In re Petition for Disciplinary Action Against Richard Lee Swanson, a Minnesota Attorney, Registration No. 0173423. ...
Richard Lee Swanson, Chaska, Minnesota, pro se.
S Y L L A B U S
- The referee‘s finding that no mitigating factors were present was not clearly erroneous.
- An indefinite suspension with no right to petition for reinstatement for 6 months is the appropriate discipline for respondent, who failed to represent clients diligently and competently, failed to follow court scheduling orders, continued to practice law while suspended, settled a malpractice claim in exchange for a client‘s agreement to forego filing an ethics complaint, agreed to represent a party despite a clear conflict of interest, failed to promptly withdraw from the matter once the conflict of interest was discovered, entered into an improper flat fee agreement with a client, and failed to timely return unearned fees to a client.
Suspended.
O P I N I O N
PER CURIAM.
The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition for disciplinary action against respondent Richard Lee Swanson. We appointed a referee. After a hearing, the referee determined that Swanson committed professional misconduct during his representation of two clients, B.J. and L.F. The misconduct involving B.J. included failing to diligently and competently represent his client‘s interests, failing to meet court-imposed deadlines, continuing to practice law while suspended for failing to comply with a condition of a prior discipline order, and agreeing to settle a potential malpractice claim in exchange for B.J.‘s agreement to forego filing an ethics complaint. The misconduct involving L.F. included accepting representation despite a clear conflict of interest, failing to promptly withdraw from the matter once the conflict of interest was discovered, entering into an improper flat fee agreement, and failing to promptly refund unearned fees to L.F. The referee found four aggravating factors and no mitigating factors were present and recommended a 180-day suspension. Swanson does not challenge the referee‘s findings concerning his misconduct; rather, he asserts that there are mitigating factors the referee failed to consider. We conclude that the referee did not clearly err by finding that no mitigating factors were present and that the appropriate discipline for Swanson‘s misconduct is an indefinite suspension, with no right to petition for reinstatement for 6 months.
Swanson was admitted to practice law in Minnesota in 1986. He has a lengthy disciplinary history. Swanson has been admonished five times and publicly reprimanded once. Most recently, in March 2015, we suspended Swanson for a minimum of 90 days. See In re Swanson (Swanson I), 860 N.W.2d 677, 678 (Minn. 2015) (order). Our suspension order required Swanson to successfully complete the Multistate Professional Responsibility Examination (MPRE) within 1 year of the date of the order. Id. at 679.
On June 18, 2015, we conditionally reinstated Swanson and placed him on probation for 2 years. In re Swanson (Swanson II), 877 N.W.2d 190, 190 (Minn. 2016) (order). However, Swanson did not comply with the requirement from our March 2015 suspension order that he successfully complete the MPRE, so we indefinitely suspended him, effective March 31, 2016. Id. After Swanson successfully completed the MPRE, we reinstated him on October 4, 2016, and continued his probation until December 17, 2017. In re Swanson (Swanson III), 885 N.W.2d 668, 668 (Minn. 2016) (order).
On August 4, 2020, the Director filed a petition for disciplinary action against Swanson, alleging that Swanson committed professional misconduct in two client matters. The first involved a land dispute in which Swanson‘s client claimed that construction on his neighbors’ property caused flooding. The second matter involved domestic assault charges against a man and a guardianship matter involving the man‘s wife, who was the alleged victim in the domestic assault case.
In July 2015, B.J. contacted Swanson about a potential civil lawsuit. B.J.‘s neighbors had constructed a dam on their property, which B.J. believed caused flooding on and damage to his property. Swanson agreed to pursue a lawsuit on B.J.‘s behalf. On March 15, 2016, Swanson filed a complaint based on information he received from B.J. Swanson performed no research to verify the information, and the first complaint named the incorrect party as the defendant and contained incorrect legal descriptions of the land at issue.
