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STATE OF MINNESOTA

IN SUPREME COURT

A14-1901

Original Jurisdiction Per Curiam

In re Petition for Disciplinary Action against 

Gregory Gerard McPhee, a Minnesota Attorney, 

Registration No. 316696

Filed: June 17, 2015 

Office of Appellate Courts

________________________

Martin A. Cole, Director, Craig D. Klausing, Senior Assistant Director, Office of 

Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner. 

Eric T. Cooperstein, Law Office of Eric T. Cooperstein, PLLC, Minneapolis, Minnesota, 

for respondent.

________________________

S Y L L A B U S

1. The attorney disciplinary proceedings conducted in New York were 

fundamentally fair and consistent with due process.

2. Indefinite suspension from the practice of law with no right to petition for 

reinstatement for 2 years is the appropriate reciprocal discipline to impose on the 

attorney. 

O P I N I O N

PER CURIAM.

In 2007, the New York Supreme Court, Appellate Division, suspended respondent 
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Gregory Gerard McPhee for 2 years for engaging in a pattern of client neglect, failing to 

return unearned fees, and failing to cooperate in disciplinary investigations. After 

learning of McPhee’s New York suspension, the Director of the Office of Lawyers 

Professional Responsibility (“the Director”) petitioned to impose reciprocal discipline in 

Minnesota. Because we conclude that the disciplinary proceedings in New York were 

fundamentally fair and that indefinite suspension from the practice of law without the 

possibility of reinstatement for 2 years would not be unjust or substantially different from 

the discipline that would be imposed in Minnesota, we indefinitely suspend McPhee with 

no right to petition for reinstatement for 2 years.

I.

McPhee was admitted to practice law in New York in 2000. In re McPhee, 844 

N.Y.S.2d 771, 771 (N.Y. App. Div. 2007). In 2002, he was admitted to practice in 

Minnesota. This case involves professional misconduct that McPhee committed in New 

York. 

Several years after McPhee was admitted to practice in New York, the Grievance 

Committee of the Fifth Judicial District in New York1filed a petition with the New York 

Supreme Court, Appellate Division Fourth Judicial Department (“New York court”), 

charging McPhee with acts of professional misconduct arising from his representation of 

five clients in criminal matters. Id. at 771. McPhee filed an answer denying the 

 

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In New York, each judicial district has a grievance committee that considers and 

investigates all matters involving allegations of misconduct by an attorney engaged in the 

practice of law in the judicial district. N.Y. Comp. Codes R. & Regs. tit. 22, § 1022.19. 
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allegations. Id. The New York court appointed a referee to hear and report on issues of 

fact. Id. McPhee did not attend the hearing before the referee, did not respond to a

motion to confirm the referee’s factual findings, and did not appear before the New York 

court. Id. 

The New York court confirmed the following findings of fact made by the referee:

[McPhee] accepted legal fees from four incarcerated clients, failed to 

complete the work for which he was retained and refunded no part of the 

legal fees. . . . [He] failed to appear at a scheduled court date on behalf of 

another client in a criminal matter, failed to return the client’s telephone 

calls and moved from his law office without notifying the client. Finally,

. . . [he] failed to comply timely with requests from petitioner for 

information and for responses to client complaints, requiring petitioner to 

obtain a subpoena from this Court.

Id.

The New York court agreed with the referee’s findings that there were no 

mitigating circumstances to be considered when imposing discipline for McPhee’s 

misconduct, but that there were aggravating factors. The aggravating factors included

McPhee’s contact with two of the Grievance Committee’s prospective witnesses prior to 

the hearing for the purpose of persuading the witness to sign statements that the witnesses 

termed false and his deliberate failure to appear for the hearing before the referee. Id. at 

772. The New York court also considered McPhee’s failure to respond to the Grievance 

Committee’s motion and to appear before the court as ordered. Id. The New York court

imposed a 2-year suspension for McPhee’s misconduct. Id.

After learning of the discipline imposed on McPhee by the New York court, the 

Director petitioned for disciplinary action against McPhee, seeking reciprocal discipline
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pursuant to Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR). McPhee 

filed a response to the petition, admitting the allegations regarding his misconduct in New 

York. We ordered McPhee to submit a memorandum addressing whether a 2-year 

suspension is the appropriate discipline for us to impose. 

McPhee argues that a 2-year suspension from practice is substantially different 

from the discipline warranted in Minnesota. Instead, McPhee maintains, a 6-month 

suspension is the appropriate discipline. The Director counters that imposition of 

reciprocal discipline is appropriate.

II.

