                               STATE OF MINNESOTA

                                IN SUPREME COURT

                                       A13-2305

Original Jurisdiction                                                        Per Curiam

In re Petition for Disciplinary Action
against Lynne A. Torgerson, a Minnesota                         Filed: October 21, 2015
Attorney, Registration No. 208322                             Office of Appellate Courts


                             ________________________


Martin A. Cole, Director, Timothy M. Burke, Senior Assistant Director, Office of
Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

Lynne A. Torgerson, Minneapolis, Minnesota, pro se.

                             ________________________

                                    SYLLABUS

       Respondent’s misconduct, which included disobeying a court order, repeatedly

making false statements, making unfounded accusations against a judge, acting

belligerently toward a judge and court staff, and charging a nonrefundable flat fee,

warrants a 60-day suspension from the practice of law.

                                     OPINION

PER CURIAM.

       The Director of the Office of Lawyers Professional Responsibility filed a petition

for disciplinary action against Lynne Torgerson in December 2013, alleging professional

misconduct arising out of five client matters and a disciplinary proceeding involving



                                           1
another attorney. The petition alleged that Torgerson made false statements, disobeyed a

court order, acted belligerently toward a judge and court staff, engaged in conduct

prejudicial to the administration of justice, and used a retainer agreement that required a

client to pay a nonrefundable flat fee. Following an evidentiary hearing, the referee

found that Torgerson had committed the alleged misconduct. The referee recommended

a public reprimand for Torgerson.

       In her appeal, Torgerson challenges nearly all of the referee’s findings of fact and

conclusions of law. We conclude that the referee’s findings and conclusions regarding

Torgerson’s misconduct are not clearly erroneous. We do not credit two of the four

mitigating factors recognized by the referee, however, because they do not qualify as

mitigation. Due to the nature and severity of Torgerson’s misconduct, we conclude that

the appropriate discipline is a 60-day suspension from the practice of law.

                                            I.

       Torgerson was admitted to practice law in Minnesota in 1990. She has not been

subject to prior discipline. We begin by summarizing the referee’s findings of fact and

conclusions of law.

       K.B. Matter

       Torgerson represented K.B. in a criminal matter in Ramsey County District Court.

During trial, but outside the presence of the jury, Torgerson accused the judge of

attempting to “intentionally prejudice [her] in the eyes of the jury.”         When jury

deliberations began, the judge asked counsel for both sides to “be available within 10

minutes of a phone call. . . . [I]f there are questions from the jury, I’ll have all of you


                                             2
come back to the courtroom, hear the question, and we’ll discuss what [the] response

might be.” Torgerson did not follow the judge’s instructions, but instead began driving to

Minneapolis to conduct an interview. When the jury sent a note to the judge revealing

that it had received a document that neither party had admitted into evidence, the judge

had his law clerk contact the attorneys. The law clerk asked Torgerson to return to court,

but she refused the request, stating that she would not come back unless she received

additional information. The clerk then placed the judge on the telephone, but Torgerson

continued to request additional information before she would consider returning to the

courthouse. When court resumed the next morning, the judge declared a mistrial. The

judge then held Torgerson in direct and constructive contempt of court and fined her

$250, which she timely paid.1 Due to Torgerson’s lack of compliance with the judge’s

requests, the jury reported to the courthouse for an unnecessary day of service.

       Torgerson filed various pleadings after the trial alleging that the judge was biased,

that another attorney had told her that the judge was treating her poorly for “political

reasons,” that “the judge’s goal was to make [her] look bad in front of the jury,” and that

“[the judge] was trying to set [her] up.” The referee found that Torgerson made these

statements with knowledge that they were false or with reckless disregard of their truth.




1
        The court of appeals reversed and remanded Torgerson’s contempt conviction
after the postconviction court had denied relief. Torgerson v. State, No. A14-0693, 2015
WL 2456751, at *4-5 (Minn. App. May 26, 2015). However, the court of appeals’
decision has no bearing on this disciplinary matter because the referee’s findings of fact
rest on Torgerson’s underlying conduct, rather than her conviction.


                                             3
       The referee concluded that Torgerson’s statement at trial and her statements in the

post-trial filings violated Rules 3.5(h)2 and 8.2(a)3 of the Minnesota Rules of Professional

Conduct (“MRPC”). The referee also determined that Torgerson’s failure to return to

court, and her behavior on the telephone with the judge and his clerk, violated Rules

3.4(c),4 3.5(h), and 8.4(d),5 MRPC. Finally, the referee agreed with the Director that

Torgerson’s post-trial filings violated Rules 4.1,6 8.2(a), and 8.4(c),7 MRPC.

