Original Jurisdiction Per Curiam

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STATE OF MINNESOTA

IN SUPREME COURT

A19-0444

Original Jurisdiction Per Curiam

In re Petition for Disciplinary Action
against Daniel J. Moulton, a Minnesota Filed: July 1, 2020
Attorney, Registration No. 0136888. Office of Appellate Courts

________________________

Susan M. Humiston, Director, Keshini M. Ratnayake, Senior Assistant Director, Office of
Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

Daniel J. Moulton, Rochester, Minnesota, pro se.
________________________
S Y L L A B U S

A 90-day suspension with a requirement to petition for reinstatement is the
appropriate discipline for respondent, who failed to remain current on tax obligations and
failed to affirmatively report his tax compliance to the Director as required by the terms of
his probation.
Suspended.
O P I N I O N
PER CURIAM.
The Director of the Office of Lawyers Professional Responsibility filed a petition
for disciplinary action against respondent Daniel J. Moulton, alleging that he had violated
the Minnesota Rules of Professional Conduct by failing to file and pay his taxes and failing

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to affirmatively report his tax compliance to th e Director as required by the terms of his
probation. Following an evidentiary heari ng, the referee concluded that Moulton had
violated the Rules of Professional Conduct. The referee recomme nded that Moulton be
suspended from the practice of law for 90 da ys and that he be required to petition for
reinstatement. We conclude that the refer ee did not clearly err in her findings, Moulton
was afforded a fair disciplinary hearing, and a 90-day suspension with the requirement that
Moulton petition for reinstatement under Ru le 18, Rules on Lawyers Professional
Responsibility (RLPR), is the appropriate discipline.
FACTS
Moulton practices law at Moulton Law Office, a sole proprietorship. In addition to
his law practice, until April 2 016, Moulton owned, operated, and was the sole corporate
officer of Moulton Trucking, Inc.
On September 28, 2006, Moulton was su spended from the practice of law for a
minimum of 90 days for failing to file and timely pay state and federal employer
withholding tax returns for the period of 1998 through 2005. In re Moulton, 721 N.W.2d
900 (Minn. 2006), as modified , 733 N.W.2d 777 (Minn. 2007) (order). Moulton was
conditionally reinstated on June 10, 2010, and placed on unsupervised probation. In re
Moulton, 783 N.W.2d 168 (Minn. 2 010) (order). Moulton was required to remain on
probation until he had fully paid all past-due employer withholding tax liabilities or for two
years, whichever was longer. Id. at 169.
As a condition of his reinstat ement, we ordered Moulton to “remain current on all
tax obligations to federal and state taxing authorities arising in the future, and on any

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payment agreements with such federal and state taxing authorities.” Id. We also required
Moulton to “affirmatively report to the Director, on or before the due date of the required
return, his complia nce with tax filing and payment.” Id. The conditional reinstatement
order also required Moulton to “provide the Director with all of the documents and
information required without specific reminder or request.” Id.
Moulton’s outstanding state and federal lia bilities incurred from 1998 through 2005
totaled in the hundreds of thousands of dollars. He made efforts to reduce his federal and
state tax debt over many years and negotiate d with the IRS on settl ement terms. In
accordance with the terms of our reinstatement order, he remained on probation while
negotiating settlement terms with the IRS. In February 2017 Moulton entered into a global
agreement with the IRS to settle his outstandi ng tax liabilities. Th e agreement required
Moulton to make 24 payments of $25.00 and a final lump sum payment of $202,209.17.
Moulton made timely payments to the IRS, including his final lump sum payment, and
satisfied his outstanding tax liabilities.
But during Moulton’s time on probation, he failed to remain current on his tax
obligations on numerous occasions. He failed to timely file state and federal income tax
returns for Moulton Trucking, and on multiple occasions he failed to timely pay monthly
state and federal employer withholding ta xes for Moulton Trucking and Moulton Law
Office. Additionally, during this time Moulton on multiple occasions failed to report and
provide to the Director documentation about hi s tax filings and payments as required by
his probation. He provided some informa tion to his attorney who was in periodic

