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Quandaries and Quagmires: Negotiations, sex, discipline in the practice of law

William J. Wernz//August 31, 2017

Quandaries and Quagmires: Negotiations, sex, discipline in the practice of law

William J. Wernz//August 31, 2017

A criminal defense attorney, William Bulmer, was recently suspended for three years — twice the discipline recommended in the stipulation that he and the Office of Lawyers Professional Responsibility filed with the Minnesota Supreme Court. In re Bulmer, File No. A17-0299, (Minn. July 20, 2017). Could Bulmer have done anything to improve the odds the stipulation would have been accepted? What lessons should other lawyers learn from the case? The questions are important because discipline orders after stipulations have become the most common way of resolving serious discipline cases.

Bulmer could not deny his pattern of sexual misconduct. Bulmer had sex with Breanna Taylor, a defense witness and the wife of Bulmer’s client, William Taylor, who was charged with murder. After pleading guilty, William discovered Bulmer’s dalliance and sought post-conviction relief, for ineffective assistance of counsel. Bulmer lied to a prosecutor who asked whether he had sex with Breanna. In one unrelated representation, Bulmer had sex with a client, and in another matter, Bulmer had been privately admonished for having sex with a witness.

Could Bulmer have used the response made famous by George Costanza — that he didn’t know it was wrong to have sex in the workplace? The rules against lying and against sex with clients are clear. Even though there is no specific rule against having sex with a witness, it is hard to deny either that the conduct is prejudicial to the administration of justice or that having sex with a client’s spouse involves a conflict of interest.

Bulmer might have thought he caught a break when OLPR did not charge him with bartering fee-forgiveness for sex with Breanna Taylor, or otherwise exploiting her vulnerability. Brenna had arranged to pay Bulmer’s fee, but fell behind in payments. Breanna and Bulmer arranged to meet to discuss payments, and she told him, “she would give him a dance or something.” At the meeting, Breanna gave Bulmer $150, a dance, and sex. OLPR’s disciplinary petition alleged these facts, but stopped short of alleging bartering or coercion.

OLPR offered to stipulate to a recommended suspension of 18 months and Bulmer agreed. OLPR filed two memoranda, explaining why the recommended suspension was more consistent with precedent than a lesser discipline. The memos did not mention fees, dances, bartering or coercion — there was no charge on that subject and OLPR apparently did not discern aggravating circumstances. Bulmer might have expected that the court would impose the recommended discipline. The court usually accepts stipulated recommendations. And the court has said, “We also ‘give some deference to the Director’s decision to enter into a stipulation for discipline.’ In re Olson, 872 N.W.2d 862 (Minn. 2015).

As it happened, however, the court suspended Bulmer for at least three years. The stipulation waived all proceedings.

The court’s explanation of the discipline included that Bulmer had sex with Breanna, “apparently in exchange for a reduction or forbearance of his fee.” The court also stated, “In this case, the betrayal of both the client and the client’s wife was compounded by the fact that it appears from the allegations of the petition that the sexual relations occurred under circumstances in which coercion might be suspected: the client’s wife had fallen behind in her payment of legal fees, and it was suggested that respondent and the wife might “work out a situation because [the wife] didn’t have the money to pay him.”

The court does not usually impose discipline based on “what might be suspected” and what is “apparently” true, but has not been charged. An attorney is entitled to a “reasonable opportunity to meet the charges brought against him.” In re Rerat, 28 N.W.2d 168 (1947); In re Ruffalo, 390 U.S. 544 (1968). The fairness accorded Minnesota attorneys in discipline proceedings normally far exceeds due process requirements. Here, however, the absence in OLPR’s petitions and memoranda of any mention of bartering, exploitation, etc. shows that OLPR, in bringing its charges, and recommending discipline, did not intend that the appearance of exploitation and the like be a basis for discipline. On the other hand, if the court had remanded for fact-finding on these factors, several devils might well have been found in the details.

Could Bulmer have done anything — other than the obvious option of forgoing promiscuity in his law practice — to lessen the chance of catastrophe? Three possibilities have been rejected by the court.

