Original Jurisdiction Per Curiam

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STATE OF MINNESOTA

IN SUPREME COURT

A20-0089

Original Jurisdiction Per Curiam

In re Petition for Disciplinary Action
Against Samuel A. McCloud, a Minnesota
Attorney, Registration No. 0069693.
Filed: February 24, 2021
Office of Appellate Courts

________________________

Susan M. Humiston, Director, Nicole S. Frank , Assistant Director , Office of Lawyers
Professional Responsibility, Saint Paul, Minnesota, for petitioner.

Samuel A. McCloud, Cambridge, Minnesota, pro se.

________________________
S Y L L A B U S
1. The record supports the referee’s findings of fact and conclusions of law that
respondent violated the Minnesot a Rules of Professional Conduct by in structing a client
not to attend a criminal pretrial hearing without legal justification and failing to
communicate with the court or attend hearings.
2. To the extent that the referee relied on the fact that respondent’s misconduct
occurred during probat ion as both a violation of the Minnesota Rules of Professional
Conduct and as an aggravating factor to increase respondent’s recommended discipline,
the referee clearly erred.

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3. Given the aggravating factors present, a 60-day suspension is the appropriate
discipline for respondent after he instructed his client not to attend a criminal pretrial
hearing with no legal justification, failed to request a continuance or otherwise
communicate with the court regarding his planned absences from a pretrial hearing and a
hearing designated as a trial date, and failed to attend these hearings.
Suspended.
O P I N I O N
PER CURIAM.
The Director of the Office of Lawyer s Professional Responsibility filed a petition
for disciplinary action against respondent Samuel A. McCloud. We appointed a referee
and, after holding an evidentiary hearing, the referee concluded that McCloud committed
professional misconduct by instructing his client P.G. not to attend a pretrial hearing
regarding his felony criminal charge, failing to request a continuance or otherwise
communicate with the court regarding his planned absences from two hearings, and failing
to appear at these hearings. The referee rec ommended a 60 -day suspension with the
requirement that McCloud petition for reinstatement under Rule 18 of the Rules on
Lawyers Professional Responsibility (“RLPR”). McCloud challenges certain of the
referee’s factual findings and legal conclusions. He a lso urges us to reject the referee’s
recommended discipline. After review of the record, we conclude that, with the exception
of one legal conclusion, the referee did not clearly err. We further conclude that the
appropriate discipline for McCloud’s misconduct is a 60 -day suspension , with
reinstatement by affidavit under Rule 18(f), RLPR.

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FACTS
McCloud was admitted to practice law in 1977 and has practiced mainly in the area
of crimina l defense. McCloud’s 40 -year legal career includes numerous disciplinary
violations. McCloud has received eight admonitions, two of which involved failure to
appear at court hearings in 1986 and 2005, has been subject to a private probation, and has
been publicly reprimanded. In addition, we indefinitely suspended McCloud in 2013 for
his federal tax evasion conviction, 1 In re McCloud , 826 N.W.2d 529, 529 (Minn. 2013)
(order), and we reinstated him in 2015 subject to a 5-year probation period, In re McCloud,
No. A13-1381, Order at 2–3 (Minn. filed Feb. 3, 2015). McCloud was on this disciplinary
probation when he committed the conduct underlying the current matter.
This petition for discipline arises out of McCloud’s representation of a criminal
defendant, P.G., from 2018 to 2019.2 The State charged P.G. with two counts of issuing a
dishonored check over $500. P.G.’s alleged victim also sued P.G. in a civil action . The
prosecutor agreed to a continuance for dismissal of the criminal case if P.G. settled with
the victim in the civil suit. Accordingly, McCloud began working with the victim’s
attorney to negotiate a settlement.

1 We indefinitely suspended McCloud for a minimum of 2 years, effective as of
July 5, 2011, which was the date that he began serving his prison sentence. McCloud,
826 N.W.2d at 529.

2 McCloud disputes several of the referee’s factual findings regarding his
representation of P.G. Because we conclude that the referee’s findings are not clearly
erroneous, we restate the facts as found by the referee.

