In re Petition for Disciplinary Action Against David L. Ludescher, a Minnesota Attorney, Registration No. 194347. ...
Opinion text
STATE OF MINNESOTA
IN SUPREME COURT
A22-0299
Original Jurisdiction PER CURIAM
Took no part, Moore, III, Procaccini, JJ.
In re Petition for Disciplinary Action
Against David L. Ludescher, a Minnesota Filed: December 6, 2023
Attorney, Registration No. 194347 Office of Appellate Courts
________________________
Susan M. Humiston, Director, Binh T. Tuong, Deputy Director, Office of Lawyers
Professional Responsibility, Saint Paul, Minnesota, for petitioner.
Jessica L. Klander, Aram V. Desteian, James C. Kovacs, Gillian L. Gilbert, Bassford
Remele, P.A., Minneapolis, Minnesota, for respondent.
________________________
SYLLABUS
1. The attorney discipline referee did not err by concluding that the juvenile
court’s orders purporting to grant the attorney’s client temporary custody (both physical
and legal) of the client’s child were unenforceable.
2. The attorney discipline referee did not err by concluding that the transaction
set-aside provision in Minnesota Statutes section 524.5-417(e) (2022) did not apply to the
termination of the attorney’s on-going attorney-client relationship with a client who
became subject to a conservatorship.
3. The attorney discipline referee did not misinterpret Minnesota Rule of
Professional Conduct 1.6 by determining that the attorney violated the rules of professional
misconduct when the attorney failed to disclose his incapacitated client’s file to the
conservator.
4. Suspension from the practice of law for a minimum of 60 days followed by
a 2-year term of supervised probation is the appropriate discipline for this attorney’s
misconduct.
Suspended.
OPINION
PER CURIAM.
The Director of the Office of Lawyers Professional Responsibility petitioned for
disciplinary action against respondent-attorney David L. Ludescher, alleging professional
misconduct in two client matters. We appointed a referee, who, after conducting an
evidentiary hearing, found that the Director had proved by clear and convincing evidence
that Ludescher committed misconduct including (1) incompetent representation, (2)
bringing frivolous claims, (3) making knowingly false statements, (4) acting to embarrass
or burden a third person, (4) failing to reasonably protect a client’s interest upon
termination, (5) engaging in conduct prejudicial to the administration of justice, (6)
charging or collecting an unreasonable fee, and (7) failing to withdraw representation upon
termination. The referee also found five aggravating factors and no mitigating factors. The
referee recommended that Ludescher be suspended from the practice of law for 30 days.
2
Ludescher contends that the referee misinterpreted relevant law and the Rules of
Professional Conduct and failed to adequately consider the record when making certain
findings and conclusions. The Director defends the referee’s reasoning and findings but
argues that the referee’s disciplinary recommendation is insufficient given the seriousness
of Ludescher’s misconduct. We agree with the referee’s legal conclusions and conclude
that the referee’s findings were not clearly erroneous. Consequently, the referee’s
rule-violation conclusions are supported. We also conclude that the appropriate discipline
is a 60-day suspension from the practice of law followed by a 2-year term of supervised
probation.
FACTS
Ludescher was admitted to practice law in Minnesota in 1988, began practicing in
child protection matters in 1989, and began working on guardianship and conservatorship
cases in 2000. The petition for disciplinary action arises from Ludescher’s conduct in two
client matters: the J.K. matter, involving a child protection case, and the G.N. matter,
involving a guardianship/conservatorship case. We review the facts of each matter in turn.
J.K. Matter
J.K. is the father of a child who was the subject of a child in need of protection or
services (CHIPS) petition filed by the Rice County Attorney’s Office in September 2017.
Though not married, J.K. and the child’s mother lived together with the child, and J.K.
signed a recognition of parentage and the child’s birth certificate. The child’s mother had
sole physical and legal custody of the child because she was not married when the child
was born. See Minn. Stat. § 257.541, subd. 1 (2022). J.K. could have petitioned for
3
custody of the child, see id., subd. 2(b) (2022), but J.K. had not petitioned for custody
before the CHIPS matter commenced. Consequently, J.K. did not have custodial rights to
the child, and he was initially listed only as a participant, rather than a party, in the CHIPS
proceedings. J.K. retained Ludescher to represent him in the CHIPS matter, and Ludescher
understood that J.K. did not have custodial rights.
Ludescher understood that a parent labeled as a participant to a CHIPS matter does
not have legal custody over the child subject to the CHIPS petition, and also understood
that a non-custodial parent could not be granted legal custody of a child because the CHIPS
disposition statute only permits legal custody to be transferred to a child-placing or social
services agency. Ludescher simultaneously understood that J.K. was labeled as a
participant and did not have custodial rights to P.K. See Minn. Stat. § 260C.201, subd.
1(a)(1)(i) (2022). Ludescher understood that when a court places a child with a
non-custodial father, the court can only transfer legal custody of the child to a child-placing
agency, or to the responsible social services agency. See id., subd. 1(a)(2) (2022).
Despite this legal framework, the juvenile court issued an order that included
language purporting to grant J.K. “temporary physical and legal custody” of the child
subject to Rice County Social Services’ (the agency’s) protective supervision. This
language became a part of the template orders used throughout the CHIPS proceedings.
Ludescher understood that while a CHIPS proceeding is ongoing, the juvenile court
has exclusive jurisdiction over custody of the child. See also Minn. Stat. § 260C.101,
subd. 1 (2022). Nevertheless, Ludescher initiated a separate paternity and custody action
4
for J.K. in family court. 1 Ludescher also filed a motion to dismiss the CHIPS petition as it
related to J.K.’s child. In support of the motion, Ludescher argued that J.K. had been
granted temporary legal custody, was a fit parent, and had filed for permanent custody. He
also contended that Troxel v. Granville, 530 U.S. 57 (2000), 2 prevented the county from
interfering with J.K.’s rights as a parent. The juvenile court denied this motion to dismiss
because J.K. had no custodial rights to the child other than the temporary rights given to
him in the CHIPS proceedings and because the purpose of the CHIPS proceedings was to
reunify the child with its mother, the custodial parent.
After a 2-day court trial, the juvenile court issued an order on December 12, 2017,
adjudicating the child as CHIPS and reiterating that J.K. only had temporary custody and
that the mother would have sole custody of the child absent the CHIPS proceedings.
Ludescher moved for a new trial, again citing Troxel, and requested that the juvenile court
conclude J.K. was a custodial parent. The juvenile court denied this motion on January 19,
2018, reiterating that the child would return to the mother’s custody absent the CHIPS
proceedings, that custody motions were not permitted because it had continuing and
exclusive jurisdiction over the child’s custody, and that the remainder of Ludescher’s
1
The family court did not take any action on this filing.
2
Troxel v. Granville did not control here. In Troxel, the United States Supreme Court
held in a plurality opinion that the application of a statute that authorized state courts to
award visitation rights to a non-parent “whenever ‘visitation may serve the best interest of
the child’ ” violated a custodial parent’s due process right to make decisions concerning
the care, custody, and control of their children. 530 U.S. 57, 60, 75 (2000). Troxel differs
vastly from J.K.’s circumstances given that J.K. is not and has never been a custodial
parent.
5
arguments had already been addressed by the court. The court also repeatedly advised
Ludescher during hearings that reunification would only occur with the mother, that J.K.
lacked custodial rights, and that the juvenile court had exclusive jurisdiction over custody
decisions. 3
Despite his understanding of the controlling CHIPS statutes and the juvenile court’s
orders, Ludescher continuously argued throughout the CHIPS proceedings that J.K. had
custody of the child. On March 15, 2018, the juvenile court issued an order authorizing
the agency to begin a trial home visit with the mother when she obtained safe housing. On
April 3, 2018, Assistant Rice County Attorney Jennifer Nelson moved to increase the
mother’s visitation. The juvenile court granted this motion on April 11, 2018, reiterating
that the mother was the only custodial parent in the case and the agency was therefore
obligated to reunite the mother and the child.