Swanson was suspended from the practice of law on March 31, 2016, for failure to pass the MPRE. Swanson timely notified B.J. that he had been suspended and stated that he would arrange for another attorney to handle the matter until he was reinstated. No other attorney ever worked on the matter, and Swanson failed to notify opposing counsel of his suspension. See Swanson II, 877 N.W.2d at 191 (requiring notice to opposing counsel). Swanson continued to work on the B.J. matter while suspended. On April 21, Swanson‘s employee served the summons and complaint on the defendants, with Swanson notarizing the affidavit of service. Swanson met with B.J. on a regular basis to discuss the litigation and continued to meet with other prospective clients in his office.
Swanson failed to represent B.J. competently and diligently. The district court granted the defendants a default judgment on the first complaint and awarded the defendants over $5,500 in attorney fees and costs after Swanson failed to respond to counterclaims. Swanson admitted to B.J. that the judgment was his fault for failing to respond and personally paid B.J. the full amount of the judgment.
Swanson never notified opposing counsel of his proposed expert witness. Instead, opposing counsel first learned of the expert witness when his name appeared in Swanson‘s proposed joint statement of the case. Swanson delivered a draft of the joint statement to opposing counsel on April 4, 2017—more than 6 weeks after the deadline to disclose expert witnesses. Even at this late date, Swanson still had not provided any expert reports. Indeed, the expert witness had apparently not even prepared his report at this point, as Swanson had failed to respond to the expert‘s communications. Due to the lateness of the disclosure,
Swanson withdrew from the case, but later told B.J. that he would file an appeal challenging the court‘s order excluding expert witnesses. Swanson never filed the appeal. Because he was unable to present expert testimony, B.J. was forced to dismiss his claims with prejudice and was left without recourse. Swanson offered B.J. $300,000 to settle any potential malpractice claims arising from the matter. Swanson conditioned this offer on B.J. agreeing not to file an ethics complaint. B.J. accepted the settlement but later filed an ethics complaint with the Director after Swanson ceased making payments on the settlement.
Swanson‘s Representation of L.F.
On October 2, 2017, the state charged W.F. with misdemeanor domestic assault of his wife, L.F., and the district court issued a domestic abuse no-contact order. Both the criminal complaint and the no-contact order specifically list L.F. as the victim in the case. W.F. hired Swanson as his defense attorney. On October 6, 2017, Scott County filed an emergency guardianship/conservatorship action for L.F. The district court appointed Lutheran Social Services as L.F.‘s guardian and conservator and separately appointed an attorney to represent L.F.
On October 14, 2017, K.F.—W.F. and L.F.‘s daughter—asked Swanson to represent L.F. in the guardianship matter. Although he knew at the time that L.F. was the alleged victim in W.F.‘s case, and that he was representing W.F., Swanson agreed to represent L.F. Swanson did not investigate the underlying facts, so he was not aware that
Swanson filed certificates of representation opposing L.F.‘s civil commitment on October 24, 2017—without ever speaking to L.F. L.F.‘s appointed guardian called Swanson immediately upon learning of his involvement. She informed Swanson that L.F. was unable to consent to the representation and that L.F. was represented by court-appointed counsel. On October 27, 2017, L.F.‘s appointed counsel sent Swanson a letter stating that he already represented L.F. Despite these notices, Swanson did not notify the court that he was withdrawing from the matter until December 15, 2017. During this time, Swanson continued to represent W.F. in the ongoing criminal matter and L.F.‘s family continued to believe that Swanson represented L.F. in the guardianship matter. Swanson did not formally withdraw from the guardianship matter until February 7, 2018.
L.F.‘s guardian filed an ethics complaint with the Director over Swanson‘s conduct. At the Director‘s instruction, Swanson fully refunded the $3,000 retainer payment on April 25, 2019—over 1 year after his withdrawal from the case, and almost 18 months after he accepted the payment.
On August 4, 2020, the Director filed a petition for disciplinary action; after Swanson responded, we appointed a referee. At the hearing before the referee, Swanson testified in his own defense. He admitted some of his misconduct but attempted to minimize it and shift the blame to others. Swanson argued that, during his suspension, his work was not the practice of law—though while he was suspended, he told B.J. that he “shouldn‘t be doing this.” Swanson admitted filing a factually incorrect complaint, but he blamed B.J. for providing false information and accepted no responsibility for his own failure to verify his client‘s words. Although he had personally visited B.J.‘s property to inspect the damage, Swanson suggested that his misconduct did not cause any harm because B.J.‘s claims were fraudulent and the lawsuit would have failed anyway. Swanson claimed that he never filed an appeal because B.J. never returned his call. And although he first proposed the settlement and wrote the terms it contained, Swanson argued that B.J. blackmailed him into making the settlement by threatening to “take [his] license away.”