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McCloud made his first appearance in the criminal matter on May 10, 2018. At this
hearing, McCloud received notice of a pretrial hearing scheduled for December 4, 2018.
On November 30, 2018, the prosecutor moved for a continuance of the December 4 pretrial
hearing. The district court denied the motion on December 3.
McCloud and P.G. did not appear at the December 4 pretrial hearing. The district
court rescheduled the hearing for March 29, 2019, and mailed McCloud a notice of the new
date. The notice stated “You are expected to appear fully prepared.” McCloud also
received notice of an April 8, 2019, trial date.
The p rosecutor e-mailed McCloud and the victim’s attorney multiple times in
March 2019, asking for updates on the status of settlement discussions in the civil case .
McCloud responded on March 22, stating they were still working on the settlement.
McCloud called the prosecutor’s office on March 28, 2019, spoke to an assistant,
and asked for a continuance of the March 29 pretrial hearing. The prosecutor told her
assistant that she did not object but that McCloud would need to contact the court directly.
The prosecutor’s assistant relayed this message to McCloud.
McCloud failed to contact the district court directly and failed to appear at the
March 29 pretrial hearing. He also instructed P.G. not to appear. The prosecutor informed
the court that McCloud had called her the day before and the parti es were close to a
settlement of the civil case . The prosecutor relayed McCloud’s request that the April 8
trial date remain only as a status hearing because McCloud did not anticipate going to trial.
The prosecutor also informed the court that sh e would not prepare for trial. The court
responded, “I know.”

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Immediately after the March 29 hearing, the prosecutor e-mailed McCloud and the
victim’s attorney, stating that the district court was keeping the case on for trial on April 8.
She asked that the settlement papers be sent to her by the next Tuesday . McCloud
responded the same day, “I apologize. I did not realize that I would have to make contact
with the Court. We will get it done.” Also on March 29, the court’s law clerk e-mailed all
parties who had trials scheduled for the week of April 8, including McCloud and the
prosecutor. The end of this e-mail stated:
[The prosecutor] indicated [McCloud] was contacting the court. No such
communication has been received and [neither McCloud] nor his client were
present at pre -trial. As such, per [the district court] , and as discussed on
record, this matter remains on for trial beginning 4/8/19. [The prosecutor’s]
comments to the court are noted.

McCloud received the e-mail but did not respond. The law clerk sent a similar e-mail on
April 4; again, McCloud received the e-mail but did not respond.3
McCloud failed to appear on April 8 . P.G. arrived alone and tried to talk to the
prosecutor, but the prosecutor declined to speak with him becau se he was a represented
party. McCloud called the prosecutor shortly before the hearing and advised that they
needed more time to finalize the settlement and that he could be available by phone if
needed.4

3 At the disciplinary hearing, McCloud testified that he thought these were generic
e-mails that meant nothing. He further testified that he needs verbal confirmation that
something will be accomplished at a hearing before he feels that he needs to appear.

4 McCloud testified at the disciplinary hearing that he would have told P.G. not to
attend on April 8 if he had been able to contact him in time.

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The prosecutor relayed McCloud’s message to the district court. The court
expressed relief to see P.G. in court on April 8, and stated that she would have issued a
warrant for his arrest if he failed to appear.
The district court did issue an order to show cause, requiring McCloud to explain
his failure to appear on March 29 and April 8. The hearing to show cause was scheduled
for April 24.5 McCloud requested to appear by phone because he live s 3 hours from the
court. The court denied the request, indicating that McCloud needed to appear in person
so that the judge could assess his credibility.
At the hearing to show cause, McCloud explained that he relied on the prosecutor
to relay information to the court. He said that he failed to appear because the settlement
in the civil case was not finalized and it is a 3-hour drive to the courthouse. From the
bench, the district court sanctioned McCloud and ordered him to pay $2,000. Later in the
hearing, the court accepted the continuance for dismissal of P.G.’s criminal charges. And
after the hearing, the court rescinded the verbal sanction in a written contempt order. The
order was submitted as a complaint to the Office of Lawyers Professional Responsibility.
We then referred the matter to a referee. After hearing testimony from the district
court judge, the prosecutor, the prosecutor’s assistant, and McCloud himself, the referee
made factual findings consistent with the facts we describe above. The referee concluded

