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Minnesota lawyer is suspended for an additional 60 days for writing former client’s winning ‘pro se’ appeal brief while suspended

Hello and welcome to this Ethics Alert which will discuss the recent opinion of the Minnesota Supreme Court suspending a lawyer for an additional 60 days for writing a brief for a pro se former client while he was under a suspension in an unrelated matter.  The case is In re Petition for Disciplinary Action against Stephen Vincent Grigsby, Minnesota Supreme Court Case No. A11-0976 (July 11, 2012) and the opinion is at 7-11-12 Minnesota SC Opinion 60 day suspension for ghost writing while suspended.

According to the opinion, after the lawyer was suspended from practice for 60 days on April 16, 2009 for unrelated misconduct, he attempted to find alternative counsel for about 30 his clients; however, he was not able find another lawyer to write an appellate brief for a client (J.R.) who was convicted of DUI in a retrial after a judge declared a mistrial without his agreement.  The lawyer sent a letter to the client advising that he had been suspended from practice and could no longer represent him.  After the lawyer was unable to find another lawyer to write the appeal brief, he wrote it himself (at no charge), signed the former client’s name to the pleading and timely filed it with an explanatory letter.  An assistant county attorney assigned to the DUI case on appeal suspected that it had been ghostwritten and reported it to the Minnesota disciplinary authorities.

After an evidentiary hearing, the referee issued a report finding that, by “drafting a legal document on behalf of a client, and submitt[ing] that document in the client’s appeal” while suspended, the lawyer had violated Minnesota Bar Rule 5.5(a), which provides that “[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.”  The referee also recommended that the lawyer be found guilty of violating Minnesota Bar Rules related to misrepresentation, fraud and deceit, and candor to the tribunal.

The opinion agreed with the referee that, by drafting an appellate brief while suspended, signing the client’s name to the brief, and falsely stating to the appellate court that the former client was pro se, the lawyer had violated Rule 5.5(a); however, it rejected the referee’s recommendation that the lawyer be found guilty of violating Bar Rules related to misrepresentation, fraud and deceit, and candor to the tribunal.

The opinion also rejected the lawyer’s argument that, even if the Minnesota Bar Rules prohibited his conduct, he was doing what was necessary to protect his ex-client’s interests in what amounted to an emergency under Minnesota Bar Rule 1.2(a), which provides that a “lawyer may take such action on behalf of the client as is impliedly authorized” by the client.  According to the opinion, the lawyer had other options, such as asking for an extension of time to file the brief, or requesting an ethics opinion regarding his obligations.

After considering the circumstances and mitigating factors, the opinion also rejected the referee’s recommendation of a nine (9) that month rehabilitative suspension which would have required that the lawyer prove rehabilitation in order to be reinstated and imposed a non-rehabilitative 60 day suspension.  The lawyer was also required to retake and pass the ethics/professional responsibility portion of the Bar Exam, and pay costs in the amount of $900.00.

Bottom line:  This lawyer apparently was trying to do the right thing for his client; however, he violated the Minnesota Bar Rules to do it.  Significantly, the lawyer was not found guilty of misrepresentation, fraud and deceit, and/or candor to the tribunal and the opinion also noted that the brief that the lawyer filed must have been effective because the former client won his appeal and the DUI conviction was reversed on former jeopardy grounds.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

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