FILED

FILE 0' December 13. 2019
Omce or
STATE OF MINNESOTA APPEMIECMTS
IN SUPREME COURT

In Re Petition for Disciplinary Action against
KARLOWBA R. ADAMS POWELL, a Minnesota Attorney,
Registration 0. 0327335.

BRIEF OF THE DIRECTOR OF THE
OFFICE OF LAWYERS PROFESSIONAL RESPONSIBILITY

BOBBY JOE CHAMPION SUSAN M. HUMISTON
Attorney No. 0262614 DIRECTOR
Attorney 0. 0254289
1501 Hall Curve North BINH T. TUONG
Minneapolis, MN 55411 . SENIOR ASSISTANT DIRECTOR
(612) 518?8870 Attorney No. 0297434
ATTORNEY FOR RESPONDENT OFFICE OF LAWYERS PROFESSIONAL
RESPONSIBILITY
1500 Landmark Towers

345 St. Peter Street
St. Paul, MN 55102-1218
(651) 296-3952

TABLE OF CONTENTS

P_ag?

Table of Authorities 3
Legal Issues 6
Statement of the Case 7
Statement of Facts 8
Argument 16
I. The Record Fully Supports the Referee?s Findings of Fact and

Conclusions of Law Relating to Respondent?s Misconduct 16

A. Standard of Review 16

B. The Referee Correctly Found that Respondent Made False
Statements to the Tribunal, Others and to the Director in Violation

of Numerous Rules of Professional Conduct 17
1. Respondent Made Numerous False Statements
During the Bump Review Hearing 18

2. Respondent Knowingly Made False Statements
to the Director During the Course of the
Director?s Investigation 23

3. Respondent Knowingly Made False Statements
to the Director During the Course of Respondent? 

Probation and Failed to Fully Cooperate 27

C. The Referee Correctly Found That Respondent Engaged in the
Unauthorized Practice of Law on Numerous Occasions 31
II. The Referee?s Finding of No Mitigation Is Proper 36

The Referee?s Recommendation of a Six-Month Suspension is
Appropriate and Supported by the Court?s Precedent 38

A. The Nature of Respondent?s Misconduct is Serious 39

Page

B. The Cumulative Weight of Respondent?s Disciplinary Violations
Supports a Six-Month Suspension 41

C. Respondent?s Misconduct Caused Harm to the Public and
the Legal Profession 41

D. The Referee Found Multiple Factors Exist to Aggravate, and
No Factor Exists to Mitigate, the Sanction for Respondent?s

Misconduct 44
B. All the Factors Taken Together, the Referee?s Recommendation
of a Six-Month Suspension is Appropriate 47
Conclusion 50

TABLE OF AUTHORITIES

 

 

[Lagg

Minnesota Rules of Professional Conduct:
Rule 1.5(b) 14
Rule 14
Rule 14
Rule 1.15 29
Rule 1.15(a) 14, 15
Rule 14, 15, 45
Rule 1.15(h) 45
Rule 3.3(a) 17, 18, 23, 45
Rule 19
Rule 3.4(c) 31
Rule 4.1 17, 18, 19, 23, 45
Rule 5.5(a) 31, 33, 45, 50
Rule 5.8 35
Rule 8.1(a) 17, 27, 28
Rule 8.1(b) 27
Rule 27
Rule 8.4(Rule 8.4(d) 19, 23, 27, 45

Rules on Lawyers Professional Responsibility:
Rule 14(e) 7, 16
Rule 25 27
Rule 26 11, 18, 23, 32, 33
Rule 26(b) 23

Page
Minnesota Cases:

In re Aitken, 787 152 (Minn. 2010) 17
In re Albrecht, 660 790 (Minn. 2003) 7-8
In re Anderley, 481 366 (Minn. 1992) 16
In re Brooks, 696 84 (Minn. 2005) 44
In re Coleman, 793 296 (Minn. 2011) 42
In re Cowan, 540 825 (Minn. 1995) 7, 36
In re Cutting, 671 173 (Minn. 2003) 44
In re Day, 710 789 (Minn. 2006) 7, 36
In re Dedefo, 752 .W.2d 523 (Minn. 2008) 39
In re Fru, 829 .W.2d 379 (Minn. 2013) 45
In re Ganley, 549 368 (Minn. 1996) 39, 47
In re Getty, 452 694 (Minn. 1990) 17, 37
In re Greenman, 860 368 (Minn. 2015) 16
In re Grigsby, 764 54 (Minn. 2009) 27
In re Harrigan, 841 624 (Minn. 2014) 43
In re Ili??, 487 234 (Minn. 1992) 44
In re Iaeger, 834 .W.2d 705 (Minn. 2013) 49
In re Jensen, 542 627 (Minn. 1996) 48
In re Kennedy, 873 133 (Minn. 2016) 50
In re Matson, 889 17 (Minn. 2017) 38
In re Mayrand, 723 .W.2d 261 (Minn. 2006) 38, 44
In re Michael, 836 .W.2d 753 (Minn. 2013) 48
In re Milloy, 571 39 (Minn. 1997) 44
In re Munns, 475 82 (Minn. 1991) 44
In re Murrz'n, 821 195 (Minn. 2012) 41

Page

In re Nelson, 733 458 (Minn. 2007) 16, 47
In re Nilva, 266 Minn. 123 803 (Minn. 1963) 40, 42
In re Oberhauser, 679 .W.2d 153 (Minn. 2004) 41
In re O?Brien, 894 162 (Minn. 2017) 38
In re Overboe, 745 852 (Minn. 2008) 27
In re Panel File No. 39302, 884 661 (Minn. 2016) 33
In re Perez, 688 562 (Minn. 2004) 44
In re Pokorny, 453 345 (Minn. 1990) 45
In re Rambow, 874 773 (Minn. 2016) 41
In re Ray, 610 342 (Minn. 2000) 45
In re Rebeau, 787 168 (Minn. 2010) 38
In re Ruffenach, 486 .W.2d 387 (Minn. 1992) 17, 39, 47
In re Rujj?ing, 883 222 (Minn. 2016) 6, 49
In re Schmidt, 402 .W.2d 544 (Minn. 1987) 39
In re Sea, 932 28 (Minn. 2019Tayari-Garrett, 866 .W.2d 513 (Minn. 2015) 6, 19, 36
In re Thedens, 557 344 (Minn. 1997) 37
In re Ulanowski, 800 785 (Minn. 2011) 27, 38, 47
In re Ulanowski, 834 .W.2d 697 (Minn. 2013) 43
In re Van Liew, 712 .W.2d 758 (Minn. 2006) 48
In re Warpeha, 802 .W.2d 361 (Minn. 2011) 48
In re Wentzell, 656 .W.2d 405 (Minn. 2003) 16
In re Westby, 639 .W.2d 358 (Minn. 2002) 45
In re Winter, 770 463 (Minn. 2009) 7, 43, 44, 46, 48

LE AL I 

1. Under a clear error standard of review, considering the referee?s
unique position to evaluate firsthand the demeanor and credibility of respondent
and the other witnesses, did the Director present sufficient evidence to support
the referee?s finding that respondent: (1) knowingly made numerous false
statements to a tribunal, the Director and others; (2) on numerous occasions,
engaged in the unauthorized practice of law and by doing so violated the Court? 5
suspension order; (3) failed to fully cooperate with the Director regarding
respondent?s supervised probation; and (4) failed to comply with the Court? 5
probation order, which requires full cooperation with the supervised probation
and compliance with the Minnesota Rules of Professional Conduct?

The referee found that the facts support, by clear and convincing evidence,
that respondent knowingly made false statements at a review hearing, during the
course of the Director?s investigation, and during the course of respondent?s
supervised probation; engaged in the unauthorized practice of law on at least
three occasions; failed to fully cooperate with the Director relating to
respondent?s supervised probation; and, by engaging in such misconduct,
violated the Court?s probation and suspension orders.

Apposite Cases:

In re Sea, 932 28 (Minn. 2019).

In re Tayari?Garrett, 866 513 (Minn. 2015).

In re Ruffing, 883 222 (Minn. 2016).

II. Was it proper for the referee to find no mitigation when respondent

failed to raise mitigation in her answer, at trial, and in her proposed findings of

fact, conclusions of law and referee brief?
Apposite Cases:
Tayari-Garrett, 866 .W.2d 513 (Minn. 2015).

In re Day, 710 789, 794 (Minn. 2006).

In re Cowan, 540 825, 827 (Minn. 1995).

11. What is the appropriate discipline for a lawyer who, on numerous
occasions, made multiple false statements to a tribunal, the Director, and others;
on numerous occasions engaged in the unauthorized practice of law; and failed
to fully cooperate with the Director?s investigation into the misconduct?

The referee recommended that respondent be indefinitely suspended from
the practice of law, with no right to apply for reinstatement, for six months. The
referee's recommendation is reasonably within the range of discipline imposed
by the Court for dishonest misconduct coupled with other misconduct. The
Director therefore requests the Court to adopt the referee?s recommendation.

Apposite Cases:

In re Sea, 932 28 (Minn. 2019).

In re Winter, 770 .W.2d 463 (Minn. 2009).

STATEMENT OF THE CASE
A hearing on the petition for disciplinary action in this matter was
conducted on July 23 and 24, 2019, before the Honorable Richard C. Perkins
acting as referee by appointment of this Court. On September 13, 2019, the
referee issued his findings of fact, conclusions of law and recommendation
(A. 1).1 Respondent timely ordered a transcript of the hearing; therefore, the
referee?s findings and conclusions are not conclusive. See Rule 14(e), Rules on

Lawyers Professional Responsibility In re Albrecht, 660 790, 792

 

1 A. 1-A. 26 refers to the Director?s Addendum filed with the Director?s Brief,
which is the Referee?s Findings of act, Conclusions of Law and
Recommendation for Discipline. Respondent?s addendum will be referred to as
Ad'll

(Minn. 2003). On October 10, 2019, the Court ordered respondent to serve and
file a brief within 30 days of the date on which the court reporter mails or
delivers a copy of the transcript, and the Director?s brief is due 30 days from the
date respondent filed her brief. Respondent filed her brief on November 13,
2019.

