Legal Ethics

This month’s post is the second in a series on defending ethics complaints and contested charges. It deals with evaluating and responding to complaints. An assumption is that the complaint at hand is not so totally frivolous that any response will do. Another assumption is that the respondent attorney may have fallen short at least of best practices, or some professional standard.

Read July blog first, which could have been titled, “Responding to Ethics Complaints 101,” dealing with basic topics, e.g., the disciplinary system, how to respond to complaints generally, and complaints by non-clients. The post also addressed two special topics: (1) complaints by non-clients and (1) how to repair problems while responding to a notice of investigation. That post includes abbreviations and terms used here. 

I. BEST FOOT FORWARD / SECOND OPINION
A. Best Foot Forward. Think of the response to complaint as Exhibit A in the DEC or OLPR consideration of whether the respondent attorney, as alleged in a complaint by a client or another party, did a poor job in the underlying representation. If the response is late, badly organized, ill-tempered, or off point, the investigator may be nudged to find merit in the complaint. Conversely, if the complaint is intemperate or inscrutable, but the response is prompt, coherent, and complete, Exhibit A will serve respondent’s purposes.

B. Difficulty in Evaluating Accusations. Many ethics complaints are difficult for respondent attorneys to evaluate, for several reasons.

1. The attorney’s personal stake may obscure an objective view. Perhaps the attorney really did give achieve a good result at a discounted rate, but the attorney may not have communicated well, or may have failed to recognized that the client file may not be held hostage for fee payment.
2. The attorney may be unaware of applicable technical points in the increasingly complicated law of attorney ethics. For example, OLPR and LPRB claim that the “papers and property to which the client is entitled,” on termination of representation, include not only those listed in Rule 1.16(e), but any others whose withholding would cause “substantial prejudice.” As explained in the treatise chapter on Rule 1.16, I believe the OLPR/LPRB position is unfounded. To complicate the technical picture, in July 2015, the ABA issued Formal Opinion 471, “Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client is Entitled.” Two points may be made about Opinion 471. First, there are now 471 ABA Formal Opinions on legal ethics! Even experts cannot keep track of all of them. Second, OLPR has announced that it will soon comment on Op. 471. Martin A. Cole, Top Ten List, BENCH & BAR OF MINN., Aug. 2015.
3. Ethics complaints usually cause considerable stress for the accused. When I started advising respondent attorneys, I recall surprise on learning that two hard-bitten trial lawyers, who were the subject of an obviously frivolous complaint, were losing sleep over it. Experienced counsel can allay such worries, or, in some cases, advise that there is some cause for concern. 

C. Pro Se or Anti Se? Respondent attorneys who serve as their own counsel can be paranoid, myopic, and self-destructive. Upon suspension from practice, a lawyer expressed his never-say-die creed: “Nowhere in the rules of legal ethics is it ordained that a lawyer may not believe that there exists a conspiracy against him, nor . . . that a lawyer may not prefer to find fault with others than himself.” William J. Wernz, Pro Se or Anti Se?, BENCH & B. OF MINN., July 1990. “Pro se” was itself objectionable to this attorney. The correct designation, he asserted, should be “counsel for respondent” (himself), and using “pro se” was “cattily effeminate.” Counsel for respondent was, in the eyes of everyone except respondent, counsel against respondent.

D. Anti Se II. At the other extreme, at least some attorneys accused of misconduct all too readily admit that a minor deficiency is a rule violation and warrants discipline. Others do not think of a defense that may be unusual but is effective. For example, an attorney plainly violated a gag order in a highly-publicized case. The attorney first denied the violation, then admitted the violation but sought to mitigate discipline. Only after consulting with an expert did the attorney—and OLPR—recognize that there was no violation, because the order violated the First Amendment.

