Miranda-Esque

The Minnesota Supreme Court has suspended an attorney for 60 days

The Director of the Office of Lawyers Professional Responsibility petitioned for disciplinary action against respondent-attorney David L. Ludescher, alleging professional misconduct in two client matters. We appointed a referee, who, after conducting an evidentiary hearing, found that the Director had proved by clear and convincing evidence that Ludescher committed misconduct including (1) incompetent representation, (2) bringing frivolous claims, (3) making knowingly false statements, (4) acting to embarrass or burden a third person, (4) failing to reasonably protect a client’s interest upon termination, (5) engaging in conduct prejudicial to the administration of justice, (6) charging or collecting an unreasonable fee, and (7) failing to withdraw representation upon termination. The referee also found five aggravating factors and no mitigating factors. The referee recommended that Ludescher be suspended from the practice of law for 30 days.

Ludescher contends that the referee misinterpreted relevant law and the Rules of Professional Conduct and failed to adequately consider the record when making certain findings and conclusions. The Director defends the referee’s reasoning and findings but argues that the referee’s disciplinary recommendation is insufficient given the seriousness of Ludescher’s misconduct. We agree with the referee’s legal conclusions and conclude that the referee’s findings were not clearly erroneous. Consequently, the referee’s rule-violation conclusions are supported. We also conclude that the appropriate discipline is a 60-day suspension from the practice of law followed by a 2-year term of supervised probation.

The court sustained misconduct findings in a custody matter

Ludescher’s argument that “an order is an order” fails upon considering what the juvenile court’s orders made clear: (1) J.K. did not have any lasting custodial rights to the child; (2) the juvenile court did not intend to confer any permanent custody on J.K.; (3) the mother remained the only custodial parent; (4) the purpose of the CHIPS proceeding was to reunify the mother and the child; and (5) the agency had authority to start trial home visits with the mother. All of these points clearly undermine Ludescher’s arguments that the juvenile court’s order conferred custody of the child on J.K. These points also undermine Ludescher’s argument that “an order is an order” because he clearly disregarded these portions of the orders in making his repeated custody arguments. Ludesher’s argument, then, seems to be that “an order is an order” only as to the portions that are favorable to his client—but all unfavorable portions of the order are not enforceable.

In sum, Ludescher’s actions with respect to the order are not protected by Robinette; the Rooker-Feldman doctrine does not apply; the record shows that the juvenile court did not intend to confer custody of the child on J.K.; and Ludescher knew that conferring custody on J.K. was not a lawful CHIPS disposition. Consequently, the referee did not make an error of law in concluding that the portions of the juvenile court’s orders purporting to give J.K. custody of the child were unenforceable.

Conduct toward an assistant county attorney

After receiving the May 1, 2018, letter from Nelson, Ludescher repeatedly called and e-mailed Nelson, attempting to bully and threaten her into returning the child to J.K. Nelson testified that Ludescher repeatedly yelled at her throughout the case, threatened to trespass the agency from J.K.’s property, and once “was so upset and agitated that [Ludescher] put his hands on the male guardian ad litem.” Ludescher e-mailed the Rice County Attorney and the county sheriff a letter in which he claimed that Nelson may have engaged in criminal intentional deprivation of parental rights by helping the mother take the child from J.K. In the letter, Ludescher alleged that J.K. had court-ordered temporary legal and physical custody, and sole custody of the child. Ludescher failed to mention that custody would revert back to the mother if the CHIPS proceedings were dismissed because J.K. had no custodial rights, or that the court had authorized a trial home visit with the mother. As a result of Ludescher’s e-mail, Nelson was questioned by the sheriff and a criminal investigation was commenced by the Le Sueur County Sheriff to avoid any conflicts of interest.

On May 4, 2018, Ludescher moved the juvenile court for ex parte relief, seeking to have custody of the child returned to J.K. On May 7, 2018, the court denied the motion, recognizing that the prior orders purporting to grant temporary legal custody of the child to J.K. were unenforceable given the CHIPS statutes, and scheduled a hearing for May 10, 2018. At the hearing, Ludescher again accused Nelson of a crime and read her a Miranda-esque warning on the record. Ludescher also argued that J.K. had custody based on the temporary custody granted in prior CHIPS orders. On June 25, 2018, upon a motion from Nelson, the juvenile court sanctioned Ludescher and ordered him to cease and desist his custody arguments.

The court sustained misconduct findings in a second matter.

Sanction

Ludescher’s actions resulted in harm to his clients and others involved in the cases. Ludescher’s actions caused Nelson emotional distress given the criminal investigation opened against her and the embarrassment caused to her when Ludescher read her a Miranda-esque warning on the record at a proceeding where others were present. Braden also testified that Ludescher’s actions had a negative impact on him. Ludescher’s actions harmed G.N. by accumulating legal and other fees that were unnecessary. In general, Ludescher’s violations of the rules of professional conduct are inherently detrimental to respect for the legal profession and the judicial system as a whole. See In re Jaeger, 834 N.W.2d 705, 710–11 (Minn. 2013). Ludescher’s false statements to the juvenile court in the J.K. matter undermined public confidence in the legal system. See In re Sea, 932 N.W.2d 28, 36 (Minn. 2019). And the referee determined that Ludescher made frivolous claims in both matters, which are a waste of the court’s resources. See In re Albrecht, 779 N.W.2d 530, 542 (Minn. 2010) (stating that an attorney’s neglect caused “the needless expenditure of judicial resources and the resources of opposing counsel, which harmed the legal profession”)

Thus

A review and comparison of these cases to Ludescher’s circumstances shows the existence of more aggravating factors in Ludescher’s case, and sometimes more voluminous misconduct. Consequently, we concur with the referee that a suspension is appropriate based on the facts and circumstances of this case. But based on the significant aggravating factors present here, and in light of the nature and extent of Ludescher’s misconduct, we conclude that the appropriate discipline is a 60-day suspension from the practice of law followed by a 2-year term of unsupervised probation.

Oral argument is linked here. (Mike Frisch)