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In re Petition for Disciplinary Action against Michael

Supreme Court of Minnesota

September 18, 2013

In re Petition for Disciplinary Action against Lori Mae Michael, a Minnesota Attorney, Registration No. 312149.

Office of Appellate Courts Original Jurisdiction

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

Lori Mae Michael, Apple Valley, Minnesota, pro se.

SYLLABUS

A 30-day suspension and, upon reinstatement, supervised probation for a period of two years is the appropriate sanction for an attorney who knowingly made a false statement of fact to a tribunal, failed to comply with a court order, engaged in conduct involving dishonesty, made a frivolous argument, and engaged in conduct prejudicial to the administration of justice.

OPINION

PER CURIAM

The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition for disciplinary action against attorney Lori Mae Michael, alleging that Michael engaged in various acts of professional misconduct in violation of the Minnesota Rules of Professional Conduct. After an evidentiary hearing, the referee concluded that Michael violated the Minnesota Rules of Professional Conduct as alleged in the petition and recommended that Michael be suspended for a minimum of 60 days. The referee also recommended that Michael be required to petition for reinstatement under Rule 18, Rules on Lawyers Professional Responsibility (RLPR). We conclude that Michael committed professional misconduct that warrants a 30-day suspension to be followed by supervised probation for a period of two years.

Michael was admitted to practice law in Minnesota in 2001. In 2006, Michael was admitted to practice law in the Prairie Island Tribal Court and remained licensed in the tribal court until 2010. From February 2006 to February 2007, Michael worked for Prairie Island Indian Community (PIIC) as assistant general counsel to the tribe. After working for PIIC, Michael worked as a solo practitioner. This disciplinary action arises out of actions Michael took while representing two clients, W.M. and E.C., in the course of child protection proceedings in the tribal court.[1]

Michael's representation of W.M. and E.C. began in August 2008; it was her first case as a solo practitioner. W.M. and E.C. are the paternal grandparents of C.C., the minor child whose care and custody was in dispute in the tribal court proceedings. In addition to W.M. and E.C., the parties involved in the proceedings included C.C.'s mother and father, C.C.'s maternal grandparents, and PIIC Family Services (Family Services). Family Services had several concerns about C.C.'s welfare. One concern arose out of allegations that members of C.C.'s family, including W.M. and C.C.'s mother and/or stepfather, had physically and sexually abused C.C. Law enforcement in Dodge County and Goodhue County investigated the allegations of abuse.

In late November 2009, E.C. sent a letter to the tribal court requesting visitation with C.C. on Thanksgiving. The PIIC Clerk of Tribal Court advised Michael of E.C.'s letter and told Michael that she needed to file a formal motion with the tribal court regarding the visitation request. Michael filed a motion, but Family Services and C.C.'s mother opposed the motion. On November 25, 2009, Michael inquired about the visitation request in an e-mail sent to the PIIC Clerk of Tribal Court and the presiding tribal court judge. Michael also sent the e-mail to opposing counsel. Michael asserted that the opposition to the visitation request was unwarranted. At the end of her e-mail, Michael stated, "If this was any other party, I would ask, would the court be treating them the same?" Before reading Michael's e-mail, the tribal court issued an order denying the visitation request as untimely. The tribal court later amended its order to address what it viewed as Michael's "unfounded assertion . . . of bias by the Court." The tribal court found Michael's conduct contemptuous and fined her $100.

The following month, attorney Matthew Begeske, who represented C.C.'s mother, moved the tribal court to disqualify Michael as counsel for W.M. and E.C. Begeske argued that Michael had a conflict of interest because when Michael was assistant general counsel for PIIC, she represented PIIC in a child welfare matter involving C.C.'s mother, who at the time of the representation was a minor and pregnant with C.C. In its December 30, 2009 order, the tribal court disqualified Michael from representing W.M. and E.C. before the tribal court. The tribal court, however, did not disqualify Michael from representing W.M. and E.C. in the tribal court of appeals or any other court. Michael maintained an attorney-client relationship with W.M. and E.C. outside of the tribal court matter involving C.C.

After Michael was disqualified from representing W.M. and E.C. in the tribal court, Michael contacted Assistant Goodhue County Attorney Erin Kuester to discuss the status of Goodhue County's criminal investigation into allegations of physical abuse of C.C. by her parents. Kuester informed Michael that there was not enough evidence to pursue charges and that the County was prepared to formally decline prosecution. Michael argued with Kuester about the County's decision and offered to send Kuester an audio recording of C.C.'s mother that Michael claimed to be additional evidence of abuse. W.M. sent the audio recording to Kuester on January 14, 2010, and the County's letter declining prosecution was sent the next day to local law enforcement, W.M. and E.C., and Family Services.