On May 1, 2018, the agency commenced a trial home visit with the mother and the
child. Nelson sent Ludescher a letter explaining that the agency placed the child on a trial
home visit, so J.K. no longer had temporary custody. Up until this point, Nelson had not
3
Ludescher appealed the December 12 and January 19 order to the court of appeals
in January 2018, and the court of appeals issued its nonprecedential opinion in May 2018.
See In re Welfare of Children of S.E.M., A18-0177, 2018 WL 2407268 (Minn. App. May
29, 2018). The court of appeals upheld the adjudication, concluded that the juvenile court’s
original and exclusive jurisdiction precluded a family court from issuing a custody
determination during the CHIPS proceedings, and found no persuasive reason to overturn
the court’s dispositional orders. Id. at *4, 6–7. The court of appeals also stated in a footnote
that even though the juvenile “court ordered that the child ‘remain in the temporary
physical and legal custody of father,’ ” Rice County Social Service, “not a noncustodial
parent, has legal responsibility for a child ‘taken into custody’ and placed with a
noncustodial parent under the CHIPS statute.” Id. at *1, n.2.
6
fully realized there was language granting J.K. “temporary legal and physical custody,”
and the juvenile court did not understand this language to be the basis for Ludescher’s
repeated custody arguments. Nelson understood Ludescher’s custody arguments to be
based on J.K. being the child’s custodian, and the juvenile court understood Ludescher’s
custody arguments to be based on the signed recognition of parentage and the child’s living
arrangement with J.K. Ludescher never informed Nelson or the juvenile court of the
legally erroneous language granting J.K. temporary legal custody.
After receiving the May 1, 2018, letter from Nelson, Ludescher repeatedly called
and e-mailed Nelson, attempting to bully and threaten her into returning the child to J.K.
Nelson testified that Ludescher repeatedly yelled at her throughout the case, threatened to
trespass the agency from J.K.’s property, and once “was so upset and agitated that
[Ludescher] put his hands on the male guardian ad litem.” Ludescher e-mailed the Rice
County Attorney and the county sheriff a letter in which he claimed that Nelson may have
engaged in criminal intentional deprivation of parental rights by helping the mother take
the child from J.K. In the letter, Ludescher alleged that J.K. had court-ordered temporary
legal and physical custody, and sole custody of the child. Ludescher failed to mention that
custody would revert back to the mother if the CHIPS proceedings were dismissed because
J.K. had no custodial rights, or that the court had authorized a trial home visit with the
mother. As a result of Ludescher’s e-mail, Nelson was questioned by the sheriff and a
criminal investigation was commenced by the Le Sueur County Sheriff to avoid any
conflicts of interest.
7
On May 4, 2018, Ludescher moved the juvenile court for ex parte relief, seeking to
have custody of the child returned to J.K. On May 7, 2018, the court denied the motion,
recognizing that the prior orders purporting to grant temporary legal custody of the child
to J.K. were unenforceable given the CHIPS statutes, and scheduled a hearing for May 10,
2018. At the hearing, Ludescher again accused Nelson of a crime and read her a
Miranda-esque warning on the record. 4 Ludescher also argued that J.K. had custody based
on the temporary custody granted in prior CHIPS orders. On June 25, 2018, upon a motion
from Nelson, the juvenile court sanctioned Ludescher and ordered him to cease and desist
his custody arguments.
G.N. Matter
G.N. retained Ludescher in early 2017 for representation in the litigation of G.N.’s
father’s estate (estate case). On December 14, 2017, G.N. was committed as mentally ill
to the Commissioner of Human Services and North Memorial Health Hospital for an initial
period of 6 months, which was later extended for another 12 months.
4
Though Ludescher denied making these statements at the evidentiary hearing, the
referee found that the transcript of the May 10, 2018, hearing included the following
statements from Ludescher:
Your Honor, before we get started, I don’t know if it’s appropriate that we
continue forward. I have made a complaint to the Rice County Sheriff’s
Office asking the Rice County Sheriff to investigate intentional deprivation
of parental rights. They have agreed to do so . . . I would advise the parties
that anything they say can and could be used against them. They have a right
not to testify or not to say anything, and their Fifth Amendment rights are
implicated if, in fact, there is a criminal investigation and the matter moves
forward.
8
On March 2, 2018, Ludescher filed a certificate of representation on G.N.’s behalf
in the estate case. In late March, the court appointed Stephen Ecker to serve as G.N.’s
attorney in proceedings regarding a guardianship and conservatorship
(guardianship/conservatorship case) and appointed Alternative Resolutions, Inc. (ARI) as
G.N.’s emergency guardian and conservator. ARI’s appointments became permanent in
June 2018.
J. Scott Braden represented ARI in the guardianship/conservatorship case. The
letters of guardianship and conservatorship granted ARI full powers and authority,
including those in Minn. Stat. §§ 524.5-313(c), 524.5-417(c) (2022). Those powers
included the powers to represent G.N. in any court proceedings, and to approve or withhold
approval of any contract, except for necessities, that G.N. wanted to make. See Minn. Stat.
§ 524.5-417(c).
On July 12, 2018, Braden, on ARI’s behalf, terminated Ludescher’s representation
of G.N. in the estate case and requested Ludescher’s files on G.N. Ludescher still
continued to provide G.N. legal services and to bill him for those services at a rate of $200
per hour. On August 3, 2018, Braden sent another letter, again requesting G.N.’s file and
an invoice for services. Because Ludescher had sent ARI a bill, Braden testified that ARI
needed the invoices to do its fiduciary duty to verify Ludescher’s fees before paying
Ludescher’s bill.
Ludescher did not provide the file or invoices. On August 10, 2018, Ludescher
requested the documentation that established ARI as G.N.’s guardian and conservator.
Braden sent Ludescher the requested documentation on August 15, 2018, explained that
9
ARI had full contract authority with no restrictions, reminded Ludescher that ARI
terminated Ludescher’s contract with G.N. on July 12, 2018, and again requested G.N.’s
file. Ludescher did not provide the file.
At a hearing in the estate case on August 17, 2018, Ludescher appeared and
contested his discharge. The probate court took the issue under advisement and gave
Ludescher the opportunity to file a brief; Ludescher did not do so. On September 4, 2018,
the probate court issued an ex parte order, finding that ARI was G.N.’s substitute decision
maker in the estate case, and that Braden was the proper attorney of record for service of
process on G.N. Ludescher did not file a withdrawal of representation in the estate case.
The probate court issued another order on November 15, 2018, finding that Ludescher had
not been G.N.’s attorney of record in the estate case since July 2018.
Despite these orders from the probate court, Ludescher did not produce G.N.’s file
and continued to consult with and bill G.N. A trial in the estate matter was scheduled for
February 2019 and Braden and ARI still did not have G.N.’s file, both of which they
believed were necessary to represent G.N.’s best interests at the trial, so Braden filed an ex
parte motion seeking an order requiring Ludescher to release his complete file on G.N. The
probate court granted this motion and ordered Ludescher to release G.N.’s file within 48
hours, including all e-mails, correspondence, pleadings, records, and invoices. Ludescher
partially complied, sending the file without any invoices—Ludescher claimed that G.N.
did not want him to disclose the invoices.
On April 5, 2019, while G.N. was still incapacitated, Ludescher filed a claim in
conciliation court against G.N. seeking $8,372.10 for legal services provided from
10
February 2018 through April 2019. Ludescher filed this conciliation claim even though
ARI was willing to pay Ludescher’s legal fees if the invoices supported Ludescher’s billing
and G.N. had the financial resources.
On August 30, 2019, at a conciliation hearing, Ludescher told the conciliation court
that he and G.N. had reached a settlement agreement wherein G.N. would pay $5,000.
ARI, as G.N.’s guardian and conservator, disputed the validity of this agreement given
G.N.’s lack of capacity, and ARI again requested Ludescher’s retainer agreement and
itemized invoices. Ludescher was, again, ordered to produce his retainer agreement and
itemized invoices by September 30, 2019. Ludescher again did not comply.
