Category Archives: The Ethical Lawyer – Legal Ethics Blog

Why hire an immigration lawyer when immigration consultants and online immigration services offer lower rates?

The current political climate and 2016 election of Donald Trump for U.S. President have fueled fear among immigrant groups. Amidst the anti-immigrant rhetoric, it’s important to discuss your options in legalizing your status or securing the appropriate visa with an experienced immigration lawyer.

Why hire a lawyer when there is lower-cost help available through immigration consultants and online immigration services? The reasons are many, from ensuring you receive accurate advice to avoiding unnecessary delays.

The main advantages of hiring a reputable and trusted immigration lawyer, instead of depending on an immigration consultant or online immigration service are:

1. You receive guidance on which forms and documents to submit

A lawyer is not required to fill out application forms for immigration benefits. Anyone can complete the forms, which are, along with the instructions, available for free on U.S. Citizenship & Immigration Services and the U.S. Department of State’s websites.

But U.S. government agencies are not your advocates and do not consider your individual situation when providing resources and information to you. Only an immigration lawyer, who truly understands the eligibility requirements, can give you the most reliable advice on which forms and documents to submit to receive immigration benefits.

Legitimate immigration consultants and online immigration processors can certainly help you complete forms and submit the paperwork to USCIS and DOS at a much lower cost than what lawyers charge.

Nevertheless, your knowing which forms and documents to submit is not always clear by just reading instructions or doing your own research. Immigration consultants and online immigration services are prohibited from giving any legal advice concerning your immigration case, including which forms and documents to submit. Rather, you yourself have to make this determination before they then fill out the forms with your answers and prepare the documents you have given them for filing with the appropriate U.S. government agency.

Even qualified immigration consultants and highly-rated online immigration services are just document preparers. While they are distinguishable from shady Notarios who prey on vulnerable immigrant groups and engage in immigration scams, they provide limited service that does not always meet your immigration needs.

Questions on applications forms and questions from immigration or consular officers might seem simple, but often relate to legal issues that can result in denials and setbacks in your case. Immigration consultants and online immigration processors cannot counsel you on how to best answer a question or cross-check or verify your answers on the forms. All they can do is replicate and type out your responses to the questions asked on the forms.

When non-lawyer immigration consultants or online immigration processors advise you on which immigration benefit to apply for and how to prove you qualify for it, they essentially engage in unauthorized practice of law.

In contrast, immigration lawyers advise you on which exact forms and documents to submit for a particular immigration benefit. They will cross check your answers on application forms with your biographic and immigration records to help ensure accuracy and completeness. They will also counsel you on the implications of your answers to questions, as well as the effects of providing or not providing certain documents.

2. You get legal advice on how to best present your case

A good lawyer will counsel you on eligibility standards and evidentiary requirements, including those that are not spelled out in the instructions for forms or are otherwise readily known.

For instance, while an immigration consultant or online immigration service will accept your marriage certificate and divorce decrees for prior marriages as sufficient in an I-130 spousal immigrant petition, a lawyer will counsel you on additional documents to submit to prove your marriage is valid and bona fide.

A lawyer might be unnecessary in very simple cases, where the bare minimum is all that’s required to get the case approved. But in many cases, a high volume of documentary evidence, as well as credible testimony, are needed to achieve a favorable outcome.

One of the fastest growing online immigration processors, RapidVisa, states specifically that it does not give legal advice or representation, but offers a service similar to TurboTax for visa applications. At a low price, they provide online processing of K-1 fiancée visas, spousal visas, parent visas, green cards (adjustment of status), removal of conditions, citizenship (naturalization), joint sponsorship, and deferred action (Deferred Action for Childhood Arrival, under President Obama).

RapidVisa boasts an approval rate of 99.7% and 4-hour turnaround time. But it’s fair to say that these cases most likely had no complications to require the work of a lawyer, and could have been handled just as well by an applicant who was willing and able to deal with the paperwork alone.

Reputable immigration lawyers, who have the expertise to deal with the worst types of cases, are best equipped to help you present the strongest case possible. They can steer you away from pitfalls that lead to complications in your case, such as USCIS issuing a Request for Evidence or a Notice of Intent to Deny Petition. They are trained to spot issues and weaknesses that can tank your case. Unlike immigration consultants and online immigration processors, they do not merely rely on generic templates and checklists that do not account for unique situations.

