In re Petition for Disciplinary Action Against Barry V. Voss, a Minnesota Attorney, Registration No. 113293
Original Jurisdiction Office of Appellate Courts
Martin A. Cole, Director, Siama Y. Chaudhary, Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.
Edward F. Kautzer, Ruvelson & Kautzer, Ltd., Saint Paul, Minnesota, for respondent attorney.
Disbarment is the appropriate discipline for an attorney who misappropriated client funds, misused his trust account, neglected client matters, failed to timely file and pay employer withholding taxes and pay a law-related judgment against him, and failed to cooperate with the disciplinary investigation.
The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Barry V. Voss, alleging, among other things, that Voss misappropriated client funds, misused his trust account, neglected client matters, failed to timely file and pay employer withholding taxes and pay a law-related judgment against him, and failed to cooperate with the disciplinary investigation. Following an evidentiary hearing, the referee concluded that Voss's behavior violated multiple rules of professional conduct and recommended that he be indefinitely suspended for a minimum of 2 years. We adopt the referee's findings of fact and conclusions of law. But because we conclude the referee's recommended discipline does not account for the seriousness of Voss's misconduct, we order that Voss be disbarred.
Voss was admitted to practice law in Minnesota on September 29, 1978. He practices criminal defense as a solo practitioner. Voss was privately admonished in October 2001, August 2003, and January 2009 for various client-related misconduct.
In November 2011, the Director filed a petition for disciplinary action, alleging that Voss engaged in professional misconduct with respect to 12 client matters, misused his trust account, failed to pay employer withholding taxes, and failed to cooperate with the disciplinary investigation. Voss answered the petition, and we appointed Senior District Court Judge Bruce W. Christopherson to serve as referee. After an evidentiary hearing, the referee issued the following findings of fact and conclusions of law.
In June 2008, E.S. hired Voss to represent him in a criminal appeal and paid Voss $25, 000. The next month, E.S. paid Voss an additional $12, 400 to be held in Voss's trust account in anticipation of any potential civil lawsuits arising from the criminal matter. Voss and E.S. did not enter into a written retainer agreement. But according to E.S., Voss set his fee at $10, 000 and agreed to return the remaining $2, 400 to E.S.'s wife immediately. Voss failed to return the $2, 400. A year later, E.S. terminated Voss as his attorney on the potential civil matter and asked for the return of the full $12, 400 and his criminal file. Despite several requests over the next 5 months, Voss did not respond. Finally, in November 2009, E.S.'s wife retrieved a portion of the file from Voss, but Voss did not return the remainder of the file or the $12, 400.
The referee concluded that Voss misappropriated the $12, 400 for his personal benefit. In so concluding, the referee rejected as not credible Voss's testimony that the $12, 400 was a flat fee and that he performed substantial but undocumented legal research on the civil matter. The referee also concluded that Voss violated Minn. R. Prof. Conduct 1.4,  1.5(a),  1.15(c)(3) and (4),  1.16(d),  and 8.4(c).
Minnesota Department of Revenue
For all four quarters of 2008, 2009, and 2010 and the first quarter of 2011, Voss failed to timely file and pay state employer withholding taxes. Although Voss withheld money from his employees' paychecks to satisfy that tax liability, he did not remit the withholding to the State. As of January 25, 2012, Voss's tax liability remained at $37, 266.93. Recently, Voss met with a tax attorney, filed all required tax returns through the third quarter of 2011, and signed a repayment agreement with the Minnesota Department of Revenue. Because of Voss's failure to file and pay taxes, the referee concluded that Voss violated Minn. R. Prof. Conduct 8.4(d).
In January 2005, Voss retained K.T., a South Dakota lawyer, to serve as local counsel on behalf of a client. K.T. submitted written invoices to Voss for several court appearances. Voss made payments toward the invoices, but stopped making further payments after July 5, 2005. To recover the unpaid fees, K.T. sued Voss in small claims court. In November 2009, the court entered judgment against Voss in the amount of $4, 892.12. Voss refused to pay the judgment, so K.T. commenced garnishment proceedings. In May 2011, the court garnished Voss's bank account to satisfy the judgment. The referee concluded that Voss violated Minn. R. Prof. Conduct 8.4(d).
