author: ANDERSON, RUSSELL A., Chief Justice.

text:
    John S. DREWITZ, Appellant, v. MOTORWERKS, INC., et al., Respondents.
    No. A04-2338.
    Supreme Court of Minnesota.
    Feb. 15, 2007.
    Rehearing Denied March 15, 2007.

      Paul W. Chamberlain, Chamberlain Law Firm, Wayzata, MN, for Appellant John S. Drewitz.
    William M. Hart, Mary M.L. O’Brien, Jeffrey M. Thompson, Erica Gutmann Strohl, Meagher & Geer, P.L.L.P., Minneapolis, MN, for Respondent Motorwerks.
    David L. Hashmall, Ryan A. Olson, Fel-haber Larson Fenlon & Bogt, P.A., Minneapolis, MN, and James Schutjer, Minnesota Automobile Dealers Association, West St. Paul, MN, for Amicus Curia Minnesota Automobile Dealers Association.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

In this case, which we refer to as Drew-itz II, John Drewitz sued his former employer, respondent Motorwerks, for breach of a shareholder agreement, and also sought an order requiring that Motor-werks purchase Drewitz’s shares at fair value under Minn.Stat. § 302A.751 (2006). The district court dismissed Drewitz’s complaint concluding that his claims were barred by res judicata as a result of a previous lawsuit brought by Drewitz against Motorwerks, which we refer to as Dreivitz I. Drewitz v. Walser (Drewitz I), No. C3-00-1759, 2001 WL 436223 (Minn.App. May 1, 2001), rev. denied (Minn. June 27, 2001). The court of appeals affirmed in part and reversed in part, concluding that res judicata barred Drewitz’s claim for a fair value buyout of his shares, but also concluding that Drewitz’s claim for breach of the shareholder agreement was not barred by res judicata and that Drew-itz remained a shareholder after his employment was terminated by Motorwerks. Drewitz v. Motorwerks, Inc. (Drewitz II), 706 N.W.2d 773, 776, 779, 782-84 (Minn.App.2005). Without expressing an opinion as to the merits of Drewitz’s claim that the shareholder agreement was breached and that Motorwerks was required to repurchase his shares at fair value, we conclude that Drewitz’s shareholder status did not terminate when his employment ended and that his claims are not barred by res judi-cata. We remand to the district court for further proceedings consistent with this opinion.

A brief history of this lengthy and acrimonious litigation is necessary. Mo-torwerks hired Drewitz as a salesman in 1990. Drewitz I, 2001 WL 436223, at *1. In July 1993, Drewitz was promoted to the position of general manager of Motor-werks. Id. On September 15,1995, Motor-werks entered into an employment agreement with Drewitz retroactive to January 1, 1995, and also entered into a separate “Shareholder Sale/Purchase/Redemption/Voting/Control Agreement,” which we refer to as the shareholder agreement. Id.

The shareholder agreement required that Motorwerks purchase Drewitz’s stock if Drewitz’s employment was terminated, either voluntarily or involuntarily. The agreement gave other shareholders the option of purchasing Drewitz’s shares if Mo-torwerks did not do so and, in that event, required that Drewitz vote his shares to facilitate the purchase. The shares were to be purchased at their book value as of the last day of the month immediately preceding the month in which the termination occurred. Book value was to be computed by Motorwerks’ accountant according to principles set forth in the agreement. The stock purchase was to be closed within 90 days of termination of employment, or other “Event of Purchase,” and at closing Motorwerks was required to “pay in full all obligations, whether by notes, advances or other form of debt.” Payment was to be “in the amount of the balance of indebtedness plus interest at the specified rate to date of payment.” The agreement also provided that Drewitz’s right to purchase additional shares in the corporation would lapse in the event that his employment was terminated. In summary, under the terms of the shareholder agreement, the termination of Drewitz’s employment triggered (1) the end of Drewitz’s right to purchase additional shares of Motorwerks, and (2) the start of the 90-day period during which Motorwerks or another shareholder was obligated to purchase Drewitz’s shares.

Motorwerks terminated Drewitz’s employment in December 1998, effective March 31, 1999. Drewitz I, 2001 WL 436223, at *2. In January 1999, Drewitz sued Motorwerks in Ramsey County District Court (Drewitz /), claiming that Mo-torwerks had breached the employment agreement, breached its fiduciary duty, and breached an implied covenant of good faith and fair dealing. Id. at *3. Drewitz also claimed that Motorwerks violated his reasonable expectations of, and contractual rights to, continued employment, and sought an order under MinmStat. § 302A.751 (2006), requiring purchase of his shares at fair value, rather than book value as provided in the shareholder agreement. The district court granted Motorwerks’ motion for summary judgment in part, dismissing all of Drewitz’s claims except his claim that Motorwerks breached the employment agreement. The parties subsequently settled Drewitz’s employment agreement claim. Id. The court of appeals affirmed the district court and we denied review.

Negotiations extending over the next ' several years failed to resolve the dispute between Drewitz and Motorwerks as to the amount to be paid for Drewitz’s shares, and in May 2004 Drewitz sued Motorwerks in Hennepin County District Court (Drewitz IT)- Drewitz claimed that Motorwerks had failed to unconditionally tender payment for his shares within the time limits specified in the shareholder agreement and that, as a result, he remained a shareholder, entitled to allocation of income and loss and to cash distributions for taxes as provided in the shareholder agreement. Drewitz further claimed that Motorwerks’ refusal to honor the terms of the shareholder agreement was unfairly prejudicial to him as a shareholder, and breached not only the agreement itself but also his reasonable expectations as a shareholder. Drewitz alleged that Motorwerks was therefore required to purchase his shares at their fair value, rather than book value, under Minn.Stat. § 302A.751, subd. 2 (2006). Finally, Drew-itz alleged that Motorwerks’ actions violated an implied covenant of good faith and fair dealing and breached the fiduciary duty owed to him by Motorwerks’ other shareholders.

