Election Challenge Litigation Draws Sanction

The Minnesota Supreme Court has indefinitely suspended an attorney

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action alleging that respondent Susan S. Smith committed professional misconduct warranting public discipline—failing to conduct adequate pre-suit inquiry into her clients’ wishes to be represented by respondent or to be in a lawsuit, failing to consult her clients regarding their individual objectives and how those objectives could be pursued, failing to communicate with her clients regarding the risks and advantages relating to being a party in a lawsuit, failing to keep her clients reasonably informed as to the progress of the litigation, failing to ensure that her clients wished to be represented by respondent and to be parties in a lawsuit, failure to pay a law-related debt of $25,000 in court-ordered sanctions imposed against her, and noncooperation with the Director’s investigation. See Minn. R. Prof. Conduct 1.1, 1.2(a), 1.4(a)(3), 1.4(b), 8.1(b), 8.4(c), 8.4(d); Rule 25(a), Rules on Lawyers Professional Responsibility (RLPR)

After respondent filed an answer, we referred the matter to a referee, who conducted a hearing and subsequently submitted proposed findings of fact, conclusions of law, and a recommendation for discipline. The referee concluded that respondent committed the alleged rule violations and made findings about aggravating and mitigating factors. The referee recommended a minimum three-month suspension, with respondent permitted to be reinstated by affidavit, but with reinstatement conditioned upon payment of previous court-ordered monetary sanctions imposed against respondent or entry into a satisfactory payment plan, and with one year of probation following any reinstatement.

The underlying litigation

Respondent’s misconduct centers on her representation of the Minnesota Election Integrity Team (MNEIT), a group founded after the 2020 election, that sought to challenge the results of the 2020 Minnesota elections. MNEIT distributed an affidavit, drafted by respondent, to an email list, soliciting recipients to “join[] with other voters across MN to contest Minnesota election results.” Several individuals returned the affidavits. The day after the email was sent, in early December 2020, respondent filed five election contests in Ramsey County District Court. These five lawsuits challenged election results for five different offices and were brought by respondent in the names of 14 individual plaintiffs whom respondent had selected from the individuals who had returned the affidavits, without obtaining their consent to do so. Four of the five election matters were assigned to a judge of the Ramsey County District Court, and the fifth matter (challenging a United States Senate election) was assigned to a three-judge panel. Eventually all the matters were dismissed, and the defendants moved for taxation of costs and disbursements, totaling approximately $18,000 across the five matters. The motions were granted, and monetary judgments were entered against the 14 plaintiffs.

Filing an unsuccessful election challenge is, of course, not attorney misconduct— but respondent’s treatment of the plaintiffs in these lawsuits was. She neither sought their permission prior to making them plaintiffs in a lawsuit nor informed them that she had done so. Indeed, at no time either prior to or during the litigation did respondent have any conversations or communications, of any kind, with any of the 14 plaintiffs, none of whom even knew respondent’s name. Only in late February 2021, after respondent was contacted by one of the 14 plaintiffs who had fortuitously discovered through other means that she had been made a party in a lawsuit and that a monetary judgment had been entered against her, did respondent communicate with any of the 14 plaintiffs. Later, that plaintiff reported to both local law enforcement and to the district court judge that her name had been improperly used in the election contest lawsuits. The judge conducted a hearing and concluded that respondent perpetrated a fraud on the court and the named plaintiffs by filing the lawsuits without confirming that the plaintiffs were knowingly seeking relief from the courts. The district court judge sanctioned respondent $10,000 for this conduct. Similarly, the three-judge panel concluded that respondent had committed a fraud on the court and sanctioned respondent an additional $15,000. Respondent did not pay the sanctions. Ultimately, 9 of the 14 plaintiffs asked to be removed from the proceedings. Respondent also failed to cooperate with the investigations by the Director of this misconduct.