In his testimony about the L.F./W.F. matter, Swanson neither tried to establish that he was unaware of the conflict of interest nor claimed that he had obtained client consent or otherwise attempted to comply with the Rules of Professional Conduct. Nor did he try to demonstrate that he had taken steps to screen his representation of the two clients from each other. Rather, Swanson maintained that simultaneously representing both W.F. and L.F. was harmless because he “knew” W.F.‘s case would not go to trial. Finally, Swanson claimed that he took so long to return the retainer fee because he did not know where to
Following the hearing, the referee found that Swanson committed multiple acts of professional misconduct. In the B.J. matter, the referee concluded that Swanson‘s incompetent representation and lack of diligence—including failing to verify the information in the complaint; failing to timely respond to counterclaims; failing to timely file witness, exhibit, and expert witness disclosures; and failing to file an appeal—violated
In the L.F. matter, the referee found that Swanson‘s failure to discover the conflict of interest before agreeing to the representation, along with his failure to immediately withdraw after he learned of the conflict, violated
The referee found that Swanson had harmed B.J., L.F., and “the public and the legal profession.” The referee found four aggravating factors: 1) Swanson‘s disciplinary history, 2) the fact that Swanson was on probation, 3) Swanson‘s failure to appreciate his errors and lack of remorse, and 4) Swanson‘s lengthy experience as a lawyer. The referee found that no mitigating factors were present. The referee adopted the Director‘s suggested discipline and recommended an indefinite suspension from the practice of law, with no right to petition for reinstatement for 180 days.
ANALYSIS
Swanson does not dispute the referee‘s findings or the conclusion that he committed professional misconduct. Instead, he asserts that there are mitigating circumstances that
I.
The respondent in a discipline case has the burden of alleging and proving any mitigating factors. In re Hummel, 839 N.W.2d 78, 82 (Minn. 2013). Because Swanson ordered a transcript, the referee‘s findings of fact and conclusions are not binding.
As a preliminary matter, Swanson argues that he was improperly pressured into testifying at the hearing and that this impacted the referee‘s finding that no mitigating factors were present. The Director called Swanson as a witness. Swanson initially stated that he was not going to testify. The referee told him that he could not refuse because he had been called as a witness in a civil case. Swanson was then duly sworn and testified.
Swanson also argues that the referee erred by failing to find mitigating factors. But he never specifies which mitigating factors he believes should have been found. “[A] referee‘s failure to make a factual finding” is not clearly erroneous unless the basis for that finding “is raised as an issue in the proceedings before the referee.” In re Tigue, 843 N.W.2d 583, 588 (Minn. 2014); see also In re Tayari-Garrett, 866 N.W.2d 513, 520 (Minn. 2015) (“[The respondent] did not ask the referee to find any mitigating factors . . . . As a result, her claim that the referee clearly erred by declining to find any mitigating factors for her misconduct fails.”). At the conclusion of the evidentiary hearing, the referee gave Swanson an opportunity to file a brief and proposed findings of fact and conclusions of law. Swanson filed neither. The issue of mitigating factors was not properly before the
II.
We turn next to the appropriate discipline for Swanson. Both the referee and the Director recommend that we indefinitely suspend Swanson for 180 days. Swanson maintains that his conduct warrants a suspension of no longer than 30 days.
We give “great weight” to the referee‘s recommended discipline. In re Butler, 960 N.W.2d 540, 552 (Minn. 2021). But “we retain ultimate responsibility for determining [the] appropriate discipline.” In re Montez, 812 N.W.2d 58, 66 (Minn. 2012). We impose discipline “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 Albrecht, 779 N.W.2d 530, 540 (Minn. 2010) (citation omitted) (internal quotation marks omitted). To determine the appropriate discipline, we consider four factors: (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. Butler, 960 N.W.2d at 552. We also consider aggravating and mitigating factors and attempt to impose discipline consistent with similar cases. Id.
