Blogs

RULE 4.3(D) - REPEATING ERRORS, ATTRIBUTING SOURCES

By William Wernz posted 12 days ago
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This blog is an expanded and modified version of a column that appeared in MINNESOTA LAWYER on September 20, 2002. On September 14, 2022, the author sent an advance copy of the article to Susan Humiston and offered to post any comment Ms. Humiston wished to make with this blog.  No reply was received. However, on September 21, 2022, the author learned on making inquiry of Bench & Bar that earlier on the same date Ms. Humiston submitted an “Author’s Note” to Bench & Bar.  The Author’s Note and Ms. Humiston’s article are linked at https://www.mnbar.org/resources/publications/bench-bar/2022/09/01/your-ethical-duties-in-dealing-with-unrepresented-persons ...
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Quandaries & Quagmires: Professional competence as an ethics obligation

By William Wernz posted 06-29-2022
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This blog was originally published as William J. Wernz, Professional Competence as an Ethics Obligation, Minn. Law., June 29, 2022. ----- A brochure of the Office of Lawyers Professional Responsibility (OLPR) informs persons considering complaints, “Lawyers, like other professionals, sometimes make mistakes. A lawyer might handle a matter in a way that is inadequate but not unethical. … Most malpractice and inadequate performance matters are not handled by the Office of Lawyers Professional Responsibility.” i For many years, OLPR has generally dismissed complaints of isolated mistakes and has charged Rule 1.1 (“Competence”) violations only for “mistake ...
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CRISIS IN THE PROFESSIONAL RESPONSIBILITY SYSTEM (2020 - ?)

By William Wernz posted 04-18-2022
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AUTHOR’S NOTE - “What Minnesota Legal Ethics is all About” is the title of one chapter of my treatise, Minnesota Legal Ethics.  The chapter is not a complete chronicle, but it includes several sections that discuss ethics issues of the day.  Some of the issues involve interpreting, updating, and applying the law to difficult circumstances.  Others involve the challenges faced by the professional responsibility system, beginning with the case of Supreme Court justice who cheated on his bar exam, continuing with the “bombs and bullets” episode, and culminating in 2020-21 with the tumult in the law arising from the murder of George Floyd, the attempts to overturn ...
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Quandaries and Quagmires: Do Minnesota prosecutors ‘get away’ with misconduct?

By William Wernz posted 12-01-2021
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Author's Note: The article and update below were first published in Minnesota Lawyer on November 29 and December 1, 2021.  The update (1) clarifies a statement in the article; and (2) adds citations to blogs that provide more information on two cases cited in the article; and (3) adds citation and comment to a new case, filed November 24, 2021.  A recent Washington Post article discussed “Why Prosecutors Get Away With Misconduct.” 1 The article focused on prosecutors who were not disciplined despite appellate court findings of misconduct. California supplied most of the article’s evidence, but the article also cited Minnesota and other states. Is it true ...
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Commentary: The need to restore confidence in state's lawyer professional responsibility system

By William Wernz posted 11-12-2021
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[This article originally appeared in the November 11, 2021 edition of Minnesota Lawyer] An Oct. 25, 2021, front-page Star Tribune article reports a crisis in the Minnesota lawyer professional responsibility system. The article reports the departures of 14 staff attorneys -- seven in about 11 months beginning in September 2020 -- from what many insiders called a toxic work environment caused by the alleged abrasiveness of the director of the Office of Lawyers Professional Responsibility, Susan Humiston. The crisis had been brewing for the last two years. In January, 2020, the Lawyers Professional Responsibility Board, authorized to supervise the director, recommended ...
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What would a discipline office do? Examining the high-profile complaints against election attorneys from a lawyer regulatory perspective

By William Wernz posted 03-15-2021
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It’s no surprise that a presidential election as bitterly fought as last November’s should also yield a lot of litigation—and a striking volume of complaints from lawyers regarding the conduct of other lawyers. Although many lawyers were involved in the electoral challenges, the spotlight here is on complaints regarding four prominent lawyers. Thousands of law students and lawyers signed a petition to disbar U.S. Sen. Josh Hawley for his objections to certified presidential election results. 1   Hawley was the first member of the Senate to announce he would object on January 6 to certification of electoral college results.  The Lawyers Defending American ...
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Quandaries and Quagmires: When personal relationships create conflicts