STATEMENT OF FACTS
The facts presented at trial and found by the referee are as follows.
Respondent Karlowba R. Adams Powell was admitted to practice law in
Minnesota on September 18, 2003. Respondent began her practice at a law firm
in 2003 and became a full-time solo practitioner in September 2011, with a focus

on criminal defense and family law (A. 3 ?11 8; Tr. at 379-380).

False Statements to a Tribunal, the Director, and to Others, and Unauthorized
Practice of Law in the Benjamin Bump Matter.

By order dated July 19, 2017, this Court suspended respondent from the
practice of law, effective the date of the order, for a minimum of 45 days
(D. Ex. 1). Respondent represented Benjamin Bump on a matter With two court
file numbers and in Hennepin County
District Court. Family Court Referee Mary Madden presided over the matters
(A. 4 11; D. Exs. 2, 3). On August 1, 2017, respondent appeared as counsel for
Mr. Bump at a review hearing while she was not authorized to practice law due
to her suspension effective July 19, 2017 (A. 4 ?11 11; Tr. 29?30, 127-129, 402). Also
present at the review hearing were opposing counsel Diana Longrie and the
guardian ad litem Jean Hariman (GAL) (A. 4 11; Tr. 29, 129). At the review
hearing, the parties discussed, among other things, how to move the case(s)

forward and possible trial or future hearing dates (A. 4 11; Tr. 29; 130-132).

One of the issues discussed in Referee Madden?s chambers prior to the
hearing was dates for scheduling future hearings and pre-trial conferences (A. 5
?11 15; Tr. 30, 100, 131?132, 402). A number of dates were suggested, including
August 8, 11, and 21, 2017 (A. 5 ?ll 15; Tr. 131-133, 414; Ex. 6). Respondent
informed Referee Madden that she would be unavailable for those specific dates
and unavailable to attend any hearings until September 16, 2017 (A. 5-6 15;

Tr. 31-32, 132-134). Respondent failed to disclose to Referee Madden,

Ms. Longrie and the GAL at any time during the hearing (both in chambers and
in open court) that respondent was suspended from the practice of law as of
July 19, 2017, for at least 45 days and could not make any appearances prior to at
least September 16, 2017 (A. 6 16; Tr. 32, 101, 134).

When asked by Referee Madden the reason respondent was unavailable
for such an extended period of time, respondent stated that she had vacations
scheduled and two trials coming up (A. 6 ?11 15; Tr. 31-32, 132-134, 414; D. Ex. 6).
The upcoming vacations that respondent claimed made her unavailable for any
appearance until after September 16, 2017, included a four-day trip to Texas from
August 9 to 13 (A. 6 17(a); D. Ex. 5), and two trips scheduled for after
September 16, 2017 (A. 6 ?11 17(a); Tr. 420; D. Ex. 6). Therefore, the only period
prior to September 16, 2017, that respondent was truly unavailable for a hearing
due to a vacation (as well as due to her suSpension) was August 9, 2017, through
August 13, 2017 (A. 6 17(a); Tr. 423; D. Ex. 6).

The upcoming trials that respondent stated made her unavailable for any
appearance until after September 16, 2017, were trials scheduled for August 21
and September 18, 2017 (A. 7 17(d); D. Ex. 6). Respondent?s suspension from
the practice of law spanned the period of July 19, 2017, through September 25,
2017 (when respondent was reinstated) (D. Exs. 1 and 17). Therefore, respondent

was unable to engage in the practice of law or be available to prepare for or

attend any trials until after her license was reinstated (A. 7 ?11 17(d); D. Exs. 1 and
17).

Because the parties were unaware of respondent?s suspension, a telephone
hearing was nonetheless scheduled for August 8, 2017 (A. 8 ?il 19; Tr. 33, 134-135).
When agreeing to schedule the August 8, 2017, telephone hearing, respondent
assured Referee Madden that she would find an attorney to attend in her place
(Tr. 33, 135; D. Ex. 4).

Respondent was unable to find an attorney to attend the August 8, 2017,
telephone hearing in her place (Tr. 425-426; D. Ex. 7). On August 7, 2017,
respondent sent an email to Referee Madden and Ms. Longrie asking to continue
the August 8, 2017, telephone hearing (D. Ex. 7). In addition to informing the
parties (the GAL was subsequently copied on the email chain) of respondent?s
suspension and inability to attend the August 8, 2017, telephone hearing,
respondent addressed, on behalf of her client, other matters, including her
client? 5 position regarding the proposal (D. Ex. 7). In the email,

respondent stated:

Please be advised [Bump] doesn?t not agree with the proposal
and wants her to complete a exam as she was
previously ordered before therapy would begin. has been
having nightmares since he learned of the potential therapy . . . . His
therapist has attempted to contact the GAL to no avail.

(A. 9 22; D. Ex. 7.)

During the email conversation, respondent even tried to steer the
conversation to focus on substantive issues, rather than respondent?s suspension,
stating in an email dated August 8, 2017, ?The focus of our emails should be

Re-scheduling the phone conference and the concerns addressed in Mr. Bump?s

10

letter sent to you and the Court as they Reiser [sic] to what is in the best interest
of [the child].? (A. 9 ?11 23; D. Ex. 9.)

The August 8, 2017, telephone hearing was continued (despite strong
objections from Ms. Longrie to a long continuance) until August 28, 2017, thus
delaying the case (A. 10 26; Tr. 33?35, 145-148; D. Exs. 2, 3, and 9). During the
course of the Director?s investigation, and in response to Referee Madden?s
complaint regarding respondent?s conduct, respondent stated to the Director that
the reason respondent did not mention the suspension was because at the time of
the August 1, 2017, hearing, she did not believe her suspension was for ?public
consumption and something that she would be in the position to disclose.?

(A. 10 ?11 27; D. Ex. 11.) But, under Rule 26, RLPR, respondent was required to
provide notice to Referee Madden and Ms. Longrie of her suspension by July 31,
20177- (A. 11 27; Rule 26, D. Ex. 1). Respondent was aware that she had
an obligation to notify Referee Madden and Ms. Longrie of respondent?s
suspension, and respondent?s Rule 26 notices to Ms. Longrie and to the court
were dated July 28, 2017 (A. 11 ?11 27(e); Tr. 403; D. Exs. 13 and 14).

The Director also asked respondent whether the August 8, 2017, telephone
hearing had to be continued (A. 12 ?11 29; R. test.; D. Exs. 6 and 11). Respondent
stated in written responses, and under oath at a deposition, that she was able to
find an attorney to appear in her place and that the August 8, 2017, telephone
hearing occurred (A. 12 ?il 29; D. Exs28, 11. 3-10). In response to
the notice of investigation, respondent, through her attorney, stated in a letter
dated September 22, 2017, ?It should be noted that Ms. Adams Powell?s

statement that will have to try and get someone to cover that? was in fact a goal

 

2 Ten days from the Court?s July 19, 2017, order was July 29, 2017, which fell on a
Saturday and, therefore, the Director considered July 31, 2017, as the date by
which respondent had to mail these notices.

11

that was achieved since the matter did in fact take place on August 8th, and a
licensed attorney was present for her client.? (A. 12 ?11 29(a); D. Ex. 11.) In
response to the Director?s request for additional information, respondent,
through her attorney, stated in a letter dated October 26, 2017, ?The August 8,
2017 telephone conference was not continued. Ms. Adams Powell was in fact
able to secure counsel to appear at the August 8, 2017 telephone conference.?
(A. 12 ?11 29 D. Ex. 6.) During a deposition taken on September 12, 2018,
respondent again claims the August 8, 2017, telephone conference was not

continued:

Q: Okay. And did you have another attorney appear on your
behalf on August 8?

I did.
On August 8?

Yes. The telephone 



The telephone conference was not continued or canceled?
A: Yes, ma?am

(D. Ex. 30 at p. 28, 11. 3-10.) In truth, respondent did not find an attorney to
appear in her place on August 8, 2017, and the August 8, 2017, telephone hearing
was cancelled and continued to August 28, 2017 (A. 12 29(b); Tr. 33-34, 147-148,
425, 497, 498).

Additional Unauthorized Practice of Law and Failure to Provide
Proper Receipt for Cash Payments in the Iamier Sumrall Matter.

On or about June 23, 2017, Joanne Hill (formerly Sumrall) hired respondent
to represent her daughter, Jamier Sumrall, in three separate criminal matters
(A. 13 31; Tr. 318). When discussing the representation, Ms. Hill made clear

that the case was urgent and that there was a hearing scheduled for August 12,

12

2017, that needed to be handled (A. 13 ?11 31; Tr. 319-320). When discussing with
Ms. Hill the potential representation of Ms. Sumrall, respondent failed to inform
Ms. Hill that she had signed a stipulation for suspension and that she may be
suspended from the practice of law in the near future (A. 13 ?11 31; Tr. 325,
461-462). Respondent?s fee for the representation was $3,000 and Ms. Hill paid
respondent $1,500 in cash up front (A. 13 ?11 32; Tr. 321-322, 465). Respondent
failed to provide Ms. Hill with a receipt that was countersigned by the payor
(A. 13-14 ?11 33; Tr. 322; D. Ex. 15).

On July 19, 2017, the Court ordered respondent suspended from the
practice of law for a minimum of 45 days, effective as of the date of the order
(A. 14 ?11 34; D. Ex. 1). After receiving the order, respondent did not inform
Ms. Hill or Ms. Sumrall of respondent?s suspension, despite the suspension being
in effect on the date of the hearing (A. 14 ?11 34; Tr. 324-325). Respondent never
informed Ms. Hill of respondent?s suspension and did not inform Ms. Sumrall
until August 1, 2017 (A. 14 ?11 34; Tr. 324, 508; Exs. 13 and 14). Despite her
suspension from the practice of law, respondent continued her legal
representation of Ms. Sumrall (A. 14 ?11 35; Tr. 462-463). Between July 24 and 31,
2017, respondent consulted with Ms. Hill and others about Ms. Sumrall?s case
and provided legal advice and consultation for which she invoiced Ms. Sumrall
for the legal work (A. 14 ?11 35; Tr. 468-471; D. Ex. 16). During this period,
respondent worked on Ms. Sumrall?s file and discussed the case with others in
respondent?s capacity as Ms. Sumrall?s attorney (A. 14 ?1 35; Tr. 468-471; D. Ex.
16). On August 1, 2017, respondent contacted a Dakota County District Court
clerk and the prosecutor on the case regarding a possible continuance of the case
(A. 14 ?11 36; D. Ex. 16). Ultimately, respondent?s representation of Ms. Sumrall
was terminated, and Ms. Hill had to quickly ?nd a replacement attorney to

handle the case within a two-week time period (Tr. 328).

