In re Petition for DISCIPLINARY ACTION AGAINST Linda A. BROST, a Minnesota Attorney, Registration No. 182692.
No. A13-2307.
Supreme Court of Minnesota.
July 23, 2014.
850 N.W.2d 699
Linda A. Brost, Saint Paul, MN, pro se.
OPINION
PER CURIAM.
On December 16, 2013, the Director of the Office of Lawyers Professional Responsibility (OLPR) filed a petition for disciplinary action against Linda A. Brost. The petition alleged that Brost engaged in professional misconduct when she committed theft by swindle and identity theft, stealing approximately $43,000 from a client. The petition also alleged that Brost failed to cooperate in the Director‘s disciplinary investigation. Brost did not respond to the petition. By order filed on February 5, 2014, we deemed all allegations in the petition for disciplinary action admitted. The only issue in this case is what discipline to impose. The Director seeks disbarment.
I.
Respondent, Linda A. Brost, was admitted to practice law in Minnesota on October 12, 1987. Brost was indefinitely suspended on March 31, 2009, for using the expired notary stamp of a deceased notary to fraudulently notarize her own signature on a certificate of trust prepared for a
A. Theft by Swindle and Identity Theft
Brost‘s theft arose from her representation of A.F., which dates back to 1993 when Brost drafted a will for A.F. Two friends of A.F. were each to receive gifts of $10,000 upon A.F.‘s death and A.F.‘s remaining assets were to be evenly distributed to the Church of St. Francis De Sales of St. Paul and Shriners Hospital, Twin Cities Unit. A.F. died in September 2005. When A.F. passed away, he owned two annuity policies he had purchased from Jackson National Life Insurance in 1997. His two friends were beneficiaries of one policy and his estate was the beneficiary of the other policy.
Brost knowingly and intentionally devised a scheme to avoid reporting A.F.‘s two annuities to A.F.‘s estate during probate. Between March 31, 2011, and March 31, 2012, Brost cashed or collected monthly annuity payments from A.F.‘s annuities. In early 2012, Brost, pretending to be A.F., surrendered one of the two annuities for a cash payment of $28,641.60. Brost stole a total of approximately $43,000.
Based on this conduct, Brost was charged with six felonies, including theft by swindle, identity theft, aggravated forgery, and insurance fraud. In July 2013, Brost pleaded guilty and was later convicted of one count of theft by swindle, in violation of
B. Non-Cooperation with the Director‘s Investigation
In April 2013 a former client of Brost‘s filed a complaint with the Director alleging that Brost had engaged in professional misconduct. The Director mailed a notice of investigation to Brost on May 14, 2013, directing Brost to provide the former client and the Director with a written response within 14 days. Brost did not provide a response. The Director sent letters on May 31, 2013, June 20, 2013, and July 22, 2013, to Brost‘s Saint Paul address, which was her address of record with the Minnesota Attorney Registration System. In these letters, the Director continued to advise Brost that failing to respond may constitute a separate disciplinary offense. The Director also sent a letter to Brost‘s secondary address in Wisconsin, advising her that the Director had not received her response to the notice of investigation and that failure to respond may constitute a separate disciplinary offense. Brost failed to respond to any of the letters sent by the Director.
After Brost pleaded guilty to the theft of A.F.‘s annuity payments, the Director mailed a notice to Brost‘s Saint Paul address on July 30, 2013, of a new investigation regarding Brost‘s criminal matter and requesting a complete written explanation within two weeks. The Director sent additional letters regarding the investigation to Brost‘s Saint Paul and Wisconsin addresses on August 15, 2013, September 12, 2013, and October 3, 2013. Brost failed to respond. Although none of the letters sent by the Director were returned as undeliverable, the Director has not received any communication from Brost regarding the alleged misconduct. The Director alleges that this failure to cooperate violates
Brost was personally served with the petition for disciplinary action on December 6, 2013. Brost failed to respond to the petition. Based on Brost‘s failure to respond, the Director filed a motion for summary relief requesting the court deem all allegations in the petition admitted pursuant to
II.
The purpose of discipline for professional misconduct is “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 Rebeau, 787 N.W.2d 168, 173 (Minn.2010). The four factors that guide this court‘s imposition of discipline are: “(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 Fru, 829 N.W.2d 379, 388 (Minn.2013) (citation omitted) (internal quotation marks omitted). Aggravating and mitigating circumstances are also considered. Id. This court looks to past cases for guidance as to the discipline to impose, but the discipline is tailored to the specific facts of each case. Id.
A. Nature of the Misconduct
An attorney‘s felony conviction for theft, fraud, or embezzlement has long been treated as serious professional misconduct that often warrants disbarment, “particularly where the criminal conduct occurs ... within the practice of law.” In re Andrade, 736 N.W.2d 603, 605 (Minn. 2007); see also In re Perez, 688 N.W.2d 562, 567-69 (Minn.2004); In re Ossanna, 288 Minn. 541, 180 N.W.2d 260 (1970). However, “felony convictions do not result in automatic disbarment.” In re Hedlund, 293 N.W.2d 63, 67 (Minn.1980) (citing In re Scholle, 274 N.W.2d 112 (Minn.1978)). We will “look at the circumstances surrounding the criminal act to see whether some discipline less than disbarment would be appropriate.” Id. at 66.