By William Wernz posted 12-14-2020
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[Originally published in Minnesota Lawyer, November 24, 2020] The ABA has recently issued two formal opinions on when the personal relationships of judges and lawyers raise ethics issues that may require disclosure, consent, or disqualification. The opinions are in many ways instructive and in some ways flawed. For judges, Opinion 488 (2019) examines relationships with both counsel and parties. For lawyers, Opinion 494 (2020) analyzes relationships with opposing counsel. Both opinions classify relationships under examination as “friendships,” or “acquaintanceships.” Op. 488 also examines “close personal relationships” and Op. 494 uses the somewhat similar ...
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Quandaries & Quagmires: Attorney as witness: 3 erroneous court orders

By William Wernz posted 12-14-2020
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[Originally published in Minnesota Lawyer, December 8, 2020] ] What arrangements should a trial lawyer make for note-taking when interviewing a potential key witness? What consequences will the lawyer face for not making the best arrangements? Surprisingly, the Office of Lawyers Responsibility (OLPR), the Minnesota Supreme Court, and the Hennepin County District Court have recently given four answers to these questions, three of which are wrong. Rule 3.7(a), R. Prof. Conduct, creates the main framework for structuring proper arrangements. The Rule provides, “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness ...
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Quandaries and Quagmires: Law firms must have ethics policies and training

By William Wernz posted 09-29-2020
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[Originally published in Minnesota Lawyer, September 22, 2020] Does your law office have in place policies and training programs for implementing the main ethics rules? Does the training also include knowledge management as to the law governing your firm's practice? Do the forms your office uses comply with current rules? These questions are timely, and indeed urgent, because of two recent discipline cases and increasing enforcement by the Office of Lawyers Professional Responsibility (OLPR). The first case is the Sept. 11, 2020, disbarment of Thomas Pertler, former Carlton County Attorney. 1 Pertler intentionally and repeatedly failed to disclose to criminal ...
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Ethics Wake-Up Calls for Supervisory Responsibilities

By William Wernz posted 07-07-2020
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[This blog originally appeared as an article in the July 2020 Bench & Bar of Minnesota.  Added near the end of the article is a paragraph describing a Minnesota Supreme Court discipline case decided July 1, 2020.] Who in your law firm is responsible for adopting and updating policies and procedures on legal ethics matters? Who is responsible for training lawyers and staff on these matters? Must your firm audit its own files and procedures to reasonably ensure compliance with the ethics rules? What are the areas of law firm operation that are important for ethics scrutiny? Lawyers who manage law firms and law offices should be asking these questions. ...
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Champerty? No. Litigation Finance? Yes.

By William Wernz posted 06-26-2020
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On June 3, 2020, the ancient doctrine of champerty was abolished in Minnesota. [i]   Champerty’s life span was 123 years in Minnesota, but champerty’s lineage extended to medieval England, and even to ancient Rome and Greece. [ii]   Although Minnesota applied the law of champerty in four cases between 1897 and 1932, for many decades the doctrine lay dormant, except for one Court of Appeals case. [iii]   Faint vestiges of champerty, and its common law cousins maintenance and barratry, survive in the Rules of Professional Conduct. Champerty is, “an agreement to divide litigation proceeds between the owner of the litigated claim and a party unrelated to ...
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Successor Counsel and Contingent Fees

By William Wernz posted 06-26-2020
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Sometimes a client, having retained attorney A on a contingent fee agreement, discharges A and retains B, from another law firm, on a contingent fee agreement.  Attorney A will normally claim entitlement to a portion of any recovery made by the client.  ABA Formal Opinion 487 (2019), titled, “Payment to Prior Counsel of Portion of Contingent Fee,” addresses successor counsel’s ethics duties.  Op. 487 explains that Rule 1.5(e) does not apply, because that rule governs fee-sharing between lawyers who work together on a matter, not fees of successive counsel.  Op. 487 notes that if successor counsel’s fees are disputed, Rule 1.15 may require the disputed portion ...
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To Err is Human. What Next?