Meanwhile, proceedings were continuing in the tribal court. In light of the concerns about C.C.'s welfare, the tribal court had appointed David Jacobsen, a licensed attorney, to serve as C.C.'s guardian ad litem. After Jacobsen learned that Dodge County and Goodhue County had no evidence to substantiate the claims of abuse, he filed a report recommending what he believed to be the best placement option for C.C. Jacobsen also decided to prepare a motion to withdraw from his position as C.C.'s guardian ad litem.

On March 22, 2010, Jacobsen received an e-mail from Michael in which she emphasized the importance of Jacobsen's role as C.C.'s guardian ad litem and shared with Jacobsen information that she had learned about Goodhue County's investigation of the abuse allegations. Michael also stated, "I can't protect them in tribal court, but [I] am still there in the tribal court of appeals, and state court." Because Michael had been disqualified from representing W.M. and E.C. in the tribal court, Jacobsen forwarded the e-mail to the tribal court. Once informed of Michael's e-mail to Jacobsen, the tribal court issued an order directing Michael to appear and show cause why she should not be held in contempt for failing to comply with the tribal court's disqualification order.

In her response to the order to show cause, Michael argued that her e-mail to Jacobsen was protected by the attorney-client privilege because it was a "confidential correspondence between attorneys" and because the e-mail contained "confidential information that she had obtained from her clients." At the contempt hearing that followed, Family Services brought Michael's contact with Kuester to the attention of the tribal court. Family Services asserted that the contact occurred after Michael was disqualified from representing W.M. and E.C. in the tribal court. Michael contested this claim and asserted that she spoke with Kuester before she was disqualified. Because Michael and Family Services disagreed about when Michael's contact with Kuester occurred, the tribal court ordered Kuester to submit a letter to the court. Kuester subsequently advised the tribal court that, based on her review of her records and her memory of the conversation, she believed the conversation occurred in mid-January 2010.

The tribal court issued a contempt order, concluding that by e-mailing Jacobsen, Michael "violated Minnesota Rule of Professional Conduct 1.16 by continuing to represent [W.M. and E.C.] after being discharged . . . and also directly violated [the tribal court's] order removing her from representation." The tribal court characterized as "specious" Michael's argument regarding the application of the attorney-client privilege to her e-mail with Jacobsen. The tribal court also concluded that, although Michael's conduct in contacting Kuester did not violate its disqualification order, Michael violated Rule 3.3(a)(1), Minn. R. Prof. Conduct, "by being less than candid . . . in asserting that she did not talk to [Kuester] after being removed." Michael's subsequent appeal of the tribal court's contempt order was dismissed as frivolous.

The Director filed a petition for disciplinary action against Michael, alleging that Michael's conduct related to her representation of W.M. and E.C. violated Rules 1.16(d), [2] 3.1, [3] 3.3(a)(1), [4] 3.4(c), [5] and 8.4(c)-(d), [6] Minn. R. Prof. Conduct. Michael filed an answer to the petition, contesting the Director's allegations and alleging various due process violations. After an evidentiary hearing, a referee found that the tribal court had concluded that Michael violated the tribal court's disqualification order and Rule 1.16(d), Minn. R. Prof. Conduct, by contacting Kuester and Jacobsen. The referee also found that Michael had "alleg[ed] judicial bias" in her e-mail to the tribal court and opposing counsel and that Michael's statement during the tribal court contempt hearing regarding the timing of her contact with Kuester was knowingly false.

Based on its findings, the referee concluded that Michael's statement to the tribal court that her conversation with Kuester took place before she was disqualified from representing W.M. and E.C. violated Rule 3.3(a)(1), Minn. R. Prof. Conduct (knowingly false statement), Rule 8.4(c), Minn. R. Prof. Conduct (conduct involving dishonesty), and Rule 8.4(d), Minn. R. Prof. Conduct (conduct prejudicial to the administration of justice). The referee also concluded that Michael's "conduct in continuing to represent W.M. and E.C. after being disqualified from representation" violated Rule 1.16(d), Minn. R. Prof. Conduct (failure to protect client interests), Rule 3.4(c), Minn. R. Prof. Conduct (knowingly disobeying obligation to tribunal), and Rule 8.4(d), Minn. R. Prof. Conduct. In addition, the referee concluded that Michael's arguments "to justify or excuse her . . . e-mail to Jacobsen" violated Rule 3.1, Minn. R. Prof. Conduct (frivolous arguments) and Rule 8.4(d), Minn. R. Prof. Conduct, and that Michael violated Rule 8.4(d), Minn. R. Prof. Conduct, by accusing the tribal court of being partial in her e-mail to the tribal court and opposing counsel. Finally, the referee concluded that Michael's inexperience is a mitigating factor, but Michael's lack of remorse and failure to recognize and take responsibility for her conduct are aggravating factors.

The referee recommended suspension of Michael for a minimum of 60 days with a requirement to petition for reinstatement pursuant to Rule 18(a)-(d), RLPR. The referee also recommended placement ...


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