In re Tigue, A19-1603
| Decision Date | 16 June 2021 |
| Docket Number | A19-1603 |
| Citation | 960 N.W.2d 694 |
| Parties | IN RE Petition for REINSTATEMENT OF Randall D. TIGUE, a Minnesota Attorney, Registration No. 0110000. |
| Court | Minnesota Supreme Court |
Randall D. Tigue, Golden Valley, Minnesota, pro se.
Susan M. Humiston, Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for respondent.
Kenneth E. Keate, Keate Law Firm, Saint Paul, Minnesota, for amicus curiae First Amendment Lawyers Association.
In 2017, we indefinitely suspended petitioner Randall Tigue. In 2019, Tigue filed a petition for reinstatement to the practice of law. After a hearing, a panel of the Lawyers Professional Responsibility Board unanimously recommended against reinstatement, concluding that Tigue failed to prove by clear and convincing evidence that he had undergone the requisite moral change. The Director of the Office of Lawyers Professional Responsibility agrees with the panel. Tigue contests the panel's findings and recommendation, asserting that he should be reinstated.
Based on our independent review of the record, we hold that the panel's findings and conclusions are not clearly erroneous. Because Tigue has failed to show by clear and convincing evidence that he has satisfied the requirements for reinstatement to the practice of law in Minnesota, we deny his petition for reinstatement.
Tigue was admitted to practice law in Minnesota in 1973. He has a lengthy disciplinary history featuring repeated and escalating incidents of financial misconduct, culminating in intentional misappropriation of client funds. In 2007, we publicly reprimanded Tigue and placed him on probation for 2 years for allowing his trust account to become overdrawn, failing to promptly fix the overdraft, and failing to maintain required trust account books and records. In re Tigue (Tigue I) , No. A07-1936, Order (Minn. filed Oct. 26, 2007). In 2014, we suspended Tigue for 30 days for failing to properly maintain trust account books and records and for negligent misappropriation of client funds. In re Tigue (Tigue II) , 843 N.W.2d 583, 588–89 (Minn. 2014). We noted that Tigue had "intentionally stopped maintaining his trust account books and records shortly after his previous probation period ended because he was not required to submit reports to the Director." Id. at 587.
Following the end of his 30-day suspension, in April 2014, we conditionally reinstated Tigue and again placed him on a 2-year probation. In re Tigue (Tigue III) , 845 N.W.2d 761, 762 (Minn. 2014) (order). As a condition of his probation, we required Tigue to submit his trust account books and records to the Director for review and approval and provide the Director with monthly certifications, signed by a CPA, that his trust account books and records were maintained in accordance with the Minnesota Rules of Professional Conduct and the trust account was not overdrawn. Id. We also required Tigue to provide "proof of [his] successful completion of the professional responsibility portion of the state bar examination" by March 12, 2015. Id.
In October 2014, the Director admonished Tigue. Tigue had failed to withdraw from representation or address a conflict of interest and paid a mediator fee with client funds despite the client's refusal to pay the mediator.
In April 2015, we revoked Tigue's conditional reinstatement and indefinitely suspended him because he had failed to provide proof of successful completion of the professional responsibility portion of the state bar examination. In re Tigue (Tigue IV) , No. A13-0519, Order at 2–3 (Minn. filed Apr. 15, 2015). The following month, after Tigue provided proof of completion, we reinstated him and placed him on probation, subject to the same conditions imposed in our April 2014 order.
In re Tigue (Tigue V) , 863 N.W.2d 82, 83 (Minn. 2015) (order).
Tigue's most recent suspension occurred in 2017. In re Tigue (Tigue VI) , 900 N.W.2d 424, 434 (Minn. 2017). We suspended Tigue because he intentionally misappropriated client funds, negligently misappropriated client funds, and failed to promptly correct an overdraft in his trust account. Id. at 427–28. With respect to the intentional misappropriation, Tigue agreed to represent a client in a matter in federal court. Id. at 428. Pursuant to the written fee agreement, Tigue received " ‘an advance retainer of $2,000.00.’ " Id. Of that retainer, $400 was " ‘an advance payment of the ... filing fee.’ " Id. Tigue transferred the entire retainer amount, including the $400 filing fee, to himself, without filing a complaint or any other pleading in federal court. Id. The client later terminated the representation. Id. Tigue repaid this client only after the petition for disciplinary action was filed. Id.
