Lost At Sea With With Broken Glasses

An attorney’s false statements to a tribunal drew an indefinite suspension with a right to reapply after 120 days from the Minnesota Supreme Court.

Respondent is an experienced criminal defense attorney who had previously been suspended and reinstated.

During a lunch recess in a criminal matter

At some point during the break, the Wright County prosecutor received a call from Sea advising him that Sea would be a half-hour late. He said that he was on his way back from Saint Paul because he had to pick up his spare pair of eyeglasses after his original pair broke. When Sea did not appear, the Wright County clerk called him at 1:46 p.m. At that time, Sea told the clerk that he would be another half-hour late. The clerk called Sea at 2:01 p.m. and again Sea said that he would be another half hour. He was called a third time at 2:22 p.m., and Sea told the clerk he was in Maple Grove. The district court began the hearing at 2:24 p.m. without Sea. When Sea finally arrived at Wright County District Court at 2:41 p.m., the proceedings had ended for the day.

The referee found that the criminal trial was delayed due to Sea’s non-appearance because the district court was unable to rule on pretrial motions and two defense witnesses under subpoena missed work and were unable to testify. One of the witnesses was scheduled to leave the country the next day.

Additionally, Sea’s client, F.B., was unrepresented during the proceedings and unaware of his attorney’s whereabouts. The district court judge testified at an evidentiary hearing held by the referee that she was concerned for the defendant and was unable to communicate with him because his attorney was not present. The defendant had neither the assistance of counsel nor the ability to consult with counsel until Sea finally arrived.

At the opening of court proceedings the next day, the district court conducted a private, sealed, transcribed inquiry with Sea about his excuse, if any, for being late. Sea stated that his absence was due to his eyeglasses. The court resumed public proceedings and asked Sea to explain where he was the afternoon before. Sea responded:

Once again, good morning, Your Honor. Unfortunately yesterday I broke my glasses. I have bifocal glasses, and I cannot see at all without them. And unfortunately the one I have is in Saint Paul. And I had to—I had to run down there to get it—get my spare one. And I thought—I’m showing you the one I wore yesterday before (shows glasses) it’s broken. It’s bifocal. I cannot see at all without them. So I had to run down to Saint Paul. I don’t have the court’s phone numbers, so I called [M.E., the prosecutor]. And I told him, you know, that I will be back in Saint Paul after picking up my—my spare glasses. I thought I could make it back before 1:30, or maybe a few minutes late, you know. Unfortunately, the traffic was bad and I was not able to. I could not be able to see anything, Your Honor, yesterday at all without the glasses. And I thought to be able to read anything or see anyone, I must have this. Driving down with this, Your Honor (showing glasses) I have this—like this in my eye while I’m driving. And I could not operate my vehicle even safely on my way down there. Upon my return, Your Honor, I apologized to [M.M., counsel for defense witness scheduled to potentially testify the afternoon of April 18], you know, and the—and his client [potential defense witness]. I also apologized to [M.E.]. Now right now, Your Honor, I apologize to the court, you know. I am very sorry, you know. It wasn’t—I mean I didn’t plan on not being here. I was just hoping that I can rush down here and pick it up and come—and come right back maybe a few minutes late. But unfortunately the traffic was very bad and I wasn’t able to get here. When I—when I got here though, [M.M.] and his clients were still here. So we were able to—to discuss more in details about the testimony of his witnesses. Once again, Your Honor, I sincerely apologize.

When the court pressed Sea again a few days later, after he was once again 30 minutes late for the proceedings, for an explanation for his absence on April 18, Sea again only referenced his broken glasses and traffic as reasons for causing his delay.

The statements that Sea made to the district court and the prosecutor regarding the reason for his lateness were false. In reality, Sea was driving to and from Dakota County District Court to represent another client, A.H., in a bail hearing on April 18. Sea filed a certificate of representation in Dakota County on April 17, 2017, and was aware that the
Dakota County proceeding for which he had filed a Notice of Appearance was scheduled for 11:00 a.m. on April 18, 2017. Sea told the Dakota County clerk that he would arrive by 12:30 p.m. for the hearing. In his testimony at the evidentiary hearing, Sea admitted that he did not inform the Wright County District Court about the bail hearing in Dakota County because he believed that he “would have sufficient time to travel from Wright County to Dakota County” during the lunch recess of the Wright County proceedings. He testified that his glasses broke and he had to go to Saint Paul first to pick up his spare glasses before going to Dakota County. When Sea arrived in Dakota County the court had to call an interpreter and the proceedings were delayed while waiting for the interpreter to arrive. Sea testified that once the bail hearing began it “took maybe five to ten minutes at the most.”

