                               STATE OF MINNESOTA

                                 IN SUPREME COURT

                                        A15-0441

Original Jurisdiction                                                        Per Curiam
                                                                 Took no part, Chutich, J.

In re Petition for Disciplinary Action against
Robert D. Stoneburner, a Minnesota Attorney,                  Filed: July 13, 2016
Registration No. 0105909                                      Office of Appellate Courts

                              ________________________

Susan Humiston, Director, Patrick R. Burns, First Assistant Director, Office of Lawyers
Professional Responsibility, Saint Paul, Minnesota, for petitioner.

Eric T. Cooperstein, Law Office of Eric T. Cooperstein, PLLC, Minneapolis, Minnesota,
for respondent.
                            ________________________

                                    SYLLABUS

       1.     The referee’s conclusion that respondent’s conduct did not violate Rule

8.4(b) of the Minnesota Rules of Professional Conduct is not clearly erroneous.

       2.     The referee’s conclusion that respondent’s conduct in interfering with a 911

call did not violate Rule 8.4(d) of the Minnesota Rules of Professional Conduct is clearly

erroneous.

       3.     The appropriate discipline for respondent’s misconduct is a public

reprimand.

       Public reprimand ordered.




                                            1
                                      OPINION

PER CURIAM.

       The Director of the Office of Lawyers Professional Responsibility (the Director)

petitioned for disciplinary action against attorney Robert D. Stoneburner. The Director’s

petition alleges that Stoneburner violated Rules 8.4(b) and 8.4(d) of the Minnesota Rules

of Professional Conduct (MRPC). We referred the matter to a referee and, following a

hearing, the referee concluded that Stoneburner’s conduct did not violate the rules and

recommended that the Director’s petition be dismissed in its entirety. The Director

disputes the referee’s conclusions and recommendation, arguing that Stoneburner’s

conduct violated the rules and that public discipline is warranted. On the disciplinary

record before us, we cannot conclude that the referee’s determination with regard to Rule

8.4(b) is clearly erroneous. However, we conclude that Stoneburner’s conduct clearly

violated Rule 8.4(d) and that a public reprimand is the appropriate discipline.

                                             I.

       Robert Stoneburner was admitted to practice law in Minnesota in April 1977. He

has no previous record of professional misconduct.           The Director’s petition for

disciplinary action in this case is based on two criminal offenses that Stoneburner

committed on August 24, 2013.




                                             2
       That day, Stoneburner and his wife engaged in a heated argument. 1 The argument

culminated with Stoneburner throwing a small “soft sided case” at his wife, which hit her

in the leg. As Stoneburner’s wife called 911, Stoneburner physically wrested the phone

from her and hung it up. The 911 operator returned the call, and Stoneburner again hung

up the phone. When the 911 operator called back a second time, Stoneburner answered

and told the operator there was no emergency. Only when the operator requested to

speak to his wife did Stoneburner hand over the telephone. At the referee hearing,

Stoneburner testified that he interfered with the 911 call because he did not want to be

arrested.

       Stoneburner was charged in Stearns County with three crimes in connection with

the incident: one count of gross misdemeanor interference with a 911 call, Minn. Stat.

§ 609.78, subd. 2(1) (2014); one count of misdemeanor domestic assault-fear, Minn. Stat.

§ 609.2242, subd. 1(1) (2014), and one count of misdemeanor domestic assault-harm,

Minn. Stat. § 609.2242, subd. 1(2) (2014). Following trial, a jury found Stoneburner

guilty of interfering with the 911 call and committing domestic assault-fear, but acquitted

him of domestic assault-harm.

       In January 2015 the Director brought charges of professional misconduct against

Stoneburner based on his criminal convictions. After a panel found probable cause for

public discipline, the Director filed a petition for disciplinary action, alleging that



1
       The only information in the disciplinary record concerning Stoneburner’s criminal
conduct comes from two sources: the probable cause statement in the criminal complaint
and Stoneburner’s testimony at the referee hearing.
                                            3
Stoneburner’s criminal acts violated Rules 8.4(b) and 8.4(d), MRPC. The matter was

submitted to a referee for a hearing.

