Guest Blog by Charles E. Lundberg
Introduction by William J. Wernz. The Office of Lawyers Professional Responsibility (OLPR) publishes an annual Summary of Admonitions. The summary is very useful in drawing a line for nonserious Rule violations. OLPR does not, however, publish a Summary of Dismissals. For Panels of the Lawyers Professional Responsibility Board to achieve consistency, and for lawyers to be informed when evaluating OLPR’s proposed dispositions, summaries of significant dismissals are an important resource. The treatise includes some dismissal summaries, but the author’s own experience is limited. From time to time this blog, and the treatise, will report on significant dismissals.
The following is Charles Lundberg’s report on two important dismissals. Chuck is a former Lawyers Board Chair and partner at the Bassford Remele firm, who frequently represents lawyers before the OLPR.
The issue of “Where is the line?” with respect to Rule 1.1 competency issues has been raised twice in recent panel proceedings before the Minnesota Lawyers Professional Responsibility Board.
Panel proceedings are private and there is no citation to the proceedings. This writer was involved in these two matters and is relating what took place from his experience as counsel for each Respondent and from the Findings and Conclusions of the two panels.
The first case arose out of a simple legal malpractice matter based on a missed statute of limitations. Because of a scheduling glitch and a failure to follow up by staff, the lawyer’s client’s claim was barred by the statute of limitations. The lawyer promptly advised the client of this mistake and negotiations ensued involving the lawyer’s malpractice carrier to settle the claim.
The client filed an ethics complaint. The District Ethics Committee, after investigation, recommended dismissal. The OLPR, however, issued an Admonition -- based not on 1.1 (competence), but rather on 1.3 (diligence) and 1.4 (communication). The Admonition was appealed to a panel. In the panel proceedings, Respondent offered an affidavit by the author of Minnesota Legal Ethics attesting to the “legislative history” of how Rule 1.1 has been interpreted by the Board and the OLPR over the years and how the same conduct could be charged under 1.1, 1.3, 1.4, or other rules. (See Wernz affidavit excerpts, sidebar below).
In particular, the affidavit attested, for over 20 years the Board and the OLPR has consistently taken the position that a single, simple instance of negligence (such as a missed statute of limitations) will ordinarily not even be investigated as an ethics violation. An article by the now-Director of OLPR seemed directly on point:
[A]lthough 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.
On occasion, attorneys have been disciplined for violating Rule 1.1, but it generally requires an egregious situation before the Director’s Office seeks substantial discipline.
Martin A. Cole, When Malpractice is an Ethics Issue, BENCH & B. OF MINN., Dec. 2002.
Respondent argued that this was a classic “single mistake” situation that should have not have resulted in any discipline. Over OLPR’s objections, the Panel found that the longstanding Board policy of not seeking discipline in such cases should be followed on the facts of this case, and reversed the Admonition. The Panel found it pertinent that the attorney had a long history of ethical practice, that his firm had already taken steps to see that the mistake would not recur, and that the client had suffered little or no harm as a result of the mistake.
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A second matter came up about six months later. The Respondent, a first year lawyer, had not read the entire file on a small civil action, in preparation for a motion hearing. The pro se opposing party mentioned to the court that the claim had already been dismissed in another court. Because Respondent had not read the entire file, Respondent was not aware that a previous claim on the same matter had been dismissed by another court.
The judge in the case referred the matter to the OLPR for investigation. The judge was primarily concerned that the law firm had commenced the second action without disclosing the dismissal of the first action in the pleadings for the second action. The OLPR issued an Admonition based on a violation of Rule 1.1. The Admonition was appealed to a Lawyers Board panel.
Respondent argued to the panel that the proper interpretation of Rule 1.1 should take into account that there are different gradations of competence. At the very top of the gradation is “best practices.” This is the optimum, the platonic ideal, what every lawyer strives to achieve -- perfection in the practice of law. Somewhat below that would be where the lawyer fails to achieve best practices, perhaps makes an error in judgment but still acts well within the standard of care. Below that would be an admitted mistake: every lawyer makes a mistake once in a while. Normally mistakes do not cause damage. A step below that might be a case of legal malpractice where a lawyer has missed a statute of limitations or otherwise acted in such a way as to harm his client’s cause of action or other legal matter, but does not act unethically. Finally, below that would be a violation of 1.1 for failing to act competently -- unethical incompetence.
Respondent argued that while the failure to read the entire file fell short of best practices, it was at worst a mistake and did not rise to the level of legal malpractice, let alone a Rule 1.1 ethical violation. The panel ruled that while Respondent definitely erred, that error did not reach the incompetence standard of Rule 1.1. The panel noted that the rules defined competence as what a reasonably prudent attorney would do, and noted that no evidence had been presented establishing a breach of that standard.
AFFIDAVIT OF WILLIAM J. WERNZ
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In the Matter of the Complaint of
__________________________, Complainant
against _______________________,
a Minnesota Attorney,
Registration ___________________. |
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STATE OF MINNESOTA :
: ss.
