This blog post provides guidelines for dealing with run-of-the-mill complaints that are not apt to be contested or to result in public discipline. In the coming months, additional posts will deal with how to defend ethics complaints and charges that are contested.
This series of posts will be expanded over time and either incorporated as an appendix to future editions of Minnesota Legal Ethics, or as a shorter standalone document.
The Office of Lawyers Professional Responsibility (OLPR) has provided a good, brief overview of how it handles complaints. Martin A. Cole, OLPR Investigation Procedures, BENCH & B. OF MINN., Oct. 2011, at 12. It has also provided good, brief advice on how to avoid, and respond to, ethics complaints. Kenneth L. Jorgensen, Limiting Exposure to Complaints and Discipline, BENCH & B. OF MINN., Nov. 2003. A more recent article emphasizes “private discipline is not necessarily a black mark on an attorney’s record so much as an opportunity to recognize one’s errors and conform his or her future practice accordingly.” Siama Y. Chaudhary, An Overview of the Disciplinary Process, MINN. LAW., Feb. 2, 2015.
The blogs use the following abbreviations and terms:
1. MRPC for Minnesota Rules of Professional Conduct. The MRPC set the standards by which lawyers may be disciplined. The MRPC are adopted by the Minnesota Supreme Court, based on its inherent authority to supervise the legal profession. The ABA Model Rules are the primary model for the MRPC. The MRPC were most recently amended in 2015.
2. RLPR for Rules on Lawyers Professional Responsibility. The RLPR govern investigation and disposition of complaints. RLPR 6(a). It is “of primary importance” that complaints “be promptly investigated and disposed of with fairness and justice . . . .” Rule 2, RLPR.
3. OLPR for Office of Lawyers Professional Responsibility. Acting under the authority of a Director appointed by the Supreme Court, the OLPR investigates and either dismisses or prosecutes ethics complaints. Rule 5, RLPR. OLPR lawyers are salaried professionals.
4. LPRB for Lawyers Professional Responsibility Board. LPRB comprises 23 volunteer members, appointed by the Minnesota Supreme Court. Fourteen members are lawyers and nine are public (non-lawyer) members. LPRB’s duties are hybrid. LPRB, through three-member panels, conducts hearings on admonition appeals and reinstatement petitions, and making probable cause determinations on whether public disciplinary petitions may be filed. OLPR supervises OLPR through an Executive Committee. Rules 4, 9, RLPR.
5. DEC for District Ethics Committee. Volunteer DECs, in each district of the state, conduct initial investigations of most complaints. DECs recommend dispositions to OLPR, but DECs do not have dispositional authority. Rule 7, RLPR.
6. Respondent refers to a lawyer who is the subject of a complaint or investigation.
OLPR/LPRB Website. The OLPR/LPRB website provides a wealth of information that can be used in responding to and defending complaints.
http://lprb.mncourts.gov/Pages/Default.aspx. The website includes LPRB/OLPR Annual Reports, which include a great deal of statistical and other information on files, file-aging, probations, trust account inquiries, dispositions, etc. A website brochure, “Complaints and Investigations” describes what OLPR will and will not investigate.
I. INVESTIGATIONS A. Summary Dismissals and Other Dispositions.
1. Summary Dismissals. Over 40% of complaints are summarily dismissed by OLPR, without investigation. Most of these complaints allege facts that, even if true, do not violate the MRPC. OLPR’s “Complaints and Investigations” brochure advises complainants that OLPR does not investigate the great majority of complaints regarding fees, ordinary malpractice, most behavior outside the practice of law, lawyers’ debts, and complaints by criminal defendants. http://lprb.mncourts.gov/complaints/LawyerComplaintDocs/Complaint%20Brochure%20-%20English.pdf. In addition, complaints alleging litigation misconduct that could be dealt with by trial courts are usually dismissed without investigation. These practices have been followed for about 30 years. William J. Wernz, Summary Dismissal Guidelines, BENCH & B. OF MINN., May/June 1987, at 13.
2. Notice, Appeal. Lawyers and complainants receive notices of summary dismissals. Complaints have limited appeal rights. Rule 8(e), RLPR.
