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What Should a Lawyer Do to Meet Professional Responsibilities Regarding Nonlawyer Assistants?

Posted on November 23, 2016 | Comments Off on What Should a Lawyer Do to Meet Professional Responsibilities Regarding Nonlawyer Assistants?

A lawyer bears professional responsibilities regarding nonlawyer assistants within and outside the firm. When a nonlawyer assistant engages in conduct that would violate the ethics rules applying to lawyers, the lawyer is answerable under Rule 5.3 of the Minnesota Rules of Professional Conduct (MRPC).

Proper delegation, adequate supervision, and implementation of policies and procedures to discourage misconduct are some steps you must take to meet your duties related to nonlawyer assistants.

What Should a Lawyer Do to Meet Responsibilities Regarding Nonlawyer Assistants?

The buck stops with you. Whether you are the partner or managing lawyer who controls the firm, the lawyer who directly supervises the nonlawyer, or the lawyer who incites or condones misconduct by the nonlawyer, you may be held responsible for a nonlawyer assistant’s wrongful conduct under MRPC 5.3.

Minnesota’s Rule 5.3, Responsibilities Regarding Nonlawyer Assistants, mirrors the ABA Model Rule. It requires you to make efforts to ensure the nonlawyer’s conduct is compatible with the professional ethics rules that apply to lawyers.

Here are reasonable steps you must take to meet your duties related to nonlawyers:

1. Delegate appropriately

Lawyers may delegate certain tasks to paralegals, legal assistants, law clerks, and other nonlawyer assistants to provide legal services at lower cost and deal with high volumes of work. But the lawyer must strive to ensure those tasks are performed diligently, competently, and otherwise in compliance with the ethics rules.

An immigration lawyer, for example, may assign a paralegal to gather documentary evidence from the client, prepare the application forms, and conduct legal research. But the lawyer may not delegate, to a nonlawyer, the duty to advise the client on legal strategy, complete final review of the application forms, and verify or analyze the research.

Proper delegation begins with having appropriate job descriptions for non-lawyers that outline their roles and duties, and the required qualifications, followed by selecting qualified and reputable persons for the job. Background and reference checks are appropriate.

The lawyer should consider the nonlawyer’s education, experience, training and skills when assigning tasks. The lawyer must also provide clear instructions, identify roles and responsibilities, set boundaries, turnaround times and deadlines, and communicate desired goals. A delicate balance between micro-management and abdication of responsibility needs to be struck.

2. Provide adequate supervision

A lawyer’s responsibility does not end with delegation. The lawyer is ultimately in charge of filing pleadings, communicating with clients, responding to discovery requests, and addressing other time-sensitive matters.

Lawyers must follow up with their nonlawyer assistants to confirm assigned tasks are performed competently and diligently. In addition to giving clear instructions at the outset, lawyers need to monitor progress and confirm the tasks are done well.  Lawyers have to review the nonlawyer’s work product and provide guidance in even simple cases.

Delegating inappropriate authority to nonlawyers can open you up Rule 5.3 violations, particularly when there is inadequate supervision. Lawyers must provide the necessary supervision to ensure nonlawyer assistants do not engage in misconduct, such as unauthorized practice of law (MRPC 5.5 violation), prolonged procrastination on client matters (MRPC 1.3 violation), failure to submit required evidence to the court (MRPC 1.1 violation), neglect of client requests for information (MRPC 1.4 violation), and breach of client confidentiality (MRPC 1.6 violation). Adequate supervision is key to deterring nonlawyer misconduct and avoiding disciplinary action under Rule 5.3.

3. Offer regular training and mentorship

Ongoing training and mentorship programs, whether formal or on-the-job, must be offered to nonlawyer assistants. Lawyers should take time to train and mentor paralegals, law student interns, and paraprofessionals to carry out substantive work and perform their duties in alignment with the rules of professional conduct.

Lawyers themselves should keep attending CLEs, completing workshops and reading articles and books on professional ethics to keep their knowledge fresh and stay abreast of changes and developments.

They should also work to build their nonlawyer assistants’ awareness of professional ethics and encourage them to defer legal questions to the lawyers. Leading by example and discussing a lawyer’s ethical duties in group and individual meetings are critical.

Providing checklists for routine tasks and templates for common cases is a key part of training. But the training does not end there. Rather, lawyers should constantly educate nonlawyer assistants through constructive comments on their work, execution of office protocols and procedures, and teaching them the difference between working efficiently and taking harmful shortcuts.

While lawyers should train nonlawyer assistants to take initiative, they also need to caution them against unauthorized practice of law. For example, an immigration lawyer’s assistant must be reminded to communicate just the lawyer’s explanation, instead of adding her own advice and recommendations, when acting as an interpreter.

