In re Charges Unprofessional Conduct in Panel File No. 39302
| Decision Date | 31 August 2016 |
| Docket Number | No. A15–2078.,A15–2078. |
| Citation | 884 N.W.2d 661 |
| Parties | In re CHARGES OF UNPROFESSIONAL CONDUCT IN PANEL FILE NO. 39302. |
| Court | Minnesota Supreme Court |
Susan M. Humiston, Director, Binh T. Toung, Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, MN, for respondent.
Eric T. Cooperstein, Law Office of Eric T. Cooperstein, PLLC, Minneapolis, MN, for appellant.
The Director of the Office of Lawyers Professional Responsibility (the Director) issued a private admonition to appellant for engaging in the unauthorized practice of law in Minnesota. Appellant demanded that the Director present the charge to a Panel of the Lawyers Professional Responsibility Board (the Panel). Following an evidentiary hearing, the Panel affirmed the Director's admonition, finding that appellant had engaged in the unauthorized practice of law in Minnesota, in violation of Minn. R. Prof. Conduct 5.5(a)
, and that the misconduct was isolated and non-serious. Appellant filed a notice of appeal, contesting the Panel's determination that his conduct violated Minn. R. Prof. Conduct 5.5. See Rule 9(m), Rules on Lawyers Professional Responsibility (RLPR). We hold that engaging in e-mail communications with people in Minnesota may constitute the unauthorized practice of law in Minnesota, in violation of Minn. R. Prof. Conduct 5.5(a), even if the lawyer is not physically present in Minnesota. The Panel's finding that appellant engaged in the unauthorized practice of law in Minnesota, in violation of Minn. R. Prof. Conduct 5.5(a), was not clearly erroneous. Appellant represented a Minnesota couple with respect to a Minnesota judgment and attempted to negotiate, via e-mail, the satisfaction of that judgment with a Minnesota lawyer, and was not authorized to practice law in Minnesota temporarily. We further conclude that the appropriate disposition for this misconduct is an admonition.
Appellant is an attorney licensed to practice law in the state of Colorado, where he maintains an office and has been practicing environmental law since 1986. He has also practiced personal injury law for approximately 7 years. Part of his litigation practice includes debt collection. Appellant is admitted to practice law in New York, Florida, and Alaska, but is currently on inactive status in those states. Appellant is also admitted to practice in federal court in the District of Colorado, the District of Alaska, the Southern and Western Districts of New York, and the United States Court of Appeals for the Ninth and Tenth Circuits. Appellant is not licensed to practice law in Minnesota.
Appellant's mother- and father-in-law live in Minnesota. They contacted appellant in May 2014 to obtain assistance regarding a judgment entered against them in conciliation court in Minnesota for $2,368.13 in favor of their condominium association, Voyager Condominium Homeowners' Association, Inc. (VCHA). The couple told appellant that VCHA's attorney, D.R., a Minnesota-based lawyer and the complainant in this case, was harassing them with telephone calls attempting to collect on the judgment. The couple asked appellant for his assistance in negotiating with D.R. regarding payment of the outstanding judgment.
Appellant sent an e-mail to D.R. in late May 2014, informing D.R. that he was representing his in-laws and instructing D.R. to direct all future communications to him instead. Appellant and D.R. exchanged approximately two dozen e-mails between May 2014 and September 2014. In his first responsive e-mail to appellant, D.R. asked whether appellant was licensed to practice law in Minnesota. Appellant replied that he was not licensed in Minnesota and that if he needed to file suit in Minnesota he would hire local counsel. The subsequent e-mails consisted of discussions regarding the in-laws' assets and ability to pay and whether the VCHA judgment would have priority in a foreclosure sale. Appellant attached financial disclosure forms to one of his e-mails and made a settlement offer.
In the penultimate e-mail exchange between the two attorneys, D.R. asserted that appellant was engaging in the unauthorized practice of law because he was not licensed in Minnesota. The final e-mail prior to D.R. filing an ethics complaint was a settlement proposal from appellant to D.R. on that same day. The Director received D.R.'s ethics complaint in October 2014. Approximately 2 months after filing the complaint, D.R. sent additional e-mails to appellant to determine whether the settlement offer was still available and whether appellant still represented his in-laws. Appellant did not respond to the subsequent e-mails and had no further involvement in the case.