3. Dispositions—Statistics. Annual Reports indicate that OLPR opens approximately 1,300 new investigative files annually. Dispositions typically fall into the following categories: dismissals (75% of files opened), private admonitions (11%), private probations (1%), public disciplines (9%), with the remainder miscellaneous.
B. OLPR Authority to Investigate 1. Basis for Investigation. OLPR may investigate if there is “a reasonable belief that professional misconduct may have occurred.” Rule 8(a), RLPR. OLPR has explained this standard, “Rule 8(a), RLPR, establishes the threshold for initiating an investigation into an attorney’s alleged misconduct, authorizing an investigation if there is a ‘reasonable belief that professional misconduct may have occurred.’ This is somewhat akin to the civil litigation standard that a complaint must state a claim upon which relief can be granted; that is, if the allegations in the complaint are true, do they constitute a violation of one of the Minnesota Rules of Professional Conduct?” Martin A. Cole, OLPR Investigation Procedures, BENCH & B. OF MINN., Oct. 2011, at 12.
2. Leading Case. The leading case for distinguishing between proper and improper investigations is In re Nathanson, 812 N.W.2d 70 (Minn. 2012). For a good discussion of Nathanson and related issues, see Kevin T. Slator, Director’s Role in Conducting Discipline Investigations, MINN.LAW., Apr. 9, 2012.
3. Investigation Without Complaint. “Investigations to be commenced upon the sole initiative of the Director shall not be commenced without the prior approved of the [LPRB] Executive Committee.” Rule 8(a), RLPR.
C. Notice of Investigation. 1. No Secret Files. There are no secret investigation files. Approximately two weeks normally pass from when OLPR receives a complaint to the decision either to summarily dismiss or to issue a Notice of Investigation. A longer interval may occur if OLPR asks the complainant to clarify a complaint or supply a document.
2. Who, What, When. The Notice transmits the complaint, requests a response, and identifies the investigator. The respondent attorney, the complainant, and the investigator receive the same documents. Sometimes the Notice specifies the subject of investigation or the relevant MRPC, but usually the complaint is regarded as sufficient. If the alleged rule violation is not apparent from the complaint, the respondent can ask OLPR to identify the possible MRPC violation(s) that are a subject of investigation.
3. Time for Response. The Notice also specifies a time by which a response is due, usually two weeks. However, continuances are freely given by OLPR or the DEC.
D. Promptness and Fairness are "of Primary Importance."
1. Adoption. Rule 2, RLPR, was amended in 1986, to provide that it is “of primary importance” that ethics investigations and dispositions “be promptly investigated and disposed of with fairness and justice . . . .” The amendment was adopted in response to concerns, at the time, with both promptness and fairness.
2. Fairness. In my experience and opinion, OLPR, LPRB and the Court have been exemplars of fairness. As evidence of this achievement, I recall two instances in which OLPR disclosed to me, as respondent’s counsel, and to LPRB, unpublished precedents that affected the dispositions, with OLPR’s position not prevailing.
3. Promptness. Dismissals after DEC investigations typically take approximately 7 months from file-opening. Admonitions typically take about a year.
II. DUTY TO COOPERATE AND LIMITS
A. Duty to Cooperate. 1. MRPC 8.1(b). A lawyer shall not “knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.” Rule 8.1(b), MRPC.
2. Rule 25, RLPR. The duty to cooperate is also the subject of another, more detailed, rule: “It shall be the duty of any lawyer who is the subject of an investigation or proceeding under these Rules to cooperate with the District Committee, the Director, or the Director’s staff, the Board, or a Panel, by complying with reasonable requests, including requests to: (1) Furnish designated papers, documents or tangible objects; (2) Furnish in writing a full and complete explanation covering the matter under consideration; (3) Appear for conferences and hearings at the times and places designated; (4) Execute authorizations and releases necessary to investigate alleged violations of a conditional admission agreement.” Rule 25, RLPR.
3. Frequent Discipline for Failure to Cooperate with OLPR. In 2011, about ten percent of private admonitions included Rule 8.1(b) violations, and in over half of these admonitions, failure to cooperate with OLPR was the only violation. Each of the admonished lawyers eventually complied with the OLPR or DEC request, but still received a discipline. Megan Englehart, Requirement to Cooperate with Director is Just That: A Requirement, MINN. LAW., Sept. 5, 2011.
