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| More Than
Just Lawyer Discipline Most lawyers identify
the Office of Lawyers Professional Responsibility (OLPR)
with ethics complaints and the prosecution of lawyers.
In fact, the majority of OLPR resources are used to investigate
and prosecute approximately 1,200 complaints, 50 public discipline
cases (e.g., reprimand, suspension and disbarment)
and 120 private discipline cases (e.g., private admonition) each year. Although it may constitute the primary task,
investigating and disciplining lawyers is only one of many functions
fulfilled by the OLPR in serving the bar and the public.
What follows is a peek inside the OLPR at some of the lesser-known
functions of the Advisory Opinions. Advisory opinions are available to all licensed Legal Ethics Education. Increasingly
over the past decade, more disciplinary resources have been expended
in the area of legal ethics education.
Each year the Lawyers Board and OLPR sponsor
a continuing legal education (CLE) seminar devoted solely to the subject
of professional responsibility.
Lawyers Board members and OLPR attorneys are frequent lecturers
on the CLE circuit. These presentations
are not limited to programs devoted entirely to
professional responsibility but also include CLE on other substantive
areas of the law in which legal ethics has been incorporated into
the program. Last year alone attorneys in the OLPR participated
in over 50 CLE seminars. Web Site. The Web site can be accessed at www.courts.state.mn.us/lprb
and contains resources for lawyers and the public. Resources for lawyers include a searchable archive
of past Bench & Bar and
Minnesota Lawyer articles on professional
responsibility, a legal ethics subject matter index with links to
past professional responsibility articles, the current Rules of Professional
Conduct, Rules on Lawyers Professional Responsibility and Lawyers
Board Formal Opinions, as well as information on lawyer trust accounts
and professional firm filing requirements. Resources for legal consumers include a downloadable
complaint form, instructions on how to file an ethics complaint, information
about the complaint filing and investigation process, and a list of
Trust Accounts. Publications to assist lawyers with the operation
and proper maintenance of lawyer trust accounts are available from
the OLPR. Lawyers Board Opinion
No. 9 identifies the various types of required trust account records. In addition, two instructional brochures have
been created to assist lawyers with trust account record-keeping requirements.
Other People’s Money: Operating Lawyer Trust Accounts provides instruction
and assistance in maintaining manual trust account records. Maintaining
Trust Accounts with Quicken Basic 2002 exists to assist lawyers
who desire to maintain lawyer trust accounts electronically. Both of these trust account manuals are available
on the Web site.1 Professional Firm Report Filing. Minnesota Statutes Chapter 319B Ñ the Minnesota
Professional Firms Act Ñ requires every law firm organized as a professional
corporation, limited liability company or limited liability partnership
to register upon formation and thereafter file annual reports with
the OLPR.2 The act sets forth a number of provisions regarding
ownership and control of professional firms and requires filings with
the professional licensing agency (i.e.,
OLPR) in addition to the regularly required filings with the secretary
of state. Each year the OLPR
obtains and verifies the professional firm reporting requirements
for over 1,500 Under the act failure to report is grounds for involuntary
dissolution or rescission of the professional firm’s status. A far more serious consequence is the potential
loss of the law firm’s corporate protections from creditors. Noncompliance with statutory reporting requirements
enables creditors to pierce the corporate veil of the law firm’s professional
firm status and seek payment of firm financial obligations directly
from the individual lawyer members.
See e.g., John E. Miles
v. Law Offices of James H. Cohen, P.C. and James H. Cohen, 99
wl 451336 (Minn. App. 07/06/99), where
the appellate court upheld a trial court determination piercing the
law firm’s corporate veil and added the sole shareholder lawyer as
a judgment debtor in a judgment previously obtained against his law
office professional corporation. In piercing the corporate veil, the trial court
noted that the lawyer had not filed his artiCLEs
of incorporation with the OLPR, nor had he made the mandatory annual
report filings. Further information
about firm filing requirements is available at www.courts.state.mn.us/lprb/profcorp.html. Supervision of Probationary Lawyers. Occasionally the monitoring or supervision of
a lawyer’s practice becomes necessary to adequately protect the public. Lawyers who commit nonserious
violations, which cannot be characterized as “isolated,”3 are oftentimes
subjected to private probationary conditions designed to address the
behavior causing the violations. Likewise,
the Supreme Court sometimes uses probationary conditions in its public
discipline of lawyers to ensure the public’s protection.
