In re Walsh

• Decision Date: 23 December 2015
• Docket Number: No. A14–0213.,A14–0213.
• Citation: 872 N.W.2d 741
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Christopher Robert WALSH, a Minnesota Attorney, Registration No. 199813.
• Court: Minnesota Supreme Court

872 N.W.2d 741

In re Petition for DISCIPLINARY ACTION AGAINST Christopher Robert WALSH, a Minnesota Attorney, Registration No. 199813.

No. A14–0213.

Supreme Court of Minnesota.

Dec. 23, 2015.

Martin A. Cole, Director, Timothy M. Burke, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, MN, for petitioner.

John G. Westrick, Saint Paul, MN, for respondent.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (the Director) filed a petition for disciplinary action against respondent Christopher Robert Walsh, alleging, among other things, that Walsh engaged in dilatory behavior; failed to communicate with clients; acted in bad faith; made a false statement to opposing counsel; and chronically violated court orders and court rules, resulting in lost claims. The referee concluded that Walsh's conduct violated the Minnesota Rules of Professional Conduct, found several aggravating factors, and recommended that Walsh be suspended from the practice of law for a minimum of 1 year. We conclude that Walsh committed professional misconduct that warrants an indefinite suspension with no right to petition for reinstatement for 6 months.

I.

Walsh began practicing law in Minnesota in 1989. He has not been previously subject to professional discipline. Walsh's law practice includes litigation of employment discrimination, personal injury, and wrongful death claims.

The petition for disciplinary action alleged five counts of misconduct, each concerning a different client matter. Walsh admitted before the referee that he committed the misconduct alleged in counts one through four. After an evidentiary hearing, the referee made the following findings and conclusions.¹

Count 1—M.I. Matter

Beginning in 2006, Walsh represented relatives of M.I. in a wrongful death claim. M.I. was arrested by U.S. Immigration and Customs Enforcement and died while in custody at the Ramsey County Adult Detention Center. Walsh failed to timely file and serve both the administrative tort notice and the summons and complaint required under federal law. By doing so, Walsh allowed two separate statute of limitations provisions affecting the same cause of action for the same client to expire. Also, Walsh did not timely serve affidavits of expert review and expert identification, which were required because the complaint he drafted alleged medical malpractice. Additionally, Walsh included frivolous claims in the complaint by bringing claims against defendants who were not capable of being sued. Walsh engaged in other dilatory conduct in violation of court rules during the litigation.² Ultimately, the claims in this action were dismissed because of Walsh's untimely filings and dilatory conduct.

Count 2—R.B. Matter

Walsh represented R.B. and five other people in an action he filed against the City of Minneapolis and others in federal district court in 2010. Walsh repeatedly failed to comply with deadlines in the court's scheduling order. Nearly four months after the deadline, Walsh provided the disclosures required by Fed.R.Civ.P. 26(a). About two months after the deadline for expert disclosures, although he provided the names of his experts, he failed to provide any expert reports. Walsh's answers to interrogatories were made months after the due date, and they contained answers from only two of his six clients. Walsh never provided interrogatory answers on behalf of the other four clients. Walsh began conducting discovery 17 months after he commenced the action and 33 days before discovery closed.

Opposing counsel filed motions to compel and exclude expert testimony, and Walsh filed motions to extend discovery and impose sanctions for opposing counsel's alleged failure to identify experts. Walsh filed a memorandum in support of his clients' motions and a memorandum in opposition to the defense motion 14 days and 7 days, respectively, after they were due. The district court refused to consider the memoranda because they were untimely filed. The court also excluded plaintiffs' expert witnesses because Walsh failed to timely identify them. Walsh objected to the order. His objection, however, exceeded the word limit, and he sought relief regarding issues that were not addressed in the order.

On July 15, 2012, opposing counsel served and filed a motion for summary judgment. Once again, Walsh's response was late. It also included incomplete sentences, blank citations to the record, and citations to inapposite portions of the record.

Count 3—C.D. Matter

Walsh represented C.D. in a personal injury matter, and in October 2006, the insurance carrier involved stopped paying no-fault benefits to C.D. Walsh notified C.D. in December 2006 that his benefits had been terminated. Walsh did not send a demand letter to the insurance carrier until nearly 5 years later. Between February 2008 and January 2009, Walsh failed to perform any substantial work on C.D.'s case. Between September 2011 and February 2012, Walsh failed to communicate with C.D. even though the insurance carrier made a settlement offer in November 2011.

