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In re Petition for Disciplinary Action Sea

Supreme Court of Minnesota

August 7, 2019

In re Petition for Disciplinary Action Bobby Gordon Onyemeh Sea, a Minnesota Attorney, Registration No. 0282807

          Office of Appellate Courts Original Jurisdiction

          Susan M. Humiston, Director, Jennifer S. Bovitz, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

          Bobby Gordon Onyemeh Sea, Saint Paul, Minnesota, pro se.

         SYLLABUS

         1. The record supports the referee's findings of fact and conclusions of law that respondent attorney violated the Minnesota Rules of Professional Conduct by knowingly making false statements to a tribunal; making false statements to others; engaging in dishonesty, fraud, deceit or misrepresentation; and engaging in conduct that is prejudicial to the administration of justice.

         2. Based on the specific facts and circumstances of this case, the appropriate discipline is an indefinite suspension from the practice of law with no right to petition for reinstatement for 120 days.

         Suspended.

          OPINION

          PER CURIAM.

         The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent, Bobby Gordon Onyemeh Sea, alleging violations of Minn. R. Prof. Conduct 3.3(a)(1), for knowingly making false statements to a tribunal; Rule 4.1, for making false statements to others; and Rule 8.4(c)-(d), for engaging in dishonesty, fraud, deceit or misrepresentation, and conduct prejudicial to the administration of justice. These allegations stemmed from a series of false statements and material omissions that Sea made to the district court after he failed to appear for a scheduled hearing.

         Following an evidentiary hearing, a referee found that Sea knowingly made false statements to the court and opposing counsel, delayed criminal proceedings, and caused harm to the public and legal profession. Due to his misconduct and the existence of multiple aggravating factors, the referee recommended that Sea be indefinitely suspended from the practice of law and ineligible to petition for reinstatement for a period of 120 days. We conclude that the referee did not clearly err by finding that Sea violated Minn. R. Prof. Conduct 3.3(a)(1), 4.1, 8.4(c)-(d) and that the referee's recommended discipline is the appropriate sanction here.

         FACTS

         The referee made the following findings. Sea was admitted to practice law in Minnesota in May 1998. He is an experienced attorney, especially in criminal trials, as he has appeared in between 35 and 40 trials in his career. In 2013, we indefinitely suspended him from the practice of law, with no right to petition for reinstatement for a minimum of 20 months. In re Sea (Sea I), 832 N.W.2d 851, 852 (Minn. 2013) (order). He was suspended due to his federal conviction for filing materially false federal income-tax returns, in violation of Minn. R. Prof. Conduct 8.4(b) ("commit[ing] a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respect"), and 8.4(c) ("engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation"). See 832 N.W.2d at 851. In December 2015, we reinstated Sea and placed him on supervised probation for 2 years. In re Sea (Sea II), 872 N.W.2d 249, 249- 50 (Minn. 2015) (order).

         Sea represented F.B., a defendant in a first-degree criminal sexual conduct case. On the morning of April 18, 2017, the first day of trial, the parties appeared before the Wright County District Court to address pretrial issues, including motions to quash subpoenas that Sea had served on two witnesses. The district court recessed for lunch at 11:30 a.m., instructed the attorneys to return at 1:20 p.m., and ordered the witnesses to appear as well in order to resolve the motions to quash. The court and counsel knew that the court was available that day only until 2:25 p.m.

         At some point during the break, the Wright County prosecutor received a call from Sea advising him that Sea would be a half-hour late. He said that he was on his way back from Saint Paul because he had to pick up his spare pair of eyeglasses after his original pair broke. When Sea did not appear, the Wright County clerk called him at 1:46 p.m. At that time, Sea told the clerk that he would be another half-hour late. The clerk called Sea at 2:01 p.m. and again Sea said that he would be another half hour. He was called a third time at 2:22 p.m., and Sea told the clerk he was in Maple Grove. The district court began the hearing at 2:24 p.m. without Sea. When Sea finally arrived at Wright County District Court at 2:41 p.m., the proceedings had ended for the day.