We first consider the nature of Swanson‘s misconduct. Swanson‘s misconduct includes his (1) unauthorized practice of law while suspended, (2) failure to comply with court scheduling orders, (3) repeated instances of client neglect and incompetent representation, (4) failure to comply with the rules regarding conflicts of interest, and (5) failure to timely refund unearned fees.
Practicing law while suspended is serious misconduct as it does not merely constitute the unauthorized practice of law; it is also contempt of court. In re Hunter, 473 N.W.2d 866, 869 (Minn. 1991). We generally impose a suspension for such violations, as “impos[ing] a public reprimand for respondent‘s unauthorized practice of law would make the original . . . disciplinary suspension imposed by this court largely meaningless.” In re Kennedy, 873 N.W.2d 133, 133 (Minn. 2016) (order). Swanson practiced law while suspended for not complying with our prior disciplinary order. We have treated such conduct more harshly than when a lawyer practices law while suspended for failure to pay registration fees or meet CLE requirements. Compare In re Ruffing, 883 N.W.2d 222, 222 (Minn. 2016) (order) (imposing a 30-day suspension for practicing law while on a disciplinary suspension), with In re DuFresne, 640 N.W.2d 337, 337–38 (Minn. 2002) (order) (imposing a public reprimand for practicing law while suspended for failure to pay registration fee and neglecting client matters).
Failure to comply with court orders and schedules is also serious misconduct. In re Lundeen, 811 N.W.2d 602, 608 (Minn. 2012). We have imposed suspensions for failing to meet court deadlines. See, e.g., In re Walsh, 872 N.W.2d 741, 750 (Minn. 2015)
“Perhaps no professional shortcoming is more widely resented than procrastination.”
Failing to abide by the rules regarding conflicts of interest is also serious misconduct. In re Udeani, 945 N.W.2d 389, 397 (Minn. 2020). Conflicts of interest have led to lengthier suspensions even when there was no evidence that any clients were harmed by the conflict. See, e.g., In re Perl, 407 N.W.2d 678, 682 (Minn. 1987) (imposing a 1-year suspension even though “there [was] no evidence that any client was harmed” by the conflict of interest). Swanson knowingly represented both a defendant and the defendant‘s alleged victim—an obvious conflict of interest.
Failure to promptly return unearned fees to a client is also serious misconduct. In re Taplin, 837 N.W.2d 306, 312 (Minn. 2013). Swanson held an unearned $3,000 fee for over a year and half without justification. The nature of Swanson‘s misconduct favors more severe discipline.
B.
Next, we address “the cumulative weight” of the disciplinary violations “as a whole.” In re Eskola, 891 N.W.2d 294, 299–300 (Minn. 2017) (citation omitted) (internal
C.
Next, we determine whether, and to what extent, Swanson‘s misconduct harmed the public. When assessing the harm to the public, we consider “the number of clients harmed [and] the extent of the client injuries.” In re Rambow, 874 N.W.2d 773, 779 (Minn. 2016). Swanson committed serious misconduct in two separate client matters. His misconduct resulted in a judgment against B.J. for over $5,000, forced B.J. to dismiss his claims, and foreclosed B.J. from filing an appeal. In addition, B.J. was forced to pay at least $1,000 for the services of an expert witness that could not be used. Swanson also harmed L.F. by improperly accepting the $3,000 retainer and failing to return it for over a year and a half. Swanson‘s harm to the public favors more severe discipline.
D.
Swanson‘s misconduct also harmed the legal profession. Practicing law while suspended “harm[s] the legal profession and do[es] not represent the virtues the public has the right to expect of lawyers.” In re Grigsby, 815 N.W.2d 836, 846 (Minn. 2012). Swanson‘s delays and missed deadlines impeded court business. And his repeated acts of
E.
We also consider aggravating and mitigating factors. Butler, 960 N.W.2d at 552. Here the referee found four aggravating factors and no mitigating factors. As discussed above, it was not clearly erroneous for the referee to find that no mitigating factors were appropriate.