5 The civil case between P.G. and the victim settled before the April 24 hearing.

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that McCloud violated Minn. R. Prof. Conduct 1.1,6 3.4(c),7 and 8.4(d),8 and the terms of
his probation. The referee found that McCloud’s failure to appear or communicate with
the district court caused confusion and wasted judicial resources by requiring the district
court judge to prepare for trial, confer with her mentor judge, and research appropriate
sanctions. The referee found four aggravating factors and no mitigating factors. The
referee recommended McCloud be indefinitely suspended with no right to petition for
reinstatement for a minimum of 60 days and that he petition for reinstatement under
Rule 18, RLPR.
ANALYSIS
McCloud disputes several of the referee’s findings of fact, conclusions of law, and
recommendations for discipline. Because McCloud requested a transcript of the hearing,
the referee’s findings and conclusions are not conclusiv e. Rule 14(e), RLPR. We “give
great deference to the referee’s findings and conclusions and will uphold them if they have
evidentiary support in the record and a re not clearly erroneous.” In re Paul, 809 N.W.2d
693, 702 (Minn. 2012). A referee’s findings and conclusions are clearly erroneous when

6 Rule 1.1 of the Minnesota Rules of Professional Conduct states: “A lawyer shall
provide competent representation to a c lient. Competent representation requires the legal
knowledge, skill, thoroughness, and preparation reasonably necessary for the
representation.”

7 Rule 3.4(c) of the Minnesota Rules of Professional Conduct states: “A lawyer shall
not[] . . . knowingly disobey an obligation under the rules of a tribunal except for an open
refusal based on an assertion that no valid obligation exists . . . .”

8 Rule 8.4(d) of the Minnesota Rules of Professional Conduct states: “It is
professional misconduct for a lawye r to[] . . . engage in conduct that is prejudicial to the
administration of justice . . . .”

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they leave us “with the definite and firm conviction that a mistake has been made.” In re
Albrecht, 779 N.W.2d 530, 535 (Minn. 2010) (citation omitted) (internal quotation marks
omitted).
I.
We begin by addressing McCloud’s argument that the referee’s findings of fact are
clearly erroneous. First, McCloud disputes the referee’s finding that he did not contact the
court after failing to attend the December 4 hearing. McCloud states that he was never told
about the denial of the prosecutor’s continuance motion. Our review of the record confirms
the referee’s finding. At the disciplinary hearing, McCloud himself testi fied that he did
not contact the court after the December 4 hearing . Moreover, McCloud is not truly
disputing the referee’s finding of fact; he is merely providing an explanation for why he
failed to appear. This factual finding is therefore not clearly erroneous.
Second, McCloud objects to the referee’s finding that he did not communicate with
the district court regarding the March 29 or April 8 hearings. McCloud claims that he did
so through the prosecutor. But McCloud admits that he failed to directly communicate
with the court. Accordingly, we cannot conclude that the referee’s finding is clearly
erroneous.
Third, McCloud disputes the referee’s finding regarding the harm caused by his
misconduct. McCloud claims t hat the district court’s waste of judicial resources was “of
the Court’s own making .” The referee, however, found the district court judge credible
when she testified that she spent time in chambers assessing the status of the case, preparing
for trial, and researching sanctions. We are particularly deferential to the referee “when

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the referee’s findings rest on . . . or in part on credibility, demeanor, and sincerity.” In re
Jones, 834 N.W.2d 671, 677 (Minn. 2013) (citation omitted) (internal quotation marks
omitted). McCloud has not pointed to anything in the record that would contradict the
referee’s finding on the judge’s credibility. The referee therefore did not clearly err.
II.
Having concluded that the referee’s factual findings are not clearly erroneous, we
now address McCloud’s arguments regarding the referee’s conclusions of law. We review
the interpretation of the Minnesota Rules of Professional Conduct de novo and the
application of the rules to the facts for clear error. In re Ulanowski, 800 N.W.2d 785, 793
(Minn. 2011). The Director has the burden to prove a violation of the rules by clear and
convincing evidence. In re Grigsby, 764 N.W.2d 54, 60 (Minn. 2009).
McCloud challenges the referee’s conclusion that he violated Minn. R. Prof.
Conduct 1.1. This challenge is meritless. Rule 1.1 requires lawyers to “provide competent
representation” to clients. Minn. R. Prof. Conduct 1.1. Competence, in turn, “requires the
legal knowledge, skill, thoroughness, and preparation reasonably necessary for the
representation.” Id. By instructing P.G. to not attend the pretrial hearing in his felony
criminal case, McCloud exposed P.G. to a potential bench warrant and criminal charges.
See Minn. Stat. § 588.20, subd. 2(4) (2020) (addressing criminal contempt); State v. Mohs,
743 N.W.2d 607, 611 (Minn. 2008) (affirming constitutionality of bench warrants issued
by district court judges with personal knowledge of defendants’ failure to appear); State v.
Tayari-Garrett, 841 N.W.2d 644, 654 (Minn. App. 2014) (affirming conviction for
criminal contempt for disobeying a court order to appear for trial ), rev. denied (Minn.

