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In re Petition for Disciplinary Action Against Erickson

November 14, 2002

IN RE PETITION FOR DISCIPLINARY ACTION AGAINST DAVID T. ERICKSON, AN ATTORNEY AT LAW OF THE STATE OF MINNESOTA. OFFICE OF APPELLATE COURTS


SYLLABUS BY THE COURT

1. The Director of the Office of Lawyers Professional Responsibility proved Respondent's non-cooperation by clear and convincing evidence, and the referee's finding of fact—"that Respondent repeatedly and intentionally failed to cooperate with the Director's investigation into alleged misconduct by Respondent"—is supported by the evidence.

2. A 30-day stayed suspension from the practice of law and four years of probation is the appropriate discipline for an attorney who has been disciplined five times over the past 20 years, two times for failing to cooperate with the Director of the Office of Lawyers Professional Responsibility, and whose non-cooperation with the Director in investigating a complaint which was ultimately dismissed, while not complete, was substantial and lengthy.

Heard, considered and decided by the court en banc.

The opinion of the court was delivered by: Per Curiam

OPINION

In this case we review the sufficiency of the evidence supporting the referee's finding that Respondent David T. Erickson failed to cooperate with the Director of the Office of Lawyers Professional Responsibility in the investigation of a complaint which was ultimately dismissed. We hold that the Director proved non-cooperation by clear and convincing evidence, and that the referee's finding of fact that Erickson "repeatedly and intentionally failed to cooperate with the Director's investigation into alleged misconduct by Respondent" is supported by the evidence. We also review the referee's recommendation that Erickson be publicly reprimanded and placed on unsupervised probation for four years for failing to cooperate with the Director in investigating a complaint which was ultimately dismissed, and we conclude that a stayed suspension from the practice of law for 30 days and unsupervised probation for four years is the appropriate discipline. We impose certain conditions on the stayed suspension and probation period.

Erickson was admitted to the practice of law in Minnesota on October 17, 1969. Erickson's disciplinary history indicates he has been disciplined on five previous occasions. In 1982, Erickson received a warning for failing to appear at an appellate pre-hearing conference, failing to inform the court that he would not appear, and failing to file a notice of withdrawal. Erickson was suspended from the practice of law for 30 days followed by four years of probation in 1987 for failing to timely file state and federal tax returns. In re Erickson, 415 N.W.2d 670 (Minn. 1987). In 1993, he was suspended for 60 days for neglecting client matters, failing to maintain proper trust account books and records, using his trust account as a personal business account, and failing to cooperate with the disciplinary investigation. In re Erickson, 506 N.W.2d 628 (Minn. 1993). He was subsequently reinstated and placed on probation for two years. During the probationary period, in 1994, Erickson received an admonition for bringing a motion in bad faith, failing to respond to multiple requests for payment of a sanction, and failing to timely pay the sanction. Finally, in 1996, Erickson received an admonition for improperly depositing nonrefundable flat fees in his business account, failing to cooperate with the conditions of his probation, and failing to respond to the Director's requests for information.

The current disciplinary matter arises out of a complaint filed with the Office of Lawyers Professional Responsibility by Erickson's daughter, Shelli Koehnen, on Octoberá20, 1999. Koehnen alleged that Erickson had used her maiden name to apply for a credit card and had failed to pay the charges incurred. On October 27, 1999, the Director mailed notice of an investigation to Erickson at his home via regular mail, requesting that Erickson provide his complete written response within 14 days. The letter was not returned, and Erickson did not respond.

On November 18, 1999, the Director sent a second request for a response by certified mail, return receipt requested, to Erickson's home address. This mailing was unclaimed and returned to sender. On December 7, 1999, the Director sent a copy of the complaint to Erickson's business address, a post office box, at Erickson's request. On December 17, 1999, the same day Koehnen called the Director and asked to have her complaint withdrawn, Erickson wrote to the Director that "[t]his is a family matter" that "has been resolved and there is no need for further attention." As Erickson failed to address the allegations of the complaint in his letter, the Director sent a letter to Erickson's business address on December 29, 1999, explaining that the file would remain open and requesting a response within 10 days. Erickson did not respond to this letter, which was sent by regular mail and not returned. The Director sent a follow-up letter by regular mail to Erickson's business address on January 14, 2000. It was not returned to sender; Erickson did not respond.

