Board finds perfectly o.k. for attorney to lie in court.

July 28, 2010

Dated July 22, 2010 on appeal and reviewed by Attorney Jan M. Zender. The lawyers Professional Responsibility Board of Minnesota found that it is o.k. and no violation of the rules of ethics for attorney John Chitwood to lie to the court, (in a default motion) stating that the defendant had never responded to complaint when in fact the defendant had provided a motion to dismiss and answer to discovery in response to the complaint and discovery of which was served at the same time as the complaint.

O.K. for attorney to not file lawsuit before SOL runs

June 7, 2009

In this matter of no discipline warranted signed by Patrick R. Burns and investigated by Shawn Bartsh we have another matter not consistent with the Minnesota Rules of Professional Responsibility.

Rule 1.1 Competence

In this case attorney Clark Thurn not only did not warn of the expiring SOL but he did not file the lawsuit.

Investigator Shawn Bartsh determined that that the insurance company did not raise a SOL defense. She determined this by a phone call with the adjuster who was recollecting from some six years ago.

Next Ms. Bartsh erroneously uses a letter from the client who put the statute of limitations ending at a date of October 1, 2002. But what she does not reveal is that date was only one date for a certain area of the claim. The claim had five different dates of statutes of Limitations most of them being previous to October 1, 2002.

Ms. Bartsh had in hand clear evidence showing when the SOL started (11-11-99) and she had in hand the policy showing that it was a two year SOL but because the complainant says that the suit must be filed by October 1, 2002 then nothing else matters, not the policy not the invoice of 11-11-99, just the complainants word that the SOL ran on October 1, 2002.

To Ms. Bartsch the complainants words means everything when she wants it to but nothing when she does not want it to.

Bottom Line: It is o.k. for the attorney Clark Thurn to not warn of SOL or start a lawsuit before the expiring of the SOL so long as the SOL is not an issue for the adverse party.

UPDATE: July 2, 2009 On Appeal attorney Robert B. Bauer finds for attorney. Mr. Bauer states that he found a letter from the client stating that the lawsuit had to be filed by a certain date. What Mr. Bauer failed to realized was that the claim actually had several “dates of losses” of which would also make several dates the statute of limitations would run on. Mr. Bauer had documentation in hand that showed the actual date of when the first SOL would have run. He ignored this and chose to use a letter from the client to attorney whereas the client was asking attorney Clark Thurn to start a lawsuit for the latter claims where the statute had not run yet. It seems this is far too complicated for Mr. Robert B Bauer to comprehend. Mr. Bauer also reasons that the client files ethics complaints against all attorneys who do not agree with him. Mr. Bauer provides no facts to support this allegation nor does Mr. Bauer know how many attorneys this client has retained over the last the 30 years, nor does he know how many attorneys he has filed ethics complaints on.

O.K. For Attorney Not To Warn Of SOL

June 7, 2009

In this matter of no discipline warranted signed by Patrick R. Burns and investigated by Shawn Bartsh we have another matter not consistent with the Minnesota Rules of Professional Responsibility.

Complainant provided an invoice dated 11-11-99 showing when the two year statute of limitations began to run. Attorney Clark Thurn’s letter to client warning of SOL was dated 01-04-02. The insurance policy state the SOL was two years.

Complaint also provided a memorandum written by attorney Clark Thurn when he was retained approx two months before the statute of limitations would have run based on the 11-11-99 date. This memo stated in part that client came to see him to bring a lawsuit. Complainant further provided detailed time logs written by attorney Clark Thurn that showed no evidence that attorney Clark Thurn ever consulted with or sent a letter to client warning of the two year SOL before they would have expired on 11-11-2001.

The only letter that attorney Clark Thurn wrote warning of the SOL was after the two year mark had passed.

No violation of Rule 1.4 found.

