State of Minnesota
                             in Supreme Court
                              C7-95-1179

                               Order

     Per Curiam

Took no part, Coyne, J.


In re Petition for Disciplinary Action Against Shirley A. Dvorak, an
Attorney at Law of the State of Minnesota

Filed: October 17, 1996

Office of Appellate Courts

Lower Court: Harlan Nelson

Appellant's Attorney Address: Kermit Edward Bye; Vogel, Kelly, Knutson, Bye
& Hanke, Ltd.; 502 First Ave. N., Fargo, ND 58107

Respondent's Attorney Address: Marcia A. Johnson, Director, Lawyers
Professional Responsibility Board, Timothy M. Burke, Senior Assistant
Director, 25 Constitution Ave., Suite 105, St. Paul, MN 55155
                                     
                              Opinion

The Director of the Office of Lawyers Professional Responsibility filed a
petition seeking public discipline of respondent, Shirley A. Dvorak, for
conduct leading to her plea of guilty in federal court in North Dakota to a
single misdemeanor count of filing a false tax return. Subsequently, the
Director filed an amended petition adding a second count alleging Dvorak
improperly billed Minnesota clients in a bankruptcy matter.

The Honorable Harlan L. Nelson conducted a hearing on the Director's
petitions on December 4 and 5, 1995. On December 22, 1995, he issued his
findings of fact, conclusions of law, and recommendation for discipline.
The referee concluded that Dvorak's action in filing a false tax return
violated Minnesota Rules of Professional Conduct (MRPC) 8.4(b) and (c). The
referee also concluded that fees Dvorak charged clients in the bankruptcy
matter violated MRPC Rules 1.5(a) and 3.4(c). He recommended that Dvorak be
suspended from the practice of law for a minimum of 6 months, subject to
reinstatement pursuant to Rule 18, Rules on Lawyers Professional
Responsibility (RLPR), only after demonstrating she has met certain
requirements as outlined by the referee. The Director urges a suspension of
not less than 12 months.

Shirley Dvorak was admitted to practice in Minnesota in 1981. She is an
honors graduate of the University of North Dakota Law School and was
originally admitted to practice law in that state in 1976 and,
subsequently, in Florida in 1992. Dvorak has spent her entire professional
career with what is now the Moosbrugger, Dvorak & Carter law firm in Grand
Forks, North Dakota. Although Dvorak has no prior history of discipline in
Minnesota, she has been sanctioned twice in North Dakota for minor
misconduct. In 1995 she was admonished for failing to adequately supervise
a non-lawyer assistant and, in 1980, she was privately reprimanded for
filing a lien for unpaid legal fees before judgment had been recorded in
the case.

The alleged violation of MRPC Rules 8.4(b) and (c) arises out of Dvorak's
conviction for a misdemeanor tax violation. On March 15, 1995, Dvorak and
law partner John Moosbrugger each pleaded guilty in federal district court
to a misdemeanor count of willfully filing a fraudulent or false tax return
in violation of 26 U.S.C. § 7207 (1994). Although all four partners in
the Moosbrugger firm underreported income in an identical amount, only
Dvorak and Moosbrugger were charged criminally. Dvorak asserts that the
omission was the innocent result of disarray in the firm's accounting
records resulting from the forging of checks, embezzling of funds, and
neglect of firm records by a former employee of the firm. However, Dvorak
contends that she felt she had little choice but to plead guilty because
she could neither risk a felony conviction nor afford the expense of
defending at trial.

The alleged violation of MRPC Rules 3.4(c) and 1.5(a) arises out of
Dvorak's handling of the bankruptcy of Minnesota clients Alex and Edna

Wald. The Walds hired Dvorak to represent them in the Chapter 11 bankruptcy
of their farming operation in May 1985. The Walds orally agreed to pay
Dvorak a retainer of $5,000 and made an initial payment of $2,700 toward
that retainer. Their fee arrangement was outlined in the required Statement
Pursuant to Rule 2016(b) filed with the bankruptcy court. On February 26,
1987, Dvorak submitted an Application for Administrative Compensation
Allowance to the bankruptcy court seeking total compensation of $20,075.27,
including costs. After a hearing, the court awarded the firm $10,000 in
fees and $3,566.52 in costs, for a total of $13,566.52. Dvorak appealed the
compensation award.

