MATTER OF DISCIPLINARY ACT. AGAINST WEYHRICH, C4-81-1100.
| Citation | 339 NW 2d 274 |
| Decision Date | 28 October 1983 |
| Docket Number | No. C4-81-1100.,C4-81-1100. |
| Parties | In the Matter of the Petition for DISCIPLINARY ACTION AGAINST Walter D. WEYHRICH, a Minnesota lawyer. |
| Court | Supreme Court of Minnesota (US) |
Michael J. Hoover, St. Paul, for appellant.
Bruce A. Olander, Minneapolis, for respondent.
Heard, considered and decided by the court en banc.
The Lawyers Professional Responsibility Board filed with this court a petition alleging that the respondent Walter D. Weyhrich had been guilty of professional misconduct beginning in 1977 and continuing through October 1981. We assigned the petition to a referee for hearing pursuant to Minnesota Rules on Lawyers Professional Responsibility. Subsequently, the referee submitted his findings to this court. Because the record shows a continuing pattern of gross neglect in the handling of client matters, we disbar the respondent.
Respondent was admitted to the practice of law in 1972 and since that time has been in the private practice of law in Minnesota. In February of 1981, the Director of Lawyers Professional Responsibility issued an amended complaint, charging the respondent with neglect in several matters. That complaint also charged respondent with failure to cooperate with the Lawyers Professional Responsibility Board. Following receipt of that complaint, respondent admitted its allegations in a written stipulation. The complaint and stipulation were submitted to a panel of the Lawyers Professional Responsibility Board on March 6, 1981, and the stipulation was approved by the panel. In the stipulation, respondent agreed to abide by the Code of Professional Responsibility; to initiate and maintain office systems and procedures sufficient to ensure that he promptly respond to communications from clients, courts and other persons interested in the matters he was handling and to ensure regular review of each file he was handling; and to decline any legal work that he could not handle in a professional and timely manner. Moreover, respondent agreed to be placed on supervision for 2 years by a supervisor acceptable to the Director of Lawyers Professional Responsibility; to cooperate fully with the supervisor in demonstrating respondent's continuing compliance with the terms and conditions of the stipulation; and to make periodic reports to the supervisor concerning the status of all matters then being handled by respondent. Finally, respondent agreed that the supervisor furnish to the Director reports as requested by the Director concerning respondent's compliance with the terms and conditions of the stipulation.
Thereafter, upon further investigation the Director discovered additional complaints of unprofessional conduct in violation of the March 1981 stipulation. The Director then filed the present petition with this court. On July 29, 1982, after yet more investigation, the Director filed a supplemental petition, alleging five additional counts of unprofessional conduct.
On October 29, 1981, this court immediately suspended respondent from the practice of law. We also referred the matter for hearing before a referee. After a hearing, the referee filed his findings and conclusions with this court on February 22, 1983. Since no transcript of the proceeding before the referee was ordered by the petitioner or by the respondent within 5 days of the referee's filing of the findings with this court, those findings and conclusions are conclusive. Minn.R.Law.Prof.Resp. 14(d); In re Nelson, 327 N.W.2d 576, 580 (Minn. 1982). We have given great weight to the referee's findings and conclusions in disciplinary proceedings. In re Fling, 316 N.W.2d 556, 559 (Minn.1982); In re Scallen, 269 N.W.2d 834, 841 (Minn.1978). The referee, in his findings of fact, found all nine counts in the Director's petition to have been proved, and his conclusions of law cited violations of various provisions of the Minnesota Code of Professional Responsibility for (1) repeated neglect of client matters; (2) failure to communicate with clients; (3) failure to appear in court on a number of occasions; (4) bad faith litigation; and (5) failure to cooperate with the Director's investigation. The referee also found that respondent had failed to establish any disability by clear and convincing evidence.
After entering into the March 6, 1981 stipulation, respondent failed to implement effective office systems and procedures to ensure his prompt attention to telephone calls and correspondence from clients, courts and others. Moreover, he failed to arrange for another supervising attorney to monitor his practice. He failed to cooperate with the Director's office regarding new complaints of unprofessional conduct and neglect of client affairs. Between April and September of 1981, respondent failed to make written or oral reply to several letters by the Director seeking to establish supervision as required by the March stipulation. During the same time, the Director received additional complaints of unprofessional conduct. When the Director sought a reply from respondent to these complaints, he received no answer.
