December 1, 2017

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F--FILE NO. ____ _

STATE OF MINNESOTA

IN SUPREME COURT

In Re Petition for Disciplinary Action PETITION FOR DISCIPLINARY ACTION against MURAD MOWAFFAK MOHAMMAD,

a Minnesota Attorney, Registration No. 0386909.

TO THE SUPREME COURT OF THE STATE OF MINNESOTA:

Upon the approval of a Lawyers Professional Responsibility Board Panel Chair,

the Director of the Office of Lawyers Professional Responsibility (Director) files this

petition pursuant to Rules lO(d) and (e) and 12(a), Rules on Lawyers Professional

Responsibility (RLPR). The Director alleges:

The above-named attorney (respondent) was admitted to practice law in

Minnesota on October 27, 2006. Respondent currently practices law in Minneapolis.

Respondent has committed the following unprofessional conduct warranting

public discipline:

DISCIPLINARY HISTORY

A. On January 28, 2009, respondent was issued an admonition for pursuing

payment from a client of an unreasonable and excessive fee, in violation of Rule 1.5(a),

Minnesota Rules of Professional Conduct (MRPC).

B. On April 15, 2010, respondent was issued an admonition for failing to

diligently represent a client, failing to appear in court for the client's trial, and

improperly withdrawing from the representation of the client, in violation of Rules 1.3,

3.4(c), and 8.4(d), MRPC.

FIRST COUNT

Misappropriation of Client Funds and Other Client-Related Misconduct

J.S. Matter

1. In July 2015, P.M., a non-native English-speaker, retained respondent for

representation in a potential criminal matter. On July 24, 2015, together with J.S. (his

significant other), P.M. provided to respondent two cash payments of $6,000 and $7,000.

2. Neither P.M. nor J.S. signed a fee agreement. Although respondent

provided to P.M. and J.S. receipts for each of the two cash payments, neither receipt was

countersigned by P.M. or by J.S.

3. The July 24, 2015, receipt respondent provided for the $6,000 cash

payment included respondent's handwritten notation that the funds were for payment

of "legal services." The $6,000 cash payment constituted a flat fee for representation

with respect to legal services associated with potential criminal charges against P.M.

4. The July 24, 2015, receipt respondent provided for the $7,000 cash

payment included respondent's handwritten notation that the funds were for payment

of "Retainer - to be held." The $7,000 cash payment constituted a retainer which was

"to be held" for use in the event P.M. was ultimately charged.

5. At all times relevant, respondent maintained an IOLTA account at Wells

Fargo Bank. The average monthly balance of respondent's Wells Fargo IOLTA account

was $13 for each and every month between January 2015 and June 2017. As set forth in

more detail below, infra c_[c_[ 79-95, respondent has failed to respond to J.S.'s complaint

and has failed to provide any information as to his handling of funds received for the

representation of P.M. Accordingly, upon information and belief, respondent did not

hold in his IOLTA account either the $6,000 payment or the $7,000 payment.

6. During the period of the representation, P.M. was not charged and, in

approximately June 2016, P.M. terminated the representation.

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7. At no point did respondent provide to P.M. or any other person any

billing statements or invoices accounting for his use of the $6,000 provided to him by

J.S. on July 24, 2015, for his representation of P.M. relative to the potential criminal

matter.

8. In September 2016, J.S. telephoned respondent and left him a voicemail in

an attempt to discuss the refund of the $7,000 retainer amount. Although respondent

responded via text message on September 8, 2016, and stated he would try to telephone

her that day, respondent did not do so.

9. On January 29, 2017, J.S. sent to respondent an email in which she stated,

in relevant part:

I'm contacting you again regarding the return of [P.M.'s] retainer.

When [P.M.] retained you on July 24, 2015, we paid you two amounts: a $6,000 flat fee for legal services and a $7,000 retainer in the event that [P.M.] was charged and you needed to perform additional legal work.

To our knowledge, [P.M.] was never charged, and you have not performed additional legal services. We are therefore requesting the return of [P.M.'s] $7,000 retainer as soon as possible.

Respondent failed to respond.

10. J.S. then enlisted the assistance of her brother, J.L.S., who is a Minnesota

attorney. On February 14, 2017, J.L.S. sent to respondent an email in which he stated:

I've purposely been trying to keep my distance from this because you are a colleague of mine, and I don't know all the facts regarding the fee agreement you have with [P.M.]. However, [P.M.] has texted you, [J.S.] has emailed you, I've left you a voice message, and we have not heard back from you. This concerns me.

Here is the situation as I understand it. In the summer of 2015, [P.M.] retained you for representation on possible criminal charges. You charged him a flat fee of $6,000 for legal services. He also paid you a retainer of $7,000 "to be held" in the event that he was charged and you needed to

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complete additional legal work. Attached are copies of the receipts you provided.

My understanding is that [P.M.] has never been charged, and he is now requesting a refund of his $7,000 retainer. Is there a reason you have not yet refunded [P.M.] his retainer?

I trusted you with my family's legal matters. Your non-responsiveness is very frustrating to me. If there is a good faith reason for keeping his retainer, th[e]n please let me know so that I can explain this to [J.S.] and [P.M.]. If not, my belief is that [P.M.] is entitled to a refund of his retainer.

Please let me know right away whether you intend to issue [P.M.] a refund of his retainer, and if not, the reason why. [J.S.] and [P.M.] are both low-income people, and $7,000 is a lot to them, especially raising a young daughter.

If we don't hear anything from you, we'll have no choice but to file a complaint with the OLPR. I really prefer to avoid that route with a friend and colleague.

