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