In Re Petition for DISCIPLINARY ACTION AGAINST Christopher Robert WALSH, a Minnesota Attorney, Registration No. 199813 ( 2015 )

STATE OF MINNESOTA
IN SUPREME COURT
A14-0213
Original Jurisdiction Per Curiam
Took no part, Hudson, J.
In re Petition for Disciplinary Action against
Christopher Robert Walsh, a Minnesota Attorney, Filed: December 23, 2015
Registration No. 199813. Office of Appellate Courts
_______________________
Martin A. Cole, Director, Timothy M. Burke, Senior Assistant Director, Office of Lawyers
Professional Responsibility, Saint Paul, Minnesota, for petitioner.
John G. Westrick, Saint Paul, Minnesota, for respondent.
________________________
SYLLABUS
An indefinite suspension with no right to petition for reinstatement for 6 months is
the appropriate sanction for an attorney who engaged in dilatory behavior; failed to
communicate with clients; acted in bad faith; made a false statement to opposing counsel;
and chronically violated court orders and court rules, resulting in lost claims.
OPINION
PER CURIAM.
The Director of the Office of Lawyers Professional Responsibility (the Director)
filed a petition for disciplinary action against respondent Christopher Robert Walsh,
alleging, among other things, that Walsh engaged in dilatory behavior; failed to
communicate with clients; acted in bad faith; made a false statement to opposing counsel;
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and chronically violated court orders and court rules, resulting in lost claims. The referee
concluded that Walsh’s conduct violated the Minnesota Rules of Professional Conduct,
found several aggravating factors, and recommended that Walsh be suspended from the
practice of law for a minimum of 1 year. We conclude that Walsh committed professional
misconduct that warrants an indefinite suspension with no right to petition for
reinstatement for 6 months.
I.
Walsh began practicing law in Minnesota in 1989. He has not been previously
subject to professional discipline. Walsh’s law practice includes litigation of employment
discrimination, personal injury, and wrongful death claims.
The petition for disciplinary action alleged five counts of misconduct, each
concerning a different client matter. Walsh admitted before the referee that he committed
the misconduct alleged in counts one through four. After an evidentiary hearing, the referee
made the following findings and conclusions.1
Count 1—M.I. Matter
Beginning in 2006, Walsh represented relatives of M.I. in a wrongful death claim.
M.I. was arrested by U.S. Immigration and Customs Enforcement and died while in
custody at the Ramsey County Adult Detention Center. Walsh failed to timely file and
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Walsh admitted violating Minn. R. Prof. Conduct 1.1, 1.3, 1.4, 3.1, 3.2, 3.4(c),
3.4(d), and 8.4(d) as they related to the first four counts of the petition for disciplinary
action. The referee accepted Walsh’s admissions and concluded that Walsh violated Minn.
R. Prof. Conduct 1.3, 3.2, 3.3(a)(1), 3.4(c), 4.1, 8.4(c), and 8.4(d) with regard to count five
of the petition.
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serve both the administrative tort notice and the summons and complaint required under
federal law. By doing so, Walsh allowed two separate statute of limitations provisions
affecting the same cause of action for the same client to expire. Also, Walsh did not timely
serve affidavits of expert review and expert identification, which were required because
the complaint he drafted alleged medical malpractice. Additionally, Walsh included
frivolous claims in the complaint by bringing claims against defendants who were not
capable of being sued. Walsh engaged in other dilatory conduct in violation of court rules
during the litigation.2 Ultimately, the claims in this action were dismissed because of
Walsh’s untimely filings and dilatory conduct.
Count 2—R.B. Matter
Walsh represented R.B. and five other people in an action he filed against the City
of Minneapolis and others in federal district court in 2010. Walsh repeatedly failed to
comply with deadlines in the court’s scheduling order. Nearly four months after the
deadline, Walsh provided the disclosures required by Fed. R. Civ. P. 26(a). About two
months after the deadline for expert disclosures, although he provided the names of his
experts, he failed to provide any expert reports. Walsh’s answers to interrogatories were
made months after the due date, and they contained answers from only two of his six
clients. Walsh never provided interrogatory answers on behalf of the other four clients.