13

Failure to Safeguard Client Funds, Additional False Statements to the Director
and Failure to Fully Cooperate With Probation Supervision.

On September 25, 2017, respondent?s license to practice law was
conditionally reinstated (D. Ex. 17). As part of the conditions of respondent?s
reinstatement, she was placed on supervised probation for two years (D. Ex. 17).
The Court?s order required that respondent ?shall cooperate fully with the
Director?s Office in its efforts to monitor compliance with this probation.
Respondent shall respond to the Director?s correspondence by its due
date.? (D. Ex. 17.) Further, the Court?s order required that respondent ?abide by
the Minnesota Rules of Professional Conduct.? (D. Ex. 17.) On January 17, 2018,
respondent met with Nicole Frank and other members of the probation
department of the Director?s Office because respondent did not yet have a
probation supervisor assigned (Tr. 264). During the meeting, the Director?s
Office requested that respondent provide client files for Mr. Bump and Robert
Walker (Tr. 264?265). After reviewing those files, the Director?s Office discovered
that respondent?s flat fee agreements in those cases did not comply with
Rule MRPC (Tr. 269).

The flat fee agreements for both Bump and Walker provided that
respondent would provide representation for a flat fee of $2,500 (D. Ex. 18;

D. Ex. 22). The ?at fee agreements did not comply with Rule Minnesota
Rules of Professional Conduct (MRPC) (Tr. 266-267; D. Exs. 18 and 22). Further,
the fee agreements stated, ?This is a flat fee and non-refundable,? which is
impermissible under Rule MRPC (Tr. 266-268; D. Exs. 18 and 22). (Bold
in original.) Because respondent?s flat fee agreements did not comply with

Rule MRPC, respondent was obligated to place any unearned fees in
trust pursuant to Rule 1.15(a) and MRPC (Tr. 269). Respondent failed to

place the attorney?s fees into a trust account (Tr. 452).

14

By August 15, 2016, Mr. Bump had paid respondent the full $2,500 flat fee
(Tr. 452; D. Ex. 19). Respondent did not complete the agreed-upon services until
December 11, 2017, and did not fully earn the $2,500 flat fee until that date
(Tr. 453-454; D. Ex. 21). Therefore, all or at least a portion of the $2,500 Mr. Bump
paid to respondent should have been placed into trust until December 11, 2017,
when it was fully earned (Tr. 268; Rule 1.15(a) and MRPC).

By June 15, 2017, Mr. Walker had paid respondent the full $2,500 flat fee
(Tr. 455; Ex. 19). Respondent did not complete the agreed-upon services until
April 20, 2018, and respondent did not fully earn the $2,500 until that date
(Tr. 456; D. Ex. 24). Therefore, all or at least a portion of the $2,500 Mr. Walker
paid to respondent should have been placed into trust until April 20, 2018, when
it was fully earned (Tr. 268; Rule 1.15(a) and MRPC).

The Director?s Office asked respondent where she placed any unearned
portion of fees in the Bump and Walker matters, and respondent indicated that
she had placed such funds into her trust account and agreed to provide proof of
those deposits (Tr. 272). On January 23, and again on February 21, 2018, the
Director?s Office followed up with respondent about the promised proof of
deposits into the trust account (D. Exs. 25-27). Respondent delayed in providing
the requested information until the end of March 2018 (D. Ex. 19). In March
2018, prior to providing the requested proof of deposit information, however,
respondent revealed to Ms. Frank that the fees at issue were not placed into
respondent?s trust account as she told Ms. Frank (Tr. 274). Respondent disclosed
that those fees were, in fact, placed in respondent?s personal account 
Respondent told Ms. Frank that a bank employee, Jeremy Stirewalt, told
respondent that the funds placed into respondent?s personal account was due to
bank error (Tr. 274; D. Ex. 19). Ms. Frank requested that respondent provide

documentation from the bank verifying the error, which respondent was unable

15

to provide (Tr. 276; D. Ex. 27). In truth, Mr. Stirewalt never told respondent the
deposits made into her personal account were made in error by the bank because

there was no way Mr. Stirewalt would know that about deposits made in 2016

and 2017 (Tr. 214-217, 221-222, 243, 256).

ARGUMENT

I. The Record Fully Supports the Referee?s Findings of Fact and Conclusions
of Law Relating to Respondent?s Misconduct.

A. Standard of Review.

Because respondent ordered a transcript, the referee?s findings of fact and
conclusions of law are not binding. See Rule 14(e), In re Greenman, 860
368, 371 (Mirm. 2015). It appears that respondent challenges most of the
referee?s conclusions of law and many of the findings of fact underlying those
conclusions, except respondent is not challenging the facts and conclusions
regarding her failure to safekeep client funds and to provide a receipt
countersigned by the payor for a cash payment. Respondent also challenges the
referee?s finding of no mitigation.

It is well-settled that this Court gives ?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.? In re Wentzell, 656
402, 405 (Minn. 2003); see also, In re Nelson, 733 458, 461 (Minn.
2007). The clearly erroneous standard reflects the Court?s traditional deference
to the finder of fact, who had the opportunity to observe and evaluate the
demeanor and credibility of the Witnesses. See, e. In re Anderley, 481 
366, 370 (Minn. 1992) (Court deferred to referee?s firsthand observation of

witness testimony in declining to set aside referee?s rejection of expert witness?

16

assessment of the cause of attorney?s misconduct). Indeed, ?[t]he referee was
free to disregard [respondent?s] testimony if he found it was not credible.? In re
Getty, 452 .W.2d 694, 697 (Minn. 1990). The Court applies the same standard to
a referee?s conclusions of law in applying the facts to the rules and will affirm
those conclusions unless clearly erroneous. In re Aitken, 787 152, 158
(Minn. 2010).

B. The Referee Correctly Found That Respondent Made False
Statements to the Tribunal, Others and to the Director In Violation of
Numerous Rules of Professional Conduct.

The Minnesota Supreme Court has held that ?[h]onesty and integrity are
chief among the virtues the public has a right to expect of lawyers.? In re
Ru?enach, 486 .W.2d 387, 391 (Minn. 1992). As such, there are a number of
Minnesota Rules of Professional Conduct that address honesty. Rule 4.1, MRPC,
provides, ?In the course of representing a client, a lawyer shall not knowingly
make a false statement of fact or law.? Rule MRPC, provides, in relevant
part, lawyer shall not knowingly: (1) make a false statement of fact or law to
a tribunal, or fail to correct a false statement of material fact or law previously
made to the tribunal by the lawyer.? Rule MRPC, provides that it is
professional misconduct for a lawyer to ?engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.? Finally, Rule MRPC,
provides that in connection with a disciplinary matter, a lawyer shall not
?knowingly make a false statement of material fact.? A survey of the totality of
the evidence, considered in light of the referee?s unique ability to evaluate
firsthand the demeanor and credibility of respondent and the other witnesses,

compels the conclusion that the record fully supports the referee?s findings of

fact and conclusions of law.

17

1. Respondent Made Numerous False Statements During the

Bump Review Hearing.

 

The Director presented testimony of Referee Madden, who presided over
the matter and Ms. Longrie, who was the opposing counsel. Both Referee
Madden and Ms. Longrie testified that respondent failed to disclose to those
present at the August 1, 2017, review hearing that respondent was suspended
from the practice of law for at least 45 days, which was the true reason
respondent could not make any appearances prior to September 16, 2017 (Tr. 32,
101, 134, 180, 189-190). Respondent does not deny these facts (Tr. 408). Instead,
respondent claims that she did not inform the parties at the review hearing of her
suspension because there was nothing that required her to do so in open court
(Tr. 402). The referee reasonably rejected respondent?s excuse.

First, a part of the review hearing was held in chambers with only Referee
Madden, Ms. Longrie, the GAL, and possibly a clerk (Tr. 30, 129). Respondent
was not asked to announce her suspension in open court. Second, respondent?s
suspension is public and respondent knew she was obligated to notify Referee
Madden and Ms. Longrie of her suspension by July 31, 2017, pursuant to the
Court?s suspension order and Rule 26, RLPR (D. Ex. 1; Rule 26, RLPR). Third,
respondent admits that there was nothing (such as privilege or confidentiality)
that prevented her or prohibited her from revealing her suspension in open court
or in chambers (Tr. 407). Finally, contrary to respondent?s claim, there are Rules
of Professional Conduct that d_Q require respondent to tell the truth to the court
and others. Those rules are Rules 4.1, and MRPC, which require
respondent to tell the truth. As such, pursuant to those rules, respondent was
required to reveal her suspension because the suspension was the true reason

respondent could not attend future hearings until September 16, 2017.

18

Failing to reveal a material fact has been found to be deceptive behavior, in
violation of Rules 4.1, and MRPC. The Court?s recent decision in
In re Sea, 932 28 (Minn. 2019), is instructive. In Sea, the lawyer claimed
he was going to be late to a hearing in Wright County (and eventually unable to
make the hearing) because he broke his glasses and had to return to St. Paul to
get replacement glasses. Sea, 932 at 32-33. In truth, Sea had to appear at
another hearing in Dakota County and failed to inform the Court of his Dakota
County hearing, which was the true reason Sea was late and unable to make the
Wright County hearing. Id. 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 4.1, Id. at
33. While it was possible that Sea had broken his glasses, the Court noted that
?the main issue was what [Sea] did not tell the district court.? Id. (emphasis in
original).

