| Summary of Admonitions
By Kenneth L. Jorgensen
Admonitions are private lawyer discipline
sanctions that are issued for isolated and nonserious violations of
the Minnesota Rules of Professional Conduct (MRPC). Last year 107 admonitions
were issued to Minnesota licensed lawyers. Former Lawyers Board Chair
Chuck Lundberg recently wrote about the significant role admonitions
play in our system of self-regulation; they show that the Rules of Professional
Conduct really do matter.1 Here are summaries of several admonitions
issued during 2003.
Incompetent Representation - Domestic Assault Matter.
The lawyer represented the husband in his divorce, and related Order
for Protection proceeding. Husband was also charged with domestic assault.
Husband was an avid hunter. During the representation, husband expressed
concern to his lawyer that under federal law he would be prohibited
from owning a firearm if convicted of the domestic assault charge. Based
on the lawyer's erroneous advice that federal law would not apply to
the domestic assault charge, the husband pled guilty to a misdemeanor
charge of domestic assault. Before sentencing the husband obtained a
second opinion from another lawyer who advised him that his guilty plea
would prohibit possession of a firearm. See 18 U.S.C. §§921
et seq.
The husband demanded that the lawyer file a motion to withdraw his guilty
plea. The lawyer complied but also simultaneously filed a motion to
withdraw from representing husband. At the hearing on both motions,
the lawyer advised the court that he and his client were at odds over
the propriety of the motion to withdraw the client's guilty plea because
the lawyer did not "believe personally there [was] any merit to
the [motion]." Later during the hearing the lawyer again stated
his erroneous opinion that there was "no factual or real basis"
to withdraw the guilty plea because federal law would not preclude the
husband from owning a firearm.
After the trial court permitted the husband to withdraw his guilty plea
because of his lawyer's erroneous advice, the husband filed an ethics
complaint. The lawyer was admonished for incompetent representation
in violation of Rule 1.1, MRPC, due to his failure to research the law
concerning the effect of the misdemeanor conviction upon his client's
right to possess a firearm.
Failure to Account and Return Unearned Fees. The lawyer
represented a client in the following matters: (1) a property claim
against the client's insurer for fire damage; and (2) a related criminal
arson investigation. The lawyer's pursuit of the property damage claim
was held in abeyance pending the criminal arson investigation. When
the arson investigation did not result in criminal charges, the client
wrote the lawyer inquiring about the status of the property damage claim.
Unbeknownst to the client, the lawyer had taken a government position
four months earlier and was no longer in a position to pursue the property
damage claim.
When the lawyer returned the client's file nearly a year later, the
client filed an ethics complaint and inquired about an accounting for
the fees he had paid. The lawyer's records reflected a credit balance
of $556 that had existed since he had ceased working on the matter nearly
16 months earlier. The lawyer refunded the $556 and received an admonition
for violating Rule 1.16(d), MRPC, for failing upon the termination of
the representation to refund an advanced fee payment that had not been
earned.
Conflict of Interest After Prenuptial Representation.
The lawyer represented husband and wife "to be" in drafting
and negotiating their prenuptial agreement. During the next several
years husband and wife separated and reconciled on several occasions.
On each occasion when either husband or wife sought to obtain legal
advice from the lawyer about marital dissolution issues, the lawyer
declined to represent husband or wife without the consent of the other.
Eventually wife initiated marital dissolution proceedings with the assistance
of other counsel. The lawyer agreed to represent the husband and filed
an answer to the divorce petition. When the wife filed an ethics complaint,
the lawyer withdrew from representation. A private admonition was issued
to the lawyer for representing husband in a matter (the pending divorce)
that was substantially related to the lawyer's prior representation
of a former client (i.e., the wife in the drafting and negotiation
of the prenuptial agreement) without obtaining wife's consent. See
Rule 1.9(a), MRPC.
Communication with Unrepresented Parties. The lawyer was
retained to assist the client in a dispute with his neighbors over a
fence. After being retained, the lawyer visited the client's property
and began videotaping the fence and the area in dispute. During the
course of this process the neighbors entered into a discussion with
the lawyer and his client. At one point in the conversation the neighbors
asked the lawyer, "What is your position in this whole thing?"
The lawyer replied, "I'm just helping [name of client]." The
lawyer failed to disclose that he was a lawyer and had been retained
to represent his client and appear before the city council concerning
the dispute over the fence. After the lawyer appeared at the city council
meeting representing his client, the neighbors filed an ethics complaint.
The lawyer received a private admonition for violating Rule 4.3, MRPC,
that requires a lawyer dealing with an unrepresented party to clearly
disclose whether his or her client's interests are adverse to the unrepresented
party. Rule 4.3 also prohibits lawyers dealing with adverse parties
from stating or implying that the lawyer is disinterested in the matter.
