In re Petition for Disciplinary Action Against Samuel A. McCloud, a Minnesota Attorney, Registration No. 0069693. ...
Samuel A. McCloud, Palm Bay, Florida, pro se.
S Y L L A B U S
Disbarment is the appropriate discipline for an attorney who repeatedly neglected a client matter; failed to communicate with the client, in part, by failing to inform his client of plea offers; made a knowingly false statement to a court; and kept an unearned portion of a flat fee; as well as when several aggravating factors are present, including an extensive history of professional discipline for similar misconduct.
Disbarred.
PER CURIAM.
Respondent Samuel A. McCloud has a long history of professional discipline and is currently suspended from the practice of law as a result of two prior disciplinary actions. This case arises out of his representation of a client charged with driving while impaired (DWI). The Director of the Office of Lawyers Professional Responsibility (Director) brought a petition for disciplinary action alleging that McCloud repeatedly neglected the matter; failed to communicate with his client, in part, by failing to inform him of plea offers; made a knowingly false statement to a court; and kept an unearned portion of a flat fee. The referee concluded that the Director proved that McCloud committed the misconduct alleged in the petition and that several aggravating factors were present. Because neither party ordered a transcript, the refеree‘s findings of fact and conclusions that McCloud violated the Minnesota Rules of Professional Conduct are conclusive.
FACTS
The referee found the facts set forth below. McCloud was admitted to practice law in Minnesota in April 1977. He has almost exclusively practiced criminal law, with DWI cases making up much of his practice. McCloud has a lengthy history of professional discipline beginning in 1986. He has been privately disciplined eight times, receiving seven admonitions and one private probation. In addition, we have publicly disciplined
The current disciplinary action arises from McCloud‘s representation of D.D., who was involved in a car crash in Morrison County on March 6, 2020, and was investigated for DWI. On March 17, 2020, D.D. hired McCloud to represent him with respect to the expected DWI charges. D.D. paid a flat fee of $6,000. According to the retainer agreement, the fee was “for all reprеsentation up to and including trial.”
On April 17, 2020, D.D.‘s case was filed in Morrison County District Court. In an amended citation filed five days later, D.D. was charged with two counts of misdemeanor DWI. McCloud appeared on behalf of D.D. at the August 4, 2020 arraignment but did not file a certificate of representation as required by
Because there was no certificate of representation, the Assistant Morrison County Attorney who initially handled D.D.‘s case (the first prosecutor) did not know that McCloud represented D.D. and sent a letter directly to D.D. on August 6, 2020. Among other information, the letter made an offer that would have allowed D.D. to plead guilty to one misdemeanor DWI charge and serve no jail time. The offer was valid only until the pretrial hearing. D.D. did not understand the letter, so he and S.W. contacted McCloud to ask about it. McCloud responded that he did not have the documents that D.D. was asking about, so S.W. emailed them to him. McCloud never responded to that email or followed up with D.D. or S.W. to explain the plea offer or any of the other information in the letter,
On August 21, 2020, McCloud filed a certificate of representation in the matter. The certificate, however, stated that he reрresented D.D. on a charge of “GROSS MISD. REFUSAL OF TESTING,” when the only charges brought against D.D. at that time were misdemeanor DWI charges.
In September 2020, McCloud filed a motion to dismiss the case, but no hearing took place. The case was not set for a pretrial conference until February 24, 2021.
On the day of D.D.‘s pretrial conference, we issued an opinion in one of McCloud‘s prior discipline cases, suspending McCloud for a minimum of 60 days, effective March 10, 2021. In re McCloud (McCloud II), 955 N.W.2d 270, 282 (Minn. 2021). We required McCloud to file and serve proof of successful completion of the Multistate Professional Responsibility Examination (MPRE) within one year of the date of the opinion. Id. at 283. We also provided that upon reinstatement, McCloud would be placed on supervised probation for two years. Id. McCloud notified the Morrison County Attorney‘s Office of his suspension, but he did not notify D.D.3 We conditionally reinstated McCloud on May 10, 2021.
On May 14, 2021, the first prosecutor emailed McCloud to renew the offer for D.D. to plead guilty to a misdemeanor DWI charge. The first prosecutor stated that if D.D. did not accept the offer, the misdemeanor matter would be dismissed and a gross misdemeanor
On July 28, 2021, the prosecution dismissed the misdemeanor charges and noted that it would charge D.D. with a higher-level offense. McCloud did not inform D.D. of this development.
