PowerPoint Presentation€¦ · background relates to diversity? Understanding diversity starts with you Who are you? Where did you and your family grow up? Where did you go to school?

2/8/2017

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Avoiding Malpractice and

Ethical Complaints in a

Diverse Community

Patty Devoy, Minnesota Lawyers Mutual Insurance Company

Bryan Browning, Bassford Remele PA

February 12, 2017

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“Diversity: the art of thinking independently together.”

— Malcolm Forbes

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Presentation Overview

How Diversity Impacts Your Practice

Ethical Implications

Malpractice Matters

Hypotheticals

Key Takeaways

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How We Think

We really don’t think the way we think we think. So, if you think you know

how you think, I hope to make you think again, and I hope to make you

think differently about what you think you already know because thinking

differently is the first step in thinking differently about people who are

different from you.

Arin Reeves, Chicago Lawyer, December 2011

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Vignette

A senior partner rushes out of a law firm’s management committee meeting and hurries down the hall to a conference room where a client is waiting for a meeting that has now been delayed for about 20 minutes because of the partner’s schedule. When the partner nears the conference room, one of the associates working on the client’s matters intercepts the partner to warn the partner about the very angry mood of the client.

The partner listens with frustration, takes a deep breath and silently considers the best way to calm the client down to ensure a productive meeting.

As the partner walks into the conference room, a sharp stabbing pain in the partner’s chest area and a severe shortness of breath interrupt the partner’s momentum. The associate sees the sudden change in the partner’s physical comportment and immediately urges the nearby receptionist to call 911.

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What Does Your Brain “See”?

Even though the vignette does not specifically state the gender or race of

any of the people, less than a percent of people read the words without

populating the characters with imagined genders and/or races.

94% chance that you imagined the partner to be a man and about 90%

chance that you imagined the partner to be a white man.

Almost 100% chance that you imagined the receptionist to be a woman.

About 60% likelihood that you imagined the client to be a white man and

about equally likely that you imagined the associate to be white and male.

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Who are you interacting with in your practice?

Clients

Opposing Counsel/Parties

Judges and Court Staff

Other Third Parties

What is the common denominator?

YOU!

How you view yourself

How you view others

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What do you think of when you hear “diversity”?

Race

Gender

Religion

Sexual Orientation

Disability

Age

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When thinking about the topic of diversity, how many of you immediately

thought about someone else or other groups of people?

Usually thinking about who is around you

How many of you immediately thought about yourself and how your

background relates to diversity?

Understanding diversity starts with you

Who are you?

Where did you and your family grow up?

Where did you go to school?

What personal experiences have you had that affect how you perceive those around

you?

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Today’s Focus:

Situations where attorneys can get into trouble based on interactions with:

Clients

Opposing Counsel and Judges

Other third parties

both inside and outside the courtroom

Ethical Discipline

Malpractice

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Hypothetical

Male attorney is in the courtroom for a hearing on opposing counsel’s

motion to amend the scheduling order

Before the hearing starts, his female opposing counsel begins reciting to him

several reasons why she needs a third amendment to the order

During opposing counsel’s explanation, male attorney becomes frustrated

and abruptly says, “shut up!”

Do you think he has committed an ethical violation?

What if he said, “shut up, you bi**h!”?

Today we’ll explore issues that arise in ethics and malpractice when diversity

comes into play

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Minnesota Rules of Professional Conduct

4.4 Respect for Rights of Third Persons

8.4(d) Misconduct -- engaging in conduct prejudicial to the administration of justice

8.4 (g) & (h) harassment or discrimination based on protected class

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Attorney Discipline

The purpose of disciplinary sanctions is not to punish the attorney, but to:

Protect the public

Protect the judicial system; and

Deter future misconduct by the disciplined attorney and by others

The four factors that guide the court’s imposition of discipline are:

The nature of the misconduct;

The cumulative weight of the disciplinary violations;

