In re Petition for DISCIPLINARY ACTION AGAINST Mpatanishi Syanaloli TAYARI-GARRETT, a Minnesota Attorney, Registration No. 342075.
No. A14-0995.
Supreme Court of Minnesota.
July 1, 2015.
Rehearing Denied Aug. 5, 2015.
866 N.W.2d 513
Stephen V. Grigsby, Minneapolis, MN, for respondent attorney.
OPINION
PER CURIAM.
The Director of the Office of Lawyers Professional Responsibility (the Director) filed a petition for disciplinary action against respondent, Mpatanishi Syanaloli Tayari-Garrett, alleging that Tayari-Garrett violated the rules of professional conduct by, among other things, being convicted of willfully disobeying a court mandate and by making multiple false or misleading statements to a court. Following an evi-
Tayari-Garrett was admitted to practice law in Minnesota on November 22, 2004, and currently practices in Texas and Minnesota. Her misconduct occurred during her representation of E.M.M. in a criminal matter. The referee made the following findings and conclusions.
At a January 21, 2011, pretrial conference, the district court established a May 2, 2011, trial date. On April 14, Tayari-Garrett filed a motion to continue the trial date, citing, among other reasons, an undefined personal commitment. Before the hearing on the motion, Tayari-Garrett purchased a nonrefundable plane ticket for travel to Paris from May 4 to May 9 to attend her brother‘s wedding. The court ultimately denied the motion.
Tayari-Garrett failed to appear for the first day of trial, May 2. A lawyer who appeared on her behalf informed the court that Tayari-Garrett called him on May 1, told him that she was in the hospital in Dallas, and asked him to appear and request a continuance. The court continued the proceedings to the following day, May 3, and ordered Tayari-Garrett to provide documentation of her hospitalization; her prognosis, including her ability to travel and conduct trial; and the plans she had made for traveling from Dallas to Minneapolis for trial on May 2. At a hearing the next day, Tayari-Garrett failed to appear and did not produce the ordered documentation. The court again continued the proceedings, to May 5.
Tayari-Garrett later established that she had been admitted to the hospital around 9 a.m. on May 2 and released at approximately 3 p.m. on May 3. Shortly after her release from the hospital, Tayari-Garrett e-mailed the trial judge‘s law clerk, stating, “Please inform Judge Howard that I have just been released from a hospital and will definitely not be able to attend a scheduling conference this Thursday [May 5]. Too soon.” The next morning, May 4, Tayari-Garrett flew from Dallas to Paris via a connecting flight at the Minneapolis-St. Paul International Airport. After the State brought a motion for an order to show cause, the court scheduled a hearing on May 5 and allowed Tayari-Garrett to appear by telephone.
Tayari-Garrett appeared by telephone from Paris for the May 5 hearing. She discussed her medical situation and prognosis, but made no mention of having traveled to France. During the hearing, the court scheduled a contempt hearing for May 9. In response, Tayari-Garrett stated, “I have a follow-up appointment next week so I cannot, and I believe the Court is aware of that, that I cannot be there on Monday [May 9].” Tayari-Garrett did not appear for the May 9 hearing either in person or by telephone. In fact, at the time of the May 9 hearing, Tayari-Garrett was en route from Paris to Dallas. By order dated May 25, the court found that probable cause existed to find Tayari-Garrett in constructive contempt of court. The court then referred the matter to prosecutors for further handling. Tayari-Garrett was criminally charged with and eventually convicted of misdemeanor contempt of court,
Based on these facts, the Director filed a petition against Tayari-Garrett alleging that she violated the rules of professional conduct by, among other things, willfully disobeying a court mandate, making false or misleading statements to a tribunal, and being convicted of willfully disobeying a court mandate. Following an evidentiary hearing on the petition, the referee found that Tayari-Garrett was criminally convicted for “willful disobedience to [a] court mandate” and that Tayari-Garrett made false or misleading statements in her May 3 e-mail to the court and at the May 5 hearing. Based on these findings, the referee concluded that Tayari-Garrett violated
I.
Tayari-Garrett challenges the referee‘s conclusions that she violated
The Director bears the burden of proving professional misconduct by clear and convincing evidence. In re Voss, 830 N.W.2d 867, 874 (Minn.2013). If either party timely orders a transcript of the hearing, as Tayari-Garrett did here, the referee‘s finding and conclusions are not conclusive. Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR). Nonetheless, when a party orders a transcript, we give “great deference” to the referee‘s findings and will uphold those findings if they have evidentiary support in the record and are not clearly erroneous. Voss, 830 N.W.2d at 874. We give particular deference to the referee‘s findings when those findings “rest on disputed testimony or in part on credibility, demeanor, and sincerity.” In re Lyons, 780 N.W.2d 629, 635 (Minn.2010). A referee‘s findings are clearly erroneous only when they leave us “with the definite and firm conviction that a mistake has been made.” Id. (citation omitted) (internal quotation marks omitted).
