In re Petition for Reinstatement of Clark Calvin Griffith, II, a Minnesota Attorney, Registration No. 0175638. , 883 N.W.2d 798 ( 2016 )

STATE OF MINNESOTA
IN SUPREME COURT
A15-1186
Original Jurisdiction Per Curiam
Took no part, Gildea, C.J.
In re Petition for Reinstatement of Clark Calvin
Griffith, II, a Minnesota Attorney, Registration Filed: August 17, 2016
No. 0175638. Office of Appellate Courts
________________________
Clark Calvin Griffith, II, Minneapolis, Minnesota, pro se.
Susan M. Humiston, Director, Julie E. Bennett, Senior Assistant Director, Office of
Lawyers Professional Responsibility, Saint Paul, Minnesota, for respondent.
________________________
SYLLABUS
The determination by a panel of the Lawyers Professional Responsibility Board that
an indefinitely suspended lawyer is not entitled to reinstatement because he failed to prove
by clear and convincing evidence that he has undergone the requisite moral change for
reinstatement was not clearly erroneous.
Petition denied.
OPINION
PER CURIAM.
By order dated November 5, 2013, we suspended petitioner Clark Calvin
Griffith, II, indefinitely with no right to petition for reinstatement for 90 days. Griffith
filed a petition for reinstatement on July 23, 2015. After a hearing, a panel of the Lawyers
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Professional Responsibility Board (the panel) concluded that Griffith did not prove by clear
and convincing evidence that he has undergone a moral change, and therefore
recommended denial of Griffith’s petition for reinstatement. Griffith contests the panel’s
findings and recommendation, arguing that he should be reinstated. The Director of the
Office of Lawyers Professional Responsibility (the Director) agrees with the panel’s
recommendation. After independently reviewing the record, we conclude that the panel’s
determination was not clearly erroneous. Therefore, we deny Griffith’s petition for
reinstatement.
I.
Griffith was admitted to practice law in Minnesota in 1986. In 2013 we suspended
Griffith indefinitely with no right to petition for reinstatement for a minimum of 90 days
due to his: (1) sexual harassment of a law student that he was supervising at William
Mitchell College of Law (WMCL); and (2) attempts to pressure the law student into
recanting her complaints against him. In re Griffith, 838 N.W.2d 792, 793 (Minn. 2013).
On January 24, 2012, Griffith, an adjunct professor, and the law student met at a
restaurant in Saint Paul as part of an independent study clinic. As Griffith has stipulated,
during the meeting, he “engaged in verbal and physical conduct and communications of a
sexual nature that were not welcomed by [the student] and heightened her feelings of
discomfort with [Griffith].” The meeting ended and Griffith walked the student to her car.
As Griffith has further stipulated, he then “unzipped his pants, exposed his penis to [the
student], and then took [the student’s] hand and forced her to touch his penis.”
The next day the student reported the incident to WMCL. WMCL directed Griffith
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to have no contact with the student, but he continued to call, text, and send messages. These
communications included multiple attempts by Griffith to convince the student to recant
the complaints she made to authorities. WMCL was notified of the communications and
sent Griffith a second notice to have no contact with the student. Griffith again disregarded
the instruction and contacted the student to ask why she had filed a criminal complaint
against him. The student told Griffith to stop contacting her. WMCL conducted an
investigation into the incident and terminated Griffith’s employment. On June 12, 2012,
Griffith entered an Alford plea and was found guilty of indecent exposure.
On July 23, 2015, Griffith filed his petition for reinstatement. The Director opposed
reinstatement. After a hearing, the panel recommended denial of Griffith’s petition. The
panel concluded that Griffith “ha[d] not proven by clear and convincing evidence that he
has undergone the requisite moral change to render him fit to resume the practice of law.”
II.
“ ‘[A]n attorney applying for reinstatement must establish by clear and convincing
evidence that . . . he has undergone such a moral change as now to render him a fit person
to enjoy the public confidence and trust once forfeited.’ ” In re Jellinger, 728 N.W.2d 917,
922 (Minn. 2007) (quoting In re Porter, 472 N.W.2d 654, 655 (Minn. 1991)). Clear and
convincing evidence is “unequivocal, intrinsically probable and credible, and free from
frailties.” Gassler v. State, 787 N.W.2d 575, 583 (Minn. 2010).
