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In re Charges of Unprofessional Conduct Contained in Panel Case No. 15976

November 27, 2002

IN RE CHARGES OF UNPROFESSIONAL CONDUCT CONTAINED IN PANEL CASE NO. 15976


SYLLABUS BY THE COURT

Where respondent brought a motion to exclude a disabled law clerk from participating in a personal injury jury trial in which the plaintiff was seeking damages for an injury-related disability and the motion to exclude was based on the law clerk's disability, the Lawyer's Professional Responsibility Board Panel's determination that respondent violated Minn. R. Prof. Conduct 8.4(d) is not clearly erroneous.

In light of the unique circumstances of this case, the Lawyer's Professional Responsibility Board Panel's issuance of an admonition is not arbitrary, capricious or unreasonable.

Affirmed.

The opinion of the court was delivered by: Per Curiam.

Heard, considered, and decided by the court en banc.

OPINION

Respondent represented a disabled plaintiff in a personal-injury action. During the jury trial, respondent moved for a mistrial advocating on behalf of his client that the presence of the court's severely disabled law clerk diminished his client's ability to receive a fair trial. At the conclusion of trial, respondent moved for a new trial, once again objecting to the presence of the law clerk in the courtroom. Judge Franklin J. Knoll (complainant) filed a complaint with the Office of Lawyers Professional Responsibility (OLPR) asserting that respondent's conduct violated the Minnesota Rules of Professional Conduct. The Director issued an admonition to respondent. Pursuant to Rule 8(d)(2)(iii) of the Rules on Lawyers Professional Responsibility, respondent requested that a Lawyers Professional Responsibility Board Panel (Panel) review the matter. After a hearing, the Panel concluded that respondent violated Minn. R. Prof. Conduct 3.1 and 8.4(d) and amended and affirmed the Director's admonition pursuant to 8(d)(2), RLPR. Complainant filed a petition for discretionary review under 9(l), RLPR. As a matter of right, respondent also appealed the Panel's amended admonition. We granted complainant's petition for discretionary review and ordered consolidation of the two cases. We affirm.

The facts are undisputed. Respondent currently practices law in St. Paul, Minnesota, and has been a member of the Minnesota bar since October 15, 1987. Respondent has not previously been subject to any disciplinary proceedings. In March 2000, respondent represented a client in a personal-injury action in Hennepin County District Court.

Respondent's client sustained serious permanent physical injuries that disabled him when a school bus hit and ran over him with a rear tire while he was riding a bicycle in South Minneapolis. The accident crushed his pelvis, and left him in a coma for approximately 1 month. By the time of trial, the client was able to walk with the assistance of a cane. Before the accident, the client was employed as a checker and bagger at a grocery store and as a greeter at a restaurant. His employment background consisted of similar unskilled and physical labor positions. At trial, the client asserted that his permanent injuries prevented him from performing physical-labor-type jobs and that he did not qualify educationally or intellectually for other types of employment. Therefore, he sought damages for future loss of wages and future diminished earning capacity.

Complainant presided over the personal-injury action and assigned one of his two law clerks to assist with the action. The clerk assigned by complainant to assist in this case is physically disabled. He is paralyzed from his mouth down and has difficulty breathing and speaking. He performed his duties as a law clerk with the assistance of a large wheelchair, respirator and full-time attendant. The disabled clerk was present in the courtroom at the outset of the personal-injury trial, assisted with jury selection, and remained in the courtroom throughout the trial.

On the first day of trial, respondent's client expressed reservations about his ability to receive a fair trial grounded on the fact that if the disabled law clerk continued to work in the courtroom, the jury would compare the clerk who was more severely disabled yet able to work, to himself, who was less severely disabled and claiming an inability to work. Later that same day respondent made an oral motion outside the presence of the jury, "for a mistrial and another panel of jurors without your law clerk present or in the alternative that this case be assigned to another [j]udge." Respondent gave the following explanation for his motion:

I will be asking the jury to award future loss of wages, future diminished earning capacity. I do not believe a jury when they look at the comparison with your law clerk, who's obviously gainfully employed, working in the courtroom under great handicap and great duress, will be able to award anything to my client under those circumstances.

Respondent stated that he brought the motion with "great reluctance" and acknowledged that the motion was "outrageous and distasteful for the [c]court." He did not support his motion with any legal authority. Stating that the motion was "un-American," complainant denied the motion.

The jury found in favor of the defendant on the issue of liability. Subsequently, respondent brought a written motion for a new trial. Respondent asserted the presence of the disabled clerk in the courtroom as one basis for the motion. Respondent again stated that his objection to the clerk's presence in the courtroom was made with "the greatest reluctance," but he argued that the jury would compare the disabilities of the law clerk ...


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