The court found this to be “serious” misconduct

We conclude that the sanction imposed in that matter—including the requirement that the lawyer must petition for reinstatement, and that they make full payment of court-ordered sanctions before being allowed to do so, see id. at 379—is an important guideline for the appropriate sanction to impose on respondent.

Further

Upon reinstatement to the practice of law, respondent will be placed on probation for a period of two years, subject to terms and conditions that will include the following:

a. Respondent must abide by the Minnesota Rules of Professional Conduct.

b. Respondent must cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation. Respondent must promptly respond to the Director’s correspondence by its due date. Respondent must provide to the Director a current mailing address and must immediately notify the Director of any change of address. Respondent must cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent must provide authorization for release of information and documentation to verify compliance with the terms of this probation.

Minnesota Reporter reported

The Minnesota Supreme Court suspended Susan Shogren Smith from practicing law after finding she named plaintiffs in Big Lie election cases without their consent in 2020, according to a June 5 order.

The state’s highest court filed the order following a petition for disciplinary action from the Office of Lawyers Professional Responsibility Board. The board, which oversees the state’s lawyer disciplinary system, alleged Shogren Smith, now 57, committed professional misconduct.

“[Shogren Smith’s] misconduct is serious,” the court order stated. “Her misconduct involved not just a lack of competence and failure to communicate with clients, but dishonesty to the courts and disregard for the discipline process.”

Shogren Smith did not respond to a phone message.

In 2020, the Brooklyn Center attorney represented the conservative group Minnesota Election Integrity Team in five cases that challenged election results. Shogren Smith named Secretary of State Steve Simon and Democratic House candidates as defendants.

President Donald Trump and his allies were busy at the time fostering unfounded claims of election fraud in what became known as the Big Lie, i.e., that President Joe Biden didn’t actually win the election. The claims were rejected by Trump’s own attorney general and dozens of judges.

Ramsey County District Court Judge Leonardo Castro presided over four cases, and one was sent to a three-judge panel. The cases, which Smith filed on behalf of 14 plaintiffs, were dismissed with roughly $18,000 in monetary judgement filed against the plaintiffs.

The state Supreme Court found that Shogren Smith enlisted the plaintiffs without their consent or even any communication with them.

Shogren Smith selected the 14 people out of a group who had returned affidavits to an email soliciting people to contest Minnesota election results. She drafted the affidavit, and then tacked the responders’ names onto lawsuits she filed the next day, according to the order.

“Indeed, at no time either prior to or during the litigation did [Shogren Smith] have any conversations or communications, of any kind, with any of the 14 plaintiffs, none of whom even knew [Shogren Smith’s] name,” the court order stated.

The plaintiffs didn’t speak with the attorney until February 2021. According to the court order, one plaintiff had “fortuitously discovered through other means” that she was listed as a party in a lawsuit and had a monetary judgement against her.

That plaintiff — identified in news reports as Corinne Braun — alerted local authorities and the presiding district court judge. Between a hearing and a decision from the three-judge panel, Shogren Smith was charged $25,000.

Once other plaintiffs were aware, nine of the 14 asked to be removed from the proceedings.

Shogren Smith became a licensed Minnesota lawyer in 2004, according to state records. In addition to practicing law, she operates a licensed foster home and has been involved in a number of nonprofits, political and otherwise. Among those is Picture A Hero, which delivers family portraits to military personnel who are preparing to deploy.

Social media posts from Shogren Smith show her posing in Trump merch and assisting in storm clean-ups with the group We the People are Coming to Save America.

The Minnesota Supreme Court determined Shogren Smith’s suspension based on four factors: the nature of the misconduct; the cumulative weight of the violations of the rules of professional conduct; harm to the public; and harm to the legal profession.

The suspension takes effect 14 days after it was filed, and it also bars Shogren Smith from petitioning for reinstatement for six months. She cannot be reinstated until she pays $25,000 in sanctions she received in 2021, and upon reinstatement she would face two years of probation.

(Mike Frisch)