Wednesday, February 19, 2020

One Last Chance

The Minnesota Supreme Court declined to impose any active suspension of a second-offender attorney

The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition for disciplinary action against respondent Daniel Martin Lieber. We appointed a referee. After a hearing, the referee determined that Lieber had negligently misappropriated client funds, commingled his own funds with client funds, willfully failed to maintain proper trust account books and records, and violated advertising rules. The referee found several aggravating factors, including that we had previously disbarred Lieber for, among other things, similar trust account related misconduct. The referee also found that Lieber’s personal stress, resulting from his daughter’s health problems, the health problems of other family members, and the death of his father-in-law, is a mitigating factor. The referee concluded, however, that this factor is insufficient to mitigate against the need for a suspension, and he recommended an 18-month suspension. Lieber challenges some of the referee’s findings and conclusions regarding mitigating and aggravating factors, and asserts that a 90-day stayed suspension is the appropriate discipline. The Director asks us to impose a suspension of at least 3 years. We conclude that in light of the substantial mitigation, the appropriate discipline for Lieber’s misconduct is a stayed disbarment.

The attorney has a "significant discipline history."

After his first major offense had led to disbarment in 2005

We reinstated Lieber to the practice of law on July 31, 2013, and placed him on probation for 3 years.

Referee error

We conclude that the referee clearly erred in determining that, because Lieber’s extreme stress was not the cause of his misconduct, it was not a substantial mitigating factor.

Noting that the misconduct would likely draw a non-suspensory sanction but that most cases do not involve disbarred and reinstated lawyers.

Stayed discipline is unusual but this is an unusual case. Indeed, we anticipate that it is the only one of its kind. We expect not to see again a disbarred attorney who, after reinstatement, commits further misconduct. Under our inherent authority to regulate the practice of law, we conclude that if we later determine that Lieber has committed other misconduct, no matter how minor, he can expect that the stay will end and he will be disbarred without the opportunity to apply for reinstatement.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/02/the-minnesota-supreme-court-the-director-of-the-office-of-lawyers-professional-responsibility-director-filed-a-petition-fo.html

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