11. Respondent replied to J.L.S.'s email on February 14, 2017, asking what

time J.L.S. could speak the following day. On February 15, 2017, J.L.S. replied and

stated he could speak before 11:00 a.m. that day, but that he was leaving the country

later that day. Respondent did not contact J.L.S. at any point thereafter.

12. Between January and May 2017, P.M. and respondent exchanged

numerous text messages. In those text messages P.M. repeatedly requested the return

of the unearned retainer. In response, respondent: stated he would call P.M., but did

not do so and did not answer at least one telephone call from P.M.; refused P.M.'s

repeated requests to transfer the unearned retainer into P.M.'s bank account, stating

that, because P.M. paid in cash, he was unable to transfer money to P.M.'s account and

later stating that he does not "do bank transfers"; ignored P.M.'s request that

respondent mail to him the unearned retainer and insisted upon meeting with P.M. in

person at his office to provide him with the refund of the unearned retainer so that P.M.

could sign some paperwork which he later described as a "standard release of property

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form"; and untimely cancelled at least three scheduled meetings with P.M., faulting

P.M. for the cancellations on two occasions and notifying P.M. of the cancellations on

two occasions after P.M. had taken time off of work and had already appeared at

respondent's office building for the appointments.

13. Although respondent stated to P.M. on several occasions during their text

exchanges that he was not denying P.M. was entitled to a "significant" refund, to date,

respondent has failed to provide any refund to P.M. of the unearned $7,000 retainer.

Accordingly, upon information and belief, respondent misappropriated the $7,000

unearned retainer belonging to P.M.

14. Respondent's conduct in the P.M. matter violated Rules l.15(a), 1.15(c)(3),

l.15(c)(4), 1.15(c)(5), l.15(h) (as interpreted by Appendix 1), l.16(d), 8.4(c), and 8.4(d),

MRPC.

SECOND COUNT

Additional Misconduct Across Multiple Client Matters

E.C. Matter

15. On December 22, 2014, H.C.V. was found guilty of a felony in Hennepin

County District Court and, on January 22, 2015, H.C.V. was sentenced to 200 months'

imprisonment. H.C.V.'s niece, E.C., acted on H.C.V.'s behalf to secure representation

for H.C.V. for the purpose of seeking post-conviction relief.

16. On January 2, 2015, E.C. met with respondent and signed a fee agreement

on behalf of H.C.V. retaining respondent for, as outlined in the fee agreement,

"Post-Conviction relief research and transcript review for merits of appeal" regarding

H.C.V.'s case.

17. The January 2, 2015, fee agreement called for a flat fee of $5,000, plus

transcript costs which were to be invoiced. The fee agreement was not signed by

H.C.V., did not state that the fee would not be held in a trust account, and, although it

characterized the fee as "the lawyer's property subject to refund," it did not state that

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the client would be entitled to a refund of all or a portion of the fee if the agreed-upon

legal services were not provided.

18. E.C. provided to respondent $5,000 when she signed the January 2, 2015,

fee agreement on H.C.V.'s behalf and, at some point thereafter, paid to respondent the

transcript costs. Information contained within H.C.V.'s file respondent provided to the

Director indicates respondent performed some post-conviction research, attended

H.C.V.'s sentencing hearing, and reviewed H.C.V.'s trial transcripts and other trial

documents.

19. On April 14, 2015, E.C. met with respondent and signed a new fee

agreement on behalf of H.C.V. retaining respondent, as outlined in the fee agreement, to

represent H.C.V. in his efforts to obtain "Post-conviction relief." The April 14, 2015, fee

agreement called for a flat fee of $5,000, which E.C. paid upon signing. E.C. understood

(and the fee agreement reflected) that, if a new trial were granted, a new fee would be

negotiated.

20. The April 14, 2015, fee agreement was not signed by H.C.V. and did not

state that H.C.V. would be entitled to a refund of all or a portion of the fee if the

agreed-upon legal services were not provided. Rather, the fee agreement stated, "I

understand ... that I may not receive a refund of the fees if I later choose not to hire

Lawyer or choose to terminate Lawyer's services."

21. As noted above, supra <JI 5, the average monthly balance of respondent's

Wells Fargo IOL TA account was $13 for each and every month between January 2015

and June 2017. Accordingly, upon information and belief, respondent did not hold in

his IOLTA account either of the two $5,000 payments made on behalf of H.C.V. under

the January 2 and April 14, 2015, fee agreements.

22. Between approximately April 2015 and late November 2016, respondent

failed to respond to numerous communications from H.C.V. and from E.C. made on

behalf of H.C.V. and failed to otherwise affirmatively communicate with H.C.V.

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23. On November 18, 2016, E.C. and her family retained a new lawyer on her

uncle's behalf.

24. On November 21, 2016, E.C. sent to respondent an email on H.C.V.'s

behalf by which she terminated respondent's representation. In her email, E.C.

provided the contact information for H.C.V.'s new lawyer, requested respondent

provide to the new lawyer H.C.V.'s client file, and requested a refund of the fees paid

by the end of November 2016.

25. Respondent thereafter provided H.C.V.'s file to H.C.V.'s new lawyer.

Upon receipt of H.C.V.'s client file, it was determined respondent had performed no

substantive work with regard to the actual preparation or the filing of a petition for

post-conviction relief on H.C.V.'s behalf.

26. At no point did respondent provide to H.C.V. or any other person any

billing statements or invoices accounting for his use of either of the $5,000 payments

provided to him by E.C. on January 2 and April 14, 2015, for his representation of

H.C.V. relative to his efforts to obtain post-conviction relief.

27. To date, despite not taking any substantive action to prepare or file a

petition for post-conviction relief on H.C.V.'s behalf, respondent has not returned any

portion of the $5,000 flat fee paid to him on April 14, 2015, for such purpose.