       R.S. Matter

       Torgerson represented R.S. in an expungement proceeding. Torgerson filed a

petition for expungement on behalf of her client, but she did not file a certificate of

representation. See Minn. Gen. R. Prac. 104 (requiring the filing of a certificate of

representation when an action is commenced). Due to Torgerson’s failure to file the


2
    “A lawyer shall not engage in conduct intended to disrupt a tribunal.” Rule 3.5(h),
MRPC.
3
       “A lawyer shall not make a statement that the lawyer knows to be false or with
reckless disregard as to its truth or falsity concerning the qualifications or integrity of a
judge . . . .” Rule 8.2(a), MRPC.
4
       “A lawyer shall not . . . knowingly disobey an obligation under the rules of a
tribunal except for an open refusal based on an assertion that no valid obligation exists.”
Rule 3.4(c), MRPC.
5
       “It is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice.” Rule 8.4(d), MRPC.
6
      “In the course of representing a client a lawyer shall not knowingly make a false
statement of fact or law.” Rule 4.1, MRPC.
7
      “It is professional misconduct for a lawyer to . . . engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.” Rule 8.4(c), MRPC.


                                             4
certificate, the Stearns County District Court failed to notify her when it changed R.S.’s

hearing date.

       While on her way to the courthouse, Torgerson called to inform court staff that she

was running late. When court staff told her the court had rescheduled the hearing to a

later date, Torgerson responded by “yelling and screaming” at two different staff

members. One of the staff members notified the judge about Torgerson’s call, which

caused the judge to offer to recess his current trial and hear R.S.’s petition that afternoon.

When the staff member called Torgerson to inform her of the judge’s proposal, Torgerson

responded by yelling at the staff member again.

       The referee concluded that Torgerson’s conduct violated Rules 4.4(a)8 and 8.4(d),

MRPC.

       W.W. Matter

       Torgerson represented W.W. in a criminal matter in Freeborn County. The State

identified C.F., a Freeborn County deputy sheriff, as a potential witness in the case and

stated that he had no criminal record. However, C.F. had previously pleaded guilty to

disorderly conduct, Minn. Stat. § 609.72, subd. 3 (2014), for sexually touching his 18-

year-old adopted son.      Torgerson filed disciplinary complaints with the Office of

Lawyers Professional Responsibility (“OLPR”) against the prosecutors in W.W.’s case,

County Attorney C.N. and Assistant County Attorney D.W., alleging that the two of them


8
      “In representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person . . . .” Rule 4.4(a),
MRPC.


                                              5
had filed a false pleading and had engaged in other misconduct while litigating W.W.’s

case. We discuss those disciplinary proceedings further below.

      During a hearing in W.W.’s case, Torgerson alleged that the prosecutors had

knowledge of a “deal” reached in C.F.’s criminal case.           The referee found that

Torgerson’s statement was false, because the Attorney General’s office, not the Freeborn

County prosecutors, had handled the criminal case against C.F. Later, Torgerson and

D.W. exchanged a series of hostile emails. In one of those emails, Torgerson stated that

D.W. was “consistently a liar and unethical” and had “[l]ied and protected a pedophile.”

      The referee concluded that Torgerson’s conduct violated Rules 4.4(a) and 8.4(d),

MRPC, and that Torgerson’s statement at the hearing violated Rules 4.1 and 8.4(c),

MRPC.

      S.T. Matter

      Torgerson represented S.T. in a criminal matter in Freeborn County. During a

contentious omnibus hearing, Torgerson interrupted the judge multiple times. As a

result, the judge imposed a $100 fine on Torgerson, which he later withdrew. Later, in a

series of emails between Torgerson and D.W. (the same attorney as in the W.W. matter),

the two attorneys were once again hostile to one another. In one email, Torgerson stated

that D.W. had “lied to the Board of Professional Responsibility” and was “just a loser.”

      The referee concluded that Torgerson’s conduct violated Rules 3.5(h), 4.4(a), and

8.4(d), MRPC.




                                            6
       E.W. Matter

       Torgerson represented E.W. in two expungement proceedings. E.W. agreed to pay

Torgerson a flat fee of $2,700. Torgerson’s retainer agreement stated that the “flat fee is

considered to be the property of Lynne Torgerson, Esq., upon payment of the fee(s),

subject to a refund of only unearned fees.”       The agreement further stated that, “[i]f 24

hours pass from the time of the signing of the [agreement], all fees paid have been

earned, even if the client later chooses not to hire the lawyer or chooses to terminate the

lawyer’s services or [if for] any other reason services are discontinued.”