Drewitz brought a motion before the district court for an order requiring, among other things, that Motorwerks purchase his shares at their fair value, that he be allocated his proportionate share of Mo-torwerks’ income since 1999, and that Mo-torwerks make tax distributions to him as provided by the shareholder agreement. Drewitz asked the district court to determine the fair value of the shares if the parties could not do so.

The district court denied Drewitz’s motion for an order requiring that Motor-werks buy Drewitz’s shares at fair value, to be determined, if necessary, by the court. The court concluded that Drewitz’s claim was included in Drewitz I and thus barred by res judicata. The district court also concluded that “[t]he proper procedure requires that the parties return to Ramsey County District Court and move for enforcement of the judgment or settlement,” a reference, presumably, to the judgment of the Ramsey County court dismissing Drewitz’s claims on summary judgment and to the settlement between Drewitz and Motorwerks of Drewitz’s employment claim (the terms of which are not disclosed in either Drewitz I or this case). The district court also concluded that Drewitz was no longer a shareholder in Motorwerks, and dismissed his complaint “with leave to proceed to enforce the settlement in Ramsey County District Court.”

Drewitz appealed and the court of appeals affirmed the district court’s conclusion that Drewitz’s claim for a fair value buyout was barred by res judicata. The court of appeals reasoned that the claim for fair value buyout arose “out of the same set of factual circumstances and connected series of transactions as his original claim and is therefore barred by the judgment in the original action.” Drewitz II, 706 N.W.2d at 779. But the court of appeals reversed the district court’s conclusion that Drewitz’s breach of contract claim was barred by res judicata, concluding that the claim was based on events occurring after the complaint in Drewitz I was served, and that Drewitz was not required to supplement his complaint in Drewitz I to include such claims. Drewitz II, 706 N.W.2d at 781-82. The court of appeals also reversed the district court, concluding that the shareholder agreement did not automatically divest Drewitz of his shareholder status when his employment was terminated, and that therefore Drew-itz remained a shareholder in Motorwerks until Motorwerks tendered full payment for his shares unconditionally. Id. at 784-85. While affirming the dismissal of Drewitz’s claim that he is entitled to fair value for his Motorwerks shares, the court of appeals reversed and remanded to the district court for further consideration of Drewitz’s claims that the shareholder agreement had been breached and that he was entitled to ongoing shareholder distributions.

I.

The complaint in Drewitz II alleges that after Drewitz’s employment was terminated, Motorwerks violated his “reasonable expectations” as a shareholder. If Drewitz’s shareholder status terminated simultaneously with termination of his employment, he no longer had reasonable expectations as a shareholder. Thus, we first address the issue of whether Drew-itz’s shareholder status terminated simultaneously with termination of his employment. We consider whether Minn.Stat. ch. 302A (2006), the Minnesota Business Corporations Act (MBCA), or the shareholder agreement contemplate an automatic termination of shareholder status and rights when employment ends. We conclude that they do not.

We find nothing in chapter 302A that explicitly terminates shareholder status simultaneously with employment termination. Motorwerks asserts that chapter 302A implies an automatic cessation of shareholder rights upon termination of the employment contract, arguing that the procedures applicable to dissenting shareholders under Minn.Stat. §§ 302A.751 and 302A.473 (2006) support such a rule. Mo-torwerks points out that once a shareholder decides to dissent from a corporate action, under Minn.Stat. § 302A.473, subd. 4 (2006), the dissenting shareholder retains his or her rights as a shareholder only until the proposed corporate action takes effect. But the limited circumstances under which this procedure is available persuade us that the legislature did not intend shareholder status to be terminated automatically under all other circumstances, and had the legislature intended shareholder status to be terminated automatically upon employment termination, it could have crafted a similar procedure. The fact that it did not is further evidence to us that the legislature did not intend the shareholder status of employees to end automatically upon employment termination.

If shareholder status were to end immediately upon employment termination, certain minority shareholder protections within chapter 302A would be unavailable to former shareholders. For example, Minn. Stat. § 302A.751, subd. 1(b)(2) (2006), allows “a shareholder” to seek judicial intervention when those in control of a closely held corporation have acted fraudulently or illegally toward him. That remedy would be unavailable to a terminated employee if his shareholder status was deemed to end automatically when employment ended. Cf. Pedro v. Pedro (Pedro II), 489 N.W.2d 798, 800, 804 (Minn.App.1992), rev. denied (Minn. Oct. 20, 1992) (holding that former shareholder who had been terminated two months before filing a complaint was entitled to relief under section 302A.751).

Furthermore, other statutes indicate that the legislature likely did not intend shareholder status to end immediately upon employment termination. For example, Minn.Stat. § 336.8-104(a)(l) (2006) provides that a person acquires a security once the security is “delivered” to the purchaser, and Minn.Stat. § 336.8-301(a)(1) (2006) provides that “delivery” of a certificated security occurs when the purchaser acquires physical possession of the security certificate. Under those statutes, a corporation would not acquire a terminated employee’s shares until the corporation acquired physical possession of the share certificates. Had the legislature intended the shares of a terminated employee to be automatically transferred to the corporation or another shareholder, without physical delivery of the shares, it would have made an explicit exception for such a transfer.

