In re Petition for Disciplinary Action against Richard Edward Bosse, a Minnesota Attorney, Registration No. 0245501.

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STATE OF MINNESOTA

IN SUPREME COURT

A19-0595

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

In re Petition for Disciplinary Action
against Richard Edward Bosse, a Minnesota
Attorney, Registration No. 0245501.

Filed: October 28, 2020
Office of Appellate Courts

________________________

Susan M. Humiston, Director, Binh T. Tuong, Assistant Director, Office of Lawyers
Professional Responsibility, Saint Paul, Minnesota, for petitioner.

Steven R. Sunde, Saint James, Minnesota, for respondent; and

Richard E. Bosse, Henning, Minnesota, pro se.
________________________
S Y L L A B U S
1. The record supports the referee’s findi ngs of fact and conclusions that
respondent violated the Minnesota Rules of Professional Conduct.
2. A 60-day suspension is the appropriate discipline for respondent after he
failed to diligently represent and properly communicate with clients, entered into improper
flat fee and availability fee agreements with clients, failed to safeguard the funds of clients,
dishonestly entered into fee agreements with a client and then unreasonably charged that
client for the same services under multiple fee agreements, failed to refund unearned fees
to a client, and knowingly made a false statement to a client.
Suspended.

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O P I N I O N
PER CURIAM.
We appointed a referee after the Director of the Office of Lawyers Professional
Responsibility filed a petition for disciplinar y action against responde nt Richard Edward
Bosse. After a hearing, the referee dete rmined that Bosse committed professional
misconduct during his representation of two c lients, T.H. and D. H. The misconduct
included failing to diligently represent and properly comm unicate with both clients,
entering into improper flat fee and availability fee agreements with both clients, failing to
safeguard the funds of both clients, dishonestly entering into fee agreements with T.H. and
unreasonably charging him for the same services under multiple fee agreements, failing to
refund unearned fees to T.H., and knowingly making a false statement to D.H. The referee
recommended a 4-month suspension. Bosse cha llenges the referee’s findings of fact and
conclusions, arguing that the recommended suspension is excessive. We conclude that the
referee did not clearly err and that the appr opriate discipline for Bo sse’s misconduct is a
60-day suspension.
FACTS
Bosse was admitted to practice law in Mi nnesota in 1994, and was previously
admitted to practice law in Florida in 1972. Bosse has practiced law for over 45 years,
mostly in the medical malpractice field. Pr ior to the present misc onduct, he received an
admonition in 1997 and a public reprimand in 2000. In re Bosse, 607 N.W.2d 448, 448–
49 (Minn. 2000) (order).
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The Director filed a petition for discip linary action against Bosse, alleging that
Bosse committed professional misconduct during his representation of T.H. and D.H. As
to T.H., the Director asserted that Bosse entered into improper fee agreements, dishonestly
entered into and failed to fulfill his obligati ons under two of thos e agreements, charged
unreasonable fees, failed to communicate with and diligently represent T.H., failed to place
T.H.’s funds in trust, failed to return un earned fees, and improperly charged for copying
the file. As to D.H., the Director similarl y alleged that Bosse failed to communicate and
provide diligent representation, entered into an improper flat fee agreement, failed to place
client funds in trust, and made a false statement to D.H. about his matter.
Bosse’s Representation of T.H.
On December 30, 2010, T.H. ha d coronary artery bypass surgery. Following the
surgery, T.H. suffered complications. In May 2013, he consulted with Bosse about a
potential medical malpractice claim. Four months later, in September 2013, T.H. and
Bosse moved forward with the case. Over the next 2 ye ars, T.H. signed three fee
agreements with Bosse: (1) the Flat Fee Agreement, (2) the Availability Fee Contract for
Pre-Suit Mediation of Potential Malpractice Claim (Availability Agreement), and (3) the
Hourly Retainer/Contingency Fee contract (Hourly Agreement).
During those 2 years, Bosse did not respond to reasonable requests from T.H. for
updates on the status of his case. T.H. explained that, although he requested an update on
his case in December 2013, he did not speak with Bosse until March 6, 2014. He also
requested updates by sending four emails to Bosse from April 2 through June 2, 2014; none
were answered. T.H. also affirmed that Bosse never provided “any communication about
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legal research,” discussions with necessary witnesses, or a “recommendation as to the
potential cause of action.”
Despite the communication issues, Bosse prepared and served the summons and
complaint on December 23, 2014, just before the statute of limitations expired on
December 31, 2014. T.H. terminated the representation on Febr uary 20, 2015, for
“[u]nreasonable charges for services rendered.” Bosse then sent T.H. a copy of the client
file. T.H. was unable to find another attorney to take his case; in the end, and after paying
Bosse more than $50,000 for legal fees and expenses, T.H. agreed to dismiss the litigation.
Bosse’s Representation of D.H.
On April 12, 2015, D.H. entered into a Flat Fee Agreement with Bosse for
representation on a medical malpractice claim. D.H. contacted Bosse’s office “probably
half a dozen times” to request a case status update. Although he left messages asking that
someone return his calls, no one ever did.
In July 2016, Bosse finally left a message on D.H.’s answering machine. After that
message, D.H. had no further communication with Bosse.
Over a year later, prompted by the Directo r’s investigation, D.H. received his file
from Bosse. The file included an opinion from an expert that no medical malpractice
occurred. Bosse admits that he never sent a copy of the expert opinion to D.H. With about
6 months remaining before th e statute of limitations expi red, D.H. contacted other
attorneys, but none were willing to represent him in the medical malpractice litigation.
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Disciplinary Hearing
Leading up to a disciplinary hearing, the Director retained an expert witness to
testify about Bosse’s handling of the T.H. matter (but not Bosse’s representation of D.H.).
The expert prepared a report, concluding that Bosse violated many of the Minnesota Rules
of Professional Conduct.
The expert testified at the hearing. At one point, the Director asked the expert
whether Bosse had fulfilled his obligation unde r a specific paragraph of the Flat Fee
Agreement that required Bosse to gather documents. Bosse objected “to foundation”
because the expert had “testified he has not seen all the medical re cords in Mr. Bosse’s
file.” Because the referee required the Direct or to lay additional foundation, the Director
asked the expert additional questions to establis h foundation. The expert testified that he
relied on “all the documents that were in [T.H.’s] file,” which included Bosse’s letters. The
expert explained that his conclusion as to whether Bosse had “gathered all the documents
necessary to complete this part of the agreement” was based on Bosse’s admissions in his
“own correspondence” that “he still didn’t have all the medi cal records that he needed in
order to evaluate the case” at the time he en tered into the Availability Agreement. The
referee overruled the objection.
Following the hearing, the referee found that Bosse committed multiple acts of
professional misconduct, including the followi ng: Bosse entered into improper Flat Fee
Agreements with both clients, an improper Availability Agreement with T.H., and failed
to deposit fees related to these agreements into trust, in violation of Minn. R. Prof. Conduct
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1.2(a),1 1.2(c),2 1.5(b)(2),3 1.5(b)(3),4 and 1.15(c)(5).5 T.H.’s Availability Agreement and
Hourly Agreement were unreasonable, and Bo sse engaged in deceptive conduct with
respect to those agreements by charging for services that he should have performed under
prior agreements, in violation of Minn. R. Prof. Conduct 1.5(a),6 8.4(c), and 8.4(d).7 Bosse
failed to perform services under the Flat F ee Agreement and the Av ailability Agreement
and failed to return unearned fees to T.H., in violation of Minn. R. Prof. Conduct 1.5(b)8