3. You obtain verification on whether you actually qualify for the benefit sought

An immigration lawyer will gather facts and review your record to confirm whether you are eligible for the immigration benefit you seek. For example, under current law, you cannot apply for a marriage-based green card within the U.S. if you were not lawfully admitted to the U.S. with inspection, and you do not qualify for 245(i) benefits. If your immigrant petition is not in the immediate relative category, you may not file for adjustment to permanent residence unless you are maintaining lawful nonimmigrant status after entry as an F-1 student, H-1B worker, etc. or certain narrow exceptions apply.

Immigration consultants and online immigration processors are not equipped or authorized to verify your eligibility for a benefit sought. They cannot give advice as to which immigration status you should seek. These are legal issues that requires a lawyer’s guidance, especially when there are complications in your case.

Complications include marriage/divorce complications, visa overstays, unlawful presence, prior removal orders, illegal entries and re-entries to the U.S., immigration fraud or willful misrepresentation, false claims to U.S. citizenship, a criminal record, and being from a high-fraud country.

In June 2016, the State of Colorado passed a law that forced RapidVisa to relocate out of Colorado Springs, Colorado to Las Vegas, Nevada, where regulations related to the document-preparation industry are favorable. Known as Immigration Consultants Deceptive Trade Practice, the Colorado law targets deceptive “notarios”, which are small operations common in Hispanic communities, but it further forbids any person from offering any immigration service, regardless of whether it involves practicing law, unless that person is a lawyer.

In a press release, Ben Ives, President of RapidVisa, stated “this was simply a case of lawyers protecting their income.” He noted, “Petitioning for a family visa is a benefit request, not a legal issue. Do you hire a lawyer to apply for your driver’s license?”

Contrary to Mr. Ives’ claim, applying for an immigration benefit involves many legal issues that determine whether a person can live, study or work in the U.S., and even visit the country. Filing for an immigration benefit has a much more serious and broader impact than applying for a driver’s license.

A U.S. citizen’s decision to bring a fiancée, spouse,  or parent to the U.S. , for example, affects the fate of the family and their reunification.  An applicant’s mistake in filing for an immigration benefit, such as a green card or citizenship, for which he does not qualify can sometimes lead him into removal proceedings and get him deported from the United States.

4. You have comprehensive counseling from start to finish

In the initial evaluation of your case, and during the course of representation, an immigration lawyer can identify your priorities and pinpoint issues to help you achieve your objectives. They can lay out your various options and describe the pros and cons of pursuing each path.

An immigration lawyer can guide you on how to avoid complications or address them as they arise, such as responding to a Request for Evidence, a Notice of Intent to Deny, a Notice of Intent to Revoke, or a denial decision. He or she can intervene on your behalf to resolve problems.

An immigration lawyer can also prepare you for interviews before USCIS and the U.S. Consulates by describing what questions to expect and which issues are likely to arise, and how to best address them. They can appear with you at green card interviews and naturalization interviews to help protect your rights, present documentary information, and ask clarifying questions. They can further prepare and submit a legal brief to stave off concerns and persuade the officer to approve your case.

Lawyers must keep up with changes in the law, the risks (not just the benefits) of applying for immigration relief, and the nuances in the immigration process, and advise you accordingly.

A non-lawyer immigration consultant or online immigration processor cannot perform these vital services.

5. You get legal help from a licensed professional who is held to the highest ethical standards

When an immigration consultant or online immigration processor overlooks critical pieces of information or documents, which results in an avoidable denial or delay, there is generally no recourse. You typically have to rectify the harm through their channels or file a consumer complaint with the state attorney general.

Lawyers, on the other hand, are held to ethical standards set forth in their state rules of professional conduct. They can face disciplinary action, such as a suspension or disbarment, for failing to perform duties owed to clients. As a licensed professional, a lawyer has obligations and responsibilities that go above and beyond those of a non-lawyer immigration service.