Although we conclude that chapter 302A does not compel termination of shareholder status when employment ended, the question remains whether the shareholder agreement so provided. We first examine whether chapter 302A would preclude such a provision. While nothing in chapter 302A compels the conclusion that Drewitz’s status as a shareholder ended when his employment ended, Minn.Stat. § 302A.457, subd. 1 (2006), allows shareholders to agree as to “the control of any phase of the business and affairs of the corporation, its liquidation and dissolution, or the relations among shareholders of or subscribers to shares of the corporation.” Section 302A.457 does not specifically include the shareholder status of terminated employees among the matters to which shareholders may agree, but Minn.Stat. § 302A.751, subd. 3a (2006), provides that “any written agreements, including employment agreements and buy-sell agreements, between or among shareholders or between or among one or more shareholders and the corporation are presumed to reflect the parties’ reasonable expectations concerning matters dealt with in the agreements.” And Minn.Stat. § 302A.751, subd. 2 (2006), provides that if a “shareholder control agreement” exists, its terms shall govern the buy-out of a shareholder who brings an action under that section unless the court determines that those terms are unreasonable. Given the broad scope of matters that may be covered by written agreement of the parties, it appears that chapter 302A does not bar the parties from agreeing to when the shareholder status of a shareholder-employee ends. We therefore look next to the terms of the shareholder agreement to see if those terms provide for the automatic termination of Drewitz as a shareholder upon termination of his employment.

Neither party claims that the shareholder agreement is ambiguous. The construction of an unambiguous contract presents a question of law, which we review de novo. See Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267, 271 (Minn.2004); Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 394 (Minn.1998).

In our review of the shareholder agreement, we find no provision that terminates shareholder status immediately. In fact, certain provisions of the agreement suggest the contrary conclusion. For example, Article Four of the shareholder agreement, which addresses the circumstances requiring the purchase of a shareholder’s stock by the corporation, contemplates a delay between the event that triggers the purchase requirement and the purchase itself. Under Article 4.04, if Drewitz’s employment by Motorwerks is terminated for any reason, Motorwerks “shall purchase, and the terminated Shareholder shall sell to the Company, all of the Shares of the Company issued to and outstanding in the name of the terminated Shareholder.” But Article 4.04 also gives other shareholders the option to purchase Drewitz’s shares instead of Motorwerks. Article 4.06 of the shareholder agreement requires that if another shareholder elects to purchase the shares, “each Shareholder and Permitted Shareholder shall vote his Shares and take all other reasonably required actions as directed by the Nonsell-ing Shareholder to implement such decision of the Nonselling Shareholder.” The shareholder agreement includes Drewitz in the definition of “Shareholder.” The existence of a purchase option for nonselling shareholders and the requirement that the selling shareholder vote his shares to implement the purchase suggest a delay in share transfer, during which time the selling shareholder is presumably required to exercise shareholder rights and responsibilities.

Similarly, Article Five of the shareholder agreement, which explains the mechanics of share transfer in the event of employment termination, does not explicitly limit the rights of the shareholder once employment ends. Article Five explains that the termination of employment, like the death or disability of a shareholder, “shall be referred to herein as an ‘Event of Purchase.’ ” Motorwerks contends that the share transfer occurs simultaneously with the “Event of Purchase,” but the provisions of the shareholder agreement do not support Motorwerks’ argument.

Under Article 5.04, the closing for the purchase of a selling shareholder’s shares must occur within 90 days of the “Event of Purchase” (and within 30 days of the “Event of Purchase” when the purchase is an exercise of the company’s right of first refusal or when the purchase is triggered by an involuntary transfer such as the bankruptcy of the shareholder). In the case of an involuntary transfer, such as the bankruptcy of the shareholder, the agreement specifically requires that the selling shareholder’s shares be delivered to the purchaser and payment made at closing. But an involuntary transfer, like the termination of employment, is also termed by the shareholder agreement to be an “Event of Purchase.” If Motorwerks were correct that share transfer occurs simultaneously with the “Event of Purchase,” such as the bankruptcy of the shareholder, there would be no need for a separate closing at which the shareholder formally delivers his shares.

Finally, we note that although these parties have been engaged in lengthy litigation, not every former employee will be adverse to the corporation that formerly employed him, and a rule that automatically divested a shareholder of his or her interest in the corporation when the shareholder’s employment was terminated would likely disrupt the settled expectations of many shareholder-employees. As to when shareholder status does end, we join other jurisdictions and conclude that when the parties are governed by a shareholder agreement, shareholder status terminates when the corporation or other purchaser tenders payment for the shareholder’s shares that conforms with the terms of the shareholder agreement. See Coleman v. Taub, 638 F.2d 628, 635-37 (3d Cir.1981) (applying Delaware law and holding that terminated shareholder-employee has no right to continue to hold shares in the corporation beyond the time that a value is placed on those shares and the purchase price is tendered in accordance with the contract between the shareholder and the corporation); Jenkins v. Haworth, Inc., 572 F.Supp. 591, 596-97, 601 (W.D.Mich.1983) (holding that the status of shareholder-employee terminated when employment terminated and corporation offered employee the price established by the shareholder agreement for his shares).

On the limited record before us, we cannot determine whether or when Motor-werks made a conforming tender of the purchase price of Drewitz’s shares, and we therefore remand to the district court for that determination. If there was a conforming tender of the purchase price for Drewitz’s shares, Drewitz’s status as a shareholder should be deemed to have terminated at that point.

II.

Having determined that Drewitz’s shareholder status did not end immediately upon termination of his employment, we next consider Motorwerks’ argument that Drewitz’s claims for ongoing shareholder benefits are barred by res judicata. Drewitz claims two such benefits: the right to an allocation of a proportionate share of Motorwerks’ income and of any cash distributions made to shareholders after his employment terminated, and access to Motorwerks’ corporate books and records. Motorwerks contends that these claims were asserted as a part of Drewitz I, or alternatively that Drewitz should have supplemented the complaint in Drew-itz I to include them, and thus that they are barred by res judicata. The court of appeals held that these claims are not barred by res judicata and, without determining the merits of the claims, we agree.

The application of res judicata is a question of law which we review de novo. Care Institute Inc.-Roseville v. County of Ramsey (CIIR), 612 N.W.2d 443, 446 (Minn.2000). Res judicata prohibits parties from raising a claim in a second suit that was, or “could have been,” litigated in the earlier action. See Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn.2004).