2
Walsh failed to file pleadings and other documents in a timely fashion in response
to a motion for summary judgment, even after being granted additional time by the federal
district court. Walsh also filed an objection to an order by the court that exceeded the
word-count limitation. In addition, he failed to redact personal identifying information,
such as social security numbers, names of minors, and dates of birth, in deposition
transcripts he filed with the federal district court.
3
Walsh began conducting discovery 17 months after he commenced the action and 33 days
before discovery closed.
Opposing counsel filed motions to compel and exclude expert testimony, and Walsh
filed motions to extend discovery and impose sanctions for opposing counsel’s alleged
failure to identify experts. Walsh filed a memorandum in support of his clients’ motions
and a memorandum in opposition to the defense motion 14 days and 7 days, respectively,
after they were due. The district court refused to consider the memoranda because they
were untimely filed. The court also excluded plaintiffs’ expert witnesses because Walsh
failed to timely identify them. Walsh objected to the order. His objection, however,
exceeded the word limit, and he sought relief regarding issues that were not addressed in
the order.
On July 15, 2012, opposing counsel served and filed a motion for summary
judgment. Once again, Walsh’s response was late. It also included incomplete sentences,
blank citations to the record, and citations to inapposite portions of the record.
Count 3—C.D. Matter
Walsh represented C.D. in a personal injury matter, and in October 2006, the
insurance carrier involved stopped paying no-fault benefits to C.D. Walsh notified C.D. in
December 2006 that his benefits had been terminated. Walsh did not send a demand letter
to the insurance carrier until nearly 5 years later. Between February 2008 and January
2009, Walsh failed to perform any substantial work on C.D.’s case. Between September
2011 and February 2012, Walsh failed to communicate with C.D. even though the
insurance carrier made a settlement offer in November 2011.
4
Ultimately, the claims in this action were dismissed because, although Walsh filed
an action against the insurance carrier in March 2012, he failed to comply with the
applicable filing requirements, depriving the district court of jurisdiction to consider the
matter. By August 2012 the statute of limitations had expired, and C.D.’s claims were
permanently barred. Walsh initially told C.D. that the insurance carrier had filed a motion
asserting that Walsh had filed the claim too late but that “it was just legal stuff and not a
big deal.” Eleven days after the case was dismissed, Walsh told C.D. that the court
dismissed the case because Walsh untimely filed it.
Count 4—G.H. Matter
Walsh commenced an employment discrimination lawsuit on behalf of G.H. by
filing a complaint that was copied from an unrelated matter and contained irrelevant claims.
Walsh responded to a motion to dismiss 20 days after the deadline, and as a result, the
district court refused to consider it. Walsh filed an amended complaint 4 months after
filing the original complaint and failed to include the redline edits required by court rules.
Ultimately, the district court dismissed the claims because Walsh “repeatedly failed to
comply with the rules” and “unduly delayed and acted in bad faith in moving to amend his
complaint.”
Count 5—K.B. Matter
Walsh represented K.B. in an employment discrimination suit, alleging that the
employer had wrongfully terminated K.B.’s employment. The original complaint
contained allegations that were copied from a separate complaint involving a different
plaintiff against a different employer. The original complaint also indicated that an
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“Exhibit A” was incorporated by reference; however, no “Exhibit A” was attached.
Additionally, Walsh filed the complaint with inconsistent statements of K.B.’s age,
multiple spelling and grammatical errors, and incomplete sentences.
Soon thereafter, a first amended complaint was delivered to opposing counsel by
facsimile, and it also contained assertions that K.B.’s employment had been terminated,
incomplete sentences, blank spaces, and references to a non-existent “Exhibit A.” Walsh
later hand delivered a second amended complaint to opposing counsel. That complaint still
claimed that K.B.’s employment had been terminated, contained incomplete sentences, and
referenced a non-existent “Exhibit A.”
