In re Swanson, A20-1027

CourtSupreme Court of Minnesota (US)
Writing for the CourtPER CURIAM.
Docket NumberA20-1027
PartiesIn re Petition for Disciplinary Action Against Richard Lee Swanson, a Minnesota Attorney, Registration No. 0173423.
Decision Date22 December 2021

In re Petition for Disciplinary Action Against Richard Lee Swanson, a Minnesota Attorney, Registration No. 0173423.

No. A20-1027

Supreme Court of Minnesota

December 22, 2021


Original Jurisdiction Office of Appellate Courts

Susan M. Humiston, Director, Binh T. Tuong, Managing Attorney, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

Richard Lee Swanson, Chaska, Minnesota, pro se.

SYLLABUS

1. The referee's finding that no mitigating factors were present was not clearly erroneous.

2. An indefinite suspension with no right to petition for reinstatement for 6 months is the appropriate discipline for respondent, who failed to represent clients diligently and competently, failed to follow court scheduling orders, continued to practice law while suspended, settled a malpractice claim in exchange for a client's agreement to forego filing an ethics complaint, agreed to represent a party despite a clear conflict of interest, failed to promptly withdraw from the matter once the conflict of interest was discovered, entered into an improper flat fee agreement with a client, and failed to timely return unearned fees to a client.

Suspended.

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Considered and decided by the court without oral argument.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition for disciplinary action against respondent Richard Lee Swanson. We appointed a referee. After a hearing, the referee determined that Swanson committed professional misconduct during his representation of two clients, B.J. and L.F. The misconduct involving B.J. included failing to diligently and competently represent his client's interests, failing to meet court-imposed deadlines, continuing to practice law while suspended for failing to comply with a condition of a prior discipline order, and agreeing to settle a potential malpractice claim in exchange for B.J.'s agreement to forego filing an ethics complaint. The misconduct involving L.F. included accepting representation despite a clear conflict of interest, failing to promptly withdraw from the matter once the conflict of interest was discovered, entering into an improper flat fee agreement, and failing to promptly refund unearned fees to L.F. The referee found four aggravating factors and no mitigating factors were present and recommended a 180-day suspension. Swanson does not challenge the referee's findings concerning his misconduct; rather, he asserts that there are mitigating factors the referee failed to consider. We conclude that the referee did not clearly err by finding that no mitigating factors were present and that the appropriate discipline for Swanson's misconduct is an indefinite suspension, with no right to petition for reinstatement for 6 months.

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FACTS

Swanson was admitted to practice law in Minnesota in 1986. He has a lengthy disciplinary history. Swanson has been admonished five times and publicly reprimanded once. Most recently, in March 2015, we suspended Swanson for a minimum of 90 days. See In re Swanson (Swanson I), 860 N.W.2d 677, 678 (Minn. 2015) (order). Our suspension order required Swanson to successfully complete the Multistate Professional Responsibility Examination (MPRE) within 1 year of the date of the order. Id. at 679.

On June 18, 2015, we conditionally reinstated Swanson and placed him on probation for 2 years. In re Swanson (Swanson II), 877 N.W.2d 190, 190 (Minn. 2016) (order). However, Swanson did not comply with the requirement from our March 2015 suspension order that he successfully complete the MPRE, so we indefinitely suspended him, effective March 31, 2016. Id. After Swanson successfully completed the MPRE, we reinstated him on October 4, 2016, and continued his probation until December 17, 2017. In re Swanson (Swanson III), 885 N.W.2d 668, 668 (Minn. 2016) (order).

On August 4, 2020, the Director filed a petition for disciplinary action against Swanson, alleging that Swanson committed professional misconduct in two client matters. The first involved a land dispute in which Swanson's client claimed that construction on his neighbors' property caused flooding. The second matter involved domestic assault charges against a man and a guardianship matter involving the man's wife, who was the alleged victim in the domestic assault case.

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Swanson's Representation of B.J.

In July 2015, B.J. contacted Swanson about a potential civil lawsuit. B.J.'s neighbors had constructed a dam on their property, which B.J. believed caused flooding on and damage to his property. Swanson agreed to pursue a lawsuit on B.J.'s behalf. On March 15, 2016, Swanson filed a complaint based on information he received from B.J. Swanson performed no research to verify the information, and the first complaint named the incorrect party as the defendant and contained incorrect legal descriptions of the land at issue.

