This is the third post in a series on dealing with and defending ethics complaints against lawyers.
In July, I discussed responding to complaints that may well not be meritorious. It also provided abbreviations that are used here.
In the September post, I discussed responding to complaints that may have some merit.
Selected Topics. This post discusses a few situations in which the respondent attorney may benefit from going on the offensive. The “offensive” means taking initiative, not
—except in unusual circumstances
—attacking.
Future Discussion. The topics of responding to and defending ethics complaints require more space for discussion than these posts allow. I will post one or two more entries on these topics. I will then begin work on a booklet on the subject, for future online posting.
I. GOING ON THE OFFENSIVE—CAUTIOUSLY
A. Offense. A lawyer who is accused of unethical conduct may wish to turn the tables, by going on the offensive. Some offensive moves are non-controversial, e.g., seeking discovery where allowed.
B. Offensiveness. As the Court has noted in disciplining a lawyer who claimed merely to be zealous and aggressive: “To be vigorous, however, does not mean to be disruptively argumentative; to be aggressive is not a license to ignore the rules of evidence and decorum; and to be zealous is not to be uncivil.”
In re Williams, 414 N.W.2d 394, 397 (Minn. 1987). Offensive moves that involve attacks on OLPR rarely advance the respondent’s cause and may cause harm. A tribunal may believe a lawyer lacks remorse or even recognition, and needs discipline, where the lawyer attacks others, rather than deal with his own shortcomings. This post will not discuss the many cases in which lawyers have harmed themselves by ill-conceived attacks.
See, e.g.,
In re Ulanowski, 800 N.W.2d 785, 802 (Minn. 2011) (Attempts to remove the assigned OLPR Assistant Director and other obstructive acts “do not indicate a good faith effort to comply with the Director's requests for information”). Where affirmative action is advisable, courtesy, caution and limitation should be the watchwords.
C. Example. A lawyer (“N.P.”) made numerous procedural and substantive attacks on OLPR, its charges and the discipline rules themselves. N.P.’s petitions sought dismissal of charges, limits on OLPR, and other relief. The Court’s rationales for dismissal should foreclose other, similar attacks.
In re N.P., 361 N.W.2d 386, 392-3 (Minn. 1985).
D. Rule 25 Challenges.
- Prompt, Good Faith Challenge. Rule 8.1(b) RPC requires a lawyer to “respond” to “a lawful demand” for information. If a lawyer responds to OLPR’s request by stating—promptly and for a substantial purpose other than delay—that OLPR’s request is unreasonable or disproportionate, the lawyer will act in good faith and without violating either Rule 8.1(b), RPC or Rule 25, RLPR. In re N.P., 361 N.W.2d at 394. 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 make a Rule 25 motion. In one prominent case, OLPR made the motion. Panel Case No. 20783, 720 N.W.2d 807, 810 (Minn. 2006); Patrick R. Burns, Cooperation in Discipline Proceedings, MINN. LAW., Oct. 2, 2006.
- Example. An ethics complaint was filed by the husband, against the wife’s lawyer, in an ongoing matter. OLPR requested the file of the wife’s lawyer. An Assistant Director would not agree to any limits on production. The Assistant did not seem to understand that complying with OLPR’s request for production of the lawyer’s file could result in waiver of attorney-client privilege. The adverse party could cite the waiver as a basis for seeking production of the file in civil proceedings. After respondent’s counsel raised the possibility of filing a Rule 25 motion, OLPR agreed to a limited response that did not entail privilege waiver.
E. Obtaining OLPR’s File. A lawyer under investigation should always request OLPR’s file. Rule 20(a)(4), RLPR. The request should normally be made after the District Ethics Committee report, if any. Although OLPR does not produce work product, OLPR produces interview notes.
F. Discovery. If OLPR issues a private admonition, the respondent attorney may take depositions. Rule 9(d), RLPR. In public discipline proceedings, the Rules of Civil Procedure apply, including discovery rules. Rule 14(b), RLPR.
II. FILE AGING
A. Promptness is of “Primary Importance.” In 1986 or 1987, in response to OLPR’s serious file aging problem, the Supreme Court adopted a rule, “It is of primary importance. . .that cases of lawyers’ alleged. . .unprofessional conduct be promptly investigated and disposed of with fairness and justice . . . .” Rule 2, RLPR.
B. Problem. OLPR has, however, a serious problem with not disposing of complaints promptly. In 2008, a Supreme Court committee noted such delay as OLPR’s only serious shortcoming. Since 2008, the problem has become much worse. The 2015 OLPR/LPRB Annual Report states a benchmark of 100 files, for year-old files, but reports an actual range of 190-230 for such files.
C. Consequence of OLPR Delay. Delay, without prejudice, is not a basis for dismissing a disciplinary case.
In re N.P., 361 N.W.2d 386, 392-3 (Minn. 1985). On the other hand, delay has been regarded as a “procedural irregularity,” for which account may be taken in some case dispositions.
In re Grigsby, 815 N.W.2d 836, 846 (Minn. 2012).
D. Comparative Delay. Delay can be the basis for argument. If OLPR charges lack of diligence, but the attorney’s delay is exceeded by OLPR’s delay, arguments can be made, to OLPR, and to a tribunal. Even where a diligence violation is not charged, respondent can argue that discipline is not needed, because he has not committed any violations for some years and the purpose of discipline is future-oriented.
