Suspended Again
An attorney with a “lengthy disciplinary history” who was conditionally reinstated in 2015 has been suspended for an indefinite period of at least six months by the Minnesota Supreme Court
On August 4, 2020, the Director filed a petition for disciplinary action against Swanson, alleging that Swanson committed professional misconduct in two client matters. The first involved a land dispute in which Swanson’s client claimed that construction on his neighbors’ property caused flooding. The second matter involved domestic assault charges against a man and a guardianship matter involving the man’s wife, who was the alleged victim in the domestic assault case.
The land dispute predated his suspension
On March 15, 2016, Swanson filed a complaint based on information he received from B.J. Swanson performed no research to verify the information, and the first complaint named the incorrect party as the defendant and contained incorrect legal descriptions of the land at issue.
Swanson was suspended from the practice of law on March 31, 2016, for failure to pass the MPRE. Swanson timely notified B.J. that he had been suspended and stated that he would arrange for another attorney to handle the matter until he was reinstated. No other attorney ever worked on the matter, and Swanson failed to notify opposing counsel of his suspension. See Swanson II, 877 N.W.2d at 191 (requiring notice to opposing counsel). Swanson continued to work on the B.J. matter while suspended. On April 21, Swanson’s employee served the summons and complaint on the defendants, with Swanson notarizing the affidavit of service. Swanson met with B.J. on a regular basis to discuss the litigation and continued to meet with other prospective clients in his office.
He mishandled the matter
Swanson withdrew from the case, but later told B.J. that he would file an appeal challenging the court’s order excluding expert witnesses. Swanson never filed the appeal. Because he was unable to present expert testimony, B.J. was forced to dismiss his claims with prejudice and was left without recourse. Swanson offered B.J. $300,000 to settle any potential malpractice claims arising from the matter. Swanson conditioned this offer on B.J. agreeing not to file an ethics complaint. B.J. accepted the settlement but later filed an ethics complaint with the Director after Swanson ceased making payments on the settlement.
He agreed to represent a ward despite his retention in a domestic abuse matter in which she was the victim
On October 14, 2017, K.F.—W.F. and L.F.’s daughter—asked Swanson to represent L.F. in the guardianship matter. Although he knew at the time that L.F. was the alleged victim in W.F.’s case, and that he was representing W.F., Swanson agreed to represent L.F. Swanson did not investigate the underlying facts, so he was not aware that L.F. already had a court-appointed guardian and attorney. Swanson accepted a $3,000 retainer check that drew directly from the joint account of W.F. and L.F. Neither L.F. nor her guardian were aware of or consented to Swanson’s representation or to the payment. Although no retainer agreement existed, Swanson cashed the retainer check and deposited the full amount directly into his business account. Swanson did not provide a retainer agreement until October 27, 2017. This agreement described the retainer as nonrefundable, failed to state that Swanson would return the money if he did not complete the representation, failed to identify the client, and was signed only by Swanson.
Sanction
In light of these facts, we conclude that the appropriate discipline for Swanson is an indefinite suspension, with no right to petition for reinstatement for 6 months.
Justice Thissen concurred and dissented on mitigating and aggravating factor
An aggravating factor, by definition, is a factor that renders the lawyer’s conduct in the particular case more egregious than a typical case of lawyer misconduct. Here, the referee stated, in a single sentence: “Respondent has significant experience in the practice of law.” More than that should be required. The referee should provide at least some explanation about why the lawyer’s experience renders the lawyer’s conduct in that particular case more egregious than the typical case.
And
I also reiterate my concern about imposing greater discipline under the guise of lack of remorse simply because a lawyer attempts to defend himself against charges of professional misconduct and disputes allegations of misconduct by attempting to explain his actions or contesting the legal basis for the claims. See id. at 596; Sea, 932 N.W.2d at 45.
Because consideration of these two aggravating factors does not impact what the proper discipline should be, I concur in the court’s decision.
(Mike Frisch)