Minnesota Lawyer Blog

I don’t go to movies for reality and certainly not for advice in how to practice law. Nevertheless, I thought I’d ask a couple of local ethics gurus about some of the professional dilemmas—and there are plenty of them—that arise in the course of the new movie, Michael Clayton.

The movie, as you may know from the omnipresent advertising, involves a products-liability lawsuit that threatens to go south in a big way when the lead litigator, a manic depressive, goes off his meds and begins to reveal the client’s dirty secrets. (For more details, see yesterday's blog post, "Michael Clayton' provides an interesting view of in-house work".)

Minneapolis attorney Chuck Lundberg offered the following observations:

An ABA formal opinion states: If a lawyer's mental impairment is known to partners in a law firm … steps must be taken that are designed to give reasonable assurance that such impairment will not result in breaches of the Model Rules. If the mental impairment of a lawyer has resulted in a violation of the Model Rules, an obligation may exist to report the violation to the appropriate professional authority.

If the firm removes the impaired lawyer in a matter, it may have an obligation to discuss with the client the circumstances surrounding the change of responsibility. If the impaired lawyer resigns or is removed from the firm, the firm may have disclosure obligations to clients who are considering whether to continue to use the firm or shift their relationship to the departed lawyer, but must be careful to limit any statements made to ones for which there is a factual foundation.

The obligation to report a violation of the Model Rules by an impaired lawyer is not eliminated by departure of the impaired lawyer.

Minneapolis attorney Bill Wernz agrees, and adds:

If no one else in the firm can handle the case properly, the firm should advise the client to get a new law firm. If the client wants to settle the case and if the settlement is reasonable, the firm could still advise on that.

As to the firm's obligations vis a vis the "smoking gun," it depends on whether evidence has been held back from discovery responses or false statements have been made. Rule 3.3 (candor toward the tribunal) was made more demanding in 2005 in Minnesota in response to the Enron/Sarbanes-Oxley events. Rule 3.4(d) requires diligent discovery responses.

A recent opinion by the New Jersey's Advisory Committee on Professional Ethics says the state's lawyers can refer clients to investment companies in which they own stock and can also receive a share of commissions from the client's dealings. Also, if the investment company advises a client on estate planning, the lawyer can prepare the documents.

Those applauding the decision say it creates ways for lawyers and nonlawyers to team up in ways that are lucrative for both. But the New Jersey Bar Association feels that opening the door for the nonlawyers to have an interest in law practices this way could raise attorney-client privilege issues, in addition to encouraging lawyers to think foremost in terms of potential revenue streams.

The arrangement the advisory committee seems to be endorsing goes beyond simple quid pro quo referrals between friends and associates. One would hope that clients are savvy enough to realize that a lawyer's referral to another firm in which he's partial owner should be taken with a grain of salt at best. But in reality, most people don't have the time or resources to check into such things. That's where the danger could lie.

A decision issued by the Minnesota Court of Appeals last week, Gagliardi v. Ortho-Midwest, involved a claim brought by a woman who said she was fired in retaliation over a report of sexual harassment made on her behalf. (The woman was terminated after her boyfriend sent an e-mail to the employer's client accusing one of the client's employees of harassing her; the court found that the anti-retaliation statute did not cover reports made by third parties, such as the boyfriend.)

The case had an equally interesting side point. The court criticized plaintiff's counsel for not including facts in the plaintiff's brief that arguably showed some of the alleged harassing behavior may have been consensual. The appellate court said that it found the factual omissions in the plaintiff's brief "troubling."

It is difficult sometimes for lawyers as advocates to include facts that might not be favorable to their client's position, but it's important that they do so. Not dealing with "bad" facts allows the other side (which will, of course, have those facts in its brief) to frame the issue. More importantly, once a court comes to the determination that you did not put relevant facts in your brief, the rest of the brief's content -- rightly or wrongly -- becomes suspect, compromising the effectiveness of how you presented the case.

This case should serve as a reminder to all lawyers to make sure the court has all the facts it needs to render a just opinion. Lawyers' duty to be zealous advocates for their clients should never make them lose sight of their overarching obligations as officers of the court.

A recent article in the Star Tribune focused on the spate of ethics complaints against Dakota County judges, but there was no comment from the Board on Judicial Standards or its chair, 10th Judicial District Judge James Dehn.

Dehn recently pointed out to Minnesota Lawyer that the board’s most recent report shows that about one in every 1,200 cases handled by a judge generates any contact with the board. Furthermore, the board received 127 written complaints last year compared to the approximately 2.06 million cases handled by judges. Thirty-five judges were asked to respond in writing regarding alleged misconduct, and no public reprimands were issued.

However, Dehn issued a slight disclaimer about his statistics: “There are three types of judges out there. Those who can add and those who cannot.” (Same for lawyers and journalists, I might add ... er say.)

Cases involving the alleged fixing of tickets by two Dakota County judges are under advisement and a public reprimand was issued against a third judge in the county, William Thuet, who agreed to it. Thuet was charged with inappropriately accepting a guilty plea to a DWI involving a former neighbor and procuring the same woman’s release from custody on another occasion.