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communication with the Director. He provided the required information to the Director
after receiving a June 9, 2015 letter from the Director.
As part of her supervisory responsibilitie s, the Director conducted a review of
Moulton’s compliance with the reinstatement order. Based on irregularities found during
the investigation, the Director filed a petiti on for disciplinary action on March 18, 2019,
alleging that Moulton failed to remain current on tax payment obligatio ns in violation of
Minn. R. Prof. Conduct 8.4(d) and failed to affirmatively report and provide documents to
the Director in violation of Minn. R. Prof. Conduct 3.4(c) and 8.1(b), Rule 25, RLPR, and
our June 2010 reinstatement order. Following a day-long hearing, the referee found that
the Director had proven by clear and convincing evidence that Moulton’s conduct violated
the rules and our order as alleged. The re feree recommended that Moulton be suspended
for a minimum of 90 days and required to petition for reinstatement.
ANALYSIS
I.
In a disciplinary proceeding, the Direct or must prove by clear and convincing
evidence that an attorney violated the Rules of Professional Conduct. In re Grigsby, 764
N.W.2d 54, 60 (Minn. 2009). Because Moulton ordered a transcript of the hearing before
the referee, he can challenge th e referee’s factual findings. See Rule 14(e), RLPR. We
give “great deference to the referee’s finding s of fact” and will not reverse the referee’s
findings when the findings “h ave evidentiary support in th e record and are not clearly
erroneous.” In re Coleman , 793 N.W.2d 296, 303 (Minn. 2011) (citations omitted)
(internal quotation marks omitted). A finding of fact is clearly erroneous when, upon

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review, 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) (citations omitted) (internal quotation
marks omitted).
Moulton challenges the referee’s findings that he failed to report to the Director his
compliance with state and federal tax filing and payment requirements during his probation
and failed to provide copies of the proper tax documents to the Director. We conclude that
the referee’s finding is supported by the record and, therefore, is not clearly erroneous.
Moulton does not dispute that he failed on nu merous occasions to directly report to
the Director about his taxes and provide the Director with copies of the required tax returns.
He acknowledges that on many occasions the Director did not receive the reports and
copies of the tax returns as required by the reinstatement order. But Moulton argues that
he complied with his obligations under the reinstatement order by providing the
information and documents to hi s attorney with the expecta tion that his attorney would
forward the information and documents to the Director.
We disagree. Our reinstatement order di rected Moulton to report and provide the
documents to the Director without a request or reminder by the Director. His obligation
was clear. Nothing in our orde r states or suggests that s ubmitting the information to his
attorney fulfilled Moulton’s duty to report information to the Director. Further, the record
does not disclose that Moulton supplied the documents to his attorney every time that he
was obligated to file a return and make a tax payment. The referee did not clearly err by
finding that Moulton knowingly failed in hi s duties under the reinstatement order to

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affirmatively report and provide documents to the Director, in violation of Minn. R. Prof.
Conduct 3.4(c) and 8.1(b), and Rule 25, RLPR.
II.
Before turning to the questi on of discipline, we consid er Moulton’s argument that
he did not receive a fair disc iplinary hearing. Moulton asse rts that his due process rights
were violated when the referee failed to admit certain exhibits offered by Moulton, allowed
a paralegal from the Director’s office to sit at counsel table, limited his opening statement,
and fell asleep during his hearing. An atto rney receives due process in a disciplinary
proceeding if the charges against the attorney are “sufficiently clear and specific” and the
attorney was “afforded an opportunity to anticipate, prepare and present a defense.” In re
Murrin, 821 N.W.2d 195, 206 (Minn. 2012) (c itation omitted) (internal quotation marks
omitted). We also consider whether the atto rney had an opportunity at the hearing to
present evidence of good character and mitigating circumstances. Id. Here, during a day-
long hearing, Moulton presente d an extensive defense. Mou lton offered several exhibits
that were admitted into the record, testified on his own behalf, and called several witnesses.
He was allowed to testify about factors that he believed mitigated the severity of his
misconduct.
The Minnesota Rules of Evidence apply to disciplinary hearings. In re Dedefo, 752
N.W.2d 523, 528 (Minn. 2008). “We will not reverse a referee’s evidentiary rulings absent
an abuse of discretion.” Id.
Moulton first contends that the refe ree improperly denied the admission of
voluminous medical records that predated the misconduct as well as financial documents

