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The
Rules on Lawyers Professional Responsibility provide for two types
of nonpublic, or private, discipline: admonitions and stipulated probation.1
A summary of admonitions has been published
on an annual basis in this column for many years, and so in a bow
to tradition, the title above remains the same again this year. In
fact, a summary of private discipline may be a more accurate description
of what will be discussed. In
calendar year 2007, the Director’s Office issued 120 admonitions to
Minnesota attorneys for what the rules consider isolated and nonserious
misconduct. Another 20 lawyers entered into stipulations for private
probation that were approved by the Lawyers Board chair; these stipulations
resolved 32 complaint files. A sampling of the types of misconduct
that can lead to private discipline is set out below. As
always, a word of caution is appropriate in reading the brief descriptions:
since these are offered for educational purposes, the facts may have
been slightly simplified in order to make the violations clearer (real-life
fact patterns sometimes are complicated). It is also worth noting
that in each of the examples of admonition described, the complaint
was initially investigated by the local District Ethics Committee
(DEC), which had recommended that the Director issue an admonition.
The Director’s Office follows the DEC recommendation in well over
90 percent of the complaints investigated. In general, the volunteer
investigators, both lawyers and nonlawyers
who perform these investigations, do an outstanding job of determining
the facts and applying the Rules of Professional Conduct. Failure to Screen a Conflicted
Lawyer. An attorney had consulted with
a woman about a potential dissolution of her marriage. The potential
client provided confidential information
to the lawyer during the meeting. The potential client did not retain
the attorney. Later, the husband of this potential client sought to
retain a lawyer in the attorney’s firm for the same dissolution matter.
The wife provided a valid waiver of any conflict of interest only
upon the express agreement of the attorney that he would be fully
screened from any participation in the matter. Thereafter, the lawyer
had discussions with the other lawyer in his firm who was representing
the husband, and also performed some limited services on the husband’s
matter. The attorney violated Rules 1.9(a) and 1.10(a), Minnesota
Rules of Professional Conduct (MRPC), concerning conflicts of interest
with former clients and the imputation of conflicts of interest within
a law firm.2 Suing Client for Statements Made in Disciplinary
Complaint. A client made a complaint to the Director’s Office against the attorney.
After investigation by the DEC, it was determined that discipline
was not warranted and the complaint was dismissed. Thereafter, the
attorney initiated a civil action against the client in part for defamation,
based upon the statements made in the disciplinary complaint process.
Rule 21(a), RLPR, grants immunity from civil liability for statements
made in a disciplinary proceeding. By suing the client based upon
statements made in the disciplinary process in violation of Rule 21(a),
the attorney violated Rule 3.4(c), MRPC (knowingly disobeying an obligation
under the rules of a tribunal). Note that the RLPR provide immunity
protection only to statements made in the disciplinary proceeding,
not to statements made elsewhere. Improper Fee-Sharing Agreement. A client retained the attorney to handle a criminal matter and a family
law matter. The written fee agreement provided that the attorney may
hire cocounsel to assist in the representation,
with the client’s consent. The agreement did not, however, set out
what portion of the fees would be paid to cocounsel,
nor did it obtain client’s consent to the fee-sharing arrangement.
The client learned the details of the fee-sharing only when he sought
a partial refund of his retainer. The attorney violated Rule 1.5(e),
MRPC, which requires all fee-sharing arrangements to be agreed to
by the client, including the share each lawyer will receive, and be
confirmed in writing. Contacting a Represented Person. The attorney represented the
husband in a marital dissolution proceeding. The attorney knew that
the wife was represented by counsel in the matter. The wife then initiated
an Order for Protection (OFP) matter pro
se. The attorney wrote directly to the wife, discussing property
issues that were part of the dissolution and not at issue in the OFP
proceeding. The letter specifically invited the wife to contact the
lawyer “with reference to the divorce matter.” The attorney violated
Rule 4.2, which prohibits communication with a person known to be
represented by counsel in a matter. Improper Withdrawal from Representation. Attorneys in two separate court
matters were admonished for failure to properly withdraw from representation,
even though the attorneys had sufficient grounds to withdraw. The
attorneys both violated Rule 1.16(c), MRPC. Withdrawal from state
court civil actions must be done pursuant to Rule 105 of the General
Rules of Practice for the District Courts, which requires that a notice
of withdrawal be sent to all parties and be filed with the court.
Court approval is not required. Court approval for withdrawal of counsel
is required in state court criminal matters, pursuant to Rule 703,
General Rules of Practice, and in all federal court matters, pursuant
to Rule 83.7 of the Local Rules for the U.S. District Court for the
District of Minnesota. Other issues related to the termination of
representation, such as the return of the client’s file or property
or the refund of any unearned advance fee payments, also resulted
in admonitions this past year. Lack of Diligence and Communication. As is true almost every year,
violations of Rules 1.3 (Diligence) and 1.4 (Communication) were the
most common occasions for private discipline in 2007.3 This past year,
admonitions were issued for failing to serve and file a complaint
in a discrimination matter within the prescribed time period following
the issuance of an EEOC Notice of Right to Sue; for failing to take
any meaningful action or communicate with the client for many months
in a personal injury matter; for submitting a proposed QDRO in a dissolution
matter several months after the court’s deadline; and for failing
to take timely action in an immigration matter concerning an H-1B
visa. Immigration law matters increasingly are a source of complaints
and discipline in recent years concerning diligence and communication
issues, but also as to issues of basic legal competence. Like most
areas of the law today, immigration law is not an area in which it
is safe to “dabble” without proper training or experience. Substantial
harm to a client can be caused by even “minor” instances of lack of
competence or diligence. The
Supreme Court Advisory Committee to Review the Lawyer Discipline System,
whose report to the Supreme Court will be issued later this year,
is attempting to study data to determine the how effective private
discipline is in preventing recidivism by an attorney. While there
are certainly attorneys who commit further misconduct after being
privately disciplined, in many, and likely more instances, private
discipline serves as a sufficient “wake up call” to the attorney to
renew a commitment to an ethical practice. Notes 2 The initial meeting in this example took place before
October 2005, when current Rule 1.18, MRPC, was adopted specifically
addressing representation adverse to a former potential client. Thus,
this matter was analyzed under Rules 1.9 and 1.10 (former clients
and imputed conflicts of interest). The result would not have been
different under the current rule. 3 In August 2007, this column was exclusively devoted
to the issues of diligence and communication. Some additional admonitions
were briefly described. MARTIN
COLE is director of
the Office of Lawyers Professional Responsibility. An alumnus of the University of Minnesota and
of the University of Minnesota Law School, he has served the lawyer
disciplinary system for 21 years. |
