• September 3, 2013

As some of you may have noticed, there has been a spate of disciplinary actions against Minnesota attorneys by our Supreme Court.  I’ve noticed because I subscribe to the MSBA’s “Court Opinions by email” service, as many of you probably do.  While I subscribe to keep current with case law, sometimes I read an opinion because it sounds weird, edifying, or indicates that an unlikable former opposing counsel lost big.

I also read those opinions that appeal to that same emotional response that prevents us from not looking at that terrible car accident on the side of the road:   the disciplinary and disbarment opinions.  Until subscribing to the “Court Opinions by email” service, I had never read any of these opinions because I never had a reason to.  But when I first saw these opinions in my email box with the abbreviations “ATTY DISCIP” and “PROF RESP,” morbid curiosity took over.

After having read about 10-12 such opinions in the last year or so (including 7-8 in the last two month), I don’t  think  I can read them any longer, and I’m not sure if anyone else should be.  In addition to having some guilt about being a voyeur—these opinions detail not just the negligence and big screw-ups of the attorneys involved but also reveal personal information including mental illness or chemical dependency—I question what value publishing these opinions has other than publicly shaming the attorneys involved.

Here’s my case:

Exhibit A:   Supreme Court Opinion Case A12-0326 dated July 24, 2013.

The Supreme Court ordered that the attorney, “Jane Doe,” be transferred to disability status because “she is unable to competently represent clients due to mental health issues.”

This case was initiated by the Director of the Office of Lawyers Professional Responsibility’s petition for disciplinary action against Doe.  After Doe indicated she was in the hospital and could not contest the petition, the Court appointed a referee who ordered Doe to submit to an independent medical examination.  The referee “made extensive findings about the serious mental health issues that [Doe] experienced during 2012….” The Opinion notes that it granted in part Doe’s motion to place the referee’s findings under seal, and states that the Opinion only contains “a general discussion of [Doe’s] mental health issues.”   But it provides an eight-page “summary” of Doe’s “major psychological illness” and her sometimes bizarre conduct including episodes when her “symptoms exacerbated to the point that she twice “went ‘on the run,’ leaving her home (and her clients) while she was in emotional crisis.”

Exhibit B:  Supreme Court Opinion in Case  A10-1705 dated July 31, 2013.

The Supreme Court ordered “John Smith” to be conditionally reinstated after disbarment because he proved by clear and convincing evidence that he “has undergone a moral change sufficient for clients to have complete confidence in his competence and morality.”

This sounds like a happy outcome, right? Well, it isn’t.  Most of the nearly twenty-page Opinion is spent detailing the reasons for Smith’s original disbarment (making improper financial advances to clients and charging clients a 15% monthly rate for those advances without disclosing his conflict of interest in those transactions, making false statements under oath about the transactions, temporarily expropriating client funds, etc.).  The Opinion expresses doubt about whether Smith has undergone a moral change, and provides details of Smith’s struggle with alcoholism, his failure to report nearly $200,000 in federal income tax, and his psychologist’s testimony that Smith has improved his empathy and ability “to express emotions.”  Do we really care about the latter?

The Opinion ends by granting Smith conditional reinstatement and placement on probation for three years with  nine very detailed conditions under which Smith may return to the practice of law:  not practicing solo but under the direct supervision of a licensed attorney, not owning any equity in a law firm, submitting all law office books and trust account books to the Director at such intervals as the Director deems necessary to determine compliance with Minn. R. Prof. Conduct 1.15, and submitting random urinalysis no more than twice monthly at his own expense and a drug screening facility approved by the Director.

No doubt in three years, there will be another discussion of Smith’s struggles when he applies to have the conditions removed when his probation is over.

Argument:  We do not need to know the personal facts involved in disciplinary actions by the Office of Lawyers Professional Responsibility, but rather, just how the rules  broken.  The public display of the very grim and personally humiliating details of attorneys’ lives and work unraveling serves no purpose.  They do not provide “teachable moments” to practicing attorneys.   Rather than publish these personal histories wouldn’t the public and the profession be better served by the Director publishing summaries of these disciplinary actions and annual reviews of novel or common  misconduct issues the Office has encountered?  Yes, of course the Office should publish the names of attorneys who have been disciplined and the specific discipline, but detailed, published Opinions go too far.

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