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Keywords

attorneylawyerfiduciarytrust

attorneylawyertrust

Related Cases

In re Disciplinary Action Against Overboe, 745 N.W.2d 852

Facts

David A. Overboe, an attorney licensed in Minnesota and North Dakota, was subject to a disciplinary investigation initiated by the Director of the Office of Lawyers Professional Responsibility due to an overdraft on his client trust account. The investigation revealed that Overboe had labeled a personal account as a trust account to protect his funds from judgment creditors, commingled client funds with personal funds in his IOLTA account, and made false statements to the Director. The referee found that Overboe's actions violated the Minnesota Rules of Professional Conduct and recommended a minimum one-year suspension from the practice of law.

David A. Overboe was admitted to the practice of law in Minnesota on June 13, 1980. Overboe is also licensed to practice law in North Dakota. At all times relevant to this matter, Overboe's law practice was located in North Dakota. Overboe maintained two relevant bank accounts in North Dakota: 1) an account at Western State Bank entitled “Overboe Trust Account” (WSB trust account); and 2) an Interest on Lawyers Trust Accounts (IOLTA) account at Wells Fargo Bank, also entitled “Overboe Trust Account” (IOLTA account).

Issue

The main legal issues were whether Overboe's conduct constituted professional misconduct under the Minnesota Rules of Professional Conduct and what disciplinary action was appropriate given his prior history of similar misconduct.

The Supreme Court held that suspension for minimum of one year was appropriate disciplinary sanction, for attorney's conduct in deceptively labeling a personal account that contained only attorney's funds as a trust account in order to shield his funds from judgment creditors, commingling client funds and personal funds in an Interest on Lawyers Trust Account, and making misrepresentations to and failing to cooperate with Office of Lawyers Professional Responsibility.

Rule

The court applied the Minnesota Rules of Professional Conduct, specifically rules regarding dishonesty, fraud, deceit, and misrepresentation, as well as rules concerning the proper handling of client funds and trust accounts.

Suspension from the practice of law for a minimum of 1 year is warranted for a lawyer who deceptively labeled a personal account as a trust account to shield his personal funds from judgment creditors, improperly kept personal funds in his client trust account, commingled client and personal funds, and made misrepresentations to and failed to cooperate with the Office of Lawyers Professional Responsibility, when the lawyer also had two prior instances of similar misconduct, failed to recognize the wrongfulness of his conduct, and failed to place client retainers in a trust account.

Analysis

The court found that Overboe's use of his WSB trust account was deceptive, as he did not use it in a fiduciary capacity but rather as a personal account to shield his funds from creditors. The referee's findings were supported by evidence that Overboe was the source of all deposits into the account and that he had a history of similar misconduct. The court concluded that Overboe's actions violated both Minnesota and North Dakota professional conduct rules.

In September 2004, the Director of the Office of Lawyers Professional Responsibility initiated a formal disciplinary investigation of David A. Overboe that was triggered by an overdraft on Overboe's client trust account. Following numerous communications between the Director and Overboe, the Director filed a petition for disciplinary action against Overboe alleging that Overboe had 1) deceptively used a trust account to shield his personal funds from judgment creditors; 2) made misrepresentations and failed to cooperate with the Director during a disciplinary investigation; and 3) commingled client funds with personal funds.

Conclusion

The Supreme Court upheld the referee's recommendation and concluded that a suspension from the practice of law for a minimum of one year was appropriate due to Overboe's deceptive practices and prior disciplinary history.

We conclude that the referee's findings were not clearly erroneous and that the appropriate discipline under these facts is to suspend Overboe from the practice of law for a minimum of 1 year.

Who won?

The prevailing party was the Office of Lawyers Professional Responsibility, as the court upheld the disciplinary action against Overboe based on his misconduct.

Attorney suspended.

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