4. Public Discipline. Lawyers have long been subject to discipline, including public discipline, for failure to cooperate. In re Cartwright, 282 N.W.2d 548 (Minn. 1979). A failure to cooperate with a DEC resulted in public discipline. In re Stanbury, 614 N.W.2d 209 (Minn. 2000).
B. Limits on Investigative Authority. 1. Proportionality. OLPR’s investigative authority is subject to important limitations: “Such [investigative] requests shall not be disproportionate to the gravity and complexity of the alleged ethical violations.” Rule 25(a), RLPR.
2. Challenge. A lawyer may challenge an investigative request, and “a lawyer’s challenge to the Director’s requests shall not constitute lack of cooperation if the challenge is promptly made, is in good faith and is asserted for a substantial purpose other than delay.” Rule 25(b), RLPR.
3. Venue. Disputes regarding OLPR investigative requests are adjudicated in Ramsey County District Court. Rule 25(a), RLPR. Motions on such matters will be considered in the blog on defending ethics complaints.
III. RESPONDING TO NOTICE OF INVESTIGATION
A. Decide in Haste, Repent at Leisure. Many lawyers who receive Notices of Investigation are initially too scornful or angry to respond properly. Some lawyers are unable to bring themselves to deal with a Notice in the methodical way they would approach any other task in the law. I once had to open the envelopes from OLPR and read the communications aloud for a respondent client, because he could not bring himself to do so.
B. Good Advice. “Answering in a timely manner and being forthright when a complaint is received is not only the right thing to do, it is the response that is most likely to result to the benefit of the responding attorney.” Edward J. Cleary,
Noncooperation—Making a Bad Situation Worse, BENCH & B. OF MINN., Nov. 2000, at 20.
C. More Good Advice. Get a second opinion before submitting a response to a complaint. Take seriously the fact that OLPR’s initial review resulted in a Notice of Investigation, rather than a summary dismissal. Even if the complaint appears obviously without merit, a colleague’s review may be helpful. If the complaint looks like it could cause problems, retain experienced counsel.
D. Check Your Policy. Some malpractice policies, including Minnesota Lawyers Mutual policies, may provide for payment of fees of respondent’s counsel, at least to a limited extent. Respondent attorneys should review their policies, to determine whether the Notice of Investigation must be reported to the carrier, whether the carrier provides counsel for responding to the Notice, and whether failure to report could void coverage.
E. Time if You Need It. Notices of Investigation normally request a response within 14 days. OLPR or the DEC will readily grant an initial continuance.
F. Respond Promptly! A lawyer, Paul (P), was tardy both in client representations and in responses on several matters. In the A.B. matter, OLPR mailed a notice of investigation on July 1, 2010, requesting a response and a copy of the file within 14 days. P responded and provided the file on July 26, 2010, and supplemented his response on August 6, 2010. Although P’s tardiness was “less serious” in the A.B. matter than in others, the referee did not clearly err in finding a failure to timely cooperate violation.
In re Paul, 809 N.W. 2d 693, 704 (Minn. 2012).
G. Respond Accurately. A response that includes false or inaccurate statements may itself provide a basis for discipline. Rule 8.4(c), (d), MRPC. Counsel cannot provide effective representation where the respondent client does not provide accurate information.
In re Severson, 860 N.W.2d 658 (2015).
H. Copy to Client. “If the complainant is, or at the time of the actions complained of was, the lawyer’s client, the lawyer shall furnish to the complainant copies of the lawyer’s written responses to investigation requests by the Director and District Ethics Committee, except that, insofar as a response does not relate to the client’s complaint or involves information as to which another client has a privilege, portions may be deleted.” Rule 20(a)(5), RLPR. If the complaint is by a non-client, but the subject of the complaint involves a client matter, a lawyer should communicate with the client regarding the response. Rule 1.4, MRPC.
I. Respect, Courtesy, Responsiveness. 1. Honey and Vinegar. An old maxim is, “You catch more flies with honey than vinegar.” Even if a respondent does not want to catch flies, but instead to persuade the DEC or OLPR, it is best to show respect and civility, and to be responsive.
2. Don’t Make Things Worse. Some lawyers have behaved so badly in discipline investigations and proceedings that they converted small disciplines into lasting suspensions. An archetype is In re Pokorny, 453 N.W.2d 345 (Minn. 1990). Pokorny was issued a private admonition, for isolated and non-serious misconduct. His behavior during proceedings led to his suspension from practice.