Given the evidentiary support in the record for the referee‘s findings and our deferential standard of review, Tayari-Garrett‘s challenges to the referee‘s findings and conclusions fail. First, the referee found, and the record confirms, that Tayari-Garrett was convicted, after a jury trial, of misdemeanor contempt of court, in violation of
Tayari-Garrett‘s argument is without merit. First, Tayari-Garrett cannot relitigate her conviction in this disciplinary proceeding. See Rule 19(a), RLPR; In re Dvorak, 554 N.W.2d 399, 402 (Minn.1996) (“[A]ttorneys may not avoid the consequences of criminal conviction by attempting to relitigate the issue of guilt or innocence in subsequent disciplinary proceedings.“). Thus, to the extent that Tayari-Garrett seeks to challenge the specificity of the factual basis for her contempt conviction, or to challenge the court of appeals’ affirmance of her conviction based on evidence presented at the disciplinary hearing, she is precluded from doing so.
Second, Tayari-Garrett‘s criminal contempt conviction for willfully disobeying a court mandate from April 16, 2011, to May 9, 2011, is a sufficiently specific basis upon which the referee could find that Tayari-Garrett committed professional misconduct.
The act of willfully disobeying a court mandate also constitutes a violation of
Tayari-Garrett‘s conviction for criminal contempt does not, however, constitute conclusive evidence that she engaged in conduct that violates
First, the referee found that Tayari-Garrett made a false or misleading statement when she stated in her May 3 e-mail to the trial judge‘s law clerk: “Please inform Judge Howard that I have just been released from a hospital and will definitely not be able to attend a scheduling conference this Thursday [May 5]. Too soon.” The referee found this statement to be false or misleading because Tayari-Garrett “stated and/or implied she would be unable to appear for medical reasons” and “neither stated nor implied that she intended to be in Paris, France, on that date.” Second, the referee found that Tayari-Garrett made a false or misleading statement at the May 5 hearing when she told the court, “I have a follow-up appointment next week so I cannot, and I believe the Court is aware of that, that I cannot be there on Monday [May 9].” The referee found this statement to be false or misleading because Tayari-Garrett “was scheduled on [May 9] to be traveling from Paris to the United States.” Third, the referee found, more broadly, that Tayari-Garrett‘s statements during the May 5 hearing were false or misleading because “[a]t no time during the hearing on May 5 did [she] mention that she had flown to France“; “[i]nstead, [Tayari-Garrett] discussed her medical situation and prognosis.”
Our review of the record shows that all three findings have evidentiary support. Moreover, to the extent that Tayari-Garrett‘s testimony at the disciplinary hearing provided explanations for her statements that conflict with the referee‘s findings, the referee was free to—and did—find Tayari-Garrett not credible. See Lyons, 780 N.W.2d at 635 (stating we especially defer to the referee‘s findings when they “rest on disputed testimony or in part on credibility, demeanor, and sincerity“). Thus, the referee did not clearly err in finding that Tayari-Garrett made multiple false or misleading statements and concluding that she engaged in conduct “involving dishonesty, fraud, deceit, or misrepresentation,” in violation of
II.
The Director recommends that we adopt the referee‘s recommended sanction and indefinitely suspend Tayari-Garrett from the practice of law for a minimum of
“[W]e place great weight on the referee‘s recommended discipline,” but “we retain ultimate responsibility for determining the appropriate sanction.” In re Rebeau, 787 N.W.2d 168, 173 (Minn.2010). The purposes of attorney discipline are the protection of the public and the judicial system, and the deterrence of future misconduct by the disciplined attorney and other attorneys. In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004). We consider four factors in determining the appropriate disciplinary sanctions: “1) the nature of the misconduct, 2) the cumulative weight of the violations of the rules of professional conduct, 3) the harm to the public, and 4) the harm to the legal profession.” Id. (citation omitted) (internal quotation marks omitted). We also consider mitigating or aggravating factors. See In re Mayne, 783 N.W.2d 153, 162 (Minn.2010).
We first consider the nature of Tayari-Garrett‘s misconduct. Her conviction for “willful disobedience to [a] court mandate” itself constitutes serious misconduct because her criminal conduct was directly related to the practice of law. See In re Brost, 850 N.W.2d 699, 703 (Minn.2014) (explaining that an attorney‘s criminal acts are more serious when the criminal conduct occurs within the practice of law). Moreover, this case involves Tayari-Garrett‘s false or misleading statements to the district court, which also warrant severe discipline. In re Lochow, 469 N.W.2d 91, 99 (Minn.1991) (“[W]hen a lawyer demonstrates a lack of that truthfulness and candor that the courts have a right to expect of their officers to the end that the system of justice will not be undermined, courts do not hesitate to impose severe discipline.” (citation omitted) (internal quotation marks omitted)).