E. Consultation, Limited or Full Retention. A lawyer who is the subject of an ethics complaint should, in all but the clearest cases, seek another lawyer’s opinion on the complaint’s merits. Respondent attorneys sometimes worry that retaining counsel for representation will create an appearance that the complaint should be taken very seriously. I do not think this worry is well-grounded. However, respondent often can have it both ways. At least initially, expert ethics counsel can be engaged for limited purposes, not including an appearance, e.g., opining on whether the complaint has any merit, drafting a response, or commenting on respondent’s draft response.

F. Meetings. If the DEC or OLPR wishes to meet with respondent, expert counsel should be engaged to appear with respondent. At this point, some time-honored advice is especially well-taken. Charles E. Lundberg, A Fool for a Client, BENCH & B. OF MINN., Dec. 1991.

II. EVALUATING AND RESPONDING—GETTING THE FACTS
A. Which Rules? A respondent attorney typically learns of a complaint by receiving a Notice of Investigation sent by OLPR. Sent with the Notice is the complaint, with any attachments. Sometimes these documents will specify the MRPC which were allegedly violated. When the rules are not specified, they can often be discerned. For example, Rules 1.3 (diligence) and 1.4 (client communication) are at issue when a client or former client complains that the respondent was dilatory or insufficiently communicative. Although most Notices of Investigation do not specify the MRPC that should be addressed by respondent, the OLPR will, on respondent’s request, identify which rules appear initially to be implicated by the complaint’s allegations. In addition, the investigation may lead to other rules being at issue.

B. Which Rules Interpretations? Many of the MRPC are so generally stated that examples of applications are needed for interpretation. For example, what level of delay violates Rule 1.3, requiring “reasonable diligence and promptness?” When is a Rule 1.3 violation so serious that public discipline is warranted? Over twenty sample applications are found in Section III, “Private Disciplines,” of the Rule 1.3 chapter of Minnesota Legal Ethics. A short answer is that inaction for at least several months is ordinarily required before discipline will be imposed for a Rule 1.3 violation.

C. Which Facts? The facts that are most germane to the MRPC in question should be marshaled, usually chronologically. A timeline is almost always helpful, both to respondent and to the investigator. If there was inactivity by the lawyer, but for good reason, explanation should be given, e.g., an injury whose permanency was in doubt, the completion of a collateral but important matter. The lawyer may also give personal information, particularly where there is some possibility of a discipline. For example, it may be relevant that the lawyer has never been disciplined, that the lawyer was undergoing stressful circumstances, or that the lawyer has generously provided pro bono services.

D. Accuracy is Essential. Stating the facts in a false or misleading way may violate the MRPC. For example, consider the responses of a lawyer, Severson, to the complaint of D.S. “During the disciplinary investigation Severson stated, through counsel, in response to a question from the Director, that D.S.'s funds were, at all times, invested in FSSCF stock. The Director pressed Severson for documentary proof because Severson's statements were inconsistent with Severson's filings with the Secretary of State. Severson retracted his statement, and stated he did not know where D.S.'s funds were invested from 1996 until 2002. Severson forwarded the four legal invoices to the Director but failed to disclose that the invoices were prepared for the final accounting.” In re Severson, 860 N.W.2d 660, 665 (Minn. 2015). The court affirmed a finding that Severson intentionally misled OLPR, in violation of Rules 8.1 and 8.4(c). Id. at 669. Severson retained counsel, but counsel’s effectiveness was impaired by Severson’s inaccurate representations to counsel. Even where a respondent’s inaccurate statement is inadvertent, it may impair the credibility of an attempted correction.

E. Respondent’s File. The DEC or OLPR may well wish to review respondent’s file. If the file is not complete at the time of the complaint, it should be completed, including adding paper copies of electronic communications. However, back-filling by belatedly creating documents, and giving them dates before their creation, will be regarded as a form of misrepresentation. If the file is requested by DEC or OLPR, respondent should consider that a well-organized, complete file will make a good impression.

