In re Disciplinary Action Against Stewart

DISSENT

GILDEA, Chief Justice

(dissenting).

I respectfully dissent. The U.S. Patent and Trademark Office (“USPTO”) excluded respondent Alan R; Stewart from practice for misappropriating $8,000 in client funds, neglecting a client matter, failing to communicate with a client, engaging in, the unauthorized practice of law, and failing to cooperate with the disciplinary proceedings. I agree with the majority that the discipline in Minnesota identical to exclusion before the USPTO is an indefinite suspension with no right to petition for reinstatement for 5 years (“6-year suspension”). I also agree with the majority that the discipline warranted in Minnesota for Stewart’s misconduct is disbarment. I disagree with the majority on whether a 5-year suspension is substantially different than disbarment. Because a 5-year suspension is substantially different than disbarment, I would not impose reciprocal discipline and instead would disbar Stewart.

I.

In reciprocal discipline cases, we are not required to impose-the same discipline as the other jurisdiction. Instead, when a lawyer has been publicly disciplined in another jurisdiction, we “may thereafter impose the identical discipline unless it appears that the 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.” Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR) (emphasis added). Based on the plain language of this rule, we “may not impose identical discipline if to do so would ... result in discipliné substantially different from that warranted in Minnesota.” In re Meaden, 628 N.W.2d 129, 133 *484(Minn. 2001) (citing Rule 12(d), RLPR); see also In re Pennington, 706 N.W.2d 482, 482 (Minn. 2005) (order) (imposing different discipline in a reciprocal discipline case because the discipline imposed by the other jurisdiction was substantially different from the discipline warranted in Minnesota).

The question, then, is whether the discipline imposed by the USPTO is “substantially different from discipline warranted in Minnesota.” Rule 12(d), RLPR. To answer this question, I must (1) determine the discipline we would impose on Stewart, and (2) determine if a 5-year suspension is substantially different from the discipline warranted in Minnesota.

Stewart misappropriated $8,000 from his client F.W. because Stewart took $8,000 from her as advanced fees, performed no work for her, and .did not return the funds. See In re Lundeen, 811 N.W.2d 602, 608 (Minn. 2012) (stating that a lawyer misappropriates client funds by “performing no work on [client] matters and never returning the funds to the clients”). Misappropriation of client funds “is particularly serious misconduct” that “usually warrants disbarment absent clear and convincing evidence of substantial mitigating factors.” In re Garcia, 792 N.W.2d 434, 443 (Minn. 2010) (citation omitted) (internal quotation marks omitted); see also In re Rambow, 874 N.W.2d 773, 774-75, 778 (Minn. 2016) (disbarring an attorney who, among other things, misappropriated $1,393 from two clients); In re Swokowski, 796 N.W.2d 317, 319-26 (Minn. 2011) (disbarring an attorney for, among other things, misappropriating $1,000; forging a client’s endorsement on a settlement check; failing to cooperate with the Director; and neglecting several client matters); In re Randall, 562 N.W.2d 679, 683 (Minn. 1997) (disbarring an attorney for misappropriating $4,000, charging a client for services that were not performed, forging a client’s name on a settlement check, and making misrepresentations to the Director). Stewart presents no mitigating circumstances. As the majority acknowledges, the discipline warranted in Minnesota for Stewart’s misconduct is disbarment.

I must next determine if the identical discipline of a 5-year suspension is substantially different than disbarment. It is true, as the majority notes, that a 5-year suspension is lengthy and that reinstatement is not automatic for either an attorney subject to such a suspension or a disbarred attorney because both must petition for reinstatement. See Rule 18, RLPR. The majority, however, fails to consider that we have treated disbarment much differently than lengthy suspensions.

“[Reinstatement after disbarment is the rare exception to the rule.” In re Ramirez, 719 N.W.2d 920, 924 (Minn. 2006); see also In re Anderley, 696 N.W.2d 380, 385 (Minn. 2005) (referring to a disbarred, later reinstated, attorney as “the rare individual who has met the heavy burden of demonstrating his rehabilitation ...”); In re Smith, 220 Minn. 197, 19 N.W.2d 324, 326 (1945) (“While [the] court should be slow to disbar, it should be even more cautious in readmitting an attorney to a position of trust.” (citations omitted)). We have never said that it is rare to reinstate attorneys who had to petition for reinstatement following lengthy suspensions. And in the few cases in which we have reinstated disbarred attorneys, we have done so only after more than 5 years had passed. See In re Lieber, 834 N.W.2d 200, 202, 211 (Minn. 2013) (reinstating an attorney 8 years after he was disbarred); Ramirez, 719 N.W.2d at 922, 928 (over 8 ½ years); Anderley, 696 N.W.2d at 382 (13 years); In re Trygstad, 472 N.W.2d 137, 139 (Minn. 1991) (7 ½ years); In re Wegner, 417 *485N.W.2d 97, 98, 100 (Minn. 1987) (8 years). As a result, there is a substantial difference between a 5-year suspension and disbarment.

Decisions from other courts lend further support to my conclusion that there is a substantial difference between a 5-year suspension and disbarment. In reciprocal discipline cases in which another jurisdiction suspended an attorney for misappropriating client funds, other courts have chosen to disbar the attorney. See In re Grossman, 940 A.2d 85, 86-87, 86 n.2 (D.C. 2007) (disbarring an attorney in a reciprocal discipline case who had been indefinitely suspended in Massachusetts for intentionally converting client funds and stating that a lawyer indefinitely suspended in Massachusetts could apply for reinstatement after 5 years); In re Ladas, 798 A.2d 1067, 1067-68 (D.C. 2002) (disbarring an attorney in a reciprocal discipline case who had been suspended for 2 years in New York for, among other things, misappropriating client funds); State ex rel. Neb. State Bar Ass’n v. Van, 251 Neb. 196, 556 N.W.2d 39, 42-44 (1996) (disbarring an attorney in a reciprocal discipline case who had been suspended for 1 year in Illinois for, among other things, failing to refund advanced fees to which the attorney was not entitled).

When we “determine!] that imposition of the identical discipline” in a reciprocal discipline case “is not appropriate, [we] may order such other discipline ... as [we] deem[ ] appropriate.” Rule 12(d), RLPR. Imposition of identical discipline in this case is not appropriate because the discipline imposed by the USPTO is substantially different than the discipline'warranted in Minnesota for Stewart’s misconduct. Stewart’s misconduct includes the misappropriation of client funds, which is “among the most serious acts of misconduct a lawyer can commit.” In re Swanson, 405 N.W.2d 892, 893 (Minn. 1987); see also In re Swanson, 343 N.W.2d 662, 663 (Minn. 1984) (describing the conduct committed by the attorney resulting in his disbarment). Accordingly, I would disbar Stewart.