Discipline Defense

Defending Ethics Complaints

When a complaint comes in from the Office of the Director of Lawyers Professional Responsibility (OLPR), lawyers have many reactions. Some panic, some get angry, some are quick to confess wrongdoing. At some point, lawyers think about whether they should have counsel. They think about the cost, they think about the potential embarrassment, but they rarely consider how complicated and confusing the discipline process can be.

Take a look at this map of Minnesota’s attorney discipline process. Not pretty, is it? If you practice in Hennepin County, there are additional steps that are not even on that map.

Ironically, many of the complicated aspects of the discipline process arise from due process requirements built into the system to help lawyers. But because most lawyers do not have regular contact with the discipline system, they go through the process unaware of their rights.

Certainly, more than 80% of all complaints received by OLPR are dismissed. On the other hand, the OLPR issues about 125 private admonitions each year, about 20 to 25 private probations, and pursues public discipline against 30 to 40 lawyers each year. Although an admonition is private and the lowest form of discipline, once a lawyer receives an admonition, it stays on his or her record permanently. And because admonitions are private, it is very difficult for lawyers to figure out whether an act of misconduct will result in discipline, except for the Director’s annual summary of a half dozen or so admonitions that were issued in the previous year. Some offenses that seem minor to practicing lawyers, such as improper notarization of documents, actually routinely result in public discipline, whereas overdrafts on a lawyer’s trust account (which many lawyers think will lead them straight to a suspension) often do not result in any discipline at all.

There are also practical problems when lawyers represent themselves. The expression “the cobbler’s children have no shoes” applies to lawyers who try to represent themselves. Many lawyers have a hard time writing a calm, neutrally worded, narrowly tailored response to an ethics complaint, and never stop to consider that their responses could become exhibits in their own discipline hearing! Remember the old saying about the lawyer who represents him or herself?

I spent over five years working at OLPR, reviewing complaints, drafting dismissals and admonitions, and litigating public discipline cases against attorneys. Nearly all of my clients are lawyers. I know the black-letter rules as well as the unwritten rules of what factors determine the level of discipline in a case. I can also provide you with a range of services, from a one-hour consultation about your complaint to complete representation through discipline hearings and oral argument before the Minnesota Supreme Court. When you’re dealing with Minnesota’s discipline process, you need more than just a map.

E-mail: etc@ethicsmaven.com