First, Bulmer could not have sought reconsideration, arguing that a severe departure from recommended discipline was unexpected. In 2016 alone, the court imposed a two-year suspension where one year was recommended (Petry) and a five year suspension where three years was recommended (Duchon). Boilerplate language in Bulmer’s stipulation acknowledged that, based on unconditional admission of the allegations of the petition, the court may impose any sanction it deems appropriate.

Second, Bulmer could not have conditioned his admissions on the court accepting the recommended 18-month suspension. The procedural rule allowing such admissions was repealed in 1988. In 2016 the court rejected a lawyer’s claim that his admission was conditional and re-affirmed that conditional admissions are not allowed in Minnesota. In re Riehm, 883 N.W.2d 223 (Minn. 2016).

Third, Bulmer could not have qualified his admissions so heavily that he could later deny the misconduct. The court rejected fudging on the facts recently, in Riehm, and long ago held, “In view of Justice Todd’s denial of ‘any intention to cheat or take unfair advantage of other persons taking the bar examination,’ a fact determination of intent is essential to a proper resolution of this matter and can only be accomplished by a full evidentiary hearing.” In re Todd, 359 N.W.2d 24 (Minn. 1984).

Although fudging would not have worked for Bulmer, clarifying the operative facts might have helped. Bulmer could have insisted that the stipulation or memorandum include OLPR’s acknowledgement that there were no charges of bartering or coercion. In other stipulation proceedings, OLPR’s memoranda have included acknowledgment of proof problems. And sometimes persuasion may work. Now pending before the court is a petition, with stipulation, admitting respondent’s material misrepresentation to a trial court. However, the petition also alleges that respondent maintains “he was not fully listening” and “did not completely understand what the court was asking him.” OLPR does not expressly accept or reject these claims, but the petition does not charge respondent with an intentional misrepresentation. In re Padden, File A17-1190.

After Bulmer, respondents should consider whether the allegations of the petition suggest further misconduct. If so, respondents should insist on stipulating that they admit only those offenses and actions that are specifically alleged in the petition and do not admit misconduct that may merely “appear” or be “suspected.” What else should respondents consider in negotiating discipline stipulations?

OLPR usually insists on boilerplate language, but in some cases boilerplate does not fit and OLPR may relent. In a recent case, after trial, the court’s referee found that OLPR failed to prove any rule violations and recommended dismissal. OLPR did not appeal. OLPR drafted a stipulation recommending dismissal, but included the boilerplate provision that respondent acknowledged that the court could order any disposition, from dismissal to disbarment. Respondent pointed out that the court could not disbar or otherwise discipline a lawyer who had not violated any rule or committed any misconduct. OLPR initially insisted on the boilerplate but relented after respondent refused to sign and said she would move to dismiss. In re Olson, No. A16-0280 (Minn. Sept. 9, 2016).

Respondents should consider seeking to include mitigating circumstances. In response to the court’s request for explanation why the recommended discipline is appropriate, OLPR has frequently cited respondent’s mitigating circumstances. The court has adopted recommended discipline after the parties filed memoranda and respondent also filed an affidavit, averring mitigating circumstances. In re Dinneen, 849 N.W.2d 69 (Minn. 2014). The court recently reiterated that the answer to the petition, “is the pleading in which an attorney should raise any mitigating factors.” In re Saltzstein, A16-1308 (Minn. June 21, 2017). Because the stipulation is filed in lieu of an answer, respondent should seek to include any substantial mitigation in the stipulation or related document.

Respondent should also do research to determine whether the recommended discipline is more severe than comparable cases. For example, my Feb. 2, 2015, Minnesota Legal Ethics blog shows that case law does not support the frequent characterization, by OLPR and the Court, that an isolated misrepresentation to a court warrants suspension. The court has said, “We impose sanctions according to the unique facts of each case…” In re Panel File No. 39302, 884 N.W.2d 661 (Minn. 2016). Perhaps there are unique facts to bring to the court’s attention.

The court has increased its attention to disciplinary matters. The court gives painstaking scrutiny to such matters as whether there are mitigating circumstances and whether a disciplinary recommendation is consistent with similar cases. A bare-bones stipulation that does not deal with mitigation or precedent may not give the court a sufficient basis for a determination. Because the bottom line of a stipulation is a blank check for the court to fill in as to discipline, a respondent should give the court as much favorable information as possible and should also negate any appearances of uncharged misconduct or aggravating circumstance.


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