Consult an immigration attorney at the very least 

Some states, such as California, Minnesota, and New York regulate the conduct of immigration consultants, instead of forbid them from performing any immigration service. While they may provide document preparation, they cannot offer legal advice in any situation.

Legitimate immigration consultants and online immigration processors can ease the stress that comes with handling the immigration paperwork yourself. But realize they do nothing more than document preparation. A complete reliance on non-lawyer immigration services gives you a false sense of security and could open you up to making mistakes and bungling your immigration matter.

Reliable legal representation may be more affordable than you assume. There are solo practitioners and small firm lawyers who charge reasonable fees for high-quality, comprehensive service. There are also non-profit legal service providers and pro-bono attorneys who will accept your case for sliding scale or reduced fees or no fees.

Almost everyone can gather funds to consult an experienced immigration lawyer at least once, or retain unbundled legal service to address the complicated parts of the case. Before you file for an immigration benefit, talk to a reputable immigration lawyer about the eligibility standards, documentary requirements and filing process. Relying on immigration consultants and online immigration processors can save you money upfront, but cost you a lot more in the long run.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Neglect and Non-Communication: Reducing Mistakes that Lead to These Common Ethics Violations

mistakesLearning from your mistakes and knowing how to handle them are essential to being a great lawyer with a great reputation. Having the skills and systems to reduce mistakes is equally (if not more) important for lawyers who are bound by the rules of professional conduct.

Although human error is unintentional, it can lead to neglect of client matters and failure to communicate with clients, which carry serious repercussions and are among the most common ethics violations.

Neglect of Client Matter (Rule 1.3)

Rule 1.3 (Diligence) of the Minnesota Rules of Professional Conduct (MRPC) states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”

Failure to act diligently and promptly on client matters can result in missed deadlines, subpar work, and irreparable harm to clients. While neglect can be due to a lawyer’s willful actions, it often results from conflicting priorities, faulty calendaring systems, and mental health issues that fuel mistakes.

To act with diligence and promptness, you need to prioritize, focus on important (and not just urgent) matters, and take regular steps toward meeting client objectives and deadlines.

The comment to Rule 1.3, MRPC, states, “A lawyer’s workload should be controlled so that each matter can be handled adequately.” Be willing to turn down cases, delegate tasks or talk to your supervising attorney when you suffer from work overload.  When there’s no way to keep up, your withdrawal from a case when it will not harm the client’s interest is certainly an option.

Postponing tasks, especially when they are boring or difficult, is human. But procrastination can lead to neglect of client matters and ultimately, ethics complaints and disciplinary action.  Setting up and using calendaring/tickler systems that work for you and mitigate against poor work habits are therefore critical. Your systems should allow you to keep track of filing deadlines and create timelines for specific action steps.

Having  a master list of all your clients is helpful. Maintain case notes describing the current status and next steps to be taken in each client matter. Review and update case status reports regularly to prevent oversight and to prompt necessary follow-ups. Create backup processes for dealing with client matters in emergency situations, such as when you are unable to work due to illness.

If you suffer from anxiety, depression, chemical dependence or other mental health issues, seek counseling and professional assistance. Lawyers Concerned for Lawyers (LCL) is a good place to start. It provides free, confidential peer and professional assistance to Minnesota lawyers, judges, law students, and their immediate family members on any issue that causes stress or distress.

Attending to client matters without proper pacing, effective systems, or necessary help, can seriously affect your daily functioning and make you more susceptible to making mistakes.

Failure to Communicate with Client (Rule 1.4)

Rule 1.4 (Communication) of the MRPC imposes a duty to communicate with clients. A lawyer shall promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required. A lawyer must “keep the client reasonably informed about the status of the matter” and “promptly comply with reasonable requests for information.”

Your understanding of what “reasonably informed” and “promptly” means could be different from that of your client. The client might expect you to pick up the telephone whenever he calls, and immediately reply whenever he shoots you an email. Being overwhelmed with multiple priorities makes it harder to provide prompt communication, much less instant responses.

Schedule regular telephone calls or status update meetings with clients to minimize impromptu requests for information. At the outset, you also need to set reasonable expectations concerning attorney-client communication. Describe your telephone and email policies, including how often you check your messages and how promptly you respond.

