Legal Ethics

It comes as no surprise that exact wording matters in lawyer discipline, as in the practice of law. Recent public disciplines illustrate this truism.

Really Bad Words – Bowdlerized. For easily-offended readers, Thomas Bowdler produced The Family Shakespeare, taking out all the bad words. The Director’s Office (OLPR) sometimes bowdlerizes, depriving the rest of us of knowledge of what words cross the line into harassment, in violation of Rule 8.4(g). A lawyer, Myers, was suspended for misconduct including harassing a prosecutor with words that OLPR alleged were “inappropriate,” “unprofessional,” and “lewd.” The prosecutor was allegedly “embarrassed” and “offended.” From these allegations, we cannot tell whether Myers was justly disciplined or the prosecutor was a sensitive soul. In re Myers, 864 N.W.2d 151 (Minn. 2015). 

Really Bad Words—Unexpurgated. Public discipline files may be reviewed at OLPR. A review discloses—no surprise—Myers richly deserved his discipline. Myers twice met with the same female prosecutor to negotiate cases. The first time he invited her to a party. He told her she would not be going home alone and she should bring a box of condoms. She let Myers know he was being offensive. At the second negotiation, the prosecutor made an offer to settle a case. Myers responded, “I’m sorry. I just can’t concentrate when talking to you because you have big tits and a nice ass.” For these words and offenses of different types, Myers was suspended for 60 days.

Religious Condemnations – How Not to Collect a Fee. Attempting to collect fees from former clients, Igbanugo wrote, “You will ultimately answer to God for your theft of my legal services.” He also wrote, “I am deeply disturbed by [former clients’] unholy efforts to steal my services without paying just compensation of which they were contractually bound.” The Supreme Court suspended Igbanugo and affirmed a violation of Rule 4.4, explaining, “We fail to see how Igbanugo’s statement, particularly the words “unholy” and “steal,” has a substantial purpose other than to embarrass, cause delay, or burden [former clients] Y.I. and I.A.” In re Igbanugo, 863 N.W.2d 751 (Minn. 2015).

Yelling and Screaming. Sometimes what matters is not what a lawyer says, but how she says it. “Torgerson argues that she merely spoke to court staff, which does not qualify as a “means . . . to embarrass, delay, or burden a third person.” Rule 4.4(a), MRPC. As a factual matter, Torgerson did not merely speak with court staff; rather, in the words of one court employee, she “yell[ed] and scream[ed]” at them.” In re Torgerson, 870 N.W.2d 602, 610 (Minn. 2015).

Begging a Scandalous Question. At deposition, Kurzman asked a court-appointed parenting consultant, “When you were accused of inappropriate contact with some of your clients, boys, at that time did you undergo a polygraph examination?” The witness denied ever being accused. At the discipline trial, Kurzman claimed that he remembered some such accusation, but he could not cite specifics. In suspending Kurzman for this and other offenses, the Court explained, "The referee also stated that, although Kurzman’s misconduct during M.S.’s deposition was “generally less serious and damaging than similar types of violations,” the question was nonetheless improper. We agree." In re Kurzman, 2015 WL 7566618 (Minn. Nov. 25, 2015).

Technically Bad Words I and II—“Nonrefundable Fee” and “and Associates.” Some words, once commonly used, are now forbidden by rule. Lawyers who keep using them are disciplined. “Nonrefundable fee” is forbidden by Rule 1.5(b)(3) and its use usually results in a private admonition. Martin A. Cole, Summary of Private Discipline, Bench & B. of Minn., March 2016. Lawyers Board Op. 20, based on Rule 7.1’s prohibition on misleading law firm names, forbids names, like “Theiler and Associates,” when there are no associates. In re Theiler, 2015 WL 9241809 (Minn. Dec. 8, 2015). Some lawyers, being publicly disciplined for other offenses, have counts added for using prohibited words. 

Technically Bad Words III—Fiduciary Entity as Client. Rule 4.3 requires a lawyer to dispel misunderstandings by unrepresented persons about the lawyer’s role. An OLPR article declares that in fiduciary representations the client is not the fiduciary entity, but rather the fiduciary. The article also suggests that a lawyer who identifies the fiduciary entity as the client may be disciplined under Rule 4.3. Julie E. Bennett, You do not Represent the Estate, Minn. Law., Sept. 7, 2009. Unfortunately, this thesis is not anchored in Minnesota law, which is unsettled on the subject. Also unfortunate, at least for OLPR’s prospects of imposing discipline, are OLPR’s own recent allegations that a lawyer “represented the estate” and was “attorney for the trust.” In re Kennedy, Petition for Disciplinary Action, File No. 15-1698 (Aug. 11, 2015).

