In re Charges of Unprofessional Conduct in Panel File No. 41755.
Jurisdiction Office of Appellate Courts
C. Peterson, William L. Davidson, Lind, Jensen, Sullivan
& Peterson, P.A., Minneapolis, Minnesota, for appellant.
M. Humiston, Director, Cassie Hanson, Assistant Director,
Office of Lawyers Professional Responsibility, Saint Paul,
Minnesota, for respondent.
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.
this case, a private admonition is the appropriate discipline
for an attorney who violated the no-contact rule, Minn. R.
Prof. Conduct 4.2.
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.
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.
brother, N.W., was a co-defendant. 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.
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.
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. 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
spoke with his brother J.W. about the Miller-Shugart
offer on February 9, 2016. 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.
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").
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.
that morning, N.W. signed the Miller-Shugart offer,
without complainant's advice or knowledge.
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
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 ...