Legal Ethics

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Court reverses discipline; attorney filed brief late

By William Wernz posted 03-19-2019 10:05 AM


A lawyer may not, “knowingly disobey an obligation under the rules of a tribunal.” Rule 3.4(c), Minn. R. Prof. Conduct (MRPC).  When does a lawyer deserve discipline for violating a procedural rule, such as a filing deadline?  The answer is important, because the 2019 Minnesota Rules of Court book has 1,303 pages of rules.

On March 6, 2019, the Minnesota Supreme Court answered this question, reversing a private admonition.  The Court’s opinion and the oral argument colloquies show careful analysis, high principle, and common sense.[i]  Serendipitously, the Court also resolved a constitutional, due process issue raised in another, otherwise unrelated, admonition.

The messy facts are familiar to lawyers who represent a broad clientele.  Shortly before a scheduled hearing on plaintiff’s summary judgment motion, defendant (D) retained a lawyer (L).  D paid L only a small part of the agreed-upon retainer.  L got the hearing continued for two months.  Over the next two months, L pursued D for information and money. D responded sporadically and indefinitely, e.g. D would not specify how much he would pay in settlement.   L and D agreed not to spend money on litigation, but to pursue settlement.  L repeatedly told D that L would not file pleadings unless he was paid.

On October 16, 2015 - the day before the response to summary judgment motion was due – D made a small fee payment.[ii]  On October 22, D made another payment.  On October 23, L filed a response memo – 6 days overdue.  At the October 26 hearing, the court said L’s memo for D was “untimely,” but did not reject it.  Plaintiff withdrew his summary judgment motion.  D’s main goal – avoiding summary judgment – was achieved.  L later withdrew, before the case was resolved.

D filed an ethics complaint against L.  After investigation, the Director issued a private admonition, for “isolated and nonserious misconduct.” The alleged violation was filing a responsive memo after its due date, in violation of Rule 3.4(c).  L appealed and, after hearing, a Lawyers Board Panel affirmed.  L appealed again and the Supreme Court reversed.

Before careful analysis, let’s ask from a general perspective, “Should L be disciplined?” D was a difficult client.  D paid late and less than half the agreed-upon fee.  Nonetheless, L muddled through uncertainties caused by D’s failures to communicate.  L did not file the memo within the time prescribed by rule, but D did not authorize a timely filing.  The presiding judge did not reject the memo and did not report L to the Director.  At an earlier dateL could justifiably have withdrawn for non-payment. D benefited from the representation. The message from the Director for lawyers who wish to avoid ethical trouble seems to be, “If you have a difficult, non-paying client, ditch him early on, instead of trying to make the best of a bad situation.”  The message from the Court for the Director and Board Panels seems to be, “Don’t focus only on technical rule violations, but take more account of the big picture.”[iii]

The MRPC bill themselves as “rules of reason.” What’s “reasonable” is determinable by what a “competent and prudent lawyer” would do.[iv]  My impression is that many lawyers, especially in small firms and small towns, would do what L did.

At oral argument, the Court peppered an assistant Director with questions. 

  • Do lawyers violate Rule 3.4(c) whenever they violation any procedural rule? Lawyers may be presumed to know the law.  If a lawyer serves discovery responses a few days late, has the lawyer violated Rule 3.4(c)?
  • If Rule 3.4(c) is applied consistently and strictly to procedural rule violations, won’t there be thousands of disciplines?
  • Suppose that an hour before a due date expires, a lawyer has completed a brief. The lawyer suddenly realizes that the brief makes the second-best argument.  Should the lawyer file a timely but second-rate brief or face discipline for filing the best brief late?

Appellate judges evaluate in the manner of optometrists – changing a factor here or there to bring matters into focus and to understand how the governing principles apply. The assistant Director generally indicated that each case would require individual consideration.   The Court, however, was looking for assurance, based in general principle, that there would not be numerous disciplines, for garden-variety procedural rule non-compliance.

In reversing the admonition, the Court focused on the Rule 3.4(c) requirement of “knowingly” violating a court rule, and on Rule 1.2, which allocates authority between lawyer and client.  L’s attorney, Eric Cooperstein, commented, “The Court’s decision is very helpful for practicing attorneys in explaining the meaning of “knowingly disobey,” which appears only once in the ethics Rules. The decision does not give lawyers a pass on honoring their obligations to follow court rules and orders but prevents Rule 3.4(c) from becoming a “gotcha” rule that unfairly penalizes lawyers who are trying to do a good job representing their sometimes-difficult clients, which was exactly what my client did in this case.”

