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Because of Stupid Ethics Ruling, No Good Deed Goes Unpunished In Minnesota

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shutterstock_453438994Let’s say that you’re an attorney, duly licensed and happily practicing law in Colorado. One evening, your wife mentions that her parents in Minnesota are having a tough time resolving a dispute with a creditor, and asks if you could intercede on their behalf. Now, you’re well aware of the pitfalls of working for family members – after all, they may dig in their heels on an unsupportable position or may be too embarrassed or ashamed to share what really happened, which can compromise effective representation. But that’s not the case here – you like your in-laws and believe that they’re honest and reasonable. And so you agree to lend a hand (gratis, of course), figuring that worst case scenario, you’ll make a couple of phone calls to opposing counsel and maybe lose a couple of hours of personal time. But never in your wildest dreams would you ever imagine that you could risk losing your bar license.

OK – I’ve exaggerated a bit. But not much.  In one of the most outrageously stupid grievance rulings of all time — right up there with disbarring an attorney who WON his client’s case against huge odds  or suspending a lawyer for 6 months for using half of the client’s retainer payment to bring a more experienced lawyer on board and not disclosing a fee split—the Minnesota Supreme Court affirmed a grievance committee’s formal admonition of a Colorado attorney for unauthorized practice of law in Minnesota – which consisted of writing of couple of emails to opposing counsel in an effort to resolve his inlaws’  dispute with their condo association over a $2380 judgment. (H/T LA Legal Ethics Blog for first reporting on this).

The facts of the case are so egregious that you should should read the decision to believe it – but I’ll briefly summarize the highlights. A Colorado lawyer, with 30 years of experience under his belt, agreed to help his in-laws resolve a debt collection dispute. He emailed opposing counsel to inform him that he was representing his inlaws, and opposing counsel responded by asking whether the Colorado lawyer was licensed to practice in Minnesota. The Colorado lawyer admitted that he was not, but stated that if a suit were filed, he would retain local counsel.

Thereafter, between May and September 2014, the two attorneys exchanged a series of emails exploring how the claims might be resolved, with the Colorado lawyer proposing a settlement offer. Finally, in October 2014 – six months and a dozen email exchanges later – opposing counsel informed the Colorado attorney of his intent to file an ethics complaint, which he did.  (As an aside, you have to wonder why the opposing counsel wasn’t grieved for failing to report the alleged misconduct or for aiding and abetting in UPL by continuing to negotiate with an unlicensed lawyer). The grievance committee found the attorney engaged in UPL and did not fall into any of the exceptions under Rule 5.5 and issued a formal admonition.

On review, the Colorado lawyer first argued that although he was engaged in the practice of law (apparently, he had no choice but to concede this point based on Minnesota precedent in Minnesota), his conduct did not take place in Minnesota since he dealt with opposing counsel by email from Colorado.

The Court disagreed, citing Birbrower v. Superior Court, the seminal case establishing that a New York-based lawyer may be deemed to be practicing law in California without having a  continuous physical presence in the state.  Bierbower, however, is readily distinguishable because there, the New York attorneys had made several trips to California to advise their client – an important fact relied upon by the court in finding that the New York lawyers were practicing in the state. By contrast, the Colorado lawyer never stepped foot in Minnesota when dealing with opposing counsel, nor did he ever attempt to solicit Minnesota clients or hold himself out as practicing in the jurisdiction.

Next, the Colorado lawyer argued that his short-term representation of his in-laws fells into an exception to the UPL rules and permit an out-of-state lawyer to temporarily represent a client with whom he has an existing relationship.  The court rejected that claim too, finding that the temporary representation exception applies to relationships between clients and their attorneys, and not clients and their in-laws who happen to be attorneys.

The dissent vigorously disagreed with the court’s refusal to read the exception broadly enough to include family members – and found that it would have lasting and detrimental repercussions:

 Today’s [majority] decision represents a step backwards. By the court’s reasoning, when family members or friends—an abundant source of clients—email or call a practitioner admitted in another state, seeking assistance in areas in which the practitioner is experienced and competent, relying on a relationship of trust and confidence, they must be turned away. Those potential clients must then expend unnecessary time and resources to research and hire local counsel—even for minor, temporary services in which the out of-state lawyer could have provided efficient, inexpensive, and competent service. Simply put, the court’s decision is contrary to the principles and policy goals intended by Rule 5.5(c).

Alas, this ruling presents yet another example of not just a grievance committee but also a court getting so caught up in pointless academic masturbation that they completely forgot that the point of ethics rules is to protect clients and the public.  Here, the in-laws, who were the clients weren’t harmed – after all, it was the opposing counsel, not the in laws who filed the grievance (incredibly, the court went so far as to suggest that the in-laws were harmed because their debt was not resolved as quickly as it would have been if their son-in-law hadn’t gotten involved. Of course, the same could be said of any client who retains a lawyer to dispute a debt). At the end of the day, the only group harmed by this ruling are Minnesota residents who can no longer ask their relatives who are lawyers in other states for short-term help on a legal matter.

 

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  • Paul Spitz

    Isn’t it an ethical violation for one attorney to file a grievance against another in order to gain leverage in a matter?

  • I am astonished UPL was used against one of the bar’s own since it is predominantly used to protect the monopoly lawyers have on all things legal from paralegals who don’t work for a law firm and take on uncontested legal document preparation work. Now you know what it’s like to be bludgeoned with the instrument of your own oppression. I’d be lying if I said I did not enjoy a certain degree of schadenfreude. Further, ask yourselves why someone who actually possesses a license to practice law is now facing being disbarred under the above referenced circumstances, meanwhile illegal immigrant, Sergio Garcia, in California was permitted to practice law. Essentially, a criminal was granted a law license. Something is rotten in the house of law and UPL is just the tip of the metaphorical putrid fish head.

  • 3L

    It is. However, do the facts support a finding that MN attorney acctually attempted to leverage his client’s position by filing the complaint?

    Sure, MN attorney may have taken his ball and gone home for whatever reason during the game; and even though the facts (above) clearly raise questions about the MN attorney’s conduct (he probably found himself backed into a corner in the negotiation and decided to call the bar at that point instead of actually dealing with the weaknesses in his client’s position) I would certainly hope the bar would need more to find an attorney guilty of using a UPL complaint as leverage in a negotiation.

    It seems without more, the facts do not prove the MN attorney used ths complaint for ULC against the CO attorney to leverage his client’s position in the negotiation itself. Nor did this attorney indicate the CO attorney could buy the MN attorney’s silence as to the UPL if the CO attorney gave him/his client [something of value] .

  • BEPearceLaw

    I’ll bet the Minnesota judiciary wrings its collective hands over the “lack of access to justice,” too. This is an embarrassment to the entire profession.

  • Eric Cooperstein

    There is no indication in the record that the complaint was used as leverage. Negotiations over the judgment ended when the MN lawyer said he was filing a complaint.

  • Brian Tannebaum

    This is UPL. Practicing law in another state is UPL. There is no exception for “I know a family member in my state who can help me so because I should be able to use my free family member, the Bar shouldn’t have jurisdiction to enforce the Rules.” Before everyone screams, I don’t think this is a good use of the UPL Rules, but where is the line? Emails don’t count but phone calls do? Letters aren’t OK but texts are? If my uncle is just trying to help it’s OK? Technology is used for communication. An email can evidence a contract, or it can evidence legal advice. To argue that email isn’t the same as something else is a dangerous path.

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