28. H.C.V. was in custody the entire period of respondent's representation of

him. In his December 22, 2016, response to E.C.'s complaint, respondent stated to the

Director that he met with H.C.V. "at least twice, with the assistance of an interpreter (at

[respondent's] expense) to prepare for the [post-conviction] motion." H.C.V., however,

stated in a written communication provided to the Director that respondent met with

him in prison on only one occasion and that the meeting was brief. H.C.V. further

stated that no interpreter was used as respondent, who intended to use his cell phone to

contact and utilize an interpreter during the meeting, was not permitted to bring his cell

phone into the visitation room per prison policy.

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29. Records obtained by the Director from the Minnesota Correctional

Facility-Rush City (MCF-Rush City) confirm that respondent met with H.C.V. while

incarcerated on only one occasion ( on October 8, 2015) during the period of

respondent's representation of H.C.V. Accordingly, respondent knowingly and falsely

stated to the Director that he met with H.C.V. "at least twice, with the assistance of an

interpreter .... "

30. On April 20, 2015, E.C. sent to respondent a text message in which she

asked whether respondent had yet had the opportunity to visit H.C.V. That same day,

respondent replied via text stating, "I got an appointment to see him tomorrow,"

thereby indicating to E.C. that he had a scheduled meeting with H.C.V. for April 21,

2015. On May 7, 2015, E.C. sent to respondent a follow-up text message in which she

asked, "How was the visit with my uncle?" Respondent did not respond to E.C.'s

May 7, 2015, text message in any fashion at any point. According to the information

obtained from MCF-Rush City, supra CJ! 29, the only appointment respondent scheduled

(or which was scheduled on respondent's behalf) with H.C.V. was for October 8, 2015,

not April 21, 2015. Accordingly, respondent knowingly and falsely stated to E.C. that

he had an appointment scheduled with H.C.V. for April 21, 2015.

31. Respondent's conduct in the E.C. matter violated Rules 1.3, 1.4, 1.15(a),

1.15(c)(3), 1.15(c)(4), 1.15(c)(5), 1.16(d), 4.1, 8.l(a), 8.4(c), and 8.4(d), MRPC, and Rule 25,

RLPR.

N.A. Matter

32. N.A. retained respondent in July 2012 for representation relative to

cross-petitions for harassment restraining orders.

33. On July 10, 2012, respondent provided to N.A., and N.A. signed, a fee

agreement for this representation and N.A. paid to respondent $2,000 cash in

satisfaction of the agreed-upon flat fee. Respondent did not provide to N.A. a receipt

for the $2,000 cash payment.

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34. Within two weeks of respondent's retention, a criminal complaint was

filed against N.A. based upon allegations raised within the harassment restraining

order proceedings.

35. Respondent and N.A. thereafter signed a fee agreement by which

respondent agreed to represent N.A. in the criminal matter for a flat fee of $15,000,

which N.A. paid to respondent in cash. Respondent did not provide to N.A. a receipt

for the $15,000 cash payment.

36. Respondent's conduct in the N.A. matter violated Rule 1.15(h), MRPC (as

interpreted by Appendix 1 thereto).

P.G./T.H. Matters

37. Beginning in approximately November 2013, law enforcement began

investigating P.G. and T.H. (who were in a relationship with one another at the time)

for drug trafficking and the distribution of methamphetamine. On June 10, 2014, P.G.

and T.H. were arrested on state criminal charges related to their alleged drug

trafficking.

38. At some point prior to their June 10, 2014, arrests, P.G. and T.H. began to

suspect they were under investigation. As a result, P.G. hired attorney J.B. to represent

him. P.G. paid to J.B. $13,000 for the representation.

39. Shortly after the June 10, 2014, arrests of P.G. and T.H., J.B. discovered he

had a conflict of interest with respect to one of the confidential informants used in the

investigation. J.B. withdrew from the representation and referred P.G. to respondent.

40. In mid-June 2014, respondent met separately with P.G. and T.H. at the

Beltrami County jail. During respondent's meeting with P.G., P.G. requested

respondent to also represent T.H. Respondent agreed to represent both P.G. and T.H. in

their respective criminal matters for a flat fee of $40,000. J.B. thereafter transferred to

respondent the $13,000 he had previously received from P.G., and P.G.'s mother paid to

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respondent an additional $10,000 toward the representation, for a total of $23,000. No

additional funds were provided to respondent.

41. Respondent discussed the joint representation with both P.G. and T.H.

and the attendant conflict; both clients verbally consented to the joint representation.

At no point, however, did respondent obtain from P.G. or from T.H. informed consent,

confirmed in writing, to the joint representation.

42. On August 5, 2014, P.G. was indicted on federal charges and was

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thereafter represented by federal public defense counsel. Although it is disputed

whether respondent informed P.G. at the onset of the representation in June 2014 that

his representation of P.G. was limited to the state charges and that, if P.G. were

federally indicted, respondent would no longer represent him, P.G. ultimately took no

issue with respondent's discontinued representation of him once he had been appointed

a federal public defender.

43. Respondent continued to represent T.H. through the conclusion of her

criminal matter.

44. Respondent's conduct in representing parties with a concurrent conflict of

interest without ever obtaining the informed consent of each, confirmed in writing,

violated Rule 1.7(a)(2), MRPC.

S.S. Matter

45. Over a period of several years, respondent represented S.S. with respect to

various criminal matters. During the course of, and/or prior to, these representations,

S.S. and respondent interacted socially; resultantly, their professional relationship was,

at times, somewhat casual.