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Mar. 26, 2014) . McCloud testified t hat he did not advise P.G. of these potential
consequences, and in fact, that these consequences did not even occur to him. We conclude
that McCloud violated Minn. R. Prof. Conduct 1.1 by instructing P.G. not to appear at his
March 29 pretrial hearing without advising P.G. of these potential consequences.9
We also agree with the referee that McCloud violated Minn. R. Prof. Conduct 1.1,
by failing to either attend the March 29 and April 8 hearings or communicate with the
district court r egarding his pl anned absences. Rule 1.1’s requirement that attorneys
provide competent representation, at a minimum, mandates attendance at hearings or direct
communication with the court regarding planned absences from those hearings. See, e.g.,
In re Adams Powell , 901 N.W.2d 646, 646 (Minn. 2017) (order) (imposing discipline for
failure to attend court he aring, in violation of Minn. R. Prof. Conduct 1.1 ). Indeed,
McCloud admitted that he did not even know what happened at these hearings until he
ordered the transcripts. We therefore conclude that McCloud violate d Rule 1.1 by failing
to appear or communicate.
Next, McCloud challenges the referee’s conclusion that he violated Minn. R. Prof.
Conduct 3.4(c). This rule forbids “knowingly disobey[ing] an obligation under the rules
of a tribunal. ” Minn. R. Prof. Conduct 3.4(c). The term “knowingly” denotes “actual
knowledge of the fact in question.” Minn. R. Prof. Conduct 1.0(g). McCloud’s assertion

9 The referee concluded that this instruction also violated Minn. R. Prof.
Conduct 3.4(c). McCloud did not expressly argue before us that this conclusion was
clearly erroneous, and in the Director’s brief to our court, the Director did not cite
Rule 3.4(c) when discussing McCloud’s instruction to P.G. Accordingly, we do not
consider whether this instruction also violated Rule 3.4(c).

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that he did not know of his obligation to appear or communicate i s unfounded. In his
March 29 e-mail, McCloud stated: “I apologize. I did not realize that I would have to
make contact with the Court. We will get it done.” (emphasis added). The referee found
that this e-mail evinced McCloud’s knowledge of the April 8 trial date itself. And this
e-mail clearly establishes that McCloud knew of his obligation to communicate with the
court regarding the April 8 date. The record also indicates that McCloud had actual
knowledge of his obligation to appear on March 29. McCloud testified that he received
the hearing notice, which states: “You are expected to appear fully prepared.” McCloud
therefore violated Rule 3.4(c) by knowingly failing to appear or communicate with the
court regarding the March 29 and April 8 hearings.
Finally, McCloud challenges the referee’s conclusion that he violated Rule 8.4(d).
This rule prohibits conduct “prejudicial to the administration of justice.” Minn. R. Prof.
Conduct 8.4(d). We have recognized that attorneys who fail to atte nd hearings violate
Rule 8.4(d). See, e.g. , Adams Powell, 901 N.W.2d at 646; In re Tayari -Garrett,
866 N.W.2d 513, 517 (Minn. 2015); In re Greenman, 860 N.W.2d 368, 374 (Minn. 2015).
Thus, the referee did not clearly err in concluding that McCloud violated Rule 8.4(d) by
failing to communicate with the district court or attend the March 29 and April 8 hearings.
We turn now to the referee’s final legal conclusion. The referee concluded that
McCloud violated Minn. R. Prof. Conduct 3.4(c) and 8.4(d) by violating his probation
terms because one of those terms required him to adhere to the Minnesota Rules of
Professional Conduct. The referee, however, also cited McCloud’s misconduct while on
probation as an aggravating factor.

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We do not “double count” an attorney’s conduct as both a violation of the Minnesota
Rules of Professional Conduct and as an aggravating factor. In re Sea, 932 N.W.2d 28, 37
(Minn. 2019); see also Tayari-Garrett, 866 N.W.2d at 520 n.4 (“As a matter of fairness,
we question whether the intentional nature of an attorney’s misconduct can be an
aggravating factor when the rules of professional conduct at issue require proof of intent.”);
In re Jones, 834 N.W.2d 671, 680 n.9 (Minn. 2013) (clarifying “that referees may not rely
on the same acts of noncooperation to support both a finding of attorney misconduct and
the existence of an aggravating factor” (citation omitted) (internal quotation marks
omitted)). To the extent that the referee relied on the fact that McCloud’s misconduct
occurred during his probation as both a violation of the Minnesota Rules of Professional
Conduct and as an aggravating factor to increase McCloud’s recommended discipline, the
referee clearly erred.10 We will consider the fact that McCloud was on probation when he
committed the misc onduct as an aggravating factor but not a s a separate violation of the
rules of professional conduct.
III.
We now turn to the appropriate discipline for McCloud. The referee recommends,
and the Director agrees, that we indefinitely suspend McCloud for a minimum of 60 days
with the requirement that he petition for reinstatement under Rule 18, RLPR. McCloud

