On July 31, 2018, disciplinary charges were filed against a lawyer, Nelson. The charges included that in 2008 [sic!], Nelson sent a written solicitation to a prospective client. The word “Advertisement” was at the top of the document. In 2005, Rule 7.3 had been amended, to substitute “Advertising Material” for the previously-required “Advertisement.” [i]
Explaining how ethics complaints are handled, the Office of Lawyers Professional Responsibility (OLPR) has assured Minnesota lawyers, “This is not a gotcha game.”[ii] On the other hand, OLPR takes the position that discipline may be imposed, “regardless of whether an innocent oversight is to blame, [because] a rule violation is a rule violation regardless of how technical it may seem.”[iii] I regard a “gotcha” as a discipline imposed on a basis that many lawyers would not anticipate, or for an excessively trivial, technical rule violation. I believe that the “regardless how [innocent and] technical” approach is at odds with the “fairness and justice” which are “of primary importance” in the discipline system.[iv]
Legal ethics should not be centered on gotchas. A Lawyers Board member once told me, “Legal ethics is all about what good lawyers do.” Following that view, Patrick Schiltz has recalled from his years in private practice, “I had cause to refer to the Model Rules of Professional Conduct exactly twice in eight years; I almost never heard any other lawyer refer to them. Lawyers make decisions every day about what conduct is ethical and about whether they will behave ethically, but often the formal rules have little to do with those decisions.”[v]
Legal ethics is mainly about good character, sound professional judgment, following the example of experienced lawyers, acting as an officer of the court, and providing good service to clients, especially the disadvantaged. However, the essentials of legal ethics for many years have not sufficed. Lawyer discipline has become so technically regulated that even good lawyers can suffer discipline if they are not also well-informed.
I believe that in Minnesota the discipline system is only rarely “a gotcha game.” The system is generally open and fair. In numerous ways, OLPR tries to educate lawyers on ethics traps for the unwary. OLPR provides advisory opinions, CLE programs, and a wealth of website information to lawyers who want to avoid discipline. In many important ways, the Minnesota system is the opposite of a gotcha game.
The Lawyers Board and OLPR have shown good judgment in declining to discipline every rule violation. For decades, the Board and OLPR have followed “Summary Dismissal Guidelines.” About 40% of complaints are dismissed without investigation. Many of these complaints allege facts which, if provable, would show a rule violation. But considerations of resources and public policy result in dismissals. An OLPR director explained, “A determination that discipline is not warranted may be issued upon the Director’s conclusion that such resolution is appropriate. Rule 8(d)(1), RLPR. . . . Nothing in the rules requires the Director to issue discipline whenever misconduct is established.”[vi] To take another example, OLPR receives numerous notices of trust account overdrafts. Unless OLPR’s informal inquiry reveals serious problems, OLPR does not even open a formal investigation, let alone impose discipline.[vii]
On the other hand, to the average lawyer, the discipline system can feel like a “gotcha game.” Two factors give credence to this perception.
First, disciplinary rules and precedents have become so complicated that only insiders really know the rules of the game. However, some technical rules serve important purposes. For example, per Rule 1.5(b)(3), fees may not be called “nonrefundable” but may be called “the lawyer’s property subject to refund.” OLPR has repeatedly publicized this requirement, for good reason.
Second, OLPR sometimes imposes or seeks discipline where there is no discernible public policy purpose or where OLPR’s position would surprise a good lawyer who is trying to do the right thing. When a rule is applied in a way that does not serve a policy purpose or is applied in an expansive or surprising way, a discipline may well appear unfair.
Consider the Nelson “Advertisement” charge above and a recent a charge against another lawyer, Novak. On a pro bono basis, Novak was representing an incarcerated client (C), seeking post-conviction relief. Novak gave C’s friend money to put in C’s prison account, to buy a TV for C’s use. OLPR charged a violation of Rule 1.8(e), “A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation. . ..” Gotcha?! Was there even a rule violation? Was the TV actually connected with the litigation? Was the rule’s policy purpose – not creating conflicts between the lawyer’s and client’s interests – served by the charge?