We address first Motorwerks’ contention that Drewitz’s claims for post-employment distributions and access to books and records were actually brought in Drewitz I. From our review of the complaints in Drewitz I and Drewitz II, we conclude that the allegations of the two complaints with respect to breach of the shareholder agreement are different. Drewitz I arose from what was essentially an employment dispute between Drewitz and Motorwerks. Drewitz claimed that because Motorwerks breached his employment contract by firing him, he was entitled to a fair value buy out under Minn. Stat. § 302A.751. He also claimed that by firing him, Motorwerks breached its fiduciary duty to him, and breached the implied covenant of good faith and fair dealing. Additionally, although Drewitz raised the issue of future shareholder profits in the complaint in Drewitz I, it was only in the context of his alleged wrongful termination. For example, the complaint in Drewitz I alleged that the wrongful termination of Drewitz’s employment allowed the individual defendants to “take for themselves the future profits and capital appreciation” that would otherwise have inured to Drewitz. And, the only contract Drewitz claimed had been breached was his employment contract with Motorwerks; the complaint in Drewitz I does not allege a violation of the shareholder agreement.

In contrast, the allegations underlying the claim of breach of the shareholder agreement in Drewitz II did not arise until after Drewitz had filed suit in Drewitz I. Under the shareholder agreement, Motor-werks was obligated to “annually distribute cash to each Shareholder.” In Dreivitz II, Drewitz alleges that since his termination, Motorwerks has made distributions to the other shareholders but not to him. Drewitz also claims that since his employment terminated he has been denied access to Motorwerks’ corporate books and records. Drewitz could not have alleged in his complaint in Drewitz I that Motor-werks breached the shareholder agreement by failing to make distributions to him after termination of his employment because Drewitz did not know when he served the complaint in Drewitz I in January 2000 that Motorwerks would not make distributions to him in 2000 or in later years. We therefore agree with the court of appeals that Drewitz’s claim for breach of the shareholder agreement’s provisions with respect to distributions and access to corporate books and records was not brought as part of the complaint in Drew-itz I.

Because the allegations of Drewitz II with respect to the shareholder agreement did not arise until after Drewitz had filed his first complaint, the only question that remains is whether Drewitz’s claims are barred here by res judicata because Drewitz should have amended or supplemented his complaint in Drewitz I to include them. We hold that Drewitz was not required to supplement his complaint in Drewitz I for events occurring after the complaint was filed.

Our rules provide that the court may permit a party to serve a supplemental pleading “setting forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented.” Minn. R. Civ. P. 15.04. Parties must therefore receive permission from the court to file supplemental pleadings. Id. Substantial disruption would result from requiring parties to supplement their complaints in every circumstance until the final judgment in a case to prevent res judicata. In light of the permissive language of Rule 15.04, our reference in Hauschildt to a claim that “could have been” brought must be understood to be limited to a claim that existed at the time the first complaint was served. The majority of federal jurisdictions, whose procedural rules are similar to Minnesota’s, hold that parties are not required to supplement their complaints to allege claims arising after the complaint was filed in order to prevent those claims from being barred by res judicata. See, e.g., Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir.1997); Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1357 (11th Cir.1998); Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir.1992). Because the factual circumstances giving rise to Drew-itz’s claims for breach of the shareholder agreement entitling him to allocations of corporate income, tax distributions, and access to Motorwerks’ books and records arose after the complaint in Drewitz I was served and Drewitz neither litigated those claims as part of Drewitz I nor was obligated to supplement his complaint in Drewitz I to include them, such claims are not barred by the doctrine of res judicata even though judgment was entered on the first complaint.

III.

Finally, we reach Drewitz’s claim that Motorwerks is required to purchase his shares at their fair value. Drewitz initially petitioned for, and we granted, review of the court of appeals’ determination that Motorwerks had not acted in an unfairly prejudicial manner toward him, nor had Motorwerks breached its fiduciary duty toward him. Because of the procedural posture of the case, review of the merits of Drewitz’s complaint would have been inappropriate, and we agreed with Motorwerks that such review was improvidently granted. But because Motorwerks raised the question of res judicata in its cross-petition for review, in the interest of judicial economy we instructed the parties to brief whether Drewitz’s claim for a fair value buyout under Minn.Stat. § 302A.751 is also barred by res judicata. We address the claim here under our inherent authority under Minn. R. Civ.App. P. 103.04 (“The appellate courts may * * * take any other action as the interest of justice may require.”).

Like his claim for breach of the shareholder agreement, Drewitz’s claim in Drewitz II that he is entitled to a buyout at fair value is based on Motorwerks’ alleged behavior after Drewitz’s employment was terminated. Indeed, Drewitz could not have claimed breach of fiduciary duty in Drewitz I for Motorwerks’ failure to tender payment within 90 days of the “Event of Purchase” because when Drew-itz served his complaint in January 1999, the 90 days provided by the shareholder agreement for purchase of his shares following the termination of Drewitz’s employment had not yet run. Nor could Drewitz have supplemented his complaint in the first action to allege a claim based on Motorwerks’ alleged failure to tender payment after the court of appeals’ decision in Drewitz I because those alleged facts did not arise until after the litigation in Drewitz I ended. Thus, the allegations underlying Drewitz’s claim for purchase of his shares at their fair value did not arise until after Drewitz had served his complaint, and his claim for purchase of his shares at their fair value is therefore not barred by res judicata.