The harm to the public; and

The harm to the legal profession

In re Nett, 839 N.W.2d 716 (Minn. 2013)

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Rule 4.4 – Respect for Rights of Third Persons

(a) In representing a client, a lawyer shall not use means that have no

substantial purpose other than to embarrass, delay, or burden a third

person, or use methods of obtaining evidence that violate the legal rights

of such a person

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Rule 4.4 – Respect for Rights of Third Persons

Civility

Each year the Office of Lawyers Professional Responsibility (OLPR) receives complaints resulting from attorney to attorney uncivil/unprofessional behavior,

which the OLPR attributes largely to attorneys’ inability to adjust to diversity

“[I]ncreasing acts of incivility are often an intolerant reaction to the rising tides of

diversity in the legal profession and in our nation. Sometimes a lawyer just gets angry like anyone else and loses his [or her] head. More often, this type of

behavior stems from a long-simmering inability to tolerate changes in the world around us, particularly those changes in the professional world.”

(R. Terri Mandel, Beyond Zealous Advocacy: Harassment and Its Remedies,

Bench & Bar of Minnesota, April 1999)

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Rule 4.4 Minnesota Admonition

Young male attorney representing a defendant in multiparty litigation was

frustrated with a female plaintiff’s deposition scheduling request

Attorney wrote “stupid bi**h” in four places on his personal copy of the

scheduling request and put it in his file

Attorney’s personal copy was inadvertently included as an exhibit to a

discovery motion, filed with court, and served on other counsel

Attorney was admonished under Rule 4.4 for his conduct because there

was no substantial purpose for writing the offensive gender-based

comments, even if they were not intended to be publicized

Someone within the firm could have seen the comments and been unnecessarily embarrassed or burdened by them

(Marcia A. Johnson, “Uncivil” Practice,


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Rule 4.4 In re Starr, 577 N.W.2d 211 (Minn. 1997)

While awaiting a pretrial conference in the courtroom, male attorney told

his female opposing counsel to “shut up” and called her an extremely

offensive word derogatory to females in front of his partner, two of

opposing counsel’s co-counsel and her client.

Supreme Court held attorney’s conduct violated 4.4 and 8.4(g) and

ordered public reprimand

(R. Terri Mandel, Beyond Zealous Advocacy: Harassment and Its Remedies,


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Rule 4.4 Minnesota Admonition

To determine a possible basis for bias in a family law matter, an attorney

asked a custody and visitation expert witness, “Are you gay?”

Attorney also stated in his offer of proof: “People in her office are gay, she is

gay …”

Attorney was admonished under Rule 4.4 for this conduct as the witness’

sexual orientation was not relevant to the question of bias.

(Marcia A. Johnson, “Uncivil” Practice,


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Rule 8.4 – Misconduct

It is professional misconduct for a lawyer to:

…

(d) Engage in conduct that is prejudicial to the administration of justice

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Rule 8.4(d) In re Panel File 98-26, 597 N.W.2d 563 (Minn. 1999)

Special Assistant County Attorney charged African-American male with

two counts of felony robbery of a Caucasian couple.

Public defender believed race was a factor in the charges and advised

prosecutor she was considering bringing in an African-American co-counsel

from another county.

Two weeks before trial, prosecutor prepared a motion in limine asking for an

Order from Court prohibiting the public defender from having a person of

color as co-counsel for the sole purpose of playing upon the emotions of

the jury.

Prosecutor withdrew motion after discussing with supervisor and realizing

what she had done; immediately apologized to public defenders involved

Public defenders filed ethics complaint

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Professional Responsibility Board concluded prosecutor’s conduct was

“isolated and non-serious” and warranted a private admonition

Complainants petitioned Supreme Court for review of the Panel’s decision,

arguing that the Panel erred in concluding that conduct was “non-serious”;

requested a public reprimand

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Minnesota Supreme Court held:

Panel’s conclusion that the attorney’s race-based misconduct was “non-serious” was arbitrary, capricious, and unreasonable; and

Attorney’s race-based misconduct was an inherently serious matter

“Such conduct, even if grounded in ignorance and poor judgment rather than malice,

is unacceptable and inherently serious.”