1 “A lawyer shall abide by a client’s deci sion whether to settle a matter.” Minn. R.
Prof. Conduct 1.2(a).

2 “A lawyer may limit the scope of repres entation if the limitation is reasonable under
the circumstances and the client gives informed consent.” Minn. R. Prof. Conduct. 1.2(c).

3 “A lawyer may charge a fee to ensure th e lawyer’s availability to the client during
a specified period or on a specified matter in addition to and apart from any compensation
for legal services performed. . . . The writing shall clearly state that the fee is for availability
only and that fees for legal se rvices will be charged separately.” Minn. R. Prof. Conduct
1.5(b)(2).

4 “Fee agreements may not describe any f ee as nonrefundable or earned upon receipt
but may describe the advance fee payment as the lawyer’s property subject to refund.”
Minn. R. Prof. Conduct 1.5(c)(3).

5 “[E]xcept as specified in Rule 1.5(b)(1) and (2),” a la wyer shall “deposit all fees
received in advance of the legal services being performed into a trust account and withdraw
the fees as earned.” Minn. R. Prof. Conduct 1.15(c)(5).

6 “A lawyer shall not make an agreement for, charge, or collect an unreasonable
fee . . . .” Minn. R. Prof. Conduct 1.5(a).

7 “It is professional misconduct for a lawy er to . . . engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation . . . [or] engage in conduct that is prejudicial
to the administration of justice . . . .” Minn. R. Prof. Conduct 8.4(c)–(d).

8 “Whenever a client has paid a flat fe e or an availability fee pursuant to Rule
1.5(b)(1) or (2) and the lawye r-client relationship is terminat ed before the fee is fully
earned, the lawyer shall refund to the client the unearned portion of the fee.” Minn. R.
Prof. Conduct 1.5(b)(3).
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and 1.16(d). 9 I n a m e s s a g e t h a t B o s s e l e f t o n D.H.’s answering machine, Bosse was
dishonest with D.H. about hi s matter, in violation of Minn. R. Prof. Conduct 4.1 10 and
8.4(c). Finally, Bosse failed to diligently represent and properly communicate with D.H.
and T.H, in violation of Minn. R. Prof. Conduct 1.3,11 1.4(a),12 and 1.4(b).13
After making these findings, the referee concluded that our case law did not directly
address the appropriate discipline for Bosse’s misconduct. The referee determined that the
appropriate discipline was a suspension within the range of 60 days to 1 year. The referee
recommended a 4-month suspension.
Bosse challenges the referee’s findings of fact and conclusions, arguing that the
recommended suspension is excessive.