By William Wernz posted 06-26-2020
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A familiar legal ethics maxim is, “We all make mistakes.  What matters is what we do next.”  All too many attorneys have turned manageable problems into catastrophes by refusing to recognize errors or trying to cover them up.  Other attorneys have corrected the errors, but failed to correct a system’s deficiency that helped cause the error. The Office of Lawyers Professional Responsibility has provided a model for recognizing and correcting errors.  On January 24, 2020, OLPR filed a motion asking the Minnesota Supreme Court to correct a disciplinary order by deleting findings that a lawyer had violated Rules 3.7(a) (the advocate-witness rule) and 4.3(d) (no ...
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Lawyer Departure Notices – New ABA Opinion

By William Wernz posted 06-26-2020
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New ABA Formal Opinion 19-489 is titled, “Obligations Related to Notice When Lawyers Change Firms.”  Op. 489 discusses obligations, of both law firms and departing lawyers, to treat each other fairly, and to put client interests first.  The opinion also discusses the departing lawyer’s obligations to give departure notices to clients and the firm.  Op. 489 is part of the ABA’s ongoing effort to make law firm departures more orderly.  Op. 489 has two problems.  It is sometimes more bully pulpit than clear interpretation of the Rules of Professional Conduct.  And it is not always clear about the interaction of ethics rules with the laws of fiduciary duty, partnership, ...
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Ethical Obligations When a Lawyer Changes Firms

By William Wernz posted 06-26-2020
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A lawyer's ethical obligations upon withdrawal from one firm to join another derive from the concepts that clients’ interests must be protected and that each client has the right to choose the departing lawyer or the firm, or another lawyer to represent him. The departing lawyer and the responsible members of her firm who remain must take reasonable measures to assure that the withdrawal is accomplished without material adverse effect on the interests of clients with active matters upon which the lawyer currently is working. The departing lawyer and responsible members of the law firm who remain have an ethical obligation to assure that prompt notice is given ...
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Lawyers Board Proposes Amending Op. 21 on Disclosing Malpractice

By William Wernz posted 06-26-2020
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The Minnesota Lawyers Board is soliciting comments on its proposal to amend Board Opinion 21, on a lawyer’s duties to consult with a client regarding the lawyer’s material errors in representation.  Comments are due by August 16 and the Board will vote on the proposal on September 27.  An article by the Director gives the rationale for amendment. [i]   The proposal raises several important questions – but first, some background to frame the questions. The Board issued Opinion 21 in 2009.  Op. 21 explained lawyers’ duties of consultation under Rule 1.4 (reasonable communication) and Rule 1.7(a)(2) (conflicts of interest arising from materially limited representations) ...
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Changes in Former Client Conflict Law

By William Wernz posted 06-26-2019
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Even the Office of Lawyers Professional Responsibility sometimes gets mixed up about ethics authorities.  In a recent admonition (reversed on appeal), OLPR charged violations of rules that did not apply to the facts as alleged and failed to take account of recent, applicable case law. Several aspects of a recent discipline – reversed by a Lawyers Board panel - suggest that it is time for an update on Rule 1.9, “Duties to Former Clients.” A brief overview will frame the problems with the discipline. There was no former client conflict rule until 1985, when Rule 1.9 was adopted. Protecting confidentiality was the main policy purpose for adopting Rule 1.9, ...
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“Non-Legal Work,” Billing, Discipline, Questions

By William Wernz posted 05-20-2019
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A March 20, 2019 public discipline petition includes an “unreasonable fee” charge, “Respondent's conduct in billing M.G.T.'s estate for non-legal work including tax preparation and accounting at his standard $200 hourly attorney rate violated Rule 1.5(a), MRPC.” [1] The client signed a fee agreement, providing an hourly fee of $200, “for ALL time you spend on my case.” However, the client discharged the lawyer and hired a non-lawyer “tax professional,” whose standard hourly rate was $100. From the petition, it appears to be the position of the Office of Lawyers Professional Responsibility (OLPR) that if a non-lawyer is available to provide a “non-legal service” ...
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Court reverses discipline; attorney filed brief late

By William Wernz posted 03-19-2019
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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. ...
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The Making of an Ethics Lawyer

By William Wernz posted 02-05-2019
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Note:  A version of this blog first appeared in Minnesota Lawyer.  The blog adds to that version identifications of mentors, colleagues and friendly opponents without whom I would have achieved little. You could say my career as an ethics lawyer began at St. Thomas College, where I studied philosophy, and St. Thomas Academy, where I had a clerical job.  My duties included posting demerits for cadets’ offenses to master cards.  Too many demerits meant suspension.  One day I asked myself, “Does the offense of ‘unshined buttons’ warrant suspension, even where the offender leads a life of constant danger?”  I decided not, without pausing over my own authority ...
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