10 Our conclusion regardi ng double counting is limited to the situation where an
attorney violates the term of probation requiring the attorney to abide by the Minnesota
Rules of Professional Conduct.

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contends that this recommendation is excessive and asks us to impose sanctions that do not
involve suspension.
We give “great weight” to the referee’s recommen dation but ultimately maintain
responsibility for determining the appropriate sanction. Greenman, 860 N.W.2d at 376. In
determining the app ropriate sanction, we examine four factors: (1) the nature of the
misconduct; (2) the cumulative weight of the disciplinary violations; (3) the harm to the
public; and (4) the harm to the legal profession. Id. We also consider aggravating and
mitigating factors. Id. And finally, while we consider similar cases, the discipline is
tailored to the specific facts of each case. Id. Ultimately, the goal of discipline is “not to
punish the attorney, but rather to protect the publi c, to protect the judicial system, and to
deter future misconduct by the disciplined attorney as well as by other attorneys.” In re
Albrecht, 779 N.W.2d 530, 540 (Minn. 2010) (citation omitted) (internal quotation marks
omitted).
A.
We first consider the nature of McCloud’s misconduct. McCloud failed to appear
for a pretrial hearing and a hearing designated as a trial. He did not communicate with the
district court directly and instead relied solely on opposing counsel, an attorney whose
interests are not aligned with those of McCloud’s client, to relay information to the court
on his behalf. Lastly, he advised his client not to show up for a pretrial hearing and would
have told him not to attend the trial if he had been able to contact him in time. McCloud
admits that he did not consider that his advice could have gotten his client arrested and
criminally charged.

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We have regularly imposed sanctions for failing to attend court hearing s. See
Adams Powell , 901 N.W.2d at 646; Greenman, 860 N.W.2d at 371; In re Nathanson ,
812 N.W.2d 70, 76 (Minn. 2012) . And we have disciplined lawyers for failing to
communicate with the district court. Cf. In re Moore, 692 N.W.2d 446, 448 (Minn. 2005)
(imposing discipline for, inter alia, failing to communicate with a district court).
Instructing a client to ignore a court order is also significant. See Paul, 809 N.W.2d at 704
(referring to attorney’s misco nduct, that included instructing a client not to attend child a
support hearing, as “substantial”). The nature of McCloud’s misconduct therefore warrants
discipline.
B.
Turning next to the cumulative weight of McCloud’s disciplinary violations, we
distinguish “a brief lapse of judgment or a single, isolated incident of misconduct from
multiple instances of misconduct occurring over a substantial amount of time.” Greenman,
860 N.W.2d at 377 (citation omitted) (internal quotation marks omitted). In this case,
McCloud’s misconduct took place over only the course of 2 months and involved a single
client matter.11 On its own, this factor does not weigh heavily against McCloud.
C.
We next address the harm to the public and to the legal profession. The Director
did not provide evidence that the public at large or McCloud’s client, P.G., were adversely
impacted by his misconduct. McCloud’s misconduct , however, harmed the legal

11 The referee considered only McCloud’s failure to appear in March and April 2019;
McCloud’s failure to appear in December 2018 was not included.

