The Director of the Office of Lawyers Professional Responsibility (the Director) issued a private admonition to appellant for engaging in the unauthorized practice of law in Minnesota. […]

Appellant is an attorney licensed to practice law in the state of Colorado, where he maintains an office and has been practicing environmental law since 1986. He has also practiced personal injury law for approximately 7 years. Part of his litigation practice includes debt collection. Appellant is admitted to practice law in New York, Florida, and Alaska, but is currently on inactive status in those states. Appellant is also admitted to practice in federal court in the District of Colorado, the District of Alaska, the Southern and Western Districts of New York, and the United States Court of Appeals for the Ninth and Tenth Circuits. Appellant is not licensed to practice law in Minnesota.

Appellant’s mother- and father-in-law live in Minnesota. They contacted appellant in May 2014 to obtain assistance regarding a judgment entered against them in conciliation court in Minnesota for $2,368.13 in favor of their condominium association, Voyager Condominium Homeowners’ Association, Inc. (VCHA). The couple told appellant that VCHA’s attorney, D.R., a Minnesota-based lawyer and the complainant in this case, was harassing them with telephone calls attempting to collect on the judgment. The couple asked appellant for his assistance in negotiating with D.R. regarding payment of the outstanding judgment.

Appellant sent an e-mail to D.R. in late May 2014, informing D.R. that he was representing his in-laws and instructing D.R. to direct all future communications to him instead. Appellant and D.R. exchanged approximately two dozen e-mails between May 2014 and September 2014. In his first responsive e-mail to appellant, D.R. asked whether appellant was licensed to practice law in Minnesota. Appellant replied that he was not licensed in Minnesota and that if he needed to file suit in Minnesota he would hire local counsel. The subsequent e-mails consisted of discussions regarding the in-laws’ assets and ability to pay and whether the VCHA judgment would have priority in a foreclosure sale. Appellant attached financial disclosure forms to one of his e-mails and made a settlement offer.

In the penultimate e-mail exchange between the two attorneys, D.R. asserted that appellant was engaging in the unauthorized practice of law because he was not licensed in Minnesota. The final e-mail prior to D.R. filing an ethics complaint was a settlement proposal from appellant to D.R. on that same day. The Director received D.R.’s ethics complaint in October 2014. Approximately 2 months after filing the complaint, D.R. sent additional e-mails to appellant to determine whether the settlement offer was still available and whether appellant still represented his in-laws. Appellant did not respond to the subsequent e-mails and had no further involvement in the case.

Nothing in the record shows that appellant researched whether his activities constituted the unauthorized practice of law under the Minnesota Rules of Professional Conduct. When asked by the Panel at the evidentiary hearing whether he researched the rules in Minnesota, appellant said that he did not recall. Appellant admitted that he had not researched Minnesota law on foreclosure and how it would apply to his in-laws’ case. Appellant also admitted that when he considered the relevant law and the rules of professional conduct, he was more familiar with the laws and rules in Colorado.

The Panel affirmed the Director’s admonition, finding that clear and convincing evidence demonstrated a violation of Minn. R. Prof. Conduct 5.5(a). See Rule 9(j)(1)(iii), RLPR. The Panel found that appellant “is not licensed in Minnesota…. He is licensed in Colorado…. He was—although maybe not paid, he certainly has held out the fact that he represented clients, which regardless of whether they’re related or not, he did represent them, admitted to representing them in a purely Minnesota case.”

Pursuant to Rule 9(m), RLPR, appellant appealed the admonition to this court. Specifically, appellant challenges the Panel’s determinations that he violated Minn. R. Prof. Conduct 5.5(a) and that his conduct did not fall within one of the exceptions in Minn. R. Prof. Conduct 5.5(c). We address each issue in turn.

We turn first to appellant’s claim regarding Rule 5.5(a). It states, in relevant part, that “[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction….” Minn. R. Prof. Conduct 5.5(a).

Appellant contends that he did not violate Rule 5.5(a) because he did not practice law in Minnesota. According to appellant, a lawyer practices in a jurisdiction in one of three ways: (1) by being physically present in the jurisdiction; (2) by establishing an office or other systematic and continuous presence in the jurisdiction; or (3) by entering an appearance in a matter through the filing of documents with a tribunal. Appellant argues that e-mail communication directed to a jurisdiction in which the lawyer is not admitted to practice does not fall within the definition of practicing law in a jurisdiction, and thus the Panel erred in its determination that he violated Rule 5.5(a).

