In re Winter

• Decision Date: 06 August 2009
• Docket Number: No. A08-1014.,A08-1014.
• Citation: 770 N.W.2d 463
• Parties: In re PETITION FOR DISCIPLINARY ACTION AGAINST Barton Carl WINTER, a Minnesota Attorney, Registration No. 271433.
• Court: Minnesota Supreme Court

770 N.W.2d 463

In re PETITION FOR DISCIPLINARY ACTION AGAINST Barton Carl WINTER, a Minnesota Attorney, Registration No. 271433.

No. A08-1014.

Supreme Court of Minnesota.

August 6, 2009.

Martin A. Cole, Director, Robin J. Crabb, Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for petitioner.

Barton C. Winter, Bloomington, MN, pro se.

OPINION

PER CURIAM.

On June 18, 2008, the Director of the Office of Lawyers Professional Responsibility (Director) filed a petition charging respondent Barton Carl Winter with one count of professional misconduct. The petition alleges that Winter knowingly made a false statement of fact to a tribunal and to another attorney in the course of representing a client and failed to correct the false statement. Winter answered the petition, and a hearing was held before a referee appointed by the court pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR). After the hearing, the referee found that Winter violated Minn. R. Prof. Conduct 3.3(a)(1),¹ 3.4(c),² 4.1,³ 8.4(c),⁴ and 8.4(d)⁵ and recommended that Winter be suspended indefinitely from the practice of law with no right to apply for reinstatement for six months.

Winter was admitted to the practice of law in Minnesota on October 25, 1996. In November 2002, he was admonished by the Director for failing to consult with a client. In October 2006, he stipulated to private probation for two years for engaging in a pattern of inadequate client communication, inadequate case preparation, and incompetent representation.

The following facts are relevant to our decision. In January 2007, Johnson Ezeagwu, an arriving alien who was being held by immigration authorities at an out-of-state facility pending his removal from the country, retained Winter. In an effort to reopen Ezeagwu's case, Winter prepared a motion to reopen, known as a "Lozada motion," alleging that Ezeagwu's previous attorney ineffectively represented Ezeagwu. Lozada motions alleging ineffective representation by a previous attorney require a statement as to whether a disciplinary complaint against the attorney had been submitted to the appropriate disciplinary authority and, if not, why not. In re Lozada, 19 I. & N. Dec. 637, 637 (B.I.A. 1988). Before filing the Lozada motion, Winter prepared a disciplinary complaint against the former attorney but did not file it. The Lozada motion, as drafted, indicated that the disciplinary complaint had been filed with the Minnesota Lawyers Professional Responsibility Board (LPRB).

On March 23, 2007, Winter filed the Lozada motion with the Board of Immigration Appeals (BIA) and included a copy of the unfiled disciplinary complaint. Thus, when filed, the Lozada motion contained a false statement of fact, namely that the disciplinary complaint had been filed. Winter also sent a copy of the Lozada motion and the disciplinary complaint to Ezeagwu's former attorney. Winter never indicated to the BIA or to the former attorney that the complaint had not been filed.

After receiving the Lozada motion and disciplinary complaint from Winter, Ezeagwu's former attorney spent 30 hours drafting a response to the disciplinary complaint. When the former attorney contacted the LPRB to inquire about the status of the matter, he learned that no complaint had been filed. The attorney then contacted Winter to inquire about the complaint, and Winter filed the complaint by letter dated April 21, 2007. The director subsequently determined that discipline was not warranted against the attorney.

By letter dated April 25, 2007, Ezeagwu's former attorney filed a complaint with the LPRB regarding Winter's conduct. Based on that complaint, the Director filed a petition for disciplinary action. After an evidentiary hearing, the referee found that Winter had violated Minn. R. Prof. Conduct 3.3(a)(1), 3.4(c), 4.1, 8.4(c), and 8.4(d) by knowingly making a false statement of fact to a tribunal and to another attorney in the course of representing a client and by failing to correct the false statement. The referee recommended that Winter be suspended from the practice of law with eligibility to petition for reinstatement after six months. The Director agrees with this recommendation. Winter challenges the referee's factual findings, conclusions of law, and recommendation for discipline, and the discipline recommended by the referee.

I.

Winter contends that his conduct did not violate Minn. R. Prof. Conduct 3.3(a)(1), 3.4(c), 4.1, 8.4(c), and 8.4(d). We disagree.

