State Supreme Court suspends Brainerd area attorney for misconduct – Brainerd Di…

BRAINERD — J. Brad Person, partner in the longstanding Breen & Person law firm in Brainerd, and city attorney for Baxter, Crosslake, and Jenkins and Hill City in Aitkin County, was suspended from practicing law for a minimum of four months.

Minnesota Supreme Court Chief Justice Natalie E. Hudson suspended Person in an order issued Sept. 28 after the Office of Lawyers Professional Responsibility in May filed a petition for disciplinary action alleging Person committed professional misconduct warranting public discipline.

Specifically, the Office of Lawyers Professional Responsibility alleged Person in one matter failed to exhibit the requisite preparedness, thoroughness and legal knowledge required for the representation; assisted a client to engage in conduct that he knew was fraudulent; and made knowingly false and misleading statements in furtherance of that conduct.

In another matter, it was alleged Person failed to communicate his rate and expenses to a client before or within a reasonable time after commencing his representation.

Person and Susan M. Humiston, the director of the Office of Lawyers Professional Responsibility, entered into a stipulation for discipline on May 5, which called for a 60-day suspension and two years of probation with conditions, which outlay office procedures to clearly communicate with each client and ensure he is in compliance with probation requirements.

In signing the stipulation, Person admitted to the allegations in the petition against him for disciplinary action, understanding the Supreme Court could impose a number of other sanctions.

In arguing against a lengthier suspension, Person and the Office of Lawyers Professional Responsibility in briefs filed with the court noted his dishonest conduct was part of an attempt to protect a vulnerable client and was not motivated by an attempt to secure personal gain for either himself or his client. The filings also noted Person also expressed remorse for his misconduct.

“We find the parties’ arguments somewhat persuasive. Nevertheless, (Person) drafted instruments that he knew contained false information and then recorded those instruments, deliberately and directly harming his client’s co-trustee,” Hudson wrote in her Sept. 28 order. “(Person) acted dishonestly to advance his client’s interests, knowing that what he was doing was contrary to applicable law and to the client’s fiduciary duties as trustee. A 60-day suspension does not reflect the seriousness of (Person’s) misconduct and is insufficient to deter such misconduct in the future. Instead, we believe a 4-month suspension is a more appropriate sanction.”

Reached for comment Tuesday afternoon, Person said he was disappointed in Hudson’s ruling because the briefs he and the Office of Lawyers Professional Responsibility filed on his behalf show he was not trying to hurt or steal from his client but protect them.

“So it’s very frustrating that I’m getting penalized for, in my mind, doing the right thing,” Person said.

In an emailed statement later Tuesday, Person added: “I think the investigation acknowledges that I was put in a difficult position trying to help a vulnerable client. I still think I made the right moral decision. As the Court correctly points out, however, sometimes the right moral choice still does not meet the ethical rules I must follow as an attorney. I accept that fact but the discipline does seem too harsh after they acknowledged I was trying to help, not hurt a client. As to our firm during my suspension, we luckily have three other attorneys and a large staff in four locations that are more than capable of keeping up with all of our files during my suspension.”

Person said he wasn’t happy with the stipulation he signed with the Office of Lawyers Professional Responsibility calling for a 60-day suspension, but he didn’t want to fight it.

“But I guess in the end, whether it’s 60 or 120, I’m not sure what, either way I’m suspended for a while,” Person said. “I’m not sure if it matters. I guess we’ll find out how I can kind of keep people employed in the meantime.”

Despite the lengthier suspension, Hudson also ruled the facts and circumstances of the case didn’t suggest Person’s overall fitness to practice law was in question and therefore waived the requirement that Person would need to petition for reinstatement after his suspension.

In addition to a four-month suspension, Hudson ordered Person to inform all clients, opposing counsel and tribunals of his suspension; establish with the court and Office of Lawyers Professional Responsibility that he is current on his continuing legal education requirement when his suspension ends; that he complies with conditions for reinstatement; and that within a year he offers proof of successful completion of the written examination required for admission to practice law.

Person also will serve two years probation in which he is ordered to abide by the Minnesota Rules of Professional Conduct; cooperate fully with efforts to monitor compliance; initiate and maintain office procedures which ensure he has clearly communicated to each client, in writing, the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible; within 30 days of being reinstated to practice law provide a written plan outlining office procedures designed to ensure that he is in compliance with probation requirements; and he provides progress reports to the director of the Office of Lawyers Professional Responsibility.