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Appellant concedes for the purpose of this appeal that he engaged in the practice of law, albeit in Colorado. Such a concession is consistent with our prior cases holding that negotiating the resolution of a claim on behalf of a client constitutes the practice of law. See In re Ray, 610 N.W.2d 342, 343, 346 (Minn.2000) (upholding the referee’s finding that the attorney engaged in the unauthorized practice of law by negotiating with the county attorney on behalf of a client while the attorney was subject to a disciplinary suspension); In re Ray, 452 N.W.2d 689, 693 (Minn.1990) (holding that “the record support[ed] the referee’s conclusion” that the attorney engaged in the unauthorized practice of law by attempting to negotiate settlements for two clients). Appellant maintains, however, that an attorney does not practice law in another jurisdiction merely by engaging in e-mail communications with individuals in that jurisdiction. Whether an attorney engages in the practice of law in Minnesota by sending e-mails from another jurisdiction is a matter of first impression.

Rule 5.5(a) of the Minnesota Rules of Professional Conduct does not explicitly define what it means to practice law in a jurisdiction. Certainly, physical presence is one way to practice law in a jurisdiction. But, as we set forth below, it is not the only way.

Other courts have addressed the issue of whether an attorney practices law in a jurisdiction even though the attorney was not physically present in that jurisdiction. In Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal.4th 119, 70 Cal.Rptr.2d 304, 949 P.2d 1, 5–6 (1998), the California Supreme Court analyzed what constituted the practice of law in a jurisdiction by looking at the nature of the legal representation in the jurisdiction, instead of focusing solely on physical presence. In determining what it means to practice law in California, the court considered whether the lawyer had “sufficient contact with the California client to render the nature of the legal services a clear legal representation” and whether the lawyers’ contact with California was merely “fortuitous or attenuated.” Id. , 70 Cal.Rptr.2d 304, 949 P.2d at 5. The court determined that a lawyer “may practice law in the state … although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means.” Id. , 70 Cal.Rptr.2d 304, 949 P.2d at 5–6 ; see also In re Babies, 315 B.R. 785, 791–93 (Bankr.N.D.Ga.2004) (concluding that attorneys who were physically present in Illinois practiced law in Georgia by representing Georgia clients with respect to a bankruptcy, preparing documents related to that bankruptcy, and communicating with these clients via the telephone and mail).

The reasoning in Birbrower is persuasive. Based on that reasoning, we conclude that the Panel did not clearly err by finding that appellant practiced law in Minnesota, in violation of Minn. R. Prof. Conduct 5.5(a).1 Appellant contacted D.R., a Minnesota lawyer, and stated that he represented Minnesota clients in a Minnesota legal dispute. This legal dispute was not interjurisdictional; instead, it involved only Minnesota residents and a debt arising from a judgment entered by a Minnesota court. Appellant instructed D.R. to refer all future correspondence to him, and he continued to engage in correspondence and negotiations with D.R. over the course of several months. Appellant requested and received financial documents from his Minnesota clients and advised them on their legal options. By multiple e-mails sent over several months, appellant advised Minnesota clients on Minnesota law in connection with a Minnesota legal dispute and attempted to negotiate a resolution of that dispute with a Minnesota attorney. Appellant had a clear, ongoing attorney-client relationship with his Minnesota clients, and his contacts with Minnesota were not fortuitous or attenuated. Thus, there is ample support for the Panel’s finding that appellant practiced law in Minnesota.

Next, we turn to appellant’s claim that even if the Panel did not err in determining that he was practicing law in Minnesota in violation of Minn. R. Prof. Conduct 5.5(a), his conduct was permitted under one of the exceptions in Minn. R. Prof. Conduct 5.5(c). Appellant argues that Rule 5.5(c)(2) authorized his conduct because he reasonably believed that he would be able to associate with local counsel and be admitted pro hac vice if necessary. Appellant further claims that Rule 5.5(c)(4) authorized his conduct because his in-laws reached out to him for assistance on a matter within his expertise; thus the matter “arose out of [Appellant’s] law practice.”2

Rule 5.5(c) permits an attorney to practice temporarily in a jurisdiction in which the attorney is not admitted. It states:

A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction which:

….

(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in the proceeding or reasonably expects to be so authorized;

…

Or

(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

Minn. R. Prof. Conduct 5.5(c).

Under Minnesota Rules of Professional Conduct 5.5(c)(2), a lawyer admitted in another jurisdiction may provide legal services in Minnesota on a temporary basis if the lawyer’s services are reasonably related to a pending or potential proceeding before a tribunal and the lawyer reasonably expects to be authorized by law to appear in the proceeding. Comment 10 explains that a lawyer rendering services in Minnesota on a temporary basis is permitted to engage in conduct in anticipation of a proceeding or hearing in which the lawyer reasonably expects to be admitted pro hac vice. Minn. R. Prof. Conduct 5.5(c)(2) cmt. 10.