3. Don’t Sue. “A complaint or charge, or statement relating to a complaint or charge, of a lawyer’s alleged unprofessional conduct, to the extent that it is made in proceedings under these Rules, or to the Director or a person employed thereby or to a District Committee, the Board or this Court, or any member thereof, is absolutely privileged and may not serve as a basis for liability in any civil lawsuit brought against the person who made the complaint, charge, or statement.” Rule 21(a), RLPR. Such lawsuits have been the basis for private discipline and, with other offenses, a basis for public discipline. Martin A. Cole, Summary of Admonitions, BENCH & B. OF MINN., Mar. 2008, at 16, 16; In re Myers, File No. A15-0728 (Minn., May 29, 2015).
4. Don’t Retaliate. Retaliatory ethics complaints are usually a very bad idea. Edward J. Cleary, The Obligation to Report and Retaliatory Ethics Complaints, BENCH & B. OF MINN., Apr. 1998, at 19.
5. Update the Response. A bar applicant, Bosse, correctly stated that he had no debts. However, while his application was pending, he did not provide updates, to report his growing debts. For this, and for extensive other misconduct, Bosse received a reprimand and probation. In re Bosse, 607 N.W.2d 448 (Minn. 2000). Even though OLPR, unlike the Board of Law Examiners, does not remind lawyers of a duty to update information, it appears that Rule 8.1(b) would require updating where a lawyer knew OLPR would have a misapprehension, based on superseded facts.
IV. DISTRICT ETHICS COMMITTEES
A. Volunteer Members. DEC members are volunteers, appointed by the district bars, except the DEC Chair, who is appointed by the Supreme Court. Rule 3(a), RLPR. At least 20 percent of DEC members should be public members, i.e. not lawyers.
B. Matters Referred. Most run-of-the-mill complaints are referred to the DEC for investigation. Some complaints are, instead, investigated by OLPR, for a variety of reasons. Some matters are too complex, weighty or technical for volunteers. OLPR may already be investigating or prosecuting other complaints against the respondent.
C. Timeframes. DEC investigations should be completed within 90 days. Rule 7(c), RLPR. However, the actual average is four months.
D. Recommendations. The DECs have authority only to investigate and to recommend (to OLPR). Rule 3(b), RLPR. The DECs do not have dispositional authority. OLPR follows DEC recommendations approximately 85% of the time.
E. OLPR Follow-Up. After the DEC report is received by OLPR, OLPR regularly notifies respondent, asking for any further comment. At this point, respondent may request the files of the DEC and OLPR, including the DEC investigative report, but not including OLPR work product. Rules 6(c), 20(a)(4), RLPR. Respondent should request and review these files before providing an additional response to OLPR
V. MEETINGS
A. Meetings. A lawyer is required to comply when OLPR or DEC reasonably requests a meeting. Rule 25(a)(3), RLPR. DEC investigators will often request a face-to-face meeting with respondent, at least when there is no great distance. For run-of-the-mill matters, OLPR does not ordinarily request meetings. OLPR may be willing to meet at respondent’s request, if a purpose is specified.
B. Paralegal/Stenographer. At OLPR meetings, an OLPR legal assistant will almost always be present. The legal assistant’s function is usually largely stenographic. The OLPR attorney does not wish to be a witness if the respondent attempts to alter his or her account of things. If respondent wants his or her own record of what was said, the lawyer’s assistant can attend.
VI. AUTHORITIES, SOURCES
A. Discipline for Technical Violations. An OLPR article reports discipline for even technical rule violations, stating, “In some situations, however, regardless of whether an innocent oversight is to blame, a rule violation is a rule violation regardless, of how technical it may seem.” Siama Chaudhary,
An Overview of the Disciplinary Process, MINN.LAW., March 7, 2011. OLPR has also stated, in dismissing a complaint, “A determination that discipline is not warranted may be issued upon the Director’s conclusion that such resolution is appropriate. Rule 8(d)(1), RLPR. . . . Nothing in the rules requires the Director to issue discipline whenever misconduct is established.” S
ee May 2012 blog to this treatise. Lawyers who are not expert in legal ethics may usefully consult several resources, as well as expert counsel.
