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In re Petition for Disciplinary Action against O'Brien

Supreme Court of Minnesota

May 3, 2017

In re Petition for Disciplinary Action against Steven Michael O'Brien, a Minnesota Attorney, Registration No. 0389745.

         Original Jurisdiction Office of Appellate Courts

          Susan M. Humiston, Director, Binh T. Tuong, Megan Engelhardt, Assistant Directors, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

          Steven Michael O'Brien, Solana Beach, California, pro se.

         SYLLABUS

         Disbarment is the appropriate discipline for an attorney who misappropriated over $300, 000 from a trust fund, failed to represent a client adequately, and failed to cooperate with the disciplinary investigation.

         Disbarred.

          OPINION

          PER CURIAM

         The Director of the Office of Lawyers Professional Responsibility served Steven O'Brien with a petition for disciplinary action after he failed to appear on behalf of his client and exhibited other misconduct in handling the client's matter. O'Brien did not respond to the petition. On the Director's motion, we deemed the allegations in the petition admitted. Shortly thereafter, we granted the Director's motion to suspend briefing to allow for investigation of an additional complaint. After this investigation, the Director filed a supplemental petition for disciplinary action, alleging that O'Brien misappropriated over $300, 000 from funds held in trust for a beneficiary. O'Brien filed an answer to the supplemental petition, and we referred the matter to a referee. The referee recommended that O'Brien be disbarred. We agree that the appropriate discipline in this case is disbarment.

         FACTS

         The facts of the case are not in dispute.[1] In April 2012, O'Brien agreed to represent D. F. in a lawsuit against an automobile repair service. D.F. provided O'Brien with documents relevant to the lawsuit and an advance in the amount of $750. During the course of the representation, D.F. paid O'Brien $1, 700 for fees and costs. In the months after he was retained, O'Brien prepared a summons and complaint, served these documents on the defendant, and filed them with the district court. O'Brien also prepared and served discovery requests on the defendant. The district court subsequently scheduled a date for a pretrial conference and established dates for pretrial disclosure of witnesses, exhibits, and other trial materials.

         During O'Brien's representation of D.F., O'Brien continually failed to respond to D.F.'s telephone and e-mail messages. On September 12, 2014, O'Brien failed to appear for the scheduled pretrial conference and failed to file the pretrial disclosures ordered by the district court. On September 26, the court ordered O'Brien to pay $750 as a sanction for failing to appear at the pretrial conference. Although the district court directed that the sanction be paid within ten days, O'Brien paid it in $250 monthly installments from January through March 2015.

         Trial was scheduled to start on Monday, October 6, 2014. On Friday, October 3, O'Brien notified D.F., by letter, that he would no longer represent him. Because O'Brien withdrew from the representation, D.F. appeared at the trial pro se. The district court denied D.F.'s request for additional time to obtain new counsel. The district court dismissed the lawsuit with prejudice and ordered D.F. to pay $522 for the defendant's costs and disbursements. After O'Brien withdrew from the representation, D.F. asked O'Brien to return the file to him. O'Brien failed to do so.

         In December 2014, D.F. submitted a complaint to the Director against O'Brien. The Director and the investigator for the District Ethics Committee requested information and responses from O'Brien, by letters and by phone, on multiple occasions. O'Brien did not respond to these inquiries.[2] On September 24, 2015, the Director filed a petition for disciplinary action against O'Brien based on the D.F. complaint. O'Brien did not file an answer to the petition. We therefore granted the Director's motion for summary relief and deemed the allegations in the petition admitted. Rule 13(b), Rules on Lawyers Professional Responsibility (RLPR) (stating that the allegations of a complaint are deemed admitted if a respondent fails to answer within the time provided to do so). Shortly thereafter, we granted the Director's motion to suspend briefing to allow her to investigate an additional complaint.

         The Director's additional investigation related to allegations regarding O'Brien's failure to account for funds in a trust for which he served as trustee. Specifically, O'Brien was appointed as the sole successor trustee of the revocable trust agreement of M.J. after M.J. died in 2013. The beneficiary of the trust was the Order of St. Benedict, St. John's Abbey (the Abbey). In March 2014, O'Brien established a trust checking account at U.S. Bank; he was the only person authorized to conduct transactions on the account. On September 23, 2014, O'Brien deposited $190, 090.13 into the account, representing the proceeds from the sale of M.J.'s residence. O'Brien withdrew $903 in cash when he made this initial deposit. Between September 2014 ...


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