On October 16, 2019, the probate court terminated G.N.’s guardianship and
conservatorship. On October 28, 2019, Ludescher requested, and the conciliation court
granted, dismissal of the conciliation claim because G.N., now restored to capacity, would
voluntarily pay Ludescher.
The invoices, obtained in this disciplinary process, show that Ludescher charged
G.N. $3,160 in legal fees and $165.85 in total expenses between July 12, 2018 (the date
ARI terminated Ludescher’s representation) and October 19, 2019 (when G.N. was
restored to capacity). These charges included fees associated with the conciliation action
Ludescher filed against G.N.
Disciplinary Proceedings
The Director received complaints about Ludescher’s conduct in July and August
2018 (in the J.K. matter), and September 2019 (in the G.N. matter), and opened an
investigation. On March 3, 2022, the Director petitioned for disciplinary action against
11
Ludescher based on his alleged misconduct in both the J.K. and G.N. matters. The Director
alleged the following rule violations: (1) Ludescher’s repeated arguments that J.K. had
custody of the child violated Minn. R. Prof. Conduct 1.1 and 3.1; (2) Ludescher’s
allegations of criminal activity against Nelson and knowingly false statement that J.K. had
sole temporary legal and physical custody violated Minn. R. Prof. Conduct 4.1 and 4.4(a);
(3) Ludescher’s suit against G.N., an incapacitated client, for attorney’s fees when ARI
was willing to pay the fees violated Minn. R. Prof. Conduct 1.1, 3.1, and 8.4(d);
(4) Ludescher’s refusal to provide G.N.’s file upon termination and request, refusal to
produce invoices to the conservator, and simultaneous demand for payment of said invoices
violated Minn. R. Prof. Conduct 1.16(d) and 8.4(d); and (5) Ludescher’s choice to continue
representing and billing G.N. without court authorization after Ludescher’s services were
terminated violated Minn. R. Prof. Conduct 1.5(a), 1.16(a)(3), and 8.4(d).
After Ludescher answered the petition, we appointed a referee who held a 3-day
evidentiary hearing at which the parties submitted a collective 114 exhibits and presented
testimony from Rice County District Court Judge Long, Jennifer Nelson, Carrie Doom
(Director’s child protection expert), J. Scott Braden, Ludescher, J.K., Patricia Zenner
(Ludescher’s child protection expert), and Jill Sauber (Ludescher’s
guardianship/conservatorship expert).
The referee concluded the following: (1) Ludescher’s custody arguments in the J.K.
matter “had no support in fact and law and showed a lack of thoroughness, preparedness
and legal skill in representing a client,” violating Minn. R. Prof. Conduct 1.1 and 3.1;
(2) Ludescher made “a knowingly false statement” by claiming that Nelson deprived J.K.
12
of parental rights and helped abduct J.K.’s child, violating Minn. R. Prof. Conduct 4.1;
(3) Ludescher’s claims that Nelson committed a crime “had no purpose other than to
embarrass” Nelson, violating Minn. R. Prof. Conduct 4.4(a); (4) Ludescher’s refusal to
produce G.N.’s file upon termination or any of the invoices violated Minn. R. Prof.
Conduct 1.16(d) and 8.4(d); (5) Ludescher’s choice to sue G.N. for fees that G.N.’s
conservator was willing to pay “had no basis in law or fact; demonstrated a lack of legal
knowledge, skill necessary for representation; and was conduct prejudicial to the
administration of justice,” violating Minn. R. Prof. Conduct 1.1, 3.1, and 8.4(d);
(5) Ludescher’s continued billing of G.N. without court authorization amounted to the
charging of an unreasonable fee in violation of Minn. R. Prof. Conduct 1.5(a); and
(6) Ludescher’s failure to withdraw from representing G.N. violated Minn. R. Prof.
Conduct 1.16(a)(3).
The referee found several aggravating factors: (1) G.N.’s vulnerability;
(2) Ludescher’s substantial experience in both CHIPS and guardianship/conservatorship
cases; (3) Ludescher’s history of prior discipline; (4) Ludescher’s knowingly false
statement during the disciplinary hearing; and (5) Ludescher’s lack of recognition or
remorse for his misconduct. The referee found no mitigating factors. The referee
recommended a 30-day suspension.
ANALYSIS
Ludescher timely ordered a transcript, so the referee’s findings of fact and
conclusions are not binding. Rule 14(e), Rules on Lawyers Professional Responsibility
(RLPR). We nevertheless extend “great deference” to the referee’s findings and
13
conclusions. In re MacDonald, 906 N.W.2d 238, 243 (Minn. 2018) (citation omitted)
(internal quotation marks omitted). “We review the referee’s findings of fact and
application of the Minnesota Rules of Professional Conduct to the facts of the case for clear
error.” In re Nielson, 977 N.W.2d 599, 608 (Minn. 2022). “A referee’s findings are clearly
erroneous when they leave us with the definite and firm conviction that a mistake has been
made.” Id. (citation omitted) (internal quotation marks omitted). We “review de novo the
referee’s interpretation of the Rules of Professional Conduct and other conclusions of law
that do not rely on the referee’s factual findings.” In re Laver, 984 N.W.2d 556, 565 (Minn.
2023) (citing In re Montez, 812 N.W.2d 58, 66 (Minn. 2012)).
Ludescher argues the referee made three errors of law that resulted in incorrect
rule-violation conclusions. Specifically, he argues the referee erred by (1) concluding that
the juvenile court’s custody-granting orders were unenforceable, (2) concluding that Minn.
Stat. § 524.5-417 did not apply to Ludescher’s representation of G.N., and (3)
misinterpreting Minn. R. Prof. Conduct. 1.6 in concluding that Ludescher’s failure to
provide G.N.’s file violated the rules of professional conduct. We address each argument
in turn—as well as Ludescher’s arguments against the referee’s findings and conclusions—
and then address the appropriate discipline for Ludescher's misconduct.
I.
We first address Ludescher’s argument regarding the juvenile court’s orders in the
J.K. matter. Ludescher argues that his actions were made with the support of valid juvenile
court orders granting J.K. temporary custody of the child. Ludescher first asks us to
determine that the referee improperly found that the juvenile court’s orders were
14
unenforceable. If this court does so, Ludescher’s remaining arguments are best understood
as claiming that his actions cannot constitute rule violations because he acted with the
support of valid court orders. Because Ludescher’s arguments that he did not violate any
rules of professional conduct rely on his assumption that the referee made a legal error, we
will first review Ludescher’s arguments about the enforceability of the juvenile court’s
orders before turning to a review of the referee’s rule-violation conclusions.
A.
We begin by describing the legal backdrop in CHIPS cases. Unmarried mothers
have sole legal and physical custody of their children born outside of marriage under Minn.
Stat. § 257.541, subd. 1. (2022). If a court adjudicates a child as CHIPS, the court may
place the child with a non-custodial father under Minn. Stat. § 260C.201, subd. 1(a)(1)(i)
(2022). Minnesota law, however, specifically states that such an order placing a child with
a non-custodial father “does not confer legal custody [of the child] on that parent.” Id.
After a CHIPS adjudication, Minn. Stat. § 260C.201, subd. 1(a)(2) (2022) only grants the
court two choices for transferring legal custody of the child—custody can be transferred to
a child-placing agency or to the responsible social services agency.
The referee determined that “[t]he juvenile court’s order conferring temporary legal
custody to JK is unsupported by Minnesota law because the juvenile court could not have
transferred legal custody to JK as a disposition.” The referee also found that the testimony
of Ludescher’s expert witness that the juvenile court’s orders were valid and enforceable
was “not reasonable” and “not persuasive or credible” given the CHIPS laws and the court
of appeals opinion associated with this case, see In re Children of S.E.M., No. A18-0177,
15
2018 WL 2407268, *1 n.2 (Minn. App. May 29, 2018) (holding that even though the
juvenile court in this case “ordered that the child ‘remain in the temporary physical and
legal custody of father,’ ” the agency, “not a noncustodial parent, has legal responsibility
for a child ‘taken into custody’ and placed with a noncustodial parent under the CHIPS
statute”).