       The referee concluded that Torgerson’s retainer agreement violated Rule 1.5(b),9

MRPC.

       D.W. Disciplinary Investigation

       Torgerson filed an ethics complaint against D.W., the Assistant Freeborn County

Attorney who had prosecuted the W.W. and S.T. matters. The referee found that four of

Torgerson’s statements in connection with the ethics complaint were false.             First,

Torgerson falsely alleged that the victim in the C.F. misconduct case was under the age

of 18 when the sexual contact occurred. Second, Torgerson falsely stated that D.W. had

engaged in an ex parte communication with the judge in the W.W. matter. Third,

Torgerson claimed, again falsely, that D.W. had failed to notify her when he issued a


9
       “Fee agreements may not describe any fee as nonrefundable or earned upon
receipt but may describe the advance fee payment as the lawyer’s property subject to
refund. Whenever a client has paid a flat fee . . . and the lawyer-client relationship is
terminated before the fee is fully earned, the lawyer shall refund to the client the
unearned portion of the fee.” Rule 1.5(b)(3), MRPC.


                                              7
subpoena to her client, W.W. Finally, Torgerson falsely asserted that, by subpoenaing

W.W., D.W. had “forced [W.W.] under punishment of contempt” to show up in court and

speak to state officials without counsel.

       The referee concluded that Torgerson’s conduct violated Rules 8.1(a), 10 8.4(c),

and 8.4(d), MRPC.

                                            II.

       The Director bears the burden of proving professional misconduct by clear and

convincing evidence. In re Aitken, 787 N.W.2d 152, 157-58 (Minn. 2010). Torgerson

ordered a transcript of the disciplinary hearing, so the referee’s findings of fact and

conclusions of law are not conclusive.      Rule 14(e), Rules on Lawyers Professional

Responsibility (“RLPR”). Nevertheless, “we give great deference to a referee’s findings

and will not reverse those findings unless they are clearly erroneous, especially in cases

where the referee’s findings rest on disputed testimony or in part on respondent’s

credibility, demeanor, or sincerity.” In re Wentzell, 656 N.W.2d 402, 405 (Minn. 2003).

With respect to a referee’s conclusions of law, we interpret the Rules of Professional

Conduct de novo and review the referee’s application of the rules to the facts of the case

for clear error. Aitken, 787 N.W.2d at 158. A finding or conclusion is clearly erroneous

only if we are left with a “definite and firm conviction that a mistake has been made.”

Wentzell, 656 N.W.2d at 405 (quoting In re Strid, 551 N.W.2d 212, 215 (Minn. 1996)).



10
      “[A] lawyer . . . in connection with a disciplinary matter, shall not . . . knowingly
make a false statement of material fact.” Rule 8.1(a), MRPC.


                                            8
                                            A.

       We first must determine if, as Torgerson argues, the referee clearly erred in his

findings of fact and conclusions of law with respect to the allegations of misconduct in

the petition. Torgerson challenges nearly all of the referee’s findings and conclusions,

asserting that she did not commit any professional misconduct. The Director defends the

referee’s findings and conclusions. We address each of the challenged findings and

conclusions below.

       K.B. Matter

       Torgerson argues that the referee clearly erred in finding that she made statements

about the judge in the K.B. matter with the intent to manipulate the judge and in reckless

disregard of their truth or falsity. She asserts what is in essence a good-faith defense,

claiming that it was her genuine and sincere belief at the time that the judge was treating

her inappropriately.

       Regardless of Torgerson’s subjective belief about the judge’s actions, the referee’s

finding regarding the recklessness and manipulative nature of Torgerson’s statement

accusing the judge of attempting to “intentionally prejudice her in the eyes of the jury”

was not clearly erroneous. As we have stated, an argument that an attorney feels some

“statements are true is not germane because the standard for judging statements [under

Rule 8.2(a)] is an objective one.” In re Nathan, 671 N.W.2d 578, 585 (Minn. 2003); see

also In re Graham, 453 N.W.2d 313, 322 (Minn. 1990) (stating that a “purely subjective

standard is inappropriate”).     Here, after considering the entire record from the

disciplinary proceeding, including Torgerson’s assertion that her statement was


                                            9
reasonable in light of the actions taken by the judge during K.B.’s trial, the referee

concluded that Torgerson made the statement “with intent to manipulate [the judge].” On

this record, we cannot say that the referee’s conclusion was clearly erroneous, especially

in light of the testimony of the judge, who stated at Torgerson’s disciplinary hearing that

he “never treated Torgerson in a way that was not civil or not respectful.”

