In re Westby
| Decision Date | 21 February 2002 |
| Docket Number | No. CX-96-1459.,CX-96-1459. |
| Citation | 639 N.W.2d 358 |
| Parties | In re PETITION FOR DISCIPLINARY ACTION AGAINST Ragnhild A. WESTBY, an Attorney at Law of the State of Minnesota. |
| Court | Minnesota Supreme Court |
Edward J. Cleary, Director, Office of Lawyers Professional Responsibility, Kenneth L. Jorgensen, First Assistant Director, Attorney for Appellant.
Ragnhild A. Westby, Pro Se, Attorney for Respondent.
Heard, considered, and decided by the court en banc.
The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against Ragnhild A. Westby, an attorney licensed to practice law in the state of Minnesota, alleging professional misconduct warranting public discipline. The alleged misconduct relates to Westby's interactions with four individuals and the Director. The Director claims that Westby (1) failed to act with reasonable diligence and promptness in representing a client, (2) failed to communicate with a client, (3) failed to place client funds in a trust account, (4) knowingly disobeyed an obligation under the rules of a tribunal, (5) failed to be truthful in statements to others, (6) engaged in the unauthorized practice of law, (7) failed to respond to requests for information from the Director of the Office of Lawyers Professional Responsibility, (8) engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and (9) engaged in conduct prejudicial to the administration of justice. At the time these alleged acts of misconduct occurred, Westby was suspended from the practice of law for prior professional misconduct.
A referee held a hearing, found that Westby had violated several of the Minnesota Rules of Professional Conduct, and recommended that Westby be disbarred. Westby appealed, claiming that the referee violated the Minnesota Rules of Evidence in admitting certain testimony from her ex-husband and erred in finding that she violated the Rules of Professional Conduct. We conclude that Westby violated the Rules of Professional Conduct and that disbarment is the appropriate sanction.
Ragnhild A. Westby was admitted to the practice of law in Minnesota in 1976. She practiced primarily in the field of family law. In 1993, Westby received a private admonition for neglect and failing to communicate adequately with a client in violation of Minn. R. Prof. Conduct 1.3 and 1.4. On December 4, 1997, this court issued an order suspending Westby from the practice of law for 60 days for failing to (1) deposit retainers in her trust account, (2) maintain proper trust account books and records, (3) communicate with clients, (4) respond to notices of investigation, (5) pay a debt secured by property, and (6) timely file and pay federal and state individual income tax returns and employer's withholding tax returns. In re Westby, 572 N.W.2d 278, 279-81 (Minn.1997). The suspension order contained certain conditions of reinstatement. Id. Approximately 1 year and 9 months later, on August 31, 1999, Westby asked this court to reinstate her to the practice of law. The Office of Lawyers Professional Responsibility (OLPR) opposed reinstatement on the grounds that Westby had not provided proof of compliance with the reinstatement conditions. This court denied Westby's request for reinstatement.
Westby's current disciplinary action arises out of conduct with respect to four individuals and the Director. The alleged misconduct was committed while Westby was suspended from the practice of law.
The first matter involves Westby's representation of Shirley Rose Wyttenback. In 1997, before Westby was suspended from the practice of law, Wyttenback contacted Westby about a marriage dissolution. Wyttenback filled out a client inventory form and mailed it to Westby. Based on the information in the questionnaire, Westby drafted a marriage dissolution petition, but heard nothing further from Wyttenback. Wyttenback testified, and the referee found, that Wyttenback did not enter into a written fee agreement with Westby.
In the spring of 1998, Wyttenback's brother telephoned Westby to determine why his sister's marriage dissolution had not commenced. Westby told the brother that the dissolution could not get started until she received a retainer. At Westby's direction, the brother then wired $1,900 to Westby's personal bank account. The brother testified, and the referee found, that Westby never informed him that she was suspended from the practice of law.