         The referee found that the criminal trial was delayed due to Sea's non-appearance because the district court was unable to rule on pretrial motions and two defense witnesses under subpoena missed work and were unable to testify. One of the witnesses was scheduled to leave the country the next day.

         Additionally, Sea's client, F.B., was unrepresented during the proceedings and unaware of his attorney's whereabouts. The district court judge testified at an evidentiary hearing held by the referee that she was concerned for the defendant and was unable to communicate with him because his attorney was not present. The defendant had neither the assistance of counsel nor the ability to consult with counsel until Sea finally arrived.

         At the opening of court proceedings the next day, the district court conducted a private, sealed, transcribed inquiry with Sea about his excuse, if any, for being late. Sea stated that his absence was due to his eyeglasses.

         The court resumed public proceedings and asked Sea to explain where he was the afternoon before. Sea responded:

Once again, good morning, Your Honor. Unfortunately yesterday I broke my glasses. I have bifocal glasses, and I cannot see at all without them. And unfortunately the one I have is in Saint Paul. And I had to-I had to run down there to get it-get my spare one. And I thought-I'm showing you the one I wore yesterday before (shows glasses) it's broken. It's bifocal. I cannot see at all without them. So I had to run down to Saint Paul. I don't have the court's phone numbers, so I called [M.E., the prosecutor]. And I told him, you know, that I will be back in Saint Paul after picking up my- my spare glasses. I thought I could make it back before 1:30, or maybe a few minutes late, you know. Unfortunately, the traffic was bad and I was not able to. I could not be able to see anything, Your Honor, yesterday at all without the glasses. And I thought to be able to read anything or see anyone, I must have this. Driving down with this, Your Honor (showing glasses) I have this-like this in my eye while I'm driving. And I could not operate my vehicle even safely on my way down there. Upon my return, Your Honor, I apologized to [M.M., counsel for defense witness scheduled to potentially testify the afternoon of April 18], you know, and the-and his client [potential defense witness]. I also apologized to [M.E.]. Now right now, Your Honor, I apologize to the court, you know. I am very sorry, you know. It wasn't-I mean I didn't plan on not being here. I was just hoping that I can rush down here and pick it up and come-and come right back maybe a few minutes late. But unfortunately the traffic was very bad and I wasn't able to get here. When I-when I got here though, [M.M.] and his clients were still here. So we were able to-to discuss more in details about the testimony of his witnesses. Once again, Your Honor, I sincerely apologize.

         When the court pressed Sea again a few days later, after he was once again 30 minutes late for the proceedings, for an explanation for his absence on April 18, Sea again only referenced his broken glasses and traffic as reasons for causing his delay.

         The statements that Sea made to the district court and the prosecutor regarding the reason for his lateness were false. In reality, Sea was driving to and from Dakota County District Court to represent another client, A.H., in a bail hearing on April 18. Sea filed a certificate of representation in Dakota County on April 17, 2017, and was aware that the Dakota County proceeding for which he had filed a Notice of Appearance was scheduled for 11:00 a.m. on April 18, 2017. Sea told the Dakota County clerk that he would arrive by 12:30 p.m. for the hearing. In his testimony at the evidentiary hearing, Sea admitted that he did not inform the Wright County District Court about the bail hearing in Dakota County because he believed that he "would have sufficient time to travel from Wright County to Dakota County" during the lunch recess of the Wright County proceedings. He testified that his glasses broke and he had to go to Saint Paul first to pick up his spare glasses before going to Dakota County. When Sea arrived in Dakota County the court had to call an interpreter and the proceedings were delayed while waiting for the interpreter to arrive. Sea testified that once the bail hearing began it "took maybe five to ten minutes at the most."

