Minn. Supreme Court Considers Attorney Requirement on Malpractice Insurance

May 16, 2006

Many of the complaints the Minnesota Lawyers Board investigates get dismissed, including a large number filed by clients upset simply because their attorney lost, according to an Associated Press story.

But every year, there a few attorneys the board investigates for serious violations that warrant temporary suspension of the license to practice law or, in the worst cases, disbarment. The Minnesota Supreme Court makes the final determination but typically it goes along with the board’s recommendations.

Betty Shaw, former acting director of the Lawyers Board, said the number of attorneys cited for serious violations usually ranges in the thirties. As of late April, however, that number was already up to 27 and another 18 cases were pending. Shaw said the board does not know the reason for the spike this year or why some years the number of violations is low. What Shaw does know is there are two main areas where lawyers get into trouble: misusing client funds and dishonesty.

“Lying to the court, altering a document, and it doesn’t even have to be within the legal profession. If you are an attorney and you are engaging in fraudulent conduct, even though it’s outside the practice of law, that reflects adversely on your character and you don’t have the character to be a lawyer if you can’t be honest,” said Shaw, who has since been replaced by Martin Cole.

Ed Kautzer represents attorneys who the Lawyers Board has investigated. He said he has not seen any reason why the numbers for serious discipline are up this year. He thinks it is a statistical anomaly. Nevertheless, Kautzer said misapplying funds can be a fast track to disbarment.

“Unfortunately they don’t teach Accounting 101 in law school so some of us don’t do as good a job as others and overdraw our trust accounts,” said Kautzer. “Some people do it intentionally with the perceived intent of paying it back. Some do it negligently but even negligent misappropriation can give you public discipline.”

One Twin Cities law professor said if the rates of lawyer discipline trend higher through the end of the year, the Minnesota legal profession should study it further.

Ann Juergens, who teaches professional responsibility at William Mitchell Law School, said there could be many reasons contributing to the higher number: it is a highly competitive field and stress is high among many lawyers, which can lead to drug and alcohol abuse. Juergens, however, said the higher rates may actually signal an encouraging trend.

“Maybe we’re just getting better at finding lawyer misconduct and disciplining it and maybe disbarment we’re more willing to impose the harshest penalty whereas in the past we’ve been kinder or softer on misbehaving lawyers,” said Juergens.

Currently, there are about 18,000 lawyers actively practicing in Minnesota. Therefore, the disciplinary numbers in that context are quite small. Nevertheless, Betty Shaw of the Lawyers Board said even one is too many because a few bad lawyers reflect on the majority who are ethical.

The Minnesota Supreme Court will soon consider a proposal that all attorneys must tell their clients whether they have malpractice insurance. Many attorneys, but not all, have malpractice insurance. That insurance can be recourse for clients who have been wronged by their attorneys.

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