Nor could Drewitz have returned to Ramsey County District Court, as the district court in Drewitz II ordered, to enforce either the judgment entered in Drewitz I or the settlement of the employment claim that followed. The judgment entered by the district court in Drewitz I dismissed all of Drewitz’s claims on summary judgment, except for his claim that his employment agreement was breached. Drewitz I, 2001 WL 436223, at *3. The district court in Dreivitz I did not order Motorwerks to purchase Drewitz’s shares, nor did the district court establish the amount Motorwerks was to pay Drewitz for his shares. And there is no evidence in the record before us that the settlement agreement that resolved Drewitz’s claim for breach of his employment agreement obligated Motorwerks to purchase Drew-itz’s shares or established the amount Mo-torwerks was to pay for the shares. We therefore conclude that Drewitz’s claim for purchase of his Motorwerks shares at their fair value is not barred by res judicata.

Since Drewitz’s shareholder status did not terminate automatically upon termination of his employment, we remand to the district court for further proceedings. On remand, the district court must determine whether Motorwerks or any other shareholder ever made a conforming tender for Drewitz’s shares that terminated Drewitz’s shareholder status. The district court must also determine whether Motor-werks breached the shareholder agreement by failing to make distributions to Drewitz or by denying Drewitz access to Motorwerks’ books and records while he remained a shareholder, and whether Mo-torwerks engaged in behavior that was unfairly prejudicial to Drewitz while he remained a shareholder, entitling Drewitz to purchase of his shares at their fair value under Minn.Stat. § 302A.751.

Affirmed in part, reversed in part, and remanded to the district court for further proceedings consistent with this opinion.

PAGE, J., took no part in the consideration or decision of this case.

      . Respondents include Motorwerks, Inc., and Motorwerks, Inc., shareholders Jack, Andrew, and Paul Walser. We will collectively refer to respondents as Motorwerks.

      . Because of the posture of the case, we have only the procedural history and a limited factual record before us. We rely on the complaint and court of appeals' opinion in Drew-itz I for events leading up to the complaint in Drewitz I and on the complaint and answer in Drewitz II for the allegations of the parties as to events occurring thereafter. We do not rely on the parties’ recitation of events or on any documents included in the appendices to the parties’ briefs, except for the shareholder agreement referenced in the two complaints. We therefore deny as moot Drewitz's motion to strike portions of Motorwerks’ brief.

      . Minnesota Statutes § 302A.751 allows a court, on motion from a shareholder of a closely-held corporation, to order the buyout of the shareholder for fair value of the shares, or under the terms of the corporation’s bylaws or a shareholder control agreement, when the shareholder has established that the directors or those in control of the corporation acted in a manner unfairly prejudicial towards one or more shareholders. Minn. Stat. § 302A.751, subd. 1(b)(3), subd. 2.

      . The complaint in Drewitz I alleges that Mo-torwerks was then headquartered in St. Paul. The complaint in Drewitz II alleges that Mo-torwerks is headquartered in Minneapolis.

      . We do not decide whether a shareholder agreement that terminates shareholder status upon termination of employment may deprive a shareholder-employee of standing under 302A.

      . Drewitz's complaint also alleges that he continued as a director after his employment ended. The court of appeals noted that Drewitz had raised "no shareholder governance issues” on appeal, and Drewitz’s status as a Motorwerks director after his employment ended is not before us.


source: Caselaw Access Project

author: /s/ Helen M. Meyer Associate Justice

license: Public Domain

text:
    In re Petition for REINSTATEMENT OF Richard J. HAEFELE, a Minnesota Attorney, Registration No. 39214.
    No. A06-951.
    Supreme Court of Minnesota.
    March 7, 2007.
   ORDER

By order filed on November 25, 2005, we suspended petitioner Richard J. Haefele from the practice of law for a period of six months for engaging in a sexual relationship with a client and entering into a series of business transactions with the same client without written disclosure of the potential conflicts and without providing for fair and reasonable terms for the client. In re Haefele, 706 N.W.2d 58, 58 (Minn.2005). In May 2006, petitioner applied for reinstatement, and a hearing was held before a panel of the Lawyers Professional Responsibility Board. The panel found that petitioner has proven by clear and convincing evidence that he is competent and morally fit to resume the practice of law. See In re Swanson, 343 N.W.2d 662, 664 (Minn.1984) (providing that the burden is on the attorney to establish by clear and convincing evidence the moral fitness to resume the practice of law). The panel further found that petitioner has complied with Rules 24 and 26, Rules on Lawyers Professional Responsibility (RLPR), has successfully completed the professional responsibility portion of the bar examination, and has complied with continuing legal education requirements. The panel recommended that petitioner be reinstated to the practice of law and placed on supervised probation for two years.

Neither the petitioner nor the Director contest the panel’s findings or its recommendations. The court has independently reviewed the file and approves of the panel’s recommendations.

Based on all the files, records and proceedings herein,

IT IS HEREBY ORDERED that petitioner Richard J. Haefele is reinstated to the practice of law effective as of the date of filing of this order and is hereby placed on probation for a period of two years subject to the following terms and conditions:

(a) Petitioner shall cooperate fully with the Director’s office in its efforts to monitor compliance with this probation and shall promptly respond to the Director’s correspondence by its due date. Petitioner shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, petitioner shall provide authorization for release of information and documentation to verify compliance with the terms of his probation.

(b) Petitioner shall abide by the Minnesota Rules of Professional Conduct.

(c) Petitioner shall be supervised by a licensed Minnesota attorney, appointed by the Director, to monitor compliance with the terms of this probation. Petitioner shall not agree to represent any client until the supervisor has signed a consent to supervise. No later than two weeks from the date of filing of this order, petitioner shall provide to the Director the names of four attorneys who have agreed to be nominated as petitioner’s supervisor. If, after diligent effort, petitioner is unable to locate a supervisor acceptable to the Director, the Director shall seek to appoint a supervisor. Petitioner shall make active client flies available to the Director upon request.

(d) Petitioner shall cooperate fully with the supervisor in his or her efforts to monitor compliance with this probation. Petitioner shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Petitioner shall submit to the supervisor an inventory of all active client files by the first day of each month during probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Petitioner’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.