In October 2009, the Director received notice that Voss's trust account was overdrawn. The Director initiated an audit, which revealed that Voss's trust account ran shortages ranging from $3, 933.35 on May 12, 2009, to $15, 975.42 on October 23, 2009. The audit also revealed that on several occasions Voss issued checks from his trust account to clients or himself without depositing any funds to cover the disbursements. In December 2009, Voss deposited $15, 000 into his account to eliminate the deficit. The referee concluded that Voss negligently misappropriated client funds when he disbursed funds from his trust account that created shortages in individual client ledgers. The referee also concluded that Voss failed to maintain the required trust account books and records and commingled personal funds with client funds in his trust account, all in violation of Minn. R. Prof. Conduct 1.15, as interpreted by Appendix 1.
In April 2009, E.B. retained Voss to file a postconviction petition for her son, D.B., for $5, 000. Voss sent a proposed retainer agreement to E.B., yet that agreement was not entered into the record. Initially, Voss met with D.B. in prison to discuss his case. Between the fall of 2009 and spring of 2010, E.B. called Voss's office several times requesting an update and copies of any documents Voss had filed. When Voss failed to return E.B.'s calls, D.B. terminated Voss's services. D.B. requested an accounting of work performed, the return of his file, and a refund of the retainer. Voss failed to comply with any of those requests. The referee found that Voss failed to file a postconviction petition for D.B. and discredited Voss's testimony that he performed substantial but undocumented legal research on the matter. The referee also found that Voss's retention of the $5, 000 retainer constituted an unreasonable fee. The referee concluded that Voss violated Minn. R. Prof. Conduct 1.3,  1.4, 1.5(a), and 1.16(d).
In November 2004, B.L. hired Voss to represent him in a federal criminal matter in Missouri. B.L.'s family paid Voss $125, 000 in several increments throughout the representation. In early 2009, after B.L. was found guilty and exhausted all of his appeals, he requested that Voss provide an accounting of work performed and a copy of his file. Voss failed to do either, and did not respond to further repeated requests. The referee determined that while the fee arrangement appeared to be a flat fee, B.L. had a right to an accounting to ascertain the reasonableness of the fee. The referee concluded that Voss violated Rules 4-1.15(a), 4-1.15(i), and 4-1.16(d), Missouri Rules of Professional Conduct.
In April 2008, R.H. retained Voss to defend his step-son, D.D., regarding a controlled substance charge in state court. R.H. signed a retainer agreement and paid Voss $7, 500. In June 2008, D.D. was indicted in federal court arising out of the same controlled substance incident, and R.H. paid Voss an additional $15, 000 to represent D.D. in the federal matter. From August 2008 through February 2009, D.D. repeatedly called but failed to reach Voss to discuss concerns he had about his case.
Shortly before a plea hearing on the federal matter, Voss met with D.D. to review the plea agreement. D.D. felt inadequately prepared and refused to sign the agreement. The court postponed the hearing to afford D.D. additional time. D.D. signed the plea agreement at a later hearing. In February 2009, D.D. terminated Voss's services. R.H. twice requested that Voss provide him an accounting of the $22, 500 previously paid and a refund of any remaining balance. Voss failed to respond. The referee concluded that Voss violated Minn. R. Prof. Conduct 1.4(a)(2) and (4), 1.4(b), 1.15(a), and 8.4(d).
In October 2008, C.N. retained Voss to represent her fiancé, K.J., in a federal criminal matter for $16, 000. The attorney-client relationship eventually deteriorated and, in August 2009, Voss filed a motion to withdraw from the representation. That same day, K.J.'s new attorney, P.D., emailed Voss's office indicating he intended to file a substitution of counsel in the matter and requesting the file from Voss. In June 2010, Voss sent a portion of the ...