Ludescher argues that it is a “fundamental and perfunctory” concept that “[a] court
order is a court order,” and claims the Rooker-Feldman doctrine supports his contention.
Ludescher also seems to point to the result of the referee’s decision as support for his legal
argument because Ludescher believes the result of this interpretation “obligates attorneys
to challenge the validity of a court order to the detriment of their own client’s interests if
the legal reasoning or outcome may be later deemed flawed.”
Ludescher provided no caselaw that supports his argument that an “order is an
order” and therefore is always enforceable without any caveats, likely because supporting
authority does not exist 5. The most apt caselaw is that surrounding the liability imputed
on sheriffs who process court orders. In Robinette v. Price, 8 N.W.2d 800, 806 (Minn.
1943), we held that, “[a] sheriff, being neither permitted nor required to inquire into the
validity of an order placed in his hands for execution, is protected by the order even though
the proceedings in which it was issued are erroneous and voidable.” The Robinette holding
5
Our decision in this case should not be misconstrued to undermine the basic
principle that court orders are enforceable until held otherwise. See Minn. R. Civ. App. P.
108.01, subd. 1. Rather, our decision recognizes an attorney’s duty of candor to the court,
and holds that this duty requires an attorney to inform the court if he knows its order
contains a blatant legal error and not to take advantage of an erroneous court order.
16
could be seen as suggesting that when someone acts with the support of a seemingly-valid
court order and it is not their job to assess the validity of the order, then they cannot be
penalized for complying with the order.
But Ludescher’s circumstances are inherently different than that of the sheriff in
Robinette because Ludescher is an attorney. Ludescher’s job is, in part, to assess the
validity of the order: he must competently interpret and apply the law, and he is required
by the rules of professional conduct to be honest and forthright with the court in making
arguments. See Minn. R. Prof. Conduct 1.1, 3.3. Ludescher testified in the disciplinary
hearing that he knew the child’s placement with J.K. did not automatically grant custody
on the noncustodial parent. His own testimony shows he knew the juvenile court’s orders
were unsupported by the law. Thus, Ludescher had an ethical obligation not to improperly
leverage or take affirmative action based on the loose language of an order that was
contrary to governing law. This obligation did not require Ludescher to act against his
client, but it did require Ludescher to inform the court of the error in the order, refrain from
the following improper acts: initiating a separate paternity and custody action for J.K. in
family court, filing a motion to dismiss the CHIPS petition in relation to J.K.’s child on the
grounds that J.K. had been granted temporary legal custody, sending a letter to the Rice
County Attorney and sheriff referencing the erroneous court order and alleging that Nelson
may have engaged in intentional criminal deprivation of parental rights, and filing a motion
for ex parte relief for the return of custody to J.K. Ludescher used the loose language of
the court order as the basis for filing multiple custody actions and to accuse opposing
counsel, Nelson, of a criminal offense; these actions show he affirmatively and improperly
17
leveraged the juvenile court’s order while knowing the order was contrary to governing
law.
We next turn to Ludescher’s Rooker-Feldman argument. We have explained that
the Rooker-Feldman doctrine “prohibits federal district courts from exercising subject-
matter jurisdiction over claims seeking relief that would, in essence, vacate a state court
judgment, because only the United States Supreme Court may review such judgments.” In
re Nora, 942 N.W.2d 127, 130 n.2 (Minn. 2019). Ludescher’s argument is that the referee
does not have the power to determine that the juvenile court’s orders were unenforceable.
There is no caselaw applying the Rooker-Feldman doctrine in this way. Moreover, we find
application of the Rooker-Feldman doctrine inappropriate here because the juvenile court
itself deemed these orders unenforceable in its May 7, 2018, order. The court of appeals
also undermined the validity of the juvenile court’s orders in its May 2018 opinion, S.E.M.,
2018 WL 2407268, at *1 n.2. These decisions were both made in May 2018—over 4 years
before the referee in these proceedings determined that the orders were unenforceable. The
Rooker-Feldman doctrine does not apply here because the referee simply reiterated the
conclusion of both the juvenile court and the court of appeals that these orders were
unenforceable.
Lastly, we note that Ludescher’s argument that “an order is an order” is factually
disingenuous given the language in the juvenile court’s orders. The first order issued by
the juvenile court on September 13, 2017, stated that the child “shall remain in the
temporary legal and physical custody of . . . [J.K.] subject to the protective supervision of”
the agency. After this order, Ludescher moved to dismiss the CHIPS petition as it related
18
to J.K., arguing that the petition should be dismissed because J.K.’s conduct was not in
question in the CHIPS proceedings and “the court granted temporary custody to [J.K.],” so
the child no longer needed protection.
On October 20, 2017, the juvenile court denied Ludescher’s motion, explaining that
the child was in “temporary physical and legal custody” of J.K. and “subject to the
protective supervision” of the agency, and confirmed that J.K. “does not have any
court-ordered custodial rights or parenting time.” When the juvenile court summarized
Ludescher’s custody argument, it stated that the argument was based on a custody
agreement that J.K. and the mother had reached. The juvenile court concluded that the
mother was the custodial parent of the child, so the goal of the CHIPS proceedings was to
reunify the child with the mother, not J.K. In other words, it became clear in this
October 20, 2017, order that the juvenile court did not understand Ludescher’s custody
argument to be based on the temporary grant of custody in the juvenile court’s earlier order.
And the juvenile court clearly articulated that J.K. had no custodial rights to the child
outside of the temporary grant in the CHIPS proceedings. The juvenile court continuously
reiterated that J.K. had no custodial rights outside the temporary grant in later orders
throughout the CHIPS proceedings. The juvenile court also ordered on March 15, 2018,
that the agency “shall have the authority to begin a trial home visit with the Mother if/when
she obtains safe housing for the Children.”
Accordingly, Ludescher’s argument that “an order is an order” fails upon
considering what the juvenile court’s orders made clear: (1) J.K. did not have any lasting
custodial rights to the child; (2) the juvenile court did not intend to confer any permanent
19
custody on J.K.; (3) the mother remained the only custodial parent; (4) the purpose of the
CHIPS proceeding was to reunify the mother and the child; and (5) the agency had
authority to start trial home visits with the mother. All of these points clearly undermine
Ludescher’s arguments that the juvenile court’s order conferred custody of the child on
J.K. These points also undermine Ludescher’s argument that “an order is an order” because
he clearly disregarded these portions of the orders in making his repeated custody
arguments. Ludesher’s argument, then, seems to be that “an order is an order” only as to
the portions that are favorable to his client—but all unfavorable portions of the order are
not enforceable.
In sum, Ludescher’s actions with respect to the order are not protected by Robinette;
the Rooker-Feldman doctrine does not apply; the record shows that the juvenile court did
not intend to confer custody of the child on J.K.; and Ludescher knew that conferring
custody on J.K. was not a lawful CHIPS disposition. Consequently, the referee did not
make an error of law in concluding that the portions of the juvenile court’s orders
purporting to give J.K. custody of the child were unenforceable.
B.
We next turn to Ludescher’s arguments regarding the referee’s rule-violation
conclusions in the J.K. matter. Ludescher’s arguments on the referee’s rule-violation
conclusions relating to this matter are based on his assumption that he acted under the
authority of a valid court order, or that his repeated custody arguments were good faith
arguments aimed at expanding or modifying the law and are therefore protected from
disciplinary action under Minnesota Rule of Professional Conduct 3.1. As explained
20
above, the juvenile court’s orders did not validly confer custody. Moreso, we do not find
Ludescher’s argument that he made good faith arguments to expand the law compelling
given that the referee found that Ludescher knew “a parent who is labeled as a participant
to a CHIPS proceeding does not have legal custody of a child who is the subject of a CHIPS
petition” and that “a non-custodial parent could not be given legal custody of a child as a
disposition during a CHIPS proceeding because the CHIPS disposition statute only permits
legal custody to be transferred to a child placing agency or the county’s social services
agency.” Ludescher does not challenge these findings, and the record does not support that
the judge or opposing counsel in the CHIPS matter understood Ludescher’s custody
argument to be a good faith attempt to modify the existing and well-established law.