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such as Moulton’s individual and corporate tax returns, credit scor es, information on his
child support obligations, and information of pa st clients who had not paid his legal fees.
Under the Rules of Evidence, only relevant ev idence is admissible, Minn. R. Evid. 402,
and even relevant evidence ma y be excluded if its proba tive value is substantially
outweighed by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence, Minn. R. Evid. 403. The medical and financial records were relevant,
if at all, only to Moulton’s claim that his financial and other stresses should be considered
as mitigating factors. The probative value of many of t hose documents is diminished,
however, because the records re late to time periods well be fore the occurrence of the
misconduct at issue in this case or to tax oblig ations that have nothing to do with the
charges before the referee. Further, the me dical and financial records were cumulative
because the referee allowed Moulton to address financial and health stresses and hardships
in his direct testimony. Moulton fails to identify any specific evidence from the financial
or medical records that he was not allowed to bring forth through his testimony and he does
not explain why his personal testimony was insufficient to inform the referee of his claimed
mitigation. See W.G.O. v. Crandall , 640 N.W.2d 344, 349 (M inn. 2002) (noting that
erroneous admission of evidence that is cumulative of ot her admissible evidence is
“harmless and will not warrant a new trial”). The referee di d not abuse her discretion by
excluding Moulton’s financial and medical records.
Moulton next argues that he was denied due process wh en the referee limited his
opening statement. The referee directed Moulton to withhold some of his comments until
his direct testimony. Moulton ultimately tes tified at length during the hearing and was

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allowed to submit briefing afte r the hearing on the appropriate discipline. He does not
identify any information that he was unable to convey due to the referee’s limitation on his
opening statement. Accordingly, the re feree’s decision to limit Moulton’s opening
statement was not an abuse of discretion. See In re Walsh, 872 N.W.2d 741, 745 (Minn.
2015) (recognizing that because disciplinary proceedings are conducted in accordance with
the Rules of Civil Procedure and referees are granted all the powers of a district court judge,
we review procedural decisions for an abuse of discretion).
Moulton also argues that he was denied due process when th e referee allowed a
testifying witness, who was a paralegal with the Director’s office, to sit at the Director’s
counsel table. Moulton does not assert any reason why the placement of the witness at
counsel table affected his right to a fair hearing or impacted his ability to mount a defense
and our review of the record does not find any. We therefore reject this argument.
Lastly, Moulton asserts that the referee fell asleep during his disciplinary hearing.
In support of his position, Moulton submitted the affidavits of three persons who attended
the hearing, including Moulton’ s wife. The witnesses assert that during the hearing the
referee “appeared to be dozing off,” “looked like she was dozing off,” and “appear[ed] to
have fallen asleep,” although the witnesses did not identify when the referee allegedly fell
asleep or which witness testimony she may have missed. Moulton himself did not see the
referee fall asleep and did not object during the hearing.1

1 We acknowledge that Moulton’s view of the referee may have been obstructed
during the time that he was testifying.

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We conclude that Moulton failed to prove that the referee actually fell asleep and
missed testimony, thereby rende ring the hearing unfair. See Chubb v. State , 640 N.E.2d
44, 48 (Ind. 1994) (holding that a trial spec tator’s conclusory affidavit claiming that a
factfinder fell asleep was insufficient to prove the fact of inattentiveness); State v. Kimmel,
448 P.2d 19, 22 (Kan. 1968) (same). Our thorough review of the transcript shows that the
referee was actively involved in the hearing. The referee spoke at least once during the
testimony of every witness who was called. And a review of the transcript suggests that
the longest period of time during which the referee did not speak occurred when the
Director was introducing the documentary evidence that Moulton failed to pay and file his
taxes—evidence available for independent review by the referee. Further, even those who
claim that the referee was doz ing do not suggest that the re feree was inattentive during
Moulton’s testimony. Finally, the refer ee’s findings of fact were detailed and
comprehensive and consistent with the transcri pt. On this record, we find that Moulton
received a fair disciplinary hearing.
III.
We finally consider the appropriate di scipline for Moulton’s misconduct.
“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 retain
“ultimate responsibility for determining appropriate discipline,” In re Montez, 812 N.W.2d
58, 66 (Minn. 2012). We impose discipline to deter future misconduct, both by the attorney
subject to discipline a nd by other attorneys. Albrecht, 845 N.W.2d at 191. When
determining appropriate discipline, “[c]oncepts of fairness dictate that consistency in the