       At the hearing, Stoneburner admitted the conduct described above, but argued that

the conduct was mitigated by his remorse. Stoneburner also presented two witnesses:

K.T., his legal assistant, and L.M., his daughter and former legal associate.        Both

witnesses testified that they had never observed Stoneburner to be violent or prone to

anger during the course of his legal work.

       Following the hearing, the referee issued findings of fact and conclusions of law.

He concluded that Stoneburner’s criminal acts did not violate either Rule 8.4(b) or Rule

8.4(d), and recommended that the Director’s petition be dismissed in its entirety. The

referee explained that his conclusions were based on our analysis in In re Selmer,

749 N.W.2d 30 (Minn. 2008), and In re Hoffman, 379 N.W.2d 514 (Minn. 1986), though

the referee recognized that those cases “can certainly be distinguished because neither

involved domestic abuse.” The referee also noted that there were other Minnesota cases

involving criminal convictions similar to Stoneburner’s in which discipline had been

imposed. However, the referee explained that “it appears that all [of the attorneys in

those cases] have had a prior history of discipline, repeated offenses or have included

more serious violations of the [criminal] code.” By contrast, Stoneburner “had no same

or similar offenses in the past” and no prior disciplinary history. The referee further

found as a factual matter that Stoneburner’s conduct had not harmed any of his clients.

       The Director ordered a transcript of the hearing, and now challenges the referee’s

conclusion that Stoneburner’s criminal acts did not violate the Minnesota Rules of

                                             4
Professional Conduct. The Director asks us to determine that Stoneburner violated Rules

8.4(b) and 8.4(d), and impose discipline “of at least a public reprimand.”

                                            II.

       In attorney discipline proceedings, the Director bears the burden of proving

professional misconduct by clear and convincing evidence. In re Walsh, 872 N.W.2d

741, 747 (Minn. 2015). Establishing misconduct by clear and convincing evidence

requires more than a preponderance of the evidence, but less than proof beyond a

reasonable doubt. See In re Hogue, 764 N.W.2d 328, 334 (Minn. 2009) (citing Weber v.

Anderson, 269 N.W.2d 892, 895 (Minn. 1978)).

       In this case, because the Director ordered a transcript of Stoneburner’s hearing, the

referee’s findings and conclusions are not conclusive. Rule 14(e), Rules on Lawyers

Professional Responsibility (RLPR).      We review the referee’s findings of fact and

application of the law to the facts for clear error. In re Fett, 790 N.W.2d 840, 847 (Minn.

2010). We will conclude that the referee clearly erred if upon review of the record and

the law we are left with the definite and firm conviction that a mistake has been made.

In re Ulanowski, 800 N.W.2d 785, 793 (Minn. 2011).

                                            A.

       We turn first to the Director’s contention that Stoneburner violated Rule 8.4(b),

MRPC. Rule 8.4(b) provides that it is misconduct for an attorney to “commit a criminal

act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer

in other respects.” The Director argues that Stoneburner’s criminal act of committing



                                             5
domestic assault-fear 2 violates Rule 8.4(b) because it reflects adversely on his “fitness as

a lawyer in other respects.” 3

       The Director urges us to conclude that the referee’s application of Rule 8.4(b) to

Stoneburner’s conduct was clearly erroneous because the comment to the rule states that

criminal “offenses involving violence” are in the category of offenses that “indicate lack

of those characteristics relevant to the practice of law.” The Director points to a wide

range of Minnesota statutes categorizing misdemeanor domestic assault-fear as a crime

involving violence, e.g., Minn. Stat. § 609.02, subd. 16 (2014), and argues that the fact

that Stoneburner’s crime involved violence is conclusive evidence that Rule 8.4(b) was

violated.