       In post-trial filings that, as far as we can tell, did not request any relief from the

district court, Torgerson elevated her rhetoric against the judge, including making an

allegation of judicial bias and saying that the judge “was trying to set [her] up.” In one of

the filings that Torgerson titled her “Offer of Proof,” she alleged that another attorney

told her that the judge was treating her poorly for “political reasons.” The attorney who

allegedly made this statement denied it. In fact, the attorney specifically testified that the

statements Torgerson attributed to him were “not true,” and that “there’s just no way that

the judge would treat her unfairly for any kind of political reasons.” On this basis alone,

there is ample evidence in the record to support the referee’s finding that Torgerson made

these statements with reckless disregard for their truth or falsity.

       Moreover, the fact that Torgerson’s post-trial filings were unconnected with any

request for relief is itself evidence that she submitted them solely with the goal of

questioning the “integrity of the judge.” Rule 8.2(a), MRPC. A reasonable attorney

under these circumstances would not have made such serious, unsubstantiated allegations

against a judge. See Graham, 453 N.W.2d at 322 (“Impugning the integrity of judges

and public legal officers by stating as certainties that which was based on nonexistent




                                              10
evidence or mere supposition is conduct that reflects a reckless disregard for the truth or

falsity of statements made.” (emphasis added)).

       Torgerson also argues that the referee’s finding that she disobeyed the judge when

she refused to return to the courthouse was clearly erroneous. Specifically, she argues

that she was under no obligation to return when requested. This argument lacks merit.

The judge’s request was plain and unambiguous: “I’m going to ask that all of you folks

be available within 10 minutes of a phone call.” Rather than remain near the courthouse

as instructed, Torgerson drove toward Minneapolis during rush hour to conduct an

interview. When the judge’s law clerk requested that she return to the courthouse,

Torgerson was defiant, and, to use the clerk’s words, “very argumentative.” It made no

difference that the judge then personally requested her return, as she remained defiant.

Torgerson explained that it would take her an hour to return to the courthouse, which was

much longer than the judge’s stated expectation that the attorneys be available within 10

minutes.    Torgerson’s behavior did not result from a misunderstanding; indeed,

Torgerson admitted to the Director that she “was trying to finagle [her] way around the

situation.” The referee therefore did not clearly err in finding that Torgerson disobeyed

an obligation to the court, intentionally disrupted a tribunal, and engaged in conduct

prejudicial to the administration of justice.

       R.S. Matter

       Torgerson challenges the referee’s conclusion that she violated Rule 4.4(a) when

she was abusive to court staff. Torgerson argues that she merely spoke to court staff,

which does not qualify as a “means . . . to embarrass, delay, or burden a third person.”


                                                11
Rule 4.4(a), MRPC. As a factual matter, Torgerson did not merely speak with court staff;

rather, in the words of one court employee, she “yell[ed] and scream[ed]” at them. From

a legal perspective, Torgerson is wrong that her conversations with court staff were not a

“means” to accomplish a goal. The term “means,” as used in the context of Rule 4.4(a),

describes “[a] method, a course of action, or an instrument by which an act can be

accomplished or an end achieved.” American Heritage Dictionary 1089 (5th ed. 2011).

Her goal in scolding court staff was to persuade them through illegitimate means to move

the hearing date to accommodate her schedule.           However, court staff could not

unilaterally reschedule the hearing, as evidenced by the fact that one of the staff members

had to approach the judge to resolve the scheduling issue. Accordingly, the referee did

not clearly err in finding that Torgerson’s conduct had no substantial purpose other than

to embarrass, delay, or burden court staff. See Rule 4.4(a), MRPC; In re Ulanowski, 800

N.W.2d 785, 789, 794-95 (Minn. 2011) (holding it was not clear error to find that making

repeated insults violated Rule 4.4(a)).

       Similarly, Torgerson argues that her actions did not violate Rule 8.4(d) because

court staff would have acted no differently if she had been civil. Torgerson’s argument is

beside the point. We have never held that the phrase “prejudicial to the administration of

justice” in Rule 8.4(d) requires a showing of changed circumstances or actual damage.