We next consider the cumulative weight of Tayari-Garrett‘s misconduct. “[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.” In re Oberhauser, 679 N.W.2d 153, 160 (Minn.2004). Tayari-Garrett‘s misconduct involves multiple disciplinary rule violations,
We also assess the harm to the public and the legal profession, “requiring 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) (alteration in original) (citation omitted) (internal quotation marks omitted). Here, Tayari-Garrett‘s misconduct harmed her client. Specifically, Tayari-Garrett delayed her client‘s trial and ultimately forced her client to retain other counsel. Further, her misconduct wasted the time of the witnesses and other people involved in the trial. More broadly, an attorney‘s “fail[ure] to follow court rules harms public confidence in the legal system,” In re Ulanowski, 800 N.W.2d 785, 801 (Minn.2011), as do a lawyer‘s false and misleading statements to a court.
Additionally, we take into account the presence of aggravating and mitigating factors. Here, the referee determined that there are several aggravating factors and no mitigating factors.3 The referee found that Tayari-Garrett‘s misconduct was aggravated by her selfish motive of facilitating a personal trip; that she exhibited no remorse for her misconduct; and that her refusal to acknowledge the wrongful nature of her conduct risks future similar misconduct. Because there is support in the record for these findings, the referee did not clearly err in concluding that these aggravating factors were present.4 Tayari-Garrett did not ask the referee to find any mitigating factors in her answer to the petition or in her proposed findings and brief to the referee. As a result, her claim that the referee clearly erred by declining to find any mitigating factors for her misconduct fails. See In re Tigue, 843 N.W.2d 583, 588 (Minn.2014) (“[A] referee‘s failure to make a factual finding regarding remorse is clear error only when the respondent‘s remorse or lack thereof is raised as an issue in the proceedings before the referee.“).
Finally, we consider similar cases to ensure that the discipline imposed is consistent with previous sanctions for similar conduct, Nathanson, 812 N.W.2d at 80, although we impose discipline based on the facts and circumstances of each case, In re Redburn, 746 N.W.2d 330, 334 (Minn.2008). We have held that willful disobedience of a court order merits substantial
In the context of disobedience to a court mandate that is, as here, limited to a single matter, suspension is the more appropriate sanction. In In re Michael, we imposed a 30-day suspension for an attorney who violated a tribal court order, made a false statement to a court during a contempt hearing, made a frivolous argument, and improperly accused a judge of bias. 836 N.W.2d 753, 759-60, 768 (Minn.2013). The attorney‘s conduct was aggravated by her lack of remorse and failure to accept responsibility for her conduct, but was mitigated by her lack of experience. Id. at 767. Although Tayari-Garrett‘s misconduct is similar in type to that of the attorney in Michael, Tayari-Garrett‘s conduct merits a greater sanction because Tayari-Garrett, unlike Michael, was criminally convicted for willfully disobeying a court mandate and made multiple false statements to a tribunal.
A greater suspension than that imposed in Michael is further supported by sanctions we have imposed for attorneys whose primary misconduct was misrepresentations to a tribunal. See, e.g., In re Grigsby, 815 N.W.2d 836, 845-47 (Minn.2012) (imposing a 60-day suspension for an attorney who made a false statement to the court of appeals and practiced law while suspended); In re Winter, 770 N.W.2d 463, 470 (Minn.2009) (imposing a 120-day suspension for an attorney with a prior disciplinary history who made false statements to a tribunal and to another attorney); In re Van Liew, 712 N.W.2d 758, 758 (Minn.2006) (imposing a 90-day suspension for an attorney who made false statements to a tribunal and failed to file opposition to a motion on behalf of a client). The imposition of suspensions for up to 120 days for attorneys who primarily were sanctioned for misrepresentations to a tribunal suggests that the recommended discipline is not disproportionate to Tayari-Garrett‘s misconduct, particularly when we take into account Tayari-Garrett‘s criminal conviction of willfully disobeying a court mandate and the presence of multiple aggravating factors.
Therefore, consistent with our previous decisions and the specific circumstances of this case, we conclude that an indefinite suspension with no right to petition for reinstatement for a minimum of 120 days is the appropriate discipline.
Accordingly, we order that:
1. Respondent Mpatanishi Syanaloli Tayari-Garrett is indefinitely suspended from the practice of law, effective 14 days from the date of the filing of this opinion, and she shall be ineligible to petition for
2. Respondent shall comply with the requirements of Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals).
3. If respondent seeks reinstatement, she must comply with the requirements of Rule 18(a)-(d), RLPR. Reinstatement is conditioned on successful completion of the professional responsibility portion of the state bar examination and satisfaction of continuing legal education requirements, pursuant to Rule 18(e), RLPR.
4. Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.