In Re Petition for Disciplinary Action Against Bernard

534 N.W.2d 272, 1995 Minn. LEXIS 585, 1995 WL 413660
CourtSupreme Court of Minnesota
DecidedJuly 14, 1995
DocketC9-85-1621
StatusPublished
Cited by5 cases

This text of 534 N.W.2d 272 (In Re Petition for Disciplinary Action Against Bernard) 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 Petition for Disciplinary Action Against Bernard, 534 N.W.2d 272, 1995 Minn. LEXIS 585, 1995 WL 413660 (Mich. 1995).

Opinion

OPINION

PER CURIAM.

This matter is before the court upon petition by the Director of the Office of Lawyers Professional Responsibility against respondent, William N. Bernard, asserting that respondent committed unprofessional conduct in altering a fully-executed deed and recording it. We hold that respondent’s misconduct warrants temporary suspension from the practice of law.

The basic facts of this case are undisputed. Respondent was admitted to practice in Minnesota on June 3, 1964. He is currently a sole practitioner in Willmar, Minnesota.

In March 1993, T.G. was living in a house she leased from Jerome and Jane Vikse. The Vikses had previously redeemed the house for T.G. and her boyfriend for $25,700 and gave T.G. a three-month lease with an option to purchase the property. Apparently, the option was due to expire on March 2, 1993, and the Vikses were not willing to extend the time limit.

On March 1, 1993, T.G. met with respondent at his law office to seek his help in obtaining financial assistance to purchase the house before the March 2 deadline. According to respondent, T.G. was very upset and in a desperate condition. Although respondent initially declined to assist her, T.G. returned to his office later in the day and renewed her request. At that time, respondent agreed to assist T.G.

After attempting to reach several friends with whom he had previously invested, respondent told T.G. he would attempt to reach Tim (“T.K.”) Roe, an old friend he had not contacted in five to ten years. Although he had never participated in any investments with Roe, respondent believed Roe might be willing to assist T.G.

On March 2,1993, respondent met with the Vikses’ attorney. Having discussed with respondent the possibility that Roe would provide the financing for the purchase, the Viks-es’ attorney prepared a deed transferring the property from the Vikses to Roe. On March 3, 1993, because he had not yet been able to reach Roe, respondent transferred .$35,750 of his own money into his law firm trust account and then issued a cheek in the same amount from the trust account to the Vikses to pay the option price for the house. The option price was lower than the value at which the property had been appraised for tax purposes. On the same day, the Vikses executed the deed, and it was delivered a week later to respondent for recording.

Following the sale, respondent unsuccessfully attempted to contact Roe. By March 22, 1993, however, respondent learned that T.G. had an unfavorable credit history including unpaid bills and an outstanding lien. As *274 a result, respondent decided he would not seek financing from Roe and would instead continue to finance the purchase himself. On March 22, respondent attempted without success to contact the Vikses’ attorney to inform him that respondent intended to change the deed to reflect that respondent, and not Roe, was the grantee. On the same day, respondent deleted the two references on the deed to “T.K. Roe” as the grantee, inserted his wife’s name “C.H. Bernard” in the respective spaces, and recorded the deed in Kandiyohi County. According to respondent, he changed the name on the deed because he was pressed for time, and he used his wife’s name for tax reasons.

Roughly three weeks later, Jane Vikse called respondent after receiving a tax bill for the property that was still in the Vikses’ names. At respondent’s suggestion, Vikse went to the courthouse to resolve the matter. While doing so, Vikse discovered that the name of the grantee on the deed had been changed, and she subsequently made a complaint to the county attorney.

In May 1993, T.G. obtained a bank mortgage and repaid respondent the amount he provided plus interest and miscellaneous other expenses. Respondent then transferred the property to T.G.

On September 12,1994, the Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent asserting that respondent committed unprofessional conduct in altering an executed deed and recording it. On December 9, 1994, Honorable James D. Mason, acting as referee, conducted a hearing on the Director’s petition. In addition to hearing respondent’s testimony, the referee received exhibits relating to two prior disciplinary proceedings in which respondent was involved. First, by supreme court order dated October 9,1985, respondent was publicly reprimanded and placed on two years probation for adding property to an executed, recorded mortgage deed and re-recording it in another county. See In re Bernard, 374 N.W.2d 721 (Minn.1985). Second, on December 21, 1992, respondent was admonished for charging interest without prior agreement and for seeking to collect a fee from a nonclient.

On January 19, 1995, the referee issued findings of fact, conclusions of law, and recommendations. The referee determined that respondent’s conduct in altering an executed deed and recording it violated Rules 8.4(c) and (d) of the Minnesota Rules of Professional Conduct 1 and that respondent’s prior discipline for altering and re-recording a mortgage deed aggravated his current conduct. As a result, the referee recommended that respondent be indefinitely suspended from the practice of law and not be allowed to petition for reinstatement for a minimum period of three months. The referee also recommended that respondent be required to comply with all requirements of Rule 18 and Rule 26, Rules on Lawyers Professional Responsibility (RLPR). The Director accepts the referee’s findings and conclusions and urges this court to adopt the referee’s recommendations in full.

I.

The sole issue before this court is whether the disciplinary sanction recommended by the referee is appropriate.

Generally, this court gives great weight to the recommendation of the referee, but it retains final responsibility to determine the appropriate sanction. In re Ruffenach, 486 N.W.2d 387, 390 (Minn.1992). In determining whether a particular disciplinary sanction is appropriate, the court weighs the nature of the misconduct, the cumulative weight of the disciplinary rule violations, the harm to the public, and the harm to the legal profession. In re Franke, 345 N.W.2d 224, 228 (Minn.1984). Consistency is a goal, and the court looks to prior decisions for guidance. Ruffenach, 486 N.W.2d at 390; In re Strid, 487 N.W.2d 891, 895 (Minn.1992). The *275 court has stated it will, however, “examine each case individually and impose the discipline we believe appropriate based on the unique circumstances of each case.” Ruffenach, 486 N.W.2d at 390. The factors to be examined include the number of clients harmed, the extent of the clients’ injuries, prior misconduct and discipline and any mitigating circumstances. In re McCoy,

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Bluebook (online)
534 N.W.2d 272, 1995 Minn. LEXIS 585, 1995 WL 413660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-petition-for-disciplinary-action-against-bernard-minn-1995.