The Walds subsequently voluntarily settled with their creditors. Before the
bankruptcy was officially dismissed by the court and while appeal of the
fee award was pending, however, Dvorak collected an additional $11,332.42
in fees from the Walds. Along with other interim payments, this brought the
Walds' total fee payments to $19,647.42 and exceeded the bankruptcy court's
order by $6,080.90. In 1992, after the Walds were contacted by an Internal
Revenue Service agent investigating the Moosbrugger firm, they sought, and
ultimately received, a refund from Dvorak and the firm in the amount of
$6,080.90 in fees and $3,949.34 in interest.

Dvorak challenges certain of the referee's findings of fact, conclusions of
law, and recommended discipline. Because Dvorak timely ordered a
transcript, the referee's findings are not conclusive. Rule 14(e), RLPR. In
disciplinary hearings, the standard of review for this court is whether the
referee's findings and conclusions are clearly erroneous. In re
Gurstel, 540 N.W.2d 838, 840 (Minn. 1995); In re Montpetit, 528
N.W.2d 243, 245 (Minn. 1995).
                                 I.

We first consider whether the referee clearly erred in concluding that
Dvorak's guilty plea to the misdemeanor of filing a false tax return
establishes a violation of MRPC Rules 8.4(b) and (c). These rules provide
that it is professional misconduct for a lawyer to ``commit a criminal act
that reflects adversely on the lawyer's honesty, trustworthiness or fitness
as a lawyer in other respects'' or to ``engage in conduct involving
dishonesty, fraud, deceit or misrepresentation.'' MRPC 8.4(b) - (c).

Dvorak acknowledges that Rule 19(a) of the RLPR provides that a lawyer's
criminal conviction is ``conclusive evidence that the lawyer committed the
conduct for which the lawyer was convicted'' in disciplinary proceedings.
Rule 19(a), RLPR. However, she argues that her misdemeanor conviction under
26 U.S.C. § 7207 does not, under the circumstances, violate MRPC Rules
8.4(b) and (c). Dvorak asserts that while this court has held that failure
to file a tax return violates standards of professional conduct, See,
e.g, In re Singer, 541 N.W.2d 313, 315 (Minn. 1996); In re
Chrysler, 434 N.W.2d 668, 669 (Minn. 1989); In re Bunker, 294
Minn. 47, 55, 199 N.W.2d 628, 632 (1972), that does not dictate that the
misdemeanor underreporting of income necessarily violates the rules. On the
contrary, Dvorak argues that filing a false return under 26 U.S.C. §
7207 (punishable by a maximum fine of $10,000 and/or 1 year in prison) is
inherently a less serious crime than failure to file under 26 U.S.C. §
7203 (punishable by a maximum fine of $25,000 and/or 1 year in prison), as
evidenced by the more severe penalties imposed for the latter. In arguing
that her misdemeanor conviction does not reflect adversely on her honesty,
trustworthiness, or fitness as a lawyer, Dvorak also cites an affidavit
filed with this court, in which the United States Attorney concedes that
the plea was reached because of the anticipated difficulty of proving
``outright fraud'' in the case.

We are not unsympathetic to Dvorak's arguments that she felt she had little
alternative but to plead guilty. The record reflects that Dvorak provides
the sole support for herself and her husband, and has taken in her elderly
mother. We believe that, faced with similar circumstances, many would
choose to enter a plea in order to avoid the emotional and financial toll
of a public trial. However, attorneys may not avoid the consequences of

criminal conviction by attempting to relitigate the issue of guilt or
innocence in subsequent disciplinary proceedings. Under the presumption
created by RLPR Rule 19(a), we must presume that Dvorak committed the acts
underlying her plea of guilty. Consequently, we cannot say the referee's
conclusion that Dvorak violated MRPC Rules 8.4(b) and (c) is clearly
erroneous.
                                II.

We next consider Dvorak's challenge to the referee's conclusion that in her
billing of the Walds, Dvorak knowingly disobeyed an order of the bankruptcy
court in violation of MRPC Rule 3.4(c) and, in so doing, charged an
unreasonable fee in violation of MRPC Rule 1.5(a). Dvorak challenges the
referee's findings and conclusions on two grounds: (1) that nothing in the
order indicated that the court's award of fees in the case included the
$5,000 paid pre-petition by the Walds, and (2) that the Wald bankruptcy was
``essentially over'' at the time of the Walds' final payment to the firm,
and thus the bankruptcy court no longer had jurisdiction over the matter.