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imposition of sanctions be an important goal,” but we recognize that each case has “its own
unique factual circumstances.” In re Pyles, 421 N.W.2d 321, 325 (Minn. 1988).
In determining the appropriate discipline to impose, we consider: (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. In re Singer, 541 N.W.2d 313, 316 (Minn. 1996). We
also consider similar cases, as well as aggravating and mitigating circumstances specific to
the case. In re Albrecht, 779 N.W.2d 530, 540 (Minn. 2010).
A.
We first consider Moulton’s failure to ti mely file state and federal income tax
returns and his failure to timely file and pa y employee withholding ta xes in violation of
Rule 8.4. These are serious violations. We have previously expressed particular concern
with the failure to pay employer withholdi ng taxes because an attorney “essentially
convert[s] to his own use temporarily money belonging to his employees which he withheld
from paychecks and placed in hi s business checking account.” In re Tyler, 495 N.W.2d
184, 186 (Minn. 1992). Such conduct “is tantamount to taking employees’ money for the
attorney’s own use, breaches the trust esta blished between employ er and employee, and
calls on governmental resource s to enforce compliance with the law by those who are
sworn to uphold it.” In re Gurstel, 540 N.W.2d 838, 842 (Minn. 1995).
As part of our consideration of the natu re of Moulton’s misconduct, we take into
account that Moulton ultimately took responsibility for paying off his tax liability and, with
significant effort, paid past-due taxes on his own accord without intervention from the
Director. See In re Selmer , 749 N.W.2d 30, 37–38 (Minn. 2008) (crediting Selmer for

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making efforts to pay off past-due tax balanc es without prompting by the Director and
noting that his balances were paid off prior to the disciplinary hearing). We also note that
for the one instance when Moulton failed to file a federal and state income tax return—for
Moulton Trucking in 2012—the company owed no taxes. See id. at 40 (failure to timely
file tax returns when no taxes were owed is less serious conduct).
The remaining factors support a finding that Moulton’s misconduct is serious.
Moulton’s failure to file his tax returns and pay his taxes was not a brief lapse in judgment
or a single, isolated incident, but rather occurred episodically over several years. See In re
Bonner, 896 N.W.2d 98, 108 (Minn. 2017) (holding that an attorney’s failure to withhold
employee contributions to an IRA account over the course of 5 months was not a brief
lapse of judgment). Further, Moulton’s conduc t in failing to file his returns and pay his
taxes harmed the public. In particular, misappropriation of employee withholding tax
harms the employees whose contributions were misappropriated by Moulton. See id.
Finally, because Moulton’s violation of tax regula tions is a failure to abide by the rule of
law, his conduct harmed the legal profession. See In re Brost, 850 N.W.2d 699, 704 (Minn.
2014) (stating that misconduct that “undermine[s] the public’s confidence in the ability of
attorneys to abide by the rule of law” harms the legal profession).
B.
Moulton’s other misconduct involves his failure to affirmatively report to the
Director his compliance with tax filing and payment requirements as mandated by the terms
of his probation. This is also a significan t violation. We observe, however, that while
Moulton failed to provide the Director with all of the documents and information required

