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Quandaries and Quagmires: Dealing with ethics complaints – a new guide

William J. Wernz//June 27, 2017

Quandaries and Quagmires: Dealing with ethics complaints – a new guide

William J. Wernz//June 27, 2017

Mr. Nelson was the first lawyer against whom I brought unprofessional conduct charges, in 1982, when I was with the Office of Lawyers Professional Responsibility (OLPR). As the hearing before a lawyers board panel was about to start, Nelson asked, “Bill, do I ask myself questions from here (counsel table) and then go there (witness box) to answer?” I explained that he could ask and answer from the witness box and that I would not object to narrative testimony.

I thought, “Being pro se in a discipline case must be terrifying. Respondent attorneys really need help.” Respondents facing a hearing should, of course, have retained expert counsel when they received OLPR’s Notice of Investigation. However, some respondents cannot afford counsel, some complaints may not warrant the expense of counsel, and some respondents find themselves pro se and nearly defenseless because they lack good judgment.

OLPR investigates about 800 complaints a year. About 200 disciplines are issued annually. For many of the respondent attorneys, the professional responsibility system is terra incognita. A new form of assistance has arrived.

The MSBA has posted my new guide, Dealing With and Defending Ethics Complaints. I hope Minnesota lawyers will find it useful in dealing with ethics complaints, as counsel or as respondent. The guide is a smaller companion to my treatise on substantive law, Minnesota Legal Ethics. Both books are free, online, and word-searchable. They are updated in regular articles and in annual new editions.

Dealing With distills my 36 years of experience in dealing with ethics complaints, at OLPR and in private practice. The guide begins with the basics: the who, what, how and why of the professional responsibility system. It describes how the discipline system works and who the players are.

Dealing With identifies issues in evaluating and dealing with complaints. Even where there appears to be no rule violation, has there been a shortcoming as to best practices? If so, should amends be made to the client and should imperfection (but not rule violation) be acknowledged? Is remediation in order, e.g. a better docket system, or better trust account books, or some form of counseling? If so, can the remediation be undertaken or even completed before responding to the Notice of Investigation?

Where there appears to be a rule violation, the guide offers criteria for determining how serious the violation is — dismissal, private discipline, public discipline, loss of licensure, criminal violation. The guide cites authorities for dismissing a complaint even where a rule violation has been found. A respondent must adopt an appropriate basic posture — denial, or acknowledgment and regret, or confession and deep remorse.

Complaints by adverse parties present special challenges. Will disclosures to a District Ethics Committee or to OLPR waive the attorney-client privilege? If that danger is present, will the DEC or OLPR make accommodations? If not, should a motion be made in Ramsey County District Court, per Rule 25 RLPR, to determine whether the investigative request is unreasonable? The guide provides criteria for answering these questions.

Dealing With identifies hard-to-find resources. For example, OLPR may cite published cases as precedent for a certain discipline. Finding countervailing private cases is difficult because they are private. The guide uses several methods to identify and provide private cases. Methods include harvesting from OLPR’s Bench & Bar annual summaries of private disciplines, from OLPR’s online “Complaints and Investigations” brochure, and from the “Discipline History” section of public Petitions for Disciplinary Action.

One example of a defense strategy arises from allegations that respondent did not prepare reasonably, or did not communicate reasonably, or otherwise failed to act reasonably. “Reasonable,” “reasonably,” and the like appear over 260 times in the Rules. “Reasonable” denotes “the conduct of a reasonably prudent and competent lawyer.” Rule 1.0(i). The guide notes, and explains the importance of, OLPR’s statement that this definition “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. Determination of what is reasonable for discipline purposes may involve evidence of lawyers’ common practices and perspectives.

The guide explains when respondent may argue that, by failing to call an expert, OLPR failed to carry its burden to prove, by clear and convincing evidence, what was “reasonable” in the circumstances. The guide cites a case in which a lawyers board panel reversed an admonition, in part because OLPR failed to provide such proof.

The guide also provides detailed analysis and suggestions when a “knowing” violation is alleged. “Know” and its derivatives appear 174 times in the Rules. Proof of a knowing violation usually involves inference from circumstances. The guide cites comments to Rules 1.13, 3.3, and 4.2, that indicate that such inferences are warranted only when the inference is “obvious.” Thus, if OLPR alleges that respondent knowingly violated a court rule, respondent may offer proof that the relevant law, or application of law to fact, is murky, rather than obvious.

Using these resources regarding what is “reasonable,” and what is “obvious,” a respondent attorney may wish to call an expert, to testify to a reasonable lawyer’s perspective and state of mind, and to the conduct and understandings of competent and reasonable lawyers. If OLPR opposes expert testimony, the guide cites several cases in which OLPR itself called experts. In one case, OLPR’s expert testified as to a proper “understanding of the rules and the standards of practice in the Twin Cities legal community, the nature of prejudice to a client and an attorney’s duties as an officer of the court.” Matter of Panel File 96-35, 570 N.W.2d 499 (Minn. 1997). The guide also cites a 2016 case, In re Olson, in which a referee denied OLPR’s motion to exclude respondent’s expert testimony.

Dealing With and Defending Complaints also provides suggestions for respondent’s pleadings. For example, the form of an Answer to disciplinary charges is not prescribed by rule. To put respondent’s version of events before the tribunal at the outset of proceedings, respondent may wish to append exhibits or even a memorandum to an Answer. The guide provides sample interrogatories to OLPR, for use in referee proceedings.

In addition to nuts-and-bolts guidance, the new guide offers what I hope will be some wisdom, born of experience. The chapter on reinstatement after suspension or disbarment includes my reflections from representing several clients who, notwithstanding felony convictions, were able to obtain or reinstate law licenses. Lawyers facing hearings for reinstatement (or admission in character and fitness hearings) must prepare by taking to heart the requirement to demonstrate “moral change.” Reinstatement involves many technical requirements, but by far the most daunting challenge is actually to achieve moral change. The guide cites cases in which reinstatement petitions were effectively supported by character witnesses, as well as cases in which character witnesses were badly prepared to support petitions.

Dealing With does not replace existing resources. A lawyer who is the subject of a complaint should consult with a trusted colleague. If the complaint appears problematic or serious, expert counsel should be retained, at least for consultation, or full representation. Respondent’s malpractice insurer should be notified. Some insurers pay at least a portion of discipline defense counsel’s fees.

The guide may be used in tandem with resources on the lawyers board website. For example, the board posts a “Panel Manual,” which explains procedures before board hearing panels. The manual is generally objective, but it is not intended to provide a respondent attorney’s perspective. Thus, the manual states, accurately, that the determination of whether there is probable cause to believe public discipline is warranted involves citations to precedent and basic standards, such as whether the respondent was dishonest. The manual does not, however, address these issues from the respondent’s perspective. The guide provides this perspective, citing cases in which private discipline was imposed for dishonesty offenses.

Respondents like Mr. Nelson need all the help they can get. Ordinary lawyers, facing ordinary ethics complaints, also often need help. I hope that Dealing With and Defending Ethics Complaints will be useful to Minnesota lawyers.

William Wernz is the author of the online treatise, “Minnesota Legal Ethics.” He is a member of the Board on Judicial Standards. He has served as Dorsey & Whitney’s ethics partner and as Director of the Office of Lawyers Professional Responsibility.

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