In the 15 months in which D.D.‘s misdemeanor case was pending, McCloud never spoke to the first prosecutor, despite that prosecutor‘s repeated attempts to contact him. The first prosecutor later testified at McCloud‘s disciplinary hearing that she was frustrated with McCloud‘s lack of communication but may have considered leaving the plea offer open if McCloud had contacted her even after the deadline. The first prosecutor also testified that it was “really abnormal” for a misdemeanor case in Morrison County to last as long as this one had.
On July 30, 2021, the Morrison County Attorney‘s Office filed a new complaint charging D.D. with one count of gross misdemeanor DWI test refusal and one count of misdemeanor DWI. D.D. was scared when he received the complaint in the mail. D.D. contacted McCloud, who told him not to worry and said, “they do it to everyone.”
On November 16, 2021, McCloud filed a letter with the court asking that the settlement conference schеduled for the following day be waived or, in the alternative, held via Zoom. In this letter, McCloud stated that he and a second prosecutor on the new case “had a lengthy conversation today in an effort to settle the above matter. We were unsuccessful.” This statement was false, which McCloud knew because no such
On November 19, 2021, the second prosecutor emailed McCloud with another offer for D.D. to plead guilty to the misdemeanor count and have the gross misdemeanor count dismissed. This offer was open until January 2, 2022. McCloud responded that he would talk to his client and respond as soon as pоssible. But McCloud never communicated this offer to D.D., and the deadline passed without any response to the offer.
Having received no response to the plea offer, the second prosecutor called McCloud in late January. When the second prosecutor stated that he was calling about D.D.‘s case, McCloud asked, “Who‘s that?” When informed that it was his client, McCloud asked, “What did he do?” When the second prosecutor explained that he was charged with DWI, McCloud responded, “He‘s innocent” and said that they wanted a trial. This conversation, as well as other events in the history of this case, made the second prosecutor concerned about the quality of McCloud‘s representation of D.D.
On February 4, 2022, the second prosecutor contacted S.W. He explained the plea offer and wrote, “you are free to do whatever you want going forward,” and that “my goal here is to ensure that your Dad knows he has the opportunity to resolve the case if he choses [sic] to do that.” After speaking with S.W., D.D. terminated McCloud‘s services. At D.D.‘s request, S.W. emailed McCloud to inform him that D.D. was terminating the representation and to request that McCloud return any unearned amount of the $6,000 flat fee. McCloud did not respond to S.W.‘s email and, to the date of the referee‘s report, provided no refund to D.D.
On March 10, 2022, we issued an order related to McCloud II, denying McCloud‘s motion to extend the time limit to suсcessfully complete the MPRE and revoking his conditional reinstatement. Under our order, McCloud could apply for reinstatement after filing proof that he successfully completed the MPRE. There is no indication in the record that McCloud has completed the MPRE, and as of the date of this opinion, this suspension remains in effect.
On June 8, 2022, the Director initiated an unrelated disciplinary action that alleged, among other misconduct, that McCloud engaged in the unauthorized practice of law during his 2021 suspension.4 In re McCloud (McCloud V), 998 N.W.2d 760, 762 (Minn. 2023). On December 20, 2023, we imposed an indefinite suspension with no right to petition for reinstatement for 90 days.5 Id. at 771. McCloud has not petitioned for reinstatement and is currently suspended.
On March 28, 2024, the Director initiated the present case. The referee held an
The Director argued before the referee—and argues before us—that McCloud should bе indefinitely suspended, with no right to petition for reinstatement for 90 days. The referee agreed, although she noted that she “seriously considered recommending discipline of an indefinite suspension, with the right to petition for reinstatement after 120 days, instead of adopting the Director‘s conservative recommendation.” McCloud has not made an argument about the discipline that should be imposed here. Instead, he attempts to relitigate the referee‘s findings of fact and conclusions that he violated the Minnesota Rules of Professional Conduct in his briefing to this court.
ANALYSIS
Because neither party requested a transcript, the referee‘s findings of fact and “the conclusions that the referee draws from the facts, such as whether the attorney‘s conduct
The only question that remains is what discipline should be imposed. We place “great weight on the referee‘s recommended discipline, but we retain ultimate responsibility for determining the appropriate sanction.” In re Nwaneri (Nwaneri I), 896 N.W.2d 518, 525 (Minn. 2017). In deciding what discipline to impose, we have held that the purposes of disciplinary sanctions are not to punish the attorney but “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 Oberhauser, 679 N.W.2d 153, 159 (Minn. 2004). We consider four factors when determining the appropriate discipline to impose: (1) the nature of the misconduct; (2) the cumulative weight of the disciplinary violations; (3) the harm to the public; and (4) the harm to the legal profession. In re Hansen, 868 N.W.2d 55, 59 (Minn. 2015). We also consider any aggravating and mitigating factors and seek to impose discipline consistent with similar cases. Id.
