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STATE OF MINNESOTA July 20, 2016
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IN SUPREME COURT APPB..lATEC ...., ,__..._
AlS-1877
In rePetition for Disciplinary Action against
Scott Alan Becker, a Minnesota Attorney,
Registration No. 0248253.
ORDER
The Director of the Office of Lawyers Professional Responsibility filed a petition
for disciplinary action alleging that respondent Scott Alan Becker committed
professional misconduct warranting public discipline during his representation of an
elderly couple ("aunt" and "uncle") with respect to the estate of uncle's deceased
nephew ("Linde estate"). Specifically, the petition alleges that Becker agreed to
represent aunt and uncle with respect to the Linde estate despite a conflict of interest
created by aunt's and uncle's agreement to pay Becker the proceeds of the estate, in lieu
of attorney fees, see Minn. R. Prof. Conduct 1. 7(b ); entered into unfair and unreasonable
business transactions with uncle that resulted in Becker receiving a significant financial
windfall, see Minn. R. Prof. Conduct 1.8(a); prepared a document in which uncle gave
Becker a substantial gift, see Minn. R. Prof. Conduct 1.8(c); made knowingly false
statements to unrepresented heirs in the probate proceeding regarding Becker's role in
the proceeding, see Minn. R. Prof. Conduct 4.1, 4.3(a), and 4.3( c); and charged the
probate estate an unreasonable fee, see Minn. R. Prof. Conduct l.S(a).
The parties filed a stipulation for discipline with the court. In it, Becker waived
his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR),
withdrew the answer he previously filed, and unconditionally admitted the allegations in
the petition. The parties proposed that the appropriate discipline is a public reprimand
and 2 years of supervised probation.
We issued an order to show cause that instructed the parties to file memoranda
addressing why Becker should not be subject to more severe discipline and responding to
six specific questions. The parties filed responsive memoranda.
Becker has admitted to committing very serious misconduct. Becker's misconduct
includes representing aunt and uncle despite a conflict of interest that resulted from his
fee agreement and business transactions with aunt and uncle. The parties acknowledge
that the conflict of interest harmed uncle and the other heirs. The parties admit that
because of the conflict of interest, uncle was denied objective legal advice and Becker
was "not ... candid" with uncle and the other heirs. A conflict of interest is aggravated
when it is "clear and certain." In re Varriano, 755 N.W.2d 282, 292 (Minn. 2008).
Becker's conflict of interest was clear and certain because of what he knew about the
potential windfall he was likely to receive from his fee agreement and business
transactions with aunt and uncle. Moreover, Becker has admitted that he was expressly
advised about this conflict of interest because of communications he had with the
Director's Office shortly after agreeing to represent aunt and uncle, yet Becker continued
with the representation and never obtained aunt and uncle's informed consent.
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Becker also entered into two improper business transactions with uncle in
September 2011. Uncle was the personal representative of the Linde estate, and in both
of these business transactions, Becker agreed to perform the work of the personal
representative for uncle in exchange for an assignment of uncle's share of the estate to
Becker. The terms of the business transactions were unfair and unreasonable at the time
they were consummated, because uncle was not informed of the value of the interest he
was agreeing to give Becker and Becker either knew or should have known that the value
of the Linde estate would far exceed the costs of the administration of the estate. It is
true that Becker eventually disclosed to uncle the exact value of the estate he was
assigning before the assignment was made. But even with this subsequent disclosure, the
terms remained unfair and unreasonable because Becker received an exorbitant fee for
performing the administrative duties of the Linde estate. See Minn. Stat. §§ 524.3-719(a)
("A personal representative is entitled to reasonable compensation for services."), 524.3-
721 (20 14) (stating that the "reasonableness of the compensation of any person"
employed by the personal representative may be reviewed by the court). Additionally,
the business transactions were made without advising uncle to seek, or providing him
with the opportunity to obtain, independent legal advice about the transactions. And
uncle did not give informed consent, as required by Minn. R. Prof. Conduct 1.8(a).
The purpose of discipline for professional misconduct is not to punish the attorney
but to protect the public and the judicial system and to deter future professional
misconduct. In re Plummer, 725 N. W.2d 96, 98 (Minn. 2006). Given the significant
misconduct Becker committed, we conclude that the parties' recommended disposition is
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insufficient to protect the public and the judicial system and to deter future misconduct.
As a result, we reject the parties' recommended disposition and conclude that an
appropriate disposition is a 60-day suspension followed by 2 years of supervised
probation.
Based upon all the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1. Respondent Scott Alan Becker is suspended from the practice of law for a
minimum of60 days, effective 14 days from the date ofthis order.
2. Respondent shall comply with Rule 26, RLPR (requiring notice of
suspension to clients, opposing counsel, and tribunals).
3. Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.
4. Respondent shall be eligible for reinstatement to the practice of law
following the expiration of the suspension period provided that, not less than 15 days
before the end of the suspension period, respondent files with the Clerk of Appellate
Courts and serves upon the Director an affidavit establishing that he is current in
continuing legal education requirements, has complied with Rules 24 and 26, RLPR, and
has complied with any other conditions for reinstatement imposed by the court.
5. Within 1 year of the date of this order, respondent shall file with the Clerk
of Appellate Courts and serve upon the Director proof of successful completion of the
written examination required for admission to the practice of law by the State Board of
Law Examiners on the subject of professional responsibility. Failure to timely file the
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required documentation shall result m automatic re-suspens10n. See Rule 18( e)(3 ),
RLPR.
6. Upon reinstatement to the practice of law, respondent shall be subject to
probation for 2 years, subject to the following conditions:
(a) Respondent shall cooperate fully with the Director's Office in its
efforts to monitor compliance with this probation. Respondent shall
promptly respond to the Director's correspondence by its due date.
Respondent shall provide the Director with a current mailing address and
shall immediately notify the Director of any change of address.
Respondent shall cooperate with the Director's investigation of any
allegations of unprofessional conduct that may come to the Director's
attention. Upon the Director's request, respondent shall provide
authorization for release of information and documentation to verify
respondent's compliance with the terms of this probation.
(b) Respondent shall abide by the Minnesota Rules of Professional
Conduct.
(c) Respondent shall be supervised by a lawyer with the Director's
Office who will monitor respondent's compliance with the terms of this
probation.
(d) Respondent shall cooperate fully with the supervisor in their efforts
to monitor compliance with this probation.
(e) On a quarterly basis, respondent shall affirmatively report to the
Director the status of his efforts to resolve the claims of the heirs of Richard
Linde. After 1 year, if the claims of the heirs have been resolved,
respondent may request early termination of the probation. If the Director
agrees, the parties may file a request for termination of probation with the
court.
Dated: July 20, 2016 BY THE COURT:
David R. Stras
Associate Justice
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