Nothing in the record shows that appellant researched whether his activities constituted the unauthorized practice of law under the Minnesota Rules of Professional Conduct. When asked by the Panel at the evidentiary hearing whether he researched the rules in Minnesota, appellant said that he did not recall. Appellant admitted that he had not researched Minnesota law on foreclosure and how it would apply to his in-laws' case. Appellant also admitted that when he considered the relevant law and the rules of professional conduct, he was more familiar with the laws and rules in Colorado.
The Panel affirmed the Director's admonition, finding that clear and convincing evidence demonstrated a violation of Minn. R. Prof. Conduct 5.5(a)
. See Rule 9(j)(1)(iii), RLPR. The Panel found that appellant
, appellant appealed the admonition to this court. Specifically, appellant challenges the Panel's determinations that he violated Minn. R. Prof. Conduct 5.5(a) and that his conduct did not fall within one of the exceptions in Minn. R. Prof. Conduct 5.5(c). We address each issue in turn.
We turn first to appellant's claim regarding Rule 5.5(a)
. It states, in relevant part, that “[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction....” Minn. R. Prof. Conduct 5.5(a).
Appellant contends that he did not violate Rule 5.5(a)
because he did not practice law in Minnesota. According to appellant, a lawyer practices in a jurisdiction in one of three ways: (1) by being physically present in the jurisdiction; (2) by establishing an office or other systematic and continuous presence in the jurisdiction; or (3) by entering an appearance in a matter through the filing of documents with a tribunal. Appellant argues that e-mail communication directed to a jurisdiction in which the lawyer is not admitted to practice does not fall within the definition of practicing law in a jurisdiction, and thus the Panel erred in its determination that he violated Rule 5.5(a).
We review findings made in lawyer discipline cases under a clearly erroneous standard. In re Panel Case No. 23236, 728 N.W.2d 254, 257–58 (Minn.2007). We “will uphold the panel's factual findings if they have evidentiary support in the record and are not clearly erroneous.” In re Mose, 754 N.W.2d 357, 360 (Minn.2008)
(citing In re Singer, 735 N.W.2d 698, 703 (Minn.2007) ).
Appellant concedes for the purpose of this appeal that he engaged in the practice of law, albeit in Colorado. Such a concession is consistent with our prior cases holding that negotiating the resolution of a claim on behalf of a client constitutes the practice of law. See In re Ray, 610 N.W.2d 342, 343, 346 (Minn.2000)
(); In re Ray, 452 N.W.2d 689, 693 (Minn.1990) (). Appellant maintains, however, that an attorney does not practice law in another jurisdiction merely by engaging in e-mail communications with individuals in that jurisdiction. Whether an attorney engages in the practice of law in Minnesota by sending e-mails from another jurisdiction is a matter of first impression.
does not explicitly define what it means to practice law in a jurisdiction. Certainly, physical presence is one way to practice law in a jurisdiction. But, as we set forth below, it is not the only way.
Other courts have addressed the issue of whether an attorney practices law in a jurisdiction even though the attorney was not physically present in that jurisdiction. In Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal.4th 119, 70 Cal.Rptr.2d 304, 949 P.2d 1, 5–6 (1998)
, the California Supreme Court analyzed what constituted the practice of law in a jurisdiction by looking at the nature of the legal representation in the jurisdiction, instead of focusing solely on physical presence. In determining what it means to practice law in California, the court considered whether the lawyer had “sufficient contact with the California client to render the nature of the legal services a clear legal representation” and whether the lawyers' contact with California was merely “fortuitous or attenuated.” Id. , 70 Cal.Rptr.2d 304, 949 P.2d at 5
. The court determined that a lawyer “may practice law in the state ... although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means.” Id. , 70 Cal.Rptr.2d 304, 949 P.2d at 5–6 ; see also
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