At issue are two cases that came after previous disciplinary history.

The first count regarded a family trust identified as R.B. Family Trust in the court document. The trust was drafted in 1996 and did not expressly permit one trustee to act alone and was silent on whether they could act independently of each other on behalf of the trust. When the husband and father died in 2014, the trust was irrevocable. The widow and the daughter were co-trustees. The trust itself was governed by Florida law, which required the widow and daughter as co-trustees to act unanimously. Minnesota Trust Code has a similar provision.

In 2018, the court document states, the widow, acting alone, hired Person to draft documents conveying a house, which belonged to the trust, to a different trust in an effort to exclude the daughter. The widow told Person she and her husband had title as joint tenants in the home in 1983 and the home was later in the trust in 1997. The widow told Person she didn’t understand she relinquished control of the home when it went to the trust and after her husband’s death, she felt pressured by the daughter to transfer the home to the daughter. The widow told Person she was afraid of losing the home and Person believed the fear was justified. Person didn’t contact the daughter but did contact the widow’s granddaughter, who confirmed the widow’s account of events.

Person reviewed the trust document and learned it was governed by Florida law. The court document stated Person has no knowledge of Florida law and didn’t research it as would be necessary to competently and with the requisite thoroughness, preparedness and legal skill, draft conveyance documents governed by Florida law.

Instead of researching Florida law, the court document stated Person considered Minnesota law, which was substantively the same regarding the ability of one co-trustee to act alone. Person knew the widow was required to confer with the daughter and get her agreement to transfer the house or get court assistance to remove the daughter as trustee.

Person advised the widow she was required to confer with the daughter or go to court and if her fears were true, she had legal recourse. The widow did not want to do either and didn’t want the daughter to know about the transfer of the house. The court document stated Person knew the widow’s legal goals were contrary to the law, didn’t check Florida law, and drafted a certificate of trust the widow would use for an improper transfer of property that was contrary to the law in both states. Person deliberately omitted mention of the daughter as a trustee and drafted the certificate of trust to identify the widow as the only one empowered to act.

“These statements and omissions in the certificate of trust were knowingly false and misleading, and meant to assist (the widow) in her goal of illegally transferring property out of the Trust without the knowledge or consent of her co-trustee,” the document stated.

In the court petition for disciplinary action, the document stated the daughter found out about the change by chance when looking up property tax statements for the property. The daughter learned the property was no longer in the trust after the deed was recorded.

In January or 2019, the daughter began legal action to undo the unauthorized transfer, spending $36,098 in attorney’s fees. The widow, in defending the transfer, spent about $64,794 in attorney’s fees. A mediated settlement meant the trust spent additional funds to hire a professional fiduciary, about $13,275 as of May 5, 2023. The petition for disciplinary action stated the unlawful transfer of property caused the daughter “extreme stress” and “further conflict” between the daughter and widow and other daughters. The court document stated the daughter and widow reconciled after four years.

In the second case, Person was previously hired by the client for a title search and quitclaim deed and completed those for about $200 or less. The work did not involve a written fee agreement for legal services. The client considered those fees to be flat fees for the work. When the client reached out to Person regarding a dispute with a neighbor over an easement for lake access, there again was no written retainer agreement regarding the scope of work or rate of pay. The document stated Person also didn’t discuss his hourly rate.

As a result, the document stated, the client had no understanding of Person’s hourly rate, which at that time was $250 an hour. While the client expected to be billed, they had no understanding they would be billed hourly, the Office of Lawyers Professional Responsibility stated in the court petition.

On June 19, 2019, the client was billed $750, reflecting three hours of work on the issue. The fee dispute was litigated in district court, where the court ruled Person earned the fee. The Office of Lawyers Professional Responsibility found the failure to communicate his rate and expenses to his client before or within a reasonable time was a violation.

Person signed the stipulation agreement with the Office of Lawyers Professional Responsibility on May 5, 2023, regarding the petition for disciplinary action to the Supreme Court and acknowledged receiving a copy of it.

MATT ERICKSON, Editor, may be reached at [email protected] or 218-855-5857.