However, it upheld the private admonition due to the act’s isolated nature, lack of public harm, and attorney’s prompt apology and sincere remorse

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Rule 8.4(d) Minnesota Admonition During the closing argument of a criminal prosecution involving a Hispanic

defendant, the prosecutor argued that the Hispanic defendant might think

that the jury, who were “all nice white folks”, would be nervous about

convicting him in a case hinging on credibility of the Hispanic defendant

and the white female victim.

Attorney was admonished for violating Rule 8.4(d) by improperly injecting

race into the trial.

Pursuant to In Re Panel File 98-26, race based misconduct is inherently

serious. Here, the conduct of the prosecutor was less egregious because it

was not directed at a specific individual.

(Kenneth L. Jorgensen, Summary of Admonitions,

Bench & Bar of Minnesota, April 2003).

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Rule 8.4(d) In re Panel File 15976, 653 N.W.2d 452 (Minn. 2002)

Attorney represented a disabled plaintiff in a personal injury action seeking

damages for future lost wages arguing plaintiff’s disability, which was

allegedly caused by the defendant, precluded him from becoming

gainfully employed in the future.

Judge’s law clerk assigned to the case was severely paralyzed, and was

clearly more limited by his disability than the plaintiff.

Twice the plaintiff’s attorney moved for a mistrial claiming that the

presence of the law clerk diminished the plaintiff’s ability to receive a fair

trial because the jury would see that the clerk was able to find employment

Judge denied the motions and filed an ethics complaint against the

attorney.

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Rule 8.4(d) In re Panel File 15976, 653 N.W.2d 452 (Minn. 2002)

Minnesota Supreme Court held:

(1) attorney engaged in conduct prejudicial to administration of justice;

(2) the conduct was isolated and non-serious

(3) private admonition was appropriate disciplinary sanction

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Rule 8.4(d) In re Williams, 414 N.W.2d 394 (Minn. 1987)

During a deposition, Williams stated to opposing counsel: “[d]on’t use your

little [expletive] Hebrew tricks on me …”

In publicly reprimanding Williams, Minnesota Supreme Court endorsed the

Referee’s finding that Williams had intentionally used a racial slur and that the

P.R. violation was so clear that it needed no discussion

Williams argued that the imposed discipline denied him equal protection of

the law because, in response to his slur, the opposing counsel called him a

“son of a bi**h”, and that attorney wasn’t disciplined.

Court held the argument was without merit as Williams overlooks the lack of

provocation for his own remarks and the understandable provocation for

opposing counsel’s response

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Rule 8.4 – Misconduct


…

(g) Harass a person on the basis of sex, race, age, creed, religion, color, national

origin, disability, sexual orientation, status with regard to public assistance, ethnicity, or marital status in connection with a lawyer’s professional activities.

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Rule 8.4(g) In re Nett, 839 N.W.2d 716 (Minn. 2013)

Attorney repeatedly made frivolous and harassing personal attacks and

discriminatory statements in 11 different pleadings in five distinct matters over

the course of 17 months --

Accused state court judges of being members of a secretive racist society

Referred to a judge as a “black robed bigot” and a “Catholic Knight Witch Hunter”

Compared her client’s “experience of justice in the United States” to the “‘justice’

Jews experienced under Hitler in Germany”

Asserted, “these dirty Catholics have conspired together to hurt [her client]”

Nett continued making false statements about members of the judiciary and

others after being sanctioned for the same conduct

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Rule 8.4(g) In re Nett, 839 N.W.2d 716 (Minn. 2013)

The Minnesota Supreme Court held such conduct violated Rule 8.4(g):

Conduct warranted indefinite suspension with no right to petition for reinstatement for a minimum of nine months