III. EVALUATING AND RESPONDING—KEY TERMS
A. Clear Application of Rule to Facts. The Minnesota Supreme Court dismissed an allegation that a lawyer violated a rule where the application of the rule to the facts was not clear. In re Panel File 92-33, 508 N.W.2d 200, 200 (Minn. 1993) (Reversing admonition “on the basis that the application of MRPC 4.2 (1993) to the facts of this case is unclear.”). It is not entirely clear whether the court has adopted the standard that, for discipline purposes, MRPC must clearly apply to particular facts.

B. Words Matter Greatly. Whatever the exact standard for applying rule to facts, the words of the rule and the meaning of the words matter greatly. There are some words and phrases that are used so often in the MRPC, and that are also so pivotal in many determinations, that special attention to them is required. Several examples may be considered.

C. “In Representing a Client. . .”

1. Common and Decisive Requirement. The great majority of the MRPC apply only when a lawyer is representing a client. For example, consider the conflict of interest rules. “To establish a violation of the conflict of interest rules, the Director must first prove the existence of an attorney-client relationship at the time of the alleged wrongful conduct. See In re Perry, 494 N.W.2d 290, 294 (Minn.1992) (concluding that if there was no attorney-client relationship, there could be no violation of Rules 1.4 and 1.7).” In re Severson, 860 N.W.2d 660, 666 (Minn. 2015). 
2. Ambiguity? A lawyer who denies application of the MRPC on the grounds there was no attorney-client relationship may find the denial is problematic if the existence of a relationship is unclear. “It is incumbent on the lawyer to clarify any ambiguity [as to the existence of an attorney-client relationship].” Id. Moreover, any failure to clarify may violate the rule that “when a lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.” Rule 4.3(c). 
3. Common Law. Formation, maintenance and termination of the attorney-client relationship are issues determinable under the common law, rather than the MRPC. The “Attorney-Client Relationship” chapter of Minnesota Legal Ethics provides 35 pages of guidance on these issues. OLPR itself has sometimes been mistaken on the law of attorney-client relationships. For example, an OLPR article asserted that in representations relating to decedents, as a matter of law the client is the Personal Representative, and identifying the estate as the client is so clearly wrong that Rule 4.3(c) may be violated. Julie E. Bennett, You Do Not Represent the Estate, MINN.LAW., Sept. 7, 2009, at 12. However, this article did not cite any authority from the only authoritative source—applicable Minnesota law. Moreover, as the treatise notes, OLPR itself and several Minnesota appellate cases have identified the estate or other fiduciary entity at the client. 
4. Application to Pro Se Lawyers. When a lawyer appears pro se, do rules apply if they include elements like “in representing a client?” The law is unclear. Even OLPR expresses some uncertainty. Martin A. Cole, Ethics Rules and Pro Se Lawyers, BENCH & B. OF MINN., Sept. 2014. 

D. “Reasonable”

1. “Rules of Reason.” The “Scope” section of the Rules states basic interpretative principles. The foremost principle is that, “The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself.” Id. at 14. “Reason” and its derivatives are used 264 times in the Rules and Comments. 
2. OLPR Characterization—Lawyer’s Perspective Counts, Client’s Does Not. OLPR has provided an important characterization of the key terms, “reasonable” and “reasonably.” “For purposes of imposing lawyer discipline, Rule 1.0(i), MRPC, defines ‘reasonable’ or ‘reasonably,’ when used in relation to conduct by the lawyer, to mean the conduct of a reasonably prudent and competent lawyer. While not an overly helpful definition, this plainly views the term from a lawyer’s perspective and not from that of a client.” Martin A. Cole, Managing Expectations, BENCH & B. OF MINN., July 2012, at 14 (emphasis added). 
3. Defending Discipline Complaints. Lawyers responding to ethics complaints may well cite the Cole article as authority that the lawyer’s perspective, and not the client's perspective, determines reasonableness and therefore Rule interpretation. Mr. Cole was OLPR Director when he wrote the article, so his interpretations of “reasonable” should bind OLPR. 
4. Good Lawyers Determine What’s Reasonable. The governing perspective is that of “a reasonably prudent and competent lawyer,” not necessarily the perspective of the respondent lawyer. Rule 1.0(i). More precisely, the conduct of good lawyers determines reasonableness. “Conduct” is a more objective standard than the “perspective” adopted by OLPR. 
5. Expert Testimony. What is a reasonable “lawyer’s perspective” on “the conduct of a reasonably prudent and competent lawyer?” In some cases the answer may be clear – “reasonable diligence” is not compatible with a nine month delay in drafting a simple estate plan. Rule 1.3. In other cases, however, to carry its burden, OLPR may have to present expert evidence regarding lawyer conduct. OLPR’s failure to present such evidence resulted in dismissal of an admonition, in a case involving allegedly inadequate file review before a court hearing. An excellent and instructive discussion of this case is found in a guest post by Charles E. Lundberg, When Does a Mistake Violate Rule 1.1 (Competence) or Similar Rules?, Minnesota Legal Ethics blog (Oct. 3, 2011). 