In re Tayari-Garrett, 866 513 (Minn. 2015) is also apposite.
Tayari-Garrett was found to have engaged in deceptive behavior in violation of
Rule MRPC, when she stated or implied she was unable to appear for a
hearing due to medical reasons. Id. at 518. While Tayari-Garrett did have some
medical issues, Tayari-Garrett failed to reveal she intended to be in Paris, France,
on the date of the hearing, leading the court and the opposing party to believe
she was unavailable due to her medical condition. The referee found

Tayari-Garrett made false or misleading statements because no time during

19

the hearing on May 5 did [she] mention that she had flown to France;" ?[i]nstead,
[Tayari?Garrett] discussed her medical situation and prognosis.? Id.

Similarly here, respondent failed to mention her suspension and instead
claimed future trials and vacations were the reason she could not attend future
hearings. Respondent?s omission was misleading and the referee did not err in
finding respondent?s failure to disclose her suspension violated the Rules of
Professional Conduct.

The referee also found the statements respondent made about why she
was unable to attend certain hearing dates were knowingly false. The referee?s
findings are supported by the record. Respondent claimed that she was unable
to make future hearing dates due to some upcoming trials. The upcoming trials
that supposedly made respondent unavailable were scheduled for August 21 and
September 18, 2017 (D. Ex. 6). Respondent?s suspension from the practice of law
spanned the period of July 19, 2017, through September 25, 2017 (when
respondent was reinstated) (D. Exs. 1 and 17). Therefore, respondent was unable
to engage in the practice of law or be available to prepare for or attend any trials
until after her license was reinstated (D. Exs. 1 and 17). Contrary to respondent?s
representation, those trials could not be the reason she was unable to attend any
hearings until September 16, 2017, in the Bump matter.

The upcoming vacations that respondent claimed made her unavailable for
any appearance until after September 16, 2017, included only a four-day trip to
Texas in August (August 9?13) (D. Ex. 5) and two trips scheduled for after
September 16, 2017 (Tr. 420; D. Ex. 6). Therefore, the only period prior to
September 16, 2017, that respondent was unavailable for a hearing due to a

vacation was August 9, 2017, through August 13, 2017 (Tr. 423; D. Ex. 

20

Respondent?s claim that she was unavailable until September 16 due to vacations
was knowingly false.

Because the parties were unaware of respondent?s suspension, a telephone
hearing was nonetheless scheduled for August 8, 2017 (Tr. 33, 134-135). The
record supports the referee?s findings that respondent also lied about the reason
she could not make the August 8 telephone conference. Respondent offered
inconsistent statements regarding her reason for not being able to appear on
August 8, 2017. In her response to the Director?s notice of investigation,
respondent indicated her reason for not being able to attend the August 8, 2017,
hearing was because she would be in Texas on vacation (D. Ex. 11). After the
Director asked respondent to provide travel confirmation of her Texas trip, and it
showed her ?ight did not leave until August 9, 2017, in the evening, in a
subsequent response to the Director?s request for information, respondent stated
that her reason was because of her suspension (D. Ex. 6). At trial, respondent
stated that she was unavailable because she blocked off her schedule for
vacation, even though she did not leave for Texas until August 9, 2017 (Tr. 418).

Respondent knew of her suspension on August 1, 2017, when the
August 8, 2017, hearing was scheduled, but respondent failed to inform the
parties of this fact (Tr. 407). On August 7, 2017, respondent ?nally revealed to
Referee Madden and Ms. Longrie that she could not find replacement counsel
and could not make the hearing herself because of her suspension (Tr. 34,
136-137; D. Ex. 7). By this time, respondent?s Rule 26 notice disclosing her
suspension, which she sent out after the review hearing on August 1, 2017,
would have been received (D. Exs. 13 and 14). In her August 7, 2017, email

requesting a continuance of the telephone hearing, respondent does not mention

21

being on vacation or blocking off time for vacation as her reason for her
unavailability (D. Exs. 7-9). Instead, respondent finally admits that she has been
suspended and that is the reason she cannot appear, stating, have notified the
Court and Mr. [sic] Longrie that I am suspended until September 16, 2017. I have
attempted to secure a colleague to attend the tele-conference to no avail. Please
advise." (D. Ex. 7 at 2.) Since respondent believed her suspension had been
revealed by this time, respondent?s August 7, 2017, email makes no mention of
respondent?s vacation as the reason for her unavailability. Tellingly, respondent
was available on August 8, 2017, to send emails to the parties about the case

(D. Ex. 9). This completely contradicts respondent?s claim that she was
unavailable for a quick telephone conference call due to her vacation. The
evidence supports that respondent?s statement to Referee Madden and

Ms. Longrie about the reason respondent was unavailable on August 8, 2017,
was knowingly false.

Respondent cannot offer any convincing argument or evidence to show
that any of the referee?s findings or conclusions are clearly erroneous.
Respondent?s challenges ignore the referee?s opportunity to observe and evaluate
the demeanor and credibility of the witnesses as they testified. It is undisputed
that the testimony provided by Referee Madden and Ms. Longrie about the core
issues of this matter that respondent failed to disclose a material fact about
why she was unable to attend future hearing dates, and affirmatively made false
statements about the reasons she could not make certain dates are consistent.
The fact that respondent has nothing more to point to than minor misstatements
on irrelevant details about the review hearing to discredit Referee Madden and

Ms. Longrie is telling. The referee considered all the evidence respondent

22

presented and as the referee stated, found respondent?s ?denials and
explanations . . . are insufficient to overcome the clear and convincing evidence
presented by the Director . . . (A. 2 ?11 3.)

Even more troubling is respondent?s attempt, again, to question Referee
Madden?s credibility by referencing allegations made in a lawsuit (with no final
adjudication) that was brought against Referee Madden along with numerous
other judges. The Director objected to this line of questioning and the referee
sustained the Director?s objection (Tr. 87-95). The referee did not err in
disregarding this prejudicial and irrelevant evidence in finding Referee
Madden?s testimony credible. The evidence supports the referee?s findings and
the referee did not err in finding respondent?s dishonest conduct violated

Rules 4.1, and 8.4(c) and MRPC.

2. Respondent Knowingly Made False Statements to the Director
During the Course of the Director?s Investigation.

Respondent falsely stated to the Director that the reason respondent did
not mention the suspension at the August 1, 2017, review hearing was because, at
the time, she did not believe her suspension was for ?public consumption and
something that she would be in the position to disclose.? The Court?s suspension
order required respondent to ?comply with Rule 26, RLPR (requiring notice of
suspension to clients, opposing counsel, and tribunals)? (D. Ex. 1.) Under Rule
26(b), RLPR, reSpondent was required to provide notice to Referee Madden and
Ms. Longrie of her suspension by July 31, 2017 and respondent?s Rule 26 notices
to Ms. Longrie and to the court were dated July 28, 2017 (D. Exs. 13 and 14). The
Director notes that the notices, while dated July 28, 2017, were not mailed until
August 1, 2017, after the review hearing (D. Exs. 13 and 14). This evidences

respondent?s intention to hide the fact of the suspension at the review hearing.

23

Respondent knew she was obligated to notify the parties of her suspension and
knew that they did not have notice of the suspension at the time the review
hearing occurred. Respondent?s statement to the Director that respondent did
not inform Referee Madden and Ms. Longrie of respondent?s suspension at the
August 1, 2017, review hearing because she did not believe it was for ?public
consumption? was knowingly false.

The Director also asked respondent whether the August 8, 2017, telephone
hearing had to be continued. This question is important because it would allow
the Director to determine the level of harm respondent? misconduct caused, as
well as determine whether respondent?s misconduct was prejudicial to the
administration of justice. Respondent stated in two written responses (dated
September 22, 2017, and October 26, 2017) and under oath at a deposition held on
September 12, 2018, that she was able to find an attorney to appear in her place
and that the August 8, 2017, telephone hearing occurred (D. Exs28, 11. 3-10). In truth, respondent did not find an attorney to appear in her
place on August 8, 2017, and the August 8, 2017, telephone hearing was cancelled
and continued until August 28, 2017 r. 33-35, 145?148, 497).

The referee correctly found respondent?s claim of mistake not credible in
light of the evidence presented at trial. During trial, respondent attempted to
claim that she meant the hearings were continued until August 28, 2017. But
respondent?s written representations are clear, on both instances, that she
intended to state that the August 8, 2017, telephone hearing was not continued
and that it occurred. In response to the Madden complaint and notice of
investigation, respondent, through her attorney, stated in a letter dated

September 22, 2017, ?It should be noted that Ms. Adams Powell?s statement that

24

 will have to try and get someone to cover that? was in fact a goal that was
achieved since the matter did in fact take place on August 8th, and a licensed
attorney was present for her client.? (D. Ex. 11.) In response to the Director?s
request for additional information, respondent, through her attorney, stated in a
letter dated October 26, 2017, ?The August 8, 2017 telephone conference was not
continued. Ms. Adams Powell was in fact able to secure counsel to appear at the
August 8, 2017 telephone conference.? (D. Ex. 6.) This is knowledge respondent
would have readily available in her records, which she could verify before
providing a written response to the Director?s request for information.
Respondent clearly indicated in both instances that the hearing occurred; this is
not an instance of typo or mistake.

After providing false information, in writing, to the Director, respondent
continued to make that false statement when asked about it in a deposition for
which she was under oath:

Q: Okay. And did you have another attorney appear on your behalf on
August 8?

A: I did.

Q: On August 8?

A: Yes. The telephone --

Q: The telephone conference was not continued or canceled?

A: Yes, ma?am
(D. Ex. 30 at p. 28, 11. 3?10). While a misstatement spoken once may be a mistake,
stated twice, in writing, is not a mistake. Reiterated again, under oath at a

deposition, demonstrates a disregard for the truth.

