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In re Petition for Disciplinary Action against Bradley C. Rhodes: ETHICS - disbarment for neglect, non-communication, trust account violations; more

1
STATE OF MINNESOTA
IN SUPREME COURT
A04-2252
Original Jurisdiction
Per Curiam
Took no part, Anderson, Russell A., C.J.
In re Petition for Disciplinary Action against
Bradley C. Rhodes, a Minnesota Attorney,
Registration No. 155913
Filed: November 1, 2007
Office of Appellate Courts
SYLLABUS
Disbarment is warranted for a lawyer who repeatedly neglected client matters,
failed to communicate with clients, failed to return client files and property, failed to
account for client fee payments, violated the conditions of a disciplinary probation, failed
to cooperate with the disciplinary process, and had a history of professional discipline for
similar misconduct.
Heard, considered, and decided by the court en banc.
OPINION
PER CURIAM.
This lawyer discipline action arose out of a petition served and filed by the
Director of the Office of Lawyers Professional Responsibility alleging that Bradley C.
Rhodes violated the Minnesota Rules of Professional Conduct by: failing to abide by
2
client decisions concerning the objectives of the representation (Rule 1.2); failing to act
diligently in client matters (Rule 1.3); failing to reasonably communicate with clients
(Rule 1.4); acquiring an interest in client property without the clients informed consent
(Rule 1.8(a)); failing to hold client funds in trust (Rule 1.15(a)); failing to return client
property and unearned fee payments (Rule 1.15(c)); failing to protect clients interests
upon termination of the representation (Rule 1.16(d)); and failing to respond to the
disciplinary authority (Rule 8.1(b)). The petition also alleges that Rhodess conduct
violated Rule 25 of the Minnesota Rules on Lawyers Professional Responsibility and a
previous order by this court placing Rhodes on probation subject to specific conditions.
After Rhodes failed to respond to the petition, we deemed the allegations in the petition
admitted and set the matter for oral argument to determine the appropriate discipline.
The Director recommends that we disbar Rhodes. We conclude that the appropriate
discipline under the facts and circumstances of this case is disbarment.
Rhodes was admitted to the practice of law in Minnesota in May 1984. We
disciplined Rhodes for professional misconduct on three previous occasions. In February
1992, we admonished Rhodes for failing to refund unearned client fees. We admonished
Rhodes again in July 1996 for failing to serve an answer to a summons and complaint
until after a default hearing had occurred in the action. Finally, on May 18, 2005, we
admonished Rhodes and placed him on supervised probation for 2 years for failing to file
two briefs on behalf of a client and for failing to cooperate with the investigation into that
misconduct. See In re Rhodes, 696 N.W.2d 328, 329 (Minn. 2005).
3
The current disciplinary petition is based on Rhodess failure to comply with the
terms of the probation previously ordered by this court, new acts of professional
misconduct in seven client matters, and Rhodess failure to cooperate with the
investigation into this new professional misconduct.
A. Violation of Probation Conditions
As a condition of the probation we imposed in May 2005, Rhodes was required to,
among other things, provide a list of lawyers who agreed to serve as his probation
supervisor, submit specific information about all his active cases by the first of each
month, provide a written plan of his office procedures to ensure compliance with the
probation terms, and cooperate with the Directors efforts to monitor Rhodess
compliance with the probation. Rhodes failed to submit the list of potential supervisors
and the office procedures within the specified timeframe, and repeatedly failed to submit
a monthly list of his active cases in a timely fashion. Rhodes also failed, without
explanation, to attend two meetings with the Director to discuss Rhodess compliance
with the probation terms and failed to respond to several communications from his
probation supervisor and the Director.
B. New Professional Misconduct in Client Matters
G.O. and L.O. paid Rhodes ,000 in January 2004 to represent them in a
mechanics lien action. After the initial meeting, Rhodes failed to respond to telephone
calls or letters from G.O. and L.O. When the representation was eventually terminated,
Rhodes failed to return the clients file, which included documents necessary to defend
4
their claim. Rhodes has also failed to account for any legal services provided in this
matter or to refund the ,000 G.O. and L.O. paid him.
V.M. paid Rhodes a 0 retainer to represent her in a probate matter. Rhodes
deposited this money in his personal account rather than in a trust account. Over the next
several months, Rhodes failed to respond to numerous communications from V.M.
Ultimately, Rhodes failed to either provide documentation of any legal work performed
or refund the 0, and failed to return original documents provided by V.M.
