UPDATES
Rule 8.4(d).
Tax Non-Filing/Private Disciplines. The chapter of
Minnesota Legal Ethics on Rule 8.4(d) (conduct prejudicial to the administration of justice) will provide summary treatment of numerous cases of lawyer discipline by the Minnesota Supreme Cour for non-filing or late filing of income tax returns. Until that chapter is written, it may be noted that there are also cases of
private discipline for such failings. The author recently identified some of these cases in order to provide a basis for private disposition by Office of Lawyers Professional Responsibility (OLPR) of a current case involving late filing. Private disciplines are normally not available, but they become available when they are exhibited in connection with public disciplines. The particular facts of these private disciplines can be found in OLPR files. Private disciplines, for failures to file tax returns timely, are cited as discipline history in the following cases:
In re Disciplinary Action Against Fett, 790 N.W. 2d 840 (Minn. 2010);
In re Disciplinary Action Against Danielson, 620 N.W. 2d 718 (Minn. 2001);
In Re Disciplinary Action Against Jontz, 590 N.W. 2d 777 (Minn. 1999);
In re Singer, 499 N.W.2d 467
(Minn. 1993). No doubt there are additional private disciplines for tax violations which have never become public, but could be summarized by OLPR, in the manner that selected admonitions are annually summarized publicly by OLPR.
Rule 1.8(i).
Attorney Liens and Fees When a Client Changes Counsel. The subjects of enforcement of attorney liens and the amounts of fees due lawyers pursuant to attorney liens are beyond the scope of this treatise. However, a recent Minnesota case addressed an issue that has sometimes been raised in ethics proceedings. In particular, the author represented a client in a successful appeal of an admonition, in 2000, in which OLPR appeared not to understand how a client who retains a lawyer (#1), who performs substantial services, but then replaces #1 with successor counsel (#2), may receive little or nothing in net recovery. In
Kaler Doeling Law Office v. Rector, No. A11-847 (Minn. Ct. App., Dec. 27, 2011), lawyer #1 had a 40% contingent fee agreement, lawyer #2 had a 50% agreement, and there were substantial litigation costs. Lawyers #2 and #1 agreed that #2 would hold $100,000 from the final verdict of $714,000 (plus costs and disbursements) in trust, pending determination of #1’s attorney lien amount. On a quantum meruit theory, the court found the $100,000 should be paid to #1. #2 received approximately $357,000 for fees. The clients received $76,693. In determining attorney lien amounts when clients have changed counsel, courts often require lawyers to apportion an overall fee, such as a 33% contingency fee. However, neither Rule 1.8(i) nor Rule 1.5 (reasonable fees) imposes any such requirement. The
Kaler Doeling case shows that prospective successor counsel should carefully advise the client who was dissatisfied with initial counsel, that changing lawyers mid-stream, in a contingent fee matter, may be very expensive, if counsel do not agree to divide a standard contingent fee.
Rule 4.3.
Robin J. Crabb,
Dealing with an Unrepresented Person [Subscription Required]
, MINN. LAW., Dec. 5, 2011, applies Rule 4.3 to prosecutors of municipal code violations dealing with unrepresented persons.
ADDITIONS
Fiduciary Client Identification.
As noted in this treatise, Minnesota law on identification of the client in fiduciary representations is unsettled.
Id., Chap. XIII, “
Fiduciary Clients.” To the cited authorities the dictum in
In re MacGibbon, 535 N.W.2d 809 (Minn. 1995) may be added. The dictum refers to the lawyer for the personal representative of the estate.
Id. at 810, 814. In the author’s view, this is the best client identification, but several other Minnesota cases refer to the fiduciary entity as the client. An addition to the latter category, referring to the attorney’s client as the decedent’s estate, is
In re: Estate of Mary Ann Reiman, No. A11-203
(Minn. Ct. App., Jan. 3, 2012).