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In re Charges of Unprofessional Conduct In Panel File No. 42735

Supreme Court of Minnesota

March 6, 2019

In re Charges of Unprofessional Conduct in Panel File No. 42735

          Original Jurisdiction Office of Appellate Courts

          Eric T. Cooperstein, Minneapolis, Minnesota, for appellant.

          Susan M. Humiston, Director, Nicole S. Frank, Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for respondent.

         SYLLABUS

         A panel of the Lawyers Professional Responsibility Board clearly erred when it concluded that the attorney had violated Minn. R. Prof. Conduct 3.4(c).

          OPINION

          PER CURIAM.

         This case involves Minn. R. Prof. Conduct 3.4(c), which prohibits "knowingly disobey[ing] an obligation under the rules of a tribunal." The Director of the Office of Lawyers Professional Responsibility (Director) issued an attorney (Attorney) an admonition for failing to file a summary judgment motion response by the deadlines set forth in Minn. Gen. R. Prac. 115.03(b). Following an evidentiary hearing, a panel of the Lawyers Professional Responsibility Board (panel) affirmed the admonition, concluding that Attorney's conduct violated Minn. R. Prof. Conduct 3.4(c). Attorney appealed to our court. Because the panel's decision was clearly erroneous, we reverse the panel's decision and vacate the admonition.

         FACTS

         Complainant, C.G., runs a real estate rental business catering to college students in Duluth. He also operates a business that buys and sells liens and judgments at a discount and then satisfies those liens and judgments.

         In 2013, C.G. entered into a contract for deed to purchase real estate from R.F. In early 2015, R.F. (who was represented by a lawyer) attempted to cancel the contract. C.G., who was not represented at the time, brought a motion on April 28, 2015, seeking various remedies, including a temporary restraining order, to prevent R.F. from cancelling the contract for deed. The district court dismissed the motion without prejudice.

         R.F. moved ahead with the cancellation process. On July 29, 2015, C.G., still self-represented, filed another motion seeking to restrain R.F. from cancelling the contract. R.F. responded on July 31, 2015 with a motion to dismiss and for summary judgment. The notice stated that the motion would be heard on August 5, 2015.

         On August 4, 2015, C.G. and Attorney entered into a written Attorney Fee Agreement (Fee Agreement). The Fee Agreement provided that Attorney would represent C.G. in the real estate contract matter against R.F. The Fee Agreement required C.G. to pay a retainer of $8, 500 for the representation: $1, 000 at the execution of the agreement and another $7, 500 within 10 days (by August 14, 2015). It also stated that "IT IS EXPRESSLY UNDERSTOOD that unless [payment of] the required fees and expenses are made when due, Attorney may refuse to proceed further with the legal services until such payments are made." The Fee Agreement further provided that C.G. "agrees to promptly respond to any requests for information or other inquiries" by Attorney.

         Attorney succeeded in postponing the August 5 hearing to October 26, 2015. C.G. paid the first $1, 000 by August 10, 2015. He did not, however, make the final $7, 500 retainer payment by August 14, as required by the Fee Agreement.

         On August 15, 2015, Attorney sent an e-mail to C.G., which read:

Checking in on a couple of things.
1. Are you willing and able to pay R.F. the amount owed to pay off the contract for deed in full to settle your case? In speaking with his attorney, it sounds likely he would accept that.
2. Your second payment toward your retainer was due Friday. I did not see that you paid that. Please be certain to bring that in Monday. We cannot continue our representation of you if that is not paid.

         On September 21, 2015, Attorney and C.G. exchanged several messages. Attorney left C.G. a voicemail message and sent a follow-up e-mail, which read: "Just left you a message. Give me a call when you have the chance. Note that we have a deadline coming up to file some things in your case. We will need some time to prepare them. We cannot proceed unless we get the remainder of your retainer." Less than an hour later, C.G. replied, "I thought we were going to reach a settlement agreement. If the case can settle I would rather spend my money on a settlement agreement." Attorney followed up 13 minutes later with the following e-mail: "We still have to follow the court deadlines. If it's not settled by the filing date we need to file the documents. We can make the settlement offer but we're better off if you actually have the money [to pay the settlement] in hand." C.G. simply replied: "Make the settlement offer please."

         At the evidentiary hearing before the panel, C.G. explained what he thought had been decided in the September 21 e-mail exchange. He testified that, "It was my understanding we weren't going to spend any money on any litigation and that [Attorney] was going to present a settlement offer at this ...


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