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In re Petition for Disciplinary Action against Jones

Supreme Court of Minnesota

July 31, 2013

In re Petition for Disciplinary Action against Harvey N. Jones, a Minnesota Attorney, Registration No. 52498.

Original Jurisdiction Office of Appellate Courts

Martin A. Cole, Director, Kevin T. Slator, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

Harry A. Sieben, Jr., Michael M. Miller, Marcia K. Miller, Sieben, Grose, Von Holtum & Carey, Ltd., Minneapolis, Minnesota, for respondent.

Took no part, Lillehaug, J.

SYLLABUS

Respondent's pattern of misappropriation of client funds in excess of $50, 000 over 20 months, failure to keep trust account records, and failure to cooperate with a disciplinary investigation warrants disbarment.

OPINION

PER CURIAM

The Director of the Office of Lawyers Professional Responsibility filed three petitions for disciplinary action against respondent Harvey N. Jones alleging numerous violations of the Minnesota Rules of Professional Conduct. The petitions alleged that Jones misappropriated client and non-client funds, failed to keep trust account records, and failed to cooperate with a disciplinary investigation. After an evidentiary hearing, the referee we appointed found that Jones had committed the professional misconduct alleged in the petition and recommended that Jones be disbarred. We hold that Jones' misconduct warrants disbarment.

Respondent Harvey Jones was admitted to practice law in Minnesota in 1974. He practiced first with an attorney in Hastings and then as part of a law firm in Hastings for 21 years. In 2002 or 2003, Jones left the law firm to open a solo practice in Hastings. After he left the law firm, Jones' income decreased significantly. Jones, however, did not immediately adjust his standard of living to his new income.

The Director served Jones with a petition for disciplinary action on September 16, 2011, alleging misappropriation of funds from clients—two couples he represented and their neighbor—and noncooperation with the disciplinary investigation of the couple's complaint. After the time for filing an answer had expired, see Rule 13(a), Rules on Lawyers Professional Responsibility (RLPR), Jones petitioned for the matter to be remanded to the Office of Lawyers Professional Responsibility so he could file an answer and have a hearing. Jones claimed that his depression prevented him from replying in a timely manner. On December 30, 2011, we granted Jones an extension of time to file his answer. Jones filed an answer, and we referred the matter to a referee. The Director filed two supplementary petitions for disciplinary action, alleging Jones misappropriated funds belonging to four other clients and a non-client and failed to keep trust account books and records.

Jones admitted virtually all of the allegations contained in the original and two supplemental petitions, including misappropriation of client and non-client funds, failure to cooperate with the investigation, and failure to keep trust account records. Jones did not contest the Director's accounting of his trust account. The hearing before the referee focused primarily on the presence of mitigating factors.

In total, Jones misappropriated funds over a 20-month period between August 2009 and April 2011 and the dollar amount was between $51, 142.03 and $73, 000.[1] Jones misappropriated funds belonging to seven different clients. One of these clients, N.P., with the assistance of his father, retained Jones to represent him in a personal injury claim arising from an automobile accident in which N.P. sustained a traumatic brain injury. Jones misappropriated approximately $16, 500 of N.P.'s funds between February 17, 2011, and April 21, 2011, and in March 2011, Jones also issued a check for $7, 379 drawn on N.P.'s funds, to another client. In addition to his clients, Jones misappropriated funds that he had been given by the ex-wife of a client he had represented in a divorce proceeding.

Regarding his misappropriation, Jones testified that he was "remorseful from the minute [he] misappropriated the first check" in August 2009 but he continued to misappropriate client funds more than 20 times over the next 20 months. Jones repaid one client in May 2010 using funds misappropriated from another client. Jones did not begin repayment of any other client until March 2011, after he was notified of the Director's initial investigation on February 11, 2011. He did not complete repayment of all misappropriated funds until August 2012, approximately 1 week before his disciplinary hearing. Jones also used funds from one client to repay another client on two other occasions.

In addition to claiming remorse as mitigation, Jones contended that he suffered from depression as mitigation for his misconduct. At the hearing, Jones offered evidence in mitigation and in support of his good character. Jones claims he began experiencing symptoms of depression "[s]omewhere in the 2000s" but did not bring these symptoms to the attention of his primary care physician until November 14, 2011, after he received notice of the initial complaint to the Director. Jones reported he was "extremely anxious, " had a sense of "hopelessness, " and was "[e]xtremely unable to deal with what would be the realities of life." While Jones was suffering from depression, he continued to function as a lawyer by maintaining a law office, employing a non-lawyer assistant, making regular court appearances, and filing appeals. Jones' primary care physician administered a PHQ-9 screening test for depression that indicated that Jones was on the border between mild and moderate major depression. As a result, Jones' physician prescribed an antidepressant and referred Jones to a licensed clinical social worker for counseling. Currently, Jones is complying with his physician's advice and "can function well."

Jones' physician testified that Jones' "depression would affect his ability to think through problems and problem solve. His decision making would have been affected by his depression." Additionally, Jones' physician testified that depression can "affect cognitive ability. People just cannot think as clearly or as sharply . . . when they are depressed." Jones' physician testified that Jones' depression was a direct cause of Jones' professional misconduct and existed prior to his diagnosis in November 2011. Jones' physician acknowledged, however, that depression did not alter Jones' moral compass, did not impair Jones' ability to distinguish right from wrong, and would not have made him think taking money from clients was acceptable.

Jones' psychologist testified that he first saw Jones approximately 10 years ago, after Jones left the law firm. There was then a break in his treatment of Jones until a few months before the hearing in this case. Jones' psychologist testified that Jones came to him because of the disciplinary investigation. When he began seeing Jones a few months before the hearing, he administered the Minnesota Multiphasic Personality Inventory (MMPI-2) and diagnosed Jones with "a combination of depression and anxiety." The MMPI-2 classified Jones' depression as moderate. Additionally, he administered the Beck's Depression Inventory-II assessment, which indicated that Jones' depression was on the low end of moderate.

Jones' psychologist testified that he believed Jones' depression began with "the issues related to his wife's illness and subsequent death" and the "untimely demise of his longstanding relationship with the law firm that he was with for many years." He further testified: "I think the depression played a role with [Jones] that said I can [misappropriate funds] and it's not as big a deal as some people make it out to be . . . ." Jones' psychologist stated that Jones is remorseful and unlikely to repeat his misconduct. Finally, he acknowledged that there was nothing in Jones' depression that caused Jones to steal client ...


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