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Summary
of Admonitions For the past 23 years my predecessors periodically
have used the opportunity of this column to provide a summary of some
of the private admonitions issued by the Director’s Office. Such summaries,
although often cursory in their statement of the facts of a particular
matter, help educate practitioners about some of the nonserious
violations that can occur even in an otherwise ethical practice, and
perhaps deter others from similar actions. The
standard for an admonition is a violation of the Rules of Professional
Conduct of an isolated and nonserious nature.
Rules 8(d)(2) and 9(j)(1)(iii), Rules on Lawyers Professional Responsibility
(RLPR). Most admonitions are issued after a preliminary investigation
by a district ethics committee and upon their recommendation for discipline.
The admonitions summarized below were among the 83 admonitions issued
by the Director’s Office in 2006. As
in most years, the majority of admonitions last year involved a lack
of diligence and/or communication by the attorney. Others involved
what may seem to be rather outrageous, albeit comparatively nonserious
conduct, such as in some of the admonitions summarized in this article.
Note that some of the factual recitations have been simplified to
highlight the applicable misconduct. Expediting Litigation. The attorney represented an
individual in a workers-compensation matter. The client desired that
the matter be handled as promptly as possible and the attorney specifically
agreed to do so. Although there were four months from the time he
was hired until the scheduled hearing on the matter, the attorney
did not start obtaining medical reports until less than two months
before the hearing. The last report was not provided to the employer’s
counsel until ten days before the hearing. The employer’s counsel
requested a continuance based upon information contained in the belatedly
provided report. The workers-compensation judge granted the request
and the client complained. The attorney violated Rule 3.2, which requires
an attorney to “make reasonable efforts to expedite litigation consistent
with the interests of the client.” Failing to Deposit and Refund
Advance Fees.
The attorney agreed to represent the wife in a marital dissolution
proceeding. The client paid the attorney a $2,000 advance
fee. There was no written fee agreement prepared or signed. The attorney
immediately deposited the money into her business account, rather
than into her trust account. Before
the attorney had earned the entire advance fee, she took a job that
did not permit her to maintain a private law practice. Although she
properly withdrew from the representation, she did not refund any
portion of the advance fee until after a complaint was filed. The
attorney violated Rules 1.5(b) and 1.15(c)(5),
which require a written fee agreement if a fee is to be considered
nonrefundable and deposited into a business account upon receipt.
She also violated Rule 1.16(d), which requires an attorney to refund
unearned advance fees upon termination of representation. Communication with a Represented
Party.
The attorney represented the plaintiff in a litigated contract dispute.
The attorney received an email from another attorney stating that
he represented the defendant and that all future communications should
be directed to counsel. Thereafter the attorney continued to attempt
to contact the party directly, including serving motion papers on
the individual that should have been served on counsel (Rule 5.02,
Minnesota Rules of Civil Procedure). The attorney’s conduct violated
Rule 4.2, MRPC. The
attorney argued that until a formal certificate of representation
was filed by opposing counsel with the court, that direct contact
with the client was still permitted. Rule 4.2 requires only that an
attorney know that a person is represented by counsel and contains
no such requirement in litigation matters. Threatening Action Unrelated to the Matter. The attorney represented
a defendant in a discrimination lawsuit. The pro se plaintiff was
a foreign citizen who was in compliance with all immigration requirements.
In response to a settlement offer from the plaintiff, the attorney
threatened to seek to have the plaintiff deported if she did not voluntarily
dismiss the matter. The attorney’s threat was unrelated to the litigation
and had no purpose except to burden the plaintiff in violation of
Rule 4.4, MRPC. This matter was analyzed as being similar to threatening
criminal prosecution in a civil matter, which is permissible only
if there is a good faith belief that the claim is valid and there
exists a nexus between the threat and the pending matter. Return of File and Unnecessary
Disclosure of Client Confidential Information. An attorney represented the
wife in dissolution proceedings. After approximately one year, the
client discharged the lawyer and requested the return of her file.
The fee agreement signed by the client authorized the attorney to
charge for copying the client’s file upon termination of the representation.
