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| Summary
of Admonitions This month’s
article is the annual summary of admonitions issued to Minnesota lawyers
over the past year. Admonitions
are issued for isolated and nonserious violations of the Rules of
Professional Conduct. Of the 1,150 complaints received in 2005, 107
resulted in private admonitions. Some
of the facts in the following summaries have been simplified for ease
of understanding and others have been changed to maintain anonymity. Admonitions, though private,
serve several important functions.
They assist in maintaining the profession’s integrity by demonstrating
to the public that even minor violations of ethics standards are important
to the bar. Admonitions can be a valuable educational tool
for lawyers and law students. Very
few lawyers who receive admonitions are “bad or unethical” lawyers. Most often they are culpable of no more than
an isolated instance of substandard lawyering.
It is important, however, to keep in mind that a pattern of
otherwise “isolated and nonserious conduct” can lead to other dispositions,
including private probation and in some instances public discipline. Small ethical transgressions have a way of becoming
large problems if not taken seriously.
Learning from other people’s mistakes is a good idea. Getting an advisory opinion about one’s future
conduct can be even better by helping to avoid complaints, especially
valid complaints. Rule 4.4 — Rude Harassing Words. An attorney representing clients facing a termination
of parental rights trial received a large stack of documents from
a witness who indicated she would be testifying about the substance
of those documents. The attorney,
irritated with the amount of information being presented to him right
before trial, made a rude comment to the witness. A
paralegal for adverse counsel commented to the attorney that he was
being rude to that witness. Whereupon
the attorney launched into a tirade against the paralegal that lasted
several moments in front of other individuals in the courtroom.
The tirade included profanity.
It was a demeaning, unprofessional, hostile attack which frightened
those who witnessed it. The
attorney’s conduct violated Rule 4.4, Minnesota Rules of Professional
Conduct, which provides in pertinent part, “In representing a client,
a lawyer shall not use means that have no substantial purpose other
than to embarrass … a third person … .” Fortunately, the court was not actually in session
at that time and neither the judge nor the jury was present during
the attorney’s outburst. The
attorney’s remorse, coupled with the absence of any indication that
the behavior might be repeated, eliminated the need to seek more serious
discipline. Rule 1.7(b) — Pushing a Client to Settle. The attorney’s
client, who was the citizen of another country, had to return to that
country while his case was pending.
As a result, discovery went unanswered for an extended period
of time and opposing counsel brought a motion to compel, resulting
in an order of the court directing responses from the attorney and
his client. Eventually the attorney provided some discovery
responses, but did not translate the responses into English. On the date the trial was to begin, the parties
had detailed discussions about a possible settlement. The attorney’s client did not want to settle
on the terms the adverse party was proposing.
When the attorney and opposing counsel met with the court to
discuss final pretrial matters, opposing counsel brought a motion
in limine regarding the attorney’s incomplete and non-English responses
to discovery requests. Opposing
counsel requested sanctions in the form of attorney’s fees, which
the court took under advisement. The
attorney then asked to speak with his client in the hallway where
he told the client he needed to settle the client’s case so that he,
the attorney, would not run the risk of being made to pay attorney’s
fees for the client’s failure to comply with discovery requests.
An interpreter was present for the conversation. The attorney and client returned to the courtroom
where the client allowed the settlement to be read into the record
and indicated, in response to the court’s questioning, that he understood
and accepted the settlement. When
client later refused to sign the written settlement memorializing
the oral agreement as set forth in court, opposing counsel brought
a motion to enforce the settlement.
The court denied the motion because the client had felt coerced
into settling the case, did not understand the terms of the agreement,
and felt obligated to settle because the attorney feared the prospect
of sanctions in the form of attorney’s fees and did not have the funds
to pay such fees. Rule 1.7(b), MRPC, provides
“A lawyer shall not represent a client if the representation of that
client may be materially limited by … the lawyer’s own interests,
unless (1) the lawyer reasonably believes the representation will
not be adversely affected; and (2) the lawyer consents after consultation.”
In this case, the attorney’s professional judgment appears
to have been influenced by his concern that he might be sanctioned
for his failure to respond to written discovery in the matter.
Although the reason for the many problems with the discovery
process is not entirely clear, the fact that the attorney allowed
his own interests to interfere with representing and advising his
client is clear. The interpreter who witnessed the conversation
between the attorney and his client confirmed that the attorney cajoled
his client into settling because the attorney was concerned about
the possible sanctions and even asked the interpreter to assist him
in convincing the client to settle.
Rule 1.8(a) — Obtaining a Security Interest for Fees. When the client
received a $13,000 bill following her marriage dissolution and failed
to make payment on the overdue bill, the attorney called the client
and told her that they needed to discuss the bill and devise a payment
plan. The client’s exhusband owed the client about
$8,000. The attorney asked
the client to assign this payment to him and also asked for assurances
that the remainder of his bill would be paid.
To that end, the attorney had the client sign a document entitled
“Promissory Note and Agreement and Attorney Lien.”