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without specific reminder or request, as required by our reinstatement order, he cooperated
and provided the information to the Director when subsequently asked. Accordingly, the
nature of Moulton’s misconduct is less serious than a case where a lawyer altogether
refuses to provid e information to the Director. Compare Selmer , 749 N.W.2d at 37
(publicly reprimanding an attorney who failed to comply with the terms of his probation,
which included late responses to the Director, but noting th at the attorney eventually
provided most of the information that the Director requested of him), with In re Danielson,
620 N.W.2d 718, 720–21 (Minn. 2001) (indefinitely suspending an attorney who failed to
provide required documents to the Director and failed to cooperate with the Director in the
investigation of her misconduct, as required by the terms of her probation).
In considering the proper discipline, we further note that Moulton’s failure to report
and provide documents oc curred over several years. In add ition, as a direct violation of
our reinstatement order, Moulton’s failure to report his tax-filing compliance to the
Director in accordance with his probation conditions exhibited a failure to abide by the rule
of law and so harmed the legal profession.
C.
In addition to evaluating these four f actors, we consider both aggravating and
mitigating factors to determine the appropriate discipline. In re Jones, 834 N.W.2d 671,
682 (Minn. 2013) (citing In re Rooney, 709 N.W.2d 263, 268 (Minn. 2006)). The referee
found that Moulton’s disciplinary history, the fact that his misconduct was intentional, his
failure to recognize the wrongful nature of his misconduct, his selfish motivation, and his
lack of remorse were all aggravating factors.

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Moulton’s disciplinary history includes fi ve admonitions and, most critically, a
previous 90-day suspension of his law license for similar tax-related misconduct. In fact,
Moulton was reinstated in June 2010 and failed to pay employer withholding taxes for
Moulton Trucking in July 2010. Because the misconduct here is the same type of conduct
that resulted in his 2006 suspension, and occurred while Moulton was on probation for that
violation, Moulton has failed to show a “renewed commitment” to professional ethics after
being disciplined. See In re Milloy, 571 N.W.2d 39, 45–46 (Minn. 1997). “[S]uch repeated
misconduct will not be tolerated.” Albrecht, 779 N.W.2d at 542.
Our concern about Moulton’s commitmen t to abiding by his professional
obligations is heightened by the referee’s finding that Moulton attempted to minimize the
seriousness of his misconduct and bl amed others for his misconduct. Ulanowski, 800
N.W.2d at 803–04.2 We agree that we should take these findings into consideration when
assessing the appropriate discipline in this case, particularly regarding whether we should
require Moulton to petition for reinstat ement under Rule 18(a)–(d), RLPR. See In re
Dedefo, 781 N.W.2d 1, 8 (Minn. 2010) (a lawyer petitioning for reinstatement must
demonstrate he has “undergone such a moral ch ange as now to render him a fit person to
enjoy the public confidence and trust once forfeited”).

2 The referee found Moulton’s minimizati on of misconduct and finger-pointing to be
evidence of both a failure to acknowledge wron gful conduct and lack of remorse, both of
which may be aggravating factors. We will not doubly weigh the underlying aggravating
conduct simply because it may fit into two separate aggravating factor categories. See In
re MacDonald, 906 N.W.2d 238, 249 (Minn. 2018).

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We also consider Moulton’s selfish motiv ation and the intentional nature of his
misconduct in assessing the appropriate discip line. The referee found the Moulton acted
with a selfish motive because he took mone y that he should have used to pay his
employees’ share of withholding taxes to cover his own business and personal obligations.
See Brost, 850 N.W.2d at 705 (holding that mi sconduct committed for a selfish motive,
such as permanently misappropriating money for personal use, may be an aggravating
factor). The referee also found Moulton’s intentional failure to pay his withholding taxes
(as opposed to an inadvertent mistake) to be an aggravating factor. Each aggravating
factor, however, weighs less heavily on the sc ales because Moulton ultimately paid those
withholding taxes.3
When considering appropriate discipline for lawyer misconduct, we may also
consider mitigating factors. Moulton unsuccessfully urged the referee to consider as
mitigation a number of reasons that impacted his ability to pay his taxes in a timely manner,
including a loss of income due to his prev ious disciplinary susp ension, child support
obligations, and client bankrupt cies that left him unpaid for certain legal services he had
provided, as well as health issues and a car accident.
The referee did not clearly err by refusing to consider Moulton’s other financial
obligations as mitigation. We have considered severe financial distress to be a mitigating

3 The purposeful nature of Moulton’s in tentional failure to report and provide
documents to the Director is not an aggrava ting factor because Moulton’s violations of
Rule 3.4(c) and Rule 8.1(b) require proof of intent. See In re Sea, 932 N.W.2d 28, 37–38
(Minn. 2019) (noting that when the rules of professional conduct at issue require proof of
intent, it is “double count[ing]” to include intentionality as an aggravating factor).