Consequently, we do not find Ludescher’s claim that he acted in good faith to modify
existing law to be compelling. A good faith effort to modify the law did not require
Ludescher to accuse Nelson of the crime of depriving parental rights, nor did it require
Ludescher’s unprofessional and bullying behavior. Ludescher’s actions do not indicate
good faith.
Based on our finding of no legal error in the referee’s conclusions on the
unenforceability of the juvenile court’s orders, our conclusion that Ludescher did not act
in good faith to modify existing law, and Ludescher’s failure to support his rule-violation
arguments with any additional support or challenges to the referee’s findings that underly
these rule-violation conclusions, we decline to review the referee’s rule-violation
conclusions.
21
II.
Next, we address Ludescher’s argument that ARI’s termination of his legal
representation of G.N. was not valid because ARI did not follow the procedure laid out in
Minn. Stat. § 524.5-417 (2022). Ludescher argues that his representation and billing of
G.N. after this purported termination was therefore done under a still-existing
attorney-client relationship and, so, could not have constituted violations of the Minnesota
Rules of Professional Conduct. Again, because Ludescher’s arguments that he did not
violate the rules of professional conduct rely on his assumption that the referee made a
legal error, we will first review Ludescher’s arguments about the applicability of section
524.5-417 to the termination of his attorney-client relationship with G.N. before turning to
a review of the referee’s rule-violation conclusions.
A.
Ludescher argues that the referee incorrectly interpreted section 524.5-417(e)
because the statute’s plain language required ARI to petition for a court order to invalidate
the attorney-client relationship, and because G.N. had retained Ludescher in the months
before he was declared incapacitated.
In July 2018, Braden, ARI’s attorney, terminated Ludescher’s legal representation
of G.N. via letter and requested G.N.’s file. Ludescher continued to provide G.N. legal
services after this termination and did not send Braden G.N.’s file. On August 17, 2018,
Ludescher appeared at a hearing in the estate case to contest his discharge. The probate
court took the issue under advisement and gave Ludescher the chance to file a brief on the
issue; Ludescher never filed a brief. The probate court, in a November 2018 order,
22
determined that ARI was G.N.’s guardian and conservator, would act as G.N.’s substitute
decision maker in the estate case, and named Braden as the proper attorney of record. The
probate court took “judicial notice” of the prior order “establishing that ARI, as [G.N.’s]
Guardian and Conservator, is his substitute decision maker with power to approve or
withhold approval of any contracts, and establishing J. Scott Braden as their attorney in the
present matter.” The probate court explained that “[t]his had the effect of legally validating
ARI’s authority, through attorney Braden, to terminate Mr. Ludescher’s contract to
represent [G.N.], which ARI did by letter on July 12, 2018.” Finally, the probate court
stated that “Ludescher never submitted a brief in support of his position” and,
consequently, found the issue moot moving forward. Ludescher argued about section
524.5-417(e)’s applicability for the first time in these disciplinary proceedings.
The first letter of conservatorship granted the conservator all powers within Minn.
Stat. § 524.5-313(c), and the second granted the conservator the powers in Minn. Stat.
§ 524.5-417(c)(1)-(6). This includes “the power to approve or withhold approval of any
contract, except for necessities, which the person subject to conservatorship may make or
wish to make.” Id. § 524.5-417(c)(5). It also includes “the duty to pay out of the estate of
the person subject to conservatorship all lawful debts of the person subject to
conservatorship.” Id. § 524.5-417(c)(2).
Ludescher argues that irrespective of ARI’s powers as a conservator under section
524.5-417(c), the conservator was required under section 524.5-417(e) to petition the court
to terminate Ludescher’s representation of G.N. Section 524.5-417(e) states:
23
Transaction set aside. If a person subject to conservatorship has made a
financial transaction or gift or entered into a contract during the two-year
period before establishment of the conservatorship, the conservator may
petition for court review of the transaction, gift, or contract. If the court finds
that the person subject to conservatorship was incapacitated or subject to
duress, coercion, or undue influence when the transaction, gift, or contract
was made, the court may declare the transaction, gift, or contract void except
as against a bona fide transferee for value and order reimbursement or other
appropriate relief. This paragraph does not affect any other right or remedy
that may be available to the person subject to conservatorship with respect to
the transaction, gift, or contract.
Minn. Stat. § 524.5-417(e).
Braden and Jill Sauber (Ludescher’s expert) also testified about how section
524.5-417(e) works. Braden explained that section 524.5-417(e) is usually used for
procedures like selling a house or land, entering a cell phone contract, or significant gifts.
In those cases, section 524.5-417(e) is “a two-year period of time where [conservators] try
to get [a conservatee’s] money back.” Braden testified that the decision to terminate
Ludescher’s representation was not about setting aside a transaction for which they would
attempt to recoup money, instead it was a termination of Ludescher’s ongoing or future
representation. Braden also testified that even if there were something about Ludscher’s
relationship with G.N. that needed to be set aside through section 524.5-417(e), ARI and
Braden could not determine that without G.N.’s file and Ludescher’s invoices, which
Ludescher repeatedly refused to provide.
Sauber testified that section 524.5-417(e) applies to any contract the conservator
believed was the result of duress, coercion, or undue influence and requires the conservator
to “actually present evidence that the person was subject to duress, coercion, or undue
influence, or was in fact incapacitated at that time.” She explained that the difference
24
between sections 524.5-417(e) and (c)(5) is “temporal in nature,” so you look at the date
the conservator was appointed and “[a]ny transactions going forward from that point in
time are subject to the withholding or approval of the conservator. Anything going back
in time, if the conservator wants to set aside or void a transaction, must fall into [section
524.5-417(e)] and the conservator must follow th[ose] procedures.” Sauber also testified
that Braden did not have the ability to unilaterally cancel Ludescher’s representation of
G.N. based on section 524.5-417(e).
The referee “did not find [Sauber’s] expert[] testimony” on section 524.5-417(e)
and its applicability to Ludescher’s circumstances to be “persuasive given the broad powers
of a conservator needed to protect the assets of the conservatee, the explicit language of
the statute, and the testimony of Mr. Braden regarding the workings of the professional
conservator under the law.” The referee found that Ludescher never asked ARI or Braden
to follow the statutory process in section 524.5-417(e) to terminate Ludescher’s
representation, and even if he had made such a request, Ludescher’s “failure to provide his
retainer agreement and the invoices would have made it difficult, if not impossible, for ARI
to seek a transaction set-aside” under section 524.5-417(e). Regardless, the referee found
that Braden and ARI were not required to use section 524.5-417(e) to prevent Ludescher
from continuing to act as G.N.’s attorney because the powers of conservatorship given to
ARI included the ability to initiate or terminate any representation on behalf of G.N.
While Ludescher argues that the language of section 524.5-417(e) plainly applies to
attorney-client relationships, there is no caselaw in Minnesota that applies that statute to
attorney-client relationships. The only authoritative caselaw Ludescher cites to is Hagen
25
v. Rekow, in which this court held that a guardian of an estate “does not become the alter
ego of the incompetent and is not empowered . . . to change an act performed by the
incompetent while mentally normal.” 91 N.W.2d 768, 771 (Minn. 1958). This court then
listed examples from prior caselaw where a guardian made changes to the ward’s savings
account in trust for another person, changed the beneficiary of the ward’s life insurance
policy, or waived a ward’s rights. Id. In Lawler v. Dunn, however, this court explained
that “[t]he right of a client to discharge his attorney at his election, with or without cause,
is universally recognized by the authorities.” 176 N.W. 989, 990 (Minn. 1920). This court
explained that if a client can terminate the attorney-client relationship at any time without
cause, and if a client has this right “as an implied condition of the contract under the law,
it follows as a natural consequence that he cannot be compelled to pay damages for
exercising that right which his contract gives him.” Id. The court held that the attorney
retains the right to recover the reasonable value of the services rendered, but the client’s
discharge of the attorney does not constitute a breach of contract. Id.