The referee found four aggravating factors: 1) Swanson‘s disciplinary history, 2) the fact that Swanson was on probation during the present misconduct, 3) his lack of remorse,18 and 4) Swanson‘s lengthy experience. Although Swanson argues on appeal that he showed remorse, the referee affirmatively concluded that Swanson was not remorseful, and, as previously noted, Swanson submitted no briefing or proposed findings to the contrary. Swanson does not attempt to challenge any of the other findings. The findings are supported in the record, and all four are valid aggravating factors. See, e.g., MacDonald,
F.
Finally, we consider similar cases to ensure that our disciplinary decisions are consistent with prior sanctions. The most similar case to Swanson‘s is In re Coleman, where we imposed a 6-month suspension for similar misconduct. 793 N.W.2d 296, 309 (Minn. 2011). In Coleman, the attorney failed to correctly address a conflict of interest resulting from representing two codefendants in a criminal matter, and in a different matter, failed to appear in court. Id. at 300–01. The attorney also violated court rules for withdrawing from representation and failed to protect the client‘s interests upon termination of representation. Id. at 306–07. Coleman also failed to communicate with these clients. Id. at 304, 307. Similar aggravating factors were also present. See id. at 309 (explaining that three aggravating factors were present: disciplinary history, committing misconduct while on probation, and lack of remorse).
In light of these facts, we conclude that the appropriate discipline for Swanson is an indefinite suspension, with no right to petition for reinstatement for 6 months.
Accordingly, we order that:
- Respondent Richard Lee Swanson is indefinitely suspended from the practice of law, effective 14 days from the date of this opinion, with no right to petition for reinstatement for 6 months.
Respondent shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals), and shall pay $900 in costs, seeRule 24, RLPR .- Respondent may petition for reinstatement pursuant to
Rule 18(a)–(d), RLPR . Reinstatement is conditioned on the successful completion of the written examination required for admission to the practice of law by the State Board of Law Examiners on the subject of professional responsibility, seeRule 18(e)(2), RLPR ;Rule 4.A.(5), Rules for Admission to the Bar (requiring evidence that an applicant has successfully completed the Multistate Professional Responsibility Examination), and satisfaction of continuing legal education requirements, seeRule 18(e)(4), RLPR .
Suspended.
C O N C U R R E N C E
THISSEN, Justice (concurring).
I concur in the court‘s decision. I write separately to reiterate my concern about the reflexive use of “experience” as an aggravating factor. In re Nelson, 933 N.W.2d 73, 75 (Minn. 2019) (Thissen, J., concurring); In re Sea, 932 N.W.2d 28, 42 (Minn. 2019) (Thissen, J., concurring in part, dissenting in part).
An aggravating factor, by definition, is a factor that renders the lawyer‘s conduct in the particular case more egregious than a typical case of lawyer misconduct. Here, the referee stated, in a single sentence: “Respondent has significant experience in the practice of law.” More than that should be required. The referee should provide at least some explanation about why the lawyer‘s experience renders the lawyer‘s conduct in that particular case more egregious than the typical case.
There are certainly many types of misconduct—for instance, failing to meet court-imposed deadlines, continuing to practice law while suspended for failing to comply with a condition of a prior discipline order—that any lawyer should understand regardless of experience. But cf. In re Quinn, 946 N.W.2d 583, 593 (Minn. 2020) (Thissen, J., concurring in part, dissenting in part) (finding that extensive experience as a bankruptcy lawyer was an aggravating factor where misconduct involved mishandling of bankruptcy case). Otherwise, more experienced lawyers should always receive more severe discipline than less experienced lawyers: essentially, as a matter of law, a lawyer with 20 years of experience deserves more severe discipline than a lawyer with 15 years of experience who deserves more severe discipline than a lawyer with 10 years of experience who deserves
I also reiterate my concern about imposing greater discipline under the guise of lack of remorse simply because a lawyer attempts to defend himself against charges of professional misconduct and disputes allegations of misconduct by attempting to explain his actions or contesting the legal basis for the claims. See id. at 596; Sea, 932 N.W.2d at 45.
Because consideration of these two aggravating factors does not impact what the proper discipline should be, I concur in the court‘s decision.