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In re Petition for Disciplinary Action against Gherity

January 15, 2004

IN RE PETITION FOR DISCIPLINARY ACTION AGAINST DAVID J. GHERITY, A MINNESOTA ATTORNEY, REGISTRATION NO. 140181.


SYLLABUS BY THE COURT

1. Even if the petition in disciplinary proceedings does not specifically state that disbarrment is the discipline the Director of the Office of Lawyer's Professional Responsibility is seeking, the attorney's due process rights are not violated where the Director's petition states that "appropriate discipline" is requested and our rules of professional responsibility specifically include disbarrment as a discipline where appropriate.

2. An attorney's due process rights are not violated by a referee's denial of the attorney's motion for a continuance of the hearing nor by the referee's denial of the attorney's request for appointed counsel.

3. The Director is authorized by Rule 8(a), Rules on Lawyers Professional Responsibility, to investigate claims of professional misconduct and an attorney's claim of investigatory misconduct by the Director that has no evidentiary support is without merit.

4. An attorney's convictions for fifth-degree assault and disorderly conduct constitute conclusive evidence of the attorney's violent misconduct underlying those convictions and the attorney's violent misconduct, together with his extensive prior discipline and criminal record, constitutes a pattern of misconduct and conclusive evidence of professional misconduct such that the referee's findings and conclusions of the same are not clearly erroneous and are supported by the evidence. Appropriate discipline is indefinite suspension from the practice of law with no right to apply for reinstatement for a period of five years from date of this decision.

Heard, considered and decided by the court en banc.

Per curiam.

Took No Part, Gilbert, J.

OPINION

In this lawyer discipline case, we conclude that respondent David J. Gherity was not denied due process in the disciplinary proceedings and that the referee's findings of fact, and the conclusions drawn from those findings, are not clearly erroneous and are supported by the evidence. We also conclude that the appropriate discipline is indefinite suspension from the practice of law with no right to apply for reinstatement for a period of five years from date of this decision.

On June 20, 2001, Gherity was convicted in Hennepin County District Court of fifth-degree assault and disorderly conduct. He was sentenced to 90 days confinement, 75 days of which were stayed for one year on the conditions that he obtain a full chemical dependency evaluation, a mental health assessment, anger management counseling, and that he pay a fine and restitution and have no contact with the victims. The convictions, which were affirmed by the court of appeals, arose from an incident on October 29, 2000 in which Gherity assaulted his girlfriend by repeatedly kicking her in the hallway outside of her 26th floor apartment and when a neighbor attempted to intervene, Gherity also assaulted the neighbor by chasing him to the 26th floor balcony, forcing him against the railing with his hands around his throat, and then repeatedly punching him. State v. Gherity, No. C8-01-1086, 2002 WL 1837912 (Minn. App. Aug. 13, 2002), rev. denied (Oct. 29, 2002).

As a result of Gherity's convictions in district court, the Director of the Office of Lawyer's Professional Responsibility filed a petition for disciplinary action, alleging that Gherity had engaged in professional misconduct in violation of Minn. R. Prof. Conduct 8.4(b)*fn1 and (d).*fn2 In the petition, the Director also requested revocation of the professional probation that had been imposed on Gherity for earlier professional misconduct violations. See In re Gherity, 464 N.W.2d 719, 720 (Minn. 1991); In re Gherity, 446 N.W.2d 371, 371-72 (Minn. 1989); In re Gherity, 424 N.W.2d 63, 63 (Minn. 1988).

At the evidentiary hearing before the referee, Gherity requested a continuance, claiming that counsel he retained had failed to appear, despite numerous reminders. The Director opposed the continuance, noting that the hearing date had been known for some time. The referee indicated that his court reporter's call to the counsel Gherity had earlier indicated he might retain had never been returned. Noting that counsel Gherity claimed to have retained had made no appearance in this matter and could not be reached at his office or by cell phone, the referee denied Gherity's requests for a continuance of the evidentiary hearing or, in the alternative, court-appointed counsel. The referee also denied Gherity's motion to dismiss the petition on grounds of investigatory misconduct by the Director's office. The Director presented evidence at the hearing of Gherity's June 2001 fifth-degree assault and disorderly conduct convictions, as well as evidence of Gherity's past disciplinary record.

Gherity testified, offering his explanation of the incident that resulted in his convictions for fifth-degree assault and disorderly conduct, and also offering explanations for prior misconduct that resulted in earlier convictions and professional discipline. He also asserted that he suffered from depression and a head injury resulting from a motorcycle accident 12 years before. He asked that his depression and head injury be considered mitigating factors.

The referee found that Gherity's June 2001 convictions for fifth-degree assault and disorderly conduct constituted conclusive evidence of the conduct underlying those convictions and also conclusive evidence of professional misconduct in violation of Minn. R. Prof. Conduct 8.4(b) and (d). The referee also concluded that Gherity's convictions violated professional probation imposed on Gherity in 1988 for disciplinary violations and continued for subsequent violations and that Gherity's "extensive" prior discipline and criminal record constituted a "pattern of misconduct" and an aggravating factor. The referee also concluded that Gherity's "last ...


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