Attorney allegedly filed election suits minus plaintiffs’ OK – Minnesota Lawyer
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The Office of Lawyers Professional Responsibility filed a petition Dec. 12 seeking discipline ranging from reprimand to disbarment against Minnesota attorney Susan Smith, who allegedly filed lawsuits on behalf of individuals who never authorized or even knew of them.
Smith was admitted to the bar in October 2004, and she currently practices law in Brooklyn Center.
After the November 2020 elections, Smith volunteered her legal services for a newly formed ad hoc volunteer organization called Minnesota Election Integrity Team (MNEIT). The organization was supposed to help concerned citizens file election contests in Minnesota.
An email, which was shared across group lists to people known to be politically active, was first circulated on Nov. 30, 2020. The email said, “It is time for your voice to be heard!” and instructed “[a]nyone who supports the challenge of these elections to stop the election fraud happening in Minnesota, and wants to be listed as a: VOTER CONTESTING THE ELECTIONS” to fill out an affidavit attached by fillable PDF.
However, there was no additional context to the email or the pdf. No one was told that a lawyer was soliciting clients or that, by submitting, that they were consenting to be plaintiffs in an election contest. Nor was anyone informed that an election contest was a legal matter, that there were potentially very large financial costs associated with filing an election contest as there could be ballot counting or other logistical costs associated with an election contest or recount.
No one eventually listed as a plaintiff was informed about the contest prior to filing, about the objectives of the representation, the risks involved, or the likelihood of success. There was also no coordination with MNEIT to reach out directly to the individuals named.
Nevertheless, on Dec. 1, 2020, Smith filed five notices of election contests in Ramsey County District Court in the names of 14 voters. These challenged the successful candidates for the 2nd, 3rd, 4th, and 5th Congressional Districts and the U.S. Senate.
Although Smith did provide copies of the filings to MNEIT and asked that MNEIT forward these to the named contestants, MNEIT did not do so. Consequently, no one was aware of the contests ahead of time.
The contests were dismissed. The contestees were allowed taxation of costs and disbursements that were incurred in the defense of the election contests. Over $18,000 in costs and disbursements were taxed across the five court matters and assessed against the 14 individuals. Still, Smith did not provide notice to the contestants that the award of costs and disbursements was sought, nor did Smith ask MNEIT to provide that notice to contestants.
It was not until late February 2021 that Smith had direct contact with a contestant. A contestant learned that a judgment was entered against her and was concerned that she was involved in a lawsuit against the Minnesota Secretary of State and Rep. Ilhan Omar. Subsequently, Smith emailed the named contestants and advised them of the contests, informed them that they were unsuccessful, and let them know that while costs and disbursements were assessed, they would be covered by MNEIT.
Judge Leonardo Castro became aware that one of the named contestants had not authorized a lawsuit in their name. Later, more contestants came forward, seeking to have the judgments against them vacated and their names removed from the court files. Castro found that Smith committed “fraud on the court” and sanctioned Smith $10,000. Similarly, a district court panel sanctioned Smith $15,000 for allegedly committing fraud upon the court. Smith has not paid those sanctions.
The OLPR asserts that Smith violated multiple rules of professional conduct by not conducting adequate pre-lawsuit inquiry into the facts and circumstances surrounding the individuals’ wishes to be represented in an election contest, not consulting with individual affiants about their objectives or getting their consent to representation, not communicating the risks, not keeping the clients reasonably informed about the contests, and failure to ensure each person named wished to engage her services as counsel.
Initially, Smith cooperated with the district ethics committee investigator. Subsequently, Smith failed to communicate with the investigator and told the investigator that she would need more time to evaluate how to proceed.
In July 2021, Smith responded to the complaints. Apparently, the response was “voluminous, but largely nonresponsive” to the ethics issues raised by the Director. Smith apparently stated that she believed that the courts were corrupt, and that she would provide evidence of fraud being perpetrated on the court by others. She also apparently maintained that nothing she did was wrong and that the media and others were seeking to silence the voices of individuals concerned about fraud in the November 2020 election.
The OLPR states that, to date, Smith has not responded to multiple requests made by the Director to meet to discuss the complaints.
Smith has 20 days to answer the allegations.
Smith did not respond to request for comment in this story.
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