In re Charges Unprofessional Conduct in Panel File No. 41310, A17-0160

• Decision Date: 02 August 2017
• Docket Number: A17-0160
• Parties: IN RE CHARGES OF UNPROFESSIONAL CONDUCT IN PANEL FILE NO. 41310.
• Court: Minnesota Supreme Court

899 N.W.2d 821

IN RE CHARGES OF UNPROFESSIONAL CONDUCT IN PANEL FILE NO. 41310.

A17-0160

Supreme Court of Minnesota.

Filed: August 2, 2017

William R. Sieben, James S. Ballentine, Schwebel Goetz & Sieben, P.A., Minneapolis, Minnesota; and Charles E. Lundberg, Lundberg Legal Ethics, P.A., Roseville, Minnesota, for appellant.

Susan M. Humiston, Director, Megan Engelhardt, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for respondent.

Considered and decided by the court without oral argument.

OPINION

PER CURIAM.

In this case, appellant, a Minnesota attorney, contests a private admonition issued by a panel of the Lawyers Professional Responsibility Board (Panel) for disclosing confidential communications with a former client, in violation of Minn. R. Prof. Conduct 1.9(c)(2). Appellant contends that he did not disclose confidential communications with a former client and that the decisions of an individual board member of the Lawyers Professional Responsibility Board and the Panel were inadequately explained, in violation of Rule 8(e), Rules on Lawyers Professional Responsibility (RLPR). We conclude that the Panel's finding that appellant disclosed confidential communications with a former client, in violation of Minn. R. Prof. Conduct 1.9(c)(2), was not clearly erroneous and that the appropriate disposition for this misconduct is a private admonition. We further conclude that the decisions of both the individual board member and the Panel were adequately explained. We therefore affirm the private admonition.

FACTS

Appellant was admitted to the practice of law in Minnesota on October 31, 2008. This attorney-discipline matter arises out of appellant's representation of a client who had been injured in a motor vehicle accident and brought a claim for damages against an insurance company. Appellant's representation was limited to seeking a settlement against the insurance company, and appellant consistently informed his client that he would not pursue litigation. On March 11, 2015, appellant sent a settlement demand to the insurance company requesting $50,000, and in July the insurance company offered to settle the case for $20,000.

On August 13, 2015, appellant and the client discussed the settlement offer. Appellant claims that the client accepted the offer, but the client disputes this claim. On September 4, the client asked appellant to file a lawsuit against the insurance company on his behalf. The following week, appellant told the client that the client had already accepted the $20,000 settlement and that if he reneged on the settlement agreement, the insurance company would likely file a motion to enforce the settlement. Appellant also reminded the client that he would not pursue litigation. On September 17, the client terminated both appellant's and his firm's representation.

The next day, appellant sent an e-mail to the insurance adjuster, stating as follows:

I was notified my [sic] [client] yesterday that he is terminating my representation and that he is not accepting the settlement offer. He got upset apparently that Medicare is taking a while, as it always does, and now doesn't want the settlement. I advised him that he already accepted it, there is no rescinding his acceptance. He is picking his file up today apparently. I'm going to send a lien for our fees and costs to you. I'm assuming you will be having legal bring a motion to enforce the settlement. He's been advised of all of this. Sorry for the inconvenience but he is a very difficult client. Let me know if you have any questions.

Appellant's client filed an ethics complaint, alleging that appellant forced him to accept the settlement offer and improperly filed an attorney's lien in the case. The matter was referred to a District Ethics Committee (DEC) for investigation, which concluded that appellant did not force the client to accept the settlement agreement or improperly file an attorney's lien. See Rule 6(b), RLPR (providing that a DEC may investigate certain ethics complaints). The DEC concluded, however, that appellant had violated Minn. R. Prof. Conduct 1.6 and 1.9 by disclosing confidential client communications. Based on this conclusion, the DEC recommended that the Director of the Office of Lawyers Professional Responsibility (Director) issue a private admonition. See Rule 7(b), RLPR (identifying the different recommendations that a DEC may make to the Director following an investigation of a complaint).