46. On November 4, 2015, the Director received from S.S. a complaint against

respondent. In his complaint, and in subsequent communications with the district

ethics committee (DEC) and with the Director, S.S. lodged a variety of allegations

against respondent. Relevant to the below, S.S. alleged respondent failed to return to

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him the cell phone respondent obtained while representing S.S. despite S.S.' s numerous

requests for the same and failed to return or timely return certain client files and file

materials.

47. On November 24, 2015, S.S.'s complaint was assigned by the Director for

investigation to the Fourth DEC. On May 2, 2016, the Director withdrew the matter

from consideration by the DEC and, thereafter, the matter was investigated in-house by

the Director.

48. At all times relevant to this section, S.S. remained incarcerated. Similarly

relevant to a portion of this section, one of the matters in which respondent represented

S.S. concerned a May 2012 felony charge in Hennepin County District Court against S.S.

for the possession or sale of stolen or counterfeit checks (Case No. 27-CR-12-16993).

This matter was repeatedly continued while S.S. worked with representatives of the

United States Secret Service (USSS) performing certain undercover services. The state

counterfeit check charge was ultimately dismissed and S.S. was subsequently indicted

in United States District Court for the District of Minnesota on one count of conspiracy

to commit bank fraud through the use of counterfeit or fraudulent checks. S.S.' s federal

case remains pending.

Return of Cell Phone & False Statements

49. As noted above, in his original complaint and in numerous subsequent

communications to the DEC investigator and to the Director, S.S. requested respondent

to return to him his cell phone. S.S.' s requests for his cell phone were similarly

conveyed to respondent by the Director on several occasions.

50. In an April 1, 2016, telephone conversation with the DEC investigator,

respondent stated that he did not have S.S.' s cell phone, that he did not know where the

cell phone was, and that he never took possession of the cell phone.

51. On May 19, 2016, the Director sent to respondent a letter requesting

respondent to clarify his position with respect to his handling of S.S.' s cell phone. In his

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June 20, 2016, response to the Director, respondent stated, "I do not have [S.S.'s] cell

phone. The only time I have ever been in possession of his cell phone was to prepare

exhibits for a hearing. I promptly returned his phone."

52. On September 22, 2016, the Director sent to respondent a letter noting

S.S.' s continued insistence that, as S.S. was incarcerated, respondent would have been

unable to return to him his cell phone. In the September 22, 2016, letter, the Director

requested respondent to describe in detail his handling of S.S.' s cell phone. In his

November 16, 2016, emailed response to the Director, responded stated:

The only time [I]'ve ever handled [S.S.' s] phone was in preparation for a bond revocation hearing, with him present. I took photos of the messages because he needed his phone. I did not take his phone; [I] simply took photos. I have attached a few of the photos below. I don't recall what day I took the photos, but they were before his hearing.

53. On February 9, 2017, the Director obtained from the Hennepin County

Sheriff's Office Adult Detention Center (HCSO ADC) inmate property logs. The logs

showed that, on May 17, 2015, S.S. authorized the release to respondent of his cell

phone and that the cell phone was released by HCSO ADC to respondent that same

day. The ADC logs did not show that respondent ever returned S.S.'s cell phone to

inmate property.

54. On March 22, 2017, the Director sent to respondent by U.S. mail and by

email a letter enclosing the inmate property logs obtained from HCSO ADC and

requesting respondent to explain the basis for his prior statements relative to his

handling of S.S.' s cell phone. In his April 5, 2017, emailed response to the Director,

respondent stated: "I simply do not have his phone. If I did, I would have returned it

by now. There is no reason for me to have his phone. I either returned it to him, or one

of his friends at the hearing or soon thereafter."

55. Respondent raised for the first time in his April 5, 2017, email to the

Director the possibility that he provided S.S.' s cell phone to "one of [S.S.' s] friends at the

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hearing or soon thereafter." Respondent did not indicate in any of his prior

communications to the Director or to the DEC that he had personally received from

HCSO ADC, and had personally taken possession of, S.S.'s cell phone on May 17, 2015.

Respondent did not identify in any of his prior communications to the Director or to the

DEC any person other than S.S. himself (who was incarcerated and unable to take

possession of a cell phone) to whom he may have provided S.S.'s cell phone. To date,

S.S. has not received his cell phone.

56. Respondent's statements to the DEC and to the Director that he never took

possession of S.S.' s cell phone, that he had promptly returned to S.S. his cell phone, and

that the only time he had handled S.S.' s cell phone was in S.S.' s presence were

knowingly false.

57. Respondent's conduct in failing to safeguard S.S.' s property in his

possession, failing to ensure the cell phone was returned to S.S., and making knowingly

false statements to the DEC investigator and to the Director regarding his handling of

the cell phone violated Rules 1.15(c)(3), 1.15(c)(4), 1.16(d), 8.l(a), 8.4(c), and 8.4(d),

MRPC, and Rule 25, RLPR.

Return of File Materials & False Statements

58. On September 22, 2016, the Director sent to respondent a letter containing

the statement: "Finally, please note that [S.S.] states he has attempted to reach you to

request his complete criminal file which you maintained on his behalf." Enclosed with

the Director's September 22, 2016, letter were copies of letters to the Director from S.S.

in which S.S. stated his request for his DUI file and noted that he had previously

requested from respondent his file containing an "immunity letter" ("proffer letter")

from the U.S. Attorney's Office (USAO). While represented by respondent, the proffer

letter was presented to S.S. by the USAO in late 2012 to elicit S.S.' s assistance in certain

USSS undercover investigations. The latter request by S.S. for his file containing the

proffer letter referred to the state counterfeit check case against S.S. and the pending

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federal case against S.S. Although the Director's September 22, 2016, letter to

respondent was initially returned to the Director as undeliverable, the letter and its

enclosures were subsequently provided to respondent and respondent replied on

November 16, 2016. See supra 1162.