After receiving the funds, Westby asked Thomas Rowe, an attorney and Westby's ex-husband, to sign the dissolution petition. The referee found that Westby, in order to get Rowe to sign the petition, falsely told Rowe that she was about to be reinstated to the practice of law. The referee also found that Westby caused the petition to be filed with the court. After using $210.80 of the $1,900 to pay expenses for Wyttenback, Westby withdrew the remaining funds from her personal bank account to pay for personal expenses. At the referee's hearing, Westby testified that she used the money to reimburse herself for insurance premiums she paid on Rowe's behalf. However, the referee found that none of the specific funds received from Wyttenback's brother were used to pay the premiums. The referee found that Westby has not refunded the balance of the funds to Wyttenback or her brother. The referee concluded that Westby's conduct with respect to Wyttenback violated Minn. R. Prof. Conduct 1.4, 1.15(a), 3.4(c), 5.5(a), 8.4(c), and 8.4(d) and Lawyers Professional Responsibility Board Opinion 15.
In 1998, while Westby was suspended from the practice of law, Sheila Heyen contacted Westby by telephone regarding a child custody matter. At the referee's hearing, Heyen testified that Westby told her there was nothing she could do for Heyen because Heyen had not been served with a change of custody motion. Heyen was subsequently served and she and her second husband then met with Westby several times. Heyen and her second husband testified, and the referee found, that Westby did not tell them that she was suspended from the practice of law and could not represent Heyen. Heyen testified, and the referee found, that Westby obtained a continuance of the child custody hearing, discussed with Heyen evidence for the hearing, and drafted an affidavit for her signature. Heyen also issued a check for $500 to Westby to retain her as an attorney for the upcoming hearing. The referee found that Heyen did not sign a retainer agreement with Westby and that Westby deposited the $500 into her personal bank account.
Heyen tried to contact Westby a few days before the custody hearing, but was not able to reach her until the evening before the hearing. That evening, Westby informed Heyen that she had been in the emergency room with a broken ankle and that she was going to have the hearing postponed. Heyen testified that at this point she no longer trusted Westby and went to Westby's home the next morning to collect her file. At that time, Westby offered to have Rowe represent Heyen at the hearing, but Heyen declined. Heyen then went to the hearing without counsel and the court rescheduled the hearing. Heyen later asked Westby for a refund of her $500 retainer and Westby issued a check for that amount. Heyen attempted to cash the check several times before it was honored. The referee concluded that Westby's conduct with respect to Heyen violated Minn. R. Prof. Conduct 1.4, 1.15(a), 5.5(a), 8.4(c), and 8.4(d) and Opinion 15.
Before Westby was suspended from the practice of law, she represented Linda Jenness, n/k/a Tourville, in a post-decree support matter. After Westby was suspended, the court issued an order on a pending motion and set the matter for a hearing on March 5, 1998. The referee found that Westby did not notify Tourville or the court of her suspension. Tourville testified, and the referee found, that Westby assisted Tourville in preparing an affidavit for the hearing. The affidavit was filed with the court. Shortly before the hearing, Westby informed Tourville that she was suspended and that she expected to receive a reinstatement order within the next several days. Westby told Tourville that she would have the hearing continued. Westby then telephoned a court administrator and told the administrator that she was suspended and that she expected to be reinstated within the next several days. At Westby's request, the court continued the hearing to March 19.
During the week before the March 19 hearing, Tourville made repeated efforts to contact Westby, but was unable to do so until the morning of the hearing. At that time, Westby told Tourville that she had not been reinstated and that the hearing again would be continued. Westby telephoned the court administrator to get the hearing continued. The court administrator testified, and the referee found, that the court administrator told Westby that the hearing would not be continued. The referee also found that Westby did not inform Tourville that the hearing was going to proceed as scheduled. Neither Westby nor Tourville appeared at the hearing and the court entered a default judgment against Tourville. Tourville later learned that the hearing had in fact taken place and attempted to contact Westby. Westby failed to return Tourville's calls. Tourville subsequently obtained other counsel and was successful in vacating the default order. The referee found that Tourville incurred significant attorney fees in vacating the order. The referee concluded that Westby's conduct with respect to Tourville violated Minn. R. Prof. Conduct 1.3, 1.4, 3.4(c), 4.1, 5.5(a), 8.4(c), and 8.4(d).
The fourth matter concerns Westby's interactions with Linda Miller, an attorney acting on behalf of Sa Yee Yang. The referee found that before Westby was suspended from the practice of law, an attorney in Westby's...
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