By its terms, section 524.5-417(e) applies when a conservator seeks to void a
contract or transaction the conservatee entered into before the conservatorship started if
that contract or transaction was entered into under duress or coercion. See Minn. Stat.
§ 524.5-417(e). This provision allows the conservator to protect the conservatee’s
financial assets if a transaction/contract was entered under duress before the conservatee
was declared incapacitated. Given that an attorney-client relationship is terminable at any
time without penalty to a client and that ARI and Braden did not seek to undo any actions
taken in Ludescher’s pre-conservatorship legal representation, but instead sought merely
26
to choose different representation going forward, section 524.5-417(e) did not apply to
Ludescher’s ongoing attorney-client relationship with G.N. The testimony from Sauber
and Braden is also consistent with this conclusion because ARI did not seek to recoup funds
already paid or earned by Ludescher. Instead, ARI sought to terminate the relationship
going forward and sought G.N.’s file and invoices from Ludescher so that it could perform
its fiduciary duty and pay Ludescher for his pre-conservatorship services. Consequently,
we conclude the referee did not err by concluding that section 524.5-417(e) did not apply
to ARI’s termination of Ludescher’s ongoing legal representation of G.N.
B.
We next turn to Ludescher’s arguments regarding the referee’s rule-violation
conclusions in the G.N. matter. Again, Ludescher’s arguments on the referee’s
rule-violation conclusions are based on his assumption that section 524.5-417(e) should
have applied to ARI’s termination of his attorney-client relationship with G.N., and that he
had an ongoing attorney-client relationship with G.N. As we have explained, we disagree
with this contention and instead conclude that the referee properly determined that section
524.5-417(e) was not applicable. Because we find no legal error in the referee’s
conclusions on the applicability of section 524.5-417(e) and Ludescher does not support
his rule-violation arguments with additional support and does not challenge the referee’s
27
underlying factual findings, we find it unnecessary to review the referee’s rule-violation
conclusions. 6
6
Although unnecessary, we do briefly address the rule-violation findings. We review
the referee’s application of the Minnesota Rules of Professional Conduct to facts for clear
error. In re Aitkin, 787 N.W.2d 152,158 (Minn. 2010). When we are left with a definite
and firm conviction that a mistake was made, the clearly erroneous standard is satisfied.
In re Bonner, 896 N.W.2d 98, 105 (Minn. 2017). The referee found that Ludescher’s
failure to produce G.N.’s file to ARI after termination violated Minn. R. Prof. Conduct
1.16(d) and 8.4(d). Rule 1.16(d) states that after termination “a lawyer shall take steps to
the extent reasonably practicable to protect a client’s interests,” which includes “giving
reasonable notice to the client, allowing time for employment of other counsel, [and]
surrendering papers and property to which the client is entitled.” Rule 8.4(d) states that it
is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the
administration of justice.” As the referee found, and Ludescher did not contest,
Ludescher’s actions in failing to produce the file and invoices “impaired ARI’s ability to
act as guardian and conservator for GN”; these actions required ARI to “take additional
measures to protect GN’s interests,” which ultimately cost G.N. money that he would not
have otherwise incurred had [Ludescher] complied with ARI’s requests. Ludescher’s
actions also “resulted in unnecessary litigation as each of the motions seeking confirmation
of ARI’s decision-making authority and Respondent’s files would not have been needed.”
These findings are supported by Braden’s testimony. Consequently, the referee’s
rule-violations conclusion was not clearly erroneous.
The referee concluded Ludescher’s “conduct in suing an incapacitated client for
attorney’s fees – when a conservator was available and willing to pay the fees, subject to
performing its court-ordered fiduciary duties” – violated Minn. R. Prof. Conduct 1.1, 3.1,
and 8.4(d) because his actions “had no basis in law or fact; demonstrated a lack of legal
knowledge, skill necessary for representation; and was conduct prejudicial to the
administration of justice.” Rule 1.1 requires lawyers to “provide competent representation
to a client,” which includes “the legal knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation.” Rule 3.1 states that lawyers “shall not bring
or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in
law and fact for doing so that is not frivolous.” Rule 8.4(d) states that it is professional
misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of
justice.” As the referee found and Ludescher did not contest, ARI was willing to pay
Ludescher’s bills if they were supported by the invoices, and Ludescher tried to circumvent
ARI’s fiduciary duty to G.N. by filing a conciliation action against G.N. Ludescher tried
to contravene the conservatorship process, meant to protect G.N.’s estate and assets. Had
Ludescher simply provided ARI with the invoices for his bills, there would have been no
28
III.
Next, we address Ludescher’s arguments that the referee misinterpreted Minnesota
Rule of Professional Conduct 1.6(a) by rejecting his argument that the rule permits but
does not require disclosure of a client’s file under court order. Ludescher claims that this
misinterpretation led to unsupported rule-violation conclusions. Because Ludescher’s
arguments about whether he violated the various rules of professional conduct rely on his
assumption that the referee misinterpreted Rule 1.6(a), we first review Ludescher’s
arguments about Rule 1.6(a) before turning to a review of the referee’s rule-violation
conclusions.
reason for Ludescher to sue G.N. in conciliation court. Consequently, the referee’s
rule-violation conclusion was not clearly erroneous.
Next the referee concluded that Ludescher’s “conduct in continuing to bill an
incapacitated GN absent court authorization, amounted to an unreasonable fee” violating
Minn. R. Prof. Conduct 1.5(a). Rule 1.5(a) states that “[a] lawyer shall not . . . charge, or
collect an unreasonable fee or an unreasonable amount for expenses” and lists a number of
criteria to be used in determining if a fee is valid. Clear in the plain language of the rule
and the comments is that these fees are charged to clients. Ludescher did not have an
ongoing attorney client relationship with G.N. after ARI terminated Ludescher on July 12,
2018. But the referee found, and Ludescher does not contest, that he charged G.N. “$3,160
in legal fees and $165.85 in total expenses between July 12, 2018, and October 19, 2019,
including all fees associated with the conciliation court case filed against GN” Meaning,
Ludescher charged G.N. for fees when they did not have an ongoing attorney client
relationship, and charged G.N. for fees accrued while Ludescher was suing G.N.
Consequently, the referee’s rule-violation conclusion was not clearly erroneous.
Finally, the referee found that Ludescher’s failure “to withdraw from representing
GN after he was discharged by ARI violated [Minn. R. Prof. Conduct] 1.16(a)(3).” Rule
1.16(a)(3) states that a lawyer “shall withdraw from the representation of a client if . . . the
lawyer is discharged.” Given that section 524.5-417(e) did not apply and Ludescher’s
contract was terminated on July 12, 2018, the probate court ordered that Ludescher could
no longer represent G.N. in the estate case, and there is no dispute that Ludescher never
filed a withdrawal, the referee’s rule-violation conclusion was not clearly erroneous.