1. Wolfson Matter. Weyhrich was retained by Jerald Barton Wolfson to represent him in an attorney disciplinary proceeding. Weyhrich neglected the case after the referee's hearing and failed to cooperate with the Director's investigation of the matter. Admittedly, respondent was having some difficulty in contacting his client but he failed to notify the Director of that difficulty. Respondent neither filed a brief nor notified this court of his intention not to file a brief on behalf of Wolfson. Although he was notified of oral argument for September 11, 1981, respondent failed to notify the court or the Director's office that he would not appear for the argument. He did not appear for the argument, nor did he file a notice of withdrawal or otherwise withdraw from the representation of Wolfson. Several months later, Wolfson applied to this court to vacate the findings of the referee and alleged neglect on the part of his attorney, respondent Weyhrich.
2. Chase Matter. Harold Chase engaged respondent to represent him in a federal age discrimination suit against his former employer, the Western Union Telegraph Company, in United States District Court. Respondent was notified of a pretrial conference scheduled for August 20, 1980, but he did not notify his client about the pretrial conference. Moreover, he failed to notify either opposing counsel or the court that he would not be attending the conference. In fact, he did not attend the pretrial conference although he was aware that failure to attend a pretrial conference frequently results in a dismissal of the case. Subsequently, the clerk of the United States District Court sent respondent notice of the magistrate's recommendation for dismissal. Later, the clerk sent respondent notice of the United States District Court's order of dismissal of the case. Respondent took no steps to object to or appeal the dismissal. Thereafter, Chase called the respondent on several occasions. Respondent continually assured Chase the case was progressing but needed discovery. At no time did respondent inform Chase that the case had been dismissed. Finally, Chase contacted another attorney to represent him. She found out that the suit had been dismissed earlier in the year because respondent had failed to appear at a pretrial conference. Respondent never did file a notice of withdrawal or in any other manner withdraw from representing Chase in this suit. Chase, now represented by new counsel, sued respondent in a legal malpractice action alleging respondent's neglect in his case resulting in dismissal. Respondent neither filed an answer nor requested an extension of time within which to file an answer, although he was aware that his failure to file would result in a default judgment. Default judgment was docketed against respondent in the amount of $246,431. Respondent failed to notify his malpractice insurance carrier of the action against him until after the January 28, 1982 default hearing. Until the time of the hearing before the referee in this proceeding, respondent had taken no meaningful action to secure coverage from his malpractice insurance carrier.1
3. Wu Matter. Respondent Weyhrich was retained to defend James Wu in a warranty suit brought by the purchasers of an apartment building which Wu had sold. In connection with that suit, the plaintiffs requested the production of Wu's tax records and purchase agreements for other properties he owned. Respondent advised Wu not to produce the documents. Wu and respondent agreed that respondent would object on behalf of Wu to disclosure of the documents. He told Wu that if the objection was not successful he would appeal any order compelling production. When the documents had not been produced, the plaintiffs moved the court to compel production, to strike defendant's counterclaim and to hold defendant Wu in contempt of court for failing to produce the documents. The Hennepin County District Court ordered the documents produced. Respondent failed to tell his client of the court's order and to inform his client of the consequences of failure to produce. Wu made frequent but unsuccessful attempts to contact respondent at his office and home. From late January 1981 until April 1981, he had no contact with respondent. On March 4, 1981, the Hennepin County District Court struck Wu's answer and counterclaim and awarded a default judgment against him in that case in the amount of $138,448. Respondent did not notify Wu of the hearing or of the entry of the default judgment. Finally, on July 1, 1981, unable to contact respondent, Wu contacted another attorney who then informed Wu of the outstanding judgment against him. Wu retained other counsel to reopen the judgment, litigate the merits and file the subsequent appeal of the second judgment. In this connection, Wu has incurred bills for legal services in the approximate...
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