E. Example. A respondent lawyer appealed an admonition, issued for alleged diligence and communication violations. Respondent’s counsel advised the lawyer to wait for OLPR’s response to the appeal. A year passed with little action by OLPR. OLPR arranged a settlement conference. Counsel pointed out that Rule 3.2 MRPC requires the OLPR lawyer to “make reasonable efforts to expedite litigation. . .”, but OLPR had done little for over a year. Counsel also pointed out that Rule 2 RLPR requires prompt resolution, but OLPR’s periods of inaction on the file greatly exceeded the lawyer’s inactivity. OLPR was advised that its file would be offered as an exhibit if the matter proceeded to hearing. Soon after the conference, the admonition was dismissed.
III. OLPR OR LPRB MISTAKE, OR VIOLATION OF RULE OR LAW
A. General Limitations. Sometimes OLPR arguably has misinterpreted the law, made a factual mistake, or contended for discipline that is not warranted. Such miscues will only rarely provide a basis in law for relief by motion, but they may provide some argumentative advantage, if properly presented.
B. No Harm, No Foul—Due Process. Attorneys who are subject to discipline proceedings have procedural due process protection.
In re Ruffalo, 390 U.S. 544 (U.S. 1968). However, if OLPR or LPRB has committed a merely technical violation of a rule, without demonstrable prejudice, a motion seeking relief, based on due process, will likely be denied.
In re N.P., 361 N.W.2d 386, 395 (Minn. 1985). Similarly, in a recent judicial discipline case, the Court rejected numerous due process attacks on procedures followed by the Board on Judicial Standards, because the attacks were not supported by the facts, or because there was no prejudice shown, or both.
In re Pendleton, 2015 WL 5949736. Because discipline rules adopted by the Court provide greater procedural rights than due process requires, a failure to comply with rules will likely not violate due process.
In re Karasov, 805 N.W.2d 255, 271 (Minn. 2011) (Citations to similar holdings omitted).
C. Harm, Foul, Reversal—Fairness. In reviewing a complainant appeal, a Board member violated a rule, by not giving an explanation for her decision that public discipline should be sought. Rule 8(e), RLPR. On the basis that this error produced fundamental unfairness, the Court reinstated a private probation that preceded the appeal, and vacated public proceedings.
In re Q.F.C., 728 N.W.2d 72 (Minn. 2007). Because “fairness” is “of primary importance” in discipline proceedings, complaints of OLPR’s unfairness should be made with citation to the rule, rather than to standards of procedural due process. Rule 2, RLPR.
D. OLPR Statutory Violation, Partial Dismissal. OLPR reviewed an appellate court file, to confirm reports that a lawyer, Terrazas, had committed misconduct in a child custody matter. OLPR charged Terrazas with misconduct in the custody matter and other matters. However, OLPR failed to follow statutory procedures for access to the file. The Court stated, “The Director is charged with investigating attorney misconduct and unethical behavior. Necessarily included in such responsibility is a high standard of conduct, including strictly complying with statutes regulating the inspection of privileged court documents. The Director acted directly contrary to [Minn. Stat.] section 257.70 when it inspected not only the appellate file, but also the child custody trial court file, without obtaining the consent of the court or of both interested parties. As the referee concluded, the "legislature has seen fit to protect the privacy of paternity files from intrusion and to provide safeguards" relating to inspection. Therefore, the referee's conclusion that the Board violated the statute is not clearly erroneous and the charge of misconduct involving the civil litigation matter was properly dismissed.”
In re Terrazas, 581 N.W.2d 841, 845 (Minn. 1998). However, Terrazas’s successful attack on one issue provided no benefit on other issues. He was reprimanded and placed on probation.
E. Match Up Examples. Two examples show how a lawyer may benefit by pointing to OLPR mistakes.
- We All Make Factual Mistakes. An admonition was issued to a lawyer, accusing him of making one or two false statements. Through counsel, the lawyer conceded falsity, but said the problem was inattention, not deceit. Noticing that the admonition itself contained numerous small errors, counsel asked that OLPR admit, in a pre-hearing statement, each of its errors and acknowledge the actual facts. OLPR submitted a grudging response. Counsel offered the response as an exhibit, in support of the principle that we all make mistakes. The panel dismissed the admonition.
- We All Make Legal Mistakes. If a lawyer did not identify a client correctly, it could be pointed out that OLPR posted an article—which it still maintains on its website even after the error has been noted—claiming that a failure to identify the Personal Representative as the client in a decedent’s estate can result in discipline. Julie E. Bennett, You Do Not Represent the Estate, MINN. LAW., Sept. 7, 2009. However, OLPR itself and Minnesota appellate courts have sometimes identified the fiduciary entity as the client. See, e.g., Powell v. Anderson, 660 N.W.2d 107, 119 (Minn. 2003); In re Perry, 494 N.W.2d 290, 294–95 (Minn. 1992); In re Nelson, 470 N.W.2d 111, 112 (Minn. 1991).
F. Tone Matters. Where respondent’s counsel points out a prosecutorial shortcoming, the message should be communicated without personal attack or a harsh tone. In a character and fitness proceeding, the Board of Law Examiners initially denied the applicant’s admission, citing serious misconduct and also citing an applicant’s inaccurate statements. The misstatements were arguably ordinary human error. At hearing, in final argument, applicant’s counsel extolled the Board’s staff and counsel, for their professionalism, courtesy and all-around excellence. Citing the human propensity for imperfection, counsel then noted two major errors the Board had nonetheless made. The applicant was admitted. The argument would have been far less effective if it had been made as an attack on the competence of staff or counsel.