Opposing counsel filed a motion to dismiss in response to Walsh’s second amended
complaint. Walsh’s response was due 9 days before the hearing. Walsh waited until 2
days before the hearing to file the second amended complaint along with a letter to the
district court requesting a continuance of the hearing and an extension of time to respond
to the motion to dismiss. The court granted Walsh 9 days to submit a letter addressing
K.B.’s claims that was “not a word over five pages.” Walsh submitted a
6-page letter with 45 pages of exhibits. For reasons unrelated to Walsh’s conduct, the court
granted the employer’s motion to dismiss.
Before this court, Walsh challenges rulings made during the proceedings before the
referee. Walsh also challenges the referee’s findings and conclusions with respect to the
K.B. matter. We address each issue in turn.
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II.
We first turn to Walsh’s claims regarding the referee’s rulings. Walsh contends that
the referee erred by rejecting late amendments to his exhibit list. He also argues that the
referee erred by refusing to grant his motion to receive his medical records on a confidential
basis.
In a disciplinary proceeding, “[u]nless this Court otherwise directs,” the hearing
before the referee “shall be conducted in accordance with the Rules of Civil Procedure
applicable to district courts and the referee shall have all the powers of a district court
judge.” Rule 14(b), Rules on Lawyers Professional Responsibility (RLPR). Walsh’s
challenges involve the referee’s authority to control the schedule for the proceedings,
resolve discovery disputes, and make evidentiary rulings. We review these types of rulings
for an abuse of discretion. See In re Dedefo, 752 N.W.2d 523, 528 (Minn. 2008) (reviewing
a referee’s evidentiary rulings for an abuse of discretion); Broehm v. Mayo Clinic
Rochester, 690 N.W.2d 721, 727 (Minn. 2005) (reviewing a district court’s decision
regarding whether to extend a scheduling-order deadline for an abuse of discretion);
Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987) (reviewing a district court’s
rulings regarding discovery for an abuse of discretion).
A.
Walsh challenges the referee’s decision to prohibit late amendments to his exhibit
list. The proposed exhibits detailed communications between the attorney for K.B.’s
employer and Walsh, as well as communications between K.B. and other employees.
Walsh argues that he was not seeking to add undisclosed information to the exhibit list, but
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rather was attempting to include information previously disclosed and inadvertently
omitted. Walsh argues that because his amendments did not prejudice the Director and
were relevant to the K.B. matter, the referee’s order denying his request to amend his
exhibit list was an abuse of discretion.
In August 2014, after the date for the evidentiary hearing was rescheduled, the
referee, at the request of the Director, ordered that both parties refrain from any further
exchange of exhibit or witness lists. Walsh did not object to moving forward with the case
based on the discovery, exhibits, and witnesses already disclosed. When Walsh
subsequently moved to amend his exhibit list, the referee denied the motion after hearing
arguments regarding the limited amount of time Walsh’s counsel had to compile the list,
the prior disclosure of the documents to the Director, the tardiness of Walsh’s initial
disclosure of the exhibit list, and the order stating that no additional exhibits would be
allowed. Based on the record before us, we conclude that the referee did not abuse his
discretion by denying Walsh’s motion to amend his exhibit list.
B.
Walsh next challenges the referee’s order denying his motion to file documents
confidentially. Walsh sought to offer his medical records as mitigating evidence for his
conduct. By placing his mental state at issue, Walsh agrees that he waived any privilege
had was otherwise entitled to assert. See Minn. R. Civ. P. 35.03 (waiving the medical
privilege when “a party voluntarily places in controversy [his or her] physical [or] mental
. . . condition”). Walsh claims that such a waiver, however, does not preclude confidential
8
acceptance of the medical records by the referee. Walsh argues that because no prejudice
would have resulted, he should have been allowed to offer these documents confidentially.
The referee’s ruling on Walsh’s motion to designate certain medical records as
confidential is related to the referee’s simultaneous ruling on the Director’s motion in
limine to exclude evidence, including exhibits, relating to Walsh’s physical or
psychological condition because Walsh had not complied with the referee’s prior discovery
order.3 During the hearing before the referee, Walsh admitted that he had not signed any
medical releases, as required by the referee’s prior discovery order. The parties also
acknowledged that the documents Walsh wanted to designate as confidential would be
excluded if the referee granted the Director’s motion in limine. The referee granted the
Director’s motion in limine and denied Walsh’s motion to file the documents
confidentially.
