In Re Petition for Disciplinary Action Against Otis

PAUL H. ANDERSON, Justice

(dissenting).

I respectfully dissent. I believe that the more appropriate resolution here is to remand this matter to the Minnesota Director of Professional Responsibility. On remand, the director would have the opportunity in a complete evidentiary hearing to rebut the information regarding James D. Otis’s alleged rehabilitation. As it stands now, the information presented by Otis has not been appropriately developed in the record, is untested in any evidentiary proceeding, and, as such, should be irrelevant to this court’s decision.

Otis was disbarred in New Hampshire for egregious sexual misconduct committed against six female clients. Otis sexually assaulted a woman, S.B., who was not only a client, but also an employee in his law firm. He made numerous inappropriate sexual remarks to other female clients as well, such as proposing to one client that they masturbate, telling another client that he would like to see her in some lingerie, and advising yet another client to come to him if her husband could not satisfy her sexually.

If this -case had come before us six years ago, in 1992, when Otis was disbarred in New Hampshire, we would likely have disbarred Otis at that time based on this misconduct. However, the only reason this case did not come before us in 1992 was because Otis failed to notify the director of professional responsibility of his disbarment as required by Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR). Otis should not *566benefit from this failure to comply with professional responsibility requirements. ,

Otis claims, however, that since six years havé passed, he can now prove that medication and therapy have led to his recovery. However, the majority fails to acknowledge that both the New Hampshire Committee on Professional Conduct and the New Hampshire Supreme Court have already considered and rejected Otis’s argument that the disorder caused his misconduct, concluding that this argument was without merit. Because New Hampshire already considered this argument in an evidentiary hearing, we should give full faith and credit to New Hampshire’s disbarment of Otis. See Rule 12(d), RLPR.

Moreover, this case is very similar to another discipline ease, In re Heinze, in which we disbarred an attorney for egregious sexual misconduct. 233 Minn. 391, 47 N.W.2d 123 (Minn.1951). In Heinze, a substantial amount of time had lapsed between the attorney’s sexual misconduct towards five young boys and the resulting discipline, and the attorney claimed that hie had been rehabilitated in that time. Id. at 394, 47 N.W.2d at 125. There, like here, the only evidence of the attorney’s rehabilitation was his own allegations, and we ordered the attorney’s disbarment. Id. at 395-96, 47 N.W.2d at 125. Without further evidence of Otis’s rehabilitation at’thís time, I see no reason to withhold reciprocal discipline.

I believe that, at the least, we should remand this matter to the director for an evi-dentiary hearing so that a referee can make findings on Otis’s alleged rehabilitation. The only' evidence now before this court is Otis’s untested statements that he has recovered and that he has not committed further misconduct, and the affidavits that he has procured. The director should be given the opportunity to rebut Otis’s alleged rehabilitation in a comjplete evidentiary hearing.

BLATZ, Chief Justice

(dissenting).

I join in the dissent of Justice Paul H. Anderson.