Rather, the harm in question is to “the administration of justice” itself. “Disrespectful

conduct directed at a tribunal can be prejudicial to the administration of justice,” In re

Michael, 836 N.W.2d 753, 765 (Minn. 2013), and the same principle applies when an

attorney’s disrespectful conduct is directed at court staff. Court staff are integral to


                                            12
administering justice, and Torgerson’s conduct, which was belligerent, was prejudicial to

its administration.11

       W.W. Matter

       Torgerson argues that she did not make a false statement when she accused the

prosecutors in the W.W. case of having knowledge of “a deal” involving C.F., a Freeborn

County deputy sheriff. At a hearing, Torgerson stated:

       Your Honor, I just—from, you know, my perspective, I can’t tell you how
       improper it seems to me to have a—somebody who was investigated for
       criminal sexual conduct, a detective, who did a deal in this court with—you
       know, with this—these prosecutors’ knowledge, with the presiding judge,
       all prosecuting my client. And then the prosecutors are filing false
       pleadings in the case about his prior history.

Although aspects of Torgerson’s statement were arguably ambiguous, the better reading,

and the one adopted by the referee after considering all of the evidence, is that

Torgerson’s statement implied that C.N. and D.W. were involved in Deputy Sheriff

C.F.’s prosecution and knowingly filed false pleadings in W.W.’s case. As interpreted,

Torgerson’s statement was false: neither of the attorneys were involved in C.F.’s

prosecution because the Attorney General’s office handled the matter. Accordingly, the

record supports the referee’s conclusion that neither C.N. nor D.W. was involved in



11
       Torgerson makes the same argument with respect to the emails she sent to D.W. in
the W.W. and S.T. matters. Similar to her conduct toward court staff, Torgerson’s
comments crossed the line between spirited advocacy and harassment when she told
another attorney that he had “[l]ied and protected a pedophile,” was “repugnant to the
profession of law,” was “a loser,” and was “consistently a liar and unethical.” These
emails had no substantial purpose other than to “embarrass” and “harass” D.W. and were
prejudicial to the administration of justice. See Rules 4.4(a), 8.4(d), MRPC.


                                           13
C.F.’s case, and therefore the referee did not clearly err by finding that Torgerson made a

false statement about their involvement in an alleged “deal.”

       S.T. Matter

       During an omnibus hearing in the S.T. matter, Torgerson repeatedly interrupted

the judge and D.W., the same prosecutor as in the W.W. matter, when she objected to

D.W.’s oral argument and to the testimony of a witness. The judge repeatedly warned

Torgerson not to interrupt D.W., but Torgerson did not heed the judge’s warning. The

referee concluded that Torgerson’s conduct during the hearing was “intended to disrupt a

tribunal.” See Rule 3.5(h), MRPC.

       Our review of the transcript from the hearing confirms the referee’s conclusion.

Over the course of the hearing, Torgerson became increasingly agitated and made

repeated, improper objections to D.W.’s argument. When the judge asked to see a copy

of a document containing drug-test results, Torgerson responded to the judge’s request by

saying “Dear, Lord.” Torgerson’s conduct throughout the hearing was both disruptive

and disrespectful. Accordingly, the referee did not clearly err in finding that Torgerson’s

conduct violated Rule 3.5(h).

       E.W. Matter

       Torgerson’s misconduct in the E.W. matter was limited to the terms of her retainer

agreement, which stated that E.W. forfeited any right to recover unearned attorney fees

24 hours after he signed the agreement. Rule 1.5(b)(3) states that “[f]ee agreements may

not describe any fee as nonrefundable or earned upon receipt but may describe the

advance fee payment as the lawyer’s property subject to refund.” Rule 1.5(b)(3), MRPC.


                                            14
Torgerson’s retainer agreement, which made the flat fee nonrefundable after 24 hours

rather than “on receipt,” appeared to be a deliberate attempt to circumvent the rule. Even

so, the agreement clearly violated Rule 1.5(b)(3)’s requirement that a client is entitled to

a “refund” of “the unearned portion of a [flat] fee” when the “lawyer-client relationship is

terminated before the fee is fully earned.” The passage of 24 hours, by itself, does not

“fully earn[]” a fee for an attorney, regardless of the language in a retainer agreement.

Thus, the referee did not clearly err by concluding that the agreement violated Rule

1.5(b)(3).

