Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Charges of Unprofessional Conduct in Panel File No. 41755

Supreme Court of Minnesota

May 23, 2018

In re Charges of Unprofessional Conduct in Panel File No. 41755.

         Original Jurisdiction Office of Appellate Courts

          Paul C. Peterson, William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, Minnesota, for appellant.

          Susan M. Humiston, Director, Cassie Hanson, Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for respondent.


         1. A panel of the Lawyers Professional Responsibility Board did not clearly err by finding that appellant attorney communicated about a litigated matter with a party whom he knew was then represented by another attorney in the case, and thereby violated the no-contact rule, Minn. R. Prof. Conduct 4.2.

         2. In this case, a private admonition is the appropriate discipline for an attorney who violated the no-contact rule, Minn. R. Prof. Conduct 4.2.

         Private admonition affirmed.


          PER CURIAM.

         This case involves Minn. R. Prof. Conduct 4.2, the no-contact rule, which limits a lawyer's communications "with a person the lawyer knows to be represented by another lawyer in the matter." The Director of the Office of Lawyers Professional Responsibility (the Director) issued an attorney a private admonition for violating Rule 4.2 by communicating with a represented party in a defamation case in which the attorney represented another party. Following an evidentiary hearing, a panel of the Lawyers Professional Responsibility Board (the Panel) affirmed the Director's admonition. The attorney appealed. We conclude that the Panel did not clearly err in finding that the attorney violated Rule 4.2. We further conclude that the appropriate discipline for this isolated misconduct is a private admonition.


         Appellant was admitted to practice law in Minnesota in 1982, and primarily practices in the area of insurance litigation. He has no prior disciplinary record. Appellant was retained in 2014 to represent J.W., who was a defendant, along with others, in a defamation action.

         J.W.'s brother, N.W., was a co-defendant.[1] N.W. was represented by an attorney (complainant here) hired by N.W.'s insurer, Liberty Mutual. Complainant was defending N.W. subject to a reservation of rights, meaning that Liberty Mutual had reserved the right to deny coverage to N.W. as the case developed. Complainant practiced at a captive law firm as a direct employee of Liberty Mutual. Complainant did not-and could not- represent N.W. on insurance coverage issues because the reservation of rights created a conflict of interest with her employer.

         Trial was set for February 16, 2016. On Friday, February 5, 2016, the parties attended a mediation. N.W.'s attorney, complainant, was unable to attend the mediation, but she sent substitute counsel and an insurance claims representative in her stead. At mediation, J.W. orally agreed to settle with the plaintiffs for $75, 000, and the claims against the other two defendants also settled. Only the claims against N.W. remained unresolved.

         The following Monday, February 8, 2016, the plaintiffs, by letter, expressed their willingness to extend a Miller-Shugart settlement offer to N.W. for an unspecified dollar amount.[2] That same day, Liberty Mutual offered the plaintiffs $35, 000 to settle the claims against N.W. The next day, February 9, 2016, plaintiffs counter-offered with a settlement demand of $75, 000 cash or, alternatively, a Miller-Shugart agreement in the amount of $695, 000. Complainant did not immediately discuss these offers with her client, N.W., because she wanted to first communicate with Liberty Mutual. She left N.W. a voicemail the next morning, on February 10, 2016, but never discussed the offers with him.

         N.W. spoke with his brother J.W. about the Miller-Shugart offer on February 9, 2016.[3] J.W. then contacted his own attorney, appellant, and asked him to speak with N.W. Appellant agreed, and N.W. sent the proposed Miller-Shugart settlement agreement for appellant's review.[4]

         On the morning of February 10, 2016, N.W. telephoned appellant for legal advice. At that time, appellant understood that "[c]omplainant [was] not . . . representing N.W. regarding the coverage issues . . . or the plaintiffs' Miller-Shugart settlement offer because of the likely personal conflict of interest [c]omplainant had." As appellant correctly observes, the Miller-Shugart settlement offer created a conflict for complainant between her client N.W.'s interests and her employer Liberty Mutual's interests. See, e.g., Pine Island Farmers Coop v. Erstad & Riemer, P.A., 649 N.W.2d 444, 450 (Minn. 2002) (recognizing that "the interests of the insured and the insurer may conflict, making it difficult for defense counsel to remain loyal to . . . and exercise his or her independent professional judgment for the benefit of [the] client").

         During this phone call, appellant gave N.W. legal advice about the proposed Miller-Shugart agreement and the effect of Liberty Mutual's reservation of rights on N.W.'s personal exposure. Appellant understood that he was "acting as N.W.'s independent counsel" and that he "had an attorney-client relationship with N.W." Appellant testified that he was "talking to [N.W.] about an unrelated matter" because he "wasn't talking about the defamation case"-he "was talking about the coverage concerns" and "what happens with the Miller-Shugart and how [N.W.] can protect himself." Appellant further testified that he did not know about, and did not give legal advice regarding, the $35, 000 or $75, 000 settlement offers.

         Later that morning, N.W. signed the Miller-Shugart offer, without complainant's advice or knowledge.

         Thereafter, complainant filed an ethics complaint regarding appellant's conduct. The Fourth District Ethics Committee investigated and concluded that appellant had not violated any rule of professional conduct. The Director, however, independently determined that appellant had violated Minn. R. Prof. Conduct 4.2, and issued a private admonition. See Rule 8(d)(2), Rules on Lawyers Professional Responsibility (RLPR).

         Appellant appealed the admonition to a Panel of the Lawyers Professional Responsibility Board. See Rule 8(d)(2)(iii), RLPR. The Panel held an evidentiary hearing and heard testimony from appellant, complainant, and appellant's expert witness. See Rule 8(d)(4)(ii), RLPR. Reviewing the matter de novo, the Panel (with one member dissenting) affirmed the admonition. See Rules ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.