Legal Ethics

This article was previously published in Minnesota Lawyer on December 18, 2023.

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The “Single Mistake” Disciplinary Doctrine

        Among the “Summary Dismissal Guidelines” that the Lawyers Board has maintained for nearly forty years is one stating, “Complaints that principally involve an isolated allegation of malpractice are often summarily dismissed, without prejudice.”[i] The main example considered by the Board in adopting this guideline was summary dismissal of an ethics complaint alleging the untimely filing of a pleading.

        Likewise, the Office of Lawyers Professional Responsibility (OLPR) has repeatedly informed lawyers that it follows the “single mistake” or “isolated error” doctrine.  In 2002, OLPR wrote, “Although absolutes are impossible to guarantee, a single mistake by an attorney, even if actionable as malpractice, is highly unlikely to result in professional discipline of the attorney.”[ii]  OLPR contrasted the “single mistake” doctrine with an “egregious situation,” of “failure to know or determine the most basic fact,” or where a lawyer “exhibits gross incompetence on a recurring basis.”  Id.  

        In 2007 OLPR offered an example of the single mistake doctrine:  “Missing a scheduled court appearance without notice is conduct that can generate a complaint.  If an innocent scheduling miscue (not really an excuse, and possibly indicative of a different office-procedures problem) truly caused the failure to appear, however, the attorney may be given a second chance by the judge and the disciplinary system.”[iii]

        In 2023 OLPR’s Director provided another example of the single mistake doctrine:  “Sometimes a lawyer inadvertently contacts a represented party directly by serving documents in a case because they failed to note in the lawyer’s file management system that the opposing party is represented by counsel.  Mistakes happen (I’ve done this) and such a mistake rarely leads to discipline.  In most instances, the opposing counsel calls the mistake to counsel’s attention by reiterating the representation, the error is acknowledged, and the parties move forward.”[iv]

        OLPR’s website continues to hold out the “single mistake” doctrine, “Lawyers, like other professionals, sometimes make mistakes.  A lawyer might handle a matter in a way that is inadequate but not unethical.  If a client was damaged by a lawyer’s negligence, a malpractice suit may be brought.  Most malpractice and inadequate performance matters are not handled by the Office of Lawyers Professional Responsibility.”[v]

        Unfortunately, on at least three occasions - in 2010, 2011, and 2023 - OLPR has issued private admonitions to lawyers who had each committed a single mistake.  The three attorneys were all alleged to have failed to be reasonably diligent in client representations, in violation of Rule 1.3.  The three lawyers all appealed and in each case a Lawyers Board Panel dismissed the admonition and found no Rule 1.3 violation.  The most recent Panel decision was rendered November 7, 2023. 

        In the 2010 case, the respondent attorney missed a statute of limitations and the plaintiff’s case was dismissed with prejudice.  The respondent knew that a statute of limitations deadline was looming and instructed subordinates to advise the client and seek the client’s decision on a course of action.  Through mistakes and misunderstandings, and due to the firm’s imperfect docketing system, the client was not advised.  In explaining dismissal of the admonition, the LPRB Panel Memorandum stated, “This case demonstrates the importance of the Board’s policy against assessing discipline where an attorney with a long ethical career makes a one-time mistake and the client suffers little, if any, harm as a result of the mistake.”[vi]

        In the 2011 case, the respondent (“Al”) was a junior associate handling a small collection case in which a default hearing was anticipated.  A partner told Al there was a very limited budget for the case, so Al need not study the entire file.  Neither the partner, nor Al, noticed documents in the file revealing that the collection claim had been dismissed by a court in a district other than the one in which the current collection action was pending.  At hearing, the alleged debtor informed the judge that the case had been dismissed by another court.  The judge filed an ethics complaint against Al.  OLPR issued an admonition.  Al appealed.  After hearing, an LPRB Panel dismissed the admonition.

        The facts of the 2023 case were largely undisputed. Layla represented Cleo.  Cleo was the subject of a Department of Homeland Security (DHS) removal proceeding.  After hearing, a judge ordered Cleo’s removal from the United States.  Cleo retained Layla to file an appeal.  Layla did so.

        DHS sent or attempted to send an appellate briefing schedule to Layla, setting a filing deadline in three weeks.  DHS used a newly implemented (and bug-ridden) computer system, “ECAS.”  OLPR did not offer proof that Layla actually received the DHS briefing schedule.  The BIA sent a paper copy of the briefing schedule to DHS counsel by U.S. mail, but BIA did not send the schedule by U.S. mail to Layla.

