In Re Petition for DISCIPLINARY ACTION AGAINST Gregory Gerard McPHEE, a Minnesota Attorney, Registration No. 316696 , 2015 Minn. LEXIS 337 ( 2015 )

STATE OF MINNESOTA
IN SUPREME COURT
A14-1901
Original Jurisdiction Per Curiam
In re Petition for Disciplinary Action against Filed: June 17, 2015
Gregory Gerard McPhee, a Minnesota Attorney, Office of Appellate Courts
Registration No. 316696
________________________
Martin A. Cole, Director, Craig D. Klausing, Senior Assistant Director, Office of
Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.
Eric T. Cooperstein, Law Office of Eric T. Cooperstein, PLLC, Minneapolis, Minnesota,
for respondent.
________________________
SYLLABUS
1. The attorney disciplinary proceedings conducted in New York were
fundamentally fair and consistent with due process.
2. Indefinite suspension from the practice of law with no right to petition for
reinstatement for 2 years is the appropriate reciprocal discipline to impose on the
attorney.
OPINION
PER CURIAM.
In 2007, the New York Supreme Court, Appellate Division, suspended respondent
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Gregory Gerard McPhee for 2 years for engaging in a pattern of client neglect, failing to
return unearned fees, and failing to cooperate in disciplinary investigations. After
learning of McPhee’s New York suspension, the Director of the Office of Lawyers
Professional Responsibility (“the Director”) petitioned to impose reciprocal discipline in
Minnesota. Because we conclude that the disciplinary proceedings in New York were
fundamentally fair and that indefinite suspension from the practice of law without the
possibility of reinstatement for 2 years would not be unjust or substantially different from
the discipline that would be imposed in Minnesota, we indefinitely suspend McPhee with
no right to petition for reinstatement for 2 years.
I.
McPhee was admitted to practice law in New York in 2000. In re McPhee, 844
N.Y.S.2d 771, 771 (N.Y. App. Div. 2007). In 2002, he was admitted to practice in
Minnesota. This case involves professional misconduct that McPhee committed in New
York.
Several years after McPhee was admitted to practice in New York, the Grievance
Committee of the Fifth Judicial District in New York1 filed a petition with the New York
Supreme Court, Appellate Division Fourth Judicial Department (“New York court”),
charging McPhee with acts of professional misconduct arising from his representation of
five clients in criminal matters. Id. at 771. McPhee filed an answer denying the
1
In New York, each judicial district has a grievance committee that considers and
investigates all matters involving allegations of misconduct by an attorney engaged in the
practice of law in the judicial district. N.Y. Comp. Codes R. & Regs. tit. 22, § 1022.19.
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allegations. Id. The New York court appointed a referee to hear and report on issues of
fact. Id. McPhee did not attend the hearing before the referee, did not respond to a
motion to confirm the referee’s factual findings, and did not appear before the New York
court. Id.
The New York court confirmed the following findings of fact made by the referee:
[McPhee] accepted legal fees from four incarcerated clients, failed to
complete the work for which he was retained and refunded no part of the
legal fees. . . . [He] failed to appear at a scheduled court date on behalf of
another client in a criminal matter, failed to return the client’s telephone
calls and moved from his law office without notifying the client. Finally,
. . . [he] failed to comply timely with requests from petitioner for
information and for responses to client complaints, requiring petitioner to
obtain a subpoena from this Court.
Id.
The New York court agreed with the referee’s findings that there were no
mitigating circumstances to be considered when imposing discipline for McPhee’s
misconduct, but that there were aggravating factors. The aggravating factors included
McPhee’s contact with two of the Grievance Committee’s prospective witnesses prior to
the hearing for the purpose of persuading the witness to sign statements that the witnesses
termed false and his deliberate failure to appear for the hearing before the referee. Id. at
772. The New York court also considered McPhee’s failure to respond to the Grievance
Committee’s motion and to appear before the court as ordered. Id. The New York court
imposed a 2-year suspension for McPhee’s misconduct. Id.
After learning of the discipline imposed on McPhee by the New York court, the
Director petitioned for disciplinary action against McPhee, seeking reciprocal discipline
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pursuant to Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR). McPhee
filed a response to the petition, admitting the allegations regarding his misconduct in New
York. We ordered McPhee to submit a memorandum addressing whether a 2-year
suspension is the appropriate discipline for us to impose.
