In Re Disciplinary Action Against Swerine

513 N.W.2d 463, 1994 Minn. LEXIS 175, 1994 WL 84253
CourtSupreme Court of Minnesota
DecidedMarch 18, 1994
DocketCX-93-1799
StatusPublished
Cited by18 cases

This text of 513 N.W.2d 463 (In Re Disciplinary Action Against Swerine) 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 Swerine, 513 N.W.2d 463, 1994 Minn. LEXIS 175, 1994 WL 84253 (Mich. 1994).

Opinion

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against Brian Swerine in August 1993. 1 In September 1993, based upon respondent’s stipulation with the Office of Lawyers Professional Responsibility, we temporarily suspended him from the practice of law pending final disposition of this disciplinary proceeding. After respondent failed to answer the allegations in the petition for disciplinary action, they were deemed admitted pursuant to Rule 13(b) of the Rules on Lawyers Professional Responsibility. In light of admitted allegations of misappropriation, misrepresentation, forgery and other violations, respondent is disbarred.

The petition before us sets forth five counts of misconduct. Respondent has misappropriated client funds from several clients; made misrepresentations in an effort to conceal the misappropriations; forged, or endorsed without authorization, client settlement checks; and failed to maintain proper trust account books and records. The violations occurred during the period from June 1992 through June 1993. 2

First, respondent was retained by Annette and Wade Inskeep to represent them in a personal injury action. Respondent settled the claim with the defendant’s insurer for $12,000, without obtaining the Inskeeps’ authorization or informing them of the settlement. He forged the signatures of the In-skeeps on the settlement check, deposited it in his trust account and issued trust account checks to himself and his law clerk from the settlement funds. Respondent then made misrepresentations to the Inskeeps leading them to believe their claim was still pending. After finally obtaining the Inskeeps’ authority to settle the case, respondent issued them a cheek which caused an overdraft on his trust account due to his earlier misappropriation. The account remained overdrawn for several weeks until respondent deposited conservatorship funds from the Michelle Walker Conservatorship to cover the over *465 draft. In the course of representing the Inskeeps, respondent thus misappropriated clients’ settlement funds, forged clients’ endorsements on a settlement check, and made misrepresentations to the clients in violation of Minn.R.Prof. Conduct 1.4, 1.15(a), 4.1, and 8.4(b), (c) and (d).

The second count of misconduct arose from respondent’s representation of Theresa Walker and the Michelle Walker Conserva-torship in the sale of real estate in June 1993. Respondent received a check for $15,721.50, representing sale proceeds of real estate owned jointly by Theresa and Michelle Walker, and made payable to them. Respondent had Theresa Walker and a conservator for Michelle Walker endorse the check and deposited it into his trust account, telling them that he would be issuing each a trust account check for $7,500 representing their share of the proceeds. He did pay Theresa Walker, but failed to issue a check for the amount owed to the Michelle Walker Conservator-ship. The balance in respondent’s trust account would not have covered such a payment at that time.

When the overdraft caused by the check written to the Inskeeps was reported to the Director of the Office for Lawyers Professional Responsibility, respondent falsely swore under oath that a substantial portion of the deposit of real estate proceeds belonged to him as fees for services rendered to the Michelle Walker Conservatorship. Respondent produced a billing statement, which he falsely claimed had been sent to the conservator, showing fees due him from the conservatorship of $7,366. He had not actually sent the billing statement to the conservator, nor had the conservator authorized him to deduct the fees from the proceeds of the sale; further, the conservator disputes the amount of fees owed. In the Michelle Walker Conservatorship matter, respondent misappropriated conservatorship funds and made false statements under oath concerning his entitlement to conservatorship funds in violation of Minn.R.Prof. Conduct 1.15(a), 8.1(a)(1) and (2), and 8.4(b), (e), and (d).

The third count of misconduct arose when William Moorehouse retained respondent to represent him in a marital dissolution. Moorehouse paid respondent a $100 retainer and a payment of $1,000. Respondent received a check of $58,811.52 representing proceeds from the sale of Moorehouse’s home. After depositing the funds in his trust account, respondent began disbursing funds to himself for fees for his representation of Moorehouse. He did not obtain the Ghent’s authorization, nor did he provide the client with monthly billing statements showing the fees drawn from the trust account funds.

Several months later, Moorehouse discharged respondent and retained new counsel. Respondent made various promises to return Moorehouse’s file and the Moorehouse trust account funds, but did not fulfill them. When respondent finally forwarded the file and a trust account check for $51,801.77, he informed Moorehouse’s new counsel that he was withholding $7,009.75 for fees earned representing Moorehouse. Respondent’s billing statement did not credit Moorehouse for the $1,100 he had already paid. When Moorehouse’s new counsel deposited the check, he was notified that respondent had insufficient funds in his trust account to cover the cheek. 3 Respondent deposited various amounts in the trust account which allowed the Moorehouse check to clear. Respondent thus misappropriated client funds and failed to promptly forward funds to the client’s new attorney in violation of Minn.R.Prof. Conduct 1.15(a), (b)(4), 1.16(d) and 8.4(c) and (d). Respondent also collected an excessive fee by failing to credit his client’s account for a retainer and $1000 payment in violation of Minn.R.Prof. Conduct 1.5(a).

The fourth count of misconduct concerned respondent’s representation of Brandy Baird in a civil matter. Respondent required Baird to pay a $1,000 retainer and also entered into a written fee agreement providing for a one-third contingency fee. Respondent recommended that Baird settle her claim for $1,000, telling her that she would receive all *466 of the proceeds, and Baird authorized him to accept the settlement offer. Respondent issued Baird a trust account check for $500 when he had not yet received the settlement cheek from the defendant and there were no funds in the trust account to pay her. The check was paid out of Moorehouse funds in respondent’s trust account. When respondent did receive the settlement check, he endorsed it for Baird without her authorization and deposited it into a personal account. After Baird’s repeated efforts to collect the remaining $500 of the settlement, respondent issued her a check drawn on a business account. In misappropriating Baird’s settlement funds and endorsing Baird’s settlement check without authorization, respondent violated Minn.R.Prof. Conduct 1.15(a) and (b)(4), and 8.4(c) and (d).

The fifth count of misconduct resulted from respondent’s failure to maintain client subsidiary ledgers and to balance and reconcile his trust account during the period from May 1992 to June 1993, as well as his false assertion on his 1992 annual attorney registration statement that he maintained the required trust account books and records.

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Bluebook (online)
513 N.W.2d 463, 1994 Minn. LEXIS 175, 1994 WL 84253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-disciplinary-action-against-swerine-minn-1994.