In re Taplin
| Decision Date | 25 September 2013 |
| Docket Number | No. A12–2002.,A12–2002. |
| Citation | 837 N.W.2d 306 |
| Parties | In re Petition for DISCIPLINARY ACTION AGAINST Lynn M. TAPLIN, a Minnesota Attorney, Registration No. 173708. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
Indefinite suspension with no right to petition for reinstatement for two years is the appropriate discipline for an attorney who committed professional misconduct including client neglect and financial misconduct involving the failure to return unearned fees in two client matters.
Martin A. Cole, Director, Robin J. Crabb, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, MN, for petitioner.
Lynn M. Taplin, Saint Paul, MN, pro se.
The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Lynn M. Taplin. The petition alleged that Taplin committed professional misconduct including client neglect and financial misconduct in two client matters, and that Taplin failed to cooperate in disciplinary investigations. Taplin did not respond to the petition, and we deemed the allegations admitted. In his brief, the Director urged the court to disbar Taplin, but at oral argument suggested a five-year suspension. Although Taplin's misconduct is very serious, we do not agree that she should be disbarred. Instead, in light of Taplin's misconduct and the aggravating factors present in this case, we indefinitely suspend Taplin with no right to petition for reinstatement for two years.
Taplin was admitted to practice law in Minnesota in 1986. Before the present disciplinary action, Taplin was privately admonished in June 2010 and February 2011, both times for failing to diligently handle client matters in family law proceedings. The present disciplinary action involves the following acts of professional misconduct.
In early June 2011, J.R. retained Taplin to represent him in his marriage dissolution. J.R. executed a written retainer agreement and paid a $3,000 advance fee retainer to Taplin. In early July, Taplin mailed J.R. a bill stating that Taplin had performed 0.7 hours of work, earning $175 of the $3,000 retainer. Between June and August, J.R. attempted repeatedly to reach Taplin by e-mail and telephone, but besides leaving one voicemail message, Taplin failed to respond.
In September 2011, the district court notified Taplin that it intended to place J.R.'s case on inactive status, and in November the court did so. In February 2012, the court dismissed J.R.'s case. Taplin did not inform J.R. that the court intended to place the case on inactive status, that the case had been placed on inactive status, or that the case had been dismissed. Taplin did not return the $2,825 unearned portion of her retainer to J.R.
Taplin's failure to diligently represent J.R. violated Minn. R. Prof. Conduct 1.3.1 Taplin's failure to respond to J.R.'s reasonable requests for information violated Minn. R. Prof. Conduct 1.4(a)(4). 2 And Taplin's failure to return the unearned portion of her advance fee violated Minn. R. Prof. Conduct 1.15(c)(4)3 and 1.16(d). 4
In late August 2011, A.T. retained Taplin to represent her in her marriage dissolution. By late September, A.T. had paid Taplin a total of $2,400. Taplin drafted a summons and a petition for dissolution and filed the petition with the court. Taplin was notified of the case management conference, but she failed to appear. The court then notified Taplin of a review hearing and ordered her to appear. Taplin, however, failed to appear at the hearing. On November 30, 2011, the court placed A.T.'s dissolution matter on inactive status. Taplin did not inform A.T. about the case management conference, the review hearing, or the fact that her case had been placed on inactive status.
A.T. attempted to reach Taplin on several dates. Taplin did not return any of A.T.'s telephone calls or otherwise inform her of the status of her case. Subsequently, A.T. hired another attorney to represent her in her marriage dissolution.
Taplin's failure to attend the case management conference and the review hearing violated Minn. R. Prof. Conduct 1.1,51.3, 3.2, 63.4(c),7 and 8.4(d).8 Taplin's failureto keep A.T. reasonably informed on her case status and Taplin's failure to respond to A.T.'s reasonable requests for information violated Minn. R. Prof. Conduct 1.4(a)(3) 9 and (4). Taplin's failure to return the unearned portion of A.T.'s retainer violated Minn. R. Prof. Conduct 1.15(c)(4) and 1.16(d).
