In re Petition for Disciplinary Action against Randall D. B. Tigue, a Minnesota Attorney, Registration No. 0110000.
Jurisdiction Office of Appellate Courts
M. Humiston, Director, Megan Engelhardt, Senior Assistant
Director, Office of Lawyers Professional Responsibility,
Saint Paul, Minnesota, for petitioner.
Randall D. B. Tigue, Fridley, Minnesota, pro se.
referee's findings that respondent Randall D. B. Tigue
misappropriated client funds are not clearly erroneous.
Based on the circumstances of this case, the appropriate
discipline for an attorney who misappropriated client funds
is an indefinite suspension with the right to petition for
reinstatement after 2 years and a permanent prohibition on
being an authorized signer on a client trust account.
Director of the Office of Lawyers Professional Responsibility
(Director) filed a petition for disciplinary action against
respondent Randall D. B. Tigue. The Director alleged that
Tigue negligently and intentionally misappropriated client
funds. We appointed a referee, who concluded that Tigue
committed the alleged misconduct and recommended an
indefinite suspension of at least 2 years. Tigue disputes the
referee's findings of misconduct and recommended
discipline. The Director disputes the referee's
recommended discipline, and requests disbarment. We conclude
that the referee's findings that Tigue negligently and
intentionally misappropriated client funds are not clearly
erroneous. We further conclude that, based on the specific
facts of this case, the appropriate discipline for
Tigue's misconduct is an indefinite suspension with the
right to petition for reinstatement after 2 years and a
permanent prohibition on being an authorized signatory on a
client trust account.
was admitted to practice law in the State of Minnesota on
October 5, 1973.We publicly
reprimanded Tigue in 2007 for allowing his trust account to
become overdrawn, failing to promptly cure the overdraft, and
failing to maintain the required trust-account books and
records. In re Tigue, No. A07-1936, Order at 1-2
(Minn. filed Oct. 25, 2007). In 2014, we suspended Tigue for
a minimum of 30 days for negligently misappropriating client
funds and failing to maintain and retain the required trust
account books and records. In re Tigue, 843 N.W.2d
583, 584-85 (Minn. 2014). We conditionally reinstated Tigue
on April 28, 2014, and placed him on probation. In re
Tigue, 845 N.W.2d 761, 762 (Minn. 2014) (order). Later
that year, Tigue was admonished for failing to withdraw from
representation or otherwise address a conflict of interest.
We revoked Tigue's reinstatement in April 2015 for
failing to file proof that he successfully passed the
professional responsibility portion of the state bar
examination by the deadline we established in reinstating
Tigue. In re Tigue, No. A13-0519, Order at 2-3
(Minn. filed Apr. 15, 2015).
on May 11, 2015, we reinstated Tigue and placed him on
probation until April 28, 2016, subject to the same
conditions as were imposed in our April 2014 order. See
In re Tigue, 863 N.W.2d 82, 82-83 (Minn. 2015) (order).
The conditions of Tigue's probation included that he
"shall abide by the Minnesota Rules of Professional
Conduct"; "shall maintain law office and trust
account books and records in compliance with Minn. R. Prof.
Conduct 1.15 and Appendix 1"; and shall make his trust
account books and records available to the Director "at
such intervals as the Director deems necessary to determine
compliance." Tigue, 845 N.W.2d at 762.
his reinstatement, Tigue sent his trust-account books and
records to the Director on a monthly basis. In September
2015, the Director instructed Tigue to begin quarterly
reporting, and asked him to send his records for October,
November, and December 2015 in January 2016. When Tigue
provided these trust-account books and records, the Director
noted that several shortages had occurred in client trust
accounts during that time. The Director issued a notice of
investigation and audited Tigue's trust account, which
led to this petition for disciplinary action.