W.R. retained Rhodes in January 2005 to defend him against a driving under the
influence (DUI) criminal charge. W.R. and Rhodes agreed to seek modification of an
earlier DUI conviction to avoid the permanent loss of W.R.s drivers license, but Rhodes
failed to pursue that strategy within the required timeframe. Before a hearing in
March 2006, Rhodes told W.R. that he had negotiated a plea agreement that would result
in a conviction for careless driving rather than DUI, and that Rhodes would prepare the
documents necessary to finalize the plea agreement. Rhodes apparently failed to prepare
these documents, and did not return several telephone calls from W.R. inquiring into the
matter. Finally, in September 2006, W.R. fired Rhodes and personally negotiated a new
agreement with the prosecutor.
Rhodes began representing K.M. in a marriage dissolution proceeding in
April 2005. Although the parties to the dissolution reached a settlement a few months
later, Rhodes failed to prepare and distribute the settlement documents as he had agreed
to do. Subsequently, a dispute between K.M. and his former spouse led the district court
to order the proceedings be reopened. K.M. paid Rhodes ,000 to appeal the order
5
reopening the proceedings after Rhodes told him there was a strong chance of success.
Over the next few months, Rhodes took no action on the appeal and failed to return
several telephone calls from K.M. When K.M. confronted Rhodes over this lack of
action, Rhodes stated that he had unilaterally decided not to appeal the matter. Rhodes
has not provided an accounting of any legal work performed for the ,000 payment.
In July 2005, Rhodes received ,000including 0 for a filing fee and 0 as
an advance attorneys fee paymentto represent M.K. in her marriage dissolution
proceeding. Rhodes failed to place any of this money in a trust account. During the
course of the representation, Rhodes failed to return several telephone messages from
M.K. and her family, including calls concerning threats of physical violence made by
M.K.s former spouse against M.K. and her infant daughter. Rhodes has also failed to
account for any legal work performed in this matter. Although Rhodes eventually agreed
to refund the ,000, the check he sent to M.K. was denied for insufficient funds and the
money was never repaid.
In December 2005, P.T. and D.T. paid Rhodes 0 to represent them in a
property dispute. Although Rhodes initially stated that the matter would be resolved by
spring 2006, when P.T. spoke to him a few months later, Rhodes indicated that he had not
yet begun working on the matter because he had been too busy. Over the next few
months, Rhodes failed to respond to several communications from P.T. and D.T. In
July 2006, Rhodes finally agreed to return the 0 payment and documents, including
the original abstract of title and property survey, that he had been given. Neither the
money nor the documents were ever returned.
6
N.F. retained Rhodes to defend her against criminal theft charges related to her
handling of a trust. N.F.s husband, D.F., subsequently retained Rhodes in an unrelated
criminal matter. In January 2006, N.F. and D.F. paid Rhodes 0 toward their legal fees
and gave him six firearms as collateral for the additional fees. N.F. also gave Rhodes a
bag of documents and receipts relating to the trust expenditures as evidence that the
payments were legitimate. Rhodes met with N.F. in August 2006 to discuss her case, but
N.F. was unable to contact Rhodes during the subsequent months. In November 2006,
Rhodes failed to appear at a scheduled court proceeding in N.F.s criminal case. Rhodes
also failed to return the evidence provided by N.F. and the firearms provided as collateral
for legal fees.
C. Noncooperation with the Investigation
Between October 2005 and February 2007, the Director issued 11 notices of
investigations regarding Rhodess failure to follow the conditions of his probation, the
new allegations of professional misconduct outlined above, and a separate complaint
forwarded to the Director by court personnel. During this period, Rhodes failed to
respond to any of the complaints and to several related communications from the district
ethics committee investigator and the Director.
I.
We do not impose disciplinary sanctions to punish a lawyer; rather, we do so to
protect the public, to guard the administration of justice and to deter future misconduct
by both the individual lawyer and by other members of the legal profession. In re
Grzybek, 567 N.W.2d 259, 262 (Minn. 1997) (Grzybek II); see also In re Brooks, 696
7
N.W.2d 84, 8788 (Minn. 2005). When determining the appropriate sanction, we
consider four factors: (1) the nature of the misconduct; (2) the cumulative weight of the
disciplinary violations; (3) the harm to the public; and (4) the harm to the legal
profession. In re Nelson, 733 N.W.2d 458, 463 (Minn. 2007). Discipline is imposed
based on the unique circumstances of each case, but previous cases are used to draw
analogies and to promote consistency in sanctions over time. Id. at 46364; In re Harp,
560 N.W.2d 696, 701 (Minn. 1997).
A. Neglect of Client Matters, Failure to Communicate with Clients,
and Failure to Return Client Property
We have repeatedly warned that [a] continuing pattern of client neglect is serious
misconduct often warranting indefinite suspension by itself, Brooks, 696 N.W.2d at 88,
and that more extreme cases involving client neglect and failure to communicate with
clients may merit disbarment, In re De Rycke, 707 N.W.2d 370, 374 (Minn. 2006). See
also Grzybek II, 567 N.W.2d at 263. We have also stated that the failure to return client
property and files upon the termination of the attorney-client relationship warrants
serious treatment, particularly when this misconduct continued a pattern of conduct
for which we already disciplined [the lawyer] and when this misconduct caused
substantial inconvenience and unnecessary frustration to [the lawyers] clients.