Our scope of review in matters such as this is well established. When, as here, a
petitioner orders a transcript of a reinstatement hearing, “the panel’s findings ‘are not
binding on this court.’ ” In re Mose, 754 N.W.2d 357, 360 (Minn. 2008) (quoting
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In re Selmer, 749 N.W.2d 30, 35 (Minn. 2008)); see also Rule 14(e), Rules on Lawyers
Professional Responsibility. After independently reviewing the record, we “will uphold
the panel’s factual findings if they have evidentiary support in the record and are not clearly
erroneous.” Mose, 754 N.W.2d at 360. “As a general rule we will defer to a panel’s finding
that a petitioner’s testimony that he has undergone the requisite moral change is not
credible . . . .” Id. at 362.
“Evidence of this moral change ‘must come not only from an observed record of
appropriate conduct, but from the petitioner’s own state of mind and his values.’ ” Porter,
472 N.W.2d at 655 (quoting In re Hanson, 454 N.W.2d 924, 925 (Minn. 1990)). “This
standard requires stronger proof of good character and trustworthiness than is required in
an original application for admission to practice.” Id. at 655-56. “Generally, to prove
moral change a lawyer must show remorse and acceptance of responsibility for the
misconduct, a change in the lawyer’s conduct and state of mind that corrects the underlying
misconduct that led to the suspension, and a renewed commitment to the ethical practice
of law.” In re Mose, 843 N.W.2d 570, 575 (Minn. 2014).
In addition to moral change, on a petition for reinstatement we also consider:
(1) compliance with the terms of the suspension order; (2) the attorney’s
recognition of the wrongfulness of his or her misconduct; (3) the length of
time since suspension; (4) the seriousness of the original misconduct;
(5) the attorney’s physical or mental illness or pressures that may be
susceptible to correction; and (6) the attorney’s intellectual competence to
practice law.
Id. at 574. Moral change and recognition of wrongfulness are overlapping factors. “While
moral change and recognition of wrongfulness are considered to be only two factors in the
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overall analysis, we have previously recognized the ‘decisive’ nature of these factors.” In
re Holker, 765 N.W.2d 633, 639 n.2 (Minn. 2009) (citation omitted).
III.
The panel addressed each factor. It determined that: (1) Griffith had complied with
the terms of the suspension order; (2) he had not demonstrated insight into the
wrongfulness of his conduct and accepted personal responsibility for his actions; (3) he had
been suspended for 2 years; (4) he was convicted of misdemeanor indecent exposure;
(5) no evidence or testimony was received that would indicate a physical or mental illness
or pressure; and (6) evidence suggested that he was competent to practice law. Finally, the
panel concluded that Griffith had not demonstrated moral change.
In support of its determinations on moral change and recognition of wrongfulness,
the panel made multiple findings:
1. Griffith agreed to an Alford plea, which did not require him to acknowledge
guilt. The transcript shows that the panel had difficulty getting Griffith to acknowledge
the conviction and the finding of guilt.
2. Griffith attempted what the panel called “moral shifting of blame” by
suggesting that his misconduct had been caused by the side effects of a “medical cocktail.”
3. Griffith “did not articulate the difference between his past and present
attitudes.”
4. Griffith testified, contrary to his stipulation in the disciplinary proceeding,
that both he and the student engaged in verbal and physical conduct of a sexual nature.
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5. Griffith implied that the student was pursuing him. He did not acknowledge
the student’s experience or express an understanding of or appreciation for the suffering
that his actions inflicted on his victim.
Based on these findings, the panel concluded that Griffith “has not proven by clear
and convincing evidence that he has undergone the requisite moral change to render him
fit to resume the practice of law.”