L knew he was missing the filing deadline, but L did not know he was violating Rule 3.4(c).  Why?  Because L knew that D had not authorized him to file the brief. There was a clear, mutual understanding that L would not act in the litigation while settlement was still possible.  A lawyer who is not authorized to prepare and file a brief, and indeed has been instructed not to do so, cannot act otherwise, per Rule 1.2(a). 

The procedural rule does not require a lawyer to file a brief.  Instead, the rule requires that a brief, if it is filed, be filed by a certain time.  If, however, the client will not authorize the lawyer to file the brief until after the due date, the lawyer cannot file within the prescribed time.

L argued that, as of the day his brief was due, his representation of D was limited to settlement efforts.  “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Rule 1.2(c), MRPC. The Director and Panel took the view that the representation was not reasonably limited and D did not give “informed consent,” because there was no evidence of a detailed discussion between L and D regarding the consequences of not filing a brief on time.

The Court focused, instead on Rule 1.2(a), which provides, “a lawyer shall abide by a client’s decisions concerning the objectives of representation.”[v]   A client may decline to authorize certain objectives.  The client, rather than the lawyer, is limiting the representation.  D testified, “Every time we brought up about the settlement and we didn’t want to spend money on litigation, he always consented to that agreement.”  D’s “objective” was to settle, not litigate.

The Court concluded that L did not “knowingly” violate the timely filing rule, because D had not authorized L to file timely.  L’s representation was limited by D’s decision to favor settlement over litigation.

When the Director argued that L had not complied with Rule 1.2, the argument was to counter L’s claim that there was a limited representation.  The Director’s argument suggested, however, that L had violated Rule 1.2, RPC.  The Director made a similar argument regarding Rule 1.4, requiring reasonable communication. The admonition, however, did not charge violations of Rule 1.2 or 1.4. 

In response to these arguments, the Court emphatically stated a basic principle: “to comport with due process, lawyers facing discipline must be given notice of the charges against them.”  Here, however, the Director “provided no notice to Attorney that he violated Rule 1.2(c) [or Rule 1.4].”[vi]

The Court’s due process pronouncement has a special, timely importance. In a recent, unrelated admonition, the Director had taken the position rejected by the Court in Panel 42735.

In October 2018, in Panel File No. 44339, an admonition appeal before a Board Panel, the Director filed a brief.[vii]  The brief argued that the Panel could find violation of “any rule” - regardless of whether the admonition alleged violation of the rule.  The Director argued, “Because the Panel is conducting a de novo review, the Panel may consider rules not alleged by the Director. . ..  The Panel, in its de novo review, is free to consider any rule it determines appropriate.” 

The Director’s position in Panel 44339 contradicted a position the Director had taken in In re Stanbury, 561 N.W.2d 507 (Minn. 1997).  At the time of Stanbury, the Director customarily alleged that conduct violated rules, "including but not necessarily limited to," the MRPC cited therein.  Stanbury challenged this pleading form, on due process grounds.

Stanbury’s objection became moot.  “[I]n response to Stanbury's motion to dismiss prior to the disciplinary hearing, the Director conceded that the challenged language was insufficiently precise and the referee considered only the rules of professional conduct specifically identified in the original petition.” Id.  In the 22 years between Stanbury and Panel 44339, the Director consistently sought findings of violations of only those rules that were specifically charged.  Why the Director abandoned this custom and practice is unknown.

The Director’s “any rule” position was also at odds with In re Keate, decided the same year as Stanbury.  In Keate, the Court gave marching orders, “Although we believe the director did not violate respondent’s right to due process of law, we caution the director’s office in the future to draft its charges with specificity.”[viii]   “Specificity” in charging and the “any rule” position for adjudication do not harmonize. 

Fortunately, on March 6, 2019, in Panel 42735, the Court emphatically rejected the Director’s “any rule” position.  Panel 42735 shed considerable light on Rules 1.2 and 3.4(c) and on the constitutional rights of Minnesota lawyers.


[i] In re Charges of Unprofessional Conduct in Panel File No. 42735, 2019 WL 1051406 (Minn.)

[ii] The ethics complaint was apparently filed long after the related events.  The complainant did not complain about the filing deadline issue.

[iii] The Director’s Supreme Court brief argued that a “technical violation” of a rule warrants discipline, citing In re MDK, 534 N.W.2d 271, 272 (Minn. 1995).

[iv] Rules, SCOPE [14]; Rule 1.0(1).

[v] The parties did not cite this rule in their briefs.

[vi] Citing In re Taplin, 837 N.W.2d 306, 311 (Minn. 2013).  The Court treated the Director’s references to Rule 1.4 similarly, again citing due process protection against a finding of violation of an uncharged rule.

[vii] Respondent authorized counsel to share this information.

[viii] In re Keate, 488 N.W.2d 229, 233 (Minn. 1992).