Minnesota Supreme Court Takes Important Step Reversing Attorney Misconduct Admonition in Unbundled Case

This may be the first time that a state Supreme Court has intervened to protect the integrity and force of a limited scope agreement. As such it is an important step in defending the force of the rules that protect attorneys from judges, and attorney discipline bodies who appear to ignore the concept.  The decision is here.

The case arose from an alleged failure by an attorney’s failure to appear in court.  Several of the five occasions on which the attorney purportedly failed to appear in court are disposed of by the fact that they were adjourned or the attorney was not at that point “of record”, but, in one, the attorney was formally “of record” and did not appear at an actual hearing.  However, as explained by the Court (bold added):

At most, the record establishes that A.B. failed to attend only a single hearing: the one that occurred on June 20. As to each of the other hearings, the district court rescheduled them, or A.B. was not required to appear because he was no longer counsel of record. Because there were not “four consecutive hearings” at which A.B. failed to appear, we conclude that the panel’s determination that A.B. violated [*4] Minn. R. Prof. Conduct 8.4(d) rested on a clearly erroneous factual finding. See In re Jones, 834 N.W.2d 671, 677 (Minn. 2013) (stating that a factual finding is clearly erroneous if it does not find support in the record). Based on the unique facts of this case, we further conclude that the panel erred when it determined that A.B.’s failure to attend the June 20 hearing violated Minn. R. Prof. Conduct 8.4(d).[fn2] A.L. instructed A.B. not to attend the hearing pursuant to the terms of a limited-scope legal representation, the propriety of which the Director does not challenge. A.B. reasonably believed that A.L. would attend the hearing, at which point she could inform the court that she had instructed A.B. not to attend. Under these circumstances, we vacate the admonition because A.B.’s conduct was neither prejudicial to the administration of justice nor warranted discipline.

Perhaps the greatest importance is in the Court’s finding that “[the lawyer] reasonably believed that [the client] would attend the hearing, at which point she could inform the court that she had instructed [the lawyer] not to attend.”  In other words, that lawyers can reasonably believe that unbundled clients will inform the court of that status, and thus do not need to take independent action to ensure that the court knows of the status — even when, as here the client in fact failed to come to court.

I suspect that state supreme courts relatively rarely reverse the merits of attorney discipline decisions (although changes in penalty may be more frequent) and so this protection of unbundling can be given some greater weight.

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About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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