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Email slip-up breached confidentiality

An attorney has received a private admonition for disclosing confidential communications with a former client when he wrote in an email to an insurance adjuster, “I advised him that he already accepted [your settlement offer], there is no rescinding his acceptance.”

The OLPR argued that the “I advised” statement violated the very core of the attorney-client relationship.

The director of the Office of Lawyers Professional Responsibility initially determined that no discipline was warranted, but the aggrieved client pressed the matter and the private admonition resulted.

As so often happens in a variety of situations, the email evidence cinched the case.

Attorney Charles Lundberg, who represented the appellant, said in an email that this was a textbook case for the application of the principle that not all technical rule violations necessarily require discipline, and that where the violation was minor, very close to the line, and caused no harm, the law allows both the director and the court the discretion to determine that discipline is not warranted. “On these facts, I think most lawyers would agree with the Director’s initial determination that discipline was not warranted,” Lundberg said.

‘He’s been advised of all this’

The underlying case involved a claim for damages as a result of a motor vehicle accident.  The appellant limited his representation to negotiation of a settlement and refused to litigate the case.  The appellant sent a demand for $50,000 and received a counteroffer of $20,000.

Appellant claims that the client accepted the settlement but the client disputes that. The client told the attorney to file suit but the attorney told him that he had already accepted the settlement and if he reneged, the insurance company would likely move to enforce it. The client then fired him.

The next day the attorney sent an email to the adjuster with the “I advised” sentence in it and also telling the adjuster he would file a lien and he assumed the adjuster would sue to enforce it. “He’s been advised of all of this,” the attorney said.

The client filed an ethics complaint alleging the attorney forced him to accept the settlement and improperly filed a lien. The client did not raise the confidentiality issue.

Complicated history

The ethics matter has a complicated procedural history because Susan Humiston, director of the Office of Lawyers Professional Responsibility initially found no violation, contrary to the determination of a District Ethics Committee. The client appealed and a board member reviewed the matter and directed Humiston to issue a private admonition for violation of Rules 1.6 and 1.9. The appellant then asked for a panel review, which found a violation of Minn. R. Prof. Conduct 1.9(c)(2) (see sidebar) and recommended a private admonition. Appellant went to the Supreme Court arguing that he did not violate Rule 1.9 and that the board member and the panel had not adequately explained their decisions.

At the Supreme Court, the appellant conceded that he disclosed information relating to the representation and that it reveals details of appellant’s confidential discussions with his client. The court rejected his argument that it was an insignificant revelation and would not have any conceivable effect on the client’s claim.

“As we have determined, the rules protecting client confidences oblige a lawyer to ‘maintain all client confidences, significant or insignificant,’” the court said, citing Lennartson v. Anoka-Hennepin Indep. Sch. Dist. No. 11, a 2003 Supreme Court decision.

(Although as attorney William Wernz pointed out, Rule 1.6 (b) lists many scenarios, not applicable to this case, under which an attorney may reveal information relating to the representation of the client.)

The court went on to find that the misconduct in the case was isolated and nonserious. The adjuster already knew that the client had accepted the offer, so the only disclosure was that the appellant made those statements to the client. The cumulative weight of the misconduct is minimal because it involved a single email and there was minimal, if any, harm to the client.

“Because the only new information disclosed was that appellant had discussed these issues with the client, the insurance adjuster was not able to use the disclosure to the client’s disadvantage,” the court said.

Attorney Eric Cooperstein said that breaches of confidentiality tend to be brief comments such as found in this case, often where the attorney says just one thing too much. It’s also important to look at the context in which a statement is made, he said. An attorney may have implicit authority to say something in the course of a negotiation that would otherwise be confidential, he said.

“It is possible that there are small violations of the confidentiality rules with some frequency,” Cooperstein said.

 

RULE 1.9: DUTIES TO FORMER CLIENTS

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known; or  (2) reveal information relating to the representation except as these rules would permit or require with respect to a client.

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