59. On October 24, 2016, S.S.'s new attorney, G.W., sent to respondent an

email noting his appointment to represent S.S. in federal court "on the counterfeit

checks." G.W.'s email included the following two statements: "I need [S.S.'s] files and

a copy of his proffer letter please" and "I need those State files as soon as you can

arrange it .... "

60. On November 16, 2016, respondent replied to G.W. via email with a link

to a Dropbox file consisting of the proffer letter and a .pd£ copy of the proffer letter,

stating, "This is the only document I've received on that federal case."

61. On November 14, 2016, the Director sent to respondent via email and U.S.

mail a letter attempting again to elicit a response to the Director's September 22, 2016,

letter and specifically stating:

You are again reminded that [S.S.] has stated that he has attempted on numerous occasions (both directly and through his current counsel, [G.W.]) to obtain from you his complete criminal case file including, but not limited to, any and all information relating to contacts and/or agreements with representatives of the United States Secret Service.

62. In his November 16, 2016, emailed response to the Director's

September 22, 2016, letter, respondent stated, "I have forwarded a link to the only

document [I] have on [S.S.'s] federal case, the proffer letter, along with a pd£

attachment, via email, to [G.W.]."

63. On January 12, 2017, the Director sent to respondent via email a letter

conveying to respondent S.S.' s request for "all of his client files in [respondent's]

possession." The Director requested verification from respondent that the files had

been provided to S.S. Respondent failed to respond to the Director's communication.

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64. On February 3, 2017, the Director sent to respondent via email a letter

conveying again to respondent S.S.' s request for "any and all of his client files and

materials in your possession (whether physically or electronically stored)" as well as

emails in respondent's possession exchanged with representatives of the USSS

regarding assistance S.S. had provided to a USSS investigation concerning counterfeit

checks. The Director requested verification from respondent that the files and

requested materials had been provided to S.S. Respondent failed to respond to the

Director's communication.

65. On February 22, 2017, the Director sent to respondent via email a letter

conveying again S.S.'s request for the materials described in the Director's February 3,

2017, letter. On March 3, 2017, respondent replied to the Director via email by

forwarding to the Director the emails he exchanged with G.W. in late 2016 regarding

respondent's provision to G.W. of a copy of the proffer letter. See supra<_[<_[ 59-60, 62.

Respondent did not address in his March 3, 2017, email the remaining files and

materials which S.S. had requested and which the Director had described generally

within the Director's January 12, 2017, letter and specifically in the Director's

November 14, 2016, and February 3 and February 22, 2017, letters.

66. On March 22, 2017, the Director sent to respondent via U.S. mail and email

a letter containing several questions pertaining to those remaining files and materials

which S.S. had requested and which the Director previously identified but which

respondent had not addressed in his March 3, 2017, email.

67. On April 5, 2017, respondent sent to the Director an email by which he

provided to the Director the version of the proffer letter in his possession (sent

previously to G.W.) and numerous pages of emails constituting what he asserted were

all of the communications in his possession exchanged with representatives of the USSS

or others regarding both the undercover work S.S. had performed with the USSS and

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the then-pending state counterfeit check case against S.S. In his April 5, 2017, email,

respondent stated to the Director:

I don't recall ever receiving any requests for his Hennepin County File ending in 16993 [the state counterfeit check case]. Your letter is the first [I]'ve heard of this request. He has not communicated this in person, writing, or by phone. . . . I will send him a copy of his file and provide verification. I have never denied him access to ANY of his files, especially and including his criminal ones. I will provide verification of the mailed file this week.

68. Despite G.W.'s October 24, 2016, request for S.S.'s state files for use with

respect to the pending federal counterfeit check case, despite the fact the late 2012

proffer letter would appropriately have constituted a part of the client file for S.S.' s state

counterfeit check charge, despite respondent's November 16, 2016, communications to

G.W. and the Director that the proffer letter he provided to G.W. was "the only

document" he had relative to the federal case, and despite the Director's November 14,

2016, and February 3 and February 22, 2017, letters specifically identifying the

communications exchanged with representatives of the USSS as materials requested by

S.S., respondent had not previously provided these communications to S.S., G.W., or the

Director. Respondent's November 16, 2016, statement to the Director that the proffer

letter he provided to G.W. and to the Director constituted "the only document" in his

possession relative to the pending federal case was knowingly false.

69. On April 12, 2017, the Director sent to S.S. a letter with which the Director

enclosed a copy of respondent's April 5, 2017, email to the Director and the referenced

attachments.

70. Respondent's failure to timely provide to S.S. upon request the entirety of

S.S.'s file materials in his possession relative to the pending federal case and the state

counterfeit check case and his knowingly false statement to the Director on

November 16, 2016, that he had provided "the only document" in his possession

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concerning S.S.'s pending federal case violated Rules l.15(c)(4), l.16(d), 8.l(a), 8.4(c),

and 8.4(d), MRPC, and Rule 25, RLPR.

THIRD COUNT

Failure to Cooperate with the Director's Investigations

Background

71. The address respondent formerly maintained with Lawyer Registration

was 333 South Seventh Street, Suite 2850, Minneapolis, Minnesota, 55402 ("333 South

Seventh Street").

72. On October 4, 2016, the Director sent an email to respondent and his

paralegal, J.R., noting that a September 22, 2016, letter the Director had sent to

respondent at 333 South Seventh Street had been returned as undeliverable and

stamped "unable to forward." The Director asked whether respondent had relocated

his law office, requested an updated address, requested respondent to update his

address with Minnesota Lawyer Registration (Lawyer Registration), and asked whether

mail-forwarding from 333 South Seventh Street has been arranged to ensure his receipt

of all law-related mail.

