In re Stewart, A16-1309
| Decision Date | 26 July 2017 |
| Docket Number | A16-1309 |
| Citation | 899 N.W.2d 476 |
| Parties | IN RE Petition for DISCIPLINARY ACTION AGAINST Alan Richard STEWART, a Minnesota Attorney, Registration No. 0313579. |
| Court | Minnesota Supreme Court |
Susan M. Humiston, Director, Kevin T. Slator, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.
Alan R. Stewart, Appleton, Wisconsin, pro se.
This case presents the question of whether we should impose reciprocal discipline on respondent Alan Richard Stewart. The U.S. Patent and Trademark Office (USPTO) imposed on Stewart what its regulations call "exclusion from practice" for misappropriating $8,000 in unearned fees, neglecting a client matter, failing to communicate with a client, engaging in the unauthorized practice of law, and failing to cooperate with the disciplinary proceedings. The Director of the Office of Lawyers Professional Responsibility (Director) petitioned to impose reciprocal discipline in Minnesota, arguing that the identical Minnesota discipline is disbarment.
We hold that, in a reciprocal discipline case, the identical discipline to "exclusion from practice" before the USPTO is an indefinite suspension from the practice of law with no right to petition for reinstatement for a minimum of 5 years. We further hold that the USPTO's discipline procedures were fundamentally fair and that a 5-year suspension would not be unjust or substantially different from the discipline warranted in Minnesota. We therefore indefinitely suspend Stewart with no right to petition for reinstatement for a minimum of 5 years.
The facts of this case are not in dispute.1 Stewart was admitted to practice law in Minnesota in 2001 and registered as a patent attorney by the USPTO that same year. Stewart has also been a member of the Wisconsin and Kentucky bars, and most recently practiced in Wisconsin. He has been suspended from all three state jurisdictions since February 2015. In Minnesota and Kentucky, Stewart was suspended for failing to pay attorney registration fees.2 Stewart was also placed on involuntary restricted status in Minnesota for failing to comply with continuing legal education requirements.
In February 2016, the USPTO notified the Director that it had excluded Stewart from practice. According to the USPTO, Stewart engaged in multiple forms of professional misconduct in proceedings before that agency. First, the USPTO found that Stewart neglected the patent application of his client, F.W.; failed to communicate with her; and misappropriated $8,000 in unearned fees. Stewart told F.W. that he would file her patent application within 2 or 3 weeks of receiving her paperwork. F.W. provided Stewart her notes and drawings and then checked on the status of her application 3 weeks later. Stewart told F.W. that he had not yet worked on her application, attributing the delay to family medical issues and injuries he had suffered from a bicycle accident. He never completed the patent application and stopped responding to F.W.'s communications. Nonetheless, Stewart cashed F.W.'s two advance-fee checks totaling $8,000 and failed to return these unearned fees even after F.W. terminated the representation and demanded a refund. Stewart cashed F.W.'s second check on the same day that F.W. terminated the representation.
Second, the USPTO found that Stewart engaged in the unauthorized practice of law. Stewart has been ineligible to handle USPTO matters since February 2015, when he was no longer an active member of any state bar. But between March 2015 and June 2015, Stewart filed multiple trademark matters on behalf of clients as "attorney of record" and as a purported member of the Wisconsin bar.
Finally, the USPTO found that Stewart failed to cooperate with its disciplinary proceedings. Between November 2014 and July 2015, the USPTO sent Stewart multiple requests for information via certified mail. Stewart personally signed for several of them, but never responded. Further, Stewart failed to respond to the USPTO's formal complaint, notice of hearing and order, and default-judgment notice, all of which were signed for at Stewart's address. On December 16, 2015, the USPTO entered a default judgment excluding Stewart from practice, concluding that Stewart intentionally violated multiple federal regulations governing practice before the USPTO; caused harm to F.W.; and failed to acknowledge, defend, or rectify his misconduct.
On July 14, 2016, the Director served Stewart by mail—at the same Wisconsin address on file with the USPTO—with a notice and petition for disciplinary action seeking reciprocal discipline under Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR). Stewart did not respond, and upon the Director's motion, we deemed the allegations in the petition admitted. In re Stewart , No. A16-1309, Order at 1-2 (Minn. filed Sept. 12, 2016); see Rule 13(b), RLPR. The Director proposes that we disbar Stewart. Stewart failed to respond or appear at oral argument.
