1. An attorney who claimed mitigation based on untreated depression failed to prove that the depression was causally related to his misappropriations of client funds or to his misrepresentations to clients and to the Director.
2. Evidence that the attorney was making progress after two months of treatment for his depression was insufficient to prove that he had made a recovery sufficient to arrest the misconduct or that the misconduct was not apt to recur.
3. The appropriate disciplinary action on this record is disbarrment, stayed subject to indefinite suspension, with the opportunity to apply for reinstatement not sooner than two years and supervised probation for two years after successfully petitioning for reinstatement.
The opinion of the court was delivered by: Per Curiam.
Office of Appellate Courts
Heard, considered and decided by the court en banc.
In this attorney-discipline proceeding, we review the referee's conclusion that although Respondent Richard T. Jellinger violated the Rules of Lawyers Professional Responsibility (RLPR), he proved by clear and convincing evidence that his depression provided mitigation. We hold that Jellinger's claim of mitigation was not fully supported by the evidence. We also review the referee's recommendation that we suspend Jellinger for one year, retroactive to August 17, 2001, and place him on conditional probation for three years. We conclude that a more severe discipline is appropriate.
Jellinger was admitted to practice law in Minnesota in 1982. He was in private practice from 1982 to about 1989 and from 1994 to 2001, ultimately operating as a sole practitioner specializing in family law, criminal defense, and estate planning and administration. He is currently suspended from the practice of law pending the outcome of this proceeding.
On May 3, 2001, we publicly reprimanded Jellinger and placed him on conditional probation for two years after an investigation by the Director of the Office of Lawyers Professional Responsibility (Director) revealed that he misused a trust account, neglected clients, and failed to cooperate with the investigation that led to the charges against him. In re Jellinger, 625 N.W.2d 143, 145 (Minn. 2001). In the ensuing months, Jellinger ignored requests from the Director's office for information concerning the conditions of his probation. As a result, the Director petitioned for further disciplinary action and we temporarily suspended Jellinger from the practice of law on August 17, 2001.
The current disciplinary proceeding arises from a supplementary petition filed by the Director against Jellinger. The supplementary petition charged Jellinger with misappropriating client funds, failing to act with reasonable diligence, failing to communicate with clients, making false statements, exceeding the scope of representation, failing to expedite litigation, continuing non-cooperation with the Director's investigation and other assorted acts of misconduct. Jellinger's answer alleged as mitigation that he suffered from depression during his period of misconduct.
The matter was assigned to a referee, who held a disciplinary hearing on the supplementary petition. The evidence showed that Jellinger's operating account for his law practice had been closed by the bank in December 2000 for chronic overdrafts and that he thereafter used his client trust account to pay his operating and personal expenses. For example, the referee found that Jellinger, acting as the personal representative of an estate, misappropriated $5,200 of estate funds to his client trust account and then disbursed them for his personal benefit; told the heirs and the Director that he had paid $5,280 in federal fiduciary taxes on behalf of the estate, when he had paid nothing; misappropriated $10,000 from the estate account to his client trust account and disbursed the funds to himself or to personal and business creditors; and misappropriated $4,050 from the estate account to his client trust account and disbursed the funds for personal and business expenses.
The referee also found that Jellinger failed to communicate with his clients in an adoption matter, neglected two marital dissolution matters, made false statements to clients and failed to cooperate with the Director's investigation.
Jellinger testified on his own behalf and he called his treating psychologist, Dr. Sheldon Pinsky, as a witness. Dr. Pinsky had seen Jellinger on five occasions over a period of approximately two months, beginning in January 2002. Dr. Pinsky testified that he conducted a series of diagnostic interviews and psychological tests on Jellinger, including the Beck's Inventory Test and the Minnesota Multiphasic Personality Inventory ("MMPI"). Dr. Pinsky opined that Jellinger had a major depressive disorder; that he had been depressed for over two years; and that his professional misconduct was in large part a result of his depressive disorder, because he did not have the skills or the awareness to appreciate what was happening around him. Dr. Pinsky ...