Wednesday, June 16, 2021

Moral Change

An attorney admitted in 1973 and indefinitely suspended in 2017 has been denied reinstatement by the Minnesota Supreme Court.

Tigue was admitted to practice law in Minnesota in 1973. He has a lengthy disciplinary history featuring repeated and escalating incidents of financial misconduct, culminating in intentional misappropriation of client funds.

Here

On October 8, 2019, Tigue filed a petition for reinstatement. Following a hearing, the panel unanimously recommended against reinstatement primarily because of its conclusion that Tigue “failed to prove by clear and convincing evidence that he has undergone the requisite moral change to now render him fit to resume the practice of law” and “that he recognizes the wrongfulness of his misconduct.” The Director also opposes Tigue’s reinstatement. Tigue urges us to disregard the panel’s recommendation and reinstate him to the practice of law in Minnesota.

The element of "moral change"

The dissent asserts that this test is nebulous and slippery and, thus, difficult to apply. We disagree with the dissent’s claim that it is too difficult to apply our moral change test. Remorse and acceptance of responsibility are not difficult concepts. Petitioners often prove remorse and acceptance of responsibility by presenting evidence that the petitioner is sorry for, or regrets, the misconduct, that what the petitioner did was wrong, and that the petitioner took responsibility for the misconduct.

On that point

Tigue did not present evidence of much, if any, remorse for his misconduct in his reinstatement hearing. In his testimony, he essentially characterized all of his client trust account issues as “clerical errors” and contended he “kept all the records [he] was supposed to keep,” downplaying the seriousness of his misconduct. Although he acknowledged that he made some errors in trust account calculations and kept a filing fee he should not have kept, he also repeatedly characterized his 2017 suspension as “unfair.” He said: “Do I feel I was treated unfairly by getting that two-year suspension. Damn right I do.”

...Tigue has repeatedly minimized the seriousness of his conduct and called into question the grounds for his suspension in the first place, though he did acknowledge that he remains bound by our 2017 decision. And his comments at the hearing suggest that Tigue may not be fully “clear on what he had done wrong” in the past. Id. at 637 (internal quotation marks omitted). Consequently, based on our independent review of the record, the panel’s finding that Tigue did not show remorse and acceptance of responsibility for his misconduct is not clearly erroneous.

Thus

We begin with Tigue’s argument that he does not need to show moral change because his misconduct did not involve any kind of moral failing. Such a conclusion requires two assumptions: 1) that Tigue’s misconduct did not involve a moral failing; and 2) that we alter our reinstatement test based on the nature of a petitioner’s misconduct. Neither assumption is accurate.

First, Tigue’s misconduct clearly involved a moral failing. As we noted in 2017, misappropriation of client funds in any amount—whether negligent or intentional— represents serious misconduct...

Second, we do not alter our reinstatement test or the moral change requirement based on the nature of a petitioner’s misconduct. We have consistently applied the same basic test and standard of review for reinstatement cases for years, regardless of the type of misconduct the attorney committed.

Response to dissent

The dissent takes a slightly different approach. It contends that we should not apply our moral change standard to less serious negligent misappropriation. The dissent claims that the reinstatement cases in which we have applied the moral change requirement involved either dishonesty or what it defines as moral turpitude. The dissent’s position is flawed.

Under our rules, we do not require every lawyer to prove moral change to be reinstated to the practice of law. But we do not base the determination of who must prove moral change on whether the lawyer’s misconduct involves dishonesty or moral turpitude. Instead, we generally reinstate lawyers who have been suspended for 90 days or less without requiring them to prove moral change. 

And the First Amendment

Tigue also alleges that both the Director and the panel oppose his reinstatement “solely because [he] expresse[d] the belief that he was treated unfairly and did not deserve his current suspension.” Consequently, Tigue asserts that denying his reinstatement petition based on his failure to demonstrate moral change would violate his free speech rights under the First Amendment to the United States Constitution, which applies to Minnesota through the Fourteenth Amendment.

...Because Tigue’s misconduct involved “a moral characteristic,” there is a clear nexus between his beliefs about his misconduct and the likelihood of him repeating it. We believe that Tigue is more likely to repeat such misconduct if, as the record here shows, he minimized it while testifying at the reinstatement hearing, because such testimony shows that Tigue does not fully appreciate or acknowledge what he did wrong. This conclusion is especially true when considering Tigue’s disciplinary history, which involves repeated and escalating financial misconduct, culminating in intentional misappropriation while on a disciplinary probation that demonstrates a pattern of committing the same type of misconduct, despite the prior discipline we imposed. Thus, even if we adopt Tigue’s legal theory on when we may consider an attorney’s beliefs about their prior misconduct in determining if they have proven moral change, there is no First Amendment violation under that theory based on the facts of this case.

Justice Thissen

The Director concedes that Tigue met all other reinstatement conditions in our 2017 order. I conclude that proving moral change is not necessary in this case. Tigue established that, if reinstated under the conditions he proposes, he will not engage in the misconduct for which he was suspended and the public will be protected. Because I would grant his petition for reinstatement, I respectfully dissent.

...More fundamentally, I disagree that moral change is an appropriate reinstatement consideration in the context of Tigue’s trust account mismanagement and the related negligent misappropriation. Specifically, because the conditions under which Tigue has agreed to handle his trust account if reinstated (no signatory power and independent management) are sufficient to protect the public and deter future violations, there is no need to dive into an inquiry about moral change.

Justice Anderson joined the dissent. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/06/an-attorney-admitted-in-1973-and-indefinitely-suspended-in-2017-has-been-readmitted-by-the-minnesota-supreme-court-tigue-wa.html

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