E. “Knowledge” and Other States of Mind.     

1. Importance. States of mind are important in ethics evaluations, both as to whether a rule may have been violated and, if there is a violation, as to the degree of discipline, if any. Although the rules do not always expressly require any particular state of mind, when a state of mind is required, it is often “knowledge.” 
2. Definition. “Know” and related words denote “actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.” Rule 1.0(g). 
3. Burden and Standard of Proof / “Plausible” Inferences Are Not Clear and Convincing Evidence of Knowledge. The Supreme Court affirmed a referee’s conclusion that a respondent was not proven to have made knowingly false statements, even though OLPR’s inferences of dishonesty were “plausible.” In re Letourneau, 712 N.W.2d 183, 188 (Minn. 2006). The Court emphasized that OLPR bears the burden of proof, by clear and convincing evidence. 
4. “Recklessness” is not Knowledge. A Supreme Court referee found, regarding the state of mind of Varriano, the respondent attorney, “At a minimum Varriano’s actions equaled negligence, or possibly even gross negligence,” but concluded that Rule 8.4(c) was not violated. In re Varriano, 755 N.W.2d 282, 290 (Minn. 2008). OLPR appealed, arguing, “under certain circumstances an attorney’s conduct can be so careless or reckless that it must be deemed to be knowing and will constitute a violation.” However, the court found the referee’s conclusion was not clearly erroneous, because “Varriano did not in fact know or suspect the endorsement on the check was forged.” Id. 
5. Rule 8.4(c). This rule proscribes, “conduct involving dishonesty, fraud, deceit, or misrepresentation.” A misrepresentation may be intentional, reckless, careless, etc. Can Rule 8.4(c) be violated without a knowing deceit or falsehood? The cases are divided. These cases are discussed in the chapter on Rule 8.4(c), of the treatise, Minnesota Legal Ethics. 

F. “Informed Consent”—Wernz Blog

1. “Informed Consent” is the standard used in the MRPC for what is often called “waiver,” especially regarding conflicts of interest. “Informed consent” is defined in Rule 1.0(f). Comments 6 and 7 to Rule 1.0 provide very important guidance to application of the informed consent standard. 
2. “Informed consent” is used most importantly in relation to conflicts of interest. However, informed consent is also required when limiting the scope of representation. (Rule 1.2(c)). Informed consent is also one way in which disclosure of confidential information is authorized. (Rule 1.6(b)(1)). 
3. An OLPR dismissal of a complaint provided two important guides to understanding informed consent. First, “Although informed consent must be confirmed in writing, it is not required that all of the information communicated from the lawyer to the client appear in that writing. Rule 1.0(b).” Second, “[T]he requirements of informed consent can vary according to the sophistication of the person from whom consent is being sought, and according to what is already known by that person. Comment 6, Rule 1.0.” William J. Wernz, Minnesota Ethics blog (October 2011).  