First, we consider the nature of McCloud‘s misconduct. Id. McCloud‘s misconduct falls into three main categories: (1) neglecting D.D.‘s case; (2) retaining unearned fees; and (3) making a false statement to a court. The nature of each category of misconduct is discussed in turn.
The first category of McCloud‘s misconduct is a pattern of failing to diligently represent and communicate with D.D., in violation of
Not only did the referee conclude that McCloud neglected D.D.‘s case and failed to communicate with him, but the referee also concluded that this occurred on numerous occasions. The referee concluded that McCloud repeatedly failed to diligently represent D.D. by “taking five months to file the initial certificate of representation, failing to notify [D.D.] of plea offers before they expired, and failing to respond to the prosecutor‘s plea offers.” In addition, McCloud frequently failed to communicate with D.D. McCloud failed to explain the nature of the initial offer to plead guilty to one count of misdemeanоr DWI. He did not tell D.D. about the second offer to plead guilty to one count of misdemeanor DWI or the prosecution‘s intention to dismiss and re-file the case with an added gross misdemeanor test refusal charge if D.D. chose not to take the offer. McCloud did not tell D.D. when the initial misdemeanor charges were dismissed. After the gross misdemeanor complaint was filed, McCloud did not explain the nature of the charges to D.D. and he failed to inform D.D. of the plea offer the second prosecutor made related to those charges.
The next category of McCloud‘s misconduct is his failure to return unearned fees. The referee concluded that McCloud violated
The last category of McCloud‘s misconduct is his false statement to the court. The referee concluded that McCloud violated
Second, we consider the cumulative weight of McCloud‘s misconduct. Hansen, 868 N.W.2d at 59. We have held that multiple instances of misconduct over a substantial amount of time warrant more severe discipline than a “brief lapse in judgment or a single, isolated incident” of misconduct. In re Murrin, 821 N.W.2d 195, 208 (Minn. 2012) (citation omitted) (internal quotation marks omitted); see also Oberhauser, 679 N.W.2d at 160 (“[T]he cumulative weight and severity of multiple disciplinary rule violations may compel severe discipline even when a single act standing alone would not have warranted such discipline.“). Given McCloud‘s many violations over a substantial length of time, this factor warrants more severe discipline.
Third, we consider the harm to the public. Hansen, 868 N.W.2d at 59. In assessing the harm to the public, “we consider the number of clients harmed [and] the extent of the clients’ injuries.” In re Hulstrand, 910 N.W.2d 436, 443 (Minn. 2018) (alteration in original) (citation omitted) (internal quotation marks omitted). Client injuries may include financial harm from the failure to refund unearned fees, as well as “delay, anxiety, distress, and loss of faith in the legal system” caused by a lawyer‘s neglect. Id.
Finally, we consider the harm to the legal profession. Hansen, 868 N.W.2d at 59. Each type of misconduct McCloud committed reflects poorly on the legal profession at large and erodes the public‘s confidence in the legal profession. In re Nathanson, 812 N.W.2d 70, 79 (Minn. 2012) (stating that “a lawyer‘s procrastination, neglect, and failure to communicate with a client . . . reflect adversely on the bar, and are destructive of public confidence in the legal profession.” (citation omitted) (internal quotation marks omitted)); In re Shaughnessy, 467 N.W.2d 620, 621 (Minn. 1991) (stating that a lawyer‘s failure to communicate a settlement offer to a client “reflect[s] adversely on the bar, and [is] destructive of public confidence in the legal profession“); In re Ulanowski (Ulanowski II),
Along with the four factors discussed above, we also consider mitigating or aggravating circumstances when determining the appropriate discipline. Hansen, 868 N.W.2d at 59. The attorney subject to discipline bears the burden to allege and prove mitigating factors. Ulanowski II, 834 N.W.2d at 703. McCloud has not raised any mitigating factors, as he did not object to the Director‘s motion in limine to prevent him from raising mitigating factors because of incomplete discovery responses. The referee found several aggravating factors: McCloud‘s significant experience in the law, his extensive disciplinary history, his lack of remorse, and the intentional nature of his misconduct.
