Public reprimand and 2 years supervised probation is appropriate discipline for an attorney who has previously been disciplined three times and who thereafter did not attend a hearing she scheduled for a client, failed to inform the district court she would not attend, did not attempt to obtain a continuance, advised her client that he need not appear, and failed to apprise her client of the potential consequences of not attending.
Order for public reprimand, 2 years supervised probation.
Heard, considered, and decided by the court en banc.
Respondent Yvonne B. Moore, a licensed Minnesota attorney since 1963, practices primarily in the area of family law. This attorney discipline case arose from a February 10, 2004, petition filed by the Director of the Office of Lawyers Professional Responsibility alleging that Moore violated Minn. R. Prof. Conduct 1.1 (competence), 1.3 (diligence), 1.4 (communication), and 8.4(d) (conduct prejudicial to the administration of justice)*fn1 when she did not attend a hearing she scheduled for a client, failed to inform the court she would not attend, did not attempt to obtain a continuance, advised her client that he need not appear, and failed to apprise her client of the potential consequences of not attending. The matter is now before us on the referee's report and recommendation that Moore be publicly reprimanded and placed on supervised probation for 2 years subject to conditions. We agree with the referee's recommendation and order that Moore be publicly reprimanded and placed on supervised probation for a period of 2 years.
In both her brief and her oral argument to this court, Moore challenged the referee's findings of fact. However, Moore did not order a transcript of the referee's findings, conclusions, and recommendations. Therefore, under Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR), the referee's findings of fact and conclusions of law are conclusive. Those findings are summarized below.
In September 2001, a client retained Moore to represent him in marital dissolution proceedings. Although Moore and the client did not enter a formal retainer agreement, Moore's letter of engagement indicates that her representation "includes a hearing, but not possible trial." In addition, in a letter dated September 17, 2001, to opposing counsel, Moore states, inter alia: "At the present time I represent [the client] in his dissolution * * * communication of any sort should be only thru [sic] me."
In October 2001, Moore prepared and signed a "Notice and Motion" to modify visitation. She gave these documents to her client, who, without Moore's direct knowledge, filed them with the Ramsey County District Court. Based on Moore's signature on the filed document, district court administration regarded her as the attorney of record in the client's dissolution proceeding. Moore subsequently requested that the court administrator's office schedule a hearing regarding the filed motion. The hearing was scheduled for December 26, 2001. Moore also took part in a telephone scheduling conference with opposing counsel and the district court judge assigned to the matter. At Moore's request, the hearing was rescheduled to February 8, 2002.
Two or 3 days before the February 8, 2002, hearing, Moore contacted opposing counsel to inform him that she would not attend the hearing because she would be out of town on that date. Moore refused opposing counsel's request to continue the matter. On February 6, 2002, Moore telephoned her client to inform him that she would not attend the February 8, 2002 hearing. In response to the client's inquiry regarding whether he needed to attend the hearing, Moore advised him that he did not need to attend. She did not advise him of the possible repercussions for failing to attend a hearing.
Moore did not attend the hearing and failed to seek a continuance or inform the court that she would not attend the hearing. Based on Moore's advice, the client also did not attend the hearing. Opposing counsel prepared for and attended the hearing. As a result of the failure of Moore or her client to appear at the hearing, the court dismissed the client's motion and ordered him to pay $540 in attorney fees incurred by the client's wife in responding to the motion.
On February 28, 2002, Moore withdrew from representation of the client. The client obtained a conciliation court judgment in the amount of $540 against Moore for reimbursement of the attorney fees awarded against him. Moore paid the client $500 to settle the matter.
Before the referee, Moore defended her failure to appear at the February 8, 2002, hearing by arguing that her client, who was himself an attorney and who had previously represented himself at hearings in the dissolution matter, gave her permission to be absent from the hearing. Moore also denied telling the client he did not need to appear at the hearing, claiming that it was her understanding that he would appear and represent himself. Further, Moore excused her failure to notify the district court that she would be absent from the hearing by stating that, in her experience, judges in Ramsey County "don't care" whether lawyers appear in court. She also argued that her opposing counsel "should have known" she was not representing the client. Finally, she argued that she did not believe that by taking part in the scheduling conference, contacting the court to schedule and reschedule a hearing, or signing her name on a notice of motion filed with the court meant that she was the attorney of record or that the judge or opposing counsel would rely on these representations to conclude that she was the attorney of record. The referee found these statements incredible and further found that Moore offered no evidence that she had initiated measures to prevent similar misconduct from occurring in the future.
Moore has been disciplined on three prior occasions. In June 1993, Moore was issued an admonition for demanding and receiving a $300 fee without first securing approval or consent from the Social Security Administration, failing to promptly return client property, and for non-communication with the client. In April 1995, Moore agreed to be placed on private probation for failing to place an advance fee payment into her client trust account, failing to return an unearned fee to a client, failing to provide an accounting of her billing, and failing to provide a client with a copy of a temporary restraining order. In November 1997, we affirmed a private admonition when Moore failed to attend a ...