Lawyer’s Absence From Hearings Excused Where Engagement Was Limited in Scope

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Oct. 8 — Bar authorities had no basis for finding that a lawyer engaged in misconduct by skipping hearings that a client asked him not to attend in light of the terms of their limited-scope representation agreement, the Minnesota Supreme Court decided Oct. 8.

A disciplinary panel's finding that attorney “A.B.” engaged in conduct prejudicial to the administration of justice when he failed to attend “four consecutive hearings” cannot stand because it “rested on a clearly erroneous factual finding,” the court said in a per curiam opinion.

A.B. “was not required to appear” at those hearings, the court said, because he “was no longer the attorney of record” when they occurred or had been instructed not to attend “pursuant to the terms of a limited-scope legal representation, the propriety of which [bar counsel] does not challenge.”

Accordingly, the court reversed a finding that A.B. violated Minnesota Rule of Professional Conduct 8.4(d) and vacated the admonition imposed as a sanction.

Duty to Disclose Limited Scope?

Bar counsel also cited A.B.'s failure to “communicate to the court … that his representation agreement with [the client] excluded court appearances” as support for the charge that he “wasted the court's time” and thus engaged in conduct prohibited by Rule 8.4(d).

“[A.B.] argues that he was under no obligation to inform the court that his representation of [the client] was limited in scope,” the opinion states.

Although the court did not specifically address that issue, it noted that the judge in the underlying proceedings—a marital dissolution case—issued a decree dismissing A.B. as attorney of record three weeks after his one and only appearance in the matter.

“Under these circumstances, we vacate the admonition because A.B.'s conduct was neither prejudicial to the administration of justice nor warranted discipline,” the court concluded.

Director Martin A. Cole and Senior Assistant Director Kevin Slator, St. Paul, Minn., represented the Office of Lawyers Professional Responsibility. James C. Whelpley, Roseville, Minn., represented A.B.

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