       D.W. Disciplinary Investigation

       In two letters that she sent to the Director during D.W.’s disciplinary investigation,

Torgerson made four statements that the referee found to be false. The false statements

related to the age of the victim in C.F.’s case, an alleged ex parte communication between

the judge and D.W. in W.W.’s case, and a dispute over whether D.W. issued a subpoena

to W.W. in a companion case. Torgerson argues that each of the statements reflected her

honest, good-faith belief about the relevant facts, and that none was knowingly false.

There is adequate evidence in the record to support each of the referee’s findings of

dishonesty.

       The first statement is that C.F.’s victim “was under age 18.”           The criminal

complaint stated that the police began an investigation in response to “allegations of

inappropriate contact between [C.F.] . . . and [C.F.’s] 18-year-old adopted son

(‘Victim’).” Torgerson now admits that the victim was in fact over the age of 18 when




                                             15
the sexual contact occurred, but continues to adhere to her position that her statement was

not “knowingly” false.

       For support, Torgerson relies on a letter she sent to the Director, in which she

claims that she originally thought the victim was a minor. However, the letter itself

contains inconsistencies with the other letters that she wrote to the Director. The letter in

question states that she “originally thought [that C.F.’s] behavior was a felony” and only

later did she find out that it was a misdemeanor.      However, in a letter to the Director

about one year earlier, Torgerson referred to the misdemeanor charge against C.F.,

asserting that the charging decision was improper because the underlying crime “was

actually” a felony. The inconsistencies in Torgerson’s letters undermine the reliability of

the letter in which she claimed that she believed the victim was a minor. The referee was

free to give the letter little weight in making his findings and conclusions.

       Although it is not entirely clear when Torgerson became aware of the victim’s true

age, Torgerson’s testimony at the disciplinary hearing confirms that she possessed the

documentation necessary to make that determination before writing any of her letters.

Specifically, Torgerson admitted at her disciplinary hearing that she received a copy of

C.F.’s criminal complaint before she first wrote to the Director. The criminal complaint

described the victim as C.F.’s “18-year-old adopted son.” In light of this fact, the

referee’s conclusion that Torgerson’s statement was knowingly false and involved

dishonesty, fraud, deceit, or misrepresentation was not clearly erroneous. Rules 8.1(a),

8.4(c), MRPC.




                                             16
       The second statement was that D.W. had an improper ex parte communication

with the judge in the W.W. matter that caused the court to schedule another trial first on

its docket.   Torgerson explains that her statement was one “of belief” and that she has

adequately explained the objective basis for that belief, which was an unusual change in

the court’s schedule on the date scheduled for trial. Regardless, the referee’s finding was

not clearly erroneous.     D.W. testified that Torgerson’s allegations of an ex parte

conversation with the judge were “patently false” and that a simple explanation existed

for the scheduling decision identified in Torgerson’s letter: court staff had already

scheduled another trial to proceed first.

       The final two statements relate to an alleged subpoena issued to W.W in a

companion drug case. Although it is true that W.W. testified that she had received a

subpoena, the referee was entitled to accept D.W.’s testimony that he never issued a

subpoena for W.W. nor called her to testify as a witness in the other case. In fact, the

referee’s conclusion appears to have turned on two key facts: W.W. “was unable to

produce the subpoena she alleged to have been served on her,” and Torgerson “produced

no record of a subpoena having been issued.”          Torgerson now relies on W.W.’s

unsubstantiated testimony that the subpoena disappeared after a police officer “came into

[her] home with a blank search warrant” while she was incarcerated. The referee did not

clearly err in rejecting W.W.’s account and accepting D.W.’s testimony.

       In sum, we conclude that each of Torgerson’s challenges to the specific findings

and conclusions of professional misconduct fails. The record adequately supports the

referee’s conclusions that Torgerson violated a myriad of rules of professional conduct in


                                            17
five separate client matters and in the course of another attorney’s disciplinary

investigation.

                                               B.

       Before we consider the appropriate discipline, we must first review the mitigating

and aggravating factors found by the referee.        As aggravating factors, the referee

identified both Torgerson’s substantial experience in the practice of law and Torgerson’s

failure to recognize the wrongfulness of her actions. Torgerson challenges the factual

basis of only the second of the two factors.

       Torgerson argues that the referee’s finding that she lacked recognition of the

wrongfulness of her actions was clearly erroneous because she has always admitted that

she did not act in accordance with Minnesota’s Professionalism Aspirations, even if she

has consistently denied that her conduct violated the Rules of Professional Conduct. In

addition, she would have us construe her arguments, most of which ask us to interpret the

rules unreasonably narrowly, as a good-faith attempt to modify existing law.