         Sea never mentioned the bail hearing to either the Wright County District Court or opposing counsel during any of the many times he was asked about his whereabouts on the afternoon of April 18. At the evidentiary hearing, Sea admitted that it was wrong not to tell the Wright County District Court about his appearance in Dakota County and apologized for that omission. He maintained that he never intended to deceive the court and continued to argue that his statements regarding his eyeglasses were true. The referee rejected this testimony and found that Sea "[did] not recognize the wrongful nature of his misconduct, refused to acknowledge committing any wrongdoing and failed to exhibit genuine remorse for his misconduct" because Sea "continued to deny his statements were false."

         After learning that Sea had actually been driving to and from Dakota County representing another client and Sea was still untruthful about his whereabouts, the district court imposed sanctions. It ordered Sea to reimburse Ridgeview Medical Center (where the two witnesses under subpoena were employed) $1, 712.94. Sea paid the sanctions.

         In the proceedings before the referee, Sea offered an explanation for his conduct. He testified that he showed his broken glasses to the prosecutor and the attorney for one of the witnesses and apologized for being late when he finally arrived at the Wright County District Court. Both the prosecutor and the attorney testified similarly. The district court judge also testified that Sea showed her a pair of glasses on the morning of April 19, but she said that she could not tell whether or not they were broken.

         After holding an evidentiary hearing, the referee found that Sea repeatedly made false statements, and failed to correct those false statements, to the district court and opposing counsel by stating that his absence was due to broken eyeglasses and traffic, rather than disclosing that he went to Dakota County. This misconduct, the referee found, violated Minn. R. Prof. Conduct 3.3(a)(1), 4.1, 8.4(c)-(d). Rather than focusing on the truthfulness of Sea's broken glasses, the referee stated that the main issue was what he did not tell the district court.[1] The referee also concluded that Sea delayed the criminal trial and caused harm to the public and legal profession by failing to appear for the pretrial hearing, in violation of Minn. R. Prof. Conduct 8.4(d).

         The referee concluded that Sea's substantial experience in the practice of law in general, and criminal defense in particular, his prior disciplinary history, and his probationary status at the time of the incident were aggravating factors. He also found that Sea's conduct was intentional and the product of a selfish motive, and that Sea failed to acknowledge the wrongful nature of his dishonest conduct and exhibit genuine remorse, thus aggravating the violation further. The referee recommended that Sea be indefinitely suspended from the practice of law and ineligible to apply for reinstatement for a period of 120 days.

         ANALYSIS

         I.

         The referee's findings and conclusions of law are not binding on our court because Sea ordered a transcript of the disciplinary hearing. See In re Albrecht, 779 N.W.2d 530, 535 (Minn. 2010). But we give" 'great deference to a referee's findings and will not reverse those findings unless they are clearly erroneous, especially in cases where the referee's findings rest on disputed testimony or in part on respondent's credibility, demeanor, or sincerity.'" Id. (quoting In re Wentzell, 656 N.W.2d 402, 405 (Minn. 2003)). Findings "are clearly erroneous only 'when they leave us with the definite and firm conviction that a mistake has been made'" by the Director or referee. In re MacDonald, 906 N.W.2d 238, 244 (Minn. 2018) (quoting In re Glasser, 831 N.W.2d 644, 646 (Minn. 2013)).

         Sea argues that the statements he made regarding his eyeglasses and the traffic delays were not false and therefore he did not violate the Minnesota Rules of Professional Conduct.[2] We disagree. Sea contends that, because the referee found Sea's statements about his broken eyeglasses and having to go to his office in Saint Paul to pick up a spare pair were false, the referee clearly erred. The referee rejected Sea's testimony from the evidentiary hearing that those were true statements. The referee has the power to do so. See In re Farley, 771 N.W.2d 857, 863 (Minn. 2009) (holding that a referee may reject testimony). Sea maintains that this finding is clearly erroneous because several witnesses testified that they saw his broken glasses after he ...


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