Failure to Safeguard Client Property. The lawyer's client
in a criminal matter became dissatisfied with the lawyer's representation
after he was convicted and demanded the return of his client file. The
lawyer delegated responsibility for returning the client file to a nonlawyer
office employee. When the employee returned the client's file, she also
included videotapes and cassette tapes belonging to unrelated client
matters that had been stored in the same banker's box.
Thereafter, the dissatisfied client attempted to negotiate a reduced
fee for return of the inadvertently sent video and cassette tapes. Due
to the lawyer's inadequate office procedures for inventorying client
property, the lawyer was unable to determine how many tapes were missing
and to which clients the tapes belonged. The lawyer received an admonition
for failing to maintain sufficient office procedures to ensure the safekeeping
of client property. See Rules 1.15(c) and 5.3, MRPC. The lawyer
also found it necessary to institute a replevin proceeding against his
former client in order to retrieve the missent video and cassette tapes.
Probate Conflict of Interest. The lawyer was retained
by the personal representative (the decedent's son) to probate an estate.
Among the claims against the estate was a personal services claim in
excess of $10,000 by the son for services allegedly provided to the
decedent during the 12 years prior to his death. There was no written
contract or other documentary evidence of the decedent's agreement to
pay his son for the personal services.
When one of the heirs objected, the lawyer continued to represent the
son in litigating the personal services claim against the heirs. At
no time did the lawyer suggest to the son that he resign as personal
representative in order to pursue the personal services claim, nor did
the lawyer raise the conflict of interest issue with the court. The
lawyer was admonished for violating Rule 1.7, MRPC, by representing
the son in his personal services claim against the estate that the lawyer
was also representing as the attorney for the son in his capacity as
personal representative. See also American College of Trusts
and Estate Counsel, Commentaries on the Model Rules of Professional
Conduct, 3rd Ed. 1999. The ACTEC comment to Rule 1.7 advises that
a lawyer who represents the personal representative of an estate should
not also represent a creditor in connection with a claim against the
estate, even where the creditor is the fiduciary individually.
Failure to Communicate the Basis for a Fee. In June, the
lawyer was retained by a mother to represent her daughter in a criminal
matter. When the lawyer met with the mother and the daughter he was
told they had "little to offer" for legal fees, but that a
family friend might be willing to put up $3,000 to $5,000. In July,
the lawyer appeared with the daughter for a court hearing and had her
sign an engagement agreement. However, the amount or basis for the fee
was left blank. During the next two months the lawyer made no effort
to communicate the basis or rate for his fee. In September, the daughter
discharged the lawyer. When the lawyer sent the daughter a bill for
his services, she filed an ethics complaint alleging the lawyer had
agreed to represent her without charge.
The evidence gathered during the ethics investigation did not support
the daughter's claim that the lawyer had agreed to represent her without
charge. The lawyer did receive an admonition, however, for failing to
communicate the basis or the rate of the fee within a reasonable time
after commencing the representation. See Rule 1.5(b), MRPC.
Improper Assistance to Out-of-State Lawyers. The lawyer
was a recent admittee who was hired by a Florida lawyer not licensed
to practice in Minnesota. The Florida lawyer was attempting to establish
an injury practice in Minnesota before applying for admission. In order
to persuade clients to hire the firm, the recent admittee told clients
about the Florida lawyer's experience in injury law and on at least
two occasions introduced clients to the lawyer without disclosing that
the lawyer was not licensed to practice in Minnesota. The recent admittee
also used letterhead and business signage that listed the Florida lawyer,
but failed to disclose that he was not admitted to practice in Minnesota.
The recent admittee was admonished for assisting the Florida lawyer
in the unauthorized practice of law by introducing the Florida lawyer
to Minnesota injury clients in order to persuade clients to hire the
law firm. See Rule 5.5, MRPC. The admonition also cited the recent admittee
for listing the Florida lawyer on letterhead and business signage without
disclosing that the lawyer was admitted only in the state of Florida.
See Rule 7.5, MRPC.
Direction to Remove Lawyer Correspondence from Client's Medical
File. While representing a client in an injury claim, the lawyer
wrote a medical provider regarding the permanency of the client's injury.
The letter included suggested language for use on the client's permanency
chart notes in the event the provider made a permanency finding. In
addition, the provider was instructed not to place the letter from the
lawyer in the client's patient file.
The lawyer was admonished for suggesting a procedure that could conceal
material having potential evidentiary value in violation of Rule 8.4(c),
MRPC. See also Rule 3.4(a), MRPC. A provider that followed the
lawyer's instruction could make the correspondence from the lawyer inaccessible
to defense counsel. Information that showed the actual wording of the
provider's chart notes that came not from the provider, but instead
from the lawyer, could constitute relevant evidence in any subsequent
legal proceeding. The lawyer's violation was mitigated by the fact that
there was no suggestion or other attempt to influence the provider's
decision to make a permanency finding. Moreover, the firm agreed to
cease the practice after the ethics complaint was filed.
NOTES
1. Lundberg, "In Pursuit of Ethical Lawyering," Bench &
Bar (February 2004) p. 14.
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.
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