Little Harm, Little Sanction

An attorney’s improper invocation of a lien for unpaid fees and failure to return documents merits non-public discipline per this decision of the Minnesota Supreme Court.

The representation involved a title dispute.

Attorney subsequently presented [client] W.Y. with a bill for attorney fees and costs in the amount of $327,940.88. By early 2013, W.Y. had paid only approximately $2,800, missing several scheduled payments. On February 8, 2013, W.Y. wrote to Attorney and requested that he return the Parcel B deed and abstract. W.Y. gave Attorney one week to do so.

On February 11, 2013, Attorney sent a letter to W.Y. ending his representation in the Parcel B matter due to nonpayment of fees. On February 12, Attorney sent another letter to W.Y. stating that, pursuant to Minn. Stat. § 481.13 (2018), Attorney had filed an attorney’s lien against Parcel A, Parcel B, and several items of W.Y.’s personal property—including the Parcel B deed and abstract. On February 13, Attorney sent a third letter to W.Y. in which he (1) affirmed receipt of W.Y.’s letter requesting the Parcel B deed and abstract; (2) restated that he had filed an attorney’s lien against W.Y. for unpaid invoices; and (3) declined to return the warranty deed and abstract of title to W.Y. until either the amount owed was paid or the court issued an order regarding these documents.

The attorney initiated a statutory lien proceeding and was ordered to return the deed

The nature of the misconduct here is “non-serious.” Rule 8(d)(2), RLPR. Although Attorney impermissibly retained the documents for nearly 2 years, he did seek to vindicate his mistaken view of the law and deposited the documents with the district court for safekeeping. The misconduct is also “isolated” because it was a one-time violation, and Attorney has no record of discipline. See, e.g., Panel File No. 41310, 899 N.W.2d at 826. Additionally, although trust-account violations bear close scrutiny, the mistakes here did not involve misappropriation of client funds. Because the violations did not create a shortage in Attorney’s overall trust account and because he promptly corrected the error, the violations are non-serious.

This case involved limited harm to the public. Attorney’s client was deprived of the abstract and deed, but this deprivation did not divest the client of actual ownership of the property. As for the public at large, there does not appear to be any significant harm. Even so, the absence of harm to others “does not reduce a violation of a rule, however technical, into no violation and thus no discipline at all.” In re MDK, 534 N.W.2d 271, 272 (Minn. 1995).

Finally, there was some harm to the profession, but, by a narrow margin, the harm was not great enough to warrant public discipline. In the briefs he submitted and during his testimony before the panel, Attorney came very close to inappropriately accusing the Director and the courts of malicious intent. Unsubstantiated claims of bias, particularly from a member of the bar, serve only to bring the profession into disrepute. Although this behavior is cause for concern, it was not so immoderate as to warrant public discipline.

Thus, we hold that a private admonition was the appropriate discipline in this case.