Both of these types of probation most often require monitoring
by either the OLPR or a volunteer lawyer assisting the OLPR as a probation
supervisor. Probationary conditions
range from monitoring a lawyer’s office procedures and file inventories,
retainer agreements and fee practices, trust account records and procedures,
income tax return filings, and compliance with treatment programs
for chemical dependency and psychological disorders.
Lawyers with more serious chemical issues may be required to
submit to random drug testing programs with results reported to the
OLPR. Disclosure or Verification of Lawyer Discipline
History. The
OLPR receives requests daily for disclosure or verification of lawyer
discipline history. The bulk
of these requests come from lawyers who are applying for admission
to another jurisdiction, seeking employment with a governmental agency,
applying for a judicial appointment, and obtaining or maintaining
a specialization certification. Other
requests come from law firms in lateral hire situations, corporations
when hiring lawyers, malpractice insurers when renewing or issuing
coverage, and lawyer referral organizations who have obtained authorization
from the lawyer(s) to have disciplinary information released.
Most of these requests seek disclosure of public and private
discipline imposed as well as the existence of any pending complaints
against the lawyer. The OLPR typically responds to about 1,000 requests
of this nature each year. Any lawyer in need of a disciplinary
history verification should either mail or fax a signed request to
the OLPR, including your Increasingly, legal consumers contact the OLPR to
obtain a lawyer’s discipline history.
Public discipline sanctions and pending public disciplinary
proceedings are disclosed to the public without the affected lawyer’s
authorization. Information about private discipline or pending
complaint investigations cannot be disclosed without written authorization
from the lawyer.4 Nevertheless, sophisticated clients will
occasionally condition retention of the lawyer upon the lawyer’s authorization
for release of his or her discipline history to the client. The OLPR receives as many as 20 telephone calls
per day from legal consumers attempting to determine whether a lawyer
has been publicly disciplined. Trusteeships. A lesser-known function of the OLPR involves
acting as trustee for the files of law practices that are unexpectedly
interrupted due to death, disability, or disbarment of a lawyer.5 The trustee role served by the OLPR involves
obtaining Supreme Court authority to take possession of the client
files and provide for their return to clients.
Trusteeships are reserved for those situations in which there
is no one else available to pick up the pieces of an unexpectedly
interrupted practice. Some trusteeships entail only a handful of files,
while others, such as the one involving disbarred lawyer Mark Sampson,
implicate thousands of files. Solo practitioners are encouraged to prepare a plan
for unexpected practice interruption.
Beyond the need for access to client files, other client prejudice
issues associated with practice interruption include legal deadlines
and the inability to access client trust account funds.6
A subcommittee of the MSBA Rules of Professional Conduct
Committee is currently working on a model practice interruption plan
for solo practitioners and intends to have its final draft completed
this fall. Complaint investigation and prosecution still consumes
much of an average day in NOTES 2. See Minn. Stat. ¤319B.11, subd.
(4). 3. Violations of the Rules of Professional Conduct
that are “isolated” and non-serious typically result in private admonitions. See Rule 8(d)(2), Rules
on Lawyers Professional Responsibility. 4. Rule 20, Rules on Lawyers Professional Responsibility.
5. See Rule 27, Rules on Lawyers Professional Responsibility. 6. See e.g., ABA Formal Opinion 92-369 entitled “Disposition
of Deceased Sole Practitioner’s Client Files and Property” (December
7, 1992). KENNETH L. JORGENSEN is director of the Office
of Lawyers Professional Responsibility.
He has served the cause of lawyers' self-regulation in Minnesota
for over 20 years. |