IV. RESPONDING WITH QUALIFIED ADMISSIONS—“IMPERFECT BUT NOT UNETHICAL”

A. “Mistakes,” “Best Practices Failures,” and “Imperfections.” Few lawyers turn in “A” performances on every file. Where a lawyer fails to meet the lawyer’s own standards, a candid but qualified recognition will often be best. An admission can take several forms, e.g. recognizing failure to meet “best practices,” acknowledging inadvertent “mistake,” or admitting “imperfection”—all without admitting a rule violation.

B. Benefits of Limited Admissions. When a lawyer denies or avoids obvious imperfections, the subtext may be that discipline is needed to get the lawyer’s attention. Conversely, carefully crafted, but limited, admissions will produce benefits. First, a professional benefit—the lawyer can renew a commitment, not just to meeting the minimal requirements of the MRPC, but to professional excellence. Second, a disciplinary benefit—a lawyer who “gets it” may appear to those who enforce the MRPC not to be in need of discipline. A lawyer who has implemented new and better procedures, to avoid repetition of a chronic problem, may appear not to need probation.

C. “Inadequate But Not Unethical”—Malpractice and Discipline. OLPR’s online brochure, for persons considering whether to file an ethics complaint, states, “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.” (emphasis in original) The brochure carries forward a policy adopted decades ago, “[C]omplaints that principally involve an isolated allegation of malpractice are often summarily dismissed, without prejudice.” William J. Wernz, Summary Dismissal Guidelines, BENCH & B. OF MINN., May/June 1987, at 13, 13 (emphasis added). Dismissal of a poor performance complaint is not mandated, but it may well be suggested, by OLPR’s position, “Most . . .inadequate performance matters are not handled by [OLPR].”

D. Restatement of OLPR Position. OLPR has restated its position, “[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.” Martin A. Cole, When Malpractice is an Ethics Issue, BENCH & B. OF MINN., Dec. 2002, at 10. The article referred to discipline in circumstances that a respondent may be able to distinguish from her own - 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.

E. When Does a Mistake Not Violate the Rules? Charles Lundberg's guest post to this blog on October 3, 2011, cited above, provides two very instructive examples of how mistakes that arguably violated a rule (Rule 1.1, “Competence”) did not result in a finding of rule violation nor in discipline.

F. OLPR and LPRB Responses. OLPR apparently believed that the two dismissals of the admonitions described by Mr. Lundberg were based on confused standards. In two articles, OLPR inveighed against respondents’ claims of “mere malpractice” or “yelling fee dispute.” Martin A. Cole, Summary of Admonitions, BENCH & B. OF MINN., Feb. 2011, at 12. Martin A. Cole, Fee Disputes, BENCH & B. OF MINN., Mar. 2011, at 14. OLPR’s basic point is sound and logical - just because a complaint may be dismissed as a mere claim of malpractice or a fee dispute, does not mean that all such claims, including those involving serious or repetitive violations, must be dismissed. However, OLPR went too far. OLPR proposed that LPRB adopt policies that would have required Board Panels to acknowledge that a claim of mere malpractice is not a defense to allegations of rule violation and would have required Panels to determine whether evidence supported such allegations. LPRB wisely declined to adopt the policies.

V. ADMITTING RULE VIOLATION, CONTESTING DISCIPLINE
A. No Denying. In some cases, the facts are plain and the respondent has clearly violated a rule. When that it so, respondent should admit the violation. A private discipline, in the form of an admonition, is issued for rule violations that are “isolated and nonserious.” Rule 8(d)(2), RLPR. However, some isolated and nonserious rule violations do not result in any discipline.

B. Denying, ut Hedging. In some cases, respondent has a weak defense to allegation of rule violation. In these cases, respondent may deny the violation, but should also argue that even if a violation is found, discipline is neither required nor appropriate.