9 “Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client’s in terests, such as . . . refunding any advance
payment of fees or expenses that has not been earned or incurred.” Minn. R. Prof. Conduct
1.16(d).

10 “In the course of representing a client a lawyer shall not knowingly make a false
statement of fact or law.” Minn. R. Prof. Conduct 4.1.

11 “A lawyer shall act with reasonable diligence and promptness in representing a
client.” Minn. R. Prof. Conduct 1.3.

12 “A lawyer shall: (1) pr omptly inform the client of any decision or circumstance
with respect to which the clie nt’s informed consent . . . is required . . . (2) reasonably
consult with the client . . . (3) keep the clie nt reasonably informed about the status of the
matter” and “(4) promptly co mply with reasonable requests for information.” Minn. R.
Prof. Conduct 1.4(a)(1)–(4).

13 “A lawyer shall explai n the matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation.” Minn. R. Prof. Conduct
1.4(b).
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ANALYSIS
We begin by reviewing the referee’s findings of fact and conclusions for clear error.
See In re Varriano, 755 N.W.2d 282, 288 (Minn. 2008). When we agree with the referee’s
findings and conclusions, then we dete rmine the appropriate discipline. See In re
Nathanson, 812 N.W.2d 70, 78 (Minn. 2012).
I.
The Director bears the burden of proving misconduct by clear and convincing
evidence. Varriano, 755 N.W.2d at 288. This standard requires a high probability that the
facts are true. In re Houge, 764 N.W.2d 328, 334 (Minn. 2009).
Because Bosse ordered a transcript, the re feree’s findings of fact and conclusions
are not conclusive. See Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR);
In re Ryerson, 760 N.W.2d 893, 901 (Minn. 2009). We give “great deference to a referee’s
findings and will not reverse those findings unle ss clearly erroneous, especially in cases
where the referee’s findings rest on disputed testimony or in part on respondent’s
credibility, demeanor, or sincerity.” In re Wentzell, 656 N.W.2d 402, 405 (Minn. 2003).
We review a challenge to a referee’s legal interpretation of the Rules of Professional
Conduct de novo. In re Aitken, 787 N.W.2d 152, 158 (Minn. 2010).
Bosse challenges the referee’s findings a nd conclusions, making four arguments.
First, he argues that any finding or conclusi on based on the Directo r’s expert witness is
clearly erroneous because the expert’s testimony lacked foundational reliability. Second,
he asserts that the fee agreements with T.H. comply with the Rules of Professional Conduct
and that he performed all of the services required by those agreements. Third, in the D.H.
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matter, he challenges the referee’s finding that he was dishonest in an answering-machine
message, claiming that the absence of that message prevents the Director from meeting her
burden of proof. Lastly, he asserts that he diligently represented and properly
communicated with each client. Bosse’s arguments are unavailing.
A.
Bosse argues that the referee clearly erred by relying on any opinion testimony from
the Director’s expert witness because the ex pert’s opinion lacked foundational reliability.
Bosse bases his foundational-reliability claim on the expert’s failure to review Bosse’s
entire file in the T.H. matter. The Direct or argues that Bosse forfeited this argument
because he did not make it before the referee.
“The Minnesota Rules of Evidence apply to disciplinary hearings.” In re Moulton,
945 N.W.2d 401, 406 (Minn. 2020). Under those rules, “we will not consider a challenge
to the admission of evidence ‘unless . . . a timely objection or motion to strike appears of
record, stating the specific ground of objection, if the specific ground was not apparent
from the context.’ ” State v. Rossberg, 851 N.W.2d 609, 617–18 (Minn. 2014) (emphasis
added) (quoting Minn. R. Evid. 103(a)(1)). “A party is not on ly bound to ma ke specific
objections at the time the evidence is offered, but he is also limit ed on appeal to the
objections he raised below.” Becker Cnty. Nat’l Bank v. Davis, 284 N.W. 789, 792 (Minn.
1939) (citation omitted) (internal quotation marks omitted); see also Rossberg, 851 N.W.2d
at 617–18 (concluding that defendant’s objection based on hearsay did not preserve claim
on appeal that admission of evidence violated the Confrontation Clause).
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At the hearing before the referee, Bosse objected to the expert’s testimony based on
a lack of foundation; he argued that, because the expert had not reviewed all of the medical
records, the expert’s opinion that Bosse had fa iled to comply with a specific paragraph in
the Flat Fee Agreement requiring Bosse to gather documents lacked foundation. Bosse is
improperly attempting to expand his foundati on objection before us by arguing that the
expert’s opinion testimony in its entirety lacked foundation beca use the expert did not
review Bosse’s entire file. But because Bosse failed to raise the argument that all of the
expert’s opinion testimony lacked foundational reliability before the referee, see Becker
Cnty. Nat’l Bank , 284 N.W. at 792, we will consider only the foundation objection that
Bosse made before the referee.14
Expert opinion testimony “mus t have foundational reliability.” Minn. R. Evid. 702.
“[A]n essential element of relia bility” is “expert familiarity with the facts of a case.”
Kedrowski v. Lycoming Engines , 933 N.W.2d 45, 56 (Minn. 2019) (citation omitted)
(internal quotation marks omitted). An expe rt’s opinion needs to rely only on “enough
facts to form a reasonable opinion that is not based on speculation or conjecture.” Gianotti
v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802 (Minn. 2017). A referee’s ruling on whether
there was adequate foundation for an expert’s opinion rests “within the discretion of” the

