In re Disciplinary Action Against Montez

812 N.W.2d 58, 2012 Minn. LEXIS 52, 2012 WL 555497
CourtSupreme Court of Minnesota
DecidedFebruary 22, 2012
DocketNo. A11-0125
StatusPublished
Cited by32 cases

This text of 812 N.W.2d 58 (In re Disciplinary Action Against Montez) 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 Montez, 812 N.W.2d 58, 2012 Minn. LEXIS 52, 2012 WL 555497 (Mich. 2012).

Opinion

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for discipline against respondent Angela Montgomery Montez, now known as Angela Montgomery,1 alleging numerous violations of the Minnesota Rules of Professional Conduct. The petition alleged that Montgomery’s failure to place an advance fee payment in trust; failure to remit unearned client fees; false statements to the client, to successor counsel, to a fee arbitration panel, and to the Director; and failure to comply with a binding fee arbitration award violated Minn. R. Prof. Conduct 1.15(a)2 and (c)(4),3 4.1,4 and 8.4(c),5 (d),6 and (i).7 The petition also alleged that Montgomery’s failure to cooperate with the Director’s investigation violated [62]*62Rule 25,8 Rules on Lawyers Professional Responsibility (RLPR), and Minn. R. Prof. Conduct 8.1(a)9 and (b).10 After an evi-dentiary hearing, the referee we appointed found that Montgomery had committed the professional misconduct alleged in the petition. The referee recommended that Montgomery be suspended from the practice of law and ineligible to petition for reinstatement for a minimum of 2 years. We conclude that the referee properly interpreted the Rules of Professional Conduct and that Montgomery’s misconduct, as found by the referee, warrants indefinite suspension from the practice of law with no right to petition for reinstatement for a minimum of 2 years.

Respondent Angela Montgomery was admitted to practice law in Minnesota on October 25, 2002. Montgomery describes herself primarily as a public interest attorney, and since her admission, she has represented private clients on only two occasions. The representation of one of her private clients gives rise to the current disciplinary charges.

In 2009, Montgomery was retained by Better Future Adoption Services (BFAS), a non-profit organization, to represent the organization in a defamation suit brought by a former BFAS employee. Pursuant to a written retainer agreement dated June 15, 2009, BFAS was to pay Montgomery a “total fixed fee of $5000 payable in a 20% upfront retainer and equal monthly payments of $1,000 for a period of 4 months.” Montgomery was to provide BFAS with an accounting of her time and expenses and, in the event that Montgomery provided work beyond the $5,000 value, the agreement specified that BFAS would compensate her at the rate of $75 per hour.

Despite the terms of the retainer agreement, the then-chair of the BFAS board of directors issued a check payable to Montgomery in the amount of $5,000 with the annotation “Atty Fees (4 months).” Montgomery did not place the $5,000 in a trust account and testified before the referee that she has never maintained a trust account satisfying the requirements of Minn. R. Prof. Conduct 1.15.

A few weeks after the retainer agreement was signed, the individual who had issued the check to Montgomery left the BFAS board of directors. In reviewing financial transactions in which that individual had been involved, BFAS discovered that Montgomery had been issued a check for the full $5,000, instead of the $1,000 initial payment set forth in the June 15, 2009, fee agreement. At a meeting scheduled by BFAS’s executive director to discuss return of the unearned portion of the retainer, the executive director told Montgomery that the payment of the full $5,000 was fraudulent. Montgomery disagreed and denied any wrongdoing. Following the meeting, BFAS decided to terminate Montgomery’s representation and retained a new attorney to represent it.

The day after the meeting between BFAS.and Montgomery, BFAS’s new at[63]*63torney sent Montgomery a letter terminating her representation, asking that Montgomery send him the client file, and requesting an opportunity to discuss with Montgomery the issue of the unearned portion of the retainer. Montgomery sent BFAS’s new attorney the file and stated she believed she was entitled to retain the entire BFAS retainer. BFAS’s new attorney responded and requested that Montgomery place the disputed portion of the retainer into a trust account and suggested that the issue of Montgomery’s fees be submitted to the Hennepin County Bar Association’s fee arbitration panel. Montgomery told BFAS’s new attorney she was “in agreement with depositing $2000 in trust pending a binding fee arbitration decision.” But Montgomery did not deposit any portion of the BFAS retainer into a trust account.

The parties thereafter submitted the fee dispute to binding arbitration through the Hennepin County Bar Association’s fee arbitration process. Montgomery maintained throughout the arbitration proceedings that she had deposited $2,000 in a trust account. Montgomery also contended that she was entitled to the full $5,000 upon her retainer as BFAS’s counsel. To support this contention, Montgomery offered as an exhibit a different version of the June 15, 2009, fee agreement, one in which some payment terms had been crossed out and others added as follows:

A total fixed fee of $5,000, payable in a 20% ■ upfront retainer-and-equal-menthly-payments of $1,000 for-a-period- of-4months + after k mos monthly payments of $1,200.

Neither BFAS’s executive director nor its new attorney had ever seen this version of the agreement and the referee later found that Montgomery had altered it in order to mislead the arbitration panel. In December 2009, the arbitration panel concluded that Montgomery was entitled to compensation for 14 hours of legal work at $125 per hour (a total of $1,750), and awarded BFAS a refund of the balance of the retainer.

On December 7, 2009, BFAS’s new attorney requested payment of the fee arbitration award. Almost a month later, Montgomery responded by e-mail:

I advised you during our last telephone conversation that I would send the award amount to BFAS. Accordingly, I will arrange for a check to be transferred to BFAS from the [mutual fund] account. I will then need to arrange a payment next month for the remainder of the award. Please refrain from further correspondence on this matter.

But Montgomery never made any payments toward the arbitration award. On December 23, 2009, BFAS’s new attorney submitted a complaint against Montgomery to the Office of Lawyers Professional Responsibility.

During the disciplinary proceedings, Montgomery made , a number of representations to the Director that the referee found to be false and inconsistent with the documentary evidence in the case. Montgomery told the Director that she did not maintain a pooled client trust account, apparently because she did not regularly handle client funds, but claimed to maintain a mutual fund account for business expenses that satisfied the requirements for a trust account. Montgomery claimed to have placed all or some of the BFAS retainer into that mutual fund account. Montgomery redacted statements for the account that concealed from the Director the fact that it was an individual retirement account. Montgomery also concealed from the Director the fact that the account statements she produced were not complete. The referee rejected as not credible Montgomery’s testimony that she [64]

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Bluebook (online)
812 N.W.2d 58, 2012 Minn. LEXIS 52, 2012 WL 555497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-disciplinary-action-against-montez-minn-2012.