Wednesday, October 8, 2014

No Discipline Where Attorney Had Limited Scope Agreement

The Minnesota Supreme Court has reversed and vacated an admonition issued by the Director of its Office of Lawyers Professional Responsibility.

The attorney had allegedly engaged in conduct prejudicial to the administration of justice as he had failed to appear at a series of court hearings in a divorce case and "because he did not inform the district court that he had a limited-scope agreement with his client that excluded court hearings."

The attorney and client reached a fee agreement to prepare paperwork and handle a single uncontested hearing. The agreement was for an hourly fee if there was further work to be done.

The district court granted the divorce but reserved decision on support and custody. The court entered a divorce decree that effectively concluded the attorney's representation.

Further hearings followed without the attorney being present. When the judge advised the parties that an amended divorce decree was necessary, the client again consulted the attorney. After "implictly returning to attorney of record status" at that juncture, the attorney missed a single court hearing.

The judge filed the bar complaint.

The court here reversed a panel decision finding that the attorney's non-appearence was prejudicial to the administration of justice.

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 Minn. R. Prof. Conduct 8.4(d) rested on a clearly erroneous factual finding...

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). 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.

An important aspect of the opinion is its acknowledgement of the efficacy of the limited scope agreement. That is not often seen in the disciplinary context. (Mike Frisch)

Bar Discipline & Process | Permalink

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