73. On October 4, 2016, J.R. responded via email and requested the Director to

send the September 22, 2016, letter to her at 5582 East Bavarian Pass, Minneapolis,

Minnesota, 55432 ("5582 East Bavarian Pass") so that she could scan and send the letter

to respondent. In a subsequent email of that same date, J.R. confirmed that 5582 East

Bavarian Pass was a temporary mail-forwarding location and not the location of

respondent's new law office and that she had arranged with the U.S. post office to have

mail properly forwarded from 333 South Seventh Street. Additionally, J.R. stated that

some pieces of mail were forwarded and some were delivered to 333 South Seventh

Street and that she would be notified of their delivery the day they were delivered. J.R.

concluded by stating that, other than the Director's September 22, 2016, letter, she has

not had problems with the mail-forwarding from 333 South Seventh Street.

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! '·

74. On October 28, 2016, respondent informed the Director via email that he

was changing offices and would not have a permanent address "for 4 more weeks in the

interim." Respondent asserted that mail had "been forwarded haphazardly" and

requested that communications from the Director in the meantime be sent via email.

75. On October 28, 2016, the Director sent to respondent an email confirming

the Director would send future correspondence to respondent via email until he

obtained a permanent mailing address. The Director requested respondent to notify the

Director and Lawyer Registration once respondent secured a new address.

76. On March 3, 2017, respondent provided to the Director an updated

address: 60 South Sixth Street, Suite 2800, Minneapolis, Minnesota, 55402 ("60 South

Sixth Street"). Following March 3, 2017, the Director used 60 South Sixth Street as

respondent's mailing address for all communications sent via U.S. mail.

77. On or about March 22, 2017, respondent updated his address with Lawyer

Registration to 60 South Sixth Street.

78. Between approximately June 2, 2017, and August 18, 2017, respondent

was represented by counsel with respect to the Director's investigations.

J.S. Complaint

79. On April 13, 2017, the Director received from J.S. a complaint filed against

respondent on behalf of her significant other, P.M.

80. On April 14, 2017, the Director sent to respondent at 60 South Sixth Street

notice of investigation of J.S.'s complaint. Respondent's response to the complaint was

due by April 28, 2017. Respondent failed to respond.

81. On May 5, 2017, the Director sent to respondent at 60 South Sixth Street

and by email a letter noting respondent's failure to respond and requesting

respondent's response to J.S.'s complaint by May 12, 2017. Respondent failed to submit

his response by May 12, 2017.

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82. On May 5, 2017, respondent-after receiving by email the Director's

May 5, 2017, letter-sent to the Director an email in which he stated: "I don't recall

getting the original. Can you send me an email?"

83. On May 6, 2017, the Director sent to respondent by email J.S.'s complaint

and the April 14, 2017, notice of investigation and requested respondent's response to

the complaint by May 20, 2017.

84. On May 12, 2017, respondent emailed the Director stating:

I just finished a 1 and half week attempted homicide trial (State v. [X]). I know you've already granted one extension, but I really need the extra time to respond since I've been in trial. Also, I will likely secure counsel moving forward, and have met with [ an attorney]. I will likely retain him, but need a brief time to do so.

85. On May 12, 2017, the Director responded via email, stating:

I'm unable to grant an indefinite extension. For the time being, the May 20, 2017, deadline can stand. If, as that deadline approaches, you find you have been unable to complete your response and need a specific additional period of time to complete it, please contact me. If you retain [an attorney], please have [that attorney] contact me immediately.

86. Respondent failed to respond to J.S.'s complaint or otherwise

communicate with the Director by May 20, 2017.

87. On May 26, 2017, the Director sent to respondent at 60 South Sixth Street

and by email a letter outlining the Director's prior communications and expired

deadlines, noting the lack of any response from respondent to J.S.'s complaint and the

seriousness of the alleged misconduct, emphasizing that respondent's cooperation was

required, and requesting respondent's complete written response by June 2, 2017.

Respondent failed to respond.

88. On June 2, 2017, respondent's counsel sent an email to the Director, stating

he had been retained by respondent but that he did not yet have the file. Respondent's

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counsel further stated, "Once I get back in town and get a look at the files, I can let you

know how much additional time it will take to respond."

89. On June 2, 2017, the Director replied to respondent's counsel by email,

requesting he contact the Director "mid-week or so" during the week of June 5-9, 2017,

to discuss a new deadline for respondent's response to J.S.'s complaint.

90. On June 5, 2017, respondent's counsel contacted the Director by email and

requested he be sent a copy of, among other items, the J.S. complaint file. On June 6,

2017, the Director sent to respondent's counsel as requested an electronic copy of the J.S.

complaint file.

91. On June 7, 2017, the Director sent to respondent's counsel an email and

suggested they connect on June 8, 2017, regarding respondent's response to the J.S.

complaint.

92. On June 9, 2017, the Director telephoned respondent's counsel and left a

voicemail requesting a return call. No response was received.

93. On June 12, 2017, the Director sent via email to respondent's counsel a

recent submission from J.S. In that email, the Director informed respondent's counsel

that respondent's response to J.S.'s complaint was due by June 23, 2017. No response or

communication was received by June 23, 2017.

94. On July 6, 2017, respondent's counsel sent an email to the Director stating,

"I am trying to get a response to you regarding the [J.S.] complaint." Respondent's

counsel further stated that, due to time constraints on his part, it would be unlikely a

response would be submitted prior to July 14, 2017, noting that even July 14, 2017, was

"somewhat optimistic."