Grzybek II, 567 N.W.2d at 263.
The admitted allegations against Rhodes reveal a pattern of neglecting client
matters and noncommunication with clients that involves seven new client matters and
that closely resembles the misconduct for which we previously disciplined Rhodes.
8
Moreover, the property Rhodes failed to return to his clients included original documents
necessary to G.O. and L.O.s mechanics lien defense, an original abstract of title and
property survey, and evidence regarding N.F.s defense against criminal charges.
Rhodess retention of these documents likely caused a great deal of inconvenience to his
clients. We conclude that this behavior constitutes serious professional misconduct and
warrants severe discipline.
B. Financial Misconduct
The misappropriation of client funds is particularly serious misconduct and usually
warrants disbarment absent clear and convincing evidence of substantial mitigating
factors. De Rycke, 707 N.W.2d at 374 (quoting In re Swerine, 513 N.W.2d 463, 466
(Minn. 1994)). In this case, Rhodes accepted more than ,000 from his clients without
accounting for any legal services provided for these payments. The Director concedes in
his brief that Rhodes has only been found to have failed to account for client funds, not to
have misappropriated those funds. But the Director argues that Rhodess misconduct
should be treated as severely as misappropriation because Rhodess failure to cooperate is
what caused the inability to determine whether Rhodes misappropriated client funds or
only failed to account for the funds and because, from a clients perspective, the two
violations are the same. We agree that Rhodess misconduct in this case, whether
characterized as misappropriation or failure to account, is a serious violation of the rules
of professional conduct and merits severe discipline.
9
C. Violation of the Terms of Disciplinary Probation
Failure to comply with the conditions of probation ordered by this court is an
additional act of professional misconduct. See Grzybek II, 567 N.W.2d at 26465 (failure
to comply with court orders is a serious violation); Minn. R. Prof. Cond. 8.1(b);
R. Lawyer Prof. Resp. 25. Although we occasionally determine that additional or
modified probation is an appropriate sanction for probation violations, we generally
conclude that supervised probation is not appropriate where the attorney consistently
fails to communicate with the Director, In re Danielson, 620 N.W.2d 718, 721 (Minn.
2001); see also In re Anderson, 734 N.W.2d 238 (Minn. 2007). In this case, Rhodess
repeated failure to respond to the Directors inquiries and to participate in the disciplinary
process would render the mere extension or modification of his prior probation
inappropriate. We therefore conclude that Rhodess violation of the conditions of his
prior probation is an independent act of misconduct warranting professional discipline.
D. Noncooperation with the Disciplinary Process
A lawyers failure to cooperate with an investigation into professional misconduct
is serious misconduct that constitutes separate grounds for discipline. De Rycke, 707
N.W.2d at 375; see also Brooks, 696 N.W.2d at 88; Grzybek II, 567 N.W.2d 264.
Noncooperation has been found to warrant indefinite suspension on its own, Brooks, 696
N.W.2d at 88, and to increase the severity of the disciplinary sanction when connected
with other professional misconduct, De Rycke, 707 N.W.2d at 375; see In re Mayrand,
723 N.W.2d 261, 269 (Minn. 2006) (referring to noncooperation as a serious
10
aggravating factor[]). In this case, Rhodes failed to respond to the 11 notices of
investigation and repeated requests for information from the district ethics committee
investigator and the Director. Rhodes has also failed to appear before this court in these
proceedings. We conclude that Rhodess repeated failure to cooperate with the
disciplinary process is a serious aggravating factor in determining the appropriate
discipline.
E. Prior History of Professional Misconduct and Discipline
After a disciplinary proceeding, [this court] expect[s] a renewed commitment to
comprehensive ethical and professional behavior. In re Weems, 540 N.W.2d 305, 309
(Minn. 1995). Accordingly, we consider a lawyers prior discipline and professional
misconduct when determining the appropriate discipline for new misconduct. Brooks,
696 N.W.2d at 88. We generally impose more severe sanctions when the current
misconduct is similar to misconduct for which the attorney has already been disciplined.
Id. The new professional misconduct for which we are disciplining Rhodes includes the
neglect of seven client matters (including repeated failure to submit promised
documents), the failure to account for client fees, and the failure to cooperate with the
disciplinary investigation. Moreover, most of this new misconduct occurred at the same
time as, and in the months immediately following, the previous disciplinary proceedings
against Rhodes for similar violations (failing to submit two briefs and noncooperation
with the disciplinary investigation). Finally, the new misconduct is also similar to the
misconduct for which we admonished Rhodes in 1992 (failing to return unearned fees)
and 1996 (failing to timely serve an answer to a complaint). We conclude that Rhodess
11
disciplinary history is a serious aggravating factor in determining the appropriate
discipline in this case.