The Director sent Taplin a notice of investigation regarding J.R.'s complaint in September 2011, and he sent Taplin a notice of investigation regarding A.T.'s complaint in January 2012. From September 2011 through April 2012, the Director or other investigators attempted to contact Taplin through telephone calls, letters, e-mails, and in-person service. Besides once speaking with the Director and once responding to a letter, Taplin failed to respond to over 20 telephone calls, letters, or in-person contact attempts made in the course of these disciplinary investigations. In addition, the one written response Taplin made was incomplete. Taplin's failure to cooperate with the Director's investigations violated Minn. R. Prof. Conduct 8.1(b)10 and Rule 25, Rules on Lawyers Professional Responsibility (RLPR). 11
At oral argument, the Director informed the court that Taplin had recently contacted his office and provided documentation that she held A.T.'s and J.R.'s funds in a trust account; had not misappropriated those funds; and had made significant, albeit partial, restitution. But, the Director urged the court not to consider the new information because Taplin had neglected to participate in any stage of the investigations. The Director asked the court to disbar Taplin or, in the alternative, impose a lengthy suspension. Although she had not filed a brief with the court, Taplin appeared at oral argument. She offered an explanation for her failure to respond, expressed remorse, promised to make full restitution, and asserted that an indefinite suspension with no right to petition for reinstatement for a minimum of two years was a more appropriate discipline.
Lawyers are required to file a timely answer to a petition for disciplinary action. Rule 13(a), RLPR. Because Taplin failed to do so, we deemed the allegations in the disciplinary petition admitted. See id.,Rule 13(b) (). Although Taplin appeared at oral argument, she did not dispute the substance of the allegations against her. Consistent with Rule 13(b), we will consider the allegations in the petition admitted against Taplin. See In re Rymanowski, 809 N.W.2d 217, 221 (Minn.2012).
Despite the fact that the allegations are deemed admitted, we must consider the threshold question of whether Taplin's financial misconduct constitutes misappropriation of client funds or a lesser, albeit serious, form of financial misconduct. The Director did not allege misappropriation in the petition. Instead, the Director alleged that Taplin failed to return unearned advance fees, a lesser form of financial misconduct. In his memorandum of law, the Director argued that Taplin's financial misconduct should either be classified as misappropriation or treated as severely as misappropriation.
In order to comport with due process, lawyers facing discipline must be given notice of the charges against them. In re Gherity, 673 N.W.2d 474, 478 (Minn.2004). We have stated that “ ‘[t]he charges to which an attorney must answer need to be sufficiently clear and specific and the attorney must be afforded an opportunity to anticipate, prepare and present a defense.’ ” In re Garcia, 792 N.W.2d 434, 441 (Minn.2010) (quoting In re Gherity, 673 N.W.2d at 478);accord In re Swokowski, 796 N.W.2d 317, 324 (Minn.2011). At the same time, we may disbar an attorney even if a petition for disciplinary action does not expressly state that the Director is seeking disbarment. In re Gherity, 673 N.W.2d at 479 (); see also In re Karlsen, 778 N.W.2d 307, 313 (Minn.2010) ().
Turning to whether misappropriation occurred, we recently applied two complementary definitions of misappropriation in In re Voss, 830 N.W.2d 867, 874 (Minn.2013). We stated that “misappropriation of client funds occurs when ‘funds are not kept in trust and are used for a purpose other than one specified by the client.’ ” Id. (quoting In re Fairbairn, 802 N.W.2d 734, 742 (Minn.2011)). We further stated that “misappropriation may occur when a lawyer ‘perform[s] no work on [client] matters and never return[s] the funds to the clients.’ ” Id. (alterations in original) (quoting In re Lundeen, 811 N.W.2d 602, 608 (Minn.2012)).
In this case, however, it is undisputed that Taplin performed at least some work on both client matters at issue. Taplin performed 0.7 hours of work on the J.R. matter and did an undetermined amount of work leading to the filing of a petition for marriage dissolution in the A.T. matter. Further, Taplin provided the Director, albeit very late in the disciplinary proceeding, with documentation showing that the unearned and unreturned portions of both J.R.'s and A.T.'s fees were held in a trust account. Based on our previous definitions of misappropriation, we conclude that Taplin did not misappropriate client funds.
We next turn to the appropriate discipline for Taplin's misconduct. “The purpose of attorney...
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