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In re Hillbrant

May 16, 2008

IN THE MATTER OF DIANE LYNN HILLBRANT, RESPONDENT.


Per curiam.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline.

Indefinite suspension.

This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Diane L. Hillbrant, an attorney admitted to the practice of law in Kansas in September 1984. Respondent is also admitted to the practice of law in the state of Illinois. Respondent's last registration address with the Clerk of the Appellate Courts of Kansas is in Shoreview, Minnesota. Respondent is not licensed to practice law in the state of Minnesota.

The complaint against respondent arises out of her unauthorized practice of law in the state of Minnesota. In April 2004 respondent was charged with six counts of the unauthorized practice of law in violation of Minnesota Statute § 481.02, sub. 1 (2002). A jury convicted respondent of five of the six counts, the State having dismissed the sixth count. On April 15, 2005, respondent was sentenced to 90 days on each count to be served consecutively. Respondent was fined $1,000 per count. Respondent's sentence was suspended. The district court also ordered respondent to pay restitution to the defendants who were the object of her unauthorized practice of law in the total amount of $19,698.45. Respondent's convictions and restitution were affirmed on appeal. Based on respondent's misconduct in Minnesota, the state of Illinois suspended respondent's license to practice law in that state for 1 month.

The formal complaint here charged respondent with violating Kansas Rules of Professional Conduct (KRPC) 1.1 (2007 Kan. Ct. R. Annot. 384) (competence), KRPC 4.1 (2007 Kan. Ct. R. Annot. 527) (truthfulness in statements to others), KRPC 4.2 (2007 Kan. Ct. R. Annot. 530) (communication with person represented by counsel), KRPC 4.4 (2007 Kan. Ct. R. Annot. 532) (respect for the rights of third persons), KRPC 5.5 (2007 Kan. Ct. R. Annot. 539) (unauthorized practice of law), and KRPC 8.4(c) (2007 Kan. Ct. R. Annot. 559) (engage in conduct involving dishonesty, fraud, deceit or misrepresentation). Respondent filed an answer to the formal complaint.

The Kansas Board for Discipline of Attorneys held a hearing on May 22, 2007. Respondent appeared in person and through counsel. At the hearing, respondent stipulated to the admission of Disciplinary Administrator's Exhibits 1 through 30. Respondent further stipulated to the factual allegations contained in the formal complaint and to violations of KRPC 1.1, KRPC 4.1, KRPC 4.2, KRPC 4.4, KRPC 5.5, and KRPC 8.4(c).

HEARING PANEL FINDINGS

The hearing panel found the following facts by clear and convincing evidence:

"1. Diane L. Hillbrant (hereinafter 'the Respondent') is an attorney at law, Kansas Attorney Registration No. 12064. Her last registration address with the Clerk of the Appellate Courts of Kansas is . . . Shoreview, Minnesota 55126-3513. The Respondent was admitted to the practice of law in the state of Kansas on September 28, 1984, and her date of birth is September 7, 1956.

"2. In addition to being licensed to practice law in the State of Kansas, the Respondent is also licensed to practice law in the State of Illinois. The Respondent, however, has not been licensed to practice law in the State of Minnesota.

"3. The Respondent also holds licenses to practice pharmacy in Kansas and Minnesota.

"4. Beginning in April, 2003, the Respondent engaged in the unauthorized practice of law in the State of Minnesota. She provided representation to a number of individuals who purported to have suffered damage by construction companies for allegedly providing defective products and workmanship.

"5. The Respondent engaged in a pattern of unprofessional and abusive contact with officials with the construction companies. The Respondent included false information in her communications. Further, the Respondent repeatedly contacted represented parties without authorization from their counsel. For example, on May 20, 2003, the Respondent wrote to Stuart A. Miller, Presiding [sic] and Chief Executive Office[r] of the Lennar Corporation. In the letter the Respondent stated:

'Our tentatively scheduled court date is in Washington D.C. at EPA headquarters on 15 December 2003 at 9:00 AM EST. It will be televised nationally, just like the Delcon Shield case was.

'We are also suing you for reformation and reparation for 2.5 billion dollars for your company as an environmental hazard to the nation and it's [sic] people. The court case for the reformation hearing is to be scheduled for 15 April 2004 at EPA headquarters in Washington D.C. The reformation will also be televised nationally.

'We are closed to informing you of any more details about the cases than we already have. We want you to be aware that the Delcon Shield Company went out of business and was not able to meet all of its reciprocity charges. Two of the members of the Board of Directors and the CEO are still in prison for "white collar crime" and the rest of the Board of Directors and a third of the management staff are still having their salaries garnisheed by the public government and probably will continue to be under this situation for the rest of their lives.'