14 Although Bosse failed to preserve his ar gument related to the Director’s expert
failing to review all of Bosse’s file in the T.H. matter, we find the handling of this matter
by the Director’s office concerning. The inves tigation lasted about 3 years. In addition,
counsel for the Director’s office failed to review all of the records from Bosse’s file in the
T.H. matter and to make them available fo r review by her expert, despite repeated
communications from Bosse regarding the size of his file and at least one attempt by
Bosse’s counsel to provide the Director’s office with a complete copy of the file.

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referee, “subject to review for abuse of discretion.” Id.; see also In re Walsh, 872 N.W.2d
741, 745 (Minn. 2015) (stating that a referee’ s “evidentiary rulings” are reviewed “for an
abuse of discretion”).
Here, the expert explained that he relie d on Bosse’s admissions in letters Bosse
wrote to form his opinion that Bosse had not gathered all of the relevant documents for
T.H.’s medical malpractice claim to fulfill his obligation under the Flat Fee Agreement.
This was clearly “enough facts to form a reasonable opinion that is not based on speculation
or conjecture” about whether Bosse had complie d with this paragraph of the Flat Fee
Agreement. See Gianotti, 889 N.W.2d at 802. The refe ree did not abuse his discretion
when he concluded that there was adequate foundation for the expert’s opinion.
B.
Bosse challenges the referee’ s findings with respect to his fee agreements with
T.H.15 Bosse entered into three fee agreements with T.H.: a Flat Fee Agreement, an
Availability Agreement, and an Hourly Agreement. All three, in various ways, failed to
comply with the Rules of Prof essional Conduct, and Bosse failed to perform some of the
required services under each agreement. We address each agreement in turn.
1.
Bosse’s Flat Fee Agreement violated Rule 1.5(b)(1) and (3). An attorney may
charge a flat fee “for specified legal services.” Minn. R. Prof. Conduct 1.5(b)(1). A written
flat fee agreement must inform a client that “the client has the right to terminate the client-

15 Bosse has not challenged the referee’s findings or conc lusions regarding his Flat
Fee Agreement with D.H.
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lawyer relationship.” Minn. R. Prof. Conduct 1.5(b)(1)(iv). And a flat fee agreement “may
not describe any fee as nonrefundable.” Minn. R. Prof. Conduct 1.5(b)(3). Here, the Flat
Fee Agreement violates Rule 1.5(b)(1) and (3 ) because it states that the “flat fee is non-
refundable” and it does not inform T.H. of his right to terminate the client-lawyer
relationship.
Bosse also did not complete all of the legal services required under the Flat Fee
Agreement. The Flat Fee Agreement required Bosse to gather and review all necessary
documents, discuss those documents with nece ssary witnesses, perform legal research,
have preliminary discussions with experts, and provide a recommendation on the potential
cause of action to T.H.
The referee found that Bosse failed to perform some of those services. For example,
the referee found that Bosse never provided T.H. with a recommendation as to the potential
cause of action. The referee was presented with conflicting testimony about whether Bosse
told T.H. that his case was “no good.” Critically, there is no copy of correspondence from
Bosse declining to represent T.H. or concluding that the claim would not survive summary
judgment, even though Bosse claims that he put hi s recommendation in writing after a
March 6 telephone call with T.H. When the referee requested that writing, Bosse replied,
“I can’t put my hands on it.” In finding th at Bosse never provided a recommendation to
T.H., the referee made a credibility finding in favor of T.H. and against Bosse, and without
clear error, we uphold that credibility determination. See Wentzell, 656 N.W.2d at 405.16

16 Some of Bosse’s testimony supports, rather than undercuts, the referee’s finding.
For example, when explaining that he reviewed all of the documents, Bosse testified that
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2.
We turn next to the Availability Agreement. Both Bosse’s testimony and the plain
language of the agreement establish that it was not a proper “availability fee” under Rule
1.5(b)(2).
Our rules require that an agreement for an availability fee have two critical features,
neither of which was present in Bosse’s Ava ilability Agreement. Fi rst, an availability
agreement must clearly state that the availability fee is for availability only. Minn. R. Prof.
Conduct 1.5(b)(2) (“The writing shall clearl y state that the fee is for availability
only . . . .”). Here, Bosse’s Availability Agreement does not contain any language limiting
the availability fee to ensuring his availability. Instead, it states that the availability fee is
“to be available to investigate and prepare [T.H.’s] claim for pre-suit mediation.”
(Emphasis added.) It then clarifies that “investigating and pre-suit services” means
obtaining an expert report or affidavit, calc ulating damages, researching for the pre-suit
demand letter, establishing pr e-suit mediation, and exec uting pre-suit settlement
documents. Finally, the agreement provides that the “availability fee shall include the cost
of the expert for such investigation and pre-suit mediation.” In plain terms, the availability
fee is for much more than “availability only.” Id.
Second, our rules require that an availab ility agreement provide that any fees for
other legal services be charged separately. Id. (“The writing shall clearly state . . . that fees
for legal services will be charged separately .”). This language is absent from Bosse’s