Brost‘s theft of $43,000 through the collection of A.F.‘s annuity payments was serious misconduct, and it occurred within the practice of law.8 Her misconduct directly stemmed from her relationship with her former client, A.F. The presumptive discipline for misappropriation of client funds is disbarment, unless there are substantial mitigating circumstances. In re Jones, 834 N.W.2d 671, 681 (Minn.2013). We have disbarred attorneys for misappropriating far less than $40,000 of client funds. See, e.g., In re Hummel, 839 N.W.2d 78, 81-82 (Minn.2013) (disbarring attorney who misappropriated more than $10,000 in client funds, failed to maintain required trust account records, made false statements to the Director, and failed to cooperate); In re Lundeen, 811 N.W.2d 602, 608-09 (Minn.2012) (disbarring attorney who misappropriated more than $7,800 of client funds). Brost has not offered any mitigating factors.
Brost also failed to cooperate with the disciplinary investigation, in violation of
B. Cumulative Weight of the Violations
Having identified Brost‘s misconduct, we next consider the cumulative weight of Brost‘s professional misconduct. The severity and cumulative weight of multiple disciplinary rule violations “may compel severe discipline even when a single act standing alone would not have warranted such discipline.” In re Oberhauser, 679 N.W.2d 153, 160 (Minn.2004). Misconduct that includes multiple rule violations and persists over time is more serious than “single isolated incident[s]” or “brief lapse[s] in judgment.” In re Albrecht, 845 N.W.2d 184, 192 (Minn.2014) (alteration in original); see also In re Rooney, 709 N.W.2d 263, 266, 269 (Minn.2006) (concluding that 17 instances of misappropriation totaling $27,700 over a year did not constitute “a single, isolated incident or a brief lapse in judgment“).
In this case, Brost engaged in multiple acts of misconduct that individually warrant discipline and add cumulative weight to the misconduct. See In re Houge, 764 N.W.2d 328, 338 (Minn.2009) (determining that a pattern of misconduct and baseless attempts to delay disciplinary proceedings add weight to the cumulative impact of an attorney‘s violations). Brost‘s theft shows serious misconduct that was repeated over time as she collected A.F.‘s annuity payments over the course of an entire year. In addition to violating
Failing to cooperate with the investigation “warrants indefinite suspension on its own” as well as “increases the sanction imposed when accompanied by other misconduct.” In re Ulanowski, 800 N.W.2d 785, 800 (Minn.2011); see also In re Nelson, 733 N.W.2d at 464 (stating that non-cooperation with the disciplinary process increases the severity of the disciplinary sanction). Brost‘s multiple acts of misconduct committed over a period of time weigh in favor of more serious discipline.
C. Harm to the Public and the Legal Profession
We also consider the harm the attorney‘s misconduct caused to the public and to the legal profession when determining the proper discipline to impose. This includes consideration of “the number of clients harmed and the extent of the clients’ injuries.” In re Coleman, 793 N.W.2d 296, 308 (Minn.2011) (citation omitted) (internal quotation marks omitted). Although Brost stole from only one client, she defrauded the estate of her client and her client‘s rightful heirs out of $43,000. Brost‘s felony convictions for stealing from her client caused harm to the public‘s regard for the legal profession and undermined the public‘s confidence in the ability of attorneys to abide by the rule of law. See In re Pitera, 827 N.W.2d 207, 212 (Minn.2013); In re Oberhauser, 679 N.W.2d at 159–60. Furthermore, the misuse of funds is a “breach of trust that reflects poorly on the entire legal profession and erodes the public‘s confidence in lawyers.” In re Harrigan, 841 N.W.2d 624, 630 (Minn.2014) (quoting In re Rooney, 709 N.W.2d at 270).
D. Aggravating and Mitigating Circumstances
Felony convictions reflect serious misconduct. Attorneys who have not been disbarred for convictions for theft, fraud, or embezzlement have presented substantial mitigating factors. See, e.g., In re Daffer, 344 N.W.2d 382, 385-86 (Minn.1984); In re Olkon, 324 N.W.2d 192, 196 (Minn.1982); In re Scallen, 269 N.W.2d 834, 841-42 (Minn.1978). Brost has failed to present any mitigating factors.
In addition to the absence of mitigating factors, there are aggravating factors present. For example, a selfish or dishonest motive, such as permanently misappropriating client funds for personal use, may aggravate the misconduct. See In re Garcia, 792 N.W.2d 434, 443-44 (Minn.2010) (finding that an attorney demonstrated selfish or dishonest motives when he misappropriated funds to pay country club fees). Here, Brost clearly demonstrated a selfish and dishonest motive because she had no intention of returning any of the stolen funds and meant to permanently deprive A.F.‘s estate and heirs of the proceeds from the annuities.
Brost‘s disciplinary history is also an aggravating factor. See In re Rebeau, 787 N.W.2d at 176. Brost is currently indefinitely suspended for similar serious misconduct. Brost was suspended for violating
III.
Based on the substantial amount of money stolen, the fact that Brost stole the identity of a client, the failure to cooperate with the disciplinary investigation, and aggravating factors including Brost‘s selfish and dishonest motive and Brost‘s disciplinary history, we conclude that disbarment is the appropriate discipline in this case. We therefore order that:
- Respondent Linda A. Brost is disbarred in the State of Minnesota, effective upon the date of the filing of this opinion;
- Brost shall comply with
Rule 26, RLPR (requiring notice of disbarment to clients, opposing counsel, and tribunals); and - Brost shall pay to the Director the sum of $900 in costs and disbursements pursuant to
Rule 24, RLPR .
Disbarred.