In re Marcellus

1

In re Petition for Disciplinary Action against Madsen Marcellus, Jr., a Minnesota Attorney, Registration No. 0344643.

No. A23-1218

Supreme Court of Minnesota

November 20, 2024

Original Jurisdiction Office of Appellate Courts

Susan M. Humiston, Director, Timothy M. Burke, Senior Assistant Director, Office of Lawyers Professional Responsibility Saint Paul, Minnesota, for petitioner.

Barry A. O'Neil, Nathan Z. Heffernan, Lommen Abdo, P.A Minneapolis, Minnesota, for respondent.

Took no part, Hennesy, Gaïtas JJ.

SYLLABUS

1. An attorney who is licensed to practice law and is practicing law in Minnesota at the time the Director of the Office of Lawyer's Professional Responsibility learns that the attorney has been publicly disciplined or is subject to public disciplinary charges in another jurisdiction is subject to reciprocal discipline under Rule 12(d), Rules on Lawyers Professional Responsibility.

2. Reciprocal discipline of disbarment under Rule 12(d), Rules on Lawyers Professional Responsibility, is appropriate where an attorney was disbarred in another jurisdiction for participating in a fraudulent mortgage application that also violated a court order in a dissolution proceeding, failing to inform a court of the fraudulent nature of that application, willfully violating numerous court orders in a marital dissolution proceeding, violating the terms of a final judgment in his marital dissolution proceedings failing to pay court-ordered fees and taking steps to avoid legal process, and failing to pay court-ordered child support over a period of several years even after earlier discipline had been imposed for that conduct.

Disbarred.

OPINION

PER CURIAM.

In this case, we consider the request of the Director of the Office of Lawyers Professional Responsibility (the Director) to impose reciprocal discipline on attorney Madsen Marcellus, Jr., and disbar him from the practice of law under Rule 12(d) of the Rules on Lawyers Professional Responsibility (RLPR). The Director's request arises out of attorney discipline Marcellus received in the state of Florida.

In 2018, the Florida Supreme Court suspended Marcellus for 18 months. Florida Bar v. Marcellus, 249 So.3d 538, 547 (Fla. 2018) (Marcellus I) . He was never reinstated. In 2022, the Florida Supreme Court disbarred Marcellus. See Florida Bar v. Marcellus, No. SC21-579, 2022 WL 4087827 (Fla. Sept. 7, 2022) (Marcellus II). Marcellus's misconduct in Florida included participating in a fraudulent mortgage application that also violated a court order in a dissolution proceeding, failing to inform a court of the fraudulent nature of that application, willfully violating numerous court orders in his marital dissolution proceeding, violating the terms of a final judgment in his marital dissolution proceedings, failing to pay court-ordered fees and taking steps to avoid legal process, and failing to pay court-ordered child support over a period of several years even after earlier discipline had been imposed for that conduct. Marcellus never reported the Florida disciplinary proceedings to the Director.

In 2022, the Director learned about the Florida disciplinary proceedings. Under Rule 12(d), RLPR, the Director filed a petition for imposition of reciprocal discipline of disbarment on Marcellus. Because we find that disbarment is appropriate reciprocal discipline for his misconduct, we grant the Director's petition and disbar Marcellus.

FACTS^[1]

Attorney Madsen Marcellus, Jr., was admitted to the Florida Bar in 2003. In 2005, he was also admitted to practice law in Minnesota. His Minnesota license entered non-compliant status in 2009 because Marcellus did not comply with Continuing Legal Education (CLE) requirements and did not pay annual registration fees.

In 2009, K.P. filed for divorce from Marcellus. A Florida district court entered a Final Order on Petition for Dissolution in 2010. Prior to the divorce, the couple owned a home. Both K.P. and Marcellus were named on the mortgage for the home. K.P. was awarded the home in the dissolution proceedings but could not afford the mortgage payments. The Florida court issued an order requiring Marcellus to either refinance or sell the home.

K.P. negotiated a sale, but when she vacated the home prior to closing, Marcellus moved himself and his belongings into the home and refused to leave or finalize the sale. Accordingly, under the court's order, Marcellus was required to refinance the home. In 2010, however, Marcellus pursued a loan modification rather than refinancing the home. Under the loan modification, K.P. remained responsible for the mortgage and, therefore, the loan modification required both Marcellus' s and K.P.'s signatures. When K.P. refused to sign the loan modification, Marcellus allowed C.F., a notary and mutual friend of the couple, to notarize the loan modification application on K.P.'s behalf. Marcellus knew that K.P. did not approve the notarization. C.F. later lost his notary commission because of the fraudulent notarization. In addition to failing to either refinance the mortgage or sell the home as required by the court order, Marcellus submitted the loan modification agreement to a bank for approval despite knowing that it was fraudulently notarized.