B. OLPR/LPRB Website. 1. Wealth of Material. The OLPR/LPRB website provides a wealth of information and resources materials that can prove useful in responding to ethics complaints. http://lprb.mncourts.gov/complaints/
2. Word-Searchable. The website is word-searchable. Articles and cases of use can be quickly located.
3. Articles. OLPR’s positions on numerous ethics issues can be found in Bench & Bar of Minnesota and Minnesota Lawyer articles found on the site.
4. Trust Accounts. The site’s materials on trust accounts are probably without parallel in the world. There are Trust Account FAQs, Appendix for Books and Records, Manuals, etc.
C. Minnesota Legal Ethics. 1. My Experience, Compiled. In June 2015, Minnesota Legal Ethics Fifth Edition was posted, see www.minnesotalawyering.com/ The treatise is free, online, and searchable. The treatise contains my experience of 34 years, as OLPR director, respondents’ counsel, ethics partner at Dorsey & Whitney, and adjunct professor at the University of Minnesota and at William Mitchell College of Law.
2. Features of Minnesota Legal Ethics.
a. It is the only treatise or commentary that takes substantial account of private discipline dispositions and dismissals.
b. It is more up-to-date than other treatises. New editions appear annually. Monthly blogs provide more current news of Minnesota developments.
c. It notes positions taken by OLPR that appear to me to be inconsistent with the MRPC or other authorities. The treatise also provides critical review of Minnesota Supreme Court decisions.
d. It provides numerous resources that could prove useful in responding to or defending discipline complaints.
e. It includes chapters on meta-ethical topics of importance, e.g., “The Attorney-Client Relationship” and “Interpreting and Applying the Rules and Other Authorities.”
D. Restatement of the Law Governing Lawyers. 1. “Authoritative.” OLPR and LPRB have generally regarded The Restatement Third: The Law Governing Lawyers as authoritative. “Authoritative texts such as the Restatement Third: The Law Governing Lawyers (1988) may be consulted.” Martin Cole, Comparing Discipline: Apples to Oranges, Bench & B. of Minn., Oct. 2006, at 14–15.
2. OLPR Variations. OLPR sometimes takes positions that are at odds with the Restatement, sometimes without recognizing the differences. Calling any such inconsistencies to OLPR’s attention may be useful.
3. Somewhat Out of Date. The Restatement is a monumental work in the history of legal ethics. It is of the highest quality. However, as of June 2015, the Restatement in some ways is out of date. The Restatement was published in 2000 and has been updated only with skimpy pocket parts. A new edition is in the works.
E. ABA Formal Opinions. 1. Safe to Follow. ABA Formal Opinions on ethics and professional responsibility, “are useful for Minnesota practitioners to read and feel safe in following,” and it is “rare” that OLPR will not follow such opinions. Martin A. Cole, Scripting Contacts with Represented Persons, BENCH & B. of MINN., Nov. 2011, at 12, 12.
2. Hard to Identify. As of July 1, 2015, the ABA had issued 471 formal ethics opinions. The opinions are not digested, or indexed, or searchable, without opening them one by one.
F. Commentaries. 1. Hazard et al. The leading commentary on the Model Rules is Geoffrey C. Hazard Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct. It is not available online.
2. Freivogel on Conflicts. An excellent commentary on conflicts of interest, by William Freivogel, is available free and online. William Freivogel, Freivogel on Conflicts, http://freivogel.com/.
VII. REPAIR EFFORTS—MAKING THINGS BETTER
A. Overview. A lawyer may have several weeks to respond to a Notice of Investigation, especially if a continuance is requested. Many months may pass before the matter is resolved. The lawyer should ask at the outset, “Is there anything I can do now to enhance the likely outcome of this complaint?” Often, several possibilities arise, especially where there is a problem that is both real and remediable.
B. Benefits of Remediation. A lawyer who has a problem that is not isolated, whether a personal problem or an office system problem, may well appear to OLPR to be a candidate for disciplinary probation. On the other hand, a lawyer who has dealt with, or is dealing with, a problem, may not appear to need probation or discipline at all.