95. To date, respondent has not submitted any response to J.S.'s complaint.

E.C. Complaint

96. On November 7, 2016, the Director received from E.C. a complaint against

respondent.

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I I I I

97. On November 22, 2016, the Director sent to respondent at 333 South

Seventh Street and by email notice of investigation of E.C.' s complaint. Respondent's

response to E.C.'s complaint was due by December 6, 2016. Respondent failed to

respond, and the notice of investigation sent to respondent at 333 South Seventh Street

was returned on December 12, 2016, as unclaimed.

98. On December 14, 2016, the Director sent to respondent at 333 South

Seventh Street and by email a letter noting respondent's failure to respond and

requesting respondent's response to E.C.'s complaint by December 24, 2016.

99. On December 22, 2016, respondent submitted to the Director via email his

response to E.C.' s complaint.

100. On June 13, 2017, the Director sent to respondent's counsel a letter

containing several questions to which respondent's responses were requested by

June 27, 2017. No response or other communication was received by June 27, 2017.

101. On July 3, 2017, the Director sent to respondent's counsel a letter again

requesting respondent's response to the Director's June 13, 2017, letter. Respondent's

response was due by July 10, 2017.

102. On July 6, 2017, respondent's counsel sent to the Director an email stating

he will work on the letter regarding E.C., but that it would be unlikely a response

would be submitted prior to July 14, 2017, noting that even July 14, 2017, was

"somewhat optimistic." No response or other communication was thereafter received.

103. On July 25, 2017, the Director sent to respondent's counsel a letter again

requesting respondent's response to the Director's June 13, 2017, letter "at this time."

To date, respondent has not submitted a response to the Director's June 13, 2017, letter.

P.G./T.H. Complaints

104. On February 22, 2016, the Director received from P.G. a complaint against

respondent.

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105. On March 4, 2016, the Director received from T.H. a complaint against

respondent. T.H.'s complaint directly related to P.G.'s complaint in that respondent

jointly represented P.G. and T.H. as co-defendants in a criminal matter.

106. On March 18, 2016, the Director sent to respondent notices of investigation

of the P.G. and T.H. complaints. Both complaints were sent to the Fourth DEC for

investigation and assigned to the same investigator. Respondent's responses were due

by April 1, 2016.

107. On March 28, 2016, the DEC investigator sent to respondent two letters in

which he requested respondent's responses to the complaints of P.G. and T.H. and

certain documents from their files. The investigator requested respondent's responses

within 14 days, effectively extending the deadline for respondent's responses to

April 11, 2016.

108. On April 1, 2016, respondent's paralegal sent to the DEC investigator an

email requesting a two-week extension for respondent to respond to the complaints.

The investigator approved the extension, extending the deadline for respondent's

response to April 25, 2016. Respondent failed to submit responses to the complaints of

P.G. and T.H. by April 25, 2016.

109. On April 28, 2016, respondent's paralegal sent to the DEC investigator an

email informing the investigator that respondent should complete his response to the

complaints "shortly." No response was received.

110. On May 9, 2016, the DEC investigator sent to respondent an email

requesting his responses to the complaints by May 13, 2016.

111. On May 9, 2016, respondent's paralegal sent to the DEC investigator an

email stating respondent had a major trial which was delaying his ability to respond to

the P.G. and T.H. complaints. The DEC investigator granted respondent an additional

extension to May 20, 2016, to respond to the complaints and to provide additional

documents.

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112. On May 17, 2016, respondent's paralegal sent to the DEC investigator an

email requesting on respondent's behalf an extension to June 7, 2016, to respond to the

complaints. The DEC investigator granted respondent this additional extension to

respond to the complaints and to provide additional documents.

113. On June 2, 2016, respondent's paralegal sent to the DEC investigator an

email requesting on respondent's behalf an extension of one week for respondent to

respond to the complaints. On June 6, 2017, the DEC investigator responded to

respondent's paralegal and approved the extension, thereby extending to June 9, 2016,

the deadline for respondent's responses to the complaints. Respondent failed to submit

his responses to the complaints by June 9, 2016.

114. On June 13, 2016, the DEC investigator sent to respondent an email stating

he had not received respondent's responses to the complaints and that he could not

grant any further extensions. The DEC investigator further stated that the responses

and requested documentation must be received by the close of business on June 15,

2016.

115. On June 15, 2016, respondent sent to the DEC investigator an email

containing one response to both complaints. Respondent did not provide with his

June 15, 2016, response any of the documents previously requested by the DEC

investigator.

116. On June 16, 2016, the DEC investigator sent to respondent an email asking

follow-up questions and requesting respondent to submit by June 23, 2016, the

documents the DEC investigator originally requested on March 28, 2016. Respondent

failed to respond to the DEC investigator's additional questions and failed to submit the

requested documents by June 23, 2016.

117. On June 28, 2016, the DEC investigator sent to respondent an email,

stating that, if he did not receive the requested information and documents by July 1,

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2016, he would complete the investigation based upon respondent's June 15, 2016,

response.

118. On June 29, 2016, respondent's paralegal sent to the DEC investigator an

email containing an attachment as well as two hyperlinks to Dropbox files in which

documents from the P.G. and T.H. files were stored.

119. On August 26, 2016, the DEC investigator sent to respondent an email,

requesting a telephone interview with respondent on August 30, 2016, at 10:00 a.m.

Respondent did not respond to this email.

120. On August 30, 2016, the DEC investigator attempted to telephone

respondent, but respondent was unavailable. Following an email exchange between the

DEC investigator and respondent, the telephone interview was rescheduled for

September 6, 2016. On September 6, 2016, the DEC investigator interviewed respondent

by telephone.