he received 788 pages of medical records in July 2014, which is contrary to his claim that
he reviewed all of the records by March 6, 2014.
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Availability Agreement; in fact, that agreement provides that Bosse will perform specific
legal services and prepare the client’s claim for pre-suit mediation.
It is not clear that either Bosse or the c lient understood what an availability fee is
for under our rules. 17 Generally, an availability fee serv es three main purposes: (1) it
“ensures a lawyer’s ava ilability during a given period of time, or for a specified case or
matter”; (2) it “place[s] the client’s work atop the lawyer’s list of priorities; or (3) it “bind[s]
a lawyer or law firm to represent [the clie nt] while simultaneously foreclosing the lawyer
or law firm from representing an adversar y or competitor.” D ouglas R. Richmond,
Understanding Retainers and Flat Fees , 34 J. Legal Prof. 113, 114-15 (2009). Each of
these purposes “immediately benefits a client.” Id. at 115. But the availability fee is not a
lawyer’s entire compensation; “[i]f the lawye r’s services are actually needed, . . . the
lawyer will charge the client for those efforts in addition” to the availability fee. Id. And
“lawyers should not characteriz e or conceive [availability fees ] as either fee advances or
as prepayment for future legal services because they are neither.” Id.
Bosse’s description of the Availability Agreement suggests that he intended to form
a special retainer agreement rath er than an availability agreem ent. A special retainer “is
money paid to an attorney in advance of performing a specific service.” Iowa Sup. Ct. Bd.
of Pro. Ethics & Conduct v. Frerichs , 671 N.W.2d 470, 476 (Iowa 2003). Our rules
recognize two types of special retainers: “a flat fee for specified legal services,” see Minn.
R. Prof. Conduct 1.5(b)(1), or a fee advanced to a lawyer that the lawy er deposits into “a

17 In the classic sense, an availability fee is also known as a general retainer. Douglas
R. Richmond, Understanding Retainers and Flat Fees, 34 J. Legal Prof. 113, 114 (2009).
15
trust account and withdraw[s] . . . as earned,” see Minn. R. Prof. Conduct 1.15(c)(5). Flat
fees “benefit the client by establishing before representation the maximum amount of fees
that the client must pay,” which removes the uncertainty associated with “escalating hourly
fees that may exceed the client’s ability to pay.” In re Sather, 3 P.3d 403, 411 (Colo. 2000).
Here, Bosse explained that T.H. declined to move forward under an hourly rate because
T.H. wanted to “know exactly what it was going to cost to do the pre-suit litigation.” This
reasoning aligns with the purpose of a flat fee rather than an availability fee—Bosse was
to perform pre-suit mediation, a specific serv ice, and T.H. had the assurance of knowing
the total cost for that legal service.18 See Frerichs, 671 N.W.2d at 476.
3.
Lastly, and perhaps most critically, Bosse ’s Hourly Agreement was unreasonable.
Although Bosse correctly notes that none of the other agreements governed the
“preparation of summons, complaint or affida vit of attorney,” his argument misses the
point.
Bosse fails to appreciate why the referee found that the Hourly Agreement was
unreasonable. The referee found that the Hourly Agreement was unreasonable because of
how little work Bosse had actually done but for which he had al ready been paid when he

