Does your law office have in place policies and training programs for implementing the main ethics rules? Does the training also include knowledge management as to the law governing your firm’s practice? Do the forms your office uses comply with current rules? These questions are timely, and indeed urgent, because of two recent discipline cases and increasing enforcement by the Office of Lawyers Professional Responsibility (OLPR).
The first case is the Sept. 11, 2020, disbarment of Thomas Pertler, former Carlton County Attorney.1 Pertler intentionally and repeatedly failed to disclose to criminal defendants that a material witness in the defendants’ cases, police officer Scott Beckman, had been disciplined for serious misconduct. Constitutional law (U.S. v. Brady, Giglio v. U.S.), criminal procedural rules, and the Rules of Professional Conduct all required disclosure. Pertler admitted all disciplinary allegations against him and consented to disbarment.
More important for Minnesota lawyers than Pertler’s non-disclosures were two additional misconduct findings. First, Pertler violated Rule 5.1(a) by failing to adopt a Brady policy, for disclosing exculpatory information. Rule 5.1(a) provides, “A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.”
Second, Pertler violated Rule 5.1(b) by failing to train his assistants in implementing a Brady policy. Rule 5.1(b) provides, “A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer’s conduct conforms to the Rules of Professional Conduct.” Pertler’s Rule 5.1 violations were inexcusable because the County Attorneys Association provides Brady/Giglio policies and training, and an assistant provided Pertler with a proposed policy, but Pertler did not adopt it. Rule 5.1(a) and (b) apply equally to government law offices, corporate in-house counsel, and private law firms.
A second discipline case involving alleged Rule 5.1 violations, knowledge and training in governing legal principles is pending before a Supreme Court referee. The disciplinary petition alleges, “Respondent’s failure, as sole shareholder and managing attorney of the firm, to ensure there were measures in place to ensure he and members of his firm were kept apprised of widely publicized and pertinent amendments to the MRCP which directly impacted the viability of his clients’ cases violated Rule 5.1(a), MRPC.” In the underlying civil case, a client’s case was dismissed, allegedly because the firm—through ignorance of a 2013 amendment to Rule 5.04(a), R. Civ. Proc.—failed to file a case within one year of service.2 OLPR’s position is that Rule 5.1 requires knowledge management; when there are important changes in the law governing cases handled by a firm, the managing partner or a delegate must ensure that all lawyers in the firm are informed.
In addition to Rule 5.1, Rule 5.3 requires partners to reasonably ensure that the conduct of non-lawyer assistants (both employees and contractors) comports with ethics rules. For example, assistants must understand that they cannot use dishonest means of obtaining evidence and they cannot communicate with represented parties.
Rules 5.1 and 5.3 assign responsibilities to “a partner” and other lawyers with “comparable managerial authority” in a firm. Who, specifically, is responsible in your law firm? When an ethics complaint names the firm complained of but the identity of the responsible attorney is unclear, the Office of Lawyers Professional Responsibility (OLPR) asks the firm who is responsible for the alleged conduct in question.
Rules 5.1 and 5.3 have been in effect since 1985. For many years, there were few Rule 5.1 disciplines. In recent years, however, OLPR has been increasingly aggressive in issuing disciplines for Rule 5.1 and 5.3 violations. Two recent articles have stated and commented on OLPR’s positions and related developments.3 In addition, OLPR has indicated its expectation that law firms will conduct periodic ethics audits, to reasonably ensure that law offices have actually put ethics policies into effect.
Despite the increasing emphasis on Rules 5.1 and 5.3, an educated guess is that all too many law offices have not adopted formal ethics policies, do not systematically train regarding the policies, do not audit for implementation, and have not designated the partners who have responsibilities for each of these matters.
