In re Disciplinary Action Against Fett
2010 Minn. LEXIS 720
Minn.2010Background
- Director of the Office of Lawyers Professional Responsibility filed a petition alleging Fett violated Minn. R. Prof. Conduct 1.11 and 1.4(b) by advising a client to act contrary to a Minnesota statutory short form power of attorney.
- The disciplinary matter concerns Fett’s July 2008 guidance to R.G. about medical assistance planning for M.G., an elderly, dementia/depression/blind nursing-home resident with assets around $607,000.
- M.G. executed a statutory short form power of attorney selecting option (N), granting broad authority to R.G., while the third-part provision barred transferring M.G.’s assets to R.G. personally.
- Fett issued a July 17 letter summarizing the meeting and recommending transferring most assets to R.G. to trigger a medical-assistance penalty period, then later suggested methods to manage the funds.
- A July 22 Medical Assistance Action Plan laid out steps that effectively directed self-dealing under the guise of medical-assistance planning, despite the POA restriction.
- The referee found Fett’s July 17 and 22 communications constituted misconduct, and recommended a public reprimand and one-year unsupervised probation; Fett challenged the findings and ultimate sanction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Fett violate 1.1 by failing to explain consequences? | Fett advised self-dealing without consequences explained. | Fett lacked clear precedent; relied on interpretation of POA and related acts. | Not clearly erroneous; violated 1.1 |
| Did Fett violate 1.4(b) by failing to inform sufficiently? | Fett failed to provide necessary information to enable informed decisions. | Actions were informational within elder-law practice; not clearly deficient. | Not clearly erroneous; violated 1.4(b) |
| Should Fett’s prior disciplinary history be aggravating? | History shows pattern of misconduct; warrants harsher sanctions. | History is aggravating but not dispositive; context matters. | Aggravating factor; supports discipline |
| Should Fett’s elder-law expertise be aggravating? | Specialization in elder law increases responsibility; aggravates sanction. | Experience alone does not negate misconduct; may be mitigating in some cases. | Aggravating factor; supports discipline |
| What is the appropriate sanction? | Public reprimand with unsupervised probation aligns with discipline history and misconduct. | In good faith interpretation; no discipline warranted. | Public reprimand and 1-year unsupervised probation |
Key Cases Cited
- In re Wentzell, 656 N.W.2d 402 (Minn. 2008) (defers to referee findings but allows appellate review of factual conclusions)
- In re Barta, 461 N.W.2d 382 (Minn. 1990) (upholds deferential standard for referee credibility findings)
- In re Waite, 782 N.W.2d 820 (Minn. 2010) (discipline standards; weight of referee recommendation)
- In re Grigsby, 764 N.W.2d 54 (Minn. 2009) (clear and convincing standard for misconduct in disciplinary actions)
- In re Aitken, 787 N.W.2d 152 (Minn. 2010) (review of application of law to facts; clear error standard)
- In re Holker, 730 N.W.2d 768 (Minn. 2007) (prior disciplinary history as an aggravating factor)
- In re Lyons, 780 N.W.2d 629 (Minn. 2010) (substantial practice as aggravator when misconduct involves expertise area)
- In re Gherity, 673 N.W.2d 474 (Minn. 2004) (prior discipline as contributing factor in sanctioning)
- In re Rebeau, 787 N.W.2d 168 (Minn. 2010) (experience can be aggravating; elder-law focus relevant)