25

Notably, on this topic, respondent?s testimony at trial was inconsistent. At
trial, respondent admits that she was always fully aware that the August 8, 2017,
hearing was continued and pointed out to the referee that she asked for a
continuance in her August 7, 2017, email to Referee Madden and Ms. Longrie
(Tr. 429). At the same time, respondent also testified that she misspoke at the
deposition because she did not have her notes or calendar with her (Tr. 429).
Conveniently, respondent also attempts to disavow the correspondence of her
attorney, Michael Padden, who wrote the responses to the Director?s question
regarding the continuance (Tr. 429-430). But even on this issue, respondent?s
testimony is inconsistent. Respondent confirmed that her license is important to
her and that she takes these proceedings seriously (Tr. 411). Yet, when
convenient, respondent claims she does not know if she reviewed her attorney?s
responses to the Director. Respondent claimed that she was unsure if she
checked Mr. Padden?s response to the Director about this matter (Tr. 411).
Respondent also claimed she does not recall what she was doing at that time so
cannot say that she checked the accuracy of Mr. Padden?s responses (Tr. 430).
The record paints a different story.

In the letter in response to the Madden notice of investigation dated
September 22, 2017, Mr. Padden indicates that he had a chance to review the
matter with respondent (D. Ex. 11). Further, when asked in her deposition
whether respondent reviewed her attorney?s response to the Director related to
an October 26, 2017, letter, respondent indicated, believe so." (Ex. 30 at p. 20,
11. 7?25 to p. 21, 11. 1-8.) Respondent?s excuses are inconsistent and simply not
credible and the referee did not err in putting little weight in respondent?s

unsupported excuses. Notably, respondent failed to call her attorney to testify to

26

support her claim, and the referee was left only with respondent?s inconsistent
statements and unpersuasive excuses.

While each false statement, taken alone, could be viewed as ?minor? or
non?serious, taken together, as a whole, and in light of the totality of dishonest
statements by respondent, demonstrates a pattern of dishonesty that cannot be
ignored and calls into question respondent?s credibility. The referee did not
error in finding that respondent?s numerous false statements to the Director
during the course of the Director?s investigation in violated Rules 8.1(c) and
8.4(c) and MRPC. See In re Ulanowskz', 800 at 798-799 (lawyer who
made misrepresentations to the Director during disciplinary investigation
violated Rules and 8.4(c) and In re Grigsby, 764 54, 62
(Minn. 2009) (making misrepresentations to the Director violated Rules 8.4(c) and
MRPC, and Rule 25, In re Overboe, 745 852, 859 (Minn. 2008)
(lawyer who made false statements to the Director about purpose and nature of

trust account violated Rules 8.1(a) and MRPC, and Rule 25, RLPR).

3. Respondent Knowingly Made False Statements to the Director
Durirg the Course of Respondent?s Probation and Failed to

Fully Cooperate.

In addition to making false statements to the Director during the course of
the Director?s investigation, separately, respondent made false statements to the
Director during the supervision of respondent?s probation and failed to fully
cooperate.

The Director's Office asked respondent if she placed any unearned portion
of fees in the Bump and Walker matters into a trust account as would be required

absent a valid flat fee agreement. Respondent falsely indicated that she had

27

placed such fees into her trust account and agreed to provide proof of deposits
(Tr. 272.).

On January 23, and again on February 21, 2018, the Director?s Office
followed up with respondent about the promised proof of deposits into the trust
account (D. Exs. 25-27). Respondent delayed in providing the requested
information until early March 2018 (Tr. 281-282, 314). Respondent claims that
trials and other hardships prevented her from complying with requests
for information as required by the Court?s probation order and Rule 
MRPC. The referee did not find respondent? excuses credible and as further
detailed below, considering the totality of facts surrounding the delay and the
backdrop of dishonest behavior surrounding respondent?s reluctance to provide
the requested information, the referee did not err.

False Statement About Placing the Funds in Trust.

Respondent disputes Ms. Frank?s testimony and claims that respondent
told Ms. Frank that respondent was not sure where the money went but would
check (Tr. 415-416). Ms. Frank?s testimony is supported by the evidence while
respondent?s testimony is not. In all follow-up discussions of the Bump and
Walker deposits, Ms. Frank consistently asked respondent numerous times for
proof of deposit into the trust account, not where the money was deposited,
which would be the case if respondent indicated she needed to check (Tr. 271 D.
Exs. 25-27). The assumption was that the funds were deposited into
respondent?s trust account, which would only be the case if respondent
represented that the funds, in fact, were placed into her trust account.

If, as respondent testified, she told Ms. Frank that respondent did not
know where the funds were deposited, and therefore had to check, the fact that

28

respondent discovered they were placed into respondent?s personal account
would end the discussion and not require proof of deposit (Tr. 270?271). Yet,
respondent insisted that the deposits into her personal account were not as she
intended and claimed they were deposited there in error (Tr. 447-448; D. Ex. 19).
It is unclear how respondent knew she intended for the deposits to be placed into
trust, when she claimed initially that she did not recall where those funds were
deposited.

Further, respondent?s false statement to Ms. Frank was knowingly false.
Respondent is responsible for making the deposits relating to these fees, and
should know where those deposits were made. Here, respondent believed she
had a valid ?at fee agreement, which would have allowed her to place the
advanced fees into her personal or business account (Tr. 278). It would make
sense for respondent to place such funds into her personal account (Tr. 278).

Respondent?s subsequent actions also evidence that respondent knew the
Bump and Walker funds were not placed into trust and she never intended for
the funds to be placed into trust. Over the course of more than one year,
respondent never noticed her personal account had more money than it should
(Tr. 449?450). Even more troubling, is that if respondent intended for the funds
to be placed into trust, she should be accounting for the funds, attributing them
to her clients and reconciling her trust account as required by the Rules of
Professional Conduct (Rule 1.15, Tr. 277-78). At no time over the course
of the years did respondent notice missing funds from her trust account (Tr. 450).
When respondent finally earned the fees at the conclusion of the representation,
respondent never transferred the funds from the trust account to her personal

account (Tr. 450-451). Respondent?s actions show not only that she did not

29

intend to place the Bump and Walker funds into trust as she represented to the
Director, but that she knew she had not placed the funds into trust.
False Statement About the Deposit Being a Bank Error.

To cover up her initial false statement that the funds were placed into trust
(that she was unable to prove) respondent claimed she contacted Wells Fargo to
inquire about this issue and spoke with Jeremy Stirewalt, a bank employee.
Respondent claimed Mr. Stirewalt told respondent that placement of the funds
into respondent?s personal account, rather than into her trust account, was a
bank teller?s error (Tr. 276). Ms. Frank requested that respondent provide
documentation from the bank verifying the error, which respondent was unable
to do (Tr. 276; D. Ex. 27).

Mr. Stirewalt testified that he never told respondent that the deposits
made were due to a bank error (Tr. 214-217, 221-222, 243, 256). Respondent made
the deposits in question in 2016 and 2017, and inquired from Mr. Stirewalt about
these deposits in 2018 (Tr. 213). Mr. Stirewalt testified that it would be difficult,
especially without investigation, to determine a bank error on a deposit at any
time, much less a deposit made a year or two earlier (Tr. 214-217, 221?222, 243,
256). In this case, Mr. Stirewalt was never asked to investigate further into how
the funds that respondent claimed she intended to deposit into her trust account
were deposited into her personal account (Tr. 220). Mr. Stirewalt testified that he
is certain he did not state to respondent that the deposit made into the ?wrong?
account was a ?bank error.? (Tr. 214-217, 221?222, 243, 256.) This is because the
transactions were made too long ago and, absent further investigation, that
conclusion could not be made. Mr. Stirewalt also testified the reason he refused

to write a letter stating the deposits made into respondent? 5 personal account

30

was a bank error was because there is no way he could confirm that claim
(Tr. 214-217, 221-222, 243, 256). The referee correctly found Mr. Stirewalt?s
testimony credible in light of the surrounding facts.

The record supports that respondent knowingly made false statements to
Ms. Frank when she told Ms. Frank respondent placed the funds into trust, that
the placement of the funds into respondent's personal account rather than into
the trust account was due to bank error, and that Mr. Stirewalt told respondent it
was due to bank error. With the backdrop of false statements, and the inability
to prove them, respondent took close to three months to finally come clean that
the deposits were place in her personal account rather than into trust (Tr. 272,
274, 281?282). This evidence calls into question respondent?s credibility
regarding her true reasons for delaying in cooperating with the Director?s

request. The referee did not err in his findings on this issue.

C. The Referee Correctly Found That Respondent Engaged in the
Unauthorized Practice of Law on Numerous Occasions.

Rule MRPC, provides that, lawyer shall not practice lawin a
jurisdiction in violation of the regulation of the legal profession in that
jurisdiction.? Rule MRPC, provides that a lawyer shall not ?knowingly
disobey an obligation under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists."

Respondent was suspended from the practice of law by court order, for a
minimum of 45 days effective July 19, 2017 (D. Ex. 1). After respondent?s
suspension from the practice of law, respondent nonetheless engaged in legal
practice on at least three occasions, despite not being authorized to practice.

Respondent?s conduct violated Rules 3.4(c) and MRPC, when she engaged

31

in legal practice in violation of the Court?s suspension order and while not
authorized to practice law.
The August 1, 2017, Review Hearing.

The record is clear that respondent was suspended from the practice of law
when she appeared at the August 1, 2017, review hearing on behalf of Mr. Bump.
Respondent does not deny she was practicing law on August 1, 2017, when she
appeared at the review hearing (Tr. 402-403). Instead, respondent claimed that
she believed her suspension began August 2, 2017 (Tr. 408, 483). This claim is
not credible and does not absolve respondent from being found to have engaged
in the unauthorized practice of law.

Respondent is responsible for reading the Court?s order and clarifying any
confusion with the order. Respondent is responsible for knowing the status of
her own attorney license. Respondent, as a licensed attorney practicing for 15
years, should know that the Court?s final order controls and supersedes the
underlying stipulation, particularly since the stipulation specifies that it is a
recommendation to the Court and acknowledges that the Court can impose any
level of discipline (R. Ex. 100).