Even when you do not have ready answers to questions, inform the client that you are looking into the issue and give him an estimate on when he can expect to hear from you.  When you’re unavailable, enlist help from your receptionist, administrative assistant or paralegal to respond to clients (without providing legal advice).

Rule 1.4 also requires the lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Language barriers between the lawyer and client in practice areas such as immigration law and family law are often problematic. Communicate through a professional interpreter, a bilingual paralegal, or even a trusted relative or friend of the client who is fluent in both languages. Keep in mind that miscommunication is possible, particularly when critical information gets lost in translation.

If you and the client agreed to take certain steps in a matter, send a follow-up letter or email describing the action plan. Have the client confirm he understands the status of the matter and the steps to be taken, preferably in writing. Documented communication helps to ensure you are both on the same page and provides an opportunity for the client to make clarifications and corrections.

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Minor or technical rule violations caused by mistakes instead of malicious conduct are still subject to disciplinary action, such as admonition or stipulated probation. When they are part of a pattern of misconduct or combined with egregious misconduct, the disciplinary consequences are higher. Moreover, neglect and non-communication (even when they are not due to willful misconduct) often harm the client’s interests as well as your overall reputation.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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5 Must-Knows When Responding to an Ethics Complaint

The Office of Lawyers Professional Responsibility (OLPR) summarily dismisses many ethics complaints without investigation. As high as 47% of complaints were summarily dismissed in 2012, for example.

But when there are sufficient allegations of attorney misconduct that would violate the ethics rules, the Director’s Office normally issues a Notice of Investigation (NOI) to the attorney.

 

If you are an attorney who is served with an NOI (ethics complaint), here are 5 must-knows when responding to it:

1. The Minnesota Rules on Lawyers Professional Responsibility govern how complaints are investigated and disciplinary proceedings are conducted

The Minnesota Rules of Professional Conduct (MRPC) regulate Minnesota attorneys’ conduct and set the standards for attorney discipline. Meanwhile, the Minnesota Rules on Lawyers Professional Responsibility (RLPR) govern the investigation and disposition of complaints. Although knowledge of the RLPR is not required in daily law practice, it becomes pertinent when you are served with an NOI.

Rule 6(a), RLPR  states that all ethics complaints shall be investigated pursuant to these Rules. Rule 25(a), RLPR imposes a duty on the lawyer to cooperate with the investigation and respond to reasonable requests for information. Rule 25(b), RLPR allows the lawyer to challenge such requests, as long as it is promptly made, is in good faith and is asserted for a substantial purpose other than delay.

Before you begin responding to an NOI, you need to not only review the MRPC, but also read the RLPR to gain familiarity with the lawyer discipline system.

2. There are multiple players in the lawyer discipline system

The OLPR is responsible for investigating ethics complaints and prosecuting those that warrant discipline. An agency of the Minnesota Supreme Court, the OLPR has 11 attorneys and is led by a Court-appointed Director, who is now Susan M. Humiston (following Martin Cole’s retirement in December 2015).

The OLPR screens complaints before deciding whether to investigate. When an investigation is deemed necessary, the complaint is usually referred to the local District Ethics Committee (DEC).

There are 21 District Ethics Committees, which conducts most of the initial investigations and provide reports and recommendations to the OLPR. DECs are made up of volunteer lawyers and non-lawyers and may serve up to four 3-year terms.

The  Lawyers Professional Responsibility Board (LPRB) is responsible for oversight and administration of the Minnesota lawyer discipline system. It consists of 23 members (14 lawyers and 9 non-lawyer public members) appointed by the Minnesota Supreme Court. Members can serve two 3-year terms.

The LPRB includes a five-member executive committee that has general supervisory authority over the OLPR and the Rules on Lawyers Professional Responsibility. The LPRB is also divided into six three-member Panels, which preside over hearings on allegations of professional misconduct against lawyers. Individual LPRB members are also assigned in rotation to consider appeals of dismissed complaints.

Although some investigations are not always based on a complaint, but rather on news reports and court decisions indicating professional misconduct, a complainant is usually involved in the process. When the complaint has been summarily dismissed or dismissed after investigation with a determination that discipline is not warranted, the complainant is notified at the same time as the respondent attorney. A complainant is notified of the right to appeal a private admonition only after the attorney has accepted the admonition. The complainant has 14 days to appeal the decision. The reviewing LPRB member has several options on how to rule on the appeal.

