In re Stoneburner, No. A15–0441.

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: PER CURIAM.
• Citation: 882 N.W.2d 200
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Robert D. STONEBURNER, a Minnesota Attorney, Registration No. 0105909.
• Docket Number: No. A15–0441.
• Decision Date: 13 July 2016

882 N.W.2d 200

In re Petition for DISCIPLINARY ACTION AGAINST Robert D. STONEBURNER, a Minnesota Attorney, Registration No. 0105909.

No. A15–0441.

Supreme Court of Minnesota.

July 13, 2016.

Susan Humiston, Director, Patrick R. Burns, First Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, MN, for petitioner.

Eric T. Cooperstein, Law Office of Eric T. Cooperstein, PLLC, Minneapolis, MN, for respondent.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (the Director) petitioned for disciplinary action against attorney Robert D. Stoneburner. The Director's

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petition alleges that Stoneburner violated Rules 8.4(b) and 8.4(d) of the Minnesota Rules of Professional Conduct (MRPC). We referred the matter to a referee and, following a hearing, the referee concluded that Stoneburner's conduct did not violate the rules and recommended that the Director's petition be dismissed in its entirety. The Director disputes the referee's conclusions and recommendation, arguing that Stoneburner's conduct violated the rules and that public discipline is warranted. On the disciplinary record before us, we cannot conclude that the referee's determination with regard to Rule 8.4(b) is clearly erroneous. However, we conclude that Stoneburner's conduct clearly violated Rule 8.4(d) and that a public reprimand is the appropriate discipline.

I.

Robert Stoneburner was admitted to practice law in Minnesota in April 1977. He has no previous record of professional misconduct. The Director's petition for disciplinary action in this case is based on two criminal offenses that Stoneburner committed on August 24, 2013.

That day, Stoneburner and his wife engaged in a heated argument.¹ The argument culminated with Stoneburner throwing a small “soft sided case” at his wife, which hit her in the leg. As Stoneburner's wife called 911, Stoneburner physically wrested the phone from her and hung it up. The 911 operator returned the call, and Stoneburner again hung up the phone. When the 911 operator called back a second time, Stoneburner answered and told the operator there was no emergency. Only when the operator requested to speak to his wife did Stoneburner hand over the telephone. At the referee hearing, Stoneburner testified that he interfered with the 911 call because he did not want to be arrested.

Stoneburner was charged in Stearns County with three crimes in connection with the incident: one count of gross misdemeanor interference with a 911 call, Minn.Stat. § 609.78, subd. 2(1) (2014) ; one count of misdemeanor domestic assault-fear, Minn.Stat. § 609.2242, subd. 1(1) (2014), and one count of misdemeanor domestic assault-harm, Minn.Stat. § 609.2242, subd. 1(2) (2014). Following trial, a jury found Stoneburner guilty of interfering with the 911 call and committing domestic assault-fear, but acquitted him of domestic assault-harm.

In January 2015 the Director brought charges of professional misconduct against Stoneburner based on his criminal convictions. After a panel found probable cause for public discipline, the Director filed a petition for disciplinary action, alleging that Stoneburner's criminal acts violated Rules 8.4(b) and 8.4(d), MRPC. The matter was submitted to a referee for a hearing.

At the hearing, Stoneburner admitted the conduct described above, but argued that the conduct was mitigated by his remorse. Stoneburner also presented two witnesses: K.T., his legal assistant, and L.M., his daughter and former legal associate. Both witnesses testified that they had never observed Stoneburner to be violent or prone to anger during the course of his legal work.

Following the hearing, the referee issued findings of fact and conclusions of law. He concluded that Stoneburner's criminal acts did not violate either Rule 8.4(b) or Rule 8.4(d), and recommended that the Director's petition be dismissed in

882 N.W.2d 203

its entirety. The referee explained that his conclusions were based on our analysis in In re Selmer, 749 N.W.2d 30 (Minn.2008), and In re Hoffman, 379 N.W.2d 514 (Minn.1986), though the referee recognized that those cases “can certainly be distinguished because neither involved domestic abuse.” The referee also noted that there were other Minnesota cases involving criminal convictions similar to Stoneburner's in which discipline had been imposed. However, the referee explained that “it appears that all [of the attorneys in those cases] have had a prior history of discipline, repeated offenses or have included more serious violations of the [criminal] code.” By contrast, Stoneburner “had no same or similar offenses in the past” and no prior disciplinary history. The referee further found as a factual matter that Stoneburner's conduct had not harmed any of his clients.

The Director ordered a transcript of the hearing, and now challenges the referee's conclusion that Stoneburner's criminal acts did not violate the Minnesota Rules of Professional Conduct. The Director asks us to determine that Stoneburner violated Rules 8.4(b) and 8.4(d), and impose discipline “of at least a public reprimand.”

II.

In attorney discipline proceedings, the Director bears the burden of proving professional misconduct by clear and convincing evidence. In re Walsh, 872 N.W.2d 741, 747 (Minn.2015). Establishing misconduct by clear and convincing evidence requires more than a preponderance of the evidence, but less than proof beyond a reasonable doubt. See In re Houge, 764 N.W.2d 328, 334 (Minn.2009) (citing Weber v. Anderson, 269 N.W.2d 892, 895 (Minn.1978) ).

In this case, because the Director ordered a transcript of Stoneburner's hearing, the referee's findings and conclusions are not conclusive. Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR). We review the referee's findings of fact and application of the law to the facts for clear error. In re Fett, 790 N.W.2d 840, 847 (Minn.2010). We will conclude that the referee clearly erred if upon review of the record and the law we are left with the definite and firm conviction that a mistake has been made. In re Ulanowski, 800 N.W.2d 785, 793 (Minn.2011).

A.

We turn first to the Director's contention that Stoneburner violated Rule 8.4(b), MRPC. Rule 8.4(b) provides that it is misconduct for an attorney to “commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects.” The Director argues that Stoneburner's criminal act of committing domestic assault-fear² violates Rule 8.4(b) because it reflects adversely on his “fitness as a lawyer in other respects.”³

The Director urges us to conclude that the referee's application of Rule 8.4(b) to Stoneburner's conduct was clearly erroneous because the comment to the rule states

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that criminal “offenses involving violence” are in the category of offenses that “indicate lack of those characteristics relevant to the practice of law.” The Director points to a wide range of Minnesota statutes categorizing misdemeanor domestic assault-fear as a crime involving violence, e.g., Minn.Stat. § 609.02, subd. 16 (2014), and argues that the fact that Stoneburner's crime involved violence is conclusive evidence that Rule 8.4(b) was violated.

However, in contrast to its language regarding crimes of dishonesty, the Rule does not provide that all criminal offenses involving violence, including misdemeanor offenses, necessarily constitute professional misconduct. Although lawyers are personally answerable to the criminal law for all of their conduct, they are professionally answerable for a narrower range of criminal acts that reflect adversely on the attorney's professional fitness. See Minn. R. Prof. Conduct 8.4 cmt. [2]. Of course, whether a criminal offense involves violence is relevant—but not necessarily dispositive—to the determination of whether the criminal act reflects adversely on a lawyer's ability to practice law.

In considering whether Stoneburner's specific criminal act of domestic assault-fear violated Rule 8.4(b), the referee found it significant that: (1) Stoneburner's conduct was not related to his practice of law and did not harm any of his clients; (2) he had no previous record of criminal conduct; and (3) the specific conduct for which he was convicted was simply less violent than the acts committed by other attorneys...