       Although Torgerson was entitled to defend herself against the Director’s

allegations, the referee was in the best position to observe her demeanor, and specifically,

the sincerity of the apologies for her behavior. In re Ulanowski, 800 N.W.2d 785, 804

(Minn. 2011) (stating that the referee was in the “best position” to assess whether an

attorney’s acknowledgement of misconduct “was sincere”). On that point, the referee

found that, although Torgerson was “sensitive to the manner in which she was treated,”

she showed “little sensitivity for those at whom her actions were directed in the various




                                               18
incidents here involved.” We cannot say that the referee made a clear error in reaching

this conclusion.

       In addition to the two aggravating factors, the referee found several mitigating

factors, including Torgerson’s lack of prior disciplinary history, the modifications she

made to her retainer agreement, and the fact that others may have provoked her to make

the statements underlying some of her misconduct. The Director challenges the referee’s

reliance on Torgerson’s lack of disciplinary history as a mitigating factor. Although we

have said that prior disciplinary history may be an aggravating factor, see In re

Ulanowski, 834 N.W.2d 697, 704 (Minn. 2013), an attorney’s lack of disciplinary history

is not a mitigating factor, In re Rebeau, 787 N.W.2d 168, 176 (Minn. 2010). Thus, the

Director is correct that the referee erred in relying on Torgerson’s lack of disciplinary

history as a mitigating factor.

       The referee’s reliance on one other mitigating factor was also erroneous. The

referee found that Torgerson was entitled to mitigation because she subsequently changed

the language in her retainer agreement. It is our expectation that attorneys will comply

with the Rules of Professional Conduct, and consequently adhering to the requirements of

the rules, like cooperating with the disciplinary process, is not something that an attorney

can rely on to mitigate prior misconduct. See In re Albrecht, 779 N.W.2d 530, 538-39

(Minn. 2010) (“We have repeatedly stated that mere compliance with the rules of

professional misconduct is not a mitigating factor in attorney discipline cases.”).




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                                           III.

      The remaining issue is the appropriate discipline for Torgerson’s misconduct.

When determining the appropriate sanction for professional misconduct, we consider four

factors: (1) the nature of the misconduct; (2) the cumulative weight of the disciplinary

violations; (3) the harm to the public; and (4) the harm to the legal profession.

Ulanowski, 834 N.W.2d at 701.         The referee recommended a public reprimand.

Torgerson asks this court to impose no discipline. The Director requests an indefinite

suspension with no right to petition for reinstatement for a minimum of 6 months. “This

court places great weight upon the referee’s recommendations, but the final responsibility

for determining appropriate sanctions rests with this court.” In re Evans, 461 N.W.2d

226, 228 (Minn. 1990).

      Nature of the Misconduct

      The bulk of the referee’s findings of misconduct follow a central theme: Torgerson

lacked professionalism in dealing with judges, court staff, and other attorneys. She also

repeatedly made knowingly false statements in several matters. Contrary to Torgerson’s

view of her own conduct, her actions went far beyond a lack of civility. The “bounds of

proper professional behavior,” we have said, require that, at minimum, attorneys “comply

with court rules and orders, develop a courteous and civil rapport with opposing counsel,

and maintain respect for the bench.” In re Jensen, 468 N.W.2d 541, 545 (Minn. 1991).

Moreover, “making misrepresentations demonstrates a lack of honesty and integrity, and

warrants severe discipline.” In re Lundeen, 811 N.W.2d 602, 608 (Minn. 2012).




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       Torgerson’s behavior bears some similarity to In re Getty, in which we

admonished an attorney for failing to “show . . . restraint and . . . respect for the judicial

system even while disagreeing strongly with it or its decisions.” 401 N.W.2d 668, 671

(Minn. 1987). We said in Getty that “there is a line that should not be crossed and

respondent has crossed it.” Id. Our statement in Getty applies equally here. The record

in this case is filled with evidence of an attorney “who simply must learn to control [her]

emotions while in a courtroom.”        See id.    But unlike Getty, Torgerson is not an

inexperienced attorney. Id. She has been practicing law in Minnesota for 25 years.

       Torgerson’s misconduct is also more serious than in In re Clemons, in which we

ordered a 30-day suspension for, among other things, “rude, discourteous and

disrespectful language in a courtroom directed at a probation officer.” 530 N.W.2d 537,

537 (Minn. 1995). In this case, Torgerson was disrespectful to judges, court staff, and

other attorneys across multiple matters.

