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In re Petition for Disciplinary Action Against Mollin

Supreme Court of Minnesota

January 24, 2018

In re Petition for Disciplinary Action against Richard C. Mollin, Jr., a Minnesota Attorney, Registration No. 0074342.

          ORDER

          David R. Stras Associate Justice.

         The Director of the Office of Lawyers Professional Responsibility filed an amended petition for disciplinary action alleging that respondent Richard C. Mollin, Jr. had committed professional misconduct warranting public discipline. The amended petition alleged that while prosecuting two felony controlled-substance-crime cases, Mollin made knowingly false statements in discovery disclosures and responses and failed to disclose and/or timely disclose exculpatory evidence to the defense, which unduly delayed the criminal proceedings in both cases and resulted in the exclusion of testimony from a confidential reliable informant in one of the cases. See Minn. R. Prof. Conduct 1.1, 1.3, 3.4(d), 3.8(d), 4.1, 8.4(c), and 8.4(d).

         During the second day of the hearing before the referee, the parties informed the referee that they had reached a stipulation for discipline. An oral record of this stipulation was made before the referee. The Director stated that "[t]he parties ha[d] agreed that a 60-day period of suspension [was] appropriate, " that "the effective date of that suspension w[ould] not occur until 14 days after the Supreme Court issues the disciplinary order, " that "Mr. Mollin w[ould] admit the facts contained in the Director's amended petition and withdraw his answer as part of the stipulation, " and that "a Rule 18 reinstatement hearing w[ould] not be required."

         The referee stated that "we would put this agreement and any admitted facts and withdrawal of an answer, or so forth, on the record today, subject to the written signing in the future, but with the understanding that it's enforceable whether the written document is signed or not. Today controls, in other words." The Director responded that "Mr. Mollin and his counsel, as part of their stipulation, w[ould] have to say 'I withdraw my answer, and I admit to paragraphs'-number through number-'of the Director's petition.' "

         Mollin's counsel agreed with how the Director had characterized the agreement. He further stated that "it is the understanding, as I've explained it to Mr. Mollin, that he would be withdrawing his answer. He would be agreeing to the facts alleged in the petition."

         The referee asked Mollin directly, "Mr. Mollin, is that generally your understanding and what you intend to do?" Mollin replied, "It is, Your Honor."

         The referee then asked the parties "to read the stipulation into the record exactly." Counsel for the Director recited the stipulation, including that "Mr. Mollin w[ould] withdraw his answer . . . and he w[ould] admit to the facts contained in the Director's amended petition, paragraphs 1 through 65." When the Director finished reciting the terms, Mollin's counsel indicated that he had "heard the full stipulation" that was proposed and that it was "acceptable to [his] client."

         Thereafter, the Director prepared a written stipulation for discipline and sent it to Mollin's counsel. Mollin refused to sign the stipulation.

         This matter is now before the court on the Director's motion to impose discipline. The Director argues that the parties entered into a binding oral agreement on November 16, 2017, as reflected in the record before the referee, and asks the court to enforce the parties' agreement. Mollin opposes the Director's motion and asks the court to refer the motion to the referee.

         We addressed the enforceability of an oral stipulation for discipline in In re Riehm, 883 N.W.2d 223, 230-31 (Minn. 2016). Shortly after the evidentiary hearing began, the parties told the referee that they had orally agreed to a stipulation for discipline. Id. at 228. On the record before the referee, the parties stated the terms of their agreement, including that "Riehm would 'admit[] without equivocation the allegations' " in the relevant petitions. Id. Following the hearing, the Director drafted a stipulation for discipline, but Riehm refused to sign it. See id. at 229.

         To determine if the parties had entered into a binding oral stipulation, we looked to "elementary principles of contract law, " explaining that "[a] contract is formed when two or more parties exchange bargained-for promises, manifest mutual assent to the exchange, and support their promises with consideration." Id. at 230. "[N]either a signature nor a writing is required to make a contract binding." Id. We concluded that "the record show[ed] that the terms of the oral stipulation were specific and that the parties proceeded in reliance upon these terms." Id. We accordingly held that "the parties entered into a binding oral stipulation before the referee" and that "Riehm [was] not entitled to withdraw his admissions at this stage of the proceedings." Id. at 231. We suspended Riehm based on the oral stipulation for discipline, even in the absence of a written agreement. Id. at 233-35.

         We conclude that the parties entered into a binding oral stipulation for discipline. The record reflects that the Director and Mollin agreed to an oral stipulation with terms that are similar to the terms agreed to in Riehm, that the parties proceeded in reliance upon those terms, and that there was consideration. See id. at 228, 230-31. Mollin both consulted with his attorney in reaching the stipulation and expressly confirmed his understanding of its terms at the hearing before the referee. See id. at 230. Because Mollin, as part of the oral stipulation, withdrew his previously filed answer and admitted the allegations of the amended petition, Mollin "is bound by his admissions." Id. at 231. Based on Mollin's admissions, we may impose discipline without further proceedings. See Rule 10(b), Rules on Lawyers Professional Responsibility (RLPR).

         Mollin contends that we should refer the Director's motion to the referee to consider whether he may withdraw from the stipulation for discipline. We disagree. Based on the undisputed facts of this case, Mollin has no right to have the referee consider the Director's motion, and Mollin has failed to identify any issue that would need to be resolved by the referee.

         Based on the stipulation, the parties jointly recommended that the appropriate discipline is a 60-day suspension. This court has independently reviewed the file ...


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