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factor, see, e.g., Selmer, 749 N.W.2d at 40, but also have held that financial stress must in
some circumstances be coupled with some ot her type of extreme stress to constitute
mitigation in cases of misappropriation, Bonner, 896 N.W.2d at 112. Moulton points to
the stress he suffered as a re sult of his ongoing health prob lems. We conclude that the
referee did not clearly err by refusing to find Moulton’s financial and other stress a
mitigating factor here. Moulton’s health problems started well before the specific
misconduct in this case occurred and, when he was reinstated in 2010, his physician stated
that his health problems would not interfere with his ability to practice law. Moreover, we
are taking into account Moulton’s ultimately successful efforts to unbury himself from his
massive tax debt as part of our consideration of the seriousness of the nature of Moulton’s
misconduct.
D.
We last turn to other cases to de termine the appropriate discipline. In re Nathanson,
812 N.W.2d 70, 80 (Minn. 2012) (holding that we consider similar cases to “ensure that
[the] disciplinary decision is consiste nt with prior sanctions”). We find In re Jones, 383
N.W.2d 686, 688–89 (Minn. 1986), and Selmer, 749 N.W.2d at 40–41, to be apt
comparisons.
In Jones, we imposed a 90-day suspension becau se an attorney’s misconduct
included a failure to file and pa y individual taxes and failure to report to the Director as
required by the terms of his probation. 383 N.W.2d at 688–89. In Selmer, we imposed a
public reprimand and one year of unsupervised probation when an attorney failed to pay a
Wisconsin disciplinary judgment, failed to abid e by terms of his probation that were in

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effect when the misconduct occurred, failed to timely file income tax returns, and failed to
affirmatively report information to the Director. 749 N.W.2d at 40–41. But in contrast to
this case, the attorney in Selmer paid all taxes owing when due; he simply failed to file the
corresponding return. Id. at 38–39 . Further, we have held that failure to pay and file
withholding income taxe s is more serious than failure to file an individual income tax
return. Tyler, 495 N.W.2d at 186 (observing that failing to pay withholding taxes converted
money belonging to the lawyer’s employees to lawyer’s own use).
Based on all of these factors and cons iderations, we conc lude that a 90-day
suspension with a requ irement that Moulton must petitio n for reinstatement under Rule
18(a)–(d), RLPR, is appropriate disciplin e for Moulton’s misconduct. There are
“exceptional circumstances” that support a requirement to petition for reinstatement. In re
Eichhorn-Hicks, 916 N.W.2d 32, 41 (Mi nn. 2018) (stating that when an attorney is
suspended for 90 days or less, “it is only under exceptional circumstances that the attorney
is required to petition for reinstatement”). When we suspend an attorney for a disciplinary
violation and reinstate the attorney to the practice of law, we expect that the attorney will
follow the terms of his or her reinstatement order, will comply with the Director, will not
repeat the same misc onduct upon reinstatement and w ill take responsibility for such
misconduct if it occurs. See In re Hansen, 868 N.W.2d 55, 61 (Minn. 2015) (suspending
attorney for 90 days and requiring him to petition for reinstatement because he “repeatedly
failed to live up to [the] obligation” of an attorney who was on a disciplinary probation
after being suspended and reinstated).

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Accordingly, we order that:
1. Respondent Daniel J. Moulton is indefinitely suspended from the practice of
law, effective 14 days from the date of this opinion, with no right to petition for
reinstatement for 90 days.
2. Respondent shall pay $900 in costs, pursuant to Rule 24(a), RLPR, and
comply with the requirements of Rule 26, RLPR (requiring notice of suspension to clients,
opposing counsel, and tribunals).
3. If respondent seeks reinstatement, he must comply with the requirements of
Rule 18(a)–(d), RLPR. Reinst atement is conditioned on su ccessful completion of the
written examination required for admission to the practice of law by the State Board of
Law Examiners on the subject of professional responsibility, see Rule 18(e)(2), RLPR; and
satisfaction of continuing legal education requirements, see Rule 18(e)(4), RLPR.
Suspended.