The trial court

After learning that Sea had actually been driving to and from Dakota County representing another client and Sea was still untruthful about his whereabouts, the district
court imposed sanctions. It ordered Sea to reimburse Ridgeview Medical Center (where the two witnesses under subpoena were employed) $1,712.94. Sea paid the sanctions. 

The bar misconduct

Sea argues that the statements he made regarding his eyeglasses and the traffic delays were not false and therefore he did not violate the Minnesota Rules of Professional Conduct. We disagree. Sea contends that, because the referee found Sea’s statements about his broken eyeglasses and having to go to his office in Saint Paul to pick up a spare pair were false, the referee clearly erred. The referee rejected Sea’s testimony from the evidentiary hearing that those were true statements. The referee has the power to do so.

Sea not only knowingly made false statements to the district court, he also knowingly omitted key information that he should have shared with the court. Even if Sea was truthful regarding his eyeglasses and his need to drive back to Saint Paul to pick up a spare pair, he knowingly made a false statement to opposing counsel and the court when he claimed that he was on his way directly from Saint Paul to Wright County, instead of disclosing that he had made a significant detour to Dakota County District Court. The Wright County District Court asked Sea multiple times about the reasons for his absence and he consistently failed to tell the truth.

Majority sanction

consistent with our previous decisions and the specific circumstances of this case, we conclude that an indefinite suspension with no right to petition for reinstatement for a minimum of 120 days is the appropriate discipline.

Dissent on sanction by Justice Thissen

Sometime that morning, Sea’s eyeglasses broke. The record discloses nothing to refute Sea’s clear testimony on that point. Consequently, he was forced to stop at his Saint Paul office to get a replacement pair of eyeglasses before heading to the Dakota County bail hearing. No evidence in the record contradicts that fact either. The bail hearing was delayed as the parties waited for an interpreter for Sea’s client. Needless to say, Sea was late getting back to Wright County and did not arrive before 2:25 p.m., when the judge left. As it turned out, the parties resolved many of the issues related to the motion to quash, and the felony trial proceeded as scheduled in the following days.

Sea did not inform the prosecutor, his client, or the district court that he had appeared at the Dakota County bail hearing. He blamed his tardiness solely on the fact that he broke his eyeglasses. He maintained his half-truth story even when the district court gave him more chances to be fully forthcoming. In the end, the truth came out after the district court checked the court record system and saw that he had appeared with his immigrant client in Dakota County midday on April 18. But, as the joint stipulation of facts stated, Sea “asserts he was wrong in not disclosing to the Wright County District Court that he appeared in Dakota County District Court.”

Lawyers are human

At the most fundamental level, my analysis starts with the simple observation that lawyers are humans and are therefore imperfect, a point made plain in the recent Call to Action seminar, a joint effort between our court, the Director’s office, and the Minnesota State Bar Association to address the impact of lawyer well-being on client relationships, among other impacts. When I step back, what I see in this case is a lawyer who responded to a desperate call to respond to an emergency facing a former client who did not speak fluent English, who likely could not pay for a lawyer, and who was sitting in jail. He made(unwisely as it turned out) a gamble that his morning matter in Wright County would be resolved in time for him to assist the former client at a Dakota County bail hearing at midday. Then, as is the case for all of us at some point or another, life happened and made things worse. The lawyer’s eyeglasses broke, forcing him to stop by his office in Saint Paul on the way to Dakota County—still holding out hope that he could get back to Wright County, late, but in time to resolve the motion to quash. And I see a lawyer who knew that he made a mistake, panicked, and did not tell the whole truth to cover up a messy situation. In no way does that excuse the behavior. It was wrong. He is receiving a serious sanction. But the backstory should inform how we understand the nature of Sea’s ethics violations and how we should proceed. And that backstory tells me that a sanction on the harshest end of the range of punishments we have imposed in similar cases is not right.

Why it matters

One may ask why a two-month difference in suspension length matters. To any practitioner—and particularly a solo practitioner like Sea—two months without a way to earn an income is not at all insignificant. Moreover, if a lawyer is suspended for a period of more than 90 days, the lawyer must petition for reinstatement, undergo an investigation by the Director inquiring into the “appropriateness of the . . . reinstatement” and obtain a recommendation on reinstatement from a panel of the Board of Professional Responsibility. Rule 18(a)–(c), RLPR. After that, the lawyer must appear before us and we may grant the reinstatement petition or deny it.

If less than 90 days

No investigation. No panel recommendation. No hearing before us. Consequently, by choosing to impose a 120-day suspension, the court is imposing a much more significant sanction on Sea than a mere 60 days of suspension. And based on the facts in the record, including the backstory leading up to the afternoon of April 18, I would hold that the protection of the public and maintenance of public trust in our courts do not require us to exercise the additional supervisory functions over Sea set forth in Rule 18(a)– (d), RLPR. I therefore respectfully dissent from the court’s imposition of a 120-day suspension.

(Mike Frisch)