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In re Petition for Disciplinary Action against Capistrant

Supreme Court of Minnesota

January 10, 2018

In re Petition for Disciplinary Action against Joseph Michael Capistrant, a Minnesota Attorney, Registration No. 0187112.

         Original Jurisdiction Office of Appellate Courts

          Susan M. Humiston, Director, Amy Michelle Mahowald, Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

          Joseph Michael Capistrant, Plymouth, Minnesota, pro se.

         SYLLABUS

         Disbarment is the appropriate discipline for an attorney who misappropriated client funds, neglected a client, and failed to cooperate with the disciplinary process.

          OPINION

          PER CURIAM.

         The only issue before us is the appropriate discipline to impose on Joseph Michael Capistrant. In 2017, the Director filed a petition for disciplinary action, which alleged that Capistrant misappropriated client funds, neglected a client, and failed to cooperate with the Director's investigation. Capistrant did not respond to the petition, so we deemed the allegations admitted and allowed the parties to file memoranda on the appropriate discipline. Capistrant has not filed a memorandum or otherwise appeared in this case. The Director requests disbarment. We agree that disbarment is the appropriate sanction.

         FACTS

         Capistrant was admitted to practice law in Minnesota in 1987. We indefinitely suspended him in 2015, with no right to petition for reinstatement for 6 months, for refusing to promptly return a client file, not informing a client that his Wisconsin law license had been suspended, neglecting two lawsuits in Wisconsin, and failing to cooperate with the disciplinary investigation. In re Capistrant, 863 N.W.2d 398, 398 (Minn. 2015) (order). Capistrant has not petitioned for reinstatement and therefore remains suspended.

         Capistrant's misconduct in this case, which largely predates his 2015 suspension, relates to a single client. The client sought legal services from Capistrant to handle his son's probate action and revise a trust that named his deceased son as a beneficiary. Capistrant met with the client only twice. At their second meeting, Capistrant presented the client with an invoice in the amount of $2, 643. The invoice itemized $547 as "advances" for future filing fees and related costs for the probate action. The client paid the invoice in full.

         Shortly thereafter, Capistrant abandoned the client's case altogether. He never deposited the $547 into trust, stopped communicating with the client, and did not file the probate action. Months later, the client finally received his file back from Capistrant. Although Capistrant had agreed to refund the $547, he never did so. The client subsequently filed his son's probate action on his own, proceeding pro se, and again incurred the filing fees that he had previously paid to Capistrant.

         In late 2015, the Director sent three notices of investigation to Capistrant, none of which he answered. In 2017, the Director personally served Capistrant with a petition for disciplinary action alleging: (1) misappropriation of client funds; (2) client neglect, including failure to communicate with the client and to diligently pursue the client's case; and (3) noncooperation with the Director's investigation. Because Capistrant did not answer the petition, we deemed the allegations admitted under Rule 13(b), Rules on Lawyers Professional Responsibility (RLPR). In re Capistrant, A17-0429, Order at 1-2 (Minn.).

         Aside from one e-mail exchange with the Director suggesting that he was entitled to "mitigation, " which Capistrant sent nearly 16 months after the Director first attempted to contact him, Capistrant has otherwise failed to cooperate with the disciplinary process. He has not ...


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