Attorney suspended for election lawsuit misconduct

Attorney Susan S. Smith has been indefinitely suspended by the Minnesota Supreme Court for making 14 people plaintiffs in lawsuits challenging election results without their permission. This decision was arrived at after the court concluded that Smith’s misconduct was “serious.”

“The cumulative weight of her violations is substantial,” wrote Justice Gordon Moore in an order issued June 5.

Smith was admitted to practice law in October 2004, and she practiced law in Brooklyn Center.

Following the elections in November 2020, Smith volunteered her legal services for an organization called Minnesota Election Integrity Team (MNEIT), an organization that sought to challenge the results of 2020 Minnesota elections. There was an email that was shared across group lists, telling individuals “It is time for your voice to be heard!” The email also 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 attached PDF affidavit.

But the email had no additional context. It was not clear from the email that by submitting the form that an election contest was a legal matter or that they were consenting to be plaintiffs. Nor were they told that there could potentially be large financial costs associated with filing an election contest.

Although Smith provided copies of the filings to MNEIT and asked them to forward the documents to the named contestants, MNEIT did not follow through. As a result, none of the individuals were aware of the election contests in advance. Those eventually listed as the 14 plaintiffs were not informed prior to filing and were not advised of the purpose of the representation, the risks involved, or the chances of success.

Smith filed five notices of election contests in Ramsey County in the names of the 14 voters on Dec. 1, 2020. These were challenges of the winners of the 2nd, 3rd, 4th, and 5th congressional districts and the winner of the U.S. Senate seat from Minnesota.

The election contests were dismissed, and the contestees were awarded costs and disbursements incurred in defending the actions. A monetary judgment of about $18,000 was filed against the plaintiffs.

No plaintiff had direct contact with Smith until February 2021. After she learned that the judgment had been entered, Smith emailed the named plaintiffs, told them about the unsuccessful challenge, and told them that assessed costs and disbursements would be covered by MNEIT.

Meanwhile, sanctions against Smith herself in the amount of $10,000 and $15,000 were imposed by the Ramsey County District Court in April and June 2021, respectively, after it concluded Smith had “perpetrated a fraud on the court and the named plaintiffs,” Moore’s order stated. The sanctions have not been paid.

The Office of Lawyers Professional Responsibility alleged that Smith failed to conduct a sufficient pre-suit inquiry into whether her clients wanted to be represented by her or included in a lawsuit; failed to consult with her clients about their individual goals and how those goals could be achieved; failed to communicate the risks and benefits of participating in the lawsuit; failed to keep her clients reasonably informed about the progress of the litigation; and failed to confirm that her clients consented to both her representation and being named as parties. Additionally, it claimed that Smith failed to pay the $25,000 court-ordered sanctions and failed to cooperate with the OLPR director’s investigation.

“Her misconduct involved not just lack of competence and failure to communicate with clients, but dishonesty to the courts and disregard for the discipline process,” wrote Moore. “[R]espondent’s misconduct was not a brief lapse in judgment but occurred throughout the litigation matters; over a year of non-cooperation with the Director’s investigations; and over multiple years, continuing to date, with respect to her failure to pay the sanctions judgments. Respondent caused harm to the individual plaintiffs by filing a lawsuit in their name without their knowledge or consent which resulted in judgments being entered against them; to the courts; and to the reputation of the legal profession.”

While the referee found that Smith accepted responsibility to be bound by the Minnesota Rules of Professional conduct and believed that Smith learned her lesson, the referee also concluded that Smith did not exhibit true remorse.

Smith is indefinitely suspended from the practice of law with no right to petition for reinstatement for 180 days from the effective date of suspension. She will be placed on probation for two years upon reinstatement. Smith must also pay the sanctions ordered by the court.