration. While in prison, Sand completed a 9-month treatment program and participated in cognitive behavioral therapy. When released from prison, Sand completed a 6-month outpatient treatment program. Sand has maintained sobriety since August 2011, and currently follows a daily regimen of the Catholic Advance Movement as his pathway for maintaining sobriety.

The panel also found that Sand provided testimony related to his changed conduct. Sand testified, "As I said before, I kind of identified, when I was in [prison in] Duluth, three areas that I thought were really important to continue to address in my life, and that is: Honesty, humility, and patience. And I keep trying to reinforce those things in my life on a daily basis."

Finally, the panel's findings regarding the additional complaint the Director investigated demonstrate a change in Sand's conduct. This complaint involved real estate transactions that Sand entered into with a client that caused the client to suffer financial losses. Sand voluntarily agreed to repay the client, has made monthly payments to this client, and is working with a lawyer to enter into a contractual repayment schedule with this client.

The dissent concludes that Sand has not established changed conduct, mostly because the only testimony the panel relied upon was Sand's. This is correct, but we have never held that a petitioner must present corroborating testimony to secure reinstatement. Generally, the panel and our court have considered the quality of a petitioner's evidence, rather than the existence of a specific type of evidence. Reliance on third-party testimony might have strengthened Sand's request for reinstatement, but the panel heard directly from Sand and concluded that his testimony alone was sufficiently compelling to satisfy all moral change requirements, including changed conduct. Moreover, the Director did hear directly from third parties, as part of her investigation. Those conversations are summarized in the Director's report. Based on the record and the panel's ability to best understand the quality and credibility of Sand's testimony, we have no reason to conclude otherwise.

Concerning change in state of mind, the panel found significant change over time, and Sand testified extensively about this change. Sand testified, "I thought I was...