In general, all these players have a say in whether the complaint is dismissed following investigation or whether there is a determination that discipline is warranted.

3. The OLPR’s decision to investigate is based on whether there are sufficient allegations of attorney misconduct that would violate ethics rules, not on whether the allegations are likely true

Rule 8(a), RLPR sets the threshold for when an investigation, with or without a complaint, may be initiated. It states the Director may investigate the lawyer’s conduct when there is “reasonable belief that professional misconduct may have occurred…”  The Director may also begin an investigation on his sole initiative (i.e., without a complaint), but must have prior approval of the Lawyers Board executive committee.

The threshold is relatively low: the allegations do not have to be verified or be deemed verifiable when the NOI is issued. Past OLPR Director Martin Cole stated in OLPR Investigation Procedures, “This is somewhat akin to the civil litigation standard that a complaint must state a claim upon which relief can be granted; that is, if the allegations in the complaint are true, do they constitute a violation of one of the Minnesota Rules of Professional Conduct?”

Your first chance to set the record straight is in the response to the NOI. Submitting documentary evidence showing the allegations are untrue and professional misconduct did not occur may lead to the dismissal of the complaint after investigation. Providing favorable facts can also help to lower the level of discipline, if ethics violations are found and lawyer sanctions are warranted.

Discipline is warranted only if there was an actual rule violation.  Get clear on which rules are being implicated in the complaint or which rules will likely be at issue due to the allegations. A minor deficiency in conduct, a failure to meet best practices, or an inadvertent mistake doesn’t necessarily mean ethics rules were broken.

For instance, Rule. 1.1, MRPC (Competence) requires lawyers to “provide competent representation to a client”, which  is “legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”  The issue comes down to what a reasonably prudent lawyer exercising reasonable care would do, not what the best attorney following best practices would do.

Don’t be too hasty in equating minor shortcomings with rules violations. But when it comes to obvious violations, own up to them and describe mitigating circumstances. Take remedial measures and present evidence demonstrating you have implemented safeguards to prevent misconduct and avoid mistakes in the future. Otherwise, the OLPR is more likely to conclude you must be sanctioned to “guard the administration of justice” and “protect the courts, the legal profession and the public” (which is the main purpose of lawyer discipline).

Your response to the NOI is the earliest and best opportunity to show no professional misconduct occurred or to show discipline is not warranted. At the very least, an effective response can help mitigate discipline when ethics violations are found .

4. A rule violation doesn’t have to be intentional or malicious

OLPR’s Senior Assistant Director Siama Y. Chaudhary stated in An Overview of the Disciplinary Process:

In the event a violation of the rules is found, it does not necessarily mean that the attorney’s conduct was malicious or that the violation was the result of respondent-attorney’s incompetence as a practicing lawyer. In some situations, however, regardless of whether an innocent oversight is to blame, a rule violation is a rule violation regardless of how technical it may seem. 

A rule violation under Rule 1.3, MRPC (Diligence) could be due to lack of systems or faulty systems related to how you manage your client files, or work overload and poor work habits, such as procrastination.  Make implementing reliable office systems and dealing with languishing files a top priority.

A Trust Account overdraft, in violation of Rule 1.15, MRPC (Safekeeping Property), could be due to technical deficiencies in maintaining trust account books and records, instead of the attorney purposely misusing client funds. Get help from a qualified accountant or bookkeeper to bring your financial books and records in order.

If chemical dependency and mental health issues play a role, contact Lawyers Concerned for Lawyers or seek professional treatment sooner rather than later.

For minor or technical rule violations, the OLPR may dismiss the matter or impose the lowest form of discipline. But when such violations are part of a pattern of misconduct or combined with egregious misconduct, the disciplinary consequences are much more serious.

5. Different levels of disciplinary action may be sought if ethics rules violations are found

When a complaint is not dismissed after investigation,  the focus turns to the level of discipline to be imposed. If the lawyer challenges the recommended discipline, the OLPR’s role shifts from being a neutral investigator to an adversary (prosecutor) of the lawyer.