K.P. did not learn about the loan modification agreement until the lender filed a foreclosure complaint and served it on her. In 2013, K.P. filed a motion for contempt based on Marcellus's failure to remove her name from the loan modification and the mortgage.

Marcellus was served with pleadings in the contempt proceeding in May 2013. In June 2013, he was served with discovery requests, notice of trial on the civil contempt relating to the loan modification, and other documents. Further discovery requests were served on Marcellus numerous times thereafter. Despite service to his verified home and office addresses and via email to a verified email address, K.P.'s counsel received no response from Marcellus. K.P.'s counsel attempted to subpoena him as a witness for an evidentiary hearing to no avail. Overall, between May and July 2013, Marcellus did not respond to any pleadings or discovery requests.

At a July 2013 hearing, the court ordered Marcellus to provide responses to outstanding discovery requests. Marcellus did not do so within the required timeframe, nor at any later time. For this Marcellus was sanctioned and ordered to pay K.P.'s attorney's fees within 30 days. He ignored that order as well.

Marcellus continued to disobey court orders and obstruct discovery, causing the court to grant motions to compel in September 2013, July 2014, and September 2014. After the third motion to compel discovery, the court ordered Marcellus to pay a daily $50 fine until he proved compliance. He never provided such proof. Marcellus did not appear at an order to show cause hearing in September 2014. The court issued a writ of bodily attachment, which would permit his arrest in order to bring him before the court. See Sanders v. Laird, 865 So.2d 649, 651-52 (Fla. Dist. Ct. App. 2004). Rather than comply, however, Marcellus exchanged vehicles with his then-wife and ceased attending his children's activities to avoid arrest.

In 2016, disciplinary proceedings were initiated against Marcellus in Florida. A referee was appointed. The referee found that Marcellus's conduct violated his ethical obligations as a Florida lawyer. The referee determined that Marcellus violated Rule 3 -4.3, Rules Regulating the Florida Bar (RRFB) ("commission by a lawyer of any act that is unlawful or contrary to honesty and justice"); Rule 4-3.4(a), RRFB ("unlawfully obstruct[ing] another party's access to evidence"); Rule 4-3.4(b), RRFB ("fabricat[ing] evidence"); Rule 4-3.4(c), RRFB ("knowingly disobey[ing] an obligation under the rules of a tribunal [unless asserting] that no valid obligation exists"); Rule 4-3.4(d), RRFB ("mak[ing] a frivolous discovery request or intentionally fail[ing] to comply with a legally proper discovery request"); Rule 4-8.4(c), RRFB ("engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation"); and Rule 4-8.4(d), RRFB ("engag[ing] in conduct in connection with the practice of law that is prejudicial to the administration of justice").^[2] See Marcellus I, 249 So.3d at 542.

The referee recommended that Marcellus be suspended for 12 months, noting as aggravating factors dishonest or selfish motive, a pattern of misconduct, multiple offenses, submission of false statements or evidence or other deceptive practices during the disciplinary process, vulnerability of the victim, substantial experience in the practice of law, and indifference to making restitution. The referee also stated that Marcellus's obstruction of the discovery process preceded the post-dissolution proceedings discussed above, as he had similarly obstructed proceedings in 2013 relating to avoiding paying child support. The referee identified several mitigating factors: the absence of a prior disciplinary record, personal or emotional problems (due to his emotional state during the divorce), and otherwise good character or reputation based on testimony from two fellow lawyers. Notwithstanding the referee's recommended discipline, the Florida Supreme Court opted to instead suspend Marcellus for 18 months, effective June 16, 2018. Marcellus I, 249 So.3d at 547. Marcellus never sought reinstatement in Florida following this suspension. He did not report the Florida discipline to the Director.

Following his suspension in Florida, Marcellus returned to Minnesota. He complied with Minnesota CLE and registration fee requirements and, in October 2020, he was transferred to active status as a licensed attorney in Minnesota. See Rule 16, Rules for Registration of Attorneys...