MATTER OF AUSTIN

• Decision Date: 06 May 1983
• Docket Number: No. C1-82-948.,C1-82-948.
• Citation: 333 NW 2d 633
• Parties: In the Matter of the Petition for Disciplinary Action Against Curtis E. AUSTIN.
• Court: Minnesota Supreme Court

333 N.W.2d 633 (1983)

In the Matter of the Petition for Disciplinary Action Against Curtis E. AUSTIN.

No. C1-82-948.

Supreme Court of Minnesota.

May 6, 1983.

Michael J. Hoover, Director, and William J. Wernz, Atty., Lawyers Professional Responsibility Bd., St. Paul, for petitioner.

Rapoport, Wylde & Nordby and Jack S. Nordby, Minneapolis, for respondent.

Heard, considered and decided by the court en banc.

PER CURIAM.

Pursuant to a hearing on a petition for disciplinary action, the referee appointed by this court, Judge Elmer J. Tomfohr, recommended disbarment of the respondent attorney. We adopt the recommendation.

Respondent Curtis E. Austin, age 57, has been a duly licensed attorney in this state since 1960. Since about 1976 he has been a sole practitioner with offices in Bloomington. In May 1982, the beneficiary of an estate that Austin was probating complained to the Lawyers Board of Professional Responsibility. An investigation ensued, followed by a panel hearing in July, which resulted in a petition being filed for disciplinary action. We denied the Board's request for immediate suspension and instead ordered an immediate referee hearing, which was held on November 10, 1982. The referee found violations of the Rules of Professional Conduct with respect to the commingling and misappropriation of client funds, the writing of checks against insufficient funds, the making of false statements to the Board's director, the keeping of inadequate books and financial records, and the respondent's false certification to this court that he was satisfying the requirement to keep proper books and records.

Respondent Austin probated the Thomas Parks estate. For about a 9-month period, from September 1981 to June 1982, respondent had on deposit in his trust account the sum of $52,272.76, representing the net sale proceeds of the Parks home. During these 9 months, Austin misappropriated up to $34,000 of this sum for his own use. The sum of $3,644.80 was used for car repairs, $1,158.02 was used for plumbing and heating work on respondent's lake cabin, and the balance for unidentified purposes, but apparently, in most part, to cover withdrawals for personal use of other clients' funds out of the same trust account. Respondent admitted that the Parks estate was not an isolated instance of misappropriation, and that seven other misappropriations had occurred over the 6-year period respondent had been practicing as a sole practitioner. Respondent would "take the funds of another client and pay off that first client, and essentially roll over things for several transactions." Respondent has now made full restitution.

There was also evidence that about six checks were written on the trust account to clients and returned for insufficient funds. In addition, respondent engaged in check kiting.

When respondent Austin met for the first time in June 1982 with the Board, he represented, among other things, that all of the Parks estate monies had been distributed as of that day. He further denied having deposited funds of the Parks estate in his trust account rather than in an estate account and stated that an NSF check issued to one of the trust beneficiaries was drawn on his personal account and represented a personal loan to that beneficiary. These statements were false. Respondent also asked one of the Parks estate beneficiaries to write a letter to the Board stating that the check he had received as distribution of estate monies was not drawn on the trust account, when, in fact, it was. The beneficiary refused to write the letter.

Respondent Austin admits he did not keep general or subsidiary ledgers, receipts or disbursement journals for his trust account, or monthly reconciliation from 1976 until 1981 as required by Opinion 9 of the Board and DR 9-103(A). Nonetheless, each year when he renewed his attorney registration with the Clerk of the Supreme Court for the years 1977 through 1980, respondent signed a document certifying that he did, in fact, maintain the required books and records, thereby violating DR 9-103(B).

In mitigation, respondent provided several witnesses, friends and business acquaintances, who testified to Austin's good character, honesty, professional competence and integrity, despite their knowledge of the disciplinary violations to which Austin admitted. Two lawyers with whom respondent had previously shared office space and who have known him since 1970, were willing to associate with Austin in any case, handle his client funds and generally supervise his practice. Austin has also, in midsummer 1982, retained an accountant to conform his books and records to the requirements of Opinion 9 of the Minnesota Lawyers Professional Responsibility Board (1976). Judge Tomfohr noted in his report that he believed the respondent had finally been "forced to face realities" and that the public would likely be protected from further misdeeds if respondent were subjected to supervised probation. Nonetheless, the...