Swanson was suspended from the practice of law on March 31, 2016, for failure to pass the MPRE. Swanson timely notified B.J. that he had been suspended and stated that he would arrange for another attorney to handle the matter until he was reinstated. No other attorney ever worked on the matter, and Swanson failed to notify opposing counsel of his suspension. See Swanson II, 877 N.W.2d at 191 (requiring notice to opposing counsel). Swanson continued to work on the B.J. matter while suspended. On April 21, Swanson's employee served the summons and complaint on the defendants, with Swanson notarizing the affidavit of service. Swanson met with B.J. on a regular basis to discuss the litigation and continued to meet with other prospective clients in his office.

Swanson failed to represent B.J. competently and diligently. The district court granted the defendants a default judgment on the first complaint and awarded the defendants over $5, 500 in attorney fees and costs after Swanson failed to respond to counterclaims. Swanson admitted to B.J. that the judgment was his fault for failing to respond and personally paid B.J. the full amount of the judgment.

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On July 15, 2016-while still suspended-Swanson filed a second complaint, which was again met with counterclaims. Swanson failed to respond to these counterclaims for nearly 3 months until an ultimatum from opposing counsel prompted him to do so.[1] The court's scheduling order required Swanson to disclose all expert witnesses and provide their expert reports by February 20, 2017. But he did not initially contact a potential expert witness until February 23, 2017. The scheduling order also required the parties to attend mediation by February 24, 2017. Although he attended the mediation, Swanson failed to provide the required preliminary materials, such as a demand letter. In April, B.J. signed a contract for over $10, 000 of expert work and paid at least $1, 000 toward this contract. B.J. signed the agreement at Swanson's advice, not knowing that the deadline to disclose expert witnesses had already passed.

Swanson never notified opposing counsel of his proposed expert witness. Instead, opposing counsel first learned of the expert witness when his name appeared in Swanson's proposed joint statement of the case. Swanson delivered a draft of the joint statement to opposing counsel on April 4, 2017-more than 6 weeks after the deadline to disclose expert witnesses. Even at this late date, Swanson still had not provided any expert reports. Indeed, the expert witness had apparently not even prepared his report at this point, as Swanson had failed to respond to the expert's communications. Due to the lateness of the disclosure,

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the defendants moved to exclude B.J.'s expert witness. The district court granted the defendants' motion and held that B.J. would not be able to call expert witnesses at trial.

Swanson withdrew from the case, but later told B.J. that he would file an appeal challenging the court's order excluding expert witnesses. Swanson never filed the appeal. Because he was unable to present expert testimony, B.J. was forced to dismiss his claims with prejudice and was left without recourse. Swanson offered B.J. $300, 000 to settle any potential malpractice claims arising from the matter. Swanson conditioned this offer on B.J. agreeing not to file an ethics complaint. B.J. accepted the settlement but later filed an ethics complaint with the Director after Swanson ceased making payments on the settlement.

Swanson's Representation of L.F.

On October 2, 2017, the state charged W.F. with misdemeanor domestic assault of his wife, L.F., and the district court issued a domestic abuse no-contact order. Both the criminal complaint and the no-contact order specifically list L.F. as the victim in the case. W.F. hired Swanson as his defense attorney. On October 6, 2017, Scott County filed an emergency guardianship/conservatorship action for L.F. The district court appointed Lutheran Social Services as L.F.'s guardian and conservator and separately appointed an attorney to represent L.F.

On October 14, 2017, K.F.-W.F. and L.F.'s daughter-asked Swanson to represent L.F. in the guardianship matter. Although he knew at the time that L.F. was the alleged victim in W.F.'s case, and that he was representing W.F., Swanson agreed to represent L.F. Swanson did not investigate the underlying facts, so he was not aware that

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L.F. already had a court-appointed guardian and attorney. Swanson accepted a $3, 000 retainer check that drew directly from the joint account of W.F. and L.F. Neither L.F. nor her guardian were aware of or consented to Swanson's representation or to the payment. Although no retainer agreement existed, Swanson cashed the retainer check and deposited the full amount directly into his business account. Swanson did not provide a retainer agreement until October 27, 2017. This agreement described the retainer as nonrefundable, failed to state that Swanson would...

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