The Director may petition for reciprocal discipline based on knowledge, from any 

source, “that a lawyer licensed to practice in Minnesota has been publicly disciplined . . . 

in another jurisdiction.” Rule 12(d), RLPR. Unless we conclude otherwise, a final 

determination in another jurisdiction that the lawyer has committed misconduct 

“establish[es] conclusively the misconduct for purposes of disciplinary proceedings in 

Minnesota.” Id. We may impose reciprocal discipline “unless it appears that discipline 

procedures in the other jurisdiction were unfair, or the imposition of the same discipline 

would be unjust or substantially different from discipline warranted in Minnesota.” Id.; 

accord In re Wolff, 810 N.W.2d 312, 316 (Minn. 2012). McPhee does not challenge the 

New York court’s finding that he committed misconduct. Therefore, we must determine 

whether New York’s disciplinary procedures were fair to McPhee and, if so, whether 

imposing reciprocal discipline would be unjust or substantially different from the 

discipline McPhee would receive in Minnesota for his misconduct.
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A.

To meet the procedural fairness requirement, the disciplinary proceedings at issue 

must be “consistent with fundamental fairness and due process.” In re Schmidt, 586 

N.W.2d 774, 775 (Minn. 1998). We determine from the record of the underlying 

proceedings whether the attorney received notice of the allegations and had an 

opportunity to respond to them. Id. at 775-76. When an attorney has received notice of 

the proceedings and an opportunity to participate in the process by presenting evidence of 

good character or mitigation, the procedural fairness requirement is satisfied. In re 

Keller, 656 N.W.2d 398, 401 (Minn. 2003). 

The proceedings in New York met the legal standard for procedural fairness. 

McPhee received notice of the New York disciplinary proceedings and participated in 

them by filing an answer. McPhee, 844 N.Y.S.2d at 771. He also had the opportunity to 

present evidence to the referee. See N.Y. Comp. Codes R. & Regs. tit. 22, § 1022.20(d)

(allowing an attorney in a disciplinary case to contest facts before a referee and to appear 

before the New York court and be heard in mitigation). That McPhee chose not to attend 

the hearing before the referee has no bearing on our determination of procedural fairness. 

Wolff, 810 N.W.2d at 316. The record from the New York proceedings clearly 

establishes that the fairness requirement of Rule 12(d), RLPR was satisfied.

B.

We next consider whether imposition of the same discipline imposed by New 

York would be either unjust or substantially different from the discipline warranted in 

Minnesota. In re Meaden, 628 N.W.2d 129, 134 (Minn. 2001). The New York court 
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concluded that McPhee engaged in a pattern of neglect, failed to return unearned fees, 

and failed to cooperate in the disciplinary proceedings. McPhee accepted legal fees from 

four incarcerated clients. But he failed to complete the work he was hired to perform, 

and he did not refund any legal fees to these clients. In another criminal case, McPhee

both failed to appear at a court hearing for his client and failed to communicate with this 

client. Finally, McPhee did not respond in a timely manner to disciplinary complaints or 

requests for information during his New York disciplinary proceedings.2 

We have long recognized that “an attorney’s pattern of neglect, lack of 

communication, and failure to cooperate with the disciplinary investigation or 

proceedings typically warrants an indefinite suspension.” In re McCabe, 591 N.W.2d 

723, 725 (Minn. 1999) (citations omitted). We have determined that an indefinite

suspension with no right to petition for reinstatement for 2 years is the appropriate 

discipline when an attorney neglected multiple clients, failed to return unearned retainers, 

and failed to cooperate with the Director. See In re Taplin, 837 N.W.2d 306, 314 (Minn. 

2013) (indefinitely suspending an attorney with no right to petition for reinstatement for 

2 years when the attorney neglected two clients, failed to return unearned retainers, and 

 

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Similar misconduct occurring in Minnesota also would have violated a number of 

our rules, including Minn. R. Prof. Conduct 1.3 (requiring an attorney to act with 

reasonable diligence), 1.4 (requiring an attorney to communicate with the client),

1.15(c)(4) (requiring an attorney to promptly pay the client, as requested, client funds in 

the attorney’s possession), 3.4(c) (prohibiting an attorney from knowingly disobeying an 

obligation under the rules of a tribunal), 8.1 (mandating cooperation in a disciplinary 

proceeding), and 8.4(d) (prohibiting an attorney from engaging in conduct prejudicial to

the administration of justice), and Rule 25, RLPR (requiring an attorney to cooperate in a 

disciplinary proceeding).
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failed to cooperate in the disciplinary investigation).