BY THE COURT

/s/ Helen M. Meyer Associate Justice


author: ANDERSON, G. BARRY, Justice.

text:
    STATE of Minnesota, Respondent, v. Earl WEMBLEY, Appellant.
    No. A05-245.
    Supreme Court of Minnesota.
    March 8, 2007.

      Marie Wolf, Asst. Public Defender, Office of State Public Defender, for appellant.
    Mike Hatch, Atty. Gen., St. Paul, Amy Klobuchar, Hennepin County Atty., David C. Brown, Asst. County Atty., for respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

A jury found Earl Wembley guilty of first-degree criminal sexual conduct. The district court admitted into evidence a videotaped interview of the victim and replayed the videotape for the jury during deliberations without Wembley present. Wembley argues that the replay without his presence constituted reversible error. The court of appeals held that there was no error. State v. Wembley, 712 N.W.2d 783, 789 (Minn.App.2006). We granted Wembley’s petition for review and affirm.

Appellant Earl Wembley and M.C. lived together for periods between 1989 and 1996, and had two daughters together, one of whom is the victim in this case, K.C. After Wembley and M.C. broke off their relationship, K.C. would periodically visit Wembley at his home. In May 2004, K.C. (then 12 years old) visited Wembley on a day when no one else was present, and K.C. later testified at trial that Wembly sexually assaulted her during that visit.

Approximately a month later, M.C. learned what had happened to K.C. and authorities were notified. Detective Kent Nielsen arranged for K.C. to be interviewed by staff at CornerHouse, a child advocacy center that often interviews children who are alleged victims of sexual abuse. CornerHouse interviews children referred from law enforcement or child protection when there is an active investigation occurring. Pursuant to standard practice, law enforcement and a county attorney observed CornerHouse’s interview with K.C. on closed-circuit television as it was occurring, and the interview was also videotaped.

The state charged Wembley with first-degree criminal sexual conduct, in violation of Minn.Stat. § 609.342, subd. 1(a) (2006). At trial, the state played the videotape of K.C.’s CornerHouse interview after the interview tape had been admitted into evidence.

Prior to jury deliberations, counsel for both the state and the defense asked the district court to consider the appropriateness of allowing the jury to take the Cor-nerHouse interview videotape to the jury room with the other exhibits. The state asserted that because the tape was “in the nature of testimony,” other courts have required the jury to seek permission of the court and have a court official present during replay. In response, defense counsel asserted that “the tape was received into evidence, and if the Court’s not inclined to send it back to the jury room, I would just request that the Court make it clear to [the jury] that it is an exhibit in the case and should they want to see it, it would be available for their review.” The court agreed with the state that the tape should not go to the jury room and decided to hear argument from both parties if the jury requested to review the videotape during the course of its deliberations.

During deliberations, the jury sent a note to the court requesting permission to review the tape. The record reflects that an “off-the-record” discussion was held, presumably regarding the jury’s request. The jury was then brought into the courtroom, and in the presence of counsel and Wembley, the district court granted the jury’s request to review the tape with the following instructions:

I want you to review the video in open court here. But don’t discuss anything until you get back in the jury room. And I’m going to play the entire videotape. And remember, please don’t have any discussions about it until you get back and you deliberate in the jury room. * * * [Wje’re all going to leave, and then the court deputies will be with you and [the law clerk] while the tape plays.

Wembley neither objected to the replay of the tape nor objected to his absence from the courtroom during the replay. After viewing the videotape and returning to deliberations, the jury found Wembley guilty, and the district court sentenced him to 144 months in prison.

Wembley’s sole issue on appeal is whether the district court committed reversible error by replaying the videotape of the victim’s CornerHouse interview for the jury off the record and without the presence of the defendant and the district court. Wembley argues the court’s procedure for the replay of the tape violated his right to be present at every stage of the trial. He also argues that videotape interviews of alleged victims are inherently prejudicial, and the district court’s procedure for the replay in this case did not adequately protect Wembley from the risk of prejudice.

We ordinarily do not decide issues that were not first addressed by the district court and are raised for the first time on appeal. State v. Roby, 463 N.W.2d 506, 508 (Minn.1990). We consider those issues waived. Id. But we may choose to hear an issue for the first time on appeal if the interests of justice require. State v. Basting, 572 N.W.2d 281, 286 (Minn.1997).

Here we have more than a simple case of failure to act or attorney inattention; the record reflects that Wembley not only failed to object, but before deliberations began, defense counsel affirmatively requested that the jury have access to the tape in case the jurors wished to review it. Indeed, defense counsel’s preference was for the tape to go with the jury into the jury room during deliberations. The record indicates that Wembley had a tactical reason for the jury to review the tape. During closing argument, defense counsel asserted that there was an inconsistency between K.C.’s interview at CornerHouse and her testimony at trial. Referencing that perceived inconsistency, counsel stated to the jury: “That’s a pretty big detail, and I think that’s something you all should consider when you’re assessing the credibility of the children in this case, because she has not been completely consistent when she talks about what happened.”

Based on this record, we conclude that Wembley waived any right he may have had to challenge the district court’s procedure for replaying the tape for the jury or to argue that his presence was required. The interests of justice do not require us to address this issue, where Wembley consented to and actively encouraged the court to allow the jury to see the tape again.

Affirmed.