The decision to grant the Director’s motion in limine to preclude Walsh from
offering evidence related to any physical or psychological condition and to deny Walsh’s
motion to offer medical records confidentially was subject to the referee’s discretion.
Given our deference to the referee on matters of this nature, and Walsh’s continual dilatory
conduct and his failure, at any point, to sign authorizations for the release of medical
3
In a July 11, 2014 order, the referee required Walsh to deliver complete and accurate
answers and responses to the Director’s interrogatories and document requests by July 15,
2014. In response to this discovery, Walsh was required to sign medical releases if, at the
hearing, he intended to raise any physical or psychological health condition as a mitigating
circumstance.
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information, we conclude that the referee did not abuse his discretion by denying Walsh’s
motion for confidential admission of his medical records.4
III.
We next turn to Walsh’s challenge to the referee’s findings and conclusions related
to the K.B. matter. “The Director bears the burden of proving professional misconduct by
clear and convincing evidence.” In re Voss, 830 N.W.2d 867, 874 (Minn. 2013). When a
party orders a transcript of the disciplinary hearing, as Walsh did, the referee’s findings of
fact and conclusions of law are not conclusive. Rule 14(e), RLPR; Voss, 830 N.W.2d at
874. Instead, we “give ‘great deference’ to the referee’s findings and will uphold [them]
if they have evidentiary support in the record and are not clearly erroneous.” Voss, 830
N.W.2d at 874 (quoting In re Coleman, 793 N.W.2d 296, 303 (Minn. 2011)). A referee’s
4
Following the decision of the referee to grant the Director’s motion in limine and to
deny Walsh’s motion regarding the confidential admission of his medical records, Walsh’s
counsel asked that certain documents be made part of the referee’s file with a confidential
designation as an offer of proof. The Director did not object to this request. The referee
indicated that the records could be submitted for that purpose but that they would not be
designated as confidential. Because the offer of proof related not only to whether these
documents could be used as evidence at the hearing but also whether they should be
designated as confidential, the better practice would have been for the referee to have
granted Walsh’s request. See Rule 20(d), RLPR (authorizing the referee to designate
documents as confidential). Walsh, however, has not identified any actual prejudice he has
suffered from the referee’s failure to allow him to make a confidential offer of proof. He
also has not suggested that his ability to raise issues before this court was affected by the
referee’s denial of his request to make a confidential offer of proof. Nor has he identified
any prejudice he suffered from the referee’s denial of his motion for confidential admission
of his medical records. In addition, Walsh has neither identified what specific mitigating
factors he was precluded from raising nor explained why the medical records were
necessary to establish mitigation. In fact, at the hearing before the referee on these motions,
Walsh’s counsel stated, “I don’t know whether or not” the documents he wanted to offer
confidentially “are sufficient to actually establish mitigation per se.”
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findings are clearly erroneous when we are “left with the definite and firm conviction that
a mistake has been made.” In re Strid, 551 N.W.2d 212, 215 (Minn. 1996) (quoting Gjovik
v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)). The proper interpretation of the rules of
professional conduct is a question of law, which we review de novo; but we review a
referee’s conclusion that an attorney’s conduct violated the rules of professional conduct
for clear error. In re Aitken, 787 N.W.2d 152, 158 (Minn. 2010).
A.
We begin with the issue of whether Walsh made false statements to the court
regarding K.B.’s “termination” with regard to the complaints he filed in the K.B. matter.
Walsh argues that the statements in the K.B. complaints are allegations and cannot be
misrepresentations because they are refutable facts. In the alternative, Walsh argues that
the statements about K.B.’s termination were true. Walsh argues that the act of eliminating
K.B.’s prior position, coupled with the act of offering a severance package, was tantamount
to termination. According to Walsh, the offer of a new position with a pay increase was a
new job offer that did not negate the claim of termination.