C. All the Circumstances. Whether discipline is to be imposed for a rule violation depends on all the circumstances. “[T]he rules presuppose that whether discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.” SCOPE 19. OLPR and the Minnesota Supreme Court have often cited various paragraphs of the SCOPE section of the MRPC. See, e.g., L&H Airco, Inc. v. Rapistan Corp., 446 N.W.2d 372, 380 (Minn. 1989); In re Proposed Petition to Recall Mike Hatch, 628 N.W. 2d 125, 128 (Minn. 2001).

D. Isolated and Nonserious Misconduct “May” Result in Discipline. “[I]f the Director concludes that a lawyer’s conduct was unprofessional but of an isolated and non-serious nature, the Director may issue an admonition.” Rule 8(d)(2), RLPR. As in the MRPC, so too in the RLPR—rules that use “may” are “permissive and define areas under the rules in which the lawyer has discretion to exercise professional judgment.” MRPC, Scope [14]. For minor or technical rule violations, OLPR has discretion to dismiss or admonish.

E. OLPR Does Not Discipline Every Violation. Following the above standards, OLPR does not discipline every rule violation. OLPR 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.” Minnesota Legal Ethics, May 2012 blog.

F. In Overdraft Notice Cases, OLPR Does Not Discipline for “Slight” (or Some More Than Slight) Violations. OLPR treats its trust account overdraft notice program as an opportunity to educate lawyers on proper trust account practices. Lawyers whose “slight” trust account books and records violations come to OLPR’s attention through this program usually are not even subject to investigation, let alone discipline. Patrick R. Burns, Oh No! The Trust Account is Overdrawn. Time to Panic?, MINN. LAW., Aug. 6, 2012 at 10. In one case, involving what appear to be more than “slight” problems, OLPR discovered that a lawyer, Varriano, “was using his trust account to deposit his own funds and to pay business and personal expenses. The Director closed the investigation once he was reassured that Varriano had ceased these improper uses of the account, and he instructed Varriano not to use the account improperly again.” In re Varriano, 755. N.W.2d 282, 286 (Minn. 2008). Varriano’s violations did not become the subject of discipline until he persisted in, and exacerbated, his misconduct.

G. Discipline Is Sometimes Imposed for “Technical” Rule Violations. In some cases, OLPR issues disciplines for technical rule violations. Two examples will illustrate.

1. A lawyer representing an incarcerated defendant put $1,000 of his own funds in the client’s jail spending account, without expecting repayment. The lawyer was admonished, for violating Rule 1.8(e), which prohibits most forms of “financial assistance” to a client in litigation matters. OLPR explained, “The attorney’s actions appeared well-intentioned, but nevertheless violated the rule.” Martin A. Cole, Summary of Admonitions, BENCH & B. OF MINN., Feb. 2012. The policy purpose against giving gifts in these circumstances is not stated and not apparent. The Rule’s main policy purpose—limiting a lawyer’s financial stake in litigation—was not served by the admonition. In the author’s judgment, an appeal of this admonition, if made by a lawyer without a disciplinary record, might well have succeeded. 
2. OLPR has reminded lawyers, “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. In support of such disciplines, OLPR cites In re M.D.K., 534 N.W.2d 271, 271 (Minn. 1995) (stating that a rule violation “however technical” is different from “no violation and thus no discipline at all.”) 

VI. RESPONDING WITH A CHALLENGE

A. Rule 8.1(b) Requires That an Attorney or Bar Applicant “Respond” to “A Lawful Demand.” If a lawyer responds to OLPR’s request by stating—promptly, in good faith, and for a substantial purpose other than delay—that OLPR’s request is unreasonable or disproportionate, the lawyer would not, in the author’s opinion, violate Rule 8.1(b). See also Rule 25(b), RLPR. The propriety of OLPR’s request may be determined by the Ramsey County District Court. Rule 25(a), RLPR. Either the lawyer or OLPR may seek judicial determination. Whose burden is it to make the motion? Rule 25 does not say. In one prominent case, OLPR made 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). This case is discussed in Patrick R. Burns, Cooperation in Discipline Proceedings, MINN. LAW., Oct. 2, 2006.