        The scheduling order was unusual not only in its mode of transmittal. Filing deadlines were customarily several months after appeal. Layla’s immigration law expert in the discipline proceeding opined that: (1) he was “shocked and surprised” by how quickly BIA issued a brief schedule in Cleo’s matter; and (2) the briefing schedule’s time limit was “was unprecedented and well outside of what [Layla] had reason to expect;” and (3) Layla’s mistake was the product of contributing actions by BIA and DHS, and of Layla’s reasonable, though erroneous, thought process. 

        One day before the final day of the briefing schedule, DHS sent to Layla a document titled “U.S. DHS Opposition of Respondent’s Appeal.”  The title was unusual by not indicating it was an appellate brief. Layla did not recognize the “Opposition” as a brief.[vii]  The filing deadline for both parties essentially coincided with Layla’s receipt of the DHS “Opposition.”  Layla missed the filing deadline.

        Two months later, BIA dismissed Cleo’s appeal and ordered Cleo’s removal.  Layla immediately filed pleadings to reopen Cleo’s case and to stay removal.  Layla also self-reported to OLPR.  Under immigration case law, self-reporting helps support a reopening.[viii] Cleo did not file an ethics complaint. BIA vacated its removal order and reinstated the appeal, which was pending when the admonition was issued.

        The District Ethics Committee, citing the single mistake doctrine, recommended dismissal.  Disagreeing, OLPR gave three reasons for concluding that the single mistake doctrine did not apply.  First, Layla failed to review emails for the briefing schedule.  However, OLPR did not offer proof that Layla actually received the schedule.  Second, Layla failed to inquire after receiving opposing counsel’s brief.  Layla acknowledged a shortcoming here, but explained why the cryptically-titled “Opposition” did not appear to be a brief.  In any case, Layla had already failed to meet the briefing deadline when Layla received the Opposition.  Third, Layla failed to take any action on the case for three months.  Again, Layla acknowledged a shortcoming, but was awaiting the scheduling order. OLPR argued in effect that Layla failed to be diligent in three ways, not one.

        In filings with the Panel, Layla took several positions.  First, the Minnesota Supreme Court has regarded several errors committed in one time span as a single mistake.  “We also consider [respondent] Simonson’s conduct, which occurred on three occasions within a 3-week period, to be a single transaction, an episode which was an exception to an otherwise ethical professional life.”[ix]  The Court also gave weight to Simonson (like Layla) having self-reported.

        Second, OLPR’s own 2023 article, cited above, illustrates the type of mistake that OLPR regards as isolated, and as not warranting discipline.  In the article’s illustration, the lawyer (a) was informed that the opposing party was being represented by counsel; and (b) thereafter, failed to note the representation by counsel in the lawyer’s file management system; and (c) at some later date, communicated directly with the opposing party in apparent violation of Rule 4.2.  In the OLPR illustration, the lawyer had actual knowledge of the crucial fact (representation by counsel), but Layla did not actually know of the briefing schedule, and did not recognize the actual character of a document that was cryptic and non-standard in several ways.  In both matters, some time passed between the mistakes and the consequences, someone called the mistake to the lawyer’s attention, and the lawyers took appropriate action.

        Similarly, in the 2010 Panel dismissal cited above, involving a missed statute of limitations deadline, the conduct of the respondent attorney could more readily have been characterized as not being “isolated” or “single,” than Layla’s conduct.  The respondent was a partner in a firm which had an imperfect docketing system, potentially affecting a number of files.  The case in question was entered into the imperfect system.  Respondent had actual knowledge of the imminence of the statute.  Multiple imperfect communications occurred or failed to occur sometime later.  The statute of limitations passed.

        Almost any single mistake can be broken down into components and then alleged to be multiple, not single.  OLPR’s attempt at multiplication failed in the 2023 case.  Fairness is of primary importance in attorney discipline, and fairness requires consistency.  One hopes that in future cases OLPR will follow the precedents set in the three Board Panel dismissals of OLPR admonitions discussed in this article.[x]

        However, there is reason to expect that OLPR will not follow the single mistake precedents. OLPR must expunge all records of dismissals three years after determinations.  OLPR apparently has no method of summarizing dismissals and retaining them for future guidance.  Aside from living memory, articles like this one and like the Charles Lundberg article cited below are the main guideposts OLPR and the Lawyers Board have for making future determinations that are consistent with the case of Layla, and the 2010 and 2011 single mistake cases. These cases are also summarized and cited in the online treatise Minnesota Legal Ethics, by the author.  Without a knowledge management system that retains precedents, OLPR and the Board must depend on Minnesota Legal Ethics or knowledgeable respondent’s counsel to avoid

repeating mistakes regarding correct application of the single mistake doctrine.