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In re Petition for Disciplinary Action Stewart

Supreme Court of Minnesota

July 26, 2017

In re Petition for Disciplinary Action V. Alan Richard Stewart, a Minnesota Attorney, Registration No. 0313579.

         Original Jurisdiction Office of Appellate Courts

          Susan M. Humiston, Director, Kevin T. Slator, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

          Alan R. Stewart, Appleton, Wisconsin, pro se.

         SYLLABUS

         1. In a reciprocal discipline case, the identical discipline in Minnesota to "exclusion from practice" before the U.S. Patent and Trademark Office (USPTO) is an indefinite suspension from the practice of law with no right to petition for reinstatement for a minimum of 5 years.

         2. The USPTO's attorney discipline procedures were fundamentally fair and consistent with due process.

         3. An indefinite suspension with no right to petition for reinstatement for a minimum of 5 years would not be unjust or substantially different from the discipline warranted in Minnesota for misappropriating $8, 000 in unearned fees, neglecting a client matter, failing to communicate with a client, engaging in the unauthorized practice of law, and failing to cooperate with the disciplinary proceedings.

          OPINION

          PER CURIAM.

         This case presents the question of whether we should impose reciprocal discipline on respondent Alan Richard Stewart. The U.S. Patent and Trademark Office (USPTO) imposed on Stewart what its regulations call "exclusion from practice" for misappropriating $8, 000 in unearned fees, neglecting a client matter, failing to communicate with a client, engaging in the unauthorized practice of law, and failing to cooperate with the disciplinary proceedings. The Director of the Office of Lawyers Professional Responsibility (Director) petitioned to impose reciprocal discipline in Minnesota, arguing that the identical Minnesota discipline is disbarment.

         We hold that, in a reciprocal discipline case, the identical discipline to "exclusion from practice" before the USPTO is an indefinite suspension from the practice of law with no right to petition for reinstatement for a minimum of 5 years. We further hold that the USPTO's discipline procedures were fundamentally fair and that a 5-year suspension would not be unjust or substantially different from the discipline warranted in Minnesota. We therefore indefinitely suspend Stewart with no right to petition for reinstatement for a minimum of 5 years.

         FACTS

         The facts of this case are not in dispute.[1] Stewart was admitted to practice law in Minnesota in 2001 and registered as a patent attorney by the USPTO that same year. Stewart has also been a member of the Wisconsin and Kentucky bars, and most recently practiced in Wisconsin. He has been suspended from all three state jurisdictions since February 2015. In Minnesota and Kentucky, Stewart was suspended for failing to pay attorney registration fees.[2] Stewart was also placed on involuntary restricted status in Minnesota for failing to comply with continuing legal education requirements.

         In February 2016, the USPTO notified the Director that it had excluded Stewart from practice. According to the USPTO, Stewart engaged in multiple forms of professional misconduct in proceedings before that agency. First, the USPTO found that Stewart neglected the patent application of his client, F.W; failed to communicate with her; and misappropriated $8, 000 in unearned fees. Stewart told F.W. that he would file her patent application within 2 or 3 weeks of receiving her paperwork. F.W. provided Stewart her notes and drawings and then checked on the status of her application 3 weeks later. Stewart told F.W. that he had not yet worked on her application, attributing the delay to family medical issues and injuries he had suffered from a bicycle accident. He never completed the patent application and stopped responding to F.W.'s communications. Nonetheless, Stewart cashed F.W.'s two advance-fee checks totaling $8, 000 and failed to return these unearned fees even after F.W. terminated the representation and demanded a refund. Stewart cashed F.W.'s second check on the same day that F.W. terminated the representation.

         Second, the USPTO found that Stewart engaged in the unauthorized practice of law. Stewart has been ineligible to handle USPTO matters since February 2015, when he was no longer an active member of any state bar. But between March 2015 and June 2015, Stewart filed multiple trademark matters on behalf of clients as "attorney of record" and as a purported member of the Wisconsin bar.

         Finally, the USPTO found that Stewart failed to cooperate with its disciplinary proceedings. Between November 2014 and July 2015, the USPTO sent Stewart multiple requests for information via certified mail. Stewart personally signed for several of them, but never responded. Further, Stewart failed to respond to the USPTO's formal complaint, notice of hearing and order, and default-judgment notice, all of which were signed for at Stewart's address. On December 16, 2015, the USPTO entered a default judgment excluding Stewart from practice, concluding that Stewart intentionally violated multiple federal regulations governing practice before the USPTO; caused harm to F.W.; and failed to acknowledge, defend, or rectify his misconduct.

         On July 14, 2016, the Director served Stewart by mail-at the same Wisconsin address on file with the USPTO-with a notice and petition for disciplinary action seeking reciprocal discipline under Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR). Stewart did not respond, and upon the Director's motion, we deemed the allegations in the petition admitted. In re Stewart, No. A16-1309, Order at 1-2 (Minn. filed Sept. 12, 2016); ...


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