18 Bosse also argues that this was a proper availability fee because (1) the contingency
fee, which was also a part of the Availability Agreement, was for the legal services, and
(2) he performed $30,000 worth of work. We are not persuaded. Bosse’s contingency fee
argument fails because the Availability Agreement explicitly states that the availability fee
is for specific legal services and includes the cost of the expert. And Bosse’s argument
that he performed $30,000 worth of work also fails because it is an admission that the fee
was compensation for legal services and not for availability and thus an admission that the
Availability Agreement violated Rule 1.5(b)(2).
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entered into that agreement: “Bosse had failed to obtain a medical expert report and/or
affidavit on the standard of care or causation; there was no calculati on of damages[,] . . .
no research setting forth the medical doctors[’] theories of negligen ce[,] . . . [and] no
identification of or contact with insurance companies . . . .” Because Bosse had not
performed those services as required by th e other agreements, th e Hourly Agreement
allowed him to charge T.H. a second or third time for services that he had already agreed
to perform and had already been paid to perf orm. Put more simply, it is unreasonable to
charge a client multiple times for the same services. Bosse fails to appreciate this
distinction, and his argument is unpersuasive.
C.
Next, Bosse argues that the absence of an answering-machine message prevents the
Director from meeting her burden of proof. Bosse argues that the referee clearly erred by
concluding that, in an answer ing-machine message, he dishones tly told D.H. that he had
sent D.H.’s medical records to a medical expert on a certain date, when in fact he had not
done so. He asserts that this was error because the Director had not presented “the tape on
the answering machine displaying [Bosse]’s dishonesty.” We disagree.
This was a credibility determin ation for the referee. At the hearing, D.H. testified
that Bosse left a message on his answering ma chine. Although Bosse now claims that he
has no record of this telephone call or message, at the hearing he testified that his records
confirm that he called D.H. and “got a voice mail and got no response.” Bosse also recalled
leaving a message. Essentially , the referee concluded that D.H. was more credible, a
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determination entitled to deference. See Wentzell, 656 N.W.2d at 405. Accordingly, the
referee did not clearly err.
D.
Finally, Bosse failed to diligently repres ent and properly co mmunicate with both
T.H. and D.H. As explained earlier, the referee did not clearly err by concluding that Bosse
failed to represent T.H. diligently.
As to his communication with T.H., the re feree did not clearly err by concluding
that Bosse failed to inform and properly comm unicate with T.H. At the hearing, T.H.
explained that Bosse was not responsive and failed to provide meaningful updates on his
case. For example, T.H. testified that he requested an update on his case in December 2013
but that he did not speak with Bosse until March 6, 2014. Similarly, from April 2 through
June 2, 2014, T.H. sent four emails to Bosse requesting updates, which went unanswered.
T.H. also testified that Bosse failed to provide a meaningful update on his case and never
informed him of the results of his work under either th e Flat Fee Agreement or the
Availability Agreement. This evidence is sufficient to esta blish that the referee did not
clearly err by finding that Bosse violated Rule 1.4.
As to D.H., the referee did not clearly err by concluding that Bosse failed to inform
and diligently represent D.H. Bosse admits that he did not inform D.H. about the medical
expert’s opinion, establishing a violation of Rule 1.4(a)(3) (“ A lawyer shall . . . keep the
client reasonably informed about the status of the matter[.]”). Si milarly, Bosse never
terminated his representation but stopped working on the case and thus did not diligently
18
represent D.H. See Minn. R. Prof. Conduct 1.3 (“A lawy er shall act with . . . promptness
in representing a client.”).
Moreover, the referee was justified in finding that Bosse failed to “promptly comply
with reasonable requests for information[.]” See Minn. R. Prof. Conduct 1.4(a)(4). At the
hearing, D.H. testified that, although he contacted Bosse’ s office on multiple occasions
requesting an update on his case, “no one ever called” him. Bosse claims that his records
reflect many telephone conferen ces between D.H. and himself or his office. But D.H.
testified that Bosse’s claims were “[a]bsolutely not true.” Again, in reaching his decision,
the referee found D.H. to be more credible than Bosse.
We therefore conclude that the referee did not clearly err in the findings of fact or
conclusions that Bosse violat ed various rules of professi onal conduct, and Bosse has not
shown any clear error by the referee.
II.
We next turn to the appropriate discipline for Bosse. The referee recommends, and
the Director agrees, that we indefinitely suspend Bosse for 4 months. Bosse argues that a
suspension would be excessive. We conclude that a 60-day suspension is the appropriate
discipline for Bosse.
The purpose of attorney discipline “is not to punish the attorney but rather to protect
the public, to protect the judicial system, and to deter future misconduct by the disciplined
attorney as well as by other attorneys.” In re Rebeau, 787 N.W.2d 168, 173 (Minn. 2010).
Although we “place great weight on the refe ree’s recommended discipline,” we “retain
ultimate responsibility for determining the appropriate sanction.” Id.
19
To determine the appropriate discipline wa rranted for an attorn ey’s conduct, we
consider (1) the nature of the misconduct, (2) the cumulative weight of the violation, (3) the
harm to the public, and (4) the harm to the legal profession. Nathanson, 812 N.W.2d at 79.
We also consider any mitigating or aggravating circumstances. In re Perez, 688 N.W.2d
562, 567 (Minn. 2004).
A.
We first consider the nature of Bosse’s misconduct. The referee concluded that
Bosse’s “misconduct is very serious,” finding that Bosse violated multiple rules governing
fee agreements, diligence, communication, and honesty. With respec t to honesty, Bosse
dishonestly entered into fee agreements w ith T.H., charged unreasonable and deceptive
fees to T.H. for services he should have performed under prior fee agreements, and made
a knowingly false statement to D.H. about his matter. We ha ve long said that “[h]onesty
and integrity are chief among the virtues the pub lic has a right to expect of lawyers” and
that “breach of that trust is misconduct of the highest order.” In re Ruffenach, 486 N.W.2d
387, 391 (Minn. 1992). Bosse’s lack of diligence and failure to communicate also
“warrant[] severe discipline.” In re Taplin , 837 N.W.2d 306, 312 (Minn. 2013). We
therefore agree with the referee that Bosse’s misconduct is serious.
B.
We also consider the cumulative weight and severity of multiple disciplinary
violations. Nathanson, 812 N.W.2d at 79. We distin guish between “a single isolated
incident” and “multiple instances . . . occu rring over a substantial amount of time.” In re
Fairbairn, 802 N.W.2d 734, 743 (Minn. 2011) (citation omitted) (internal quotation marks
20
omitted). Because Bosse’s miscondu ct involved multiple attorney-client agreements and
significant failures in communication with tw o clients, which occurred over a significant
period, the misconduct is more than a brief lapse of judgment.
C.
Next, we must determine whether, and to what extent, Bosse’s misconduct harmed
the public or the legal profession. When assessing the harm to the public, we consider the
number of clients harmed and the extent of the clients’ injuries. In re Rambow, 874 N.W.2d