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profession. His failure to communicate with the district court or attend scheduled court
hearings caused confusion and wasted judicial resources by forcing the district court judge
to spend time assessing the status of the case, preparin g for trial, and researching
disciplinary sanctions. This factor tilts toward serious discipline.
D.
Having considered the four factors, we now turn to the existence of any aggravating
or mitigating factors. The referee found four aggravating factors: (1) McCloud was on
probation during the alleged misconduct ; (2) McCloud has a significant disciplinary
history; (3) McCloud has over 40 years of le gal experience in criminal law; and
(4) McCloud presented no evidence that he would not engage in the same misconduct in
the future. The referee found no mitigating factors. The Director agrees with the referee’s
conclusions; McCloud disputes several findings related to aggravating and mitigating
factors.
As previously stated, t he first aggravating factor found by the referee is clearly
correct: misconduct during probation is an aggravating factor. In re Kurzman, 871 N.W.2d
753, 758 (Minn. 2015) . McCloud was on probation through 2020, In re McCloud ,
No. A13-1381, Order at 2 -3 (Minn. filed Feb. 3, 2015), and the misconduct occurred in
early 2019.
We also agree that McCloud’s disciplinary history is an aggravating factor. See Sea,
932 N.W2d at 37. Attorneys with a disciplinary history are expected to show a renewed
commitment to ethical behavior. Id. McCloud has an extensive disciplinary history ; he
has previously been disciplined 11 times, including a lengthy suspension. And McCloud

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was disciplined in 1986 and 2005 for the same type of misconduct he committed here ,
failure to appear at hearings. McCloud, however, tries to distinguish his 2005 admonition
from his current misconduct because he realizes that he should have appeared in 2005, but
maintains that he had no serious obligation to a ppear for the April 8 hearing. McCloud’s
argument is meritless. See Tayari-Garrett, 866 N.W.2d at 515 (discussing attorney being
convicted of contempt of court for failing to appear at trial). Given the number of times
that McCloud has previously been disciplined, and the fact that some of his prior discipline
was for similar misconduct, we give considerable weight to this aggravating factor. In re
Hulstrand, 910 N.W.2d 436, 444 (Minn. 2018) (“Prior disciplinary history weighs heavily
if the prior discipline was for similar misconduct.” (citation omitted) (internal quotation
marks omitted)).
Further, an attorney’s substantial experience practicing law is a valid aggravating
factor. See, e.g., Sea, 932 N.W.2d at 37 (considering attorney’s substantial experience in
criminal law as an aggravating factor). The referee’s conclusion that McCloud’s 40 -year
criminal law career is an aggravating factor is sound.12

12 In a finding regarding McCloud’s 40 years of experience practicing law, the referee
noted McCloud’s failure to appear had been an issue years before with a different judge.
Aside from clarifying the county in which the prior incident occurred, McCloud does not
challenge this reference. But he argues that the referee erred in refusing to admit evidence
that McCloud offered to explain the prior incident.
McCloud attempted to argue the relevance of the prior incident on three separate
occasions. Despite allowing the attorney for the Director to address that incident in her
opening statement, the referee excluded McCloud’s evidence on that same topic on
relevance grounds and did not allow McCloud to argue relevance. McCloud included the
proffered evidence in his addendum to his brief in our court. Specifically, he included
documents related to an ethics complaint that had been filed about this prior incident .
McCloud argues in his brief that evidence about the prior complaint was relevant because

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The last aggravating factor found by the referee was McCloud’s failure to
demonstrate that he would not engage in similar misconduct in the future. We have
recognized that an attorney’s refusal to acknowledge the wrongful nature of his or her
actions indicates a risk of future misconduct. See Tayari -Garrett, 866 N.W.2d at 520.
McCloud testified repeatedly that he did nothing wrong. He did state that it would not be
“difficult at all” to change his practices; however, the referee was not required to take this
statement at face value. See Jones, 834 N.W.2d at 677 (noting that we are particularly
deferential to the referee “when the referee’s findings rest on . . . or in part on credi bility,
demeanor, and sincerity” (citation omitted) (internal quotation marks omitted)). In light of
McCloud’s testimony and his previous misconduct involving the failure to attend hearings

the Director declined to pursue discipline in that matter. Based on the Director’s decision
not to pursue discipline in the earlier matter, McCloud argues he believed that what he did
here was appropriate. The Director moved to strike the materials in McCloud’s addendum,
as well as two sentences in his brief related to those materials. We de ferred ruling on the
Director’s motion until we decided the merits. In re McCloud, No. A20-0089, Order at 1
(Minn. filed Oct. 14, 2020). We deny the motion to strike, but the additional materials,
even if admitted, do not change our analysis.
Better practice might have been for the referee to admit the materials because the
referee allowed the Director to base her opening argument on the same incident. But any
error is harmless given the facts before us. McCloud has been disciplined twice for failing
to appear at court hearings, as noted above. Additionally, he received a hearing notice that
explicitly stated “You are expected to appear.” The record is therefore clear that McCloud
had actual knowledge of his obligation to appear on March 29, and McCloud’s inclusion
of the results of the prior investigation in his brief to our court does not change that fact.
Accordingly, even if the referee erred in refusing to admit the evidence, an issue we do not
reach, any error would be harmless in light of the undisputed facts in the record.
McCloud also claims that he was denied due process of law when the referee
excluded this evidence. In his brief, McCloud merely presents a conclusory statement that
his due process rights were violated; he provides no argument or citation to authority
supporting this conclusion. We therefore deem this argument forfeited. See State v.
Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (concluding allegations in a brief unsupported
by argument or citation to legal authority were forfeited).