The fact that respondent stated her suspension was effective August 2,
2017, on her Rule 26, RLPR, disclosures, is not evidence of her good faith belief
that she was authorized to practice law on August 1, 2017. Indeed, the evidence
suggests otherwise. Respondent drafted the Rule 26, RLPR, disclosure letter
notifying Referee Madden and Ms. Longrie of her suspension and dated the
letter July 28, 2017 (Tr. 403; D. Exs. 13 and 14). The letters were not placed in the
mail, however, until August 1, 2017, and would not be received until after the

August 1, 2017, review hearing (D. Exs. 13 and 14). If anything, respondent?s

32

action establishes that she purposely hid, from all parties at the review hearing,
that she was suspended from the practice of law. Respondent never mentioned
her suspension when discussing future hearing dates at the review hearing, even
though her suspension was material to the discussion (Tr. 32, 101, 134, 180,
189-190). Respondent failed to send the notices required under Rule 26, RLPR,
until after the hearing was held, despite dating the notices four days earlier

(D. Exs. 13 and 14). The referee did not err rejecting respondent? excuses and
finding respondent engaged in the unauthorized practice of law on August 1,
2017.

Even assuming respondent had a good faith belief that she was permitted
to appear at the August 1, 2017, review hearing, as she claims, this does not mean
respondent did not engage in the unauthorized practice of law. Rule 
MRPC, provides, lawyer shall not practice law in a jurisdiction in Violation of
the regulation of the legal profession in that jurisdiction . . . There is no
?knowing" requirement in Rule MRPC. In re Panel File No. 39302, 884
661 (Minn. 2016) (affirming private admonition for attorney? 5 practice of
law in Minnesota by negotiating, via email, with Minnesota attorney regarding
satisfaction of Minnesota judgment involving representation of Minnesota
resident, where attorney wrongly believed that he was permitted to negotiate
settlement without being licensed in Minnesota).

August 7, 2017, Email Correspondence.

The day before a scheduled hearing that respondent was not allowed to
attend because of her suspension, respondent informed the parties that she was
unable to attend because of her suspension (D. Ex. 7). But, in addition to

informing the parties of her suspension, respondent addressed, on behalf of her

33

client, other matters, including her client?s position regarding the 

proposal. In the email, respondent stated:

Please be advised doesn?t not agree with the proposal
and wants her to complete a exam as she was
previously ordered before therapy would begin. has been
having nightmares since he learned of the potential therapy . . . . His
therapist has attempted to contact the GAL to no avail.

(D. Ex. 7.) Contrary to respondent?s claim, her correspondence was not limited
to scheduling, but contained substantive information relating to the case.
Moreover, respondent tries to redirect the conversation away from discussion of
respondent?s suspension to focus on substantive issues stating in an email dated
August 8, 2017, ?The focus of our emails should be Re?scheduling the phone
conference and the concerns addressed in Mr. Bump?s letter sent to you and the
Court as they Reiser [sic] to what is in the best interest of [the child].? (D. Ex. 9.)
Respondent?s discussion of her client?s case with Referee Madden, Ms. Longrie
and the GAL in the August 7, 2017, email constitutes the unauthorized practice
of law because respondent engaged in legal practice while respondent?s license
to practice law was suspended.

Respondent claims the emails she sent on August 7, 2017, to Referee
Madden and Ms. Longrie were not sent in her capacity as Mr. Bump?s attorney
(Tr. 436). Respondent's claim is preposterous and the referee correctly rejected
this argument. Respondent is the attorney of record (Tr. 27-28, 127-129, 398; D.
Exs. 2 and 3). Respondent had been representing Mr. Bump for over a year (Tr.
27-28, 127-129, 389-399; D. Exs. 2 and 3). Respondent was forwarding
information that Mr. Bump disclosed to respondent, as Mr. Bump?s attorney, to
other parties and advocating for Mr. Bump?s interest (Tr. 436; D. Ex. 7). If

respondent is not communicating with Referee Madden and Ms. Longrie in her

34

capacity as Mr. Bump?s attorney, it is unclear in what capacity respondent is
discussing her client?s case with Referee Madden and Ms. Longrie. Announcing
to Referee Madden and Ms. Longrie that respondent is suspended from the
practice of law does not make her actions advocating and communicating
substantively about the case acting outside of her capacity as an attorney.

Tellingly, in respondent?s initial answer to the Director?s notice of
investigation, respondent acknowledged that she should not have engaged in
substantive discussion about her client?s case because she was suspended (D. Ex.
11). Respondent?s claim that she was not engaging in the unauthorized practice
of law because she was not representing her client in the August 7 emails is
without merit and not supported by the record.

Finally, respondent points to reliance on Rule 5.8, MRPC, to justify her
actions. Rule 5.8, MRPC, governs lawyers who hire suspended or disbarred
attorney to work for them. Rule 5.8, MRPC, is entirely unrelated to respondent,
who herself was a suspended attorney and was not working for or hiring
anyone. Not only is it a stretch for respondent to claim reliance on Rule 5.8,
MRPC, was responsible for her misconduct, it is troubling that respondent
continues to fail to recognize the wrongful nature of her misconduct and take
personal responsibility for her actions.

Sumrall Representation.

On or around June 23, 2017, respondent was retained by Joanne Hill
(previously Sumrall) to represent Ms. Hill?s daughter, Jamier Sumrall, on three
criminal matters (Tr. 318). After the Court ordered respondent? 5 suspension
from the practice of law effective July 19, 2017, respondent continued her legal

representation of Ms. Sumrall (Tr. 468-471; D. Ex. 16). Between July 24 and 31,

35

2017, respondent consulted with Ms. Sumrall and others about Ms. Sumrall?s
case and provided legal advice and consultation for which she invoiced

Ms. Sumrall for the legal work (Tr. 468-471; D. Ex. 16). On August 1, 2017,
respondent contacted a clerk of the Dakota County District Court and the

prosecutor regarding a possible continuance of the case (D. Ex. 16). These facts

are not disputed.

II. The Referee?s Finding of No Mitigation is Proper.

Respondent raises the issue of mitigation for the first time on appeal. It is
well settled that the Court ordinarily does not decide issues that are raised for
the first time on appeal. Cf. In re Tayari-Garrett, 866 513, 520 (Minn. 2015)
(Court declined to consider mitigation for the first time on appeal finding referee
did not err in not considering mitigation when respondent did not raise it); In re
Day, 710 789, 794 (Minn. 2006) (mitigation not considered because
respondent failed to previously raise it); In re Cowan, 540 825, 827 (Minn.
1995) (Court declined to consider mitigation because respondent did not
previously raise it). Respondent never raised mitigation in her answer to the
petition for discipline and her proposed findings of fact and conclusions of law
to the referee, and at trial. The referee did not err in finding no mitigation based
on what was raised at trial.

At trial, respondent claimed remorse and indicated what she would have
done differently. But at the same time, respondent continued make excuses to
justify her actions relating to her most serious misconduct. Respondent still does
not believe she had an obligation to disclose her suspension at the review
hearing (Tr. 404-405), she still does not acknowledge that she engaged in the
unauthorized practice of law when she went beyond discussing scheduling and

made substantive statements of her client?s case (Tr. 437-438), she still does not

36

acknowledge that she is responsible for reading the Court?s suspension order
and instead continues to shift blame to the Court?s order for differing from the
stipulation (T r. 394-395), she still does not acknowledge the importance of
honesty and candor in the legal profession, and she does not acknowledge how
her actions harmed others and the legal profession (Tr. 472-473, 522).

In considering mitigating factors, the Supreme Court ?looks for an
appreciation by the attorney of the harm he has caused others and evidence that
he considers himself obligated to conform to the rules." In re Thedens, 557
344, 347-48 (Minn. 1997). Respondent? 3 claims of remorse are related to
what she would have done differently to avoid disciplinary proceedings, not
remorse for the harm she caused due to her misconduct or an acknowledgement
that she violated the Rules of Professional Conduct. In light of the totality of
testimony and evidence before the referee, respondent? 3 claims for remorse rang
false and the referee did not err in finding no remorse. Such a lack of remorse
has been viewed as an aggravating factor, as discussed below. Cf. Getty, 452
.W.2d 694, 699 (Minn. 1990) (noting the lawyer made ?repeated attempts to
blame everyone but himself for his troubles?).

Respondent also mentioned during her testimony hardships in her life
surrounding caring for her mother who has breast cancer, but only as it related to
her public discipline in 2017, and why she did not appear at a hearing in that
matter, which led to her discipline (Tr. 477). Respondent did not raise the issue
of her mother?s cancer as a factor to consider for her misconduct in this matter
until this appeal (Tr. 477). The facts surrounding the 2017 discipline have been
admitted to by respondent as part of the stipulation (R. Ex. 100). Respondent?s
continued refusal to take full responsibility for her actions with regard to the

2017 discipline is telling and supports the referee?s finding of no remorse.

37

The referee did not error in finding no mitigation relating to respondent?s
mother's illness because evidence was not presented at trial to support this claim
of mitigation for the misconduct in this case. Moreover, other than respondent?s
mention of her mother?s cancer as it relates to why she failed to appear at a
hearing leading to her 2017 discipline, respondent provided no other support for

this claim. The referee did not err in finding no mitigation in this case.

The Referee?s Recommendation of a Six-Month Suspension is Appropriate
and Supported by the Court?s Precedent.

The Court has stated that, ?[t]he purpose of discipline for professional
misconduct is not to punish the attorney but rather to protect the public, to
protect the judicial system, and to deter future misconduct by the disciplined
attorney as well as by other attorneys.? In re Rebeau, 787 168, 173 (Minn.
2010). In determining the appropriate discipline, the Court considers: 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.?
Ulanowski, 800 at 799 (citations omitted). The Court ?also consider[s]
aggravating and mitigating circumstances.? In re O?Brien, 894 162, 166
(2017). The Court ?1ool<[s] to similar cases in seeking to impose consistent
discipline.? In re Matson, 889 .W.2d at 23 (citing Albrecht, 779 at 540);
see also O?Brien, 894 at 166 (citation omitted). Although prior decisions
guide and aid the Court in enforcing consistent discipline, the Court ultimately
determines sanctions on a case-by-case basis after examining the unique facts
and circumstances of each case. Rebeau, 787 at 174; In re Mayrand, 723
261, 268 (Minn. 2006). The referee?s recommendation of a six-month
suspension is consistent with the Court?s precedent and fulfills the purpose of

attorney discipline.