Appellant suggests that there was a potential proceeding that could be brought on behalf of his in-laws. Because of this belief, appellant contends Rule 5.5(c)(2) protects him. The Director persuasively argues that appellant knew further litigation was unlikely because a court had already decided the underlying case involving his in-laws, and appellant was simply negotiating a potential debt resolution. In addition, Rule 5.5(c)(2), by its plain language, requires more than an attorney’s speculation that the attorney can find local counsel and be admitted to practice pro hac vice. Appellant’s e-mail correspondence does not indicate that he took steps to secure local counsel or investigate the possibility of pro hac vice admission. Thus, we conclude there is no support for appellant’s claim that his conduct was authorized by Rule 5.5(c)(2).

Under Minnesota Rules of Professional Conduct 5.5(c)(4), a lawyer admitted in another jurisdiction may provide legal services in Minnesota on a temporary basis if the lawyer’s services are not covered by paragraphs (c)(2) and (c)(3) and “arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.” Appellant contends that his services arose out of or were reasonably related to his practice in Colorado because the clients are his relatives who “reached out to him for assistance” and appellant’s environmental and personal-injury practice involves debt collection.

Comment 14 of Minnesota Rules of Professional Conduct 5.5 provides guidance on this issue. Specifically, comment 14 instructs that several factors may demonstrate that an attorney’s temporary legal services in Minnesota reasonably relate to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice (“lawyer’s home jurisdiction”), including: whether the client is a resident of or has substantial contacts with the lawyer’s home jurisdiction; whether the client has previously been represented by the lawyer; whether a significant aspect of the matter involves the law of the lawyer’s home jurisdiction; whether the client’s activities or the legal issues involve multiple jurisdictions; or whether the services “draw on the lawyer’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.” Minn. R. Prof. Conduct 5.5 cmt. 14; see also Restatement (Third) of the Law Governing Lawyers, § 3 cmt. e (Am. Law Inst.2000) (stating that a lawyer may provide legal services outside of a home jurisdiction if the services reasonably relate to the lawyer’s practice in his or her home jurisdiction and listing factors similar to those in Minn. R. Prof. Conduct 5.5 cmt. 14 for determining if the services reasonably relate to the lawyer’s practice in the home jurisdiction, including whether “the legal issues involved are primarily either multistate or federal in nature”).

The legal services appellant provided to his in-laws were unrelated to his environmental and personal-injury practice in Colorado. The record establishes that appellant was involved in litigation in Colorado state court, including eight trials in the past 7 years in which collection issues arose,3 and that appellant negotiated the resolution of a debt with an out-of-state creditor on behalf of several Colorado residents. Although Rule 5.5(c) may permit appellant to negotiate with a Colorado client’s out-of-state creditor because this representation is reasonably related to appellant’s Colorado practice, the facts of this case are substantially different. Appellant’s in-laws are not Colorado residents, and appellant had no prior attorney-client relationship with them.

Moreover, appellant’s representation of his in-laws did not “arise out of” or “reasonably relate” to his practice in Colorado simply because his in-laws contacted him in Colorado or appellant has done collections work in Colorado. As the Director notes, appellant’s in-laws were not long-standing clients; nor was there any connection between the in-laws’ case and the state or laws of Colorado. And while appellant’s Colorado practice may involve judgment collections work, nothing in the record establishes that this work was based on a body of federal or nationally uniform law.[4] To the contrary, appellant’s clients were Minnesota residents with a debt that arose in Minnesota that they owed to a Minnesota resident and that was governed by Minnesota law. Accordingly, Rule 5.5(c)(4) does not apply to appellant’s conduct.

Finally, we consider the appropriate discipline for appellant’s misconduct. We give great weight to the recommendations of the Panel, but we have “the final responsibility for determining appropriate discipline for violations of the rules of professional conduct”. Panel Case No. 23236, 728 N.W.2d at 258. We do not impose sanctions in attorney-discipline cases as punishment, but rather we impose sanctions “to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney [and] other attorneys.” In re Rebeau, 787 N.W.2d 168, 173 (Minn.2010). We impose sanctions according to the unique facts of each case, and “when considering appropriate sanctions for misconduct, we weigh the following factors: (1) the nature of the misconduct, (2) the cumulative weight of the disciplinary violations, (3) the harm to the public, and (4) the harm to the legal profession.” Panel Case No. 23236, 728 N.W.2d at 258 (citation omitted) (internal quotation marks omitted).

The nature of the misconduct in this case is non-serious. Appellant wrongly believed that he could negotiate a settlement in Minnesota without being licensed to practice law in the state. The cumulative weight of the misconduct is also minimal. Appellant engaged in a series of e-mail communications with one attorney in a single matter involving appellant’s family members. In addition, the only harm appellant’s clients suffered was a delay in the resolution of their debt because of appellant’s actions. Accordingly, a private admonition is the appropriate discipline for appellant.

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Supreme Court of Minnesota, “In re Charges Unprofessional Conduct in Panel File No. 39302,” 884 N.W.2d 661, 2016.