The Respondent did not have hearings scheduled with the EPA. The statements that she had hearings scheduled was false.

"6. On June 26, 2003, the Respondent wrote to Paul Woodward, Owner of American Building Contractors, Inc. In the letter, the Respondent stated:

'Enclosed [sic] the Mold Inspection Report that will win in the class action suit court case on 15 July 2003. The Mold Inspectors are EPA Certified, in business for over 20 years . . . .

'My client will receive due process in court unless you replace her roof and pay her damages plus attorney's fees right now, so my client can sell her home and move to a new place of residence. If you do not do this now, we will see you in court on the 15th of July and the jury will end up awarding my client much more money than we are asking for . . . .

'You won't be getting out of this. I will make sure of it, as I am an attorney that works in three states, specializing in mold cases . . . .'

Again, a hearing or trial was not scheduled for July 15, 2003.

"7. Then, on July 17, 2003, Ms. Pieracci and Ms. Bohlig [Hillbrant's clients] wrote to Mr. Miller. The letter is formatted just as the Respondent's letters were formatted. This letter contains the following odd language:

'I am disappointed that we will have to go to court to avoid going to jail because of bills and hardship your company has caused. I thought you were a more decent human being than this. The angels said in meditation that they were encouraging you to settle with us to help us after what your company has done to us. And now we will have to go to court. We will get awarded much more money than what is fair and just to your company, which is often done in these cases when you treat people inhumanely.

'You will be receiving the letter from Dr. Jason Reed on Monday, because he was out of town until then. By then it will be too late because we will already be in court.

'We can play dirty too, like you are trying to do. But we won't. Our morals wouldn't allow it.

'I would like to appeal to you as a human being who happened to buy a faulty product from you and was continuously put off by underlings to the point of financially ruining us and making us incredibly ill. But you are not humane are you? Or you would settle with us like the angels said. To [sic] bad you are going to ruin your nice company and be the cause of its downfall. The angels told us this would happen if you did not listen to them in meditation and be a source of light for all people.'

"Restraining Order

"8. Because of the Respondent's repeated contact with the construction companies, on August 12, 2003, the Lennar Corporation filed a petition for a temporary restraining order against the Respondent. In the petition, the Lennar Corporation made the following allegations:

'On or about May 13, 2003, Lennar President and Chief Executive Officer Stuart Miller started to receive phone calls and letters from a person who identified herself as Diane Hillbrant, and who purported to be an attorney in Waconia, Minnesota. Hillbrant, in a letter dated July 12, 2003, and addressed to Miller and the Board of Directors of Lennar, stated that she was initiating a class action lawsuit against Lennar and included in the letter a list of 43 homeowners who were purported to be clients of Hillbrant and whom Hillbrant contended were forming a class action suit against Lennar.

'Hillbrant also stated in the letter that she had scheduled a hearing before the Environmental Protection Agency, to be conducted on December 15, 2003, at 9:00 a.m. Hillbrant stated generally that this claimed class action would be based on vaguely-described alleged problems with the construction of certain Lundgren and Orrin Thompson homes. On further investigation, Lennar found that virtually all of the persons listed as class action plaintiffs, including the mayor of Plymouth, Minnesota, had never heard of Hillbrant and had no such claims.

'Lennar promptly referred the matter to the Leonard, Street and Deinard law firm ("Leonard, Street"). At that time, Lennar clearly and unambiguously instructed Hillbrant to not contact Lennar executives or employees further, and to direct any further communications to Leonard, Street. By letter on July 18, 2003, Leonard, Street instructed Hillbrant to have no further contact with Lennar executives and to correspond only with the law firm. The letter reminded Hillbrant, who purported to be an attorney, of her ethical obligations under Rule 4.2 of the Minnesota Rules of Professional Conduct, to not contact directly a represented party.

'Despite this letter and numerous verbal and written instructions to Hillbrant, she continued to contact Lennar senior executives either directly, through unsigned correspondence, or through letters signed by her clients themselves, presumably at Hillbrant's direction. Since July 13, executives at Lennar have continued to receive a stream of facsimiles and telephone contacts from Hillbrant or people in concert with Hillbrant, all making demands for money and making inflammatory allegations about Lennar, its executives and the Lundgren homes that are apparently the subject of Hillbrant's claims. Additionally, Hillbrant has in the past week commenced contacting Lennar board members directly, including board member and former cabinet secretary Donna Shalala, making similar demands for money. Despite repeated efforts to deter these contacts, and despite the ethical obligations of attorneys to not contact represented parties ...


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