II.
In determining the appropriate discipline for professional misconduct, we consider
not just the nature of each individual violation of the rules of professional conduct but
also the cumulative weight of all of the professional misconduct in determining the
appropriate sanction. We have repeatedly held that [t]he cumulative weight and
severity of multiple disciplinary rule violations may compel severe discipline even when
a single act standing alone would not have warranted such discipline. Nelson, 733
N.W.2d at 464 (quoting In re Oberhauser, 679 N.W.2d 153, 160 (Minn. 2004)). In this
case, Rhodess pattern of neglecting client matters, his repeated failure to communicate
with clients, and his financial misconduct involving more than ,000 in clients funds
each warrant severe discipline individually. Rhodess misconduct also includes
violations of the conditions we imposed on his prior disciplinary probation and two
significant aggravating factorshis repeated failure to cooperate with the disciplinary
process and his history of prior misconduct and discipline. Finally, the record does not
contain any suggestion of mitigating factors.
In support of his recommendation that we disbar Rhodes, the Director cites
Grzybek II as an analogous case. In July 1996, we suspended Grzybek for 6 months for
failing to establish the basis for legal fees, to keep his clients informed, to respond to
client communications, to promptly return client property, and to cooperate with the
Directors investigation. In re Grzybek, 552 N.W.2d 215, 21517 (Minn. 1996)
12
(Grzybek I). Approximately 6 months later, the Director filed a new petition alleging that
Grzybek neglected client matters, failed to communicate with clients, misappropriated
0 of client funds, failed to cooperate with the disciplinary process, and disobeyed
court orders. Grzybek II, 567 N.W.2d at 25962. We held that Grzybeks repeated
neglect of client matters, failure to communicate with clients, and failure to cooperate
with the disciplinary processall of which occurred less than a year after he had been
disciplined for similar misconductwere sufficient to merit disbarment. Id. at 26465.
We also noted that Grzybeks misappropriation of 0 in client funds and his
subsequent failure to make any effort to return the money[,] and his repeated failure to
comply with court orders are separate grounds upon which he could be disbarred. Id.
at 265.
But in another analogous case, In re Brooks, we concluded that indefinite
suspension was more appropriate than disbarment. 696 N.W.2d 84 (Minn. 2005).
Brooks neglected client matters, failed to communicate with clients, failed to return client
files and unearned fees, violated trust account rules, converted client money to her own
use, and failed to cooperate with the disciplinary investigation. Id. at 8687. Brooks had
previously been disciplined five times for violating trust account rules, representing both
parties to a dissolution proceeding, failing to adequately communicate with clients, and
failing to provide a complete file to a client. Id. at 87. The record in Brooks suggested
that the death of her father may have caused some of her unprofessional conduct, but we
found it difficult to consider this mitigation because of Brooks failure to provide
sufficient information. Id. at 87-88. Nonetheless, despite recognizing that a continuing
13
pattern of client neglect, trust account violations, and noncooperation with disciplinary
investigations each generally warrant lengthy or indefinite suspensions by themselves, we
determinedbased on the lack of complete information of the surrounding
circumstances, the small amount of the misappropriation (0), and Brooks
abandonment of her legal practicethat an indefinite suspension for a minimum of 2
years was the appropriate sanction. Id. at 8889.
We agree with the Director that the present case is more analogous to Grzybek II
than to Brooks. Although the misconduct in Brooks, like in Grzybek II, was similar to the
present case, the record in Brooks suggested a mitigating factor about which we lacked
complete information. Because of Rhodess complete failure to participate in the
disciplinary process, the record in this case lacks any evidence of mitigating factors.
III.
In summary, Rhodess repeated neglect of client matters and noncommunication
with clients, his financial misconduct involving ,000 in client funds, his failure to obey
the conditions of the prior disciplinary probation, and his repeated failure to cooperate
with the disciplinary process each warrant severe discipline by themselves. When the
weight of these violations are combined and considered in light of his prior professional
discipline for similar misconduct and the complete lack of mitigating facts in the record
of this case, we conclude that the appropriate sanction in this case is disbarment.
Therefore, we hold that the appropriate discipline in this case is disbarment.
14
Accordingly, we order that:
1. Bradley C. Rhodes be disbarred from the practice of law, effective
immediately;
2. Rhodes shall comply with the requirements of Rule 26 of the Minnesota Rules
of Lawyers Professional Responsibility; and
3. Rhodes shall pay to the Director the sum of 0 in costs pursuant to Rule 24
of the Minnesota Rules of Lawyers Professional Responsibility.
So ordered.
ANDERSON, Russell A., C.J., took no part in the consideration or decision of this
matter.
 

 
 
 

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