       However, in contrast to its language regarding crimes of dishonesty, the Rule does

not provide that all criminal offenses involving violence, including misdemeanor

offenses, necessarily constitute professional misconduct.           Although lawyers are

personally answerable to the criminal law for all of their conduct, they are professionally

answerable for a narrower range of criminal acts that reflect adversely on the attorney’s

professional fitness. See Minn. R. Prof. Conduct 8.4 cmt. [2]. Of course, whether a

criminal offense involves violence is relevant—but not necessarily dispositive—to the

2
      A criminal conviction is “conclusive evidence that the lawyer committed the
conduct for which the lawyer was convicted.” Rule 19(a), RLPR.
3
       At oral argument, the Director argued for the first time that Stoneburner’s act of
domestic assault reflects adversely on Stoneburner’s trustworthiness, because an
individual who commits domestic assault violates a familial bond of trust. Because this
argument was not raised before the referee or in the Director’s brief, it is not properly
before us, and we decline to address it. See State v. Lopez, 587 N.W.2d 26, 27 n.1 (Minn.
1998).
                                             6
determination of whether the criminal act reflects adversely on a lawyer’s ability to

practice law.

        In considering whether Stoneburner’s specific criminal act of domestic assault-

fear violated Rule 8.4(b), the referee found it significant that: (1) Stoneburner’s conduct

was not related to his practice of law and did not harm any of his clients; (2) he had no

previous record of criminal conduct; and (3) the specific conduct for which he was

convicted was simply less violent than the acts committed by other attorneys whom we

have disciplined for criminal assaults. See, e.g., In re Gherity, 673 N.W.2d 474, 480

(Minn. 2004).     These considerations are appropriate when evaluating whether an

attorney’s conduct violates the prohibition in Rule 8.4(b) on criminal acts that reflect

adversely on an attorney’s fitness as a lawyer.         See Gherity, 673 N.W.2d at 480

(concluding that criminal offenses violated Rule 8.4(b) when considered “together with

[the attorney’s] prior discipline and criminal record”); cf. Rule 8.4(h), MRPC (providing

that determining whether an illegal discriminatory act “reflects adversely on a lawyer’s

fitness as a lawyer” requires “consideration of all the circumstances, including: (1) the

seriousness of the act . . . (3) whether the act was part of a pattern of prohibited conduct,

and (4) whether the act was committed in connection with the lawyer’s professional

activities”). 4



4
       A lack of prior criminal history is relevant to the Rule 8.4(b) determination,
particularly when misdemeanor offenses are at issue, because “[a] pattern of repeated
offenses, even ones of minor significance when considered separately, can indicate
indifference to legal obligation” and reflect adversely on a lawyer’s fitness to practice.
Minn. R. Prof. Conduct Rule 8.4 cmt. [2].
                                             7
       The Director does not dispute that Stoneburner’s conduct did not harm any clients

and was unrelated to the practice of law. Nor does the Director contend that Stoneburner

has a history of criminal acts indicating “an indifference to legal obligation.” See Minn.

R. Prof. Conduct Rule 8.4 cmt. [2]. Further, the referee properly noted that this case does

not   involve   an   allegation   that   Stoneburner’s    acts—although     unquestionably

condemnable—caused physical harm to his victim. This case, then, is different from

those in which we have imposed discipline for misdemeanor assaults.

       We do not minimize the seriousness of domestic assault offenses, nor imply that

an attorney who commits misdemeanor domestic assault cannot thereby violate Rule

8.4(b). Rather, we hold that the referee’s determination that the Director did not carry her

burden to prove a violation of Rule 8.4(b) by clear and convincing evidence in this case is

not clearly erroneous.

                                            B.

       The Director also challenges the referee’s conclusion that Stoneburner did not

violate Rule 8.4(d), MRPC, when he committed the gross misdemeanor offense of

interfering with his wife’s 911 call.      Rule 8.4(d) provides that it is professional

misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of

justice.”

       In concluding that Stoneburner did not violate Rule 8.4(d), the referee applied the

same analysis as he did with regard to Rule 8.4(b), finding it significant that Stoneburner

had no previous criminal history and that the criminal act was not related to the practice

of law. The referee also relied on our decision in In re Hoffman, 379 N.W.2d 514 (Minn.

                                             8
1986), in which we concluded that an attorney’s act of fleeing police in a motor vehicle,

which resulted in a gross misdemeanor conviction, did not warrant professional

discipline.