29
The referee found that Ludescher’s claim that he was prohibited from providing
G.N.’s information was “not persuasive.” The referee explained that Rule 1.6(b) “permits
a lawyer to reveal information related to a client if ‘the lawyer reasonably believes the
disclosure is necessary to comply with other law or a court order,’ ” and Ludescher “was
explicitly directed by the court to provide his file and invoices” and “any reasonable
attorney would have understood the disclosure was necessary to comply with the court’s
order.” Because Ludescher “was court-ordered to provide the information,” the referee
determined that Ludescher could not “use Rule 1.6, MRPC, as an excuse not to comply
with the court’s order.” Ludescher argues the referee misinterpreted the plain language in
Rule 1.6(a) by rejecting the argument that Rule 1.6(a) prevented Ludescher from disclosing
his client’s information. Ludescher contends that Rule 1.6 allows for permissive disclosure
of a client’s file when under a court order but does not require disclosure. Ludescher,
however, does not support his arguments with any legal citation other than his citations to
the rule, so we decline to review this argument as it is forfeited. In re McCloud,
955 N.W.2d 270, 280 n.12 (Minn. 2021) (deeming an argument forfeited because the
attorney provided “no argument or citation to authority supporting this conclusion”). 7
7
We also note the logical infirmity of this argument—the referee did not find that
Ludescher violated Rule 1.6. Instead, the referee found that Ludescher violated rule
1.16(d) by failing to disclose G.N.’s file, which the conservator (who acted as G.N.) was
entitled to have. Ludescher is attempting to use Rule 1.6 as a shield against his obligation
to disclose the file in Rule 1.16(d). For this to work, Rule 1.6 would have to prohibit a
disclosure of a file in this instance, which it does not do by its plain language because of
the applicability of Rule 1.6(b)(9) (permitting disclosure if “the lawyer reasonably believes
the disclosure is necessary to comply with other law or a court order”). Consequently, it
is irrelevant whether Rule 1.6 requires disclosure so long as it permits disclosure.
30
As Ludescher’s arguments about the validity of the referee’s rule-violation
conclusions are based on his assumption that the referee misinterpreted Rule 1.6, we
decline to review the referee’s rule-violation conclusions because the condition precedent
Ludescher gave for these arguments—the referee’s supposed misinterpretation of Rule
1.6—has been forfeited.
IV.
Finally, we consider the appropriate discipline for Ludescher’s misconduct. The
referee recommended a 30-day suspension but noted that none of the disciplinary cases
cited by the parties “appear[ed] to fit well with the misconduct found [in Ludescher’s case],
and so the recommended sanction of suspension reflects deference to the Supreme Court
in establishing the appropriate sanction.” The Director argues that a 60-day suspension
and probation term would be more consistent with the purposes of discipline given the
nature of the misconduct, the vulnerability of the clients, and the presence of multiple
aggravating factors. Ludescher argues that no suspension is warranted, but alternatively
argues that a 60-day suspension is unwarranted given how easily distinguished Ludescher’s
case is from other 60-day discipline cases.
Although we give great weight to the referee’s recommendation for discipline, we
retain the “ultimate responsibility for determining appropriate discipline.” In re Montez,
812 N.W.2d 58, 66 (Minn. 2012). The purpose of disciplinary sanctions is to protect the
public and judicial system and to deter future misconduct by attorneys—not to punish the
attorney. In re Vaught, 693 N.W.2d 886, 890 (Minn. 2005). We consider four factors
when imposing discipline: (1) the nature of the misconduct; (2) the cumulative weight of
31
the disciplinary violation; (3) the harm to the public; and (4) the harm to the legal
profession. In re Butler, 960 N.W.2d 540, 552 (Minn. 2021). We also consider
aggravating and mitigating factors. Id. Finally, while we consult similar cases and attempt
to impose consistent discipline, the proper discipline is ultimately determined “based on
the unique facts and circumstances of each case.” In re Matson, 889 N.W.2d 17, 25 (Minn.
2017) (citation omitted) (internal quotation marks omitted).
A.
We begin with the nature of Ludescher’s misconduct. Ludescher’s misconduct
included making knowingly false statements, which we have stated “demonstrates a lack
of honesty and integrity, and warrants severe discipline.” In re Lundeen, 811 N.W.2d 602,
606, 608 (Minn. 2012) (citing In re Ulanowski, 800 N.W.2d 785, 800 (Minn. 2011)
(Ulanowski I)). Ludescher charged G.N. unreasonable fees, which we have held warrants
suspension, especially when coupled with other misconduct. See In re Igbanugo,
863 N.W.2d 751, 760–762 (Minn. 2015). Ludescher’s actions in both matters involved
bringing frivolous claims, and we have held that “[s]ubmitting frivolous claims is conduct
also subject to sanctions. We have held that suspension is appropriate when an attorney
files one frivolous, vexatious lawsuit.” Ulanowski I, 800 N.W.2d at 800.
Ludescher committed misconduct towards Nelson by telling the county attorney and
sheriff that she committed a crime, and we have held that “[i]mproperly threatening
criminal prosecution and harassing opposing counsel may also subject an attorney to
discipline.” Ulanowski I, 800 N.W.2d at 800-01 (citing to Nelson, 733 N.W.2d 458, 461
32
(Minn. 2007) (noting an attorney had been admonished for improperly threatening
“criminal prosecution to coerce payment in a civil matter”)).
B.
We next consider the cumulative weight of Ludescher’s disciplinary violations. We
distinguish between “a brief lapse in judgment or a single, isolated incident and multiple
instances of misconduct occurring over a substantial amount of time.” In re Pearson¸
888 N.W.2d 319, 322 (Minn. 2016) (citation omitted) (internal quotation marks omitted).
The referee found Ludescher committed multiple rule violations between 2017 and 2019.
Ludescher’s actions spanned multiple years, two client matters, and involved repetitive
misconduct of the same nature in both client matters. Consequently, Ludescher’s
misconduct involved multiple instances of misconduct over a substantial amount of time
and cannot be characterized as a brief lapse in judgment. See Capistrant, 905 N.W.2d 617,
621 (Minn. 2018) (concluding that while misappropriation only occurred once, the
misconduct was neither a “brief lapse in judgment” nor a “single, isolated incident”
because other misconduct spanned 2 years).
C.
Next, we evaluate the harm that Ludescher’s misconduct caused to the public and
to the legal profession. The Director contends that Ludescher’s actions harmed Nelson and
Braden and interfered with ARI’s ability to fulfill its duties. The Director also contends
that Ludescher’s arguments that were contrary to well established law undermined public
confidence and wasted judicial resources, that Ludescher’s attempt to exploit a court error
to benefit his client while knowing it was erroneous harmed the legal profession, and that
33
Ludescher’s repeated advocacy of frivolous arguments based on these knowingly false
theories harmed the legal profession. Additionally, the Director argues that Ludescher’s
refusal to comply with court orders and harassing opposing counsel undermined the public
trust in the legal system. Ludescher made no argument regarding the harm caused to the
legal profession or public.
In assessing harm, we consider how many and to what extent clients were harmed.
In re Coleman, 793 N.W.2d 296, 308 (Minn. 2011). Ludescher’s actions resulted in harm
to his clients and others involved in the cases. Ludescher’s actions caused Nelson
emotional distress given the criminal investigation opened against her and the
embarrassment caused to her when Ludescher read her a Miranda-esque warning on the
record at a proceeding where others were present. Braden also testified that Ludescher’s
actions had a negative impact on him. Ludescher’s actions harmed G.N. by accumulating
legal and other fees that were unnecessary. In general, Ludescher’s violations of the rules
of professional conduct are inherently detrimental to respect for the legal profession and
the judicial system as a whole. See In re Jaeger, 834 N.W.2d 705, 710–11 (Minn. 2013).
Ludescher’s false statements to the juvenile court in the J.K. matter undermined public
confidence in the legal system. See In re Sea, 932 N.W.2d 28, 36 (Minn. 2019). And the
referee determined that Ludescher made frivolous claims in both matters, which are a waste
of the court’s resources. See In re Albrecht, 779 N.W.2d 530, 542 (Minn. 2010) (stating
that an attorney’s neglect caused “the needless expenditure of judicial resources and the
resources of opposing counsel, which harmed the legal profession”).
34
D.
To determine the appropriate discipline, we also must examine any mitigating and
aggravating factors. The referee found no mitigating factors and Ludescher does not
contend that any mitigating factors exist. The referee found five aggravating factors:
(1) G.N.’s vulnerability, (2) Ludescher’s substantial experience in CHIPS and
guardianship and conservatorship matters, (3) Ludescher’s prior discipline,
(4) Ludescher’s knowingly false statement at a disciplinary hearing, and (5) Ludescher’s
lack of remorse.