The Director argued, and the referee agreed, that the original complaint wrongfully
alleged that the employer terminated K.B.’s employment. The referee specifically found
that, “[a]lthough [K.B.]’s specific employment position . . . was eliminated, [K.B.] was
placed in another employment position. At the time [Walsh] served the original complaint,
and throughout the entirety of the litigation, [K.B.] remained employed . . . . Accordingly
the allegation that the [employer] had terminated [K.B.]’s employment was false.” The
referee also found that the amended complaint and the second amended complaint
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“continued to falsely state that the [employer] had terminated [K.B.’s] employment.” The
referee concluded that Walsh had violated Minn. R. Prof. Conduct 3.3(a)(1) by making
these false statements to the court.
Rule 3.3(a)(1) prohibits a lawyer from “knowingly . . . mak[ing] a false statement
of fact or law to a tribunal.” The record does not support a finding that Walsh knowingly
made a false statement of fact in the complaints when he stated that K.B.’s employment
was terminated. Amid the confusion created by Walsh’s poor drafting practices, which we
do not condone, the complaints allege, in multiple locations, that K.B. was fired or
terminated and simultaneously offered a new position with the same employer. Because
Walsh also stated in the complaints that K.B.’s employer offered K.B. new positions after
eliminating a position that she had held and that K.B. remained employed by her employer
during the period addressed in the complaints, the record does not support the conclusion
that Walsh knowingly made false statements in the complaints by stating that K.B. had
been terminated. Based on the record before us, the referee’s conclusion that Walsh
violated Minn. R. Prof. Conduct 3.3(a)(1) by making knowingly false statements in the
complaints is clearly erroneous.
B.
Next, we turn to the referee’s findings of fact and conclusions that, without the
permission of the court or the consent of opposing counsel, as required by the Minnesota
Rules of Civil Procedure, Walsh served a second amended complaint and then made false
representations about the differences between the complaints. Walsh argues that the
referee’s findings regarding his service of the second amended complaint are clearly
12
erroneous because the findings are based on the improper conclusion that he served the
first amended complaint on opposing counsel before serving the second amended
complaint. According to Walsh, even though he attempted to serve two amended
complaints, he successfully served only one because the first attempt resulted in an
incomplete facsimile transmission.
At the disciplinary hearing, opposing counsel testified that Walsh called him to tell
him that there would be an amended complaint served to correct mistakes in the first
pleading. Walsh indicated that the corrections would be sent via facsimile. There were
issues with the facsimile transmission, his opposing counsel testified, but a complete
document was received on March 20, 2013. The next day a second amended complaint,
which was different from the one faxed to opposing counsel the day before, was personally
delivered to opposing counsel’s office.
The referee was not persuaded by Walsh’s reading of the Minnesota Rules of Civil
Procedure and found that the first amended complaint constituted effective service, despite
the division of the document into three installments for facsimile transmission. See Minn.
R. Civ. P. 5.02(c) (addressing service by facsimile). We agree with the referee’s
conclusion. Walsh’s attempt to hide behind his own claimed negligence in serving the first
amended complaint as an excuse for later rule violations is, to say the least, not persuasive.
The referee’s findings that Walsh served both the first amended complaint and the second
amended complaint on opposing counsel are not clearly erroneous.
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Walsh also challenges the referee’s findings and conclusions that he violated Minn.
R. Prof. Conduct. 4.15 by telling opposing counsel that there were no differences between
the first amended complaint and the second amended complaint. It is undisputed that there
were differences between the first and second amended complaints. Walsh, however,
denies that he violated Rule 4.1 because he denies telling opposing counsel that there were
no substantive differences between the first and second amended complaints. Opposing
counsel testified otherwise. The referee had the opportunity to observe the demeanor of
the witnesses and decided that opposing counsel was more credible. We defer to a referee’s
findings on such matters as “credibility, demeanor, and sincerity.” See In re Murrin, 821
N.W.2d 195, 207 (Minn. 2012) (quotation omitted). Therefore, the referee’s findings of
fact and conclusions that Walsh violated Rule 4.1 are not clearly erroneous.
IV.