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in 1986 and 2005, it was not clearly erroneous for the referee to conclude that McCloud
had not provided any assurances that he would not engage in similar future misconduct.
Finally, the referee determined that there were no mitigating factors. McCloud
asserts that there are five. We disagree.
McCloud argues that we should consider as a mitigating factor the fact that his
conduct is consistent with his 40-year criminal law career. But our precedent clearly states
that McCloud’s extensive career in criminal law is actually an aggravating factor, not a
mitigating one. See Sea , 932 N.W.2d at 3 7. The second and fourth reasons listed by
McCloud—essentially his ignorance of the district court ’s continuance policy —are not
valid mitigating factors. The third purportedly mitigating factor is the fact that the Director
declined to pursue discipline for similar prior misconduct. We disagree for reasons
explained above, supra note 12. And the fifth factor listed by McCloud—the lack of harm
to the public and to P.G.—is already one of the four factors we considered above and is not
a separate mitigating factor. In re Bonner, 896 N.W.2d 98, 110 (Minn. 2017) (concluding
that lack of harm to clients “should not be counted as a mitigating factor because these
considerations overlap with our consideration of the harm that [the attorney’s] misconduct
caused to the public and the legal profession”). We therefore conclude that the referee did
not clearly err when he found no mitigating factors.
E.
We now turn to similar cases. McCloud states that we have discretion to fashion
discipline appropriate to the facts of this case and urges us not to suspend him. In response,
the Director cites numerous cases to support the referee’s recommended discipline.

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While the 60-day suspension period recommended by the referee is not out of line
with our previous cases, t he cases cited by the Director are readily distinguishable. See
Adams Powell, 901 N.W.2d at 646 (45-day suspension for misconduct involving failure to
attend a court hearing); Greenman, 860 N.W.2d at 371 (6-month suspension for numerous
instances of misconduct, one of which was the failure to attend court hearings and
conferences); Nathanson, 812 N.W.2d at 76 (90 -day suspension for multiple instances of
misconduct, one of which was the failure to appear for a hearing); Tayari-Garrett,
866 N.W.2d at 515 (120 -day suspension for failing to appear for a trial date and lying to
the court regarding absence); In re Thomas , 879 N.W.2d 659, 660 (Minn. 2016) (order)
(60-day suspension for various misconduct which included the failure to attend a court
hearing); In re Fredin, 552 N.W.2d 23, 23 (Minn. 1996) (order) (60-day suspension in part
for failing to attend a court hearing). In each of these cases, the attorney’s failure to attend
a court hearing was but one of several instances of misconduct. And many of those cases
dealt with misconduct involving the attorney’s representation of multiple clients.
McCloud’s misconduct in this case is unique. The misconduct at issue took place
over only 2 months and did not harm the client or the public. Nonetheless, McCloud’s
misconduct was not victimless; it harmed the court by wasting judicial resources. McCloud
furthermore has an extensive history of disc ipline spanning 40 years of legal practice and
has twice been discipline d for the same type of misconduct . In light of these
circumstances—and given McCloud’s failure to provide assurances that he will not engage
in similar misconduct in the future —the Director urges us to require that he petition for
reinstatement under Rule 18, RLPR. We disagree.