Our caselaw supports the referee’s determination that these factors should aggravate
Ludescher’s discipline. G.N. was subject to a conservatorship and when “an attorney
exhibits callous disregard for the physical and financial well-being of vulnerable,
dependent persons, that attorney has a heavy burden to persuade the court [of their] fitness
to continue the practice of law.” See In re Harrigan, 841 N.W.2d 624, 631 (Minn. 2014)
(citation omitted) (internal quotation marks omitted); see also Ulanowski, 834 N.W.2d
697, 704 (Minn. 2013) (Ulanowski II).
We have held that substantial experience practicing law is an aggravating factor.
See In re Tigue, 900 N.W.2d 424, 432 (Minn. 2017). Ludescher has been a lawyer for over
30 years, which is substantial experience practicing law; he has also practiced in CHIPS
matters since 1989 and conservatorship and guardianship matters since 2000, which
constitutes substantial experience in the specific areas involved here. See Ulanowski I,
800 N.W.2d at 802 (finding 6 years after admission to practice law and 2 years of full-time
practice at the time of his first act of misconduct was an aggravating factor).
35
Prior discipline is an aggravating factor. See, e.g., Capistrant, 905 N.W.2d at 619
(finding that previous discipline “weighs heavily” because it was for similar misconduct).
Ludescher has two prior admonitions, which included misconduct in representing a client
despite having a monetary judgment against that client and without obtaining written
informed consent, as well as misconduct in entering into a mortgage transaction with a
client and continuing to represent the client without obtaining informed written consent.
Although these incidents of prior discipline are an aggravating factor, we do not conclude
that these weigh heavily against Ludescher given the lack of severity of the prior discipline
and the differences between the prior discipline and Ludescher’s current misconduct.
The referee found, and Ludescher does not contest, that he made a knowingly false
statement at the disciplinary hearing by “unequivocally” denying that he gave Nelson a
Miranda-esque warning on the record. We have “recognized that misconduct in the referee
hearing may be an aggravating factor.” In re Adams, 942 N.W.2d 720, 729 (Minn. 2020).
We have also held that “[m]aking misrepresentations can be considered an aggravating
factor.” Ulanowski I, 800 N.W.2d at 802. Lastly, we consider an attorney’s lack of
remorse and failure to appreciate the severity of the misconduct to be aggravating factors.
In re Winter, 770 N.W.2d 463, 468 (Minn. 2009). Ludescher’s false statement at the
disciplinary hearing illustrates his lack of remorse and failure to appreciate the severity of
his misconduct.
36
E.
Finally, we consider similar cases “to ensure that our disciplinary decision is
consistent with prior sanctions.” In re Nathanson, 812 N.W.2d 70, 80 (Minn. 2012). The
parties analogize using three cases: In re MacDonald, 906 N.W.2d 238 (Minn. 2018); In
re Torgerson, 870 N.W.2d 602 (Minn. 2015); and In re Graham, 453 N.W.2d 313 (Minn.
1990). Ludescher generally argues that these cases are dissimilar to his case, while the
Director argues they are similar. Although these prior decisions do have certain similarities
to this case, we agree with both Ludescher and the referee that none of these cases provide
particularly strong guidance as to the appropriate discipline here.
In MacDonald, the attorney harmed two clients by making recklessly false
statements about a judge, disrupting court proceedings, taking photographs in the court
room, and providing incompetent legal representation. 906 N.W.2d at 240–43. The
attorney’s actions were aggravated by two factors: first, her substantial practice in the area
of law; and second, her lack of remorse, lack of insight into the effect of her misconduct,
and her blaming of others; there were no mitigating factors. Id. at 248–49. This court
imposed a 60–day suspension followed by 2 years of probation. Id. at 250–51. Ludescher’s
conduct spanned a similar amount of client matters and encompassed one of the same forms
of misconduct. However, Ludescher was not cited for making false statements about a
judge, disrupting a court proceeding, or taking photographs in the courtroom. In general,
Ludescher’s conduct was dissimilar to the conduct in MacDonald, and Ludescher’s case
involves over twice as many aggravating factors as MacDonald, including client
vulnerability, making a false statement at the disciplinary proceeding, and prior discipline.
37
In Torgerson, the attorney committed misconduct in five client matters, as well as
misconduct in the course of another attorney’s discipline matter. 870 N.W.2d at 606–08.
The attorney made false statements; disobeyed a court order; acted belligerently toward a
judge and court staff; engaged in conduct prejudicial to the administration of justice; and
used a retainer agreement that required a client to pay a nonrefundable flat fee. Id. The
attorney’s actions were aggravated by substantial experience in the practice of law and
failure to recognize the wrongfulness of their conduct. Id. at 613–14. The attorney’s
actions were mitigated by the fact that others may have provoked her to make the
statements underlying some of her misconduct. Id. at 614. This court issued a 60–day
suspension. Id. at 616. Overall, the misconduct in Torgerson is somewhat similar to the
misconduct here, except that more clients were involved in Torgerson. But Ludescher’s
case involves more aggravating factors—client vulnerability, making a false statement at
a disciplinary hearing, and prior discipline—and no mitigating factors.
In Graham, the attorney engaged in misconduct by making false statements about a
judge, county attorney, magistrate, and another attorney. 453 N.W.2d at 319. The
attorney’s actions were aggravated by continued misconduct in the disciplinary
proceedings, and additional frivolous legal petitions to remove the Director from the case
and from office. Id. at 325. The court also mentioned that the attorney’s attitude was
problematic as it resembled a choice to believe that a conspiracy existed against him and
find fault with others rather than himself. Id. While Graham does not seem to involve
harm to any clients, the attorney’s conduct is more involved but similar to Ludescher’s
actions toward Nelson. The attorney in Graham, however, committed many more
38
instances of this misconduct in a more public setting. On the other hand, we also note that
Ludescher’s case involves more aggravating factors, namely lack of remorse, client
vulnerability, substantial experience, and prior discipline. Even so, the overall conduct in
Graham is dissimilar to most of the misconduct at issue in Ludescher’s case.
A review and comparison of these cases to Ludescher’s circumstances shows the
existence of more aggravating factors in Ludescher’s case, and sometimes more
voluminous misconduct. Consequently, we concur with the referee that a suspension is
appropriate based on the facts and circumstances of this case. But based on the significant
aggravating factors present here, and in light of the nature and extent of Ludescher’s
misconduct, we conclude that the appropriate discipline is a 60-day suspension from the
practice of law followed by a 2-year term of unsupervised probation.
Accordingly, we order that:
1. Respondent David L. Ludescher is suspended from the practice of law,
effective 14 days from the date of this opinion, for a minimum of 60 days.
2. Respondent shall comply with Rule 26, RLPR (requiring notice of
suspension to clients, opposing counsel, and tribunals), and shall pay $900 in costs pursuant
to Rule 24, RLPR.
3. Respondent shall be eligible for reinstatement to the practice of law
following the expiration of the suspension provided that, not less than 15 days before the
end of the suspension period, respondent files with the Clerk of Appellate Courts and serves
upon the Director an affidavit establishing that he is current in continuing legal education
39
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 this opinion, respondent shall file with the Clerk
of the Appellate Courts and serve upon the Director proof of successful completion of the
written examination required for admission to the practice of law by the Minnesota State
Board of Law Examiners on the subject of professional responsibility. See Rule 4.A.(5),
Rules for Admission to the Bar (requiring evidence that an applicant has successfully
completed the Multistate Professional Responsibility Examination). Failure to timely file
the required documentation shall result in automatic suspension, as provided in Rule
18(e)(3), RLPR.
5. Upon reinstatement to the practice of law, respondent shall be placed on
supervised probation for 2 years, subject to the following conditions:
a. Respondent shall abide by the Minnesota Rules of Professional
Conduct.
b. Respondent shall cooperate fully with the Director’s Office in its
efforts to monitor compliance 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 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
40
authorization for release of information and documentation to verify compliance
with the terms of this probation.
MOORE, III, J., took no part in the consideration or decision of this case.
PROCACCINI, 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.
41