       The referee’s conclusion on this issue was clearly erroneous. The undisputed

evidence convinces us that Stoneburner’s acts were prejudicial to the administration of

justice. The 911 telephone system is one of the most important gateways to our system

of criminal justice. As the Legislature has recognized, interference with an emergency

call is a crime against a vital government service. See Minn. Stat. § 609.78, subd. 2(1).

Interference delays a crime victim’s right to aid, confuses first responders, undermines

the State’s ability to investigate and prosecute violent crime, and needlessly consumes

criminal justice resources. An attorney should never act to prevent a victim’s access to

the criminal justice system, especially by the use of force or coercion.

       In this case, Stoneburner used force and coercion to hinder his wife’s access to aid.

He took the telephone from her to prevent her from reporting the assault.               He

compounded the interference by preventing his wife from answering the operator’s return

call. When the operator called again, Stoneburner attempted to mislead the operator for

the purpose of avoiding arrest. His conduct was clearly prejudicial to the administration

of justice. See In re Torgerson, 870 N.W.2d 602, 611 (Minn. 2015) (noting that Rule

8.4(d) is meant to address conduct when “the harm in question is to the administration of

justice itself”) (internal quotation marks omitted).

       Unlike in the context of Rule 8.4(b), the lack of a connection between

Stoneburner’s act and the practice of law is not relevant to whether he violated Rule

                                              9
8.4(d). Nor is his lack of a prior criminal record relevant to a violation of Rule 8.4(d).

Rule 8.4(d) prohibits prejudice to the administration of justice, whether the misconduct

occurs inside or outside one’s law office and regardless of any prior history of such acts.

       In response, Stoneburner points to our decision in Hoffman, upon which the

referee relied.   In that case, without elaborating on the facts, we deemed gross

misdemeanor flight from a police officer to be an “isolated incident” such that the

criminal sanctions already imposed were “appropriate punishment.” 379 N.W.2d at 519.

The opinion is unclear as to whether we chose not to discipline the attorney because his

conduct did not violate the rules or, alternatively, because there was no reason to add

discipline to the 3-month suspension we imposed for Hoffman’s other misconduct.

Regardless, we additionally distinguish Hoffman because this case involves both an

individual victim and a misleading statement to a 911 operator.

       Accordingly, Stoneburner violated Rule 8.4(d) when he interfered with his wife’s

911 call and the referee clearly erred in concluding otherwise. 5

                                            III.

       Having concluded that Stoneburner committed professional misconduct by

violating Rule 8.4(d), we must decide the appropriate discipline to impose. We are the

“ ‘sole arbiter’ of the discipline to be imposed for professional misconduct by Minnesota

lawyers,” In re Albrecht, 845 N.W.2d 184, 191 (Minn. 2014), and “we retain ultimate

5
        The Director argues that Stoneburner’s criminal act of interfering with a 911 call
reflects adversely on his fitness to practice law and thereby also violates Rule 8.4(b). For
the same reasons we discussed above in connection with the domestic assault-fear
conviction, we do not disturb the referee’s conclusion on Rule 8.4(b) because it was not
clearly erroneous.
                                             10
responsibility for determining appropriate discipline.” In re Montez, 812 N.W.2d 58, 66

(Minn. 2012).

       We impose attorney discipline to deter future misconduct, both by the attorney

subject to discipline and by other lawyers. Albrecht, 845 N.W.2d at 191. In determining

the appropriate discipline to impose, we consider four factors: (1) the nature of the

misconduct, (2) the cumulative weight of the violations, (3) the harm to the public, and

(4) the harm to the legal profession. Id. We also consider the discipline imposed in

previous similar cases and any aggravating or mitigating factors 6 present. Id.

       In examining the nature of Stoneburner’s conduct in violating Rule 8.4(d), we note

that his conduct was not related to the practice of law and did not harm any of his clients.

See In re Glasser, 831 N.W.2d 644, 648 (Minn. 2013). However, Stoneburner violated

his special duty as an attorney to ensure that justice is done, and he did so to avoid arrest

and prosecution.