The RLPR provides for private discipline and public discipline.

Private means the OLPR, the complainant, and the lawyer receive a copy of the decision, and the OLPR may disclose the decision only in very limited situations. No petition for disciplinary action is filed with the Minnesota Supreme Court.

Private discipline includes:

Admonition.  An admonition (reprimand) is imposed by the OLPR’s Director. It is the lowest form of discipline that may be issued for “isolated and non-serious” professional misconduct. Rule 8(d)(2), RLPR.

Stipulated Probation. Private probation may be imposed by agreement (stipulation) between the Director and the lawyer for a period of up to two years, subject to approval by the Lawyers Board Chair or Vice-Chair.  This discipline is is often used to monitor attorneys with patterns of misconduct or attorneys with chemical dependency or mental health issues.

Private disciplinary actions may be appealed by complainants. The respondent lawyer may also appeal an admonition.

Public means the discipline is ordered by the Minnesota Supreme Court, is typically published in Finance & Commerce and Northwest Reports, is posted on the OLPR’s website, and may be disclosed to any person.

To start the processing of seeking public discipline, the OLPR files charges of professional misconduct with the Lawyers Board. A hearing, which is not public, is conducted before a Lawyers Board Panel.  The Panel decides whether probable cause exists to believe public discipline is warranted on any or all of the charges.

If a Panel or the Lawyers Board finds probable cause, the OLPR may file a petition for disciplinary action with the Minnesota Supreme Court. The petition and all related proceedings are public. Furthermore, since 1983, the Lawyers Board has held a media release policy allowing petitions for disciplinary action, which seek an attorney’s suspension or disbarment, to be released to the media when filed with the Court. The media may choose to publish a news article on the disciplinary matter.

The Court assigns the case to a referee, who is a state district court judge. The referee conducts a hearing in which the OLPR and respondent lawyer present direct testimonies from witnesses and cross-examine witnesses. The OLPR has the burden to prove by clear and convincing evidence that professional misconduct occurred.

Following the hearing, each party may file proposed findings of facts and conclusions of law, and a post-hearing brief. The referee then issues written findings of fact, conclusions of law, and a recommendation for discipline, which may include dismissing the case and recommending no discipline be imposed.

The OLPR or the lawyer may stipulate to the referee’s findings, conclusions, and/or recommendation, or challenge them. When either party challenges the referee’s findings, conclusions and/or recommendations, both must file briefs and present oral arguments before the Supreme Court. The Court then issues a written opinion with its decision.

Public discipline includes:

Reprimand.  A reprimand involves public notice, but does not in and of itself limit the lawyer’s practice. It usually, however, comes with a period of probation.

Probation. Probation imposes restrictions, conditions, or obligations on the lawyer’s practice. It is often used to curb ongoing problems related to diligence, client communication, trust account record keeping, or tax return filing.

Suspension. Suspension is the loss of the privilege to practice law for an indefinite period or for a stated period (90 or fewer days or longer than 90 days). It is the most common level of public discipline ordered by the Minnesota Supreme Court. There are many types of misconduct that may lead to suspension, including neglect, making misrepresentations to a tribunal, pursuing frivolous appeals and filing frivolous pleadings.

Disbarment. Disbarment involves the permanent loss of the privilege to practice law. It is the most serious discipline and is imposed only in extraordinary circumstances. Examples of misconduct that may result in disbarment include misappropriation of client funds, felony criminal convictions, fraud, abandonment of clients, repeated failure to file income tax returns, flagrant non-cooperation including failure to submit an answer or failure to attend a pre-hearing meeting before the Panel as required by Rule 9, RLPR.

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These are the top 5 must-knows when responding to an ethics complaint. Having a deeper knowledge of the disciplinary process can help you get the complaint dismissed or mitigate discipline. Your response affects the OLPR’s determination on whether the allegations are true, whether rules violations occurred, and whether discipline is warranted.

Be sure to read 5 Must-Dos When Responding to an Ethics Complaint.

SPECIAL NOTE: Want to learn more? Attend the Minnesota CLE webcast on Responding to Ethics Complaints: 5 Must Dos + 5 Must Knows, scheduled for May 31, 2016 at 2 pm. 

