Competent Representation Requires Knowledge
of Procedure
by
Cassie B. Hanson, Assistant Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Minnesota Lawyer (August 7,
2006)
Rule
1.1 of the Minnesota Rules of Professional Conduct (MRPC) requires that lawyers
provide competent representation to their clients. A lawyer is expected to be familiar with
well-established principles of law applicable to a client’s needs. The requisite familiarity with well‑established
legal principles extends also to matters of procedure.
Not
every act of attorney negligence or poor quality representation implicates a
violation of Rule 1.1, however.
Attorneys have been privately admonished for isolated and nonserious
instances of failing to follow the appropriate rules of procedure, especially
where the misconduct affected the client’s ability to effectively litigate
their case.
For
example, an attorney was hired to represent a personal representative of an
estate. The prior attorney for the
personal representative had submitted a claim against the estate for legal fees
and costs. The attorney failed to
determine the correct deadline to disallow the claim of action until after it
expired. Pursuant to Minnesota law, the
failure of a personal representative to mail a notice to a claimant of action
on a claim for two months after the time for original presentation of the claim
has expired has the effect of a notice of allowance of claim. The District Court judge subsequently denied
the personal representative’s disallowance of the claim as untimely. The attorney was privately admonished for
violating, among other things, Rule 1.1 of the MRPC.
More
serious instances of failing to follow the applicable rules of procedure have
resulted in public discipline, especially where the statute of limitations
expired or there was significant monetary harm to the client.
In
one case, an attorney was hired to appeal a final judgment and decree issued in
a dissolution matter. The attorney
incorrectly concluded that the appeal time was triggered by his receipt of the
notice of filing. Under Minn. R. Civ.
App. P. 104.01, subd. 1, the appeal time is triggered 60 days after judgment is
entered. The client’s appeal was
ultimately dismissed by the Minnesota Court of Appeals. The attorney’s misconduct was deemed to have
violated, among other things, Rule 1.1 of the MPRC, and the attorney was
publicly reprimanded.Ftn 1
In
another instance, an attorney represented a client in a civil dispute, but
failed to respond to several notices and orders of the clerk of court or attend
a pretrial conference. When the attorney
was served with a notice of motion and motion for default judgment, the
attorney sent the court administrator a notice of withdrawal but did not notify
the client of his withdrawal or an upcoming hearing on the motion for default
judgment. Neither the attorney nor the
client attended the hearing, which resulted in the District Court judge
entering a default judgment against the client in the amount of $40,000. The client was subsequently unable to vacate
the default judgment. The attorney’s
neglect and incompetence was found to have violated, among other things, Rule
1.1, and the attorney was suspended for six months.Ftn 2
Similarly,
a lawyer is expected to know the rules of the courts before which the lawyer
practices. Recently, an attorney was
retained to represent a client on an appeal of a criminal matter to the 8th
U.S. Circuit Court of Appeals. The
attorney filed a notice of appeal but then wrote a letter to the 8th Circuit
withdrawing the appeal and advising that a brief would not be filed. The clerk for the 8th Circuit advised the
attorney several times that the local rules of procedure required that the
attorney obtain the client’s signed consent to dismiss the appeal. The attorney failed to respond to the clerk
or obtain a signed consent to dismiss from his client. As a result, the 8th Circuit reinstated the
appeal on its briefing schedule. When
the attorney failed to file a brief, the 8th Circuit issued an order to show
cause why the appeal should not be dismissed for failure to prosecute. The 8th Circuit eventually dismissed the
client’s appeal.
The
attorney’s conduct was found to have violated, among other things, Rule 1.1,
and the attorney was suspended for four months.Ftn 3
These
recent cases highlight the need for lawyers to educate themselves appropriately
on matters of procedure. Competent representation
requires analysis of not only the factual and legal aspects of a case but also
inquiry and review of the relevant procedural rules, especially those relating
to the manner and timeliness in which documents must be filed with the court.
_________________
1 In re Swanson, 709 N.W.2d 623 (
2 In re Schaeffer, No. A05-2501 (February 14, 2006).
3 In re Redburn, 702 N.W.2d 215 (