Court doubles recommended suspension of lawyer to 60 days

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A Minnesota attorney specializing in child-protection matters was recently suspended from the practice of law for 60 days. The court, finding several aggravating factors, doubled the length of the suspension that was recommended by the referee.

David Ludescher has practiced law for more than 30 years and was first admitted to practice law in Minnesota in 1988. He has practiced in CHIPS (child in need of protection or services) matters since 1989 and conservatorship and guardianship matters since 2000.

Ludescher has two prior admonitions, including misconduct when representing a client despite having a monetary judgment against the client and absent written consent. The other admonition arose from entering into a mortgage transaction with a client and representing the client without obtaining informed written consent.

Recently, the director of the Office of Lawyers Professional Responsibility petitioned for disciplinary action against Ludescher. After conducting an evidentiary hearing, a referee found that Ludescher committed various acts of misconduct. This included acting to embarrass or burden a third person, bringing frivolous claims, charging or collecting an unreasonable fee, engaging in conduct prejudicial to the administration of justice, failing to withdraw representation upon termination, failing to reasonably protect a client’s interest upon termination, incompetent representation, and making knowingly false statements.

In one matter, Ludescher represented a non-custodial parent who was the biological father of a minor in a CHIPS proceeding. The minor was removed from the mother, but the juvenile court eventually allowed the minor to have a trial home visit with the mother. Eventually, Assistant Rice County Attorney Jennifer Nelson moved to increase the visitation of the mother.

Nelson explained to Ludescher that the child was placed on a trial home visit. After receiving this letter, Ludescher apparently called and emailed Nelson, acting in a way to attempt to bully and threaten her into returning the child to the biological father, the court’s summary of facts said. Nelson asserted that Ludescher yelled at her, threatened to trespass, and once put his hands on the guardian ad litem.

Ludescher emailed the Rice County Attorney and county sheriff, alleging that Nelson might have engaged in criminal intentional deprivation of parental rights. Although Ludescher asserted that the biological father had court-ordered temporary legal and physical custody of the minor, Ludescher did not mention that custody would revert back to mother so long as the CHIPS proceedings were dismissed because the father had no custodial rights. Nelson was questioned by the sheriff, and the Le Sueur County Sheriff commenced a criminal investigation.

Subsequently, Ludescher filed a motion for ex parte relief to get the minor returned to the father. At the hearing, Ludescher accused Nelson of a crime and read her a Miranda­-esque warning on the record. Upon a motion from Nelson, the juvenile court sanctioned Ludescher.

In another matter, Ludescher was retained by a man who was committed as mentally ill to be represented in litigation of the father’s estate. Alternative Resolutions Inc. (ARI) was appointed as the man’s emergency guardian and conservator. J. Scott Braden represented ARI and terminated Ludescher’s representation in the estate case, requesting Ludescher’s files on the man. Ludescher continued to provide the man legal services for which he billed at a rate of $200 per hour. He refused to release the man’s file and later filed a claim in conciliation court seeking $8,372.10 for legal services. A total of $3,160 in legal fees and $165.85 in total expenses asserted by Ludescher happened after ARI terminated Ludescher’s representation.

A referee held a three-day evidentiary hearing. One-hundred and fourteen exhibits were reviewed. Ultimately, the referee recommended a 30-day suspension.

Ludescher contested the referee’s findings, alleging that the referee misinterpreted the law and Rules of Professional Conduct. He also claimed that the referee failed to adequately consider the record when making findings and conclusions. Ludescher maintained that his custody arguments were good faith arguments that were made to expand or modify the law and so were protected from disciplinary action.

“This is not typically conduct that would be subject to discipline. We have a court system that is adversarial, that as long as an attorney is moving through that system, within the rules, the court should be the one to call the shots,” asserted Jessica Klander, a shareholder at Bassford Remele, who represented Ludescher. “This is a case about extending or modifying the law based on a set of facts that are pretty ideal to do so.”

The Office of Lawyers Professional Responsibility disagreed. “We’re not confronted with a circumstance where a lawyer subjectively believed what they were doing was reasonable,” argued Susan Humiston, director of the office.

Although Ludescher claimed that the referee misinterpreted the Rules of Professional Conduct, the court said that this was based on the false assumption that Ludescher acted in good faith to expand or modify the law. “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,” the court wrote. “Ludescher’s actions do not indicate good faith.”

The referee recommended that Ludescher be suspended from the practice of law for 30 days. The court agreed with the referee that suspension was warranted based on the facts and circumstances of the case. However, the court found that there were “significant aggravating factors,” including lack of remorse, client vulnerability, substantial experience, and prior discipline. It increased the length of suspension.

“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,” the court concluded. “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.”

Ludescher was suspended from the practice of law for 60 days. Upon reinstatement, Ludescher will be placed on supervised probation for two years.