In disciplinary proceedings, the Director bears the burden of proving by clear and convincing evidence that the respondent lawyer violated the Rules of Professional Conduct. In re Westby, 639 N.W.2d 358, 367 (Minn.2002). Because Winter ordered a transcript of the disciplinary hearing, the referee's findings of fact and conclusions of law are not conclusive. See Rule 14(e), RLPR; In re Peterson, 718 N.W.2d 849, 853 (Minn.2006). But we give "great deference" to the referee's findings of fact and conclusions of law and will not reverse them "if they have evidentiary support in the record and are not clearly erroneous." In re Moulton, 721 N.W.2d 900, 906 (Minn.2006). "Findings that are based on an attorney's `demeanor, credibility, or sincerity,' are particularly entitled to deference." In re Czarnik, 759 N.W.2d 217, 221 (Minn.2009) (quoting Moulton, 721 N.W.2d at 906).

The referee found that Winter knew when he submitted the Lozada motion that the statement in it — that Ezeagwu had filed a claim against his former attorney with the LPRB — was false. The referee concluded that Winter knowingly made a false statement of fact to a tribunal in violation of Minn. R. Prof. Conduct 3.3(a)(1), 4.1, 8.4(c), and 8.4(d) and intended to deceive the court, in violation of Minn. R. Prof. Conduct. 8.4(c).

Winter does not dispute that the Lozada motion was "not technically correct" because "at that time [he] had not filed the complaint on that day." Winter argues, however, that he did not intend to deceive because he always intended to file the disciplinary complaint and was waiting for Ezeagwu to send him the original signed copy. But "`a representation is made with fraudulent intent when it is known to be false....'" Florenzano v. Olson, 387 N.W.2d 168, 173 (Minn.1986). Because Winter concedes that his assertion in the Lozada motion that a disciplinary complaint had been filed against Ezeagwu's former attorney was not truthful when the motion was filed, we affirm the referee's finding that Winter intentionally made a fraudulent representation to both the Bureau of Immigration Appeals and to the former attorney.

In an attempt to justify his conduct, Winter also contends that the misstatement did not violate Minn. R. Prof. Conduct 3.3(a)(1), 3.4(c), 4.1, 8.4(c), and 8.4(d) because it was not material to the underlying Lozada motion and because the Lozada motion had merit. But Minnesota's Rules of Professional Conduct do not contain a materiality element, and Winter's obligation to be truthful does not depend on the materiality of the statements being made. We therefore conclude that Winter's conduct violated Minn. R. Prof. Conduct 3.3(a)(1), 3.4(c), 4.1, 8.4(c), and 8.4(d).

II.

The referee recommended that Winter be indefinitely suspended from the practice of law with eligibility to petition for reinstatement after six months. Winter asks this court to impose some lesser discipline. Although we give great deference to the referee's recommendation, it is our responsibility to determine the appropriate sanction. In re Albrecht, 660 N.W.2d 790, 796-97 (Minn.2003). "The purposes of disciplinary sanctions for professional misconduct are to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys." In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004). When determining the appropriate sanction, we consider: (1) the nature of the misconduct; (2) the cumulative weight of the disciplinary violations; (3) the harm to the public; and (4) the harm to the legal profession. In re Nelson, 733 N.W.2d 458, 463 (Minn.2007). Although we look to similar cases for guidance in determining the appropriate sanction, the sanction is "determined on a case-by-case basis after examining the acts of misconduct and considering both aggravating and mitigating circumstances." In re Mayrand, 723 N.W.2d 261, 268 (Minn.2006).

Winter's misconduct involves a single false statement in the Lozada motion that he filed with the immigration tribunal and sent to Ezeagwu's former attorney. Neither Ezeagwu nor his former attorney were harmed by Winter's failure to timely file the disciplinary complaint. The harm caused to the public and to the legal profession by Winter's conduct is the prejudice to the administration of justice. "An attorney who deliberately deceives the court is guilty not only of obstructing the administration of justice but also of subverting that loyalty to the truth without which he cannot be a lawyer in the real sense of the word." In re Nilva, 266 Minn. 576, 583, 123 N.W.2d 803, 809 (1963).

Based on the referee's findings, we consider several aggravating circumstances. First, the referee found that Winter failed to appreciate the severity of his misconduct. Winter challenges this finding, arguing that he did have remorse for his conduct. But in his answer to the Director's petition, Winter argued that his offense was "a non serious violation" because of "the facts surrounding the ineffective assistance complaint." At the hearing before the referee, although Winter admitted that providing false information was "a bad move," he sought to minimize his conduct by arguing that it was not as bad as "missing a court date or missing a briefing deadline." Winter's effort to minimize his misconduct by arguing that it is not as bad as other misconduct, and his suggestion that his actions were justified and...