At this 1-hour ethics CLE, I will discuss 5 must-do’s and 5 must-knows when responding to an NOI. There will be tips on how to present your best case or strongest defense at the outset, before the OLPR decides whether to file a petition for disciplinary action with the Minnesota Supreme Court.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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Reflect and Look Ahead

 

Happy new year!

Reflecting on the past year is the first step to setting your goals, creating intentions, making resolutions, and planning for the new year.

When you look back on 2015, can you think of 3 big accomplishments that made it a great year to remember?

Did you solve challenging dilemmas, answer tough questions, or master a valuable skill?

Were you able to break a bad habit? Stick with a healthy routine?

Did you spend ample quality time with the people you care most about?

The possibilities are endless as you look ahead to the new year. But to turn any possibility into a reality, you need to make conscious choices, focus on your highest priorities, destroy distractions, and take deliberate action every day.

Choosing the right clients, selecting appropriate cases, and doing high-value work to meet clients’ objectives and grow my business made 2015 a success for me. I will continue to apply these principles and build on them in 2016.

Taking daily steps toward your desired destination – no matter the obstacles – usually and ultimately pays off. Even when the results are less than ideal, there is always something to learn from the effort and the process. And you can apply these key lessons in the days and years ahead.

Wishing you tremendous success and unlimited happiness in 2016!

Cheers,

Dyan Williams
Founder & Principal Attorney
Dyan Williams Law PLLC

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5 Must-Dos When Responding to an Ethics Complaint

Each year, about 75% of all ethics complaints received by the Office of Lawyers Professional Responsibility are summarily dismissed without investigation, or after investigation with a determination that discipline is not warranted.  When the Director’s Office chooses to investigate, there must be “a reasonable belief that professional misconduct may have occurred,” states Rule 8(a), Rules on Lawyers Professional Responsibility (RLPR).  A Notice of Investigation (NOI) is issued to the attorney, who then has an opportunity to respond.

If you are an attorney who is served with an NOI (ethics complaint), here are 5 must-dos when responding to it: 

1. Cooperate with the investigation

Although the Director’s Office may conduct the investigation, a volunteer with the District Ethics Committee (DEC) usually investigates complaints and makes reports and recommendations. The DEC is comprised of attorney members and non-attorney members.

The NOI includes a copy of the complaint, asks for a response, and identifies the investigator.  The NOI might also describe the alleged misconduct and/or the ethics rules at issue. You may also ask the OLPR to clarify the possible rules violation(s) that are being investigated.

Rule 25, RLPR mandates a duty to cooperate with the investigation. This means responding to reasonable requests for papers and documents, a written explanation addressing the matter under consideration, and appearing at meetings, conferences and hearings.

Rule 8.1(b), Minnesota Rules of Professional Conduct (MRPC)(Bar Admission and Disciplinary Matters) further states a lawyer shall not “knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority…” except when the information is otherwise protected by Rule 1.6, MRPC (Confidentiality of Information).

Failure to cooperate amounts to a violation of Rule 8.1(b), which may be an additional charge independent of the underlying complaint. It can even subject the lawyer to public discipline.

Consider the investigation process as an opportunity to set the record straight and provide your perspective on what actually occurred. At this stage, the OLPR is more of a fact-finder instead of a prosecutor.

2. Be on time

Ignoring the NOI and burying it under a pile of miscellaneous files won’t make it go away. Confront the complaint head on, even if you think it has no merits.

The NOI will give you a deadline in which to respond, typically 14 days. Filing your response on time is paramount to meeting your obligations under Rule 8.1(b), MRPC. It can also work in your favor as to the merits of the complaint, particularly if you are under investigation for violating Rule 1.3, MRPC (Diligence).

Put the due date on your calendar and into your tickler system. Set aside plenty of time to fully prepare a well-developed response.

Timely and reasonable requests for extension are readily granted by the OLPR and DEC, but don’t ask for more time unless you really need it. Refrain from asking for long and additional extensions, which could give the impression that you procrastinate on important matters.

