In re Disciplinary Action Against Coleman

793 N.W.2d 296, 2011 Minn. LEXIS 24, 2011 WL 222246
CourtSupreme Court of Minnesota
DecidedJanuary 26, 2011
DocketNo. A09-1656
StatusPublished
Cited by77 cases

This text of 793 N.W.2d 296 (In re Disciplinary Action Against Coleman) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Disciplinary Action Against Coleman, 793 N.W.2d 296, 2011 Minn. LEXIS 24, 2011 WL 222246 (Mich. 2011).

Opinion

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action. The petition alleged that respondent Richard J. Coleman violated the Minnesota Rules of Professional Conduct when he failed to act with reasonable diligence (Rule 1.3) and com[300]*300municate with his clients (Rule 1.4), had a conflict of interest in representing codefen-dants in a criminal matter (Rule 1.7), knowingly failed to comply with applicable law regarding termination of representation (Rules 1.16 and 3.4) and to protect his client’s interests (Rule 1.16(d)), and engaged in conduct prejudicial to the administration of justice (Rule 8.4(d)). Following a hearing, the referee concluded that Coleman committed the violations as alleged, and recommended that Coleman be suspended from the practice of law for six months and, upon reinstatement, be subject to two years of supervised probation. We agree with all but two of the referee’s conclusions, and adopt the referee’s recommended discipline that Coleman be suspended from the practice of law for a minimum of six months.

I.

In August 2007, the Director served and filed a petition for discipline alleging that Coleman violated various rules of the Minnesota Rules of Professional Conduct. We appointed a referee to conduct a hearing, and then file findings of fact, conclusions of law, and issue a recommendation to the court. In December 2009, the Director amended the petition to assert an additional rule violation arising out of the same facts in the original petition.1 Before the hearing, Coleman challenged the Director’s right to amend the petition and moved to dismiss the petition for improper service. The referee denied the motions.

Coleman was admitted to the practice of law in Minnesota on May 7, 1982, and practices law in St. Paul. At the referee’s hearing, the parties presented evidence regarding two client matters that related to the alleged misconduct.

A. The S'. A Matter

In September 2006, S.A. and E.M. were arrested and charged with possession of a controlled substance and illegal possession of a firearm arising out of a police stop of the car that they occupied. Both S.A. and E.M. admitted they possessed a controlled substance but denied knowing that a firearm was in the car. When Coleman was engaged to represent them, he failed to disclose to either client the potential conflict of interest in representing both of them, either orally or in the written fee agreement with each client.

At an omnibus hearing, Coleman moved to suppress the evidence obtained by police at the time of the arrest. The motion was denied by the district court in an order filed on October 12, 2007. In a letter dated November 30, 2007, S.A. complained to the court that Coleman failed to communicate to him the outcome of the omnibus hearing. On December 5, 2007, Coleman notified S.A. of the October 2007 court order denying the motions to suppress.

Before trial, the prosecutor made an offer to Coleman that if E.M. pleaded guilty to a reduced charge and testified truthfully at S.A.’s trial, the State would dismiss the other charges against E.M. When advised of the offer, the district court told S.A. and E.M. that it believed Coleman may have a conflict of interest, and arranged for E.M. to discuss the conflict of interest issue with a different attorney. Thereafter, S.A. and E.M. consented to Coleman’s continued representation. Subsequently, the prosecutor informed Coleman that a new witness had come forward who would testify that he purchased the firearm in question for S.A. Coleman responded that S.A. would testify [301]*301that he sold the firearm to E.M. Because E.M. was expected to testify that he did not have knowledge of the firearm, the prosecutor notified the court of her belief that Coleman had an unwaivable conflict of interest.

At the next court hearing, Coleman advised the court that S.A. would testify he sold the firearm to E.M., and that E.M. would testify he had no knowledge of the firearm. Thereafter, S.A. requested that the court terminate Coleman’s representation due to the conflict of interest and lack of communication. As a result, Coleman made a motion to withdraw, which the court granted.

B. The M.M. Matter

Coleman was engaged to represent M.M. in a criminal matter and filed a certificate of representation with the court. In May 2007, Coleman appeared in court on behalf of M.M., but M.M. did not appear. Consequently, Coleman requested that the court allow him to withdraw from the representation. There is no record of an order, written or oral, permitting Coleman to withdraw from the representation of M.M.

M.M.’s case was set for trial on October 1, 2007, but Coleman did not receive notice of the court date and did not appear. As a result of Coleman’s absence, the district court rescheduled the trial for Monday, October 8, 2007. On Friday, October 5, 2007, Coleman received a telephone message that asked whether “[M.M. was] still on for Monday morning.” Coleman made no effort to contact his client, the prosecutor, or the court regarding the hearing and did not appear on October 8. The district judge assigned to the case sent a letter to the Director complaining about Coleman’s nonappearance. After learning of the judge’s complaint, Coleman submitted a written motion to withdraw, which was granted by the court.

Coleman has a history of professional misconduct. In 2001, Coleman received two private admonitions for trust account violations. In 2004, we publicly reprimanded Coleman, and placed him on probation for two years, for misconduct that included leaving a courtroom during trial, failing to adequately supervise a nonlaw-yer assistant, failing to appear in court on time, failing to deposit advance retainers in trust, failing to return client property, and failing to cooperate with the Director’s investigation. In re Coleman, 679 N.W.2d 330, 330-32 (Minn.2004). Coleman also received in 2004 a private admonition for failing to communicate with a client, failing to act diligently in the course of representing a client, and failing to deposit client funds into a trust account. In August 2007, Coleman agreed to an additional two years of probation for failing to diligently represent clients and expedite litigation, failing to obey court rules, and engaging in conduct prejudicial to the administration of justice.

In February 2010, the referee filed with this court written findings of fact, conclusions of law, and a recommendation for discipline. The referee concluded that Coleman’s actions violated Minn. R. Prof. Conduct 1.4(a)(3), 1.7(a)(1) and (2), 1.3, 1.4(a)(3), 1.16(c) and (d), 3.4(c), and 8.4(d). The referee recommended that Coleman be suspended from the practice of law with no right to petition for reinstatement for a minimum of six months and, if reinstated to the practice of law, be placed on supervised probation for a period of two years.

II.

Initially, Coleman argues that the referee erred in denying his pretrial motions. First, Coleman contends the referee erroneously allowed the Director to [302]*302amend his petition for disciplinary action without the approval of the panel chair, contrary to Rule 10(e) of the Rules on Lawyers Professional Responsibility (RLPR). We have not previously determined the applicable standard of review of a referee’s decision in this context.

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Bluebook (online)
793 N.W.2d 296, 2011 Minn. LEXIS 24, 2011 WL 222246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-disciplinary-action-against-coleman-minn-2011.