The remaining issue is the appropriate discipline for Walsh’s misconduct. “A
referee’s recommended discipline carries great weight, but it is our ultimate responsibility
to determine what discipline, if any, is appropriate.” In re Michael, 836 N.W.2d 753, 765
(Minn. 2013) (citing In re Selmer, 749 N.W.2d 30, 36 (Minn. 2008)). The purpose of
disciplinary sanctions “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 N.W.2d 168, 173
5
“In the course of representing a client, a lawyer shall not knowingly make a false
statement of fact or law.” Minn. R. Prof. Conduct 4.1
14
(Minn. 2010). “Factors [that] we consider [when] determining the appropriate discipline
include[:] the nature of the misconduct, the cumulative weight of the disciplinary
violations, the harm to the public, and the harm to the legal profession.” In re Lundeen,
811 N.W.2d 602, 608 (Minn. 2012). Furthermore, although we look to similar cases for
guidance as to the appropriate discipline, we tailor the sanction to the specific facts of each
case after considering any aggravating and mitigating circumstances. Id.We have held that the nature of the misconduct Walsh admitted and the referee
found in this case constitutes serious misconduct. See Michael, 836 N.W.2d at 766
(determining that the lawyer’s violations involving dishonesty, frivolous arguments, and
failure to obey obligations to a tribunal constituted serious misconduct). Walsh’s rule
violations occurred in multiple cases from 2006 through 2014. They were not a “single
isolated incident,” but rather multiple instances of misconduct over several years. See In
re Fairbairn, 802 N.W.2d 734, 743 (Minn. 2011) (citing In re Wentzel, 711 N.W.2d 516,
521 (Minn. 2006)). Walsh’s misconduct has undermined public confidence in the legal
system and significantly harmed several clients whose claims were dismissed or became
time barred as a result of Walsh’s misconduct. See Coleman, 793 N.W.2d at 308
(determining that “[t]he impact of the harm to the public and the legal profession requires
consideration of ‘the number of clients harmed [and] the extent of the clients’ injuries’ ”
(quoting In re Randall, 562 N.W.2d 679, 683 (Minn. 1997))); see In re Ulanowski, 800
N.W.2d 785, 801 (Minn. 2011) (determining that the failure to follow court rules
undermines public confidence in the legal system). Additionally, the referee found
multiple aggravating circumstances, including Walsh’s dilatory conduct throughout the
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disciplinary action, Walsh’s continued misconduct in the K.B. matter after the petition for
disciplinary action was filed, Walsh’s lack of remorse, and his experience as an attorney.
Walsh cites several decisions to support his position that the recommended
discipline is unreasonable and that a 90-day suspension should be imposed instead. The
Director asks the court to impose the 1-year suspension recommended by the referee. The
Director, however, acknowledges that he cannot find any “directly on point Minnesota
lawyer discipline case that involved” misconduct comparable to Walsh’s and that a 1-year
suspension “may be viewed as greater than imposed in the past on a lawyer who has no
history of discipline and is being disciplined for neglect of client matters.”
The varied and substantial misconduct that Walsh committed over an extended
period of time has harmed several clients. In addition, several aggravating factors are
present in this case. At the same time, the referee clearly erred in concluding that Walsh
made knowingly false statements of fact to a tribunal, in violation of Minn. R. Prof.
Conduct 3.3(a)(1). In light of all the facts and circumstances of this case, we conclude that
the appropriate discipline is an indefinite suspension with the right to petition for
reinstatement after 6 months.
Accordingly, we hereby order that:
1. Respondent Christopher Robert Walsh is indefinitely suspended from the
practice of law, effective 14 days from the date of the filing of this opinion, with no right
to petition for reinstatement for 6 months from the effective date of the suspension.
2. Respondent shall comply with the requirements of Rule 26, RLPR (requiring
notice of suspension to clients, opposing counsel, and tribunals).
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3. Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.
4. Respondent may petition for reinstatement pursuant to Rule 18(a)–(d),
RLPR. Reinstatement is conditioned on successful completion of the professional
responsibility portion of the state bar examination and satisfaction of continuing legal
education requirements, pursuant to Rule 18(e), RLPR.
HUDSON, J., not having been a member of this court at the time of submission,
took no part in the consideration or decision of this case.
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