Lawyers ought to take remedial measures when they observe nonlawyer assistants breaching professional obligations. No matter how experienced a paralegal, receptionist, secretary or office manager might be, the lawyer cannot take ongoing training for granted.

4. Prioritize professional ethics through the establishment of firmwide systems and protocols

The partner or managing lawyer must implement policies, procedures and practices to help ensure the nonlawyer’s conduct is compatible with lawyers’ professional duties. The firm should also have a systematic approach in dealing with ethics violations and mitigating the consequences.

The distribution of an ethics manual, provision of ongoing training, and formal establishment of protocols addressing diligence, competence, client confidentiality, conflicts of interest, client file requests, trust account issues, unauthorized practice of law and other professional obligations are reasonable measures to be taken.

An office handbook or memorandum outlining telephone etiquette, email exchanges, and other client communication and confidentiality issues is paramount. Identifying the lawyers and nonlawyers assigned to the case in an engagement letter, fee agreement or client correspondence is recommended.

Be sure to read our related article, When Does a Lawyer Breach Professional Responsibilities Regarding Nonlawyer Assistants? 

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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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When Does a Lawyer Breach Professional Responsibilities Regarding Nonlawyer Assistants?

Posted on November 22, 2016 | Comments Off on When Does a Lawyer Breach Professional Responsibilities Regarding Nonlawyer Assistants?

A lawyer may be subject to an ethics investigation and disciplinary action based on the conduct of nonlawyers employed or outsourced by the lawyer. When your paralegal or other nonlawyer assistant engages in wrongful conduct, such as breach of client confidentiality and unauthorized practice of law, you may be held responsible under Rule 5.3 of the Minnesota Rules of Professional Conduct (MRPC).

What Are a Lawyer’s Responsibilities Regarding Nonlawyer Assistants? 

Minnesota’s Rule 5.3, Responsibilities Regarding Nonlawyer Assistants, mirrors the ABA Model Rule. MRPC 5.3 requires you to make efforts to ensure the nonlawyer’s conduct is compatible with the professional ethics rules that apply to lawyers.

With respect to a nonlawyer employed or retained by or associated with a lawyer, Rule 5.3 applies to the following lawyers:

Partner. Rule 5.3(a), MRPC, states that a partner “shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.”

Rule 5.3 (c)(2), MRPC, further states that a partner is responsible for a nonlawyer’s conduct that would violate the rules (if engaged in by a lawyer) when the partner “knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”

Rule 1.0(h), Terminology, defines a partner as “a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.”

Lawyer, who individually or together with other lawyers, has managerial authority. MRPC 5.3(a) and (c)(2) also apply to lawyers with “comparable managerial authority [to partners] in a law firm.” These are lawyers who, similar to partners, manage and control the firm.

Lawyer with direct supervisory authority over the nonlawyer. MPRC 5.3(b) states, “a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” These are lawyers, such as senior associates, who are not necessarily partners or managers, but still have  “direct supervisory authority” over the nonlawyer.

Lawyer who orders or ratifies the nonlawyer’s misconduct. MPRC 5.3(c)(1) states that a lawyer is responsible for a nonlawyer’s conduct that would violate the rules (if engaged in by a lawyer) when “the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved.”

When Does a Lawyer Breach Responsibilities Regarding Nonlawyer Assistants? 

Delegating work to non-lawyers, such as law student interns, secretaries, investigators, and paraprofessionals is common and expected in law firms. It is difficult for lawyers to run their firms, serve clients, respond to prospects, market their practice, and collect fees without assistance from non-lawyers.

But responsibilities related to nonlawyer assistants may be found to be breached in the following situations:

Partner or Lawyer With Comparable Managerial Authority fails to take reasonable measures to ensure the firm reasonably discourages misconduct. MRPC 5.3(a). 

Under Rule 5.3(a), partners and managing lawyers who fail to implement reasonable policies, procedures and practices to deter nonlawyers from engaging in misconduct may be investigated and disciplined when such misconduct occurs.

MRPC 1.0 (i), Terminology, defines “reasonable” or “reasonably” as “conduct of a reasonably prudent and competent lawyer.” Partners and managing lawyers who do not act reasonably under the circumstances, with respect to preventing misconduct by nonlawyers, may be subject to discipline.

Partners and managing lawyers who fail to establish checks and balances, instill and promote a firm culture, and provide training that encourage compliance with a lawyer’s ethical duties open themselves up to disciplinary action when nonlawyers engage in wrongful conduct.