OLPR Pleading I—“Derogatory.” A prosecutor, Scannell, was publicly disciplined, in part for making “derogatory” comments about defendants. However, Rule 3.6, which was found to be violated, does not prohibit “derogatory” comments or anything like them. Rule 3.6 forbids only those public statements that “will have a substantial likelihood of materially prejudicing a jury trial in a pending criminal matter.” The essential word “prejudice” does not appear in the disciplinary charges or findings. In re Scannell, 861 N.W.2d 678. See William J. Wernz, Quandaries and Quagmires: Discipline for Prosecutor’s ‘Derogatory’ Statements, Minn. Law., Feb. 4, 2016.

OLPR Pleading II—“Inappropriate” as a Rules Violation Allegation? As a defense expert on lawyer standards, I was once asked repeatedly by a cross-examiner, whether defendant’s conduct was “appropriate.” I explained there were standards for malpractice and for unprofessional conduct under the rules, but I could not answer the questions, because “appropriate” was not a recognized standard for lawyers. OLPR has alleged “inappropriate” speech in Myers (above) and in In re Kennedy, File No. A15-1698, Petition for Disciplinary Action (Minn. Oct. 16, 2015)

OLPR Pleading III—“Lack of Specificity” and “Seemingly Unintentional Ambiguity.” A lawyer, Goldstein, was disciplined for several infractions. The least of them was that, in trying to represent an extremely difficult client, Goldstein’s “lack of specificity” and his “seemingly unintentional ambiguity” caused the court to expend extra time and energy, in violation of 8.4(d). In re Goldstein, 2015 WL 9241817 (Dec. 8, 2015) (Petition for Disciplinary Action). Whether there is any precedent for public discipline for “seemingly unintentional ambiguity,” is unknown.

Words Really Matter—The Only Minnesota Supreme Court Discipline Divided 4-3 Over Whether There Should be Any Discipline. In re Kennedy, 864 N.W.2d 342 (Minn. 2015).

Kennedy Settlement Demand. S.P., a probation officer, was charged with the crime of having sex with B.W., while B.W. was on probation. A lawyer, Kennedy, represented B.W. in a threat to file a civil suit against S.P. Kennedy wrote three letters to S.P.’s defense counsel, demanding settlement of $300,000.

The Key Letter. One of Kennedy’s letters stated, “If [B.W.] can settle with [the defendant], he may decide to ask the prosecutor to dismiss, and he may decide to not testify against her. In that event, she would not be convicted and could acquire expungement.” S.P.’s lawyer shared the letters with the prosecutor and with OLPR. The letters were a factor in the prosecutor’s decision to offer a favorable plea bargain to S.P.

Kennedy’s Testimony. At the discipline trial, Kennedy testified that he meant to convey that, if a civil settlement was reached, B.W. “will essentially act more favorably for you as a witness in the criminal case.” Kennedy also claimed, somewhat inconsistently, that his offer was only that B.W. would ask the prosecutor to dismiss charges if there was a civil settlement.

Quid Pro Quo Finding Affirmed. A Supreme Court referee found the letters, “were intended to convey an offer from [Kennedy] that in exchange for a money payment from [the defendant], [B.W.] would decide not to testify against [the defendant] in the criminal case.” Four justices affirmed the finding as well as the conclusion that Kennedy’s conduct was “prejudicial to the administration of justice,” in violation of Rule 8.4(d).

Dissent: Kennedy Was Only “Tip-Toeing Toward the Ethical Line.” The dissent carefully analyzed Kennedy’s statements and concluded, “While the tone of Kennedy’s letters is problematic at best and could be read as tip-toeing toward the ethical line, Kennedy did not clearly and convincingly cross the line.” Nonetheless, by 4-3 vote, Kennedy was suspended for 30 days.

Additional Kennedy Disciplines. Although the Court found it difficult to agree on whether Kennedy’s letters crossed the line, crossing the ethics line into public discipline was something Kennedy did three times. In 2013, Kennedy was publicly reprimanded and placed on two years’ probation. Kennedy’s offers for B.W. occurred while Kennedy was on probation. In 2015, while on suspension, Kennedy continued to practice law. He was given another 30 day suspension. In re Kennedy, 873 N.W.2d 133 (Minn. 2016).