Supreme Court rejects suspended attorney’s request for reinstatement – Minnesota Lawyer
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An attorney who was indefinitely suspended for lying, falsifying documents and misappropriating client funds petitioned the court recently for reinstatement. A divided court, in a decision filed Oct. 4, determined that the attorney did not meet his heavy burden of proving that he underwent the requisite moral change to practice.
Adam Klotz was admitted to practice law in 2010. At the time of the misconduct, Klotz had a general civil practice, was a part-time public defender with Brown County, and handled child-protection cases for Brown County on a per-hour basis.
Until the incidents leading to his suspension, Klotz had not previously faced discipline. However, Klotz did engage in misconduct that involved six clients. He also failed to cooperate with the director of the Office of Lawyers Professional Responsibility and had deficiencies with trust accounts.
There was a hearing conducted by a referee in 2017. The referee found that the director proved that Klotz committed the misconduct, finding also that Klotz’s deception and dishonesty were aggravating factors. However, the referee found mitigating factors in that Klotz was under a lot of stress when the misconduct occurred, relatively inexperienced, and had expressed remorse.
Although the referee recommended that Klotz be indefinitely suspended for a minimum of a year and be subject to a probation period of two years once reinstated, the Supreme Court diverged.
“Because of the long duration and severity of Klotz’s misconduct, the referee’s recommended suspension would be insufficient to protect the public and the judicial system,” the court wrote. Klotz was indefinitely suspended in 2018 with no right to petition for reinstatement for a minimum of 18 months.
Klotz petitioned for reinstatement in 2020; he withdrew the petition after receiving the director’s draft report summarizing the investigation. Seven months later, Klotz filed the current reinstatement petition. After a hearing, the panel recommended that Klotz not be reinstated.
The panel concluded that — based on Klotz’s testimony and demeanor at the hearing —Klotz failed to feel a general sense of remorse overall for his suspension, even though he did express remorse to his witnesses. Specifically, the panel found that Klotz minimized his conduct and this countered any of his expressions of remorse and acceptance of responsibility for the misconduct. For instance, Klotz referred to his dishonesty toward the director as an “accounting mistake.”
Klotz, through his attorney, argued that this comment reflected how he once viewed his conduct, but did not reflect the remorse he now felt. “The major issue with the panel’s findings is that they misconstrued the petitioner’s past statements regarding his understanding of his misconduct as his current understanding or current attempts to minimize or justify his misconduct,” Nicholas Ryan, attorney at Law Office of Eric T. Cooperstein.
The court agreed with the panel that use of the word “mistake” reinforced that Klotz did not show remorse for the actions leading up to the suspension. “Klotz used the word ‘mistake’ at other points during his testimony, which shows how he currently views his conduct,” the court wrote. “Calling intentional misappropriation of client funds and intentional creation of false records to disguise misconduct a ‘mistake’ certainly minimizes Klotz’s dishonesty.”
“Furthermore, the panel found that Klotz did not demonstrate remorse for the improper loans to clients, in part because Klotz never apologized to them and testified that he did not even know their names,” the court added.
Joshua Brand, senior assistant director at the Office of Lawyers Professional Responsibility, stressed that the panel did not just focus on Klotz’s use of the word ‘mistake’ but looked at Klotz’s attitude more broadly. “The credibility determinations made by the panel kind of span the scope of what it was reviewing: that he lacked insight, that his responses were not genuine, that he lacked credibility relative to his acceptance of responsibility,” argued Brand.
The court concurred with the panel that there was no requisite change in Klotz’s conduct and state of mind. “[T]he panel found that much of Klotz’s testimony ‘sounded arrogant and lacking in humility,’” the court asserted. “The panel also found that, in response to the panel’s questions about whether he could assure the panel that he would not engage in misconduct again, Klotz provided a ‘rambling’ response and could not promise or guarantee that he would not engage in the type of dishonest misconduct — lying, falsifying documents, and misappropriating client funds — that led to his suspension.”
Justice G. Barry Anderson, joined by Justice Paul C. Thissen, dissented. Anderson disagreed that Klotz’s use of the word “mistake” suggested that Klotz did not regard his conduct as serious. “[T]he word ‘mistake’ does not refer only to unintentional actions,” Anderson asserted. “While testifying, Klotz repeatedly used the word ‘misconduct’ in discussing the reasons for his suspension. But he also called his behavior ‘wrong,’ admitted that he ‘lied,’ and transparently laid out the actions that led to his misconduct and subsequent suspension.
“The panel’s determination and the court’s conclusion that Klotz minimized his misconduct and was not remorseful does not take into consideration the entire record.”
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