McPhee argues that a 2-year suspension from practice is substantially different
from the discipline warranted in Minnesota. Instead, McPhee maintains, a 6-month
suspension is the appropriate discipline. The Director counters that imposition of
reciprocal discipline is appropriate.
II.
The Director may petition for reciprocal discipline based on knowledge, from any
source, “that a lawyer licensed to practice in Minnesota has been publicly disciplined . . .
in another jurisdiction.” Rule 12(d), RLPR. Unless we conclude otherwise, a final
determination in another jurisdiction that the lawyer has committed misconduct
“establish[es] conclusively the misconduct for purposes of disciplinary proceedings in
Minnesota.” Id. We may impose reciprocal discipline “unless it appears that discipline
procedures in the other jurisdiction were unfair, or the imposition of the same discipline
would be unjust or substantially different from discipline warranted in Minnesota.” Id.;
accord In re Wolff, 810 N.W.2d 312, 316 (Minn. 2012). McPhee does not challenge the
New York court’s finding that he committed misconduct. Therefore, we must determine
whether New York’s disciplinary procedures were fair to McPhee and, if so, whether
imposing reciprocal discipline would be unjust or substantially different from the
discipline McPhee would receive in Minnesota for his misconduct.
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A.
To meet the procedural fairness requirement, the disciplinary proceedings at issue
must be “consistent with fundamental fairness and due process.” In re Schmidt, 586
N.W.2d 774, 775 (Minn. 1998). We determine from the record of the underlying
proceedings whether the attorney received notice of the allegations and had an
opportunity to respond to them. Id. at 775-76. When an attorney has received notice of
the proceedings and an opportunity to participate in the process by presenting evidence of
good character or mitigation, the procedural fairness requirement is satisfied. In re
Keller, 656 N.W.2d 398, 401 (Minn. 2003).
The proceedings in New York met the legal standard for procedural fairness.
McPhee received notice of the New York disciplinary proceedings and participated in
them by filing an answer. McPhee, 844 N.Y.S.2d at 771. He also had the opportunity to
present evidence to the referee. See N.Y. Comp. Codes R. & Regs. tit. 22, § 1022.20(d)
(allowing an attorney in a disciplinary case to contest facts before a referee and to appear
before the New York court and be heard in mitigation). That McPhee chose not to attend
the hearing before the referee has no bearing on our determination of procedural fairness.
Wolff, 810 N.W.2d at 316. The record from the New York proceedings clearly
establishes that the fairness requirement of Rule 12(d), RLPR was satisfied.
B.
We next consider whether imposition of the same discipline imposed by New
York would be either unjust or substantially different from the discipline warranted in
Minnesota. In re Meaden, 628 N.W.2d 129, 134 (Minn. 2001). The New York court
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concluded that McPhee engaged in a pattern of neglect, failed to return unearned fees,
and failed to cooperate in the disciplinary proceedings. McPhee accepted legal fees from
four incarcerated clients. But he failed to complete the work he was hired to perform,
and he did not refund any legal fees to these clients. In another criminal case, McPhee
both failed to appear at a court hearing for his client and failed to communicate with this
client. Finally, McPhee did not respond in a timely manner to disciplinary complaints or
requests for information during his New York disciplinary proceedings.2
We have long recognized that “an attorney’s pattern of neglect, lack of
communication, and failure to cooperate with the disciplinary investigation or
proceedings typically warrants an indefinite suspension.” In re McCabe, 591 N.W.2d
723, 725 (Minn. 1999) (citations omitted). We have determined that an indefinite
suspension with no right to petition for reinstatement for 2 years is the appropriate
discipline when an attorney neglected multiple clients, failed to return unearned retainers,
and failed to cooperate with the Director. See In re Taplin, 837 N.W.2d 306, 314 (Minn.
2013) (indefinitely suspending an attorney with no right to petition for reinstatement for
2 years when the attorney neglected two clients, failed to return unearned retainers, and
2
Similar misconduct occurring in Minnesota also would have violated a number of
our rules, including Minn. R. Prof. Conduct 1.3 (requiring an attorney to act with
reasonable diligence), 1.4 (requiring an attorney to communicate with the client),
1.15(c)(4) (requiring an attorney to promptly pay the client, as requested, client funds in
the attorney’s possession), 3.4(c) (prohibiting an attorney from knowingly disobeying an
obligation under the rules of a tribunal), 8.1 (mandating cooperation in a disciplinary
proceeding), and 8.4(d) (prohibiting an attorney from engaging in conduct prejudicial to
the administration of justice), and Rule 25, RLPR (requiring an attorney to cooperate in a
disciplinary proceeding).
