A Sanction Less Than Disbarment Draws A Dissent

The Minnesota Supreme Court imposed a suspension rather than disbarment

We conclude that the referee’s findings that Tigue negligently and intentionally misappropriated client funds are not clearly erroneous. We further conclude that, based on the specific facts of this case, the appropriate discipline for Tigue’s misconduct is an indefinite suspension with the right to petition for reinstatement after 2 years and a permanent prohibition on being an authorized signatory on a client trust account.

The attorney had a record of prior discipline and was reinstated on probation

After his reinstatement, Tigue sent his trust-account books and records to the Director on a monthly basis. In September 2015, the Director instructed Tigue to begin quarterly reporting, and asked him to send his records for October, November, and December 2015 in January 2016. When Tigue provided these trust-account books and records, the Director noted that several shortages had occurred in client trust accounts during that time. The Director issued a notice of investigation and audited Tigue’s trust account, which led to this petition for disciplinary action.

The investigation revealed that he had shortfalls in the account.

Sanction

Although we have often disbarred attorneys for misappropriating funds because of the critical need for public trust in the legal profession, we do not believe that disbarment is the appropriate discipline here. Balancing the nature and extent of Tigue’s misconduct— which involved a single incident of intentional misappropriation involving a relatively small amount of money, eventual repayment to that client and lack of harm to any other client—and the aggravating factors and the mitigating factors present, we hold that an indefinite suspension with the right to petition for reinstatement after 2 years is the appropriate discipline. We are confident that this lengthy indefinite suspension will adequately protect the public, particularly when combined with the permanent prohibition on Tigue serving as an authorized signer on a client trust account should he be reinstated in the future.

Justice Stras dissented on sanction

We have the final say over the discipline imposed, and it is our responsibility to exercise our authority to enforce what is explicit in our case law: we disbar attorneys who steal money from a client absent the presence of substantial mitigating factors. Accordingly, I respectfully dissent from the court’s decision to impose a sanction other than disbarment…

All of this brings us back to the critical question here: will a 2-year suspension adequately protect the public? In Brooks, it was possible to answer that question “yes.” But here it is not, in light of Tigue’s uninterrupted practice of law and his disturbing lack of insight into the nature and seriousness of his misconduct. I also cannot help but wonder whether this case may signal a retreat from our longstanding presumption that intentional misappropriation warrants disbarment. After all, not only are there no substantial mitigating factors, but there were also numerous aggravating factors found by the referee. Under these circumstances, I respectfully dissent from the court’s decision to suspend Tigue rather than disbar him.

Justice McKeig agreed. (Mike Frisch)