       When considering the cumulative weight of misconduct, we distinguish “a brief

lapse in judgment or a single, isolated incident” from “multiple instances of mis[conduct]

occurring over a substantial amount of time.” In re Severson, 860 N.W.2d 658, 673

(Minn. 2015). Here, Stoneburner’s sole rule violation took place over the course of just a

few minutes.

6
       Before the referee, Stoneburner argued that his remorse should be considered a
mitigating factor, whereas the Director argued that Stoneburner’s lack of remorse was an
aggravating factor. The referee did not make any finding regarding Stoneburner’s
remorse. Because the parties raised this issue, the referee’s failure to make any finding
constitutes clear error. In re Tigue, 843 N.W.2d 583, 588 (Minn. 2014). Because we
conclude that the presence or absence of remorse would not alter the appropriate
discipline, we need not address it further.
                                             11
       In assessing the harm to the public caused by misconduct, we consider “the

number of [persons] harmed and the extent of the [persons’] injuries.” In re Voss,

830 N.W.2d 867, 878 (Minn. 2013). We have also noted that “[b]y its nature, conduct

that is detrimental to the administration of justice harms the public,” because it increases

the public costs of administering justice. In re Rymanowski, 809 N.W.2d 217, 225

(Minn. 2012). But there is no allegation that Stoneburner’s act increased the cost of

apprehending him or increased the difficulty of prosecuting him.

       Finally, misconduct that “undermine[s] the public’s confidence in the ability of

attorneys to abide by the rule of law” harms the legal profession.                  In re Brost,

850 N.W.2d 699, 704 (Minn. 2014). Stoneburner’s conviction for a gross misdemeanor

criminal offense that impeded the administration of justice harmed the reputation of the

legal profession. See Rymanowski, 809 N.W.2d at 225 (“By its nature, conduct that is

detrimental to the administration of justice harms . . . the legal profession.”).

       Turning to the discipline we have imposed in other cases, we have “typically

imposed suspensions or public reprimands for criminal conduct unrelated to the practice

of law.” In re Farley, 771 N.W.2d 857, 864 (Minn. 2009). Stoneburner, however, argues

that the appropriate discipline for any misconduct he committed is a private admonition.

Rules 8(d)(2) and 9(j)(1)(iii), RLPR, provide that if the Director or a Panel conclude that

the attorney engaged in “isolated and non[-]serious” misconduct, the appropriate sanction

for the Director or Panel to impose is a private admonition.

       In this case, we cannot conclude that a private admonition is sufficient discipline.

Stoneburner’s misconduct in violating Rule 8.4(d) substantially differs from previous

                                              12
cases in which we have determined that the violations warranted only private discipline.

See In re Panel No. 94-17, 546 N.W.2d 744, 747 (Minn. 1996) (holding that an attorney

violated Rule 8.4(d) by threatening to bill a client for time spent responding to an ethics

complaint); In re A.M.E., 533 N.W.2d 849, 850-51 (Minn. 1995) (concluding that an

attorney violated Rule 8.4(d) by making a profane phone call and sending a derogatory

fax to a complainant in an attempt to interfere with the disciplinary process). In neither

94-17 nor A.M.E. did the attorney’s conduct constitute a criminal offense, and the

misconduct at issue in both of those cases was less serious than in this case. Nor is this

case similar to In re Panel File 98-26, 597 N.W.2d 563, 568 (Minn. 1999), in which we

concluded that, although the attorney committed serious misconduct, a private

admonition was sufficient. In that case, we concluded that the misconduct “did not stem

from any malicious intent” and recognized that the misconduct was accompanied by

immediate affirmative actions on the part of the attorney to mitigate the consequences.

Id. at 568-69.    Here, those factors are not present, and we decline to take the

extraordinary step of ordering a private admonition for misconduct that we consider

serious. Attorneys licensed in this state must understand that their obligation to support

the administration of justice is fundamental, and that even isolated acts that directly

impede it may warrant public discipline.         Thus, we conclude that the appropriate

discipline is a public reprimand.

       Accordingly, we order that:

       1.     Respondent Robert D. Stoneburner is publicly reprimanded.

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

                                            13
       CHUTICH, J., not having been a member of this court at the time of submission,

took no part in the consideration or decision of this case.




                                             14