      . Furthermore, it is not clear that a replay of a videotaped interview of a witness, admitted into evidence, during jury deliberations is a stage of trial that requires the defendant's presence for purposes of Minn. R.Crim. P. 26.03, subd. 1(1). Jury deliberations are conducted without the parties or the district court present, and ordinarily a jury is permitted to take exhibits admitted into evidence to the jury room. Minn. R.Crim. P. 26.03, subd. 19(1). During deliberations, if the jury requests a review of evidence to which it does not already have access, Minn. R.Crim. P. 26.03, subd. 19(2)(1), grants the district court authority to comply with the jury’s request. If the court chooses to comply, the court has broad discretion in controlling the jury's review of the evidence in order to minimize prejudice. State v. Kraushaar, 470 N.W.2d 509, 514-15 (Minn.1991). We have stated that it is preferable for district courts to replay potentially prejudicial videotaped interviews admitted into evidence in the courtroom rather than allowing the jury to replay such tapes in the jury room, but we did not address in Kraushaar whether the parties should be present during the replay. Id. at 516.
      Wembley makes a public policy argument with his claim that video replays are highly prejudicial because such replays are tantamount to allowing a witness to enter the jury room and repeat her testimony. Wembley argues that the prejudicial effect may be minimized by conducting the replay in open court with the parties present and under the supervision of the district court. But these suggestions must be balanced against the broader policy that juries are typically allowed to further consider exhibits in the jury room during deliberations without supervision by the district court. While we do not endorse the procedures used by the district court to replay the video tape, because we conclude that Wembley waived this issue on appeal, we do not decide whether additional safeguards should be mandatory. And as to additional safeguards, we invite suggestions from the Supreme Court Advisory Committee on the Rules of Criminal Procedure.


author:
GILDEA, Justice.
      MEYER, Justice PAGE, Justice

text:
    Connie C. REIDER, Respondent, v. ANOKA-HENNEPIN SCHOOL DISTRICT NO. 11, Self-Insured, Relator, and Noran Neurological Clinic, and Blaine Chiropractic Center, Intervenors.
    No. A06-1344.
    Supreme Court of Minnesota.
    March 8, 2007.

      Kirk C. Thompson, Cronan Pearson Quinlivan P.A., Minneapolis, MN, for Appellant.
    Thomas D. Mottaz, David B. Kempston, Law Office of Thomas Mottaz, Anoka, MN, for Respondent.
    Andrew W. Lynn, Lynn Scharfenberg & Assoc., Minneapolis, MN, for Amicus.
   OPINION

GILDEA, Justice.

The Workers’ Compensation Court of Appeals (WCCA) affirmed, by panel majority, the denial of the request made by relator, Anoka-Hennepin School No. 11, for a medical examination by a neutral physician pursuant to Minn.Stat. § 176.155, subd. 2 (2006). The school district sought certiorari review in this court. We reverse and remand.

Since 1992, Connie C. Reider has been employed full-time by Anoka-Hennepin School District No. 11 as an American Sign Language (ASL) interpreter. On April 14, 2003, Reider sought chiropractic care from Dr. Thomas Rice for pain in her neck, shoulders, arms and upper and mid-back. Reider reported a gradual onset of symptoms associated with her work-related ASL interpreting activities. After a few weeks of treatment, the chiropractor recommended exercises. Following an aggravation of symptoms in December 2003, Reider continued with chiropractic treatment, increasing to three times per week but eventually decreasing in frequency to an “as-needed” basis.

After initially paying for Reider’s chiropractic care, the school district denied primary liability. On July 23, 2004, Reid-er filed a claim petition, seeking payment of outstanding medical and chiropractic treatment expenses for Gillette-injuries to the cervical and thoracic spine. Reider also sought compensation for permanent partial disability to the cervical and thoracic spine.

On October 26, 2004, Reider was examined by neurologist Dr. Neil Dahlquist at the request of the school district. Dr. Dahlquist found that Reider had a completely normal range of motion in her spine, including her cervical, thoracic and lumbar spine. He also found that she had normal range of motion in her shoulders, elbows and wrists. Dr. Dahlquist concluded the employee had not sustained “any type of repetitive trauma or Gillette type of injury” and had no permanent injuries as a result of her job as a sign language interpreter.

In February 2005, following a sudden onset of neck pain, Reider was referred to neurologist Dr. Ana Patricia Groeschel. Dr. Groeschel diagnosed a cervical strain causally related to Reider’s work as a sign language interpreter. Dr. Groeschel recommended massage therapy, which initially reduced the new symptoms, but when the therapy was no longer effective, Reid-er discontinued that treatment.

The parties held a settlement conference in February 2005, but no settlement was reached. On March 29, 2005, the school district filed a motion for an examination by a neutral physician pursuant to Minn. Stat. § 176.155, subd. 2. In its request, the school district said “that a dispute exists as to whether the [ejmployee sustained a work injury and, if so, the nature and extent of any such injury.” Because “of the disputes herein,” the school district argued that Minn.Stat. § 176.155, subd. 2, required the appointment of a neutral physician.

On April 7, 2005, the Office of Administrative Hearings (OAH) filed and served notice of hearing, scheduling the matter for a merits hearing on August 5, 2005. By letter dated June 13, 2005, the school district requested an order on its motion for a neutral-physician examination, or, in the alternative, a continuance. Reider then objected to the designation of a neutral physician, asserting that “in view of the upcoming hearing, it would be untimely to try to secure this opinion.”

By order filed on June 30, 2005, the compensation judge denied the school district’s motion. The judge provided three grounds for its decision to deny the request: (1) the motion was “deficient in necessary information in order to trigger” the mandatory designation of a neutral physician; (2) the mandatory provision did not apply because there had been no pre-hearing conference; and (3) the issues presented did not warrant a neutral examiner.

The merits hearing was held as scheduled. During the hearing, Reider described her work activities and the circumstances of the onset of her symptoms. She testified that her symptoms would increase with work activities and decrease over time away from work, especially during the summer months. Other evidence included the medical records and reports from treating neurologist Groeschel and treating chiropractor Rice, both of whom concluded that Reider’s condition was causally related to her work as an ASL interpreter. There was also the report from the school district’s medical consultant, neurologist Dahlquist, who “found no evidence” of a Gillette-type injury. He concluded that Reider had incurred no permanent disability as a result of her work activities as an ASL interpreter and would not recommend any kind of restrictions.

