A fifth-degree assault conviction for punching out
opposing counsel will get you a public reprimand. But punch someone on the basketball court, and get the same conviction? You walk — no public
discipline. In re Stafford, 373
N.W.2d 275 (Minn. 1985); In re Selmer,
749 N.W.2d 14 (Minn.
2006).
What discipline, if any, was warranted for Robert
Stoneburner, who threw a “small soft case,” hitting his wife’s lower leg, but
inflicted no harm? Stoneburner was convicted of “domestic assault — fear,” a
misdemeanor, but was acquitted on a charge of “domestic assault-harm.” In re
Stoneburner, (Minn. 2016 WL 3722039,
July 13, 2016). After trial, a Supreme Court referee recommended
dismissing discipline charges against Stoneburner, but the Office of Lawyers
Professional Responsibility appealed.
OLPR charged Stoneburner with violating Rule 8.4(b)
(“criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects”). “Violence” is said
to be an offense that indicates “lack of those characteristics relevant to the
practice of law.” Rule 8.4 cmt. 2. However, Selmer held that a violent misdemeanor that is unconnected to
the practice of law does not warrant public discipline.
OLPR argued that Stoneburner’s criminal domestic
assault, even without harm, warrants
public discipline. Alluding to Selmer, OLPR
argued that domestic assault is a kind of violence and is more serious and
pervasive than “punching someone at a basketball game.” However, the relevant
comparison appears to be between domestic violence and societal violence, both
of which are pervasive and serious. In addition, Selmer’s punch was much more
violent than Stoneburner’s assault, which a jury found to be without harm.
In any event, after trial, a Supreme Court referee
rejected the OLPR’s argument. The referee noted that Stoneburner had no
criminal record. His offense was both unrelated to the practice of law and less
violent than the crimes of other attorneys who were publicly disciplined for
assaults. Although the Supreme Court found Stoneburner’s offense
“unquestionably condemnable,” the Court adopted the referee’s conclusion with
respect to the 8.4(b) violation, because it was not clearly erroneous.
Stoneburner was also convicted of gross misdemeanor
interference with his wife’s attempts to call 911. The referee concluded that
this conduct did not violate Rule 8.4(d) (“conduct prejudicial to the
administration of justice”). The referee relied on In re Hoffman, 379 N.W.2d
514 (Minn. 1986),
holding that a gross misdemeanor based on fleeing police in a motor vehicle did not
warrant public discipline. The Court found the referee’s conclusion to be
clearly erroneous, based on (1) the importance of 911 calls to the criminal justice
system, (2) Stoneburner’s “misleading” statement to the 911 responder, and (3)
Stoneburner’s “[use of] force and coercion to hinder his wife’s access to aid.”
The Court publicly reprimanded Stoneburner.
Although the point may be technical, it is surprising
that Stoneburner’s criminal interference with the 911 call was held not to
violate Rule 8.4(b), as well as Rule 8.4(d). A Rule 8.4 comment states that a
crime involving “serious interference with the administration of justice”
evidences a lack of a character trait essential to a lawyer. Stoneburner’s interference was not committed in the
practice of law, but, unlike Selmer’s or Hoffman’s, it was closely related to
administration of the legal system. Whether the 911 interference violated Rule
8.4(b) is a close question, perhaps decided by the standard of appellate review
– whether the referee clearly erred in finding no violation.
Violence far more serious than Stoneburner’s was at the
center of another recent discipline case. Attorney Michael Riehm stabbed a man
in the chest, puncturing a lung. The violence followed a drunken dispute in a
restaurant on New Year’s, about whether the man had dissed Riehm’s wife. Riehm
was convicted of first-degree assault, the presumptive sentence for which was
86 months imprisonment. In a totally unrelated matter, Riehm also engaged in a
deceptive scheme to obtain referrals of another law firm’s low-level cases.
OLPR, Riehm, and the Court’s referee all recommended a discipline for both offenses
of suspension for at least five years.
In re Riehm,
(Minn. 2016 WL 4051508 July 27, 2016). The Court considered whether
disbarment was instead warranted but imposed an indefinite suspension with no
right of reinstatement for five years.
At the high end of the violent crime/discipline spectrum,
three Minnesota attorneys were disbarred after being convicted of murder in the
1960s. By far the most notorious was T. Eugene Thompson, who hired the murder
of his wife, the mother of his four children. Thompson’s petition for
reinstatement was later denied. In re Johnson, 143 N.W.2d 382 (1966); In re Ryan, 130 N.W.2d 534 (1964); In re Thompson, 209 N.W.2d 412 (Minn. 1973), 365
N.W.2d
262 (Minn. 1985).
A closer precedent is found in the case of Brian Pitera,
who, like Riehm, was a lawyer who was convicted of first- degree assault and
who engaged in unrelated serious misconduct. Pitera was disbarred, but Riehm
received a suspension of at least five years. In
re Pitera, 827 N.W.2d 201 (Minn. 2013).
Why the difference?
First, the difference is important but not as great as it
may seem. The legal presumptions are that disbarment is permanent and
suspensions are finite. However, a disbarred lawyer may petition for
reinstatement after five years. Several disbarred lawyers have been reinstated.
Second, the stabbing victim supported Riehm’s greatly
reduced sentence. The prosecutor and judge agreed. Riehm received a sentence of
seven years’ probation, a year in the workhouse, and a restitution order. In
great contrast, Pitera was sentenced to 75 months in prison. If Pitera had been
suspended for five years, at least in principle he might literally have become
a jailhouse lawyer.
One of the earliest and most famous lawyer discipline
cases in U.S. history involved a lawyer whose license was taken away for having
led a lynch mob in Tampa, Florida. Ex Parte Wall, 107 U.S.265 (1883). Some of Wall’s reasoning now seems quaint and even odd, e.g. the
“audacious effrontery” of a lynching in the courthouse square, exacerbating
Wall’s offense, because a federal judge “was insulted by the sight of the
dangling corpse.” Wall shows
that the debate over the proper disciplinary response to criminal conduct
lawyers is ancient, by citing lawyer- criminal cases from the earliest days of
our Republic and from old English jurisprudence.
The Minnesota Supreme Court’s holdings in the recent
cases of Riehm and (at the low end
of the spectrum of violence) Stoneburner are important additions to a long lineage of
jurisprudence on the appropriate disciplinary responses to crimes of violence
and coercion outside the practice of law. These holdings are carefully-crafted
attempts to delineate the proper spectrum of disbarment / suspension / public
reprimand / dismissal for attorneys who commit violent crimes, large and small.