• August 4, 2017

Flickr Creative Commons phote by Simon Scott

A personal injury plaintiff’s lawyer (“PI Guy”) takes a contingent fee case for a car accident victim (“Vic”). PI Guy explains to Vic that PI Guy “would not pursue litigation” for Vic’s case.

But PI Guy makes a settlement demand on Vic’s behalf of $50,000 on the adversary insurance company. Adversary counters with an offer of $20,000. PI Guy and Vic disagree on whether Vic accepted the $20,000 settlement offer. Vic says he did not accept the offer. PI Guy says Vic did.

PI Guy tells Vic that Vic is bound by and required to take the $20,000. Predictably, Vic fires PI Guy.

PI Guy turns around and sends this email to Adversary, the insurance company:

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.

Do you see any ethical problem there?

We do. From our perspective, this was an egregious breach of the lawyer’s obligations to his former client — the obligation of confidentiality, most obviously.

The volunteer District Ethics Committee found ethics violations (Rule 1.6, Confidentiality, and Rule 1.9, duties owed to former clients) and recommended discipline in the form of a private admonition.

After reviewing the DEC’s findings and recommendation, the Director of the Office of Lawyers Professional Responsibility issued a determination that discipline was not warranted.

Vic appealed and a member of the Lawyers Professional Responsibility Board directed the Director to issue a private admonition, as allowed under the rules. RLPR 8(e)(3).

PI Guy sought review by the Minnesota Supreme Court appealing the private admonition. The Minnesota Supreme Court affirmed it.

In our view, there are several extraordinary things here. First, it is extraordinary that the PI Guy did not understand the obligations that he owed his client (former or otherwise). Second, the Director of the Office of Lawyers Professional Responsibility apparently does not seem to recognize or value the obligations either. Third, that lawyers took PI Guy’s case all the way to the Minnesota Supreme Court as if sending an email to one’s client’s adversary and bad-mouthing one’s client can possibly be squared ever with a lawyer’s ethical obligations.

Finally, the Minnesota Supreme Court found the misconduct “isolated and nonserious.”

Appellant stated that he had advised his client that the settlement offer was already accepted and that once accepted, the client could not rescind his acceptance. The insurance adjuster already knew that the client had accepted the offer, so the only information disclosed was that appellant made these statements to the client. The cumulative weight of the misconduct is also minimal because it involved a single e-mail. Likewise, there was minimal, if any, harm to the client in this case. Because the only new information disclosed was that appellant had discussed these issues with the client, the insurance adjuster was not able to use the disclosure to the client’s disadvantage.

This minimization of the ethical breach is premised on buying the lawyer’s position that Vic had, in fact, agreed to the $20,000 settlement offer (which Vic denies). Why assume that?

And, “[t]he cumulative weight of the misconduct is also minimal because it involved a single e-mail”? That is an odd metric. It’s 2017. We all know that lives and livelihoods can be destroyed by “a single e-mail.”

Let’s say, hypothetically, that Vic did change his mind and lied about his earlier acceptance of the $20,000 settlement offer. “Buyer’s remorse.” It happens. But if PI Guy had kept his mouth shut, Vic (with or without a new lawyer) might very well have been able to undo or renegotiate the so-called settlement. This might seem disagreeable or even repugnant to many of us but can we agree that PI Guy would be out of line if he did serious damage to Vic’s subsequent strategic options in the matter (and that his email would have done so)?

The Minnesota Supreme Court pointed out that “this type of disclosure harms the legal profession because it undercuts the public’s trust in attorneys.” No doubt. This email reeks of conflict of interest in which PI Guy is more interested in currying favor with his insurance company adversary (with whom PI Guy undoubtedly has recurring business) than he is in doing what was right and best for Vic, his former client — to whom he is supposed to owe “the utmost loyalty and good faith” (that is, a so-called fiduciary duty).

Of greatest concern to us in this story, is that the Director of the Office of Lawyers Professional Responsibility found that no discipline was warranted in this case. This is the Office that investigates when a lawyer’s IOLTA trust account is overdrawn by $0.28, the office that publicly disciplines lawyers for sloppy notary stamping practices. The Office seems more forgiving when a lawyer betrays the confidence of a “former client.”

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