First, Dvorak argues that because the award was silent on the pre-petition
fees previously disclosed to the court, the firm was actually entitled to
receive the $5,000 plus costs paid pre-petition by the Walds, totalling
$5,315, in addition to the $13,566.62 awarded by the court, for a total of
$18,881.62. Although Dvorak acknowledges the court's authority to cancel or
alter a pre-petition fee agreement, See 11 U.S.C. § 329, she
contends that by remaining silent on the issue, the court did not alter the
pre-petition agreement. Accordingly, Dvorak argues that even assuming the
bankruptcy court had continuing jurisdiction at the time of the Walds'
final payment to the firm, the amount of overpayment based on the
$19,647.74 actually received by the Moosbrugger firm was only $766.12. In a
deposition submitted to the referee, Dvorak's expert witness on bankruptcy
law, David DeMars, agreed with her interpretation of the bankruptcy court's
award.

The Director responds that the comments of the bankruptcy judge at the
hearing considering the petition for attorney fees clearly indicated that
the $10,000 award was the total amount of attorney fees he would award to
the Moosbrugger firm:
        
        THE COURT: I will award attorneys' fees in the case
        in the amount of $10,000, and I will award the full
        amount of the expenses.

* * * *

But I just can't award any more than that.

Dvorak next argues, however, that even if we reject her contention that the
bankruptcy court's award was in addition to the pre-petition fees, we must
find that the referee erred in concluding that she violated MRPC Rule
3.4(c). She contends that the November payment of $11,332.42 by the Walds
did not violate the bankruptcy court's order because the bankruptcy
proceeding was ``essentially over'' at the time of the final payment.
Because the bankruptcy court had lifted the automatic stay of payments to
major creditors, Dvorak contends the bankruptcy court no longer had
jurisdiction and, accordingly, there was no need for the firm to seek court
approval of any further fee payments by the Walds.

Dvorak cites no case law in support of her contention that court approval
of the final Wald payment was not required because the bankruptcy matter
was essentially settled, but argues that common sense dictates such a
conclusion. She points out that no party challenged distributions to
creditors made without court approval just prior to the allegedly improper
fee payment to the Moosbrugger firm. She also points out that if the firm
had waited a few weeks until the bankruptcy was formally dismissed before
securing the final fee payment, there would be no question that the
bankruptcy court would have lacked jurisdiction in the matter.


Rule 3.4(c) of the MRPC provides that a lawyer shall not ``knowingly
disobey an obligation under the rules of a tribunal * * *.'' The referee
concluded after hearing arguments from both sides that Dvorak violated the
rule by charging fees in excess of those approved by the bankruptcy court.
Dvorak acknowledged that the Walds made fee payments to the firm in excess
of the dollar amount approved by the bankruptcy court while their Chapter
11 petition was at least technically still pending. While we might reach a
different conclusion on the issue of whether Dvorak ``knowingly'' violated
the bankruptcy court's order, we cannot say that the referee's conclusion
was clearly erroneous. See Montpetit, 528 N.W.2d at 245.

Similarly, we believe the referee's conclusion that Dvorak's fee in the
Wald matter was an unreasonable fee in violation of Rule 1.5(a) of the MRPC
was not clearly erroneous. Our case law supports the proposition that a fee
in excess of the amount authorized by statute or court order where
authorization is required is an unreasonable fee. See, e.g., In re
Simmonds, 415 N.W.2d 673, 674 (Minn. 1987); In re Hoffman, 379
N.W.2d 514, 516-17 (Minn. 1986); In re Beal, 374 N.W.2d 715, 718-19
(Minn. 1985).
                                III.

The difficult issue in this case is that of determining the appropriate
sanction for Dvorak's misconduct. We place great weight on the referee's
recommendation, ``but the final responsibility for determining appropriate
discipline rests solely with this court.'' Beal, 374 N.W.2d at 719.
The purposes of attorney discipline are to ``protect the courts, the legal
profession, and the public, guard the administration of justice, and deter
similar misconduct.'' Gurstel, 540 N.W.2d at 841 (quoting In re
Isaacs, 451 N.W.2d 209, 211 (Minn. 1990) ). To determine the
appropriate sanction for particular misconduct, we consider four general
factors: the nature of the misconduct; the cumulative weight of any
disciplinary rule violations; the harm to the public; and the harm to the
legal profession and the administration of justice. Id. at 841-42.
While consistency is a goal in discipline, each case is unique and must be
examined on its own facts. In re Boyd, 430 N.W.2d 663, 664-65 (Minn.
1988).

We first consider the appropriate sanction for Dvorak's violation of MRPC
Rules 8.4(b) and (c) in the tax matter. Where an attorney has been
sanctioned by disciplinary authorities in his or her home state for
misconduct occurring in that state, we look first to that state's
determination of the appropriate sanction. While we will not be bound by
that assessment, we think it appropriate that we afford it considerable
deference in reaching our own determination of the proper sanction for the
same misconduct. Disciplinary authorities in Dvorak's home state of North
Dakota determined that no suspension was warranted in the tax matter and
instead issued a public reprimand. We also note that Florida authorities
allowed Dvorak to accept an admonishment by admission of minor misconduct.
While we take all allegations of misconduct involving false statement very
seriously, we agree with North Dakota and Florida authorities that no
suspension is warranted by the tax violation in this case.