Statements served no substantial purpose other than to harass persons based on

their race, creed, and religion

Conduct substantially harmed the public and the legal profession by delaying

proceedings and causing needless expenditure of judicial and opposing counsel resources

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Rule 8.4(g) In re Igbanugo, 863 N.W.2d 751 (Minn. 2015)

During efforts to collect attorney’s fees, Attorney sent harassing letters to his

former client:

“do not forget that after you answer to me, you will also answer to God the Father, who sees all the evil that men do”

“you will additionally suffer divine justice because this is sheer evil and wickedness”

“you will ultimately answer to God for your theft of my legal services . . . [and] for your false report with evil intent to the Minnesota Lawyers Professional Responsibility

Board”

In conjunction with other rule violations, the Supreme Court held such conduct

violated Rule 8.4(g) and ordered a 90-day suspension from the practice of law

and, upon reinstatement, two years probation

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Rule 8.4(g) In re Griffith II, 838 N.W.2d 792 (Minn. 2013)

Attorney/adjunct professor, who supervised a law student through a law

school clinic, engaged in verbal and physical conduct and communications

of a sexual nature while at a restaurant

Once outside the restaurant, Attorney exposed his genitals to the student,

took her hand and forced her to touch him

After student complained to the law school, Attorney contacted student and

pressured her to recant her complaint

Supreme Court held such conduct violated Rule 8.4(g) and ordered indefinite

suspension with no right to petition for reinstatement for a minimum of 90 days

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Rule 8.4(g) In re Ward, 726 N.W.2d 497 (Minn. 2007)

Attorney made unwanted physical contact of a sexual nature with an

applicant for employment in his law office

In conjunction with other rule violations, the Supreme Court held such conduct

violated Rule 8.4(g) and ordered indefinite suspension from the practice of

law with no right to petition for reinstatement for one year after completing

other requirements

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Rule 8.4 - Misconduct


…

(h) commit a discriminatory act, prohibited by federal, state, or local statute or ordinance that reflects adversely on the lawyer’s fitness as a lawyer.

Whether a discriminatory act reflects adversely on a lawyer’s fitness as a lawyer shall be determined after consideration of all the circumstances, including:

1) The seriousness of the act,

2) Whether the lawyer knew that the act was prohibited by statute or ordinance,

3) Whether the act was part of a pattern or prohibited conduct, and

4) Whether the act was committed in connection with the lawyer’s professional activities.

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Comments to Rule 8.4 (g) & (h)

Comment 5

Harassment on the basis of membership in a protected class may violate either 8.4 (g) or 8.4 (h)

8.4 (g) violation when harassment is committed in connection with the lawyer’s

professional activities

8.4 (h) violation can occur even when the misconduct is unrelated to the

lawyer’s professional activities

8.4(h) violation if the harassment (1) is prohibited by anti-discrimination legislation and

(2) reflects adversely on the lawyer’s fitness as a lawyer

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“Only a fool learns from his own mistakes. The wise man learns from the mistakes of others.” -Otto Von Bismarck

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Ethics Complaints vs. Malpractice

Ethics Complaints =

Malpractice =

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Malpractice Matters

Elements of Malpractice

Existence of attorney-client relationship;

Acts constituting negligence or breach of contract;

Attorney’s acts proximately caused plaintiff’s damages; and

But for attorney’s conduct, plaintiff would have been successful.

Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 816 (Minn. 2006)

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Malpractice Matters

Frequent Bases of Malpractice Claims

Failure to effectively communicate with clients

Failure to know the law

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Failure to Effectively Communicate

Attorney represented father and daughter in a personal injury lawsuit

related to a car accident

Throughout representation, attorney only sought instructions from the

father, which was normal in the context of the clients’ cultural background

Attorney sought instructions during mediation from father only, and the

case settled without daughter’s input

Daughter refused to sign settlement agreement, but defendants ultimately

enforced it

Daughter brought malpractice claim against attorney for failure to seek her

instructions or approval

(Lorne Shelson and Ian Hu, Malpractice Claims in a Diverse World, Law Practice Today, July 2016)