On February 17, 2000, the Director served Erickson by mail, sent to his business address, with charges of unprofessional conduct and notice of a March 7, 2000 pre-hearing meeting. The accompanying letter notified Erickson that his attendance was required at the prehearing meeting, but Erickson did not attend. A notice and petition for disciplinary action was issued on March 20, 2000. Attempts to personally serve Erickson at his home address were made on March 20, 21, 23, 28, and 30 and on May 18 and 19, 2000. Because the attempts at personal service were unsuccessful, the Director sent copies of the notice and petition by regular mail to Erickson's home address on July 5, 2000. This mailing was unclaimed and returned to sender. The Director sent by regular mail another copy of the notice and petition for disciplinary action and an application and proposed order for suspension under Rules on Lawyers Professional Responsibility (RLPR) Rule 12(c)(1) to Erickson at his home address on July 25, 2000. This mailing was unclaimed and returned to sender.

By order dated August 21, 2000, this court suspended Erickson from the practice of law under RLPR Rule 12(c)(1).*fn1 A copy of the order was sent to Erickson's home address by regular mail on August 28, 2000. It was unclaimed and returned to sender. On November 13, 2000, upon Erickson's motion to vacate the suspension, we ordered Erickson to "file with the Clerk of Appellate Courts within ten days * * * a valid address for personal service and a signed acknowledgement of service of the petition for disciplinary action." We stated that "[u]pon the filing of these documents, the August 21, 2000, suspension order * * * shall be vacated without further order from [the] court." Erickson served and filed his answer to the petition on December 6, 2000 and was reinstated.*fn2 The Director served Erickson by mail at his business address with a notice of deposition, and Erickson was deposed on December 20, 2000.

On January 4, 2001, the Director wrote to Erickson, requesting, by January 18, certain information and documents mentioned at the deposition. This letter was sent by regular mail to Erickson's home address, to his business address, to a Prior Lake address where Erickson sometimes stays, and to a Richfield address. Only the letter to the Richfield address was returned as an invalid address, but Erickson did not respond. The Director sent a follow-up letter on January 29, 2001. The letter was sent to Erickson's home, business, and Prior Lake addresses by certified mail, return receipt requested. The copy sent to Prior Lake was received on February 6, 2001, but Erickson did not respond. The Director made a third request for information and documents on March 1, 2001. This letter was sent by certified mail, return receipt requested, and was received at Erickson's business address on March 16, 2001.

On March 15, 2001, the Director received a letter from Erickson dated Februaryá13, 2001. Because this communication contained only some of the requested information and documents, the Director mailed a fourth request for information and documents on April 18, 2001 to all three valid addresses, via regular and certified mail, return receipt requested. The certified letters were unclaimed, but the letters sent by regular mail were not returned. The Director mailed a letter on April 25, 2001 to all three addresses, by both regular and certified mail, return receipt requested, requesting Erickson's signature authorizing the release of information to the Director regarding the credit card account at issue. Again, the certified letters were unclaimed; the letters sent by regular mail were not returned. A fifth request for information and documents was sent to all three addresses by regular and certified mail, return receipt requested, on Mayá3, 2001. The certified letters were unclaimed, and the letter sent by regular mail to the Prior Lake address was returned to sender, but the letters sent to Erickson's home and business addresses were not returned. The Director sent a second request for a signature on May 8, 2001. The certified letters, sent to all three addresses, were unclaimed, but the letters sent by regular mail were not returned.

On September 6, 2001, the Director served Erickson by mail with an amended and supplementary petition for disciplinary action which alleged that Erickson failed to cooperate with the Director's investigation through May 2001. This document was sent by regular mail to Erickson's three addresses. Only the mail addressed to the Prior Lake address was returned. Erickson did not respond. The Director served Erickson with interrogatories, requests for production of documents, and requests for admissions by regular mail sent to Erickson's three addresses on October 4, 2001. No mail was returned. On November 14, 2001, Erickson, the Director's attorney, and the referee had a telephonic scheduling conference. Erickson agreed to comply with all outstanding discovery requests within a short time, and a week later, Erickson faxed the Director his discovery answers. By letter dated November 26, 2001, the Director requested Erickson to provide full and ...


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