Based on our independent review of the record, we hold that the panel’s findings
and conclusions are not clearly erroneous, and are well supported by the record. In
particular, we note, as did the panel, that in the underlying disciplinary proceeding, Griffith
stipulated that he took the student’s hand and forced her to touch his penis. But, before the
panel, Griffith said, “I don’t know whether I exposed myself or not.” Similarly, although
Griffith had stipulated previously that his advances were not welcomed by the student, he
told the panel that he “thought that meant that we both engaged in” inappropriate sexual
conduct. At oral argument, he told our court that the sexual contact, although it was his
“fault, in that I allowed it to happen,” “was consensual to the extent that two people
participated.” Like the panel, we are concerned that Griffith has tried to equivocate on the
facts to which he voluntarily stipulated in the disciplinary proceeding.
Most of Griffith’s arguments to us take issue with the specific details of, and
inferences from, his testimony before the panel. Griffith’s arguments are not sufficient to
persuade us that he carried his burden by clear and convincing evidence. The panel did not
find Griffith credible on key points in his testimony. We defer to the panel’s credibility
determinations. Mose, 754 N.W.2d at 362. See In re Anderson, 759 N.W.2d 892, 896
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(Minn. 2009) (“The referee’s findings that are based on a respondent’s ‘demeanor,
credibility, or sincerity’ will be reversed only if ‘upon review of the entire evidence, [we
are] left with the definite and firm conviction that a mistake has been made.’ ” (quoting
In re Moulton, 721 N.W.2d 900, 905 (Minn. 2006))).
Griffith makes three specific arguments, none of which has merit. First, Griffith
contends that the panel erred in failing to fully consider evidence that his misconduct was
the result of an adverse reaction to prescribed medication. Although the panel allowed
Griffith to testify on the subject, and he stated that a medical condition “caused the
problem,” the panel denied his request to submit testimony by, or a report from, a
neurologist. The panel did not err because Griffith’s disclosure of medical evidence was
untimely.
The parties’ witness and exhibit lists were due to the panel on October 22, 2015.
Griffith requested, and was granted, a 1-week extension. Griffith indicated he had an
appointment scheduled with a neurologist on October 26, 2015. However, Griffith did not
disclose either the neurologist’s report or the possibility of calling the neurologist as a
witness when he submitted his exhibit and witness lists on October 29, 2015. On
November 6, 2015, Griffith sent the Director a notice of request to call the neurologist, but
did not include the report or a signed medical waiver. On November 13, 2015, Griffith
sent an e-mail to the panel chair requesting permission to present the neurologist’s report
at the hearing without testimony. The Director received a signed medical release from
Griffith on November 16, 2015. The panel hearing was 2 days later.
Griffith’s request was denied during the hearing. The panel reasoned that admitting
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the report would unfairly prejudice the Director because the Director would not have time
to “adequately prepare for a report that would be received less than 48 hours before the
scheduled reinstatement hearing.” Under the circumstances, the panel’s decision not to
allow the neurologist’s report due to its untimeliness and not to give weight to Griffith’s
alleged medical condition was not an abuse of discretion.
Second, Griffith argues that the panel did not give proper weight to his witnesses’
testimony. Griffith called five witnesses, four of whom have known him for decades. But
most of the witnesses who knew Griffith at the time of the sexual misconduct lacked
personal knowledge about it. One witness explicitly directed Griffith not to discuss the
misconduct with him. The only witness who previously knew Griffith and discussed the
sexual misconduct with him appeared confused during the panel hearing, because the facts
to which Griffith had stipulated were inconsistent with Griffith’s later account. Further,
none of Griffith’s witnesses provided specific examples of how he had demonstrated a
moral change. For these reasons, we conclude that the panel did not clearly err when it
gave little or no weight to the testimony of Griffith’s witnesses.
Finally, Griffith contends that he was not able to fully express himself regarding his
understanding and appreciation of the harm the student experienced because she has sued
him. He suggests that, because her civil attorneys were present at the panel hearing, he
was inhibited from delivering candid testimony. If so, it was a problem of his own making.
Griffith chose to petition for reinstatement while the student’s civil lawsuit against him was
pending. He knew, or should have known, that the panel hearing was public.
In summary, we are not left with a definite and firm conviction that the panel erred.
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Griffith is not entitled to reinstatement at this time because he failed to prove by clear and
convincing evidence that he has recognized the wrongfulness of his conduct and has
undergone the requisite moral change.
Petition denied.
GILDEA, C.J., took no part in the consideration or decision of this case.
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