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In re Petition for Disciplinary Action Against Cutting

November 20, 2003

IN RE PETITION FOR DISCIPLINARY ACTION AGAINST ERNEST E. CUTTING, A MINNESOTA ATTORNEY, REGISTRATION NO. 20576.


SYLLABUS BY THE COURT

Respondent's misconduct warrants indefinite suspension from the practice of law.

Per curiam

Office of Appellate Courts

Heard, considered, and decided by the court en banc.

OPINION

Respondent, Ernest E. Cutting, has been licensed to practice law in Minnesota since October 16, 1968. In a Petition for Disciplinary Action (Petition) filed on July 16, 2003, the Director of the Office of Lawyers Professional Responsibility (Director) alleged that Cutting engaged in a pattern of misconduct involving 14 separate clients by "failing to timely file probate annual reports, affidavits of mailing, and receipts with the probate court and failing to promptly comply with probate orders" in violation of Rules 1.3, 3.4(c), and 8.4(d) of the Minnesota Rules of Professional Conduct (MRPC). In addition, the Petition alleged that Cutting failed to cooperate with the Director's investigation into the misconduct in violation of Minn. R. Prof. Conduct 8.1(a)(3) and Rule 25 of the Rules on Lawyers Professional Responsibility (RLPR).*fn1 Subsequent to the Petition, Cutting failed to serve or file an answer to the Petition and, by order filed August 7, 2003, this court, pursuant to Rule 13(b), RLPR, deemed the allegations contained in the Petition admitted. The Director recommends that Cutting be indefinitely suspended from the practice of law.

In 1987, Cutting was suspended from the practice of law for 30 days and placed on two years' supervised probation for mismanagement of a guardianship estate and failure to cooperate with the disciplinary proceedings. In re Cutting, 413 N.W.2d 505, 506 (Minn. 1987).

Because the allegations contained in the Petition have been deemed admitted, the only issue this court must resolve is the appropriate discipline to be imposed on Cutting. The purpose of lawyer discipline is to protect the courts, the public, and the legal profession, and to guard the proper administration of justice. In re Bishop, 582 N.W.2d 261, 263 (Minn. 1998). This court considers four factors in determining the appropriate discipline: "(1)áthe nature of the misconduct, (2) the cumulative weight of the rule violations, (3) the harm to the public, and (4)áthe harm to the legal profession." In re Muenchrath, 588 N.W.2d 497, 500 (Minn. 1999). While this court may turn to cases involving similar misconduct in determining the appropriate discipline, each case is decided on its unique facts and circumstances. In re Brehmer, 642 N.W.2d 431, 433 (Minn. 2002).

Neglect in handling probate matters is considered serious professional misconduct. In re Braseth, 352 N.W.2d 22, 23 (Minn. 1984). Typically, this court imposes an "indefinite suspension in cases involving a continued pattern of client neglect when no evidence of mitigating circumstances is present." In re Geiger, 621 N.W.2d 16, 23 (Minn. 2001). In Braseth, a lawyer who seriously neglected five estate matters was indefinitely suspended for a minimum of two years. 352 N.W.2d at 23-24. In In re Olson, a lawyer who neglected 15 estates and submitted forged receipts to the court was suspended for six months with the understanding that he would retire thereafter. 442 N.W.2d 782, 783 (Minn. 1989). Here, unlike Braseth, Cutting's neglect did not harm his clients financially. Yet, in the matters where Cutting served as the lawyer for a guardian or conservator, his clients were harmed by his neglect in that citations to appear were sent to them and they faced the possibility of further punishment if Cutting continued to neglect his duties. Further, as the Comment to Minn. R. Prof. Conduct 1.3 points out, procrastination may be the most widely resented fault in the profession. Cutting's neglect harms the profession as a whole. Cutting's neglect also led to the waste of judicial resources as the probate court was repeatedly forced to "baby-sit" Cutting to get him to perform his duties.

This court has disciplined lawyers who failed to comply with court orders and failed to appear at hearings. In re Haugen, 373 N.W.2d 600, 600-01 (Minn. 1985) (ordering a public reprimand and two years' supervised probation for misconduct that included failing to comply with a discovery order and failing to appear for a hearing); In re Truelson, 427 N.W.2d 674, 674 (Minn. 1988) (ordering an indefinite suspension for misconduct that included failing to comply with discovery requests and court orders and failing to cooperate with the disciplinary investigation).

Cutting's misconduct is exacerbated by the fact that he has not cooperated with the Director's investigation into his misconduct. Indeed, the failure to cooperate with the disciplinary process constitutes misconduct warranting discipline independent from the conduct underlying the Petition. In re Engel, 538 N.W.2d 906, 907 (Minn. 1995); see also In re Thedens, 557 N.W.2d 344, 349 (Minn. 1997) (stating that failing to attend a panel meeting was at least as serious a violation as failing to attend a prehearing meeting and merited a suspension). In Engel, this court noted the importance of cooperating and stated that the lawyer's failure to cooperate "greatly hampered the investigatory efforts and demonstrates respondent's failure to acknowledge either the seriousness of the proceeding or her disregard for her basic obligations as an attorney or a present inability to deal with any consequences for her actions." 538 N.W.2d at 907. The same can be said for Cutting's failure to cooperate. In Engel, this court held that the failure to cooperate warranted an indefinite suspension from the practice of law. Id.