In reaching this determination, we note first that Dvorak's plea was to a
single misdemeanor count. We also find significant that both the sentencing
federal district judge and the U.S. Attorney submitted affidavits on
Dvorak's behalf and acknowledged, alternately, that there appeared to be
``a considerable amount of selectivity in [Dvorak's] prosecution'' and that
the government ``recognized there would have been difficulty in proving
that there was any outright fraud committed'' in accepting Dvorak's plea to
a misdemeanor. Although RLPR Rule 19(a) precludes us from considering the
appropriateness of the conviction, we have stated that we will look to the
circumstances surrounding a criminal conviction to see whether a lesser
disciplinary sanction is appropriate. In re Ray, 408 N.W.2d 581, 583
(Minn. 1987). Accordingly, we believe a public reprimand is a sufficient
sanction on this record.


We next consider the appropriate sanction for Dvorak's violation of MRPC
Rules 3.4(c) and 1.5(a) in her billing of clients Alex and Edna Wald in
their Chapter 11 bankruptcy. To determine the appropriate sanction, we look
to our prior case law. In our decisions in Hoffman, 379 N.W.2d at
516, 519, and Beal, 374 N.W.2d at 718, we imposed 3-month
suspensions where the attorney knowingly collected fees in excess of those
allowed under applicable workers compensation law. However, we note that
the attorneys in those cases were guilty of other, serious ethical
violations in addition to their fee indiscretions. Hoffman, 379
N.W.2d at 515, 519 (sanctioning an attorney for a gross misdemeanor
conviction for fleeing police officer in a motor vehicle in addition to the
fee violation); Beal, 374 N.W.2d at 715 (sanctioning an attorney for
commingling of funds, failure to keep appropriate books and records,
failure to properly account for client trust funds, and filing of improper
liens in addition to the fee violation).

We consider significant in this matter that Dvorak had settled the fee
dispute to the Walds' satisfaction prior to the institution of any
disciplinary proceedings by the Director. We have previously recognized as
a mitigating factor that the attorney has
 taken remedial measures freely prior to disciplinary proceedings. See,
e.g., In re Wylde, 454 N.W.2d 423, 424-25, 427 (Minn. 1990)
(recognizing respondent's payment of his tax obligation prior to
disciplinary proceedings as a mitigating factor).

We further recognize as mitigating factors in this case that Dvorak has not
previously been subject to discipline in 15 years of practice in this
state, See In re Lochow, 469 N.W.2d 91, 96 (Minn. 1991); that she
encountered substantial personal problems during the period in question,
including the illness and death of her father, See In re Knutson,
405 N.W.2d 234, 236 (Minn. 1987); that she cooperated fully in the
disciplinary investigation and, in fact, notified the Director in advance
of her intent to plead guilty in the tax matter, See Montpetit, 528
N.W.2d at 245 n.1; that she contributed substantial pro bono and volunteer
work to her community, Lochow, 469 N.W.2d at 96; and that she
possesses an outstanding reputation for honesty and hard work within the
profession, as attested to in these disciplinary proceedings by both
members of the judiciary before whom she has appeared and by her fellow
practitioners, See Montpetit, 528 N.W.2d at 245 n.1.

Because we believe the violations in question are remote and isolated
incidents in an otherwise distinguished legal career, we conclude that a
30-day suspension from the practice of law, in addition to a public
reprimand in the tax matter, is the appropriate sanction on this record.

Accordingly, we order:

1. That respondent, Shirley A. Dvorak, is hereby publicly reprimanded for
violating Rules 8.4(b) and (c) of the Minnesota Rules of Professional
Conduct by willfully filing a false tax return in the state of North
Dakota;

2. That respondent be suspended from the practice of law in the state of
Minnesota for a period of 30 days, commencing 14 days from the date of this
order;

3. That respondent comply with the notice requirements of Rule 26, Rules on
Lawyers Professional Responsibility;

4. That respondent shall pay to the Director the sum of $900 in costs and
disbursements pursuant to Rule 24, Rules on Lawyers Professional
Responsibility.

We waive the requirement of a petition for reinstatement under Rule 18,
Rules on Lawyers Professional Responsibility.


So ordered.

COYNE, J., took no part in the consideration or decision of the
case.