The document provided that client was (1) acknowledging the
amount owed, (2) assigning the $8,000 payment due from her exhusband
to the attorney, (3) agreeing to pay $2,000 immediately and (4) promising
to make payment of the remaining $2,000 within 30 days.
The document also stated that if payments were not made as
indicated, the attorney could obtain a judgment against the client
without a hearing for the unpaid amount by simply filing an affidavit
with the court. The document
also included a pledge of the client’s automobile and four-wheeler
as collateral securing the payment and extending an existing attorney’s
lien to the collateral. The
attorney did not advise the client in writing that she might want
to consult with another attorney before signing the document.
The attorney failed to provide the client with an opportunity
to consult with another attorney as required by Rule 1.8(a)(1), MRPC,
and did not obtain the client’s written consent in a separate document
as required by Rule 1.8(a)(3). By
signing the document at the attorney’s request, the client surrendered
legal rights and the attorney acquired a security interest in the
client’s personal property greater than what is typically granted
by law to lawyers. See
Minn. Stat. §481.13. By failing to give the client written notification
that she should consider consulting independent counsel before signing
the document at issue, the attorney violated Rule 1.8(a)(1) and (3).
Rule 1.16(d) — Withdrawal from Representation. The attorney’s
clients remained steadfast in their position not to settle their matter
for less than $5,000 and refused several settlement offers. The attorney never indicated to the clients
her unwillingness to proceed to trial if the clients refused to accept
a lower settlement offer. One
week before the deadline for filing exhibits and two weeks before
the date of the trial, the attorney withdrew from representation and
did not timely forward the file materials to clients so that they
could obtain new counsel in time for trial.
Rule 1.16(d) provides that an attorney who withdraws from representation
should take reasonable steps to protect the interest of the clients.
Such steps include giving the client reasonable notice that
withdrawal is imminent, timing the withdrawal so as not to prejudice
the client’s case, and promptly surrendering all client files and
property. While the attorney’s conduct in this matter
was isolated, the Director’s Office seriously questioned whether the
attorney’s conduct was truly nonserious.
Her failure to promptly provide the client file critically
impacted the clients’ ability to proceed with their case.
Had the clients’ new counsel not indicated that he was unsure
whether the clients would have received a different outcome had they
proceeded to trial, the Director’s Office might have considered other
more serious discipline for this conduct.
Rule 1.16(d) — Return of File. The attorney represented the client in a replevin
action. While the replevin
action was pending, the client was charged with fraud in federal court. After learning of the federal fraud charge,
the attorney in the replevin action no longer believed the client’s
claim regarding that matter. Without
consulting the client, the attorney reached an agreement with the
opposing party to dismiss the replevin action without prejudice and
signed a stipulation to that effect.
The attorney withdrew and informed the client that he could
refile his civil action should he be acquitted on the federal fraud
charge. The attorney refused
to give the client the file, contending that the client might misuse
the attorney’s research to pursue a frivolous or fraudulent claim.
Once the attorney came to a good faith belief that the client’s
claim was based on fraud, she had a right to withdraw her representation
and may have even had a duty to withdraw her representation.
The attorney, however, did not have the right to refuse to
provide the client with the research materials for which the client
had already paid as part of the attorney’s representation up to that
point. The research, which
consisted of how-to forms and outlines the attorney had compiled,
cannot be said to constitute aiding the client’s “commission of a
crime.” If the client were
to proceed with his claim, the court proceeding over that claim can
assess the validity of the claim and direct appropriate sanctions
and/or notify the criminal authorities as warranted.
An attorney cannot refuse to surrender the file based upon
her belief as to what the client might do with the file materials
and based on the attorney’s unilateral conclusion as to what such
possible conduct would or would not constitute. The attorney’s repeated refusal to surrender
the file materials to the client for almost a year after the client’s
unequivocal written demand for the file violated Rule 1.16(d). Rule 1.4(b) — Making Sure the Client Can Understand. The attorney’s
client in a workers compensation proceeding spoke very little English. During the settlement negotiation, an interpreter
was present. Several weeks
later, the attorney called the client into his office to sign the
final version of the settlement documents.
The attorney did not explain the documents to the client. He simply had the client sign the various documents.
The attorney did not have the documents translated or an interpreter
present to read the documents to the client.
Rule 1.4(b) requires an attorney to “explain a matter to the
extent reasonably necessary to permit the client to make informed
decisions regarding the representation.” Having a client who speaks limited English sign
legal documents written in English without the assistance of a translation
or interpreter violates Rule 1.4.
It is the attorney’s responsibility to take the steps necessary
to allow the client to make an informed decision.
Because of the language barrier, the attorney failed to explain
the meaning and purpose of the legal documents the client was signing.
The client could not make an informed decision about signing
the documents because they were not presented to her in a manner she
could understand. Rule 4.2 - Communicating with a Party Represented by Counsel. A collection
attorney who knew that the debtor was represented by counsel nevertheless
sent a letter directly to the debtor.