Director alleged, and the record demonstrates, that on six
occasions between October 2014 and February 2016, Tigue
issued payments from his trust account that caused shortages
in client trust accounts. The balance of Tigue's trust account
was continuously short of the amount necessary to cover
aggregate client balances during the periods from October 10
to November 18, 2014, and October 28, 2015 to January 19,
2016. The overall shortages ranged in amount from $43.55 to
$650. Tigue made payments into his trust account to cure the
shortages, and as a result, none of the clients suffered any
permanent financial loss during those periods.
admitted that he caused these shortages by issuing checks
without sufficient client funds in the trust account to cover
them. He testified that, before issuing a check, he
determined the balance of funds in a client trust account by
comparing the balance for the previous month's
reconciliation with the carbon copies of checks that he had
issued, rather than referring to an updated version of the
client subsidiary ledger. Tigue admitted that he did not
reconcile his trust-account books and records for the month
of November 2015 until January 2016, despite knowing that he
was required to complete monthly reconciliations.
Director further alleged that Tigue intentionally
misappropriated funds from R.D. R.D. retained Tigue on
October 14, 2015, to pursue a matter in federal court. R.D.
signed a retainer agreement, which provided for "an
advance retainer of $2, 000.00, $400 of which will be an
advance payment of the U.S. District Court filing fee."
The agreement stated that Tigue would be entitled to
"$250 per hour for attorney services" and that,
when the retainer funds were exhausted, R.D. would "be
billed on a monthly basis."
paid Tigue the $2, 000 advance retainer in mid-October. Over
the next 6 weeks, Tigue disbursed the entire $2, 000 to
himself. He drafted a complaint and sent it to R.D., but
Tigue did not file a complaint in federal court. R.D.
testified that he terminated the representation in December
2015. Tigue testified that he was entitled to retain the $400
filing fee as quantum meruit compensation for the
services he rendered to R.D. before R.D. terminated the
August 2016, Tigue sent R.D. a check to refund the $400
filing fee. That check was returned for insufficient funds,
costing R.D. a $12 fee. Shortly after the hearing before the
referee in September 2016, Tigue successfully repaid the $400
with a money order.
hearing, the referee found that Tigue negligently
misappropriated client funds and failed to promptly cure an
overdraft in his trust account, in violation of Minn. R.
Prof. Conduct 1.15(a), 3.4(c), and 8.4(d), and the probation
conditions imposed in our April 28, 2014 order for
reinstatement. The referee also
found that Tigue intentionally misappropriated a $400 filing
fee from R.D., in violation of Minn. R. Prof. Conduct
1.15(c)(4), 1.16(d), 8.4(c), and 8.4(d), and our April 28,
2014 order. Finding several aggravating
factors and few mitigating factors, the referee recommended
that Tigue be suspended indefinitely with the right to apply
for reinstatement after 2 years.
as in this case, "a party orders a transcript of the
disciplinary hearing, the referee's findings of fact and
conclusions of law are not conclusive." In re
Ulanowski, 800 N.W.2d 785, 793 (Minn. 2011). We do,
however, give " 'great deference to a referee's
findings and will not reverse those findings unless they are
clearly erroneous.' " In re Albrecht, 779
N.W.2d 530, 535 (Minn. 2010) (quoting In re
Wentzell, 656 N.W.2d 402, 406 (Minn. 2003)). The
referee's findings are clearly erroneous if they are
"without evidentiary support in the record." In
re Jones, 834 N.W.2d 671, 677 (Minn. 2013).
challenges the referee's conclusions that he negligently
misappropriated client funds. He argues that allowing
shortages in his trust account was not misconduct because the
shortages were caused by mathematical or clerical errors.
Tigue contends that he found and corrected his errors by
keeping the trust-account records required by the rules of
professional conduct and reconciling his accounts as required
by those rules.
of client funds occurs when " 'funds belonging to a
client are not deposited in a trust account and are used for
any purpose other than that specified by the client.'
" In re Lundeen, 811 N.W.2d 602, 608 (Minn.
2012) (quoting In re Westby, 639 N.W.2d 358, 370
(Minn. 2002)). In this case, Tigue issued checks from his
trust account on behalf of a particular client when he did
not maintain sufficient amounts from that client in his trust
account to cover those disbursements. As a result, funds
belonging to other clients were used to cover these checks.
Although these shortages were typically small and ...