Experts on disciplining lawyers, including Martin Cole, pictured, say it’s difficult to explain the apparent spikes in bad behavior.
Twenty Minnesota attorneys have been disbarred, suspended, publicly reprimanded or placed on probation so far this year. So many lawyers have been disciplined by the Minnesota Supreme Court that the total for 2013 is likely to surpass last year’s 38 actions and could overtake the record of 55 lawyers sanctioned in 1990.
Last week, Minneapolis attorney Peter Nickitas was handed a 30-day suspension for a conflict of interest and intimidating an opposing lawyer, saying he hoped she’d “sleep with the fishes,” according to the state’s petition for discipline. Last month, Bemidji attorney Amber Ahola received a public reprimand and two years’ probation for briefly housing a client who absconded from a treatment program, then lying to the deputy who came looking for him.
In March, William J. Morris Jr. of Minneapolis was disbarred following his conviction for 12 felony counts for an online education scam that netted $3.5 million. Two months before that, attorney Thomas P. Lowe of Eagan was suspended for a minimum of 15 months for having a sexual relationship with a client he was representing in a divorce case, and including the time spent during their trysts in his billable hours.
The numbers are not likely to indicate a sustained rise in bad behavior among Minnesota’s 28,000 lawyers — about 25,000 of whom are actively licensed, said Martin Cole, director of the state’s Office of Lawyers Professional Responsibility. The board investigates complaints against lawyers and, if warranted, files petitions and recommendations for disciplinary action.
“Sometimes it really sort of runs in inexplicable cycles,” said Cole, who has headed the lawyers board since 1984. “You can go back 20 years and suddenly find a year that there was a big spike in public discipline.”
Cole said that last year’s number is likely to be surpassed.
Multiple theories for spike
Those who monitor the profession offered different theories for the rise in wayward lawyers. A third of the disciplinary actions in the past four years involved performance-level misconduct that’s not necessarily dishonest, such as neglecting clients, failing to show up at court dates or missing filing deadlines. The economy could be an indirect factor, Cole said. Big law firms are no longer hiring and there’s an increase in solo practitioners, simply out of necessity. The result is many lawyers taking on too many cases — or cases they shouldn’t handle at all.
“You start to see more lawyers handling matters that either don’t really interest them or they’re not competent to handle them for various reasons,” Cole said. “It’s not the area of law they want to be in or are experienced in. That can lead to bad lawyering.”
Phil Duran, president-elect of the Minnesota State Bar Association, said the growth in the numbers of practicing lawyers in Minnesota is likely to account for the number of disciplinary actions. Duran also pointed to the economic slowdown and a number of people going into law as an alternative career after they were laid off or discouraged from other professions.
“We are aware of the numbers, but our analysis boils down to the fact that there’s a lot more lawyers, and that means more are going to get themselves into trouble,” he said. “When you look at the overall proportion, it’s not a cause for alarm.”
Lawyers Concerned for Lawyers (LCL), an organization that helps attorneys afflicted with stress, also has seen more lawyers coming its way. The profession has had higher levels of chemical dependency, depression and suicide than the population as a whole, said Executive Director Joan Bibelhausen. Those problems also can factor into the misconduct that gets lawyers in trouble.
Despite the uptick, punished lawyers represent a small fraction of the complaints received by the lawyers board. The office received an average of 1,329 complaints annually over the past three years. Cole said 35 to 40 percent of complaints against attorneys are dismissed without investigation, while another 40 percent are investigated and determined to warrant no discipline.
For one , pattern of neglect
When Carrigan Curtis needed a lawyer for a business matter in March 2011, an attorney she respected recommended Nathan Hobbs. She paid the Minneapolis attorney half of the $2,500 retainer and communication went smoothly. About two weeks later, when she sent the other half of his deposit, important documents went unfiled.
“I would write e-mail after e-mail wondering where he was on the situation,” said Curtis, a construction-business owner from Chanhassen. “He would say, ‘We’re doing it today,’ then a month would go by or three weeks would go by and I’d hear the same thing, but nothing would happen.”
Frustrated, Curtis found a new lawyer and demanded a refund. She never heard back.
Curtis’ story is one of many laid out in a petition for disciplinary action against Hobbs. Records show he agreed last year to a suspension of a minimum of three years for a litany of counts ranging from misappropriation, shortages and failing to maintain trust account records to, in Curtis’ case, neglect.
Curtis said she eventually received a letter of apology from Hobbs and was paid her retainer money from the state’s Client Security Board. It was one of nearly $118,000 in payments made to clients in fiscal year 2012.
In a statement, Hobbs blamed the problems on a bout of depression and said he has since gotten treatment. “I encourage all attorneys struggling with depression to seek prompt treatment, as my years of untreated mental illness caused irreparable harm to both my career and marriage. Through no fault of their own, my clients bore the consequences.”
No firm answers
Recently, Cole said, disciplinary issues are more common among older lawyers, who may be practicing longer than they should or can’t afford to stop. It’s a trend Bibelhausen sees as well at LCL.
“Sometimes people should no longer be doing this work, either because the stress level has gotten so high, compassion fatigue or maybe they’ve just been doing this so long that they’re burned out,” she said.
In some cases, Cole said, there may be no explanation for the “dishonest motive, the troubled soul or whatever it is.” He guessed that if the numbers drop in future years, it will be equally hard to explain.
“It’s anecdotal, and we try to get out and educate, teach and prevent, but lawyer discipline is basically reactive,” he said. “It’s hard to know what’s going to come in the door.”
Abby Simons • 612-673-4921