Minnesota Imposes Reciprocal Disbarment
An attorney who was sanctioned in Florida and relocated to Minnesota without disclosing the discipline has been reciprocally disbarred by the Minnesota Supreme Court
Following his suspension in Florida, Marcellus returned to Minnesota. He complied with Minnesota CLE and registration fee requirements and, in October 2020, he was transferred to active status as a licensed attorney in Minnesota. See Rule 16, Rules for Registration of Attorneys (RRA). He was hired as an Assistant Public Defender in Ramsey County in April 2021. In January 2022, he was hired by the Hennepin County Public Defender’s Office.
In the same month that he was hired in Ramsey County, Florida instituted another disciplinary proceeding against Marcellus. The misconduct in Marcellus II concerned nonpayment of child support. On July 8, 2019, a Florida family court held Marcellus in contempt for his willful failure to comply with that court’s orders requiring payment of child support. Under Rule 4-8.4(h), RRFB, an attorney’s willful refusal to timely pay a child support obligation, as determined by a court of competent jurisdiction, constitutes misconduct. As noted above in the discussion of Marcellus I, Marcellus had been found to have failed to pay child support obligations as early as 2013. The report in those proceedings also found that Marcellus had remained deliberately underemployed. This does not seem to have changed after his suspension, as the family court that held him in contempt stated that Marcellus had only applied to be a substitute teacher. Marcellus’s arrearages totaled $11,020.18 in August 2018, around the time of his suspension in Florida. By October 2020, arrearages had grown to over $30,000.
Florida imposed disbarment, which Respondent contended should not be ordered here
Marcellus claims that, since April 2021, when the hearing in Marcellus II occurred, he has consistently paid child support. He included in the record before us receipts of child support payment as well as affidavits from colleagues and family members attesting to his change in character and compliance since returning to Minnesota.
All of this is laudable. But it does not render imposition of reciprocal discipline unjust. First, failure to pay child support is not the sole basis for Marcellus’s Florida disbarment; that decision was also based on his conduct in his divorce proceedings addressed in Marcellus I. The information Marcellus provided does not demonstrate that the causes of that misconduct have been fully resolved. Moreover, the record is not clear as to whether Marcellus has become fully compliant with his child support obligations or has established a plan to do so… Further, much of the changed conduct Marcellus points to occurred after Florida initiated the second discipline proceeding—a proceeding Marcellus failed to report to the Director. We are reluctant to allow a lawyer to benefit from the passage of time that is the result of the lawyer’s failure to report the initiation of disciplinary proceedings and imposition of discipline in another jurisdiction to the Director.
No lesser sanction
Based on our review of our prior cases, we conclude that disbarment is not substantially different from the discipline we would impose if the disciplinary proceeding initially occurred in Minnesota.
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The varied ways and fact-specific circumstances in which attorneys commit misconduct means that no case with perfectly analogous facts exists to compare to Marcellus’s misconduct and aggravating behavior. Based on our review of Marcellus’s misconduct and our past cases, we cannot say that disbarment is unjust or substantially different from discipline warranted in Minnesota.
We caution that this opinion should not stand as precedent that we would necessarily disbar a lawyer who engaged in the same misconduct as Marcellus if we faced the question independently and directly. Such a decision is left for other cases. We also observe that we are encouraged that Marcellus appears to be making positive changes in rebuilding his
relationship with his family and making progress on paying his child support arrearages. Should Marcellus choose to seek reinstatement to practice in Minnesota under Rule 18(e)(1) and (4), RLPR (setting forth the conditions under which a disbarred lawyer may be reinstated to the practice of law), his alleged recent payment of child support and
reconciliation with his family prior to the issuance of this opinion should be favorably considered.
(Mike Frisch)