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Thissen questions ‘aggravating factor’

‘Noncooperation’ at issue in his concurring opinion

Justice Paul Thissen

Justice Paul Thissen

While Justice Paul Thissen concurred in the Jan. 25 Supreme Court ruling to disbar Ignatius Chukwuemeka Udeani, he wrote separately to express his continued concern about treating noncooperation with disciplinary proceedings as an aggravating factor.

Noncooperation with disciplinary proceedings is an independent rule violation. However, noncooperation with the investigation has also been treated as an aggravating circumstance, resulting in greater sanctions.

According to Thissen, the Minnesota Supreme Court did not cite failure to cooperate with a disciplinary proceeding as an aggravating circumstance until 2002. In the 2002 disciplinary action involving Ragnhild A. Westby, the court imposed discipline for failure to cooperate under Rule 8.1 and, additionally, noted that Westby’s lack of cooperation throughout the proceedings was an aggravating factor.

In 2019, in a disciplinary decision regarding Christopher J. Nelson, Thissen wrote that he believed the “practice of allowing noncooperation to count as both an independent rules violation and an aggravating factor was improper.” He argued in that decision that a clear rule that noncooperation could not also be treated as an aggravating factor “makes our system of lawyer discipline seem less arbitrary, more understandable and fairer.”

One reason that Thissen cited was that a lawyer could be held accountable if he did not cooperate or participate in a hearing. Specifically, allegations against the lawyer are deemed admitted if the attorney fails to show up to a disciplinary hearing. Thissen also pointed to confusion among referees about whether an act of noncooperation could be considered an aggravating circumstance or simply considered a rule violation.

Thissen suggested in his concurrence that the Lawyers Professional Responsibility Board should review the question of “whether the recent practice of bringing in noncooperation with disciplinary proceedings through the back door of aggravating circumstances is appropriate and whether the rules should be clarified on that issue.”

In an email to Minnesota Lawyer, Susan Humiston, director of the Office of Lawyers Professional Responsibility, said that there are benefits to the current practice. “One efficient way recognized by the Court in its case law is considering post-petition conduct that occurs as part of the public proceeding as an aggravating factor rather than litigating it separately. This is consistent with how other jurisdictions handle misconduct that occurs during the discipline trial itself as well as the ABA Standards on Imposing Discipline.”

Humiston confirmed that this topic will be added to the agenda of its next meeting.

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