After reviewing the DEC's findings and recommendation, the Director issued a determination that discipline was not warranted. See Rule 8(d), RLPR (identifying the dispositions of a complaint that the Director may make following an investigation). The client appealed, and a member of the Lawyers Professional Responsibility Board reviewed the matter. See Rule 8(e), RLPR (stating that "[i]f the complainant is not satisfied with the Director's disposition[,] ... the complainant may appeal the matter" and that the appeal will be assigned to a board member). The individual board member stated that he had examined the documents related to the complaint and concluded that he concurs "with the DEC's Report and believe[s that appellant] violated Rules 1.6 and 1.9 of the Minnesota Rules of Professional Conduct." The board member directed the Director to issue a private admonition, which occurred on August 25, 2016. See Rule 8(e)(3), RLPR (stating that if a DEC "recommended discipline, but the Director determined that discipline [was] not warranted, the Board member may instruct the Director to issue an admonition").

Appellant requested that a panel review the admonition. See Rule 8(d)(2)(iii), RLPR (authorizing a lawyer who has been admonished to "demand that the Director so present the charges to a Panel which shall consider the matter de novo"). The Panel concluded that appellant's statements in the September 18, 2015 e-mail violated only Minn. R. Prof. Conduct 1.9(c)(2)¹ and that appellant should be privately admonished for this misconduct. Under Rule 9(m), RLPR, appellant appealed the admonition to our court, arguing that he did not violate Minn. R. Prof. Conduct 1.9(c)(2) and that the individual board member and the Panel had failed to adequately explain their decisions.

ANALYSIS

We will uphold the findings by a Lawyers Professional Responsibility Board panel when those findings have evidentiary support in the record and are not clearly erroneous. In re Panel File No. 39302 , 884 N.W.2d 661, 665 (Minn. 2016). Interpreting the Minnesota Rules of Professional Conduct and the Rules on Lawyers Professional Responsibility presents a question of law, which we review de novo. In re Grigsby , 815 N.W.2d 836, 841 (Minn. 2012) ; In re Q.F.C. , 728 N.W.2d 72, 79 (Minn. 2007).

I.

The Director argues that appellant violated Minn. R. Prof. Conduct 1.9(c)(2) through the following statement in his e-mail to the insurance adjuster: "I advised [my client] that he already accepted [the settlement offer], there is no rescinding his acceptance." This "I advised" statement, the Director argues, violates the "very core of the attorney-client relationship."

As an initial matter, appellant argues that the Director forfeited this argument by not raising it at the earlier stages of the proceeding. We disagree. The Director did not forfeit this theory. At each stage in the proceeding, the "I advised" statement was cited as a violation of the Rules of Professional Conduct. The Panel decision quoted this statement and concluded that it "constitutes clear and convincing evidence of a violation of Rule 1.9(c)(2)." This statement also was expressly mentioned in the Director's admonition as a reason for discipline. The Director quoted the e-mail in full and concluded: "Based upon these facts[,] ... [appellant's] statements in his September 18, 2015, e-mail to the insurance adjuster violated Rule 1.9(c)." Finally, the DEC determined that appellant disclosed confidential client information because appellant's e-mail stated that he "advised complainant the offer was ‘already accepted’ and acceptance could not be rescinded." The theory that appellant violated the Rules of Professional Conduct by making the "I advised" statement is not being raised for the first time before us.

Having concluded that this argument is properly before us, we next turn to whether this statement violates Rule 1.9(c)(2). A lawyer who has formerly represented a client in a matter is prohibited from "reveal[ing] information relating to the representation except as these rules would permit or require with respect to a client."² Minn. R. Prof. Conduct 1.9(c)(2). Because appellant's client terminated the representation the day before appellant's e-mail, appellant's conduct is governed by Rule 1.9.

Appellant concedes that his statement in the e-mail—that he had advised his client that the settlement offer had been accepted by the client and that "there is no rescinding his acceptance"—disclosed "information relating to the representation." He also does not dispute that it reveals details of appellant's confidential discussions with his client. Nevertheless, appellant contends that this disclosure does not violate Rule 1.9(c)(2) because it was not "that much of a revelation" and would not have "any conceivable effect on the client's claim." But nothing in the language of the rule limits the prohibition to significant revelations or contains a requirement that the improper disclosure prejudices a client. See Minn. R. Prof. Conduct 1.9(c)(2). As we have determined, the rules protecting client confidences oblige a lawyer to "maintain all client confidences, significant or insignificant." Lennartson v. Anoka-Hennepin Indep. Sch. Dist. No. 11 , 662 N.W.2d 125, 131 (Minn. 2003) (emphasis added). Accordingly, we conclude that the Panel did not clearly err by finding that appellant's e-mail violated Minn. R. Prof. Conduct 1.9(c)(2).

II.

Next, we turn to the appropriate discipline for a...