S.S. Complaint

121. On September 22, 2016, the Director sent to respondent at 333 South

Seventh Street a letter containing several questions. Respondent's response was due by

October 6, 2016. On October 3, 2016, the September 22, 2016, letter was returned to the

Director as undeliverable and stamped "unable to forward."

122. On October 4, 2016, the Director sent to respondent via email a copy of the

Director's September 22, 2016, letter. Respondent's response was due by October 18,

2016. Respondent failed to respond.

123. On October 27, 2016, the Director sent to respondent at 333 South Seventh

Street and 5582 East Bavarian Pass and via email a letter again requesting respondent's

response to the Director's September 22, 2016, letter. Respondent's response was due

by November 6, 2016.

124. On October 28, 2016, respondent sent to the Director an email, noting he

was changing offices and would not have a permanent mailing address for four more

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weeks and that mail forwarding had been haphazard, and requesting that documents

be sent to him via email during the interim transition period. Respondent did not

include within his email to the Director any response to the Director's September 22,

2016, letter.

125. On November 14, 2016, the Director sent to respondent at 333 South

Seventh Street and via email a letter again requesting respondent's response to the

Director's September 22, 2016, letter "at this time." On November 16, 2016, respondent

emailed to the Director his response to the Director's September 22, 2016, letter.

126. On January 12, 2017, the Director sent to respondent via email a letter

noting S.S.'s claim G.W. could not open the link respondent had provided for the

proffer letter. In this letter, the Director informed respondent that S.S. had requested

the proffer letter be provided to him and/or to G.W. directly and further informed

respondent that S.S. had requested all client files in respondent's possession. The

Director concluded the letter by requesting respondent provide to the Director a copy of

any cover letter or other communication verifying that the requested materials were

transmitted to S.S. and/or to G.W. Respondent failed to provide the Director with the

requested confirmation or otherwise respond to the Director's letter.

127. On February 3, 2017, the Director sent to respondent via email a letter

noting that, although respondent had not submitted to the Director the requested

verification, S.S. had acknowledged receipt of one of his files (the "DUI file"). In this

letter, the Director informed respondent that S.S. had requested his "check fraud case

file," all emails respondent exchanged with representatives of the USSS relating to S.S.,

and the version of the proffer letter S.S. claimed was signed by all parties. The Director

further informed respondent that S.S. had requested but not yet received all client files

and materials in respondent's possession relating to S.S. The Director requested

respondent to provide by February 17, 2017, confirmation of his compliance with S.S.'s

requests and to identify the specific materials he returned to S.S. Respondent failed to

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provide the Director with the requested confirmation or otherwise respond to the

Director's letter.

128. On February 22, 2017, the Director sent to respondent via email a letter

requesting "at this time" the requested confirmation that respondent had sent the

requested materials to S.S. On March 3, 2017, respondent forwarded to the Director an

email exchange between respondent and G.W. showing respondent had tried to send

the proffer letter to G.W. on November 16, 2016, and that he had re-sent the proffer

letter to G.W. on December 8; 2016, after G.W. had been unable to open the linked

document. Respondent's March 3, 2017, communication did not address the return to

S.S. of the other materials specifically identified in the Director's February 3 and

February 22, 2017, letters to respondent.

129. On March 22, 2017, the Director sent to respondent at 60 South Sixth Street

and via email a letter noting respondent's failure in his March 3, 2017, email to address

the other file materials S.S. was requesting be returned to him and which were

referenced within the Director's prior letters. The Director further requested in the

letter respondent's responses to a series of specific questions focused upon the return of

S.S.'s file materials. The Director requested respondent's response no later than April 5,

2017. Respondent replied to the Director's March 22, 2017, letter by email on April 5,

2017.

Charges of Unprofessional Conduct

130. On September 11, 2017, the Director mailed to respondent at 60 South

Sixth Street (the updated address he currently maintains with Lawyer Registration) the

charges of unprofessional conduct in this matter. Pursuant to Rule 9(a)(l), RLPR, and

Rule 6, Minn. R. Civ. Proc., respondent's answer to the charges of unprofessional

conduct was due to the Director and Panel Chair by September 28, 2017.

131. To date, the Director has not received respondent's answer to the

September 11, 2017, charges of unprofessional conduct. Further, respondent has not

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contacted the Director at any time since the charges of unprofessional conduct were

mailed to him.

132. Respondent's conduct in wholly failing to respond to the Director's

investigation of J.S.'s complaint, failing to timely and fully cooperate with the Director's

investigations of the complaints of E.C., P.G., T.H., and S.S., and failing to answer the

charges of unprofessional conduct violated Rule 8.l(b), MRPC, and Rule 25, RLPR.

WHEREFORE, the Director respectfully prays for an order of this Court

disbarring respondent or imposing otherwise appropriate discipline, awarding costs

and disbursements pursuant to the Rules on Lawyers Professional Responsibility, and

for such other, further or different relief as may be just and proper.

Dated: Oc.,~ .:l.. 2017.

SUSAN M. HUMISTON DIRECTOR OF THE OFFICE OF LA WYERS

PROFESSION AL RESPONSIBILITY Attorney No. 0254289 1500 Landmark Towers 345 St. Peter Street St. Paul, MN 55102-1218 (651) 296-3952 Susan.Humiston@courts.state.mn.us

and

SENIOR ASSISTANT DIRECTOR Attorney No. 0388248 Josh.Brand@courts.state.mn.us

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I ,

This petition is approved for filing pursuant to Rules lO(d) and (e) and 12(a),

RLPR, by the undersigned Panel Chair.

Dated: Oci--. q 2017. -~~-~----~ ANNEM.H PANEL CHAIR, LAWYERS PROFESSIONAL

RESPONSIBILITY BOARD

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