       Perhaps most closely analogous to this case is In re Graham, a disciplinary matter

in which we suspended an attorney for 60 days after the attorney repeatedly accused a

judge of being part of a political conspiracy against his clients. 453 N.W.2d 313, 313-18

(Minn. 1990).    There are several similarities between this case and Graham. Like

Torgerson, Graham had substantial experience in the practice of law. In addition, based

on a comment allegedly made by another attorney and a perceived change in the judge’s

demeanor, Graham accused the judge presiding over one of his cases of bias, specifically

from “political connections and illicit persuasion.”       Id. at 318-19.    The referee in

Graham, like the referee in this case, concluded that the attorney made the statements


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accusing the judge of bias with reckless disregard for their truth or falsity. Id. at 320.

Although Graham did not include the additional misconduct of abuse of court staff, use

of an improper retainer agreement, and failure to comply with a judge’s request to return

to the courthouse, Graham provides the closest analogue to the misconduct that occurred

in this case.

       Cumulative Weight of the Disciplinary Violations

       We treat a brief lapse in judgment or a single, isolated incident differently from

cases involving multiple instances of misconduct occurring over a substantial period.

Ulanowski, 834 N.W.2d at 703.        “The cumulative weight and severity of multiple

disciplinary rule violations may compel severe discipline even when a single act standing

alone would not have warranted such discipline.” Id. (alteration omitted) (quoting In re

Oberhauser, 679 N.W.2d 153, 160 (Minn. 2004)).

       Torgerson’s misconduct occurred in five different cases and in the course of a

disciplinary matter involving another attorney, all over the course of approximately 20

months. Together, the length and variety of Torgerson’s misconduct distinguishes this

case from others involving a “brief lapse in judgment or a single, isolated incident.” In re

Fairbairn, 802 N.W.2d 734, 743 (Minn. 2011).

       Harm to the Public and the Legal Profession

       Torgerson’s misconduct wasted judicial resources and potentially harmed her

clients. Her refusal to return to court in the K.B. matter required a jury to reconvene

unnecessarily for another day of court, and her outbursts and unsubstantiated filings

consumed the valuable time and energy of judges and court staff.              As we have


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recognized, “[a]n attorney does not advance the client’s cause . . . by making unfounded

allegations about the judge’s decision-making process. Here, [Torgerson’s] verbal and

written attacks on the judiciary and its personnel only could have harmed [her] client.”

Jensen, 468 N.W.2d at 546. Moreover, Torgerson’s unprofessional actions and demeanor

“reflect adversely on the bar, and are destructive of public confidence in the legal

profession.” In re Shaughnessy, 467 N.W.2d 620, 621 (Minn. 1991).

       Accordingly, we hereby order that:

       1.     Respondent Lynne A. Torgerson is suspended from the practice of law for a

minimum of 60 days, effective 14 days from the date of the filing of this opinion.

       2.     Respondent shall comply with Rule 26, RLPR (requiring notice of

suspension to clients, opposing counsel, and tribunals).

       3.     Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.

       4.     Respondent shall be eligible for reinstatement to the practice of law

following the expiration of the suspension period provided that, not less than 15 days

before the end of the suspension period, respondent files with the Clerk of Appellate

Courts and serves upon the Director an affidavit establishing that she is current in

continuing legal education requirements, has complied with Rules 24 and 26, RLPR, and

has complied with any other conditions for reinstatement imposed by the court.

       5.     Within 1 year of the date of the filing of this order, respondent shall file

with the Clerk of Appellate Courts and serve upon the Director proof of successful

completion of the professional responsibility portion of the state bar examination. Failure




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to timely file the required documentation shall result in automatic re-suspension, as

provided in Rule 18(e)(3), RLPR.

       6.     Upon reinstatement to the practice of law, respondent shall be subject to

probation for 2 years, with the following conditions:

       (a)    Respondent shall cooperate fully with the Director’s Office in its efforts to

monitor compliance with this probation. Respondent shall promptly respond to the

Director’s correspondence by its due date. Respondent shall provide the Director with a

current mailing address and shall immediately notify the Director of any change of

address. Respondent shall cooperate with the Director’s investigation of any allegations

of unprofessional conduct that may come to the Director’s attention. Upon the Director’s

request, respondent shall provide authorization for release of information and

documentation to verify respondent’s compliance with the terms of this probation; and

       (b)    Respondent shall abide by the Minnesota Rules of Professional Conduct.




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