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Failure to Effectively Communicate - Hypo

Attorney represented a plaintiff whose native language was Spanish, but

was proficient in English; Attorney spoke English and Spanish; Attorney used

translator at certain points throughout representation

Defendants offered to enter into a structured settlement agreement

whereby plaintiff would receive monthly payments, rather than a lump sum,

which Attorney used translator to explain

Plaintiff stated she understood the terms and signed the agreement

After the first two monthly payments, plaintiff claims she did not understand

the terms of the agreement, and had already made a large down

payment on a house thinking she would receive a large lump sum

settlement payment

Client brought malpractice claim against attorney for failure to properly

explain the terms of the agreement in a manner that she could understand

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Failure to Know the Laws

Attorney moved to the U.S. and began as a solo practitioner in real estate

A paralegal from the same cultural and religious background befriended

attorney and they began working together

Attorney allowed paralegal to process all transactions, including real estate

documents and effecting registrations, without realizing such activities were

prohibited for paralegals

Mortgage lenders subsequently brought malpractice claims against the

attorney

Lorne Shelson and Ian Hu, Malpractice Claims in a Diverse World, Law Practice Today, July 2016)

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Hypothetical

You are representing a plaintiff who is suing her former employer for

pregnancy discrimination. The defendant-corporation has been

represented by two male attorneys throughout the entire two years of

hard-fought litigation. At the pre-trial conference two weeks before the

start of the jury trial, you learn for the first time that a visibly pregnant

attorney will be representing the defendant at trial. She has had absolutely

no involvement with the case up to this point.

In the interest of advocating for your client, should you bring a motion in limine to

bar the pregnant attorney from trying the case on behalf of the defendant?

Any concerns for the law firm representing the defendant?

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Hypothetical

You are an attorney practicing in a community that in recent years has had

an influx of Somali immigrants. There is a lot of tension in the community

fueled by racism and anti-immigrant sentiment. You are defending a local

company in a personal injury lawsuit. During the jury trial, when cross-

examining the plaintiff, you drop references to her “Somali boyfriend” and

her “undocumented boyfriend”.

In advocating for your client, is it permissible to make such references?

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Hypothetical

You are a male partner in a law firm. As part of your marketing efforts, you

invite another partner (male) and an associate attorney (female) to attend

dinner and a hockey game with a client (male). At dinner, your partner

and the client have quite a bit to drink, after which they begin to make

sexist comments about the female server, including commenting on the

server’s breast size and other physical attributes. They also tell a few sexist

jokes about dumb blondes. The associate is clearly squirming but says

nothing about the antics.

Has the partner violated Minnesota’s Professional Responsibility rules?

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Key Takeaways

Be mindful of your own cultural background and how that may impact the way you practice

Be mindful of whether strategic decisions could be perceived as discriminatory

Be careful when projecting your personal beliefs onto others

Do not let the heat of the moment allow you to ignore your ethical duties

Always write with the expectation that your words can and will be seen by the court

If you are concerned that someone is behaving in a discriminatory manner, address it in an appropriate way

Consider the scope of your professional activities – the scope goes beyond your work representing clients and beyond the office (i.e., mentoring students; client events)

Remember that conduct can cause problems even when unrelated to your practice

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Final Thoughts

Being an attorney requires you to interact with others. There is no way around

it! In order to be a successful attorney, you must be willing to work with and

appreciate the differences of others.

“Diversity is the one true thing we all have in common. Celebrate it every day.”

— Author Unknown

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Questions? Comments?

Patty Devoy Bryan Browning

Claim Attorney Shareholder

Minnesota Lawyers Mutual Insurance Co. Bassford Remele PA

[email protected] [email protected]

612-373-9664 612-376-1617

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PowerPoint Presentation€¦ · background relates to diversity? Understanding diversity starts with you Who are you? Where did you and your family grow up? Where did you go to school?

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