Nine Months
A discipline decision from the Minnesota Supreme Court has an interesting evaluation of a host of potentially mitigating factors
Given the mitigating factors present, the appropriate discipline for respondent’s conviction of felony theft by swindle is an indefinite suspension with no right to petition for reinstatement for 9 months.
The issues related to withheld employee contributions
On July 31, 2014, Bonner was charged in Hennepin County District Court with felony theft by swindle, Minn. Stat. § 609.52, subd. 2(a)(4) (2016), for his failure to deposit $6,068.08 in withheld employee contributions into the IRA accounts of two firm attorneys from August 23, 2011, to January 31, 2012. The evidence at trial proved that Bonner kept withheld employee contributions in the firm’s business account, which was used to pay the firm’s business expenses and some of Bonner’s personal expenses.
Two attorneys also testified at trial. The first testified that he was aware that his employee contributions were not being deposited and that Bonner failed to make a catch-up payment in 2011, despite promising to do so. The other attorney provided inconsistent testimony regarding her knowledge about whether the employee contributions were being deposited into her IRA account. Bonner was convicted of felony theft by swindle on January 2, 2015. As part of his sentence, Bonner was required to make full restitution and pay a fine of $6,000. Bonner was also placed on probation for 3 years, which was originally set to end in March 2018. The district court discharged him from probation early, effective January 27, 2017.
The court affirmed the finding that he did not have dishonest intent
in the end, the Director has the burden of proving dishonesty by clear and convincing evidence. We conclude that the referee’s finding here was based on a credibility determination that Bonner did not act dishonestly with respect to the conduct alleged in Count II.
But
Here, Bonner’s misappropriation was not a “single isolated incident” or a “brief lapse in judgment.” Rather, Bonner failed to deposit withheld employee contributions to an IRA account in an amount totaling $6,068 over the course of 5 months. The cumulative weight of this repeated misconduct was therefore significant.
And the court rejected mitigating factors found by the referee
this case also involves several contested mitigating factors, the first of which is the referee’s finding of “full restitution.” The Director contends that Bonner’s restitution was compelled and that therefore the referee clearly erred by crediting Bonner with “full restitution” as a mitigating factor. We agree with the Director…
Because cooperation with the Director and compliance with the law are not mitigating factors, the referee clearly erred by finding otherwise…
When considering the harm to the public and the legal profession, we have already noted that Bonner’s misconduct did not harm any clients and have discussed how his misconduct harmed the legal profession. We agree with the Director that considering a lack of harm to clients, adverse parties, or tribunals should not be counted as a mitigating factor because these considerations overlap with our consideration of the harm that Bonner’s misconduct caused to the public and the legal profession. Thus, we conclude that the referee clearly erred by considering lack of harm to clients, adverse parties, and tribunals as mitigating factors.
As to the crime
The referee’s finding that Bonner lacked a selfish or dishonest motive is inconsistent with the theft by swindle conviction underlying Count I: a person cannot simultaneously have a specific intent to defraud another and at the same time lack a selfish or dishonest motive. Accordingly, because the theft by swindle conviction is conclusive evidence with respect to the conduct underlying the conviction, the referee clearly erred by finding that Bonner did not act with a selfish or dishonest motive…
The referee found as a mitigating factor that Bonner’s misconduct was related to his law firm’s extreme financial difficulties. The Director argues that law firm financial distress is not an appropriate mitigating factor. We agree that the referee clearly erred by concluding that the law firm’s financial difficulties were a mitigating factor.
Noting that disbarment is the normative sanction for felony theft
After carefully reviewing our prior cases, and recognizing that Bonner’s circumstances do not neatly line up with the cases cited by the parties, we conclude that neither the referee nor the parties propose the appropriate discipline. See Rooney, 709 N.W.2d at 269 (“But none of these cases is precisely on point. As we have often noted, attorney discipline cases are decided on a case-by-case basis, making the specific factual circumstances of each case particularly important.”). We determine the appropriate discipline on a case-by-case basis, guided by the principle that the purpose of attorney discipline is to protect the public and the judicial system and to deter future misconduct, not to punish the attorney. Brost, 850 N.W.2d at 703.
In light of the nature of the misconduct established by his felony conviction of theft by swindle, the mitigating factors present, and the overarching goal of protecting the public, we hold that the appropriate sanction for Bonner’s misconduct is an indefinite suspension with no right to petition for reinstatement for 9 months.
(Mike Frisch)