In re Petition for Disciplinary Action against Jeffrey D. Upin, a Minnesota Attorney, Registration No. 0152924.
R. Stras Associate Justice
Director of the Office of Lawyers Professional Responsibility
has filed a petition for disciplinary action alleging that
respondent Jeffrey D. Upin has committed professional
misconduct warranting public discipline by failing to
safeguard and misappropriating client funds. See
Minn. R. Prof. Conduct 1.15(a), 8.4(c).
parties have filed a stipulation for discipline. In it,
respondent waives his procedural rights under Rule 14, Rules
on Lawyers Professional Responsibility (RLPR); waives his
right to answer; and unconditionally admits the allegations
in the petition. The parties jointly recommend that the
appropriate discipline is a 1-year suspension, effective 14
days from the date of this order, with no right to petition
for reinstatement for at least 8 months.
consider four factors when determining the appropriate
discipline: 1) the nature of the misconduct, 2) the
cumulative weight of the violations of the rules of
professional conduct, 3) the harm to the public, and 4) the
harm to the legal profession." In re Fair
bairn, 802 N.W.2d 734, 742 (Minn. 2011) (quoting In
re Albrecht, 779 N.W.2d 530, 540 (Minn. 2010)) (internal
quotation marks omitted). ''We also weigh 'both
the aggravating and the mitigating circumstances of the
particular case' and examine 'similar cases in an
effort to impose consistent discipline.' "
Id. (quoting Albrecht, 779 N.W.2d at 540).
misconduct is extremely serious. "Misappropriation of
client funds constitutes serious misconduct that generally
warrants disbarment." In re Rooney, 709 N.W.2d
263, 268 (Minn. 2006). But "[w]e have not always
disbarred attorneys who have misappropriated client
funds." Id. "In cases where this court has
not imposed disbarment for extensive misappropriation of
client funds, substantial mitigating circumstances were
present." In re Weems, 540 N.W.2d 305, 308
(Minn. 1995). ''However, even in such cases, severe
sanctions, typically lengthy suspensions, generally have been
imposed." Rooney, 709 N.W.2d at 268.
Director acknowledges that "misappropriation of client
funds warrants disbarment absent substantial mitigating
factors." She maintains, however, that four factors
justify a sanction other than disbarment: (1)
respondent's conduct was a single isolated incident
reflecting a brief lapse of judgment; (2) no clients suffered
direct financial loss; (3) respondent is truly remorseful;
and (4) respondent was not motivated by personal benefit or
gain. In light of these factors, the Director asserts that a
1-year suspension "is sufficient to protect the public
and the judicial system while still serving as a deterrent of
of these factors, however, are actually mitigation. Some,
such as the lack of harm to clients and the isolated nature
of the misconduct, are a part of the initial analysis of the
appropriate discipline. See In re Bonner, 896 N.W.2d
98, 110 (Minn. 2017) (indicating that a lack of harm to
clients goes to the harm caused to the public and is not a
mitigating factor); cf. In re Fru, 829 N.W.2d 379,
390 n.7 (Minn. 2013) (stating that "we generally take
the fact that an attorney has committed multiple acts of
misconduct into account when considering the cumulative
weight of an attorney's disciplinary violations"
rather than as a separate aggravating factor). Nevertheless,
we agree that under the circumstances of this case,
disbarment is not required.
the nature of the misconduct, respondent has admitted to
misappropriating $40, 000 in client funds in two
transactions, 5 days apart, under circumstances that suggest
he made a single decision to use client funds to allow his
employer to meet its payroll obligations. Respondent, who was
the chief operating officer at his law firm and was
responsible for overseeing payroll, had no ownership interest
in the firm. Respondent restored the misappropriated funds
within approximately 1 month. Still, respondent's
misconduct was serious in nature.
Director has noted, in determining the cumulative weight of
the violations, "we distinguish 'a brief lapse in
judgment' or 'a single, isolated incident' of
misappropriation from multiple instances of misappropriation
occurring over a substantial amount of time or involving
significant amounts of money." Fairbairn, 802
N.W.2d at 743 (quoting In re Wentzel, 711 N.W.2d
516, 521 (Minn. 2006)). Respondent's misconduct in this
case, despite involving two acts of misappropriation
separated by five days, was isolated.
the misappropriation did not harm any clients, which is an
important consideration in determining the appropriate
discipline. See, e.g., Rooney, 709 N.W.2d at 269-70.
Nevertheless, we acknowledge that "misappropriation of
client funds by its nature harms the public at large and the
legal profession, because it betrays the trust the client
places in an attorney." In re Tigue, 900 N.W.2d
424, 432 (Minn. 2017).
the other considerations cited by the Director in support of
the stipulation, remorse is a proper basis for mitigation.
Fairbairn, 802 N.W.2d at 745-46; Roomy, 709
N.W.2d at 271. And we have sometimes identified a lack of
selfish motive as a mitigating factor as well. See
Rooney, 709 N.W.2d at 272 (citing ABA Standards for
Imposing Lawyer Sanctions § 9.32 (1991) (listing the
lack of a dishonest or selfish motive as a possible
mitigating factor)). We note, however, that even if
respondent lacked an obvious selfish motive in
misappropriating the funds, respondent benefitted, at least
in part and indirectly, from his misconduct: the
misappropriation presumably allowed him, as well as others,
to receive their normal payroll checks.
retain the ultimate responsibility for determining the
appropriate discipline. In re Eskola, 891 N.W.2d
294, 298 (Minn. 2017). The purpose of discipline for
professional misconduct is not to punish the attorney but to
protect the public and the judicial system and to deter
future professional misconduct. In re Plummer, 725
N.W.2d 96, 98 (Minn. 2006). Although we agree with the
Director that the facts of this case do not require
disbarment, we believe the recommended discipline stipulated
to by the parties is inadequate to protect the public and the
judicial system and to deter future misconduct. Instead, we
conclude that the appropriate disposition is an 18-month
suspension, followed by 2 years of probation. See, e.g.,
Fairbairn, 802 N.W.2d at 743-48 (imposing an 18-month
suspension, followed by 3 years of probation and a permanent
prohibition on being an authorized signatory on client trust
account, for six acts of intentional misappropriation
totaling $144, 000 and two acts of unintentional
misappropriation over 13 months, when substantial mitigating
factors were present).
upon all the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
Respondent Jeffrey D. Upin is suspended from the practice of
law, effective 14 days from the date of the filing of this
order, with no right to petition for reinstatement for ...