State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0967

State of Minnesota,
Respondent,

vs.

Fardowsa Mohamed,
DBA Hope Alliance Health Care, Inc.,
Appellant.

Filed February 20, 2018
Reversed and remanded
Cleary, Chief Judge

Ramsey County District Court
File No. 62-CR-16-2729

Lori Swanson, Attorney General, Nicholas B. Wanka, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Stephen W. Hance, Hance Law Firm, Ltd., Wayzata, Minnesota (for appellant)

Considered and decided by Johnson, Pr esiding Judge; Clear y, Chief Judge; and
Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this appeal, appellant argues that th e district court abused its discretion in
disqualifying her counsel where he is not a necessary and material witness. Because
counsel is not a necessary and material witness, we reverse and remand.
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FACTS
In 2013, appellant Fardow sa Mohamed began operati ng Hope Alliance Health
(“Hope”), a mental health counseling business. In 2014, appellant was charged with three
counts of theft by false representation and two counts of identity theft. A fourth count of
theft by false representation an d one count of medical assist ance fraud were added to the
complaint in 2016. The complaint alleges that appellant “defrauded the Medicaid program
by billing and receiving re imbursement from the Minnesota Department of Human
Services (‘DHS’) and/or UCare for Adult Rehabilitative Mental Health Services
(‘ARMHS’) that were not provided, or were not eligible for reimbur sement.” Appellant
allegedly “billed for services that were not provided a nd/or were not supported by a
[diagnostic assessment],” “presented herself as a clinical supervisor/[mental health
professional] when she lacked the require d credentials,” and “submitted ARMHS claims
to the DHS when the ARMHS were not pr operly supervised by a [mental health
professional] as required by law.”
To be eligible for the Medicaid reimbursement, ARMHS agencies must employ or
contract with a mental health professional or a mental health professional clinical trainee
who must complete a diagnostic assessment , functional assessment, and an individual
treatment plan for each recipient. Minn. St at. § 256B.0623, subds. 4-5, 8-10 (2016). A
mental health professional is a “person provid ing clinical services in the treatment of
mental illness” and has a specialized degree in one of seven areas and certain related
experience. Minn. Stat. § 245.462, subd. 18 (2016). A mental health professional clinical
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trainee is someone who is either a student in a bona fide internship or someone complying
with licensure requirements and under close s upervision of a mental health professional
who is helping the clinical trainee gain k nowledge and skills to pr actice independently.
Minn. R. 9505.0371, subp. 5(C) (2015).
While searching appellant’s personnel files, a DHS investigator located a letter from
Ruth Katz, a licensed psychologist, stating that appellant was a student pursuing a Master
of Arts degree in the Marriage and Family Th erapy program at Adler Graduate School at
that time and was qualified as a clinical trai nee. The letter (Letter A) was addressed to
Stephen Hance at a Wayzata address. Katz denies writing Letter A and instead maintains
that she wrote and mailed a different letter (L etter B) to Stephen Hance, LCSW (licensed
clinical social worker) at Hope’s address in St. Paul.
Attorney Stephen Hance represents appellant on all charges. He is not a licensed
clinical social worker. In 2015, a former Hope employee faxed Letter A to Hance Law
Firm to the attention of a former law firm employee. Upon receiving Letter A, Hance
attached the letter to an email sent to UCare’s general counsel. Hance maintains that he
did not see Letter B until the stat e provided it to him and that he “did not receive [Letter
A] from Ms. Katz” (having received it by fax sent by the Hope employee).
The state filed a motion to disqualify Hance, arguing that he is a necessary witness
under Minn. R. Prof. Conduct 3.7 to testify “r egarding when and where he first saw each
letter,” unless appellant would stipulate that she altered the letter originally written by Katz.
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The district court determined that Hance is a “material and necessary witness” because
“there are contested questions of fact.” This appeal follows.
D E C I S I O N
“We review the district court’s decision regarding disqualification of counsel for an
abuse of discretion.” State ex rel. Swanson v. 3M Co., 845 N.W.2d 808, 816 (Minn. 2014).
A district court abuses its discretion if it enters factual findings that are unsupported by the
record, or if it misapplies the law. State v. Guzman, 892 N.W.2d 801, 810 (Minn. 2017).
“It is well settled that criminal defenda nts who do not require appointed counsel
have a right to their counsel of choice.” State v. Patterson, 812 N.W.2d 106, 111 (Minn.
2012) (citing Powell v. Alabama , 287 U.S. 45, 53, 53 S. Ct. 55 , 58 (1932) (“It is hardly
necessary to say that . . . a defendant should be afforded a fair opportunity to secure counsel
of his own choice.”)). “This right derives from the constitutional gua rantee that ‘[t]he
accused shall enjoy the right . . . to have the assistance of counsel in his defense.’”
Patterson, 812 N.W.2d at 111 (quoting Minn. Const. art. I, § 6) (citing U.S. Const. amend.
VI).
The Minnesota Rules of Professional Conduc t provide that an attorney cannot act
as a witness and represent a client in the sa me proceeding unless the testimony relates to
an uncontested issue or the value of legal se rvices rendered, or if disqualification would
work substantial hardship on the client. Minn. R. Prof. Conduct 3.7.
If the evidence sought to be elicited from the attorney-witness
can be produced in some other effective way, it may be that the
attorney is not necessary as a witness. If the lawyer’s
testimony is merely cumulative, or quite peripheral, or already
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contained in a document admissible as an exhibit, ordinarily
the lawyer is not a necessary witness . . . .

Humphrey ex rel. State v. McLaren , 402 N.W.2d 535, 541 (Minn. 1987). “The rule does
not, however, contemplate that a party can force disqualification of his opponent’s attorney
simply by calling him as a witness or stating that he intends to call him as a witness.” State
v. Fratzke, 325 N.W.2d 10, 11 (Minn. 1982).
The state relies on an unpublished decision, State v. Casler, No. C7-02-1848, 2003
WL 22014550 (Minn. App. A ug. 26, 2003), to support its argument that Hance is a
necessary witness. That cas e is inapposite for two reasons . Here appellant and Hance
agreed to stipulate to all facts of whic h Hance has personal k nowledge, and several
witnesses other than Hance could testify to the chain of custody of the Katz letter, including
Katz herself, the former Hope employee, th e former law firm em ployee, and the UCare
general counsel. Neither the agreement to stipulate nor the availability of other witnesses
was present in Casler. Because appellant agreed to stipulate to the foundation of the letter
and because Hance’s testimony would be cumulative, we hold that Hance is not a necessary
witness and the district court abused its discretion in disqualifying him.
Appellant also argues that disqualifying Hance would work substantial hardship on
her. The comment to the rule provides that in determining whether substantial hardship is
present, “a balancing is required between the interests of the client and those of the tribunal
and the opposing party.” Minn. R. Prof. Conduct 3.7, cmt. 4. The district court did not
perform a balancing test. While we need not address this issue, we note that bringing new
counsel into a large, complex case such as this with substantial discovery would certainly
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significantly impact appellant’s interests. Given appellant’s right to counsel of her choice,
her agreement to stipulate, and the availability of other witnesses, the district court abused
its discretion in disqualifying Hance.
Reversed and remanded.