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In re Charges of Unprofessional Conduct in Panel Case. No. 19453

January 20, 2005



Appellant's misconduct warrants an admonition.

Per curiam.


Considered and decided by the court en banc without oral argument.


Appellant was admitted to practice law in Minnesota on September 29, 1978. On April 2, 2003, the Office of Lawyers Professional Responsibility (OLPR) received a complaint from one of appellant's clients, Z.S., regarding the representation she received from appellant. In response to the complaint, the Director of the OLPR initiated an investigation. See Rule 8(a), Rules on Lawyers Professional Responsibility (RLPR). Based on his findings, the Director issued an admonition to appellant on October 31, 2003. Thereafter, appellant demanded that the Director present the charges against him to a panel for de novo consideration. See Rule 8(d)(2)(iii), RLPR. A panel was convened in accordance with Rule 9, RLPR. After a hearing on the matter, the panel concluded that appellant had engaged in unprofessional conduct and affirmed the admonition issued by the Director, and appellant appealed to this court. See Rule 9(j)(2), (m), RLPR.

The complaint that led to the admonition arose out of appellant's representation of Z.S. between February 2000 and May 2003. Z.S. contacted appellant to seek advice regarding an attorney malpractice claim against an attorney who represented her in a separate matter. Appellant and Z.S. had a telephone conversation in February 2000 to discuss the malpractice claim. As a result of that conversation, appellant agreed to review the case for a retainer of $5,000. Z.S. paid appellant the $5,000 retainer on February 18, 2000.

On March 10, 2000, Z.S. sent appellant an email inquiring into appellant's progress on her case. On March 11, 2000, appellant responded that he continued to believe there was merit to Z.S.'s claim but needed additional time to perform a complete analysis, and would have a complete analysis prepared within one week. Appellant did not complete his analysis within that period. By letter dated July 7, 2000, appellant notified Z.S. that he had not completed the analysis of her claim but that he would do so when he returned from a two-week vacation. In August 2000 appellant returned from his vacation, prepared a draft analysis of Z.S.'s claim, and concluded that the claim was almost certainly not viable. Appellant did not, however, inform Z.S. that he had completed the preliminary analysis or that he had altered his view of her case.

Appellant testified before the panel that his practice became increasingly busy in the fall of 2000 and that he put Z.S.'s case on the "back burner" because the statute of limitations would not run out for four more years. Appellant also testified that in the early fall of 2000, several billing statements that he mailed to Z.S.'s address on record were returned by the post office as undeliverable. Appellant testified that when the billings were returned he assumed that Z.S. had moved to Florida based on an earlier conversation in which Z.S. mentioned that she might be moving to Florida. At that point, appellant chose not to locate Z.S. because he was concerned about the cost of hiring a private investigator to contact her and because he was certain that she would eventually contact him.

Although Z.S. had not moved to Florida, she had moved from her address in South Minneapolis to a new address in Plymouth, Minnesota. In December 2000, Z.S. relocated again, but remained in Plymouth. Z.S.'s email address remained the same after each move. Appellant made no attempt to contact Z.S. by email or otherwise.

Appellant and Z.S.'s next contact occurred in May 2002 when Z.S. contacted appellant to provide a change of address and to check on the progress of her case. In response, appellant sent Z.S. a letter dated May 13, 2002, confirming receipt of the change of address, apologizing for the delay in communicating with her, and notifying her that an analysis had been conducted that resulted in "some difficulties that I wanted to talk with you about." The letter was not specific about what those difficulties were or when Z.S. should contact appellant to discuss the difficulties mentioned. The letter again indicated that appellant would prepare an analysis for Z.S. shortly.

Between February and August 2000, appellant charged $3,375 to Z.S.'s trust account for the work conducted on her case. The record reveals that the next and final billing to Z.S.'s account was in October 2002 for $750.

Appellant and Z.S. did not communicate again until Z.S. contacted appellant by email on February 10, 2003, to deliver a new change of address and to inquire as to the progress of the analysis on her case. Appellant testified that Z.S. was very anxious at the time because she feared that the statute of limitations was approaching that summer. Appellant replied to Z.S. by email on February 13, 2003, and informed her that his report was near completion when his office misplaced her earlier change of address. He also told Z.S. that he would email her a copy of a report early the following week.

On February 21, 2003, appellant emailed Z.S. a copy of his August 2000 draft opinion. In the email, appellant explained that the analysis had been conducted "some time ago" and that his attention had been required on more urgent client matters that limited the amount of time he was able to spend analyzing ...

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