773, 779 (Minn. 2016). Here, the referee concluded that Bosse’s conduct harmed T.H. and
the legal profession. Specifically, the refere e concluded that T.H. was harmed because,
given Bosse’s misconduct, T.H. “had no choice but to dismiss the case.” The referee also
properly found that Bosse’s unreasonable fees and dishonesty reflec t poorly on the legal
profession and undermine the public’s trust in lawyers. See In re Bonner, 896 N.W.2d 98,
108 (Minn. 2017) (concluding that attorney ’s misconduct involving dishonesty harmed
“the legal profession by undermining the public confidence in the honesty and integrity of
lawyers”); In re Geiger , 621 N.W.2d 16, 24 (Minn. 2001 ) (concluding that attorney’s
misconduct, including charging unr easonable fees, “subjects th e profession to severe
scrutiny and criticism and contributes to the pub lic’s general mistrust of attorneys”). We
agree that Bosse’s misconduct caused harm to the public and the legal profession.
D.
We also consider aggravating and mitigating factors. In re Tigue, 900 N.W.2d 424,
431 (Minn. 2017). Here, the referee found three aggravating factors and no mitigating
factors. Bosse does not challenge these findings.
21
The referee found that Bosse’s disciplinary history was an aggravating factor. Prior
disciplinary history is an aggravating factor that weighs heavily when it involved similar
misconduct. In re Hulstrand , 910 N.W.2d 436, 444 (Minn. 2018). Some of Bosse’s
conduct here is similar to hi s past misconduct. For exampl e, in 1997, Bosse received an
admonition, in part, for entering into a nonrefundable fee agreement without informing the
client of her right to terminate the relationship or that the funds would not be held in trust.
And Bosse’s public reprimand in 2000 involved dishonesty. But Bosse’s prior discipline
occurred 20 years ago. Accordingly, Bosse’s disciplinary history is an aggravating factor,
but we will not weigh it heavily.
Next, the referee found that Bosse’s lack of remorse was an aggravating factor. An
attorney’s lack of remorse is an aggravating factor. See In re Klotz, 909 N.W.2d 327, 340
(Minn. 2018). The referee substantiated his finding by citing Bosse’s lack of “remorse for
his misconduct” and failure to acknowledge “the harm he caused to T.H.” We agree that
Bosse’s lack of remorse is an aggravating factor.
Lastly, the referee found Bosse’s experien ce in the practice of law to be an
aggravating factor. Substantial experience in the practice of law is an aggravating factor.
Tigue, 900 N.W.2d at 432. Bosse has practiced law in the medical malpractice field for
almost 45 years and has practiced in Minnesota for most of the last 26 years. We
reasonably expect that the noncompliant attorney-client agreements, lapses in
communication, excessive fees, and other problems that occu rred here would occur less
often with an experienced attorney. Ther efore, we agree that Bosse’s substantial
experience in the practice of law is an aggravating factor.
22
E.
Finally, we consider similar cases to “ens ure that [the] disciplinary decision is
consistent with prior sanctions.” Nathanson, 812 N.W.2d at 80. The Director essentially
agrees with the referee that none of our prior cases fits well with the misconduct here. The
referee concluded that, although all of our d ecisions are distinguishable, those decisions
suggest that the range of reasonable suspen sion for Bosse’s misconduct was between 60
days and 1 year.
We agree that no prior case involves th e same range of misconduct that Bosse
committed. Some of Bosse’s most serious misconduct involves the deceptive and
unreasonable fees he charged T.H. Charging excessive or unreasonable fees “provide[s] a
basis for imposing discipline, depending on the egregiousness of that conduct, ranging
from public reprimand, . . . to suspension, . . . or, when charging excessive fees was one of
several acts of misconduct, to disbarment.” In re Simmonds, 415 N.W.2d 673, 677 (Minn.
1987) (citations omitted). We have suspe nded attorneys whose misconduct involved
improper fee agreements. See In re Sutton , 925 N.W.2d 35, 36 (Minn. 2019) (order)
(imposing a 60-day suspension for, among ot her things, entering into improper fee
agreements); In re Izek , 932 N.W.2d 476, 476 (Minn. 2019) (order) (imposing a 1-year
suspension for, among other th ings, entering into improper flat fee and availability
agreements). We have also suspended a ttorneys whose misconduct included neglecting
and failing to communicate with a small number of clients. See In re Milo , 898 N.W.2d
281, 281–82 (Minn. 2017) (order) (imposing a 30-day suspension for, among other things,
failing to diligently pursue representation and communicate with clients in three matters);
23
In re Egtvedt , 843 N.W.2d 223, 223–24 (Minn. 20 14) (order) (imposing a 60-day
suspension for, among other things, lack of diligence and failure to communicate with
clients “in two client matters”); In re Crandall , 699 N.W.2d 769, 770 (Minn. 2005)
(imposing a 3-month suspensi on for, among other things, “neglecting matters of three
clients”). Our decisions make clear that Bosse ’s misconduct warrants more than a public
reprimand.
The parties agree that Bosse’s misconduct is unique. Bosse engaged in serious
misconduct, including failing to properly comm unicate with and diligently represent two
clients, entering into improper fee agreements with these clients, dishonestly charging one
client multiple times for the same work, and making a false statement to one client. But
Bosse’s practice involves complex medical malpractice litigation, and he obtained a
favorable expert opinion for T.H., prepared and served a complaint for T.H., and obtained
an expert opinion, although un favorable, for D.H. Given all of these considerations, we
conclude that a 60-day suspension is appropriate for the misconduct here.
Accordingly, we order that:
1. Respondent Richard Edward Bosse is suspended from the practice of law for
a minimum of 60 days, effective 14 days from the date of this opinion.
2. Respondent shall comply with Rule 26, RLPR (requiring notice of
suspension to clients, opposing counsel, and tribunals), and shall pay $900 in costs, see
Rule 24(a), RLPR.
3. Respondent shall be eligible for re instatement to the practice of law
following the expiration of the suspension period provided that, not less than 15 days before
24
the end of the suspension period , respondent files with the Clerk of the Appellate Courts
and serves upon the Director an affidavit establishing that he is current in continuing legal
education requirements, has complied with Rules 24 and 26, RLPR, and has complied with
any other conditions for reinstatement imposed by the court.
4. Within 1 year of the date of the filing of this order, respondent shall file with
the Clerk of the Appellate Courts and serv e upon the Director proof of successful
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. Failure to
timely file the required documentation shall result in automatic re-suspension, as provided
in Rule 18(e)(3), RLPR.
5. Following reinstatement, respondent shall be placed on probation for 2 years,
upon the following terms and conditions:
a. Respondent shall cooperate fully with the Direct or’s Office in its
efforts to monitor comp liance with this probation. Respondent shall
promptly respond to the Director’s correspondence by its due date.
Respondent shall provide to the Director a current mailing address and
shall immediately notify the Director of any change of address.
Respondent shall cooperat e with the Director’s investigation of any
allegations of unprofessiona l conduct that may come to the Director’s
attention. Upon the Director’s request, respondent shall provide
authorization for release of inform ation and documentation to verify
compliance with the terms of this probation.