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In a reciprocal discipline case for 

an attorney who engaged in similar misconduct as McPhee, we also have imposed a 

longer period of suspension. See, e.g., In re Mahler, 823 N.W.2d 453, 454 (Minn. 2012) 

(order) (indefinitely suspending attorney for a minimum of 3 years after he was 

suspended in North Dakota for neglecting clients, mishandling client funds, and charging 

excess fees).

Relevant to our consideration, the New York court determined that McPhee’s 

misconduct was aggravated by his failure to cooperate during the New York disciplinary 

proceedings. For example, McPhee failed to appear at a hearing before the referee and 

failed to respond to the Grievance Committee’s motion to confirm the referee’s findings. 

In Minnesota, as in New York, an attorney’s failure to cooperate during disciplinary 

proceedings may be an aggravating factor if that conduct is not otherwise considered. 

Taplin, 837 N.W.2d at 313. McPhee’s failure to cooperate during the disciplinary 

proceedings before the New York court was not considered by the referee and is separate 

from his failure to cooperate with the New York disciplinary investigations. Therefore, 

 

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 We have suspended other attorneys in similar circumstances. See In re Campbell, 

603 N.W.2d 128, 133 (Minn. 1999) (indefinitely suspending an attorney with no right to 

petition for reinstatement for 2 years when the attorney neglected seven clients, failed to 

return unearned retainers and client files, had negative balances in her trust account, and 

failed to cooperate with the Director); In re Olson, 545 N.W.2d 35, 38 (Minn. 1996) 

(indefinitely suspending an attorney with no right to petition for reinstatement for 2 years 

when the attorney neglected two clients, made misrepresentations to clients, and failed to 

cooperate in the disciplinary investigation or appear before the court in the disciplinary 

case); see also In re Kinnuen, 502 N.W.2d 773, 774-75 (Minn. 1993) (indefinitely 

suspending an attorney with no right to petition for reinstatement for 18 months for 

neglect of two clients, trust account violations, and a complete failure to cooperate in the 

disciplinary proceedings).
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McPhee’s failure to cooperate with the New York court is an additional aggravating 

factor. 

In support of his argument that reciprocal discipline of a 2-year suspension is 

substantially different from the discipline warranted in Minnesota, McPhee relies on the 

few cases in which we have declined to impose reciprocal discipline. These cases

demonstrate that, when unique factual circumstances established that imposing the 

identical discipline would be unjust or when another court disbarred an attorney for 

misconduct that the Director agreed would result in a substantially different disposition in 

Minnesota, we have concluded that reciprocal discipline is not warranted. For example, 

in In re Karlsen, we imposed a 1-year suspension on an attorney who was disbarred in 

North Dakota while his case was pending before us. 778 N.W.2d 307, 313 (Minn. 2010). 

The Director argued against disbarment in Karlsen because the attorney lacked a prior 

disciplinary history and the misconduct, though egregious, did not result in substantial 

harm to clients. Id.4 The factors present in the cases cited by McPhee, however, are not 

present here.

Because of the nature and severity of McPhee’s misconduct and the existence of 

an aggravating factor, we conclude that the 2-year suspension by the New York court is 

 

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 Other cases in which we have declined to impose reciprocal disbarment include: In 

re Pennington, 706 N.W.2d 482, 482 (Minn. 2005) (order) (imposing a 2-year suspension 

recommended by the parties after an attorney was disbarred in Maryland for misconduct 

similar to that for which we had imposed a public reprimand or a short period of 

suspension); In re Otis, 582 N.W.2d 561, 564-65 (Minn. 1998) (declining to impose 

reciprocal discipline of disbarment because the attorney’s misconduct was caused by a 

seizure disorder that had been treated after the misconduct but before the Minnesota 

disciplinary proceedings). 
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neither unjust nor substantially different from the discipline warranted in Minnesota. We 

therefore impose reciprocal discipline and indefinitely suspend McPhee with no right to 

petition for reinstatement for 2 years.

Accordingly, we order that:

1. Respondent Gregory Gerard McPhee is suspended from the practice of law 

in the State of Minnesota, effective 14 days from the date of the filing of this opinion, and 

is ineligible to petition for reinstatement for a minimum of 2 years from the date of the 

filing of this opinion. 

2. Respondent shall comply with Rule 26, RLPR (requiring notice of 

suspension to clients, opposing counsel, and tribunals), and shall pay $900 in costs 

pursuant to Rule 24, RLPR.

3. Respondent may petition for reinstatement pursuant to Rule 18(a)-(d), 

RLPR. Reinstatement is conditioned on successful completion of the professional 

responsibility portion of the state bar examination and satisfaction of continuing legal 

education requirements pursuant to Rule 18(e), RLPR.