To its credit, OLPR has sometimes recognized that its own position looks like a “gotcha.” OLPR published an article describing an apparent “gotcha” admonition. “A lawyer may receive a communication from another lawyer on which that lawyer has also included her client as a recipient. When the lawyer receives that email, intends to reply, clicks “Reply All,” drafts the response and then hits “Send,” the lawyer has now communicated directly with that represented person. Rule 4.2, MRPC, prohibits a lawyer from communicating with a person the lawyer knows is represented by counsel.” After the article was criticized, OLPR clarified that additional facts were and would be necessary for discipline in “reply all” communications.[viii]
Another gotcha comes from overbroad application of a rule. Suppose that a client offers to pay a fee in-kind. The client is a jeweler and offers a ring in lieu of a quoted fee of $2,500. Or the client is a poor and offers an old automobile. The lawyer accepts. Gotcha?! According to OLPR, these are “business transactions,” subject to Rule 1.8(a). Among other things, the rule would require that the lawyer advise the client to seek independent counsel. But such advice makes no sense. A jeweler knows better than a lawyer a ring’s value; and the vehicle’s value is better determinable from an online source than from another lawyer.[ix] A “gotcha” can occur when a lawyer is required to do something nonsensical and even against a client’s interest.
A broadly worded rule – such as Rule 8.4(d), prohibiting “conduct prejudicial to the administration of justice” – can become a gotcha if it is stretched to cover conduct that is disapproved but does not involve the administration of justice. As a leading commentary states, Rule 8.4(d), “raises the specter of a disciplinary authority creating new offenses by common law, and perhaps harassing an unpopular lawyer through selective enforcement of the new standard.” [x]
A “gotcha” can also occur when a lawyer tries to do the right thing, by obtaining and following an expert ethics opinion, only to have OLPR second-guess. A lawyer, Lieber, petitioned for reinstatement after disbarment. Opposing reinstatement, OLPR argued that, although Lieber had complied with the letter of Rule 26 (requiring notice of disbarment to clients), he had not complied with the “spirit” of the rule. Lieber had relied on guidance from a former OLPR director (me). Gotcha?! OLPR apparently did not consider the problems that would be caused if procedural rules came to have spiritual penumbrae. The Court rejected OLPR’s argument, “But those seeking guidance from our rules should be able to rely on those rules, and what Lieber did here is more than mere elevation of form over substance. He did what the rule requires.” In re Lieber, 834 N.W.2d 200, 204, 207 (Minn. 2013). Lieber was reinstated.
Another lawyer acted in reliance on the advice of three colleagues, one of whom was a Lawyers Board member. OLPR did not even interview these colleagues before issuing charges. In re Olson, File No. A16-0280 (Minn. 2016). In both cases, the Court or its referees rejected OLPR’s positions.
The Minnesota lawyer discipline system is not a “gotcha game” and indeed OLPR makes great efforts to educate lawyers in avoiding traps for the unwary. However, in my judgment, the examples above show that, at least on rare occasions, “gotchas” appear.
[i] Supplementary Petition for Disciplinary Action Against Christopher Nelson, File No. A18-1149. In August 2018 the “Advertising Material” labeling requirement was deleted altogether from ABA Model Rule 7.3.
[ii] Susan Humiston, So You’ve Received an Ethics Complaint. What Now?, Bench & B. of Minn., Sept. 2017.
[iii] Siama Y. Chaudhary, An Overview of the Disciplinary Process, Minn. Law., Feb. 2, 2015. The Court itself has held that a rule violation “however technical” is different from “no violation and thus no discipline at all.” In re MDK, 534 N.W.2d 271, 272 (Minn. 1995).
[iv] Rule 2, R. Law. Prof. Resp.
[v] Patrick J. Schiltz, 82 MINN. L. REV. 705, 712-3 (1998).
[vi] William J. Wernz, May 2012—Minnesota Ethics Updates, Minn. Legal Ethics Blog (May 1, 2012), http://my.mnbar.org/blogs/william-wernz/2012/05/01/may-2012-minnesota-ethics-update.
[vii] Patrick R. Burns, Oh No! The Trust Account is Overdrawn. Time to Panic?, Minn. Law., Aug. 6, 2012.
[viii] Timothy M. Burke, Summary of Private Discipline, Bench & B. of Minn., Feb. 2016; Susan Humiston, “’Reply All’ and Some Thoughts on Flat Fees, Bench & B. of Minn., Aug. 2016.
[ix] Timothy Burke, Receiving Client Property as a Fee or Security for a Fee, Minn. Law., Jan. 7, 2002.
[x] 2 Geoffrey C. Hazard Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering § 65.6 (3d ed. Supp. 2009)