Ultimately, the claims in this action were dismissed because, although Walsh filed an action against the insurance carrier in March 2012, he failed to comply with the applicable filing requirements, depriving the district court of jurisdiction to consider the matter. By August 2012 the statute of limitations had expired, and C.D.'s claims were permanently barred. Walsh initially told C.D. that the insurance carrier had filed a motion asserting that Walsh had filed the claim too late but that "it was just legal stuff and not a big deal." Eleven days after the case was dismissed, Walsh told C.D. that the court dismissed the case because Walsh untimely filed it.

Count 4—G.H. Matter

Walsh commenced an employment discrimination lawsuit on behalf of G.H. by filing a complaint that was copied from an unrelated matter and contained irrelevant claims. Walsh responded to a motion to dismiss 20 days after the deadline, and as a result, the district court refused to consider it. Walsh filed an amended complaint 4 months after filing the original complaint and failed to include the redline edits required by court rules. Ultimately, the district court dismissed the claims because Walsh "repeatedly failed to comply with the rules" and "unduly delayed and acted in bad faith in moving to amend his complaint."

Count 5—K.B. Matter

Walsh represented K.B. in an employment discrimination suit, alleging that the employer had wrongfully terminated K.B.'s employment. The original complaint contained allegations that were copied from a separate complaint involving a different plaintiff against a different employer. The original complaint also indicated that an "Exhibit A" was incorporated by reference; however, no "Exhibit A" was attached. Additionally, Walsh filed the complaint with inconsistent statements of K.B.'s age, multiple spelling and grammatical errors, and incomplete sentences.

Soon thereafter, a first amended complaint was delivered to opposing counsel by facsimile, and it also contained assertions that K.B.'s employment had been terminated, incomplete sentences, blank spaces, and references to a non-existent "Exhibit A." Walsh later hand delivered a second amended complaint to opposing counsel. That complaint still claimed that K.B.'s employment had been terminated, contained incomplete sentences, and referenced a non-existent "Exhibit A."

Opposing counsel filed a motion to dismiss in response to Walsh's second amended complaint. Walsh's response was due 9 days before the hearing. Walsh waited until 2 days before the hearing to file the second amended complaint along with a letter to the district court requesting a continuance of the hearing and an extension of time to respond to the motion to dismiss. The court granted Walsh 9 days to submit a letter addressing K.B.'s claims that was "not a word over five pages." Walsh submitted a 6–page letter with 45 pages of exhibits. For reasons unrelated to Walsh's conduct, the court granted the employer's motion to dismiss.

Before this court, Walsh challenges rulings made during the proceedings before the referee. Walsh also challenges the referee's findings and conclusions with respect to the K.B. matter. We address each issue in turn.

II.

We first turn to Walsh's claims regarding the referee's rulings. Walsh contends that the referee erred by rejecting late amendments to his exhibit list. He also argues that the referee erred by refusing to grant his motion to receive his medical records on a confidential basis.

In a disciplinary proceeding, "[u]nless this Court otherwise directs," the hearing before the referee "shall be conducted in accordance with the Rules of Civil Procedure applicable to district courts and the referee shall have all the powers of a district court judge." Rule 14(b), Rules on Lawyers Professional Responsibility (RLPR). Walsh's challenges involve the referee's authority to control the schedule for the proceedings, resolve discovery disputes, and make evidentiary rulings. We review these types of rulings for an abuse of discretion.See In re Dedefo, 752 N.W.2d 523, 528 (Minn.2008) (reviewing a referee's evidentiary rulings for an abuse of discretion); Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 727 (Minn.2005) (reviewing a district court's decision regarding whether to extend a scheduling-order deadline for an abuse of discretion); Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn.1987) (reviewing a district court's rulings regarding discovery for an abuse of discretion).

A.

Walsh challenges the referee's decision to prohibit late amendments to his exhibit list. The proposed exhibits detailed communications between the attorney for K.B.'s employer and Walsh, as well as communications between K.B. and other employees. Walsh argues that he was not seeking to add undisclosed information to the exhibit list, but rather was attempting to include information previously...