We begin by considering McCloud‘s significant experience practicing law. See In re Bosse, 951 N.W.2d 469, 483 (Minn. 2020) (explaining that we reasonably expect problems to occur less often with an experienced attorney), reh‘g denied. McCloud has been practicing law for nearly 50 years. During his entire legal career, he has practiced criminal law, and around 75% of his clients had been charged with DWI. Not only has
Next, we consider McCloud‘s disciplinary history. We expect attorneys with a disciplinary history to show a renewed commitment to ethical behavior, and we consider past disciplinary actions to be an aggravating factor. Sea, 932 N.W.2d at 37. And even if the current misconduct now before us pre-dates when a lawyer was previously disciplined, we still consider the prior discipline to be an aggravating factor because it “reveals a pattern of misconduct, which heightens our concerns” that the lawyer practicing law poses a danger to the public. In re Nwaneri (Nwaneri II), 978 N.W.2d 878, 889 (Minn. 2022). In McCloud‘s case, he has faced professional discipline on 12 prior occasions. Seven of these disciplinary actions resulted in admonitions, one resulted in private probation, one resulted in a public reprimand, and three resulted in suspensions.7
We have imposed more severe sanctions when the current misconduct is similar to prior misconduct. In re Cutting, 671 N.W.2d 173, 175 (Minn. 2003). McCloud‘s disciplinary history includes misconduct much like the misconduct here. Two of
Next, we consider McCloud‘s lack of remorse. See In re Severson, 860 N.W.2d 658, 670 (Minn. 2015) (noting that an attorney‘s lack of remorse can be an aggravating factor in disciplinary proceedings). The referee noted that “[t]hroughout this proceeding, respondent‘s position hаs been that fault lies with [D.D.] or [S.W.] for not asking respondent for specific information they needed, rather than it being respondent‘s responsibility to affirmatively provide [D.D.] with information.” The referee also noted that McCloud does not recognize the wrongful nature of his conduct and “consistently maintained the position that he is entitled to retain his client‘s funds unless and until [D.D.]
The referee also considered the intentional nature of McCloud‘s conduct. We have recognized that the intentional nature of miscоnduct can be an aggravating factor. In re Ulanowski (Ulanowski I), 800 N.W.2d 785, 802 (Minn. 2011). That said, we have also expressed concerns about “double count[ing]” intentionality “when the rules of professional conduct at issue require proof of intent.” In re Tayari-Garrett, 866 N.W.2d 513, 520 n.4 (Minn. 2015) (citation omitted) (internal quotation marks omitted).
Here, the referee concluded that McCloud‘s intentional conduct in making a knowingly false statement to the court is an aggravating factor. The referee explained—in addressing aggravating factors—that McCloud‘s conduct violated
Along with considering mitigating and aggravating factors, we also look to similar cases to “ensure that our disciplinary decision is consistent with prior sanctions.” Hansen, 868 N.W.2d at 60 (citation omitted) (internal quotation marks omitted). The Director cites several cases in which we have suspended attorneys for combinations of violations that overlap with McCloud‘s violations in this discipline proceeding. First, the Director points to In re Bruggeman, where we imposed an indefinite suspension with no right to petition for reinstatement for 90 days for the following misconduct:
[R]epresenting clients with a conflict of interest, providing incompetent representation by naming an improper party as a defendant in a complaint and failing to properly serve defendants with the complaint, neglecting the matter, failing to communicate with the clients, forging a client‘s electronic signature on an affidavit and filing it with the court, making multiple knowingly false statements to the clients, failing to timely withdraw from representation, failing tо provide the clients with a copy of the file upon termination of the representation, failing to inform the clients if costs they would be responsible for would be deducted before or after the contingent fee is calculated, and fabricating documents and making knowingly false statements to the Director during a disciplinary investigation.
In re Bruggeman, 992 N.W.2d 371, 371–72 (Minn. 2023) (order) (imposing discipline after the parties entered into a stipulation for discipline). Bruggeman is similar to this case in several ways, but it differs in that the respondent in Bruggeman presented evidence of a mitigating factor—extreme personal stress—and had been subject to only two public reprimands. McCloud, by contrast, presented no mitigating evidence and has a much more extensive disciplinary history, including discipline for the same type of misconduct at issuе
The Director next cites In re Nemer, in which we suspended an attorney for 90 days for:
[f]ailing to properly document a cash payment received from the client; failing to demonstrate thoroughness, preparedness, and legal knowledge reasonably necessary for a representation; failing to diligently represent the client; failing to communicate with the client, causing an unreasonable delay in the resolution of the client‘s case proceedings; knowingly disobeying an instruction from the court; and making knowingly false and misleading statements to a court on two separate occasions; and, in a second matter, failing to clearly communicate the basis or rate of his fee in a written fee agreement, and splitting legal fees with a lawyer not in his firm without obtaining written agreement from the client about the share each lawyer would recеive.
