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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.


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. 


Photo by: Coba


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.


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. 


Photo by: Davide Cassanello

Responding to Ethics Complaints: Know the Rules!

When it comes to your law practice, avoiding ethics complaints is more effective and efficient than responding to them. But there is no foolproof way to prevent disgruntled clients and third parties from complaining to the Office of Lawyers Professional Responsibility (OLPR) about you.

If the OLPR serves you with a Notice of Investigation (NOI), a timely response is required. Otherwise, you will run afoul of Rule 8.1(b),Minnesota Rules of Professional Conduct (MRPC) , which states a lawyer shall not “knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority…”

Rule 25, Minnesota Rules on Lawyers Professional Responsibility (RLPR), further imposes a duty to cooperate with the investigation or proceedings. In particular, the lawyer must comply with reasonable requests, including requests for documents and information related to the client matter(s) in question.

An attorney at the OLPR will screen complaints before deciding whether to investigate or before sending a complaint to the local District Ethics Committee (DEC) for preliminary investigation. The OLPR summarily dismisses many complaints, without investigation. But when there is “reasonable belief that professional misconduct may have occurred,” based on Rule 8(a), RLPR, the OLPR may initiate an investigation into the lawyer’s conduct.

The MRPC set the professional standards under which lawyers may be disciplined. The rules cover competence, diligence, fees, communication, confidentiality and other issues that naturally arise in law practice. Knowledge of the rules related to professional conduct is tested in the Multistate Professional Responsibility Examination (MRPE), which was first administered in 1980 and is required for admission to the bars of almost all U.S. jurisdictions.

In responding to ethics complaints, lawyers also ought to read and review the RLPR. Until they become subject to disciplinary proceedings, most lawyers do not even know these formal rules exist. These are the procedural rules that govern the investigation and disposition of complaints, including how the disciplinary proceedings are conducted.

A timely, clear, organized, and well-documented response to the complaint sets a positive tone for the investigation or proceedings. An untimely, angry, incoherent and off-topic response hurts your credibility and could prompt the investigator to find merit in the complaint.

Interested in learning more about this topic?

On Wednesday, November 18, 4 to 5 pm, I will be participating as a panelist in a legal ethics discussion/CLE titled, Ethics in Practice: Exploring Ethics from Different Practice Perspectives. Other panelists include The Honorable Diane Alshouse, Ramsey County District Court Judge; Candace Groth, Associate Attorney at Virtus Law, and Kevin Slator, Senior Assistant Director at the OLPR. The discussion will be moderated by Blake Nelson, partner at Hellmut & Johnson who previously served on the 4th District Ethics Committee.

Registration deadline is Monday, November 16, 11:59 pm. For more information, go to William Mitchell’s CLE, Lectures and Events page.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  The sharing or receipt of this information does not create an attorney-client relationship.

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: Blake Burkhart