OLPR has issued admonitions for many years for Rule 5.3 violations, arising from lawyers’ failures to supervise and train non-lawyer assistants.4 A recent Rule 5.3 public discipline merits close attention. A paralegal, J.U., for the first six years of employment apparently performed properly. Perhaps relying on J.U.’s track record, a solo practitioner, Naros, did not keep close tabs on J.U.. Unknown to Naros, J.U. began forging Naros’s signature, communicating with courts and clients in the name of Naros, and using filing procedures that kept Naros in the dark. Naros admitted that her policy was inadequate because, “the policy makes clear that [Naros] is to sign all pleadings, but does not have any checks in place so that [Naros] can determine when pleadings are not signed by [Naros]. There is no requirement that signed pleadings must be placed in the client file.”5
In a recent Rule 5.1 discipline, an attorney failed to establish adequate supervisory measures to prevent his longtime office manager from stealing client and firm funds. A second attorney allowed a legal assistant to place an ad for the law office falsely stating, “We speak Spanish” and that the firm’s lawyers had sixteen years of immigration law experience.6
OLPR’s increasing expectations for lawyers are part of a national trend. ABA Formal Opinion 17-477R (2017) states obligations, regarding protection of client information, for partners to (1) establish policies and procedures, (2) train firm lawyers and personnel in the policies and procedures, and (3) audit to reasonably ensure compliance. This opinion implies that similar obligations exist for other fundamental ethics obligations.
What subjects should a firm’s Ethics Policies cover? Thirty-four years ago, OLPR explained to lawyers, “at a minimum, partners are thereby required to see that the firm’s structures and procedures (e.g., regarding trust accounts, filing, orientation of new employees, form contingent fee retainer agreements that comply with Rule 1.5, education and conflicts) are properly established.”7 Additional subjects include client intake and new matters; business dealings with clients; deadlines and diligence; communication; protection of confidential information, including security of technology; marketing practices; the unauthorized practice of law; lawyer impairment; social media use and abuse; and harassment and discrimination. And, we now know from recent cases, that basic knowledge management is required, that is the legal authorities that govern the basics of a firm’s practice.
The Ethics Policies should be readily available to everyone in the firm on an intranet site. A partner should be responsible for recommending and updating policies, and for training lawyers and assistants. A partner or an outside ethics lawyer should review representative samples of files and other documents, and interview firm selected firm lawyers and staff, at prescribed intervals to ensure a reasonable degree of compliance.
Non-lawyers could assist with some policy compliance subjects. For example, an assistant could annually check online registration records for every attorney and report compliance or non-compliance to an assigned partner. Failures to maintain licensure have resulted in disciplines. In 2008, OLPR privately admonished a partner with direct supervisory authority for billing at regular rates the services of a subordinate attorney whom the supervisor knew was not current in licensure requirements. In 2005, an alert appeared that general counsel in an organization “could face discipline [under Rule 5.1] for permitting other lawyers in the organization’s law department to continue to practice law in Minnesota without being licensed.” In 2016, an attorney was publicly reprimanded for practicing in a private firm for 14 months while she had only an in-house license. 8
Rule 5.1 applies as much to a law firm’s forms as it does to its policies. To take a test sample of how your firm is doing, look carefully at the detailed rules governing retainer agreements that involve flat fees, or contingent fees, or security interests in client property.9 Then review your firm’s agreements. Lawyers are regularly disciplined for batting less than a thousand on these numerous requirements. At this writing, usually only the individual attorney complained of is disciplined, but the day is coming when the partner responsible for forms – or the managing partner if no responsibility has been delegated – will be found in violation of Rule 5.1.
For a second test of how your firm might be doing, review the required trust account and operating account books and records that the Lawyers Board publishes on its website. Not every lawyer knows that the Supreme Court has delegated this authority to the Board.10
The tasks of adopting policies and forms, training lawyers and staff, and auditing are collectively daunting. Some help is available. The Lawyers Board website has many resources, including trust account tutorials, videos, FAQs, etc. MCLE publishes the excellent Client Relations Deskbook with E Formbook (2019), by Kent Gernander. The MSBA hosts the free online treatise, Minnesota Legal Ethics, by William J. Wernz. The treatise has hotlinks to many articles, cases, and other resources relating to each of the ethics rules. Minnesota lawyers could much more readily comply with their Rule 5.1 responsibilities if the ethics bookshelf included a volume, Minnesota Law Office Ethics Policies.
William J. Wernz is the author of the online treatise, “Minnesota Legal Ethics.” He has been a member of the Board on Judicial Standards, and he has served as Dorsey & Whitney’s ethics partner and as Director of the Office of Lawyers Professional Responsibility.