991 N.W.2d 274, 275 (Minn. 2023) (order) (imposing discipline after the parties entered into a stipulation for discipline). Although certain aspects of Nemer‘s misconduct are similar to McCloud‘s, the cases are distinguishable because Nemer‘s prior disciplinary history was substantially less extensive, consisting of four admonitions and one private probation.
The Director also cites several cases where we indefinitely suspended attorneys for false statements alone or primarily for false statements. The Director cites Sea, where we indefinitely suspended an attorney, with no right to petition for reinstatement for 120 days, for knowingly making false statements to a tribunal; making false statements to others; engaging in dishonesty, fraud, deceit, or misrepresentation; and engaging in conduct that
When, however, attorneys commit serious misconduct after an extensive history of professional misconduct, we have also ordered disbarment. In In re Brehmer, we commented that “[d]isbarment is an appropriate sanction for attorneys who engage in an ongoing pattern of serious misconduct.” 642 N.W.2d 431, 434 (Minn. 2002). In that case, we noted that much of the attorney‘s misconduct was similar to his “extensive disciplinary history.” Id. at 432, 434. In In re Redburn, we agreed with the Director‘s recommendation to disbar an attorney whose misconduct in three client matters included “failure to communicate with three clients, failure to provide diligent representation, failure to refund $3,000 in retainer fees and account to clients for those fees, failure to inform clients of his suspension, failure to protect two clients’ interests on termination of representation, failure to pay a professionally incurred debt, failure to file an affidavit with the Director‘s office documenting notification of clients and tribunals of his suspension, and failure to cooperate with the disciplinary investigation,” noting that, “in addition, some of Redburn‘s actions involved dishonesty and were prejudicial to the administration of justice.” 746 N.W.2d
Based on all these considerations, we now determine the appropriate discipline. We weigh the constellation of McCloud‘s present misconduct and aggravating factors, including McCloud‘s long disciplinary history, in view of our precedent. After doing so, we conclude that the referee‘s recommendation of an indefinite suspension with no right to petition for reinstatement for 90 days is too lenient. We generally give “great weight” to the referee‘s recommended discipline. Nwaneri I, 896 N.W.2d at 525. But we do not agree that the appropriate discipline for acts of present misconduct should be reduced because a lawyer with a lengthy disciplinary history committed the present misconduct before he was most recently disciplined. See Nwaneri II, 978 N.W.2d at 889 (explaining thаt when the current misconduct predates prior discipline, the prior discipline is an aggravating factor because it “reveals a pattern of misconduct, which heightens our concerns” that the lawyer practicing law poses a danger to the public).
Under these circumstances, we conclude that the appropriate discipline is disbarment. McCloud‘s decades-long disciplinary history for similar misconduct accounts for our unusually large departure from the referee‘s recommended discipline. In McCloud V, we noted that McCloud‘s disciplinary history was “strikingly extensive,” raising “serious questions about whether the public [would] be protected if we allow McCloud to continue to practice law.” 998 N.W.2d at 769, 771. Because of this fact, we
“In Minnesota we recognize that the practice of law ‘is a privilege, not a right.’ ” Redburn, 746 N.W.2d at 339 (quoting In re Swanson, 405 N.W.2d 892, 893 (Minn. 1987)). Like other attorneys that committed serious misconduct after an extensive history of similar professional misconduct, McCloud has forfeited his privilege to practice law. Given the many and serious instances of misconduct involved here, the gravity of McCloud‘s extensive history of misconduct which has injurеd his clients and harmed the profession, and McCloud‘s continuing complete lack of remorse, we conclude that another suspension would not adequately protect the public, the legal profession, or deter future misconduct by McCloud or other lawyers. Under these circumstances, disbarment is the appropriate discipline.
CONCLUSION
For the foregoing reasons, respondent Samuel A. McCloud is disbarred from the practice of law in the State of Minnesota, effective on the date of this opinion. Respondent must comply with
Disbarred.