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.
