Arbitrary And Capricious

The Minnesota Supreme Court has held that a panel of the Lawyer Professional Responsibility Board acted in an “arbitrary and capricious” manner in bifurcating disciplinary charges against an attorney.

The attorney (not identified by name in the opinion) was accused of violating Rule 8.4 (dishonesty) and 1.5(e) (fee-splitting with an associate from another firm).

The associate staffed his/her law firm’s intake hot line. Over drinks, the associate and the accused attorney reached an agreement by which cases the firm declined were referred to the accused attorney in return for a share of any resulting fees.

The law firm filed the bar complaint.

The panel ordered a private admonition for the fee-splitting and authorized charges for dishonesty. The basis for the dishonesty charge was the accusedattorney’s failure to advise clients of the fee arrangements.

The law firm appealed to the court, contending that the bifurcation of the charges was arbitrary and capricious.

The court agreed, holding that the disciplinary panel was required to consider the allegations as a whole.

The court vacated the admonition and ordered that the two charges be heard in a single matter.

This principle – that charges of misconduct against an attorney should be heard in a single matter – is an important one that allows the disciplinary system to see the full picture of an attorney’s possible misconduct.

I handled a bar prosecution many years ago where there were allegations of both misconduct and mental disability. The hearing committee and the Board on Professional Responsibility held that the matters must proceed on separate tracks. The D.C. Court of Appeals disagreed and remanded for a single hearing where the issues of misconduct and mental health were considered in a single tableaux.

My case is In re Robert Stone. (Mike Frisch)