38

A. The Nature of Respondent?s Misconduct is Serious.

Because of the public?s and the Court?s reliance on honesty from a lawyer

I

dishonest conduct warrants severe discipline. See, e. g, In re Ruffenach, 486
at 391 and integrity are chief among the virtues the public
has a right to expect of lawyers. Any breach of that trust is misconduct of the
highest order and warrants severe discipline?); In re Dedefo, 752 at 531
dishonesty is a particularly serious disciplinary violation, and ?we
should not hesitate to impose severe discipline when a lawyer demonstrates a
lack of truthfulness and candor?? (quoting In re Ganley, 549 368, 370
(Minn. 

In In re Schmidt, 402 .W.2d 544, 548-49 (Minn. 1987), the Court discussed
the importance of honesty and candor as traits that ought to be exhibited by

lawyers who are given licenses to practice law:

To a great degree our system for the administration of justice is
based upon the integrity of the lawyers who handle litigation before
the courts. Attorneys at law are officers of the court and have been
so regarded for centuries. As we have done in Minnesota,
traditionally courts have established procedures by way of bar
admission requirements and standards to attempt to insure that only
those who possess that integrity shall be admitted to practice. When
we admit an applicant to the bar, in effect, we are certifying to the
bench, to the bar, and to the public that that person possesses
character traits of honesty and personal integrity. Likewise, when,
notwithstanding such pre-admission scrutiny, a lawyer
demonstrates a lack of that truthfulness and candor that the courts
have a right to expect of their officers to the end that the system of
justice will not be undermined, courts do not hesitate to impose
severe discipline. This court has noted that, ?An attorney who
deliberately deceives the court is guilty not only of obstructing the
administration of justice but also of subverting that loyalty to the

39

truth without which he cannot be a lawyer in the. real sense of the
word.? in re Nilm, 266 Minn. $70, 583, l23 N.W.2ti 803, 809 (1963).

Respondent's misconduct. involving multiple acts of dishonesty is serious and
warrants severe discipline.

Respondent engaged in a pattern of dishonest conduct demonstrating her
disregard of the Rules of Professional Conduct and her obligations to tell the
truth. After the Minnesota Supreme Court suspended respondent from the
practice of law, respondent improperly appeared before a family court referee in
a family law matter and made false statements about why she was unable to
appear at any subsequent hearings for the following six weeks. Rather than
telling the parties that she was suspended from the practice of law, respondent
falsely stated that she was unable to attend future hearings because of vacations
and various trials. During the course of the Director's investigation into the
matter and during the course of respondent? supervised probation, respondent
made numerous false statements to the Director. Respondent? misconduct,
occurring while on public probation, is serious and strikes at the foundation of
what is expected of an of?cer of the court.

While respondent? numerous false statements made to a tribunal, to
others, and to the Director, alone would warrant a suspension,
respondent also engaged in other misconduct, including engaging in the
unauthorized practice of law at least three times in direct violation of the Court?s
suspension order. The nature of respondent?s misconduct warrants a 

suspension.

40

 

Supports A ?i\-l\lonth Suspension.

When assessing the cumulative weight of violations, the Supreme Court
distinguishes a "brief lapse in judgment? or ?a single, isolated incident? of
misconduct from ?multiple instances of mis[conduct] occurring over a
substantial amount of time.? In re um'n, 821 195, 208 (Minn. 2012)
{citation omitted) (internal quotations omitted). Accordingly, ?the 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.? In re Oberhauser, 679 153, 160 (Minn. 2004). Respondent?s
misconduct includes multiple acts of misconduct over a period of time and
warrants suspension.

Respondent?s misconduct involves multiple false statements on multiple
occasions and the misstatements were made to multiple people. In addition,
respondent engaged in other misconduct as discussed above. Respondent?s
conduct cannot be viewed as a lapse of judgment or isolated. Respondent
knowingly made false statements on at least four separate occasions, and these
false statements were made before a tribunal, to opposing parties, and to the
Director during the course of a discipline investigation and supervised
probation, and during respondent?s deposition. Respondent engaged in the
unauthorized practice of law at least three times. The cumulative weight of

respondent?s misconduct is heavy and warrants a suspension.

C. Respondent?s Misconduct Caused Harm to the Public and the Lega_1
Profession.

As part of the Court?s analysis with respect to the harm caused to the
public and the legal profession, the Court takes into consideration the number

of clients harmed [and] the extent of the clients? injuries.? In re Rambow, 874

41

 773, 779 (Minn. 2016) (quoting In re Coleman, 793 296, 308 (Minn.
2011)). Respondent's misconduct caused harm. The harm caused to the public
and to the legal profession by respondent?s misconduct is the prejudice to the
administration of justice. ?An attorney who deliberately deceives the court is
guilty not only of obstructing the administration of justice but also of subverting
that loyalty to the truth without which he cannot be a lawyer in the real sense of
the word.? In re Nilva, 123 at 809.

Additionally, respondent?s client?s case was delayed because she had to
continue the hearing. The referee, opposing counsel, and the GAL were ready
for the telephone hearing to advance the case (Tr. 130-132). Because of
respondent?s false statements and omission, they had to change their schedules,
thus delaying the progress of the case (Tr. 33-35, 145-148). As Ms. Longrie
testified, respondent?s misconduct caused additional stress and harm to her
client (Tr. 147). Ms. Longrie?s client was trying to move forward with the
guardian?s recommendation on therapy and was interested in getting that piece
into place (Tr. 146). But there was no hearing on August 8, 2017, because of
respondent?s suspension that respondent failed to disclose, and then the parties
had to take time to find new hearing dates with Mr. Bump having no
representation (Tr. 147-148). Ms. Longrie testified that the impact of delays was
heart?breaking for her client because her client wanted to start family therapy so
she could see her son (Tr. 147). Ms. Longrie testified that there was ?light at the
end of the tunnel? for her client with the case moving forward with the August 8,
2017, telephone hearing, but it was suddenly taken away (Tr. 147).

Ms. Hill testified that respondent? conduct caused her stress and
additional attorney?s fees (Tr. 328-329). Two weeks before her daughter?s
hearing, which respondent failed to continue and could not attend due to her

suspension, Ms. Hill had to pay $10,000 to another attorney to quickly perform

42

legal work that respondent was supposed to do (Tr. 378). This caused harm to
Ms. Hill and her family.

Even in cases where there is no actual harm to a client, the Court has found
harm when an attorney is dishonest. The Court?s analysis in In re Winter, 770
at 463, is instructive on this point. Winter?s misconduct involved a
single false statement in a motion he filed with the immigration tribunal that was
also sent to his client? 3 former attorney. The Court found that while the parties
were not harmed by the misconduct, ?[t]he harm caused to the public and to the
legal profession by Winter?s conduct is the prejudice to the administration of
justice.? Id. at 468. For a single false statement, Winter received an indefinite
suspension of at least 120 days for his misconduct.

Respondent? 5 failure to cooperate honestly with the disciplinary
investigation also ?harm[s] the legal profession by undermining the integrity of
the attorney disciplinary system.? In re Harrigan, 841 624, 630 (Minn.
2014) (quoting In re Ulanowski, 834 .W.2d 697, 703 (Minn. 2013)). The Court in
Harrigan found that in lying to the Director and failing to cooperate, ?Harrigan?s
misconduct caused harm not only to his clients, but also to the general public
and the legal profession.? Id. at 630. The harm respondent caused Ms. Hill,
others, and the legal profession warrants a suspension. Yet, respondent
continues to deny the harm she caused by pointing to the fact that her clients
never complained. But an attorney can cause serious harm to the legal
profession and others, without causing specific harm to clients, as was the case

here, and respondent? 5 continued refusal to acknowledge the harm her actions

caused is troubling.

43

D. The Referee Found Multiple Factors Exist to Aggravate. and N9
Factor Exists to MitgateLthejanction for Respondent's Misconduct.

In determining the appropriate discipline to be imposed in disciplinary
matters, the Court also takes into account any mitigating or aggravating
circumstances. See In re Perez, 688 562, 567 (Minn. 2004). The referee
found a number of aggravating factors.

First, the referee found respondent's history of discipline is an aggravating
factor (cite). See In re Mayrand, 723 261, 269 (Minn. 2006). The Court
considers a lawyer?s prior discipline and misconduct when determining the
appropriate discipline for new misconduct, and generally imposes more severe
sanctions when the current misconduct is similar to the misconduct for which an
attorney has already been disciplined. In re Brooks, 696 84, 88 (Minn.
2005) (citing Cutting, 671 .W.2d at 175).

Further, respondent?s misconduct occurred on the heels of her previous
suspension and during probation, which is an aggravating factor. We expect ?an
attorney to exhibit a renewed commitment to ethical behavior following a
disciplinary proceeding,? In re Ili??, 487 234, 236 (Minn. 1992), and we
?look[ closely at prior misconduct, especially when current misconduct occurs
while an attorney is on probation.? In re Milloy, 571 39, 45-46 (Minn.
1997). This is because ?[f]or probation to be successful, it must result in renewed
commitment to ethical and professional behavior.? In re Munns, 475 82,
85 (Minn. 1991). Here, while respondent?s prior discipline does not involve
similar misconduct, the fact that the misconduct occurred while on probation
aggravates the discipline. In In re Winter, 770 at 468, Winter?s
disciplinary history of a private admonition for failure to communicate and a
private probation for lack of communication, diligence, and competence, was

considered an aggravating factor, particularly since the misconduct in the

44

present case occurred while Winter was on probation. Respondent?s disciplinary
history is worse than in Winter. Respondent has had two previous admonitions
and a 45?day suspension. The current misconduct also occurred while
respondent was on supervised probation. Respondent? disciplinary history is
an aggravating factor.

