This month’s blog continues discussion of how to deal with and defend ethics complaints and charges. This month’s topic is handling appeals of admonitions.
OLPR issues admonitions for “isolated and non-serious” violations of the MRPC. Admonitions are governed by Rules 8 and 9, RLPR. Admonitions are private and are the lowest form of discipline. OLPR issues approximately 140 admonitions annually, about ten percent of all dispositions. The most common subjects of admonitions by far are failures of diligence and of reasonable communication. OLPR publishes an annual column in Bench & Bar, describing recent admonitions and private probations.
When OLPR issues an admonition, a lawyer has 14 days to appeal. The appeal should identify disputed allegations and omitted facts. OLPR reviews the appeal and considers whether to dismiss or amend the admonition or, instead, to proceed to hearing. Sometimes a settlement will be reached, with OLPR modifying the admonition. In most appeals, OLPR will proceed to hearing, before a three-member Panel, chosen in blind rotation from Lawyers Board members. Most panels consist of two lawyers and one public member, but in some cases there will be two public members and one lawyer. Brief biographies of Board members are on the OLPR website.
A “Panel Manual” is posted on OLPR’s website. The Manual is a guide to Board panel proceedings. Because the Manual was drafted by OLPR, a respondent attorney should also consult other sources that may better reflect a defense perspective. The chapter of the Manual that deals with admonition appeals should be read in conjunction with this blog. Manual at 36-40.
The Lawyers Board Panel Manual emphasizes “consistency” as a goal, following from the requirement that “fairness” be of “primary importance” in in discipline proceedings. Manual, at 1; Rule 2, RLPR. Respondents and their counsel may consult the chapters of the Minnesota Legal Ethics treatise relating to the rules charged in the admonition, to learn of precedents.
OLPR’s website may provide useful materials. For example, the website “Complaint Brochure” includes statements meant to discourage certain types of complaints. Where an admonition alleges inadequate representation, rather than unethical conduct, the Brochure provides a statement that may be useful to the defense, “Most malpractice and inadequate performance matters are not handled by the Office of Lawyers Professional Responsibility.” (Emphasis in original.) Another possibly-useful Brochure statement is, “Most complaints that involve behavior of an attorney outside the practice of law, such as use of profanity, landlord-tenant disputes and debtor-creditor matters, are not handled by [OLPR].” (Emphasis in original.)
To proceed to hearing, OLPR issues “Charges,” which attach the admonition under appeal. Respondent must serve an answer. It may be helpful to append to the answer a memorandum, regarding facts and law. The answer and memo give respondent’s side of the case to the panel before the hearing. OLPR cannot effectively object to the memo, because the admonition itself usually attaches a memo. OLPR may instead agree that both parties may submit pre-hearing memoranda.
The purpose of the pre-hearing meeting is to pre-package the hearing, by clarifying which allegations are disputed, identifying and marking exhibits, identifying witnesses, etc. Respondents should take these responsibilities seriously. Among other things, failure to do so suggests to the Panel that respondent does not play by the rules. Within ten days after the pre-hearing meeting, either party may conduct discovery, usually by deposition. Rule 9(c) and (d), RLPR. Often, some or all of the tasks identified for the pre-hearing meeting are performed informally, by e-mail and correspondence, so that the pre-hearing meeting is abbreviated or unnecessary.
In my experience, Board Panels conduct fair hearings and render independent determinations.
Witnesses must be authorized by the Panel Chair. Fact witnesses are usually authorized. Witnesses are subject to cross-examination by the parties, and Panel members often question witnesses. Affidavits and deposition transcripts will be received into evidence, but OLPR may have difficulty in meeting the clear and convincing evidence standard through such evidence.
Panel Chair witness authorization is not needed for the respondent or for, “A complainant who affirmatively desires to attend.” Rule 9(h), RLPR. Obviously, respondent cannot discourage complainant or bargain for complainant not to testify. However, in some cases complainant may be mollified by a respondent who has apologized, or who has unconditionally refunded part of a fee on demand, or has otherwise made amends. At hearing, the wind may go out of an admonition’s sails, if the complainant does not care enough to attend.
If complainant does testify, cross-examination can be vigorous without being brutal. Panels will not take kindly to lawyers who try to destroy former clients.
Because OLPR has the burden of proof, and respondent usually is the source of most relevant evidence, OLPR often calls respondent for adverse testimony. Respondent may be OLPR’s only witness.