Tigue argued that the terms of the retainer agreement entitled him to keep the filing fee. That agreement stated that Tigue was " ‘entitled to quantum meruit compensation’ " if Tigue " ‘withdr[e]w from representation’ " because the client had " ‘hinder[ed Tigue's] representation.’ " Id. at 429–30. We rejected that argument, reasoning, in part, that the retainer agreement "clearly reserved $400 for a filing fee, and the quantum meruit provisions did not alter that reservation."1 Id. at 430. Instead, we concluded that Tigue intentionally misappropriated client funds because he "obtained $400 from [a client] to pay a filing fee; ... did not keep these funds in trust; ... never paid a filing fee on behalf of [the client]; and ... disbursed the $400 to himself," in violation of Minn. R. Prof. Conduct 8.4(c) and other rules.2 Tigue VI , 900 N.W.2d at 430.
Regarding the negligent misappropriation, after we reinstated Tigue in 2014, he initially complied with the terms of his probation. Id. at 427. However, once the Director instructed Tigue to begin quarterly, instead of monthly, reporting of his trust account books and records, the Director noticed several trust account shortages. Id. at 427 -28. An investigation by the Director revealed that on six occasions, "Tigue issued payments from his trust account that caused shortages in client trust accounts." Id. at 427. Tigue eventually made payments to cure the shortages, and as a result, no client "suffered any permanent financial loss during those periods." Id. at 427.
We again suspended Tigue indefinitely with no right to petition for reinstatement for 2 years.3 Id. at 434–35. We also "permanently prohibited Tigue from being an authorized signatory on a client trust account."
Id. at 435. Two members of the court dissented, arguing that we should have disbarred Tigue for his intentional misappropriation. See id. at 435–38 (Stras, J., dissenting).
On October 8, 2019, Tigue filed a petition for reinstatement. Following a hearing, the panel unanimously recommended against reinstatement primarily because of its conclusion that Tigue "failed to prove by clear and convincing evidence that he has undergone the requisite moral change to now render him fit to resume the practice of law" and "that he recognizes the wrongfulness of his misconduct." The Director also opposes Tigue's reinstatement. Tigue urges us to disregard the panel's recommendation and reinstate him to the practice of law in Minnesota.
"The responsibility for determining whether a petitioner will be reinstated rests with this court." In re Kadrie , 602 N.W.2d 868, 870 (Minn. 1999). We conduct an independent review of the entire record; although we consider a panel's recommendation, we are not bound by it. See In re Dedefo , 781 N.W.2d 1, 7 (Minn. 2010) ().
If a petitioner orders a transcript of the reinstatement hearing, "none of the [panel's] findings of fact or conclusions shall be conclusive, and either party may challenge" them. Rule 18(c), Rules on Lawyers Professional Responsibility (RLPR). However, "we uphold the panel's factual findings if they have evidentiary support in the record and are not clearly erroneous." In re Stockman , 896 N.W.2d 851, 856 (Minn. 2017). "Factual findings are clearly erroneous if, after reviewing the record, we are ‘left with the definite and firm conviction that a mistake has been made.’ " Id. (quoting In re Lyons , 780 N.W.2d 629, 635 (Minn. 2010) ).
In a petition for reinstatement, the petitioner bears the burden of proving: "(1) compliance with the conditions of suspension; (2) compliance with the requirements of Rule 18, RLPR ; and (3) demonstration of moral change." Stockman , 896 N.W.2d at 856 ; see also In re Porter , 472 N.W.2d 654, 655 (Minn. 1991) (). "Showing a moral change is the most important factor in the determination of whether to reinstate an attorney." Stockman , 896 N.W.2d at 857.
In addition to moral change, "we weigh five other factors" when considering reinstatement: "the attorney's recognition that the conduct was wrong, the length of time since the misconduct and suspension, the seriousness of the misconduct, any physical or mental pressures ‘susceptible to correction,’ and the attorney's ‘intellectual competency to practice law.’ " Id. at 856 (quoting Kadrie , 602 N.W.2d at 870 ). "While moral change and recognition of wrongfulness are considered to be only two factors in the overall analysis, we have previously recognized the ‘decisive’ nature of these factors." In re Holker , 765 N.W.2d 633, 639 n.2 (Minn. 2009) (quoting In re Reutter , 474 N.W.2d 343, 345 (Minn. 1991) ); see also In re Griffith , 883 N.W.2d 798, 801–03 (Minn. 2016) (). Here, the panel concluded that Tigue failed to show both moral change and recognition of the wrongfulness of his misconduct.
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