In responding to the complaint, the attorney stated that the
letter was sent by mistake and provided information tending to demonstrate
that the letter was sent due to a glitch in his computer system.
The Director’s Office and the district ethics committee investigating
the matter might have concluded that this technical violation of Rule
4.2 did not rise to the level mandating discipline, but for the fact
that four months later a second letter was sent directly to the same
debtor in violation of Rule 4.2. The
second letter having been sent after the attorney had been placed
on notice about the problems with his computer-generated mail resulted
in an admonition. Rule 3.1 - Frivolous Motion. The attorney represented a party in a contentious
contract dispute. During the
course of the litigation, the court ordered the parties to mediate. The attorney failed to respond to opposing counsel’s
efforts to set up mediation and then filed a motion to compel mediation.
After hearing the matter, the trial court sanctioned the attorney
and the attorney’s client. The attorney failed to comply with the court’s
order and took little action with regard to the matter until the trial
court judge issued a bench warrant for the attorney’s arrest. Rule 3.1 provides that an attorney should not
bring or defend a frivolous claim.
The attorney’s motion to compel mediation was frivolous. Opposing counsel sent the attorney letters regarding
the court-ordered mediation and the attorney either refused or did
not respond to the request. The
trial court, after hearing the attorney’s motion to compel mediation,
found that the motion was frivolous because it was the attorney’s
own conduct which caused the lack of mediation.
As a result, the trial court sanctioned the attorney and his
client for bringing the motion. Rule 5.1(a) - Covering for an Absent Partner. The client retained
the attorney’s firm to represent him in 2003. The attorney’s partner was primarily responsible
for the client’s case. In October
2003 the attorney’s partner, who was responsible for the case, was
deployed to Kosovo with the Minnesota National Guard. From October 2003 until July 2004 the client’s
many letters to the law firm went unanswered. During that time period, the client received
no information from the firm regarding his case. Even after the initiation of the investigation
of the client’s complaint, little information was provided to the
client. Between October 2003 and July 2004 little, if
any, work was done on the client’s case.
Rule 5.1(a) requires a partner in a law firm to have reasonable
measures in place to ensure compliance with the Rules of Professional
Conduct. The attorney failed to have proper measures
in place and failed to have any system to deal with her partner’s
cases once the partner was deployed.
There was no system to ensure that the partner’s cases were
reviewed, correspondence handled, and to ensure that communication
with the partner’s clients occurred.
The attorney’s failure to have systems in place to guarantee
her partner’s cases would be handled in accordance with the Rules
of Professional Conduct violated Rule 5.1(a). Rule 1.5 - Return of Client Funds. The attorney represented the
client in a number of different matters.
In one matter the attorney obtained a $2,500 payment for the
client. The client told the
attorney to take his fees out of that amount and forward the remainder
to him. The attorney transferred the $2,500 balance
from his trust account into his general business account in preparation
for paying himself the attorneys fees owed and to return the balance
to the client. Because the client had other open matters with
the law firm, the attorney’s bookkeeper placed the money due to be
returned to the client as a credit balance on those open accounts. It was not until almost two years later, when
the client complained to the Director’s Office, that the attorney
finally forwarded the balance due to the client.
The evidence is clear that a portion of the $2,500 belonged
to the client. Accordingly,
the attorney should have disbursed from his trust account only the
funds owed to him as fees, not the entire amount.
The remainder should have been sent directly to the client
from the trust account as opposed to being allowed as a “credit balance”
on the client’s unrelated matters. By moving the client’s money from the trust
account to the business account, the attorney violated Rule 1.15(a). Rule 1.15 - Third Party Funds. The attorney represented a client in a marriage
dissolution. The pro se opposing
party gave the attorney $15,000 to place in her trust account to be
held until the final disposition of the case.
Pursuant to Rule 1.15, the attorney had a duty to keep the
pro se adverse party’s money in a safe and secure manner and to seek
that person’s consent prior to distributing his property.
Rule 1.15(a) provides, in part, “All
funds of clients or third persons
held by a lawyer or law firm in connection with a representation shall
be deposited in one or more identifiable interest-bearing trust accounts
… . ” (emphasis added). Without
notifying the pro se opposing party, the attorney disbursed the funds
to her client at her client’s request.
While the attorney’s client may have authorized the release
of the funds, they were not the client’s funds to release.
Only the pro se opposing party could authorize the release
of the funds. It was clear from correspondence that the funds
were to be held until the finalization of the dissolution proceedings
and used to satisfy any property award made to the attorney’s client. The attorney’s release of the funds to her client
prior to the end of the dissolution without authorization by the pro
se opposing party and without informing the pro se opposing party
of the distribution of the funds violated Rule 1.15(a). BETTY
M. SHAW is acting director of the Office of Lawyers Professional
Responsibility. She has served the Office for 20 years, both
as a senior assistant director and as supervisor of the Probation
Department. |