The respondent’s testimony and demeanor should portray a full human being, not just a generic respondent. Even though respondent’s background, military service, pro bono efforts, etc. are not, strictly speaking, relevant to whether he neglected a file, brief testimony on such topics should be offered. Character witnesses will, however, usually not be authorized.
Often the respondent does best to acknowledge imperfection, but deny rule violation. Showing that the lawyer “gets it,” and the conduct will not be repeated, may persuade the Panel that discipline is not needed. For example, if the lawyer missed a court appearance, installing a new docket system before the Panel hearing may be very useful.
Calling an expert witness is unusual, but such testimony should be considered in some cases. For example, when OLPR alleges violation of a rule that includes “reasonable,” expert testimony may be appropriate or even necessary. “Reasonable” is defined as “the conduct of a reasonably prudent and competent lawyer.” Rule 1.0(i), MRPC. In one admonition appeal, OLPR’s failure to offer expert testimony, regarding whether it was unreasonable for a lawyer not to read an entire file before a hearing, was a basis for the Panel’s reversal of the admonition. Charles E. Lundberg, When Does a Mistake Violate Rule 1.1 (Competence) or Similar Rules?, Minn. Legal Ethics Blog (Oct. 3, 2011).
In closing, OLPR will often argue that, because a rule violation “however technical” is different from “no violation and thus no discipline at all,” an admonition is warranted. In re MDK, 534 N.W.2d 271, 272 (Minn. 1995). Respondent will often argue that his conduct is imperfect, or failed to meet a best practices standard, but is not in violation of a rule. Respondent may be able to cite one of OLPR’s annual admonition summaries. For example, a respondent who has neglected a file or failed to communicate for only a few months can cite summaries of admonitions which include periods of several months with no activity or no communication. See William J. Wernz, Minnesota Legal Ethics, Ch. 1.3, III. B. (5th ed., 2015), http://minnesotalawyering.com/.
Practical experience and practical effects sometimes can be effectively argued. For example, Rule 4.3(b) requires a lawyer who is dealing with an unrepresented person to disclose that the client’s interests are adverse to the person’s interests, where that is so. OLPR issued an admonition charging a Rule 4.3(b) violation by a lawyer who began deposition of a non-party witness by identifying the lawyer’s client, but not disclosing adversity. I argued, successfully, to a panel which included two trial lawyers, that hundreds or thousands of lawyers would be subject to discipline if OLPR’s theory were approved. Panel File 97-2.
OLPR has the burden of proving violations by clear and convincing evidence. Rule 9(i)(1)(ii). Respondent can assert that the court has held that application of the rules to facts also must be clear for discipline to be imposed. 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.”).
Panels usually make and render their decisions on admonitions while the parties wait, but occasionally there are issues of law that may require briefing.
The Panel may reverse or affirm the admonition, or instruct OLPR to file a public petition for discipline. Rule 9(i)(1)(ii). The public petition option has been used only rarely, for example, when a respondent behaves very badly at hearing. One lawyer was so obstreperous at an admonition appeal, and in subsequent proceedings, that he was suspended for conduct that was originally not serious (failure to pay a small sanction and a law office bill). In re Pokorny, 453 N.W.2d 345, 347 (Minn. 1990). Another case in which an admonition appeal was followed by public discipline is In re Kalla, 811 N.W.2d 576 (Minn. 2012).
If a public petition is authorized, the odds of putting the genie back in the bottle – by private discipline – are very low. However, this result has been achieved several times. On July 27, 2012, in a public matter, No. A11-1834, the Minnesota Supreme Court ordered a private admonition for “Attorney 6244.” The court also ordered that the Director’s file “remain” confidential, although that file had not been confidential from the time of filing the petition to the date of the court’s order. Other examples of public matters that were made private are found in File No. A08-1643 (Minn. 2009) (Minor misconduct proven, intentional false statement not proven.); In re W.L.T., No. C9-93-1616 (Minn. June 2, 1994) (Charges proven but not serious enough to warrant public discipline – respondent drafted a client’s will to his benefit, but they had a family-like relationship and the benefit was very small.); In re D.J.H., No. 92-173 (Minn. May 12, 1992) (Young lawyer attempted to conceal tardiness in filing a brief from the client, including photocopying a court order but deleting a footnote.)