This court also notes that previous misconduct of the same type is considered an aggravating factor when determining the appropriate discipline. In re Bernard, 534 N.W.2d 272, 276-77 (Minn. 1995); In re Getty, 452 N.W.2d 694, 698 (Minn. 1990). This court has imposed more severe sanctions when the current misconduct is similar to misconduct for which the attorney has already been disciplined. In re Thedens, 602 N.W.2d 863, 867 (Minn. 1999). In fact, this court has held that suspension followed by probation or disbarrment is a proper sanction when the misconduct in the second case is a virtual repeat of the earlier misconduct. Getty, 452 N.W.2d at 698. In this case, Cutting was previously disciplined for mismanaging and mishandling an estate and failing to cooperate with the disciplinary process. Cutting, 413 N.W.2d at 505-06. The nature of his current misconduct is similar to that earlier misconduct.

Based on the record before us, we conclude that Cutting has engaged in serious misconduct warranting discipline. Therefore, we order that effective 20 days from the date of this order Edward E. Cutting be indefinitely suspended from the practice of law, pay $900 in costs and disbursements pursuant to Rule 24, RLPR, and comply fully with Rule 26, RLPR. If Cutting seeks reinstatement, he shall also comply fully with Rule 18, RLPR, and, if reinstated, he shall be placed on supervised probation for a period of two years.

APPENDIX

The allegations as set out in the Petition are as follows:

FIRST COUNT

1. On August 1, 2002, Judge Michael T. DeCourcy filed a complaint against respondent.

2. Based upon the subsequent investigation, the Director has determined the following: Respondent serves as Guardian, Conservator or Personal Representative in numerous Ramsey County Probate court matters. Respondent also serves as attorney for the Guardian, Conservator or Personal Representative in other matters.

3. Pursuant to Minnesota Statute[s] §á525.58, respondent in his fiduciary capacities is obligated to annually file Annual Accounts, a Notice of Right to Petition (Notice) and other reports regarding the ward, conservatee or estate.

4. Respondent neglected numerous probate court matters and failed to comply with statutory obligations, as follows:

A. Respondent Serves As Guardian or Conservator

Elaine K. Cooper

5. On July 25, 1990, the probate court issued an order appointing respondent general conservator of the person and estate of Elaine K. Cooper. Respondent failed to timely file the 7th Annual Account on or before August 24, 1998. The probate court notified respondent on September 14 and again on October 19, 1998, that he had failed to timely file the 7th Annual Account, Annual Notice of Rights and Personal Well Being Report.

6. On December 17, 1998, the court issued a citation to respondent to personally appear on January 12, 1999, to show cause why the documents had yet to be filed. Respondent filed the documents on January 12, 1999.

7. Respondent failed to timely file the 8th Annual Account on or before August 24, 1999. On September 13 and again on October 26, 1999, the probate court notified respondent that he had failed to timely file the 8th Annual Account, Annual Notice of Rights and Personal Well Being Report.

8. On December 13, 1999, the court issued a citation to respondent to personally appear on January 26, 2000, to show cause why the annual documents had yet to be filed. Respondent appeared at the January 26, 2000, hearing and filed the documents.

9. Respondent failed to timely file the 9th Annual Account on or before August 24, 2000. On September 11 and October 16 and/or 17, 2000, the probate court notified respondent that he had failed to timely file the 9th Annual Account, Annual Notice of Rights and Personal Well Being Report.

10. On November 30, 2000, the court issued a citation to respondent to personally appear on January 24, 2001, to show cause why the annual documents had yet to be filed. Respondent appeared at the January 24, 2001, hearing and filed the documents.

11. On March 5, 2001, the court held a hearing for the examination of the 8th and 9th Annual Accounts. The accounts were allowed subject to the filing of the Affidavit of Mailing of the Notice Setting the Time and Place for the Examination of the Account.

12. On March 12 and April 17, 2001, the probate court notified respondent that he had failed to timely file the Final Account as Ms. Cooper died on December 23, 2000. Respondent failed to file the documents. The court issued a citation on May 25, 2001, to respondent to personally appear on June 27, 2001, and show cause why the Final Account was delinquent. Respondent filed the Final Account on May 31, 2001.

13. On May 31, 2001, the court issued a Notice and Order Fixing the Time and Place of the Hearing as July 9, 2001. On July 9, 2001, the court held a hearing to examine the Final Account. The court granted the final account and discharged respondent as the conservator subject to the filing of receipts for assets. The court directed respondent to file the receipts.

14. On August 13 and October 4, 2001, the probate court sent written requests to respondent to file the receipts for assets. Respondent failed to file the requested receipts. On January 18, 2002, the probate court issued a citation to respondent to personally appear on March 27, 2002, to show cause why the receipts for the assets had yet to be filed.

15. Respondent appeared at the March 27, 2002, hearing before the probate court but failed to file the asset receipts. The court continued the citation hearing to April 30, 2002. The court also set a hearing to surcharge respondent's bond.

16. The April 30, 2002, citation hearing was continued to May 28, 2002, to allow respondent to provide asset receipts or present testimony as to what happened to the assets. On April 30, 2002, the probate court sent a notice of the May 28, 2002, hearing to respondent.

17. Respondent failed to appear at the May 28, 2002, hearing. The court requested a Notice of a Writ of Attachment for respondent and set bail at $100. On June 6, 2002, the Notice of Writ of Attachment was sent to respondent.

18. On June 12, 2002, respondent telephoned the probate court to reschedule the hearing to June 17, 2002. Respondent filed the receipt for the assets and a Petition for Discharge of Conservator at the time of the June 17, 2002, hearing. The court cited respondent for failure to timely file the receipts for the assets. It was determined by the court pursuant to the heirs' receipts for assets that respondent never held any assets of the estate.

19. Respondent was discharged as conservator on ...


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