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failed to cooperate in the disciplinary investigation).3 In a reciprocal discipline case for
an attorney who engaged in similar misconduct as McPhee, we also have imposed a
longer period of suspension. See, e.g., In re Mahler, 823 N.W.2d 453, 454 (Minn. 2012)
(order) (indefinitely suspending attorney for a minimum of 3 years after he was
suspended in North Dakota for neglecting clients, mishandling client funds, and charging
excess fees).
Relevant to our consideration, the New York court determined that McPhee’s
misconduct was aggravated by his failure to cooperate during the New York disciplinary
proceedings. For example, McPhee failed to appear at a hearing before the referee and
failed to respond to the Grievance Committee’s motion to confirm the referee’s findings.
In Minnesota, as in New York, an attorney’s failure to cooperate during disciplinary
proceedings may be an aggravating factor if that conduct is not otherwise considered.
Taplin, 837 N.W.2d at 313. McPhee’s failure to cooperate during the disciplinary
proceedings before the New York court was not considered by the referee and is separate
from his failure to cooperate with the New York disciplinary investigations. Therefore,
3
We have suspended other attorneys in similar circumstances. See In re Campbell,
603 N.W.2d 128, 133 (Minn. 1999) (indefinitely suspending an attorney with no right to
petition for reinstatement for 2 years when the attorney neglected seven clients, failed to
return unearned retainers and client files, had negative balances in her trust account, and
failed to cooperate with the Director); In re Olson, 545 N.W.2d 35, 38 (Minn. 1996)
(indefinitely suspending an attorney with no right to petition for reinstatement for 2 years
when the attorney neglected two clients, made misrepresentations to clients, and failed to
cooperate in the disciplinary investigation or appear before the court in the disciplinary
case); see also In re Kinnuen, 502 N.W.2d 773, 774-75 (Minn. 1993) (indefinitely
suspending an attorney with no right to petition for reinstatement for 18 months for
neglect of two clients, trust account violations, and a complete failure to cooperate in the
disciplinary proceedings).
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McPhee’s failure to cooperate with the New York court is an additional aggravating
factor.
In support of his argument that reciprocal discipline of a 2-year suspension is
substantially different from the discipline warranted in Minnesota, McPhee relies on the
few cases in which we have declined to impose reciprocal discipline. These cases
demonstrate that, when unique factual circumstances established that imposing the
identical discipline would be unjust or when another court disbarred an attorney for
misconduct that the Director agreed would result in a substantially different disposition in
Minnesota, we have concluded that reciprocal discipline is not warranted. For example,
in In re Karlsen, we imposed a 1-year suspension on an attorney who was disbarred in
North Dakota while his case was pending before us. 778 N.W.2d 307, 313 (Minn. 2010).
The Director argued against disbarment in Karlsen because the attorney lacked a prior
disciplinary history and the misconduct, though egregious, did not result in substantial
harm to clients. Id.4 The factors present in the cases cited by McPhee, however, are not
present here.
Because of the nature and severity of McPhee’s misconduct and the existence of
an aggravating factor, we conclude that the 2-year suspension by the New York court is
4
Other cases in which we have declined to impose reciprocal disbarment include: In
re Pennington, 706 N.W.2d 482, 482 (Minn. 2005) (order) (imposing a 2-year suspension
recommended by the parties after an attorney was disbarred in Maryland for misconduct
similar to that for which we had imposed a public reprimand or a short period of
suspension); In re Otis, 582 N.W.2d 561, 564-65 (Minn. 1998) (declining to impose
reciprocal discipline of disbarment because the attorney’s misconduct was caused by a
seizure disorder that had been treated after the misconduct but before the Minnesota
disciplinary proceedings).
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neither unjust nor substantially different from the discipline warranted in Minnesota. We
therefore impose reciprocal discipline and indefinitely suspend McPhee with no right to
petition for reinstatement for 2 years.
Accordingly, we order that:
1. Respondent Gregory Gerard McPhee is suspended from the practice of law
in the State of Minnesota, effective 14 days from the date of the filing of this opinion, and
is ineligible to petition for reinstatement for a minimum of 2 years from the date of the
filing of this opinion.
2. Respondent shall comply with Rule 26, RLPR (requiring notice of
suspension to clients, opposing counsel, and tribunals), and shall pay $900 in costs
pursuant to Rule 24, RLPR.
3. 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.
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