b. Respondent shall abide by the Minnesota Rules of Professional

Conduct.

c. Respondent shall be supervised by a licensed Minnesota attorney,
appointed by the Director to monito r compliance with the terms of this
probation. Within 2 weeks of the date of this order, respondent shall provide
to the Director the names of four attorneys who have agreed to be nominated
as respondent’s supervisor. If, after diligent effort, respondent is unable to
locate a supervisor acceptable to the Di rector, the Director will seek to
25
appoint a supervisor. Un til a supervisor has signed a consent to supervise,
the respondent shall on the first day of each month provide the Director with
an inventory of active client files described in paragr aph d. below.
Respondent shall make active client files available to the Director on request.

d. Respondent shall cooperate fully with the supervisor in his/her efforts
to monitor compliance with this probation. Respondent shall contact the
supervisor and schedule a minimum of one in-person meeting per calendar
quarter. Respondent shall submit to the supervisor an inventory of all active
client files by the first day of each month during the probation. With respect
to each active file, the inventory shall disclose the client name, type of
representation, date opened, most recent activity, next anticipated action, and
anticipated closing date and shall provi de a copy of any fee agreement.
Respondent’s supervisor shall file writte n reports with the Director at least
quarterly, or at such more frequent intervals as may reasonably be requested
by the Director.

e. Respondent shall initiate and maintain office procedures which ensure
that there are prompt responses to correspondence, telephone calls, and other
important communications from clients, courts, and other persons interested
in matters which respondent is ha ndling, and which will ensure that
respondent regularly reviews each and every file and completes legal matters
on a timely basis.

f. Within 30 days from the date of th is order, respondent shall provide
to the Director and to the probation supervisor, if any, a written plan outlining
office procedures designed to ensure th at respondent is in compliance with
probation requirements. Respondent shall provide progress reports as
requested.

MOORE, 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.