The attorney would not release the file, however, until the copying
costs were paid. The attorney even contacted the Director’s Office
for an advisory opinion and was advised that while he could charge
the client pursuant to the agreement, he could not condition return
of the file upon receipt of payment. Despite the advisory opinion,
the attorney refused to release the file for an additional two months.
The conduct violated Rule 1.16(g), MRPC. The
same attorney also filed an attorney’s lien for unpaid fees. In support
of the lien, the attorney attached unredacted
copies of billing statements and an affidavit in which the attorney
disclosed confidential information about the client and the attorney’s
assessment of her mental health. This information went beyond what
was necessary to collect the attorney’s fees and violated Rule 1.6(b)(8),
MRPC, which allows disclosure of confidential information only to
the extent reasonably necessary to establish a claim in a controversy
between the lawyer and a client (see
Comment [12] to Rule 1.6). Improper Claim of Specialization. The complainant was injured
in a car accident. He received several direct mail solicitation letters
offering legal services; these are permitted under Rule 7.3, MRPC,
if the words “Advertising Material” appear clearly and conspicuously
on the envelope. The attorney properly sent such a letter. The attorney’s
letter also stated in boldface letters, all capitalized, that the
reader should hire the attorney because the client needed to “hire
an attorney who specializes in personal injury law.” Rule
7.4(d), MRPC, prohibits an attorney in a communication from stating
or implying that he is a specialist unless 1) the name of the certifying
organization is clearly identified, or 2) if the individual is not
certified, then a statement to that effect must appear in the same
sentence in which specialization was stated or implied. The attorney
in this instance was not a certified specialist and the letter did
not contain the required disclaimer. Litigation in Response to Ethics
Complaint.
The attorney represented the husband in a marital dissolution proceeding.
After the wife filed an ethics complaint against the attorney (that
was dismissed), the attorney sued the wife/complainant for abuse of
process. The wife answered in part that Rule 21(a), RLPR, provides
immunity from civil liability based upon a disciplinary complaint.
The attorney then filed an amended civil complaint for contempt. The
district court dismissed the attorney’s claims with prejudice. The
attorney’s actions constituted nonmeritorious
litigation in violation of Rules 3.1 and 8.4(d), MRPC. Failing to Supervise a Disbarred
Attorney.
An attorney hired a disbarred lawyer to work in a paralegal capacity.
As required by Rule 5.8, MRPC, the lawyer provided written notice
to the Director’s Office that she was employing the disbarred attorney.
Rule 5.8 sets out the tasks that a suspended or disbarred lawyer may
or may not perform. The
disbarred lawyer sent a letter to an insurance company on behalf of
a client making a settlement demand, setting out a detailed legal
analysis as to liability, and requesting the insurer to contact either
the attorney or the disbarred lawyer to further discuss the matter.
Rule 5.8(b)(4) restricts a lawyer from allowing
a suspended or disbarred lawyer from negotiating on behalf of a client
with third parties. The attorney had failed to properly supervise
the disbarred attorney by allowing the attempted negotiation. In
a separate matter, an attorney who employed a suspended attorney without
notifying the Director’s Office as required by Rule 5.8 also was issued
an admonition. Naming Self as Beneficiary
in Will. Finally, a correction is appropriate
concerning a matter discussed in last month’s column that also resulted
in an admonition, albeit one issued by a Lawyers Board panel rather
than the Director’s Office. A lawyer drafted a will providing a $10,000
bequest to the lawyer in violation of Rule 1.8(c), MRPC. The Director
filed charges of unprofessional conduct, asking the panel to find
probable cause for public discipline. The previous column intimated
that the lawyer challenged whether his conduct violated the rule at
all based upon a “family-like” relationship that existed between the
lawyer and the decedent. In fact, the lawyer admitted his conduct
violated the rule, but argued that an admonition was the appropriate
discipline. The panel agreed with the lawyer. Conclusion The
majority of lawyers who receive an admonition, however, never repeat
their misconduct; indeed many never commit any further violations
whatsoever. In those instances the admonition has clearly served its
educational and deterrent purposes. 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. |
