Petition of Disciplinary Action Against Daffer

344 N.W.2d 382, 1984 Minn. LEXIS 1233
CourtSupreme Court of Minnesota
DecidedFebruary 10, 1984
DocketC1-82-836
StatusPublished
Cited by34 cases

This text of 344 N.W.2d 382 (Petition of Disciplinary Action Against Daffer) 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
Petition of Disciplinary Action Against Daffer, 344 N.W.2d 382, 1984 Minn. LEXIS 1233 (Mich. 1984).

Opinion

PER CURIAM.

On May 27, 1982, Steven J. Daffer, a member of the bar of this state, was convicted in federal district court of mail fraud. The Lawyers Professional Responsibility Board subsequently filed this disciplinary action against respondent Daffer, charging him with five counts of misconduct arising from or related to the federal criminal charge. Respondent was suspended from practice on July 21, 1982, pending final disposition of the disciplinary proceedings. A referee was appointed and a hearing was held on March 24 and 25, 1983. On August 8, 1983, the referee filed findings of fact and conclusions of law, finding all five counts in the director’s petition to have been proved. 1 He recommended that respondent’s temporary suspension be continued until October 21, 1983, and, as conditions for restoring respondent’s license to practice, he recommended that (1) respondent perform a number of hours of community service, and (2) his practice be supervised for three years. The director challenges those recommendations on appeal, and requests either disbarment or a minimum suspension of five years. We hold that respondent shall be indefinitely suspended from the practice of law in this state, with right to apply for readmission to practice five years from the date of his temporary suspension.

Respondent is 32 years old. He was admitted to practice law in this state on October 22, 1977. From that time through October 31, 1981, he was associated with a Minneapolis law firm. After leaving that firm, he worked as a sole practitioner until his suspension on July 21, 1982.

Sometime before August of 1981, respondent opened two investment accounts with Dain Bosworth, Inc. (“Dain Bosworth”), a brokerage firm. On August 12, 1981, Dain Bosworth mistakenly deposited $150,000 of another person’s funds into respondent’s “Liquid Capital Income” account. Prior to that deposit, respondent had a balance of $109.10 in that account. Then, on September 21, 1982, Dain Bosworth mistakenly deposited another $19,605.49 into that same account.

About that time, respondent and a friend began plotting a scheme to earn money by using the funds which had been erroneously deposited in respondent’s account. On September 23, 1981, respondent transferred $172,534.48 from his “Liquid Capital Income” account into his other Dain Bos-worth account. He subsequently contacted Investment Rarities, Inc. (“Investment Rarities”) on October 5, 1981, and obtained information about purchasing precious metals. The next day respondent’s friend inquired about hotels in the New York City area and then furnished respondent with the name of a hotel in that city to use as a delivery spot for a shipment of gold. On October 7, 1981, respondent contacted Dain Bosworth and requested that it wire transfer $152,935.10 to an account of Investment Rarities. With those funds, he purchased 200 Canadian one-ounce gold Maple Leafs and 126 South African one-ounce gold Krugerrands. He instructed Investment Rarities to deliver the gold to a Michael Cohen in New York. According to their plan, the friend was to assume the fictitious name and identity of Michael Cohen.

In furtherance of their scheme, respondent wrote detailed instructions for his friend’s use in concealing the receipt of the gold. On October 11, 1981, the friend trav *384 eled to New York City to accept delivery of the gold. Meanwhile, respondent prepared identification cards in the name of Michael Cohen, by altering several identification cards belonging either to himself or another, and sent those identification cards to his friend on October 12, 1981. While posing as Michael Cohen, the friend accepted delivery of the gold shipment on October 14, 1981, and then returned to Minneapolis that same day.

On October 15, 1981, a Dain Bosworth employee phoned respondent to report irregularities in his account. He met with representatives of Dain Bosworth the next day and admitted that he had withdrawn from his account funds that did not belong to him. Either that day or shortly thereafter, respondent requested that Dain Bos-worth refrain from informing the authorities. Respondent claimed that his friend would not agree to return the money unless Dain Bosworth agreed to do so. Dain Bosworth, however, refused to enter into any such agreement. So, to ensure a return of the funds, respondent forged Dain Bosworth’s signature on a document purporting to represent that Dain Bosworth would not inform legal authorities of their actions.

On October 21, 1981, respondent returned to Dain Bosworth the funds which he had withdrawn, together with appropriate interest. The next day, before any approach or inquiry was made of him, he called the offices of the United States Postal Inspector and the United States District Attorney and requested a meeting to discuss his conduct. Also on that day, he paid to Investment Rarities the Minnesota sales and use tax in connection with the gold purchase. On February 19, 1982, respondent was charged in the United States District Court for the District of Minnesota with having committed the federal felony of mail fraud. He subsequently pled guilty to that charge and was convicted on May 27, 1982.

The Professional Responsibility Board then filed this disciplinary action and the matter was referred to a referee. After a hearing, the referee concluded that respondent’s participation in the mail fraud violated Minn.Code Prof.Resp. DR 1-102(A)(3) and (4); his attempt to unlawfully avoid payment of Minnesota sales and use tax by accepting shipment of the gold in New York violated Minn.Code Prof.Resp. DR 1-102(A)(4); his alteration of identification cards violated Minn.Code Prof.Resp. DR 1-102(A)(4); his attempt to dissuade Dain Bosworth from reporting his actions to the authorities violated Minn.Code Prof.Resp. DR 1-102(A)(5); and his forgery of Dain Bosworth’s signature violated Minn.Code Prof.Resp. DR 1-102(A)(4). 2 The referee recommended that respondent’s temporary suspension be continued until October 21, 1983 (a total period of 15 months). He also recommended imposing certain conditions on restoring respondent’s license to practice at that time.

There is no question in this case that respondent’s misconduct warrants severe disciplinary action. The only question presented concerns just what sanction is appropriate under the circumstances. On appeal, the director challenges the referee’s recommendations, urging that respondent’s several acts of misconduct warrant more severe discipline. Stressing respondent’s felony conviction, he contends that Daffer should either be disbarred or at least suspended for a minimum of five years.

This court has previously recognized that felony convictions do not mandate automatic disbarment. In re Olkon, 324 N.W.2d 192, 195 (Minn.1982); In re Scallen, 269 N.W.2d 834, 840 (Minn.1978). Rather, whether disbarment is required turns on a consideration of the unique circumstances of each case. Olkon, 324 N.W.2d at 195; In re Kimmel, 322 N.W.2d 224, 225 (Minn. *385 1982). Each case must be analyzed in light of the purposes of an attorney disciplinary proceeding — “to protect the public and the court and to serve as a deterrent against future misconduct.” In re Weyhrich,

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Bluebook (online)
344 N.W.2d 382, 1984 Minn. LEXIS 1233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petition-of-disciplinary-action-against-daffer-minn-1984.