They may be investigated, for example, when there are no policies and practices that prohibit nonlawyers from divulging confidential information obtained during the attorney-client relationship, working on matters in which they have a conflict of interest, providing legal advice on a client matter, and signing pleadings on behalf of a lawyer.

Partner, Lawyer With Comparable Managerial Authority, or Supervising Lawyer fails to take reasonable remedial measures when they learn about the misconduct at a time when the consequences can be avoided or mitigated. MRPC 5.3 (c)(2).

Rule 5.3(c)(2) subjects partners and managing lawyers to investigation and discipline if they fail to take reasonable steps to correct a nonlawyer’s misconduct when they know of it at a time when the impact can be warded off or reduced.

MRPC 1.0(g), Terminology, defines “knows” as “actual knowledge of the fact in question. ” MRPC 5.3(c) applies only when the nonlawyer engages in misconduct and the lawyer is actually aware of it or should have been aware of it. The lawyer is not liable if he did not consciously avoid knowledge of the nonlawyer’s misconduct or if the nonnlawyer concealed the misconduct.

But MRPC 1.0(g) further states, “A person’s knowledge may be inferred from circumstances.” A lawyer with constructive knowledge – i.e. he should have known if he had take reasonable care – is just as liable as one with actual knowledge.

Partners and managing lawyers who fail to intervene and stop the nonlawyer’s misconduct, when they become aware of it at a time when the consequences can be avoided or mitigated, do so at their own peril.

For instance, a partner or managing lawyer who failed to adequately screen nonlawyers from working on a particular client matter and, after learning about a conflict of interest, does not take any corrective measures, such as getting the client’s consent or pulling the paralegal from the case assignment, may be disciplined.

Supervising Lawyer fails to  make reasonable efforts to prevent misconduct. MRPC 5.3(b). 

Rule 5.3(b) subjects supervising lawyers to investigation and discipline when they fail to make reasonable efforts to ensure the nonlawyer’s conduct is compatible with the lawyer’s professional duties.

Lawyers with “direct supervisory authority” who fail to adequately supervise the nonlawyer who engages in misconduct are vulnerable to disciplinary action. Failure to carry out proper delegation, offer adequate training, do necessary follow-ups and provide adequate supervision to ensure obligations are met, through nonlawyers, is a dereliction of duties.

Mere reliance on the existence of office policies, procedures and practices is not sufficient to comply with Rule 5.3(b). Neglecting to provide ongoing training, monitoring and review may amount to breach of this rule.

Lawyer orders or condones the misconduct. MRPC 5.3(c)(1). 

A lawyer who directs a nonlawyer’s misconduct, or ratifies the misconduct after becoming aware of it, is answerable to discipline under Rule 5.3 (c)(1).

A lawyer who orders the misconduct or approves of it cannot hide behind reasonable preventive measures that have been implemented at the law firm.

Any lawyer who directs a nonlawyer to engage in acts that would be considered a violation of the lawyer’s professional duties not only violates Rule 5.3(c)(1), but may also be found liable under Rule 8.4(a), which states “It is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”

Examples of a Rule 5.3(c)(1) violation include instructing a notary public at the firm to notarize a client’s affidavit when the client did not appear before the notary public; allowing secretaries to sign pleadings on behalf of the lawyer; and encouraging paralegals to make legal recommendations to the client. Saving time or trying to meet deadlines or client demands is no excuse for violating this rule.

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Rule 5.3 relates to nonlawyers within the firm, including secretaries, investigators, law student interns, and paraprofessionals – whether employees or independent contractors – acting for the lawyer in rendition of legal services. See MRPC 5.3, Comment 2. It also relates to nonlawyers outside the firm assisting the lawyer in providing legal services, such as an investigative or paraprofessional service, a document management company to create and maintain a database for complex litigation, a third party that prints and scans client documents, and an Internet-based service to store client information. See MRPC 5.3, Comment 3.

Partners and managing lawyers must make reasonable efforts to ensure the firm has implemented measures to keep nonlawyers’ conduct compatible with the lawyer’s professional obligations. They, along with supervising lawyers, must take appropriate remedial action when they know (or should know) about a nonlawyer’s misconduct. Supervising lawyers also need to provide adequate oversight to prevent misconduct. All lawyers must avoid ordering, or ratifying with knowledge, any nonlawyer’s conduct that is not consistent with the lawyer’s professional obligations.

Be sure to read our related article, What Should a Lawyer Do to Meet Professional Responsibilities Regarding Nonlawyer Assistants? 

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

Posted on May 26, 2016 | Comments Off on 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

Posted on March 7, 2016 | Comments Off on 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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5 Must-Dos When Responding to an Ethics Complaint

Posted on November 18, 2015 | Comments Off on 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.

# # #

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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