Submit a written request well before the due date and explain why you are asking for an extension. (Being preoccupied with client deadlines and attending trial are good reasons. Not being able to locate the client file or the documents requested is probably not.)

3. Set a professional and respectful tone

It can be nerve-wracking to find out the Director’s Office has opted to investigate, instead of summarily dismiss the complaint on its face.  Your receiving an NOI means there are claims in the complaint — if found to be true — that amount to a violation of one or more ethics rules.

Show the utmost respect to the investigator (including non-attorney DEC members). Submitting an angry and defensive response will not help you. Resorting to personal attacks on the complainant or witness or engaging in emotional tirades makes a bad situation worse.

Do not file a retaliatory lawsuit or threaten the complainant with a defamation suit, which may lead to additional charges of professional misconduct.    The complainant has full immunity. Rule 21, RLPR, provides that an ethics complaint is absolutely privileged and may not serve as a basis for liability in a civil lawsuit.

Although you may take corrective action to address clients’ concerns noted in the complaint, you may not demand they withdraw their complaint as a condition. A complaint cannot be withdrawn once an NOI issued.

Your response will likely be marked as an exhibit if the OLPR decides to pursue disciplinary action against you. Your behavior during the investigation and disciplinary proceedings does matter. In one attorney discipline case, Pokorny was issued a private admonition for isolated and non-serious misconduct, but was suspended for his behavior during proceedings. See In re Pokorny, 453 N.W.2d 345 (Minn. 1990).

4. Provide a coherent description of the facts with documents to back it up

When there are conflicting versions of relevant facts, highlight positive factors that bolster your credibility or discredit the complainant. But refrain from revealing irrelevant and embarrassing information just to get back at the complainant, especially if it involves client confidences. Disclosure of confidential client information is limited to the extent necessary to establish a claim or defense in  a controversy with the client or to respond to allegations by the client concerning the lawyer’s representation. Rule 1.6(b)(8), MRPC.

Prepare a well-written, detailed and coherent response as if it were for your most important, favorite client. Provide facts and information that demonstrate how you met or exceeded your professional obligations. Support your response with relevant documentation, including sworn affidavits from third parties who have direct knowledge of the matter.

If the complaint or NOI mentions you failed to provide competent representation, describe the work you did for the client, provide documentation of the work, and explain how the work served to meet the client’s objectives.

If failure to communicate with the client is at issue, produce the letters, emails, telephone records, attorney-client meeting notes, and case notes demonstrating regular correspondence.

If failure to act diligently is one of the allegations, include evidence of your meeting deadlines, attending hearings, and following up on the client’s case. Describe any legitimate basis for inactivity in the client’s case. Did the client fail to timely respond to requests for necessary information and documents? Did you stop working on the case (without unduly prejudicing the client) because the client failed to pay agreed-upon legal fees?

Make sure the information you provide is accurate.  Review the client file, including case notes, correspondences, and work product. Qualify factual assertions when necessary. A response that includes false or inaccurate statements may be construed as a violation of Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) or 8.4(d) (conduct that is prejudicial to the administration of justice), MRPC.

5. Hire counsel (or at least get a second opinion)

When your reputation, profession, livelihood and attorney license are at stake, it can be very difficult to respond to the ethics complaint objectively and calmly. Consider hiring an ethics defense counsel for full representation or on a limited-scope basis. This is not a sign of culpability.

At the very least, have an attorney – who knows the investigation and disciplinary process well – review your response or work with you in preparing a response.

Be sure to review your malpractice insurance policy, which may provide for payment of fees of counsel for responding to the NOI. The policy may also require you to report the NOI to the carrier.

The risks and consequences are higher when the complaint goes beyond preliminary investigation.  Present your best case at the outset. Before you submit your response, get experienced counsel to check for clarity, coherence, and  tone.

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These are the top 5 must-dos when responding to an ethics complaint. These tips will help you maximize your chances of having the complaint dismissed when you did all you could to meet your professional obligations.  The response you provide influences the OLPR’s decision on whether to go beyond the investigation. It will also play a crucial role if the OLPR decides to pursue disciplinary action against you.

Be sure to read 5 Must-Knows When Responding to an Ethics Complaint.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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Photo by: Davide Cassanello