Before commenting on the lessons learned from 12 years as a volunteer investigator for the Fourth District Ethics Committee on behalf of Minnesota’s Office of Lawyers Professional Responsibility, we start by urging all Minnesota lawyers (and even non-lawyers) to consider volunteering. It is not a huge commitment of time. It is, in our view, an extremely valuable form of “continuing legal education” even if one does not earn “CLE credits” for it. It is also an important service not only to the legal community but to all Minnesotans (and others) who seek or get legal services in Minnesota.
(Another time, perhaps, we will tackle the issue of the relationship between “CLE credits” and genuine continuing legal education. Suffice it to say, for now, that we think the relationship is not 1:1 and far closer to an inverse relationship.)
Unhappy Client ≠ Unethical Lawyer
When I started my 12 years as an ethics investigator, a more senior lawyer told me, “I’ve been doing this for years now and I have yet to find an ethics violation.” I was then stunned and confused when I found unethical conduct in my first two investigations as a volunteer investigator.
Over the years, however, I found that, indeed, the vast majority of complaints were unfounded. Complaints often fell into the following categories: (1) “things did not go as expected;” (2) “I dislike my lawyer;” (3) “My lawyer is a bad communicator;” (4) “my lawyer billed the hell out of me/my lawyer is a thief.”
In theory, all of these common gripes could, on investigation, reveal violations of ethical rules (except maybe the one based on pure personal dislike). On the other hand, none of them are clear and obvious violations, except, of course, for the “lawyer = thief” complaint. In our experience, however, lawyers stealing clients’ property (money or otherwise) is quite rare. As discussed below, often the “lawyer = thief” complaint is really a misplaced indictment of the high cost of our legal system.
Many of these complaints come from clients’ unrealistic expectations, either about the legal engagement itself or about finer details, like a lawyer’s availability. (We have literally seen complaints that voice-mails were not returned within 48 hours. Of course, we would all like our voice-mails returned promptly but 24/7 availability is not and could not possibly be an ethical obligation.)
Lawyers can be Liars
We draw more from our experience doing plaintiff’s side legal malpractice work than our work as a Fourth District Volunteer Investigator but, in both realms, we have been bitterly disappointed to sit across the table from fellow Minnesota lawyers and listen to them lie (sometimes under oath).
This is simply human nature. It is an unsavory (perhaps even disgusting) fact of life that almost every single one of us, if our backs are against the wall or if we perceive ourselves to be in mortal danger, will abandon moral high ground to save ourselves from punishment. (And some of us have a distorted sense of “mortal danger,” feeling the compulsion to lie when others of us would not.)
We have seen many exceptions to this lesson learned. We have seen lawyers who admit their misconduct and who take their lumps. We’ve nevertheless been surprised by the number who don’t. Face-to-face, eye-to-eye, with knowledge not only of falsity but also knowledge that others know they are lying, some lawyers lie.
Lawyers need lawyers
In some percentage of ethics complaints, lawyers hire ethics experts to defend them. (Here are some we think of highly: Eric Cooperstein, Kelly Putney, Barry O’Neil, Richard Thomas) They are worth every penny, in our view. Legal ethics are not the same as morals; they are not self-evident or obvious. There are carve-outs, exceptions, exceptions to exceptions, internal inconsistencies or ambiguities, etc., etc. Further, the investigation process is not straight-forward. There are several levels of review and it is valuable to have a lawyer experienced with the process, the various decision-makers, the standards of review, and an understanding of realistic outcomes.
Several times when investigators had a strong impression that a lawyer’s conduct had crossed an ethical line, it took a lawyer who specializes in defending such claims to navigate the complexities of the rules and demonstrate that no line had, in fact, been crossed.
I am proud to be a Minnesota lawyer
Notwithstanding the point, above, that Minnesota lawyers can be liars, in general, I was often impressed by many lawyers who were the subject of ethics complaints.
Not only were findings of misconduct the exception rather than the rule, I was often impressed by lawyer’s record-keeping, their client communications, their integrity, and their honesty.
Often, at the conclusion of an ethics investigation, it was difficult to observe the confidentiality of the process and the limited role of an investigator. I wanted to reach out to the lawyer and express to them my admiration for their professionalism and sound representation. (I bit my tongue every time.)
A Flawed Legal System Spawns Unhappiness & Ethics Complaints
Major sources of complaints against Minnesota lawyers are the cost, both financial and temporal and the uncertainty of results. “The lawyer told me it would cost $____ and be over in _____ months. It was much more than that….”
Again, it is possible that a lawyer’s representations to a client in an engagement might be false and might be legitimate bases for ethics complaints. In our experience, however, lawyers are generally emphatic about the uncertainty and indeterminacy of many legal engagements; clients, over time, have selective memories, remembering, for example, the lawyer’s estimates or predictions but ignoring the accompanying disclaimers.
The fact is that our legal system’s problems are infuriating. It is no wonder that many “customers” of legal services are left bewildered, angry, and disgusted. In many cases, though, their lawyers are not the cause of their disappointment and their complaints are misplaced.
I would be curious to know whether you consider it a violation of ethics for a senior partner in a law firm to bill a client for eight hours of time spent in mediation when, in fact, the attorney wasn’t even in the state during that time period.
Or if the same law firm billed a client for many, many hours spent on phone calls that never took place- and I have the phone records to prove it.
Would you consider it a violation of ethics for an attorney to take a case when she is so incompetent that she apparently had no clue that there is a statutory limit of $1000 in damages when she filed my lawsuit- until we got to mediation two and a half years later and when the issue came up I had to ask her to look it up- and she couldn’t even manage that- she had to have her paralegal do it for her.
Would it be a violation of ethics if a law firm refused to sign and return a Substitution of Counsel form after being fired, and held the form and my case files for over two weeks while they prepared a lien against the case which included a bill for over $32k, of which at least $20k was for work that was never performed- again, I have proof of much of that.
Or would it be a violation of ethics for an attorney who is representing two different plaintiffs to combine the two cases into one lawsuit and then charge one client 100% of the some of the costs rather than splitting costs between both plaintiffs- especially when cost savings was one of the supposed benefits, as told to us by the attorney, for combining the two? I think the only reason for combining the cases into one lawsuit was so that the attorney could collect two separate contingency fees while only doing a fraction of the work that should have been done.
Just curious, because all of these things are happening to my husband and me right now, here in Minnesota, and I am guessing that the senior partner of the law firm knows that nothing meaningful will be done to him in terms of discipline if he is caught. Because, lawyers.