"Because the allegations in the petition have been deemed admitted, the only question before us is whether to grant the Director's petition for reciprocal discipline." In re Huff , 872 N.W.2d 750, 753 (Minn. 2015) ; see also Rule 12(d), RLPR (). In a reciprocal discipline case, we "impose the identical discipline" as the other jurisdiction unless (1) the "discipline procedures in the other jurisdiction were unfair," or (2) "the imposition of the same discipline would be unjust or substantially different from discipline warranted in Minnesota." Rule 12(d), RLPR. "The purpose for imposing identical disciplinary sanctions is to prevent a sanctioned attorney from avoiding the consequences of misconduct by simply moving his or her practice to another state." In re Meaden , 628 N.W.2d 129, 132 (Minn. 2001) (citation and internal quotation marks omitted).
We must first determine the "identical discipline" in Minnesota for the discipline the USPTO imposed on Stewart: "exclusion from practice" before the USPTO. See Rule 12(d), RLPR ; 37 C.F.R. § 11.20(a)(1) (2016). Minnesota does not have any sanction called "exclusion from practice." The Director argues that this sanction is equivalent to disbarment in Minnesota.3
In addressing the Director's argument, we must determine how the USPTO's regulations define "exclusion from practice." "As with statutes, when interpreting a regulation, the court first determines whether the regulation is clear or ambiguous on its face." Indep. Sch. Dist. No. 12 v. Minn. Dep't of Educ. , 788 N.W.2d 907, 912 (Minn. 2010) (citation and internal quotation marks omitted); see also In re Cities of Annandale & Maple Lake , 731 N.W.2d 502, 513-14 (Minn. 2007) (). We interpret an unambiguous regulation "according to the common and approved usage of its words and phrases." Indep. Sch. Dist. No. 12 , 788 N.W.2d at 912.
The USPTO's regulations do not define the term "exclusion." See 37 C.F.R. § 11.1 (2016). The common definition of "exclude" is "to bar from participation, enjoyment, consideration, or inclusion"; in other words, "to eject." Webster's Third New International Dictionary 793 (2002). Both "disbar" and "suspend" are synonyms of "exclude." Id.
The Director argues that the structure and text of the USPTO regulation providing the types of discipline, when compared to the analogous Minnesota rule, make clear that exclusion is equivalent to disbarment. Both rules contain a hierarchy of discipline, listing the most severe punishments first and the least burdensome punishments last. Compare 37 C.F.R. § 11.20(a) (), with Rule 15(a), RLPR (). Both exclusion and disbarment are listed first within their respective hierarchies, with suspension listed as a lesser form of discipline. See 37 C.F.R. § 11.20(a)(1)-(2) ; Rule 15(a)(1)-(2), RLPR.
Even so, these hierarchies do not fully resolve the issue because "exclusion from practice" before the USPTO carries a different consequence than disbarment in Minnesota. An attorney who has been excluded from practice before the USPTO "shall be eligible to apply for reinstatement" after "five years from the effective date of the exclusion." 37 C.F.R. § 11.60(b) (2016). By contrast, there is no specific time period after which a disbarred attorney in Minnesota is permitted to petition for reinstatement. See Rule 18, RLPR. In suspending attorneys, however, we do specify the amount of time after which the attorney may petition for reinstatement. See, e.g. , In re McPhee , 865 N.W.2d 70, 75 (Minn. 2015) (). Thus, "exclusion from practice" before the USPTO is equivalent to Minnesota's discipline of an indefinite suspension with no right to petition for reinstatement for a minimum of 5 years. See People v. Warnock , No. 16PDJ073, 2016 WL 7383715, at *1 (Colo. O.P.D.J. Dec. 12, 2016) (); see also In re Bender , 201 N.J. 416, 991 A.2d 215, 215 (2010) (order) (suspending an attorney for 3 years as reciprocal discipline for "exclusion from practice" before the USPTO).
We therefore hold that, in a reciprocal discipline...
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