Second, the referee found respondent?s intentional misconduct an
aggravating factor (A. 25). In re Fru, 829 379, 390 (Minn. 2013).
Respondent?s misconduct was intentional. Respondent knew she was
suspended, and knew that her suspension would be relevant and material to a
scheduling hearing. Respondent ignored the Court?s suspension order and
engaged in the unauthorized practice of law on at least three occasions. While on
probation, respondent continued to engage in misconduct by making false
statements to the Director and then making additional false statements to cover
them up. While the Director acknowledges that the Court will not consider
intentional misconduct as an aggravating factor when one of the elements of the
violation requires ?knowing false statement? as is the case for Rules 4.1,
and MRPC, since Rule MRPC (as well as Rules 
and do not have an intent requirement, the Court has held in such
instances, intentional nature of misconduct is an aggravating factor. See Sea, 932
.W.2d at 37?38.

Third, the referee found respondent?s lack of remorse an aggravating
factor. Respondent refuses to acknowledge the wrongful nature of her conduct.
The Supreme Court has repeatedly stated that this is an aggravating factor. See
In re Westby, 639 .W.2d at 371 [the lawyer] does not acknowledge
that she has committed any misconduct, she might engage in similar conduct in
the future unless she is appropriately sanctioned?); In re Ray, 610 342,
347 (Minn. 2000). In In re Pokorny, 453 345 (Minn. 1990), the referee

45

found the lawyer's ?attitude 'to be the most distressing aspect of the case. There
is no contrition, no remorse, and no willingness to make amends. Everything
that happened has been the fault of others . . . Id. at 348 (ellipses in original).
Efforts to minimize misconduct by suggesting that actions were justified and
undertaken with good intentions support a finding that a respondent?s
misconduct is aggravated because the respondent fails to appreciate the severity
of his misconduct. In re Winter, 770 NW. 2d at 468. When such evidence is
present, the Court cannot be assured that misconduct will not recur and a
finding that a respondent fails to appreciate the severity of his conduct is
supported by the record. Id.

Like the lawyers in Westby and Pokorny, respondent refuses to see the error
of her ways. Respondent does not acknowledge any improper actions. She
offers tortured interpretations to try to explain away misrepresentations. At no
point during the trial before the referee did respondent take responsibility for her
misconduct. Instead of acknowledging that the Court?s suspension order
required her suspension immediately, respondent continues to claim that the
stipulation was controlling. Ms. Hill?s testimony revealed that at no point since
respondent was terminated from the representation of Ms. Sumrall?s case, did
respondent apologize for how she handled Ms. Sumrall?s case (Tr. 329-330).
During the trial, respondent refused to acknowledge that her actions harmed
anyone, including the judicial system (Tr. 522). Respondent even failed to take
responsibility for the misconduct that led to her suspension in 2017 (Tr. 477, 552).
While respondent claims that her 2017 suspension caused her embarrassment
and shame, she continued to claim the suspension was not justified, even though

respondent signed a stipulation admitting to the allegations in that matter (R. Ex.
100).

46

Respondent only showed regret that her conduct led to these disciplinary
proceedings and how these proceedings affected her life, but respondent never
acknowledged that it was her misconduct that led to these proceedings. Simply
put, respondent never acknowledged the wrongful nature of her actions.

Fourth, the referee found respondent?s dishonest conduct at trial to be an
aggravating factor. The Court has held that making additional
misrepresentations aggravates the sanction. Ulanowski, 800 at 792, 802.
In a case about candor to the court, to the Director, and to others, respondent
displayed a lack of candor with the referee during her testimony at trial. The
referee is in a unique position to gauge credibility, and the referee found that
respondent?s testimony contained false or misleading statements, leading to the
referee?s finding that such conduct constituted an aggravating factor.

Finally, as previously discussed, the referee properly found no factor exists

to mitigate the sanction for respondent?s misconduct.

E. All the Factors Taken Tgether, the Referee?s Recommendation of a
Six~M0nth Suspension is 

The strong discipline imposed upon lawyers who make false statements is
consistent with the Court's finding that lawyers should not engage in dishonesty.
?Honesty and integrity are chief among the Virtues the public has a right to
expect of lawyers. Any breach of that trust is misconduct of the highest order
and warrants severe discipline.? In re Ru??enach, 486 at 391. The Court
has found that lying is among the most egregious acts of misconduct a lawyer
can commit. See In re Ganley, 549 .W.2d at 370. This is because a lawyer is an
officer of the court. Courts and others rely on a lawyer?s integrity and honesty.
Nelson, 733 .W.2d at 465 (citing In re Ru??enach, 486 at 391). When a

lawyer makes a statement, it is understood that the lawyer is representing that

47

the lawyer is making a true statement and that the lawyer does not know the
statement is false.

Respondent?s multiple misrepresentations to the tribunal, the Director, and
others, warrant a suspension. The Supreme Court has ?suspended
attorneys for misrepresentations made to our judicial officers.? In re [ensen, 542
627, 634 (Minn. 1996). The Court has suspended lawyers for a single
misrepresentation to a court. See, e. In re Michael, 836 753, 758?59, 767
(Minn. 2013) (suspending lawyer for 30 days for making a false statement to a
court, disobeying a court order, making a frivolous argument, and improperly
accusing a judge of bias); In re Warpeha, 802 361, 361 (Minn. 2011)
(suspending a lawyer for 60 days for making a false statement about the lawyer?s
criminal history during voir dire when the lawyer was a potential juror); In re
Van Liew, 712 758, 758 (Minn. 2006) (suspending a lawyer for 90 days for
making a false statement to a tribunal and failing to file opposition to a motion).
Here, respondent made numerous false statements over the course of time, to
numerous people, including a tribunal, opposing counsel, and the Director.

In In re Winter, 770 463, (Minn. 2009), the attorney was suspended
for 120 days. Winter?s misconduct involved a single false statement in a motion
he filed with the immigration tribunal that was also sent to his client?s former
attorney. Similar to respondent, Winter also had prior discipline, although
Winter?s prior discipline consisted of a private admonition and a private
probation for engaging in a pattern of inadequate client communication,
inadequate case preparation, and incompetent representation. Id. at 466.
Respondent?s case is clearly more egregious than Winter. Respondent made
multiple false statements, across multiple days, to multiple parties and failed to
correct the false statements upon opportunity. Further, respondent has

numerous aggravating factors including public discipline and two private

48

admonitions. Respondent's numerous false statements and discipline history
alone warrant a suspension longer than the 120 days in In re Winter.

The Court?s most recent decision, In re Sea, 932 28, is also
instructive. In Sea, the lawyer failed to appear at a hearing, claiming that his
broken eyeglasses required him to drive to St. Paul to retrieve replacement
glasses. Id. at 32?33. In truth, Sea had to attend another hearing in Dakota
County. The Court imposed a 120-day suspension on Sea. Respondent?s
misconduct is worse than Sea?s. Sea stated the same false statements numerous
times to numerous people, but Sea involved the same false statements repeated
to different people at various times. Here, respondent made numerous false
statements, numerous times, to numerous people. Respondent made false
statements about the reasons for her unavailability for future hearings to Referee
Madden, Ms. Longrie and the GAL. This misconduct alone would warrant a
120-day suspension as was the case in Winter and Sea. But respondent also made
other false statements to the Director during the course of the Director?s
investigation and made additional false statements to the Director during the
course of respondent?s probation supervision. Respondent?s numerous and
separate instances of dishonesty over the course of time and in different
circumstances, warrant significantly more severe discipline than in Winter and
Sea.

Respondent also engaged in the unauthorized practice of law in violation
of the Court?s order, which, by itself, warrants severe discipline because the
unauthorized practice of law occurred while respondent was suspended. The
Court has applied ?harsher discipline? when a lawyer practices law while on a
disciplinary suspension as opposed to an administrative suspension. In re Iaeger,
834 705, 708 (Minn. 2013); In re Ru?ing, 883 222 (Minn. 2016) (the
Court rejected a joint recommendation for a public reprimand for unauthorized

practice of law while on a disciplinary suspension and imposed a suspension for

49

a minimum of 30 days). The Court has held, ?To impose a public reprimand for
respondent's unauthorized practice of law [during a disciplinary suspension]
would make the original . . . disciplinary suspension imposed by this court
largely meaningless.? In re Kennedy, 873 133 (Minn. 2016). Adding the
serious misconduct of engaging in the unauthorized practice of law (in violation
of Rule MRPC, and the Court?s suspension), to the numerous false
statements made by respondent, a six-month or 180-day suspension is consistent

with the established law.

CONCLUSION
For the foregoing reasons, the Director requests the Court adopt the
referee?s findings of fact, conclusions of law and recommendation.

Dated: December [3 ,2019. Respectfully submitted,

MW.W

SUSAN M. 

DIRECTOR OF THE OFFICE OF LAWYERS
PROFESSIONAL RESPONSIBILITY

Attorney No. 0254289

345 St. Peter Street

1500 Landmark Towers

St. Paul, MN 55102-1218

(651) 296-3952



and



T. TUONG

SENIOR ASSISTANT DIRECTOR
Attorney No. 0297434
Binh.Tuong@courts.state.mn.us

50

STATE OF MINNESOTA

IN SUPREME COURT

AIS-1967

 

In Re Petition for Disciplinary Action against
KARLOWBA R. ADAMS POWELL,

a Minnesota Attorney,

Registration No. 0327335.

 

CERTIFICATION OF LENGTH OF DOCUMENT

The undersigned certifies that this document conforms to the requirements
of the applicable rules, is produced with a proportional font, and the length of
this document is 13,459 words. This brief was prepared using Microsoft Word

2010.

Dated: December 2019. Respectfully submitted,

(sf

BINH T. TUONG

SENIOR ASSISTANT DIRECTOR

Attorney No. 0297434

Office of Lawyers Professional
Responsibility

1500 Landmark Towers

345 St. Peter Street

St. Paul, MN 55102-1218

(651) 296-3952

Binh.Tuong@courts.state.mn.us