In re Charges of Unprofessional Conduct in Panel File No. 42735
Original Jurisdiction Office of Appellate Courts
T. Cooperstein, Minneapolis, Minnesota, for appellant.
M. Humiston, Director, Nicole S. Frank, Assistant Director,
Office of Lawyers Professional Responsibility, Saint Paul,
Minnesota, for respondent.
of the Lawyers Professional Responsibility Board clearly
erred when it concluded that the attorney had violated Minn.
R. Prof. Conduct 3.4(c).
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.
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.
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.
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.
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.
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.
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
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.
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."
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