Remorse Shown
The Minnesota Supreme Court has suspended an attorney for a minimum of 120 days for, among other things, unauthorized practice during a period of disciplinary suspension
Our order suspended Powell for 45 days effective July 19, 2017. Thereafter, she engaged in the unauthorized practice of law three times. First, Powell engaged in unauthorized practice when she appeared on behalf of a client at the hearing on August 1. Second, Powell engaged in unauthorized practice when she sent an email discussing her client’s position on August 7. Third, Powell engaged in unauthorized practice in the J.H. matter by working for a week after she was suspended. The referee’s finding that Powell engaged in the unauthorized practice of law was not clearly erroneous.
Powell’s argument that she did not “knowingly” violate our order is unavailing. There is no “knowing” element in Minn. R. Prof. Conduct 5.5(a), and Powell’s purported failure to read her own discipline order is no excuse.
The court affirmed findings of false statements in dealing with the suspension.
The court rejected one aggravating factor
We cannot agree, however, with the referee’s finding and conclusion that lack of remorse was an aggravating factor. The referee opined that Powell refused to acknowledge her misconduct, exhibited no remorse for it, and failed to offer any evidence or assurance that she will not engage in similar future misconduct.
In our view, Powell did show remorse at her discipline hearing. She acknowledged that “there were things that I could have done differently and that I should have done differently.” She also said she learned from her mistakes and made changes in her practice. At one point in the hearing, Powell said she “absolutely” saw that “things should have been handled differently.” She “could have told the judge that I was suspended” at the August 1, 2017, hearing. She also said that she “could have . . . should have [said she was suspended]” in the August 7 email. She also addressed her fee agreements and trust fund account and said that she had made corrections to her fee agreements and reformed how she handled client funds and bookkeeping. She also said that she now obtains a countersignature when her clients pay in cash. The aggravating factor of no remorse was not proven by clear and convincing evidence.
Sanction
True, Powell engaged in misconduct besides false statements. But taking everything into account, we are convinced that the public will be protected with a suspension for a minimum of 120 days, followed by a reinstatement proceeding at which Powell will be required to demonstrate moral change.
(Mike Frisch)