UPDATE: July 2, 2009 On Appeal attorney Robert B. Bauer finds for attorney Clark Thurn. Mr. Bauer states there is not any clear and convincing evidence that the statute of limitations was not communicated in a timely manner. The only evidence of communication of the SOL was a letter written by the attorney Clark Thurn to the client warning of the SOL. Mr. Bauer failed to realize that the letter was written after the SOL had already passed. Mr. Bauer also reasons that client files ethics complaints against all attorneys who do not agree with him. Mr. Bauer provides no facts to support this allegation nor does Mr. Bauer know how many attorneys this client has retained over the last the 30 years, nor does he know how many attorneys he has filed ethics complaints on.

O.K. For Attorney to Accept Settlement Unathorized

June 7, 2009

In a recent decision (dated June 5, 2009) and signed by First Assistant Director Patrick R. Burns and investigated by attorney Shawn Bartsh we have another determination that is not consistent with the Minnesota Rules of Professional Conduct.

In this case attorney Clark Thurn had authorization to accept a settlement offer at a certain time (in the afternoon) but instead he called and accepted the offer in the morning before he had authorization. This is a violation of Rule 1.2. Attorney Clark Thurn denied that he had did this and concocted a story that the client was supposed to leave a message over the weekend if he did not want to go through with the settlement. Attorney Clark Thurn states that since he received no message over the weekend he called and accepted the offer in the morning. Evidence of a tape recorded phone conversation with attorney Clark Thurn was shown and the he now admits in the conversation that he was supposed to call in the afternoon but instead called in the morning.

The investigator, Bartsh found that yes this was a violation of Rule 1.2 but discipline was not warranted. Why? Because Bartsh states that neither the client or the attorney believed it was a final settlement. What Bartsh failed to reveal was that in fact the attorney also advised the client that he could sign the release and still sue later. How could the client believe that it was a final settlement when he was told he could sign the release and sue later? Attorney Clark Thurn admits to telling the client that he could sign the release and sue later but now states that it was not definitive advice.

In this matter it is evident that if an attorney violates rule 1.2 and he can convince the client to accept the deal even by saying you can you “sign and sue later” no ethics violation has occurred. The clients actions if he accepts the deal ratifies all violations of the Minnesota Rules of Professional Conduct.

UPDATE: July 2, 2009 On Appeal attorney Robert B. Bauer finds for attorney Clark Thurn as client would have had to have rejected the offer for any ethics violation to occur. In other words it is o.k. for an attorney to settle the case unauthorized so long as the client goes along with it. Never mind the fact that the clients hands were tied as the SOL had run on part of the claim and were running on the rest of the claim shortly. Never mind the fact that the other attorney the client had found to take on a straight contingency was no longer interested in the case because of the unauthorized settlement. So long as the attorney can convince the client to go along with his wrong doings, no ethical violation occurred. The attorney advised that the release could be signed and the client could still sue. Client relied on that advice and went along with the unauthorized settlement. Mr. Bauer also reasons that the client files ethics complaints against all attorneys who do not agree with him. Mr. Bauer provides no facts to support this allegation nor does Mr. Bauer know how many attorneys this client has retained over the last the 35 years, nor does he know how many attorneys he has filed ethics complaints on.

Willful disregard for state statute o.k.

February 10, 2009

The board approves of attorneys willfully suggesting the violation of State law when it is beneficial to the attorney and further approves the attorney quoting the same State law when the attorney wishes to avoid a certain consequence that is not favorable to his/her case.

It also appears that to be a valid ethical complaint in a pending
case before the court, the judge must be asked if there was an
ethics violation. So therefore no ethics violation can be found
unless the judge rules on the matter.

Attorney Richard J. Thomas demanded Plaintiff who was an LLC and unrepresented by an attorney to produce specific documents and information with regard to discovery requests.

Attorney Richard J. Thomas should have known under the rules and laws that an individual or corporate shareholder cannot legally represent a corporation in district court. Instead Mr. Thomas demanded the individual represent the LLC and produce the information.

Later after receiving the requested discovery, attorney, Richard J. Thomas moves for dismissal of the case based partly on a shareholder/member representing the LLC without an attorney.

Attorney Richard J. Thomas wants it one way when it suits him but another way when the law favors him.

The board found no ethical violation for this conduct.

The board further found that an ethical complaint is not valid against an attorney unless the judge in a proceeding found some ethical violation, even though the issue was not raised for the judge to consider.

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