C. Trust Account Books and Records. When an overdraft notice inquiry or a Notice of Investigation regarding a trust account is received, a lawyer’s books and records may be in an imperfect state. Perhaps they can be brought into compliance before a response is due. If not, they can almost surely be made compliant in a few weeks or a few months. An accountant or bookkeeper who is experienced in such matters can help.
D. Other Office Systems. Perhaps a lawyer has missed appointments or court appearances. There has been no formal docket system. One can be implemented.
E. Refund, Apology, Etc. Upon reflection, respondent may recognize that, after all, the client who has complained may have a point. In addition to responding formally to the complaint, a lawyer may approach the client with an apology or a refund of fees. The client’s attitude toward the ethics complaint may undergo a marked change. At LPRB Panel hearings, testimony may be received from, “A complainant who affirmatively desires to attend.” Rule 9(h)(2), RLPR. A mollified complainant may not have such desires.
F. Don’t Threaten, Bribe, Etc. But be careful! Do not try to buy off the complaint, ask for withdrawal of the complaint, etc. That will be regarded as “conduct prejudicial to the administration of justice,” in violation of Rule 8.4(d), MRPC. Kenneth L. Jorgensen,
Summary of Admonitions, BENCH & B. of MINN., Mar. 2005, at 14; Thomas F. Ascher,
Settle Issues, Not Complaints, Minn. Law., Sept. 6, 2004, at 18.
G. Professional Help. Where there is merit to the complaint(s), and it does not concern a merely technical matter, the respondent attorney should do some soul-searching. Is the conduct out of character? Is help needed, whether with depression, chemical dependency, old age, inattention, office systems, or something else? Professional help may be beneficial both to the attorney and to OLPR’s conclusion about what action to take, if any.
H. A Novel Gambit. Clients complained against a lawyer, French, alleging refunds were due in appellate matters. There was an unfortunate lack of clarity regarding whether payments had been only for costs (in which case refunds were due) or in part also for fees (in which case no refund would be due). While discipline proceedings were pending, French initiated district court actions to determine the refund issues. OLPR regarded these actions as frivolous and prejudicial, and issued supplemental charges. However, the district courts made determinations in French’s favor. The Supreme Court dismissed OLPR’s supplementary charges as well as the charges related to the alleged refunds.
In re French, File No. 14-0143 (Minn. June 3, 2015).
VIII. TRUST ACCOUNT OVERDRAFT INQUIRIES A. Overdraft Notice Program. In Minnesota, lawyer trust accounts must be maintained at institutions that agree to report overdrafts to OLPR. Rule 15(k), (l), MRPC. OLPR regards the overdraft notice program as both a problem detection device and as an opportunity for education. OLPR receives approximately 80 trust account overdraft notices from banks annually. In these cases, OLPR normally sends an inquiry—not a Notice of Investigation, as in a discipline matter—to the lawyer. The lawyer is asked to provide three months of trust account books and records. Over eighty percent of such inquiries are closed without formal investigations. Patrick R. Burns,
Oh No! The Trust Account is Overdrawn. Time to Panic?, MINN. LAW., Aug. 6, 2012, at 10. Formal Notices of Investigation are sent in several circumstances—when OLPR detects possible shortages, or there are “serious deficiencies in the books and records,” or where the lawyer does not respond.
Id. A good example of OLPR treating various deficiencies as an opportunity for education, rather than discipline, is found the discipline history segment of
In re Varriano, 755 N.W.2d 282 (Minn. 2008).
B. Responding to Overdraft Inquiries. Sometimes a lawyer trust account has been imperfectly maintained at the time of an OLPR inquiry regarding an overdraft. OLPR does not ordinarily ask for books and records as they exist at the moment the inquiry is made. If the account has a low activity level and is not seriously askew, the lawyer, perhaps with the aid of a bookkeeper or an accountant, may be able to make the books and records shipshape for presentation to OLPR.
IX. ADVERSE PARTY AND OTHER THIRD PARTY COMPLAINTS A. Non-Client Complaints. A substantial percentage of all complaints are filed by persons who were never clients of the respondent. For example, complaints are filed by creditors, by judges, by competitors, and, especially in marriage dissolutions and custody matters, by adverse parties.