COUNTY OF HENNEPIN :
William J. Wernz, being duly sworn, declares and states as follows:
- I am an attorney at law of the State of Minnesota. 2010 is the thirtieth year in which my work has been entirely or primarily in the field of lawyer ethics. Currently, my endeavors include representing and advising clients, serving as an expert, and providing services to my law firm, but my principal endeavor is writing an online treatise,Minnesota Legal Ethics, which the Minnesota State Bar Association will be hosting. Attached as Exhibit 1 is my resume. In addition to the information on my resume, I served for several years on the Claims Committee of a lawyer malpractice insurance company and through that experience formed opinions on what might be called “ordinary malpractice.”
- In 1985, when I was appointed Director of the Office of Lawyers Professional Responsibility, and in 1986, I was very involved with the Report and Supplemental Report of the Supreme Court Advisory Committee (“Dreher Committee Report”) and the responses to the Dreher Committee Report of the LPRB and OLPR.
- Perhaps the greatest concern of the Dreher Committee, LPRB and OLPR was the backlog of cases, particularly older cases, and the related issue of proper allocation of OLPR resources. One important measure for dealing with these concerns was adoption of “Summary Dismissal Guidelines.” Attached as Exhibit 2 is my Memorandum to the LPRB Executive Committee, dated August 1, 1986, “Summary Dismissal Guidelines.” The subjects of “Malpractice Complaints” and “Malpractice Dismissal Form Paragraph” are discussed at Exh. 2, A. 5 – A. 6. The Memorandum includes the following contrast: “A malpractice claim which suggests gross incompetence, a habitual pattern, or intentional wrongdoing indicates the possible need for protection in the future, in the form of discipline. An allegation of an isolated and inadvertent mistake,such as an untimely filing of a pleading, would normally be summarily dismissed, . . ..” Id. at A.5, emphasis added.
- Substantially the same form language as recommended in Ex. 2 for summary dismissal of ordinary malpractice complaints has been used by OLPR, and by LPRB in resolving complainant appeals, for the last 25 years. Id. at A.5 – A.6.
- The June 2, 1986 OLPR report stated, “The full implementation of the accepted and mandated Advisory Committee recommendations will occur during FY ’87.” Id. at 20. The June 1987 OLPR / LPRB report stated, “The Board has been particularly concerned with promoting consistency in the handling of disciplinary cases and procedures. * * *The Board and Director’s Office have adopted guidelines for issuing summary dismissals in certain recurrent kinds of cases….” Id. at 4. The 1987 report attached a copy of Exh. 2. The Board’s special concern with consistency was shared by the Dreher Committee, OLPR, and the Court. This concern was a foundation for the 1986 amendment of Rule 2, RLPR, stating that “fairness and justice” in disciplinary dispositions are “of primary importance.”
- Attached as Exhibit 3 is a copy of William J. Wernz, Summary Dismissal Guidelines, BENCH & B. OF MINN., May/June 1987, at 13. This article includes a brief description of the application of summary dismissal guidelines to malpractice complaints. The article states, “[C]omplaints that principally involve an isolated allegation of malpractice are often summarily dismissed, without prejudice.” Id., emphasis added.
- Attached as Exhibit 4 is a copy of Martin A. Cole, When Malpractice is an Ethics Issue, BENCH & B. OF MINN., Dec. 2002, at 10. This article states, “[A]lthough 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.” Id., emphasis added.The focus of Mr. Cole’s article was on actual malpractice, as opposed to the alleged malpractice that was focal in the summary dismissal guidelines, but the result was the same – dismissal.
- In the authorities and sources cited above, a consistent position has been stated to the bar and the public – an “isolated” instance of alleged malpractice will “normally” or “often” not even be investigated, and a “single” instance of actual malpractice is “highly unlikely” to result in discipline. In my experience, in dealing with and on behalf of OLPR, from 1985 to the present, this publicly adopted position has, indeed, been consistently followed.
- The brochure Complaints and Investigations, available on the OLPR / LPRB website, includes a statement (emphasis in original), which carries forward the Summary Dismissal guidelines: 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.
- When a complaint is summarily dismissed, OLPR determines that the particular facts and details of a matter are unlikely to affect the disposition. Even where the complaint alleging malpractice is brief, OLPR tells the complainant, in effect, that the exact nature of the malpractice is inconsequential.
- Complaints of malpractice normally allege, in effect, a violation of Rule 1.1 (Competence). Most malpractice complaints would also state violations of other Rules. The Memorandum in which the Summary Dismissal Guidelines were first stated cited, as an example of a complaint to be summarily dismissed, one alleging “untimely filing of a pleading.” Ex. 2, at A.5. Such untimely filings, as a general category, often could be alleged to violate Rules 1.1, 1.3, and (if the deadline was not communicated in advance to the client) 1.4. Nonetheless, LPRB and OLPR decided, and announced, as a matter of policy, complaints of untimely filing normally would be dismissed without any investigation whatsoever.
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