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Rule 18(f), RLPR, states that “[u]nless otherwise ordered by this Court,” a petition
for reinstatement is not required when a lawyer “ha [s] been suspended for a fixed period
of ninety (90) days or less.” For suspensions of 60 days, the Director acknowledges that
we have required a suspended attorney to petition under Rule 18 only once. See In re
Gurstel, 540 N.W.2d 838, 843 (Minn. 1995). The attorney in Gurstel failed to timely file
state and federal taxes, owing in excess of $300,000 on the federal tax liability. Id. at 840.
In addressing Gurstel’s argument that a petition for reinstatement was not required under
RLPR 18(f), we simply stated that “[w]e agree[d] with the referee’s recommendation in
this case.” Id. at 843.
We later distinguished Gurstel, noting it was “unusual” and “an outlier.” Kurzman,
871 N.W.2d at 759. Like McCloud, Kurzman was on probation at the time of his
misconduct and had been disciplined numerous (10) times. Id. at 757. We concluded that
Kurzman’s misconduct, which involved multiple acts of misconduct in two client matters
and included a suggestion, without a good faith basis, that a deponent had been accused of
sexual m isconduct with a minor , was “qualitative[ly] differen[t]” than Gurstel’s
misconduct. Id. at 754 –55, 759 –60. The same is true here and , thus, a petition for
reinstatement is not necessary.
Rather than Gurstel, a more apposite case is Moore, 692 N.W.2d at 448. In Moore,
the attorney “did not attend a hearing she scheduled for a client, failed to inform the court
she would not attend, did not attempt to obtain a continuance, advised her client that he
need not appear, and failed to apprise her client of th e potential consequences of not
attending.” Id. Like this case, the attorney excused her behavior by arguing that, “in her

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experience, judges in Ramsey County ‘don’t care’ whether lawyers appear in court.” Id.
at 449. She had been previously discipline d three times, and one of those times was for
identical misconduct. Id. at 450. Much like McCloud, Moore also continued to claim that
“she did nothing unethical at any time.” Id. Moore was publicly reprimanded and placed
on probation for 2 years. Id.
But even Moore is distinguishable from the current case . McCloud was on
probation during his misconduct, he has a more extensive history of discipline than Moore,
he has p reviously been disciplined more times for the same type of misconduct, and the
underlying case here is criminal while the case in Moore was civil. Id. at 448. The
consequences of a criminal defendant’s failure to attend a hearing could be far more severe
than a civil litigant’s failure to appear. Be cause of these distincti ons, we agree that
McCloud’s misconduct warrants more than a public reprimand. We therefore conclude
that the appropriate discipline is a 60-day suspension, with reinstatement by affidavit under
Rule 18( f), RLPR. But, because McCloud was on probation whe n he committed this
misconduct, we conclude that McCloud must continue on probation for a period of 2 years
following reinstatement.
Accordingly, we order that:
1. Respondent Samuel A. McCloud 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.

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3. Respondent shall be e ligible for reinstatement to the practice of law
following the expiration of the suspension period provided that, not less than 15 days
before 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 4 and 26, RLPR, and has complied
with any other conditions for reinstatement imposed by the court.
4. Within 1 year of the filing of this order, respondent shall file with the Clerk
of Appe llate Courts and serve upon the Director pr oof of successful completion of the
professional responsibility portion of the state bar examination. Failure to timely file the
required documentation shall result in automatic re -suspension, as provided in
Rule 18(e)(3), RLPR.
5. Upon reinstatement to the practice of law, respondent shall be placed on
probation for 2 years, upon the following terms and conditions:
a. Respondent shall cooperate fully with the Director’s Office in its efforts to
monitor compliance with this probation. Respondent shall respond to the
Director’s correspondence by its due date. Respondent shall provide the Director
with a current mailing address and shall immediately notify the Director of any
change of address. Respondent shall cooperate with the Director’s investigation
of any allegations of unprofessional conduct that may come to the Director’s
attention. Upon the Director’s request, respondent shall provide authorization
for release of information and documentation to verify compliance with the terms
of this probation.

b. Respondent shall abide by the Minnesota Rules of Professional Conduct.

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c. Respondent shall be supervised by a licensed Minnesota attorney, appointed
by the Director to monitor compliance with the terms of this probation. Within
2 weeks of the date of the order reinstating respondent to the practice of law,
respondent shall provide to the Director the names of fou r 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 Director, the Director
will seek to appoint a supervisor. Until a supervisor has signed a con sent to
supervise, the respondent shall, on the first day of each month, provide the Director
with an inventory of active client files described in paragraph 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 s upervisor 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 anticipa ted action, and next court appearance date.
Respondent’s supervisor shall file written 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 that ensure that
there are prompt responses to correspondence, telephone calls, and other important
communications from clients, courts, and other per sons interested in matters that
respondent is handling, and that will ensure that respondent regularly reviews each
and every file and completes legal matters on a timely basis.

f. Within 30 days of the date of the order reinstating respondent to the practice
of law, respondent shall provide to the Director and to the probation superviso r, if
any, a written plan outlining office procedures designed to ensure that respondent is
in compliance with the probation requirements. Respondent shall provide progress
reports as requested.