In re Disciplinary Action Against Tigue

843 N.W.2d 583, 2014 WL 949367, 2014 Minn. LEXIS 104
CourtSupreme Court of Minnesota
DecidedMarch 12, 2014
DocketNo. A13-0519
StatusPublished
Cited by15 cases

This text of 843 N.W.2d 583 (In re Disciplinary Action Against Tigue) 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.

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In re Disciplinary Action Against Tigue, 843 N.W.2d 583, 2014 WL 949367, 2014 Minn. LEXIS 104 (Mich. 2014).

Opinion

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Randall D. B. Tigue. Following an eviden-tiary hearing, the referee found that Tigue failed to maintain trust account books and records, failed to retain trust account bank records for the required period of time, and negligently misappropriated client funds. The referee recommended a public reprimand and 3 years of supervised probation. The Director challenges the referee’s recommended discipline, arguing that Tigue should be indefinitely suspended for a minimum of 90 days and required to petition for reinstatement. We conclude that Tigue’s trust account violations warrant a 30-day suspension.

I.

Tigue was admitted to practice law in Minnesota in October 1973. In October 2007, Tigue was publicly reprimanded and placed on 2 years of probation for failing to properly maintain his trust account books and records in connection with a 2005 overdraft. In re Tigue, No. A07-1936, Order at 2 (Minn, filed Oct. 26, 2007). He was also required to make his trust account books and records available to the Director during the probation. Id. Tigue’s probation ended in October 2009.

The Director filed the instant petition for disciplinary action against Tigue for similar trust account violations. The [585]*585petition alleged that between May 2010 and June 2012, Tigue again failed to properly maintain his trust account, leading to a shortage and causing the trust account to become overdrawn. Tigue timely answered the petition, and we appointed a referee.

Following an evidentiary hearing, the referee issued findings of fact, conclusions of law, and a recommendation for discipline. The referee made the following findings and conclusions.

In January 2012, Tigue’s trust account became overdrawn, and the bank reported the overdraft to the Director. The Director initiated an overdraft inquiry and discovered that the overdraft resulted from Tigue’s failure to maintain and reconcile his trust account. The overdraft inquiry was converted into a formal disciplinary investigation. After obtaining copies of some records from his bank because he had not retained them, Tigue submitted complete trust account books and records dating back to October 2009.

The Director audited those records and discovered that Tigue’s trust account balance was “continuously short of [the] amount necessary to cover aggregate client balances” from May 5, 2010, to June 14, 2012. The shortages ranged from $0.30 to $481.80. In each instance, the shortage was caused by Tigue issuing a check to himself in an amount exceeding the funds available for disbursement. In February 2012, Tigue began making deposits into his trust account to cover the shortages. However, it took him until June 2012 to eliminate the overall shortage. Tigue admitted that in October 2009 he let maintenance of his trust account books and records “slide” because he was no longer on probation and no longer had an obligation to submit his trust account records to the Director.

The referee concluded that, between October 2009 and June 2012, Tigue failed to maintain and retain the required trust account books and records, in violation of Minn. R. Prof. Conduct 1.15(c)(3) and (h) and Appendix 1 thereto.1 The referee also found that Tigue negligently misappropriated client funds, in violation of Minn. R. Prof. Conduct 1.15 and Appendix 1 thereto, and 8.4(d).2 The Director and Tigue agree with the referee’s determination that Tigue violated the above-mentioned rules.

The referee identified four factors that aggravated Tigue’s professional misconduct, specifically that Tigue: (1) has a disciplinary history, having been disciplined for similar misconduct in 2007; (2) engaged in misconduct similar to past misconduct “almost immediately” after completing probation in 2009; (3) overdrew his trust account in January 2012 and failed to remedy the shortage for over 5 months; and (4) had been practicing law for nearly 40 years at that time.

The referee found three mitigating factors, concluding that Tigue: (1) admitted [586]*586his misconduct; (2) submitted monthly trust account records to the Director between June 2012 and June 2013 showing his compliance with applicable rules; and (3) did not cause monetary loss to any of his clients, evidenced by the fact that Ti-gue’s clients were unaware of any trust account irregularities.

The referee recommended that Tigue be publicly reprimanded and placed on supervised probation for 3 years. The referee also recommended that the terms of Ti-gue’s probation require him to: (1) maintain trust account books and records in compliance with the rules, and that these be made available to the Director; (2) hire a certified public accountant (CPA) to directly supervise Tigue’s maintenance of his trust account books and records; (3) provide the Director with monthly certifications, signed by the CPA, that all trust account books and records are being maintained and that Tigue’s trust account has not been overdrawn; and (4) fully cooperate with the Director’s monitoring of Ti-gue’s probation.

The Director challenges the referee’s consideration of aggravating factors and argues that Tigue should be suspended for 90 days and be required to petition for reinstatement. Tigue urges the court to impose the recommended discipline, although he argues that modifications should be made to the recommended terms of probation.

II.

The Director ordered a transcript of the disciplinary hearing; therefore, the referee’s findings of fact and conclusions of law are not conclusive, and we are not bound by them. See Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR); In re Ulanowski, 800 N.W.2d 785, 793 (Minn.2011). When a party orders a transcript, we apply a clearly erroneous standard and will only reverse the referee’s findings and conclusions if they are unsupported by the record. In re Jones, 834 N.W.2d 671, 677 (Minn.2013). Although not binding, the “referee’s recommendation for discipline carries great weight”; however, we have “the ultimate responsibility for determining what discipline, if any, is appropriate.” In re Selmer, 749 N.W.2d 30, 36 (Minn.2008) (citation omitted) (internal quotation marks omitted).

Because neither party challenges any of the referee’s findings or conclusions with respect to Tigue’s acts of misconduct, the only issue before us is the appropriate discipline to impose. The purpose of disciplinary sanctions for professional misconduct is “not to punish the attorney but rather to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.” In re Rebeau, 787 N.W.2d 168, 173 (Minn.2010). Four factors guide our imposition of discipline: (1) the nature of the misconduct; (2) the cumulative weight of the violations; (3) the harm to the public; and (4) the harm to the legal profession. In re Lundeen, 811 N.W.2d 602, 608 (Minn.2012).

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843 N.W.2d 583, 2014 WL 949367, 2014 Minn. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-disciplinary-action-against-tigue-minn-2014.