B. Complaints Against Opposing Lawyer. OLPR discourages complaints against opposing lawyers, “Only flagrant abuses will be disciplined, and usually after a court has ruled on the matter.” OLPR Complaints and Investigations Brochure.
http://lprb.mncourts.gov/complaints/LawyerComplaintDocs/Complaint%20Brochure%20-%20English.pdf. However, OLPR does investigate some such complaints.
C. Standing. There is no formal requirement that complainant have standing to make an ethics complaint. A stranger who provided evidence that a lawyer was misappropriating funds would certainly be allowed the status of complainant. However, in some cases a requirement of something like standing may be applied. I was the subject of a non-client complaint, by someone with the sobriquet, “The Earth Protector.” He alleged that I had approved my firm’s course of conduct, involving a purported conflict of interest. OLPR summarily dismissed. OLPR explained, “Conflict of interest rules are designed primarily to protect clients, who may waive those conflicts under certain circumstances. Third parties typically do not have access to attorney-client communications that discuss disclosure and waiver of conflicts. As a result, without a complaint from the current or former client, there is no basis for a reasonable belief that misconduct has occurred.”
In the Matter of the Complaint of Leslie Davis Against William J. Wernz Dismissed July 29, 1997.
D. Rule 1.6(b)(8), (9), MRPC. Non-client complaints, if sent out for investigation by OLPR, can present confidentiality problems, especially where litigation is ongoing or looming. Rule 1.6(b)(8) and (9) permit a respondent attorney to disclose confidential client information, where “the lawyer reasonably believes the disclosure is necessary,” to respond to an ethics complaint, whether from the client or a third party. Rule 8.1(a), MRPC and Rule 25, RLPR, may require the lawyer to disclose confidential client information, where the request for information is reasonable and proportionate.
E. Protective Measures. Especially where complainant is adverse to respondent’s client, respondent should confer with the investigator regarding protective measures for the information in the response. Investigators are aware that, “The District Committee or the Director’s Office shall afford the complainant an opportunity to reply to the lawyer’s response to the complaint.” Rule 6(d), RLPR. Often, this responsibility is fulfilled by simply transmitting a copy of respondent’s response to complainant. Where, however, complainant is an adverse party, respondent should discuss protective measures, such as the investigator conveying only an oral summary. “Insofar as a response does not relate to the client’s complaint or involves information as to which another client has a privilege, portions may be deleted.” Martin A. Cole,
OLPR Investigation Procedures, BENCH & B. OF MINN., Oct. 2011, at 12, 14, n. 4.
F. Privilege and Work Product Waiver? If information protected by the attorney-client privilege or the work product doctrine is disclosed to DEC or OLPR, has the protection thereby been waived? The scope of waiver by disclosure to a government authority is beyond the scope of this blog, but the issue is a serious one. The issue arises even where the disclosure is only to OLPR or DEC, and not to the complainant. The issue is important in determining whether the investigative request is too burdensome, given the nature of the complaint.
G. Rule 25 Motion. A lawyer should consider whether OLPR’s request for a response meets standards of reasonableness and proportionality. Rule 25, RLPR. Depending on the circumstances, a lawyer may comply with Rule 8.1(b) by filing with OLPR a response that makes only limited disclosures, or none at all, and informing OLPR that the lawyer will appear in opposition to a motion that OLPR may bring in Ramsey County District Court to determine the reasonableness and proportionality of OLPR’s request. Either the lawyer or OLPR may bring a motion, but Rule 25 does not clearly assign a duty to bring the motion. In a leading case, OLPR filed the motion.
In re Charges of Unprofessional Conduct Involving File No. 17139, a Minnesota Attorney, In Panel Case No. 20783, 720 N.W.2d 807, 810 (Minn. 2006). The case is discussed in Patrick R. Burns,
Cooperation in Discipline Proceedings, MINN. LAW., Oct. 2, 2006, at 3.
H. Confidentiality Battle—In re Hogue. After OLPR requested the response of Hogue, a lawyer, to a complaint, Hogue commenced a lawsuit in Ramsey County District Court, to protect client confidentiality from disclosure to adverse parties. OLPR offered certain protections for the client information. Hogue rejected the offer and also sought to have the director removed from the matter, for an alleged conflict of interest. The district court dismissed the matter, for lack of jurisdiction. Hogue then sought a writ of mandamus in the Supreme Court. That, too, was denied.
In re Hogue, 764 N.W.2d 328 (Minn. 2009).