Primarily in reliance on the medical records and the opinions of healthcare providers Groeschel and Rice, the compensation judge found that Reider sustained Gillette-type injuries to the cervical and thoracic spine, and awarded compensation for a 12.5 percent permanent partial disability. On appeal, the WCCA affirmed the primary liability determination and the award of permanent partial disability compensation. By panel majority, the WCCA also affirmed the compensation judge’s denial of the school district’s request for a neutral-physician examination. The school district obtained review by certiorari, challenging only the denial of the neutral-physician examination.

I.

This case requires that we examine provisions within the Workers’ Compensation Act regarding the use of neutral physicians. We review de novo this statutory question. See Zurich American Ins. v. Bjelland, 710 N.W.2d 64, 68 (Minn.2006).

At the time of its adoption in 1913, the Workers’ Compensation Act provided for the discretionary appointment of a neutral physician to conduct an examination of the injured worker. Act of April 24, 1913, ch. 467, § 21, 1913 Minn. Laws 675, 685 (codified at Minn.Stat. § 8215 (1913)). In 1979, the legislature amended the statute to provide for the mandatory appointment of a neutral physician in cases in which an interested party requested such an appointment at least 30 days before the prehear-ing conference. Act of June 7, 1979, ch. 3, § 48, 1979 Minn. Laws Ex.Sess. 1256, 1286-87 (codified at Minn.Stat. § 176.155, subd. 2 (Minn.2000)). According to the 1979 legislation, the Commissioner of Labor and Industry “shall develop and maintain a list of neutral physicians available for designation pursuant to this subdivision.” Id. In 2002, the statute was amended to delete the requirement for a list of neutral physicians. Act of March 22, 2002, ch. 262, § 15, 2002 Minn. Laws 268, 274 (codified at Minn.Stat. § 176.155, subd. 2 (2004)). The WCCA said it was not aware of any current lists of neutral physicians maintained by the Department of Labor and Industry (DOLI) or OAH; and that neither DOLI, OAH nor the WCCA had rules for an examination by a neutral physician. Reider v. Anoka-Hennepin Sch. Dist. No. 11, No. WC05-276, 2006 WL 1977512, at *7 (Minn. WCCA June 21, 2006).

The neutral physician provisions specifically at issue in this case are contained in Minn.Stat. § 176.155, subd. 2. This subdivision begins by providing that the compensation judge “may with or without the request of any interested party, designate a neutral physician to make an examination of the injured worker and report the findings.” (Emphasis added.) The subdivision continues that “when an interested party requests, not later than 30 days prior to a scheduled prehearing conference, that a neutral physician be designated, the compensation judge shall make such a designation.” Minn.Stat. § 176.155, subd. 2 (emphasis added).

The school district contends that its request falls within the later, or mandatory, portion of the subdivision and that the compensation judge’s refusal to grant the request conflicts with the plain reading of the statute. Reider contends that the mandatory provision did not apply here because there was no prehearing conference in this case. The plain meaning of the statute supports the school district’s reading.

The subdivision does not provide that a prehearing conference is a condition precedent as Reider argues. If that is what the legislature meant, it could have written the subdivision to read: “if there is a prehearing conference and an interested party requests, not later than 30 days pri- or to the scheduled prehearing conference, that a neutral physician be designated, the compensation judge shall make such a designation.” The plain language of the statute does not make a prehearing conference such a condition and we cannot add terms that the legislature has omitted. See Genin v. 1996 Mercury Marquis, VIN No. 2MEBP95F9CX6U211, License No. MN 225 NSG, 622 N.W.2d 114, 119 (Minn.2001).

In the alternative, Reider argues, and the WCCA panel majority found, that the two provisions of subdivision 2 are inconsistent thereby creating an ambiguity. Specifically, the WCCA majority noted that the statute provides

that the compensation judge conducting the hearing “may with or without the request of any interested party, designate a neutral physician” and “may request the neutral physician to answer any particular question with reference to the medical phase of the case.” (Emphasis added.) These provisions clearly leave whether to seek the assistance of a neutral physician to the discretion of the compensation judge and appear to conflict with the apparent mandatory language.

Reider, 2006 WL 1977512, at *8.

The WCCA majority pointed to the legislature’s purpose as a way to resolve the inconsistency, noting that chapter 176 was enacted to ensure prompt and efficient resolution of workers’ compensation disputes. 2006 WL 1977512, at *9. Leaving the appointment of a neutral physician within the discretion of the compensation judge serves this purpose according to the WCCA majority. Because the compensation judge is the fact-finder, she is in the best position to determine whether a neutral physician is necessary. In this case, which the WCCA majority termed “routine,” the legislative purpose is served by respecting the fact-finder’s determination that a neutral physician was not necessary.

We do not conclude that subdivision 2 is ambiguous. The subdivision must be read so as to give effect to all of its provisions. See Owens v. Federated Mut. Implement & Hardware Ins., 328 N.W.2d 162, 164 (Minn.1983). When the statute is read to give effect to both provisions regarding the designation of neutral physicians, there is no conflict. The first provision gives the compensation judge the discretion to appoint a neutral physician when she believes it necessary, even if there has not been a request by the parties. This provision also gives the compensation judge discretion to appoint a neutral physician when a party has made a request but the request is not timely because the request is made less than 30 days before the prehearing conference. The second provision removes this discretion when a party has made a request and the request falls within the time deadline provided — not later than 30 days before a scheduled prehearing conference. The two provisions thus are complementary, not inconsistent.

Even if we were to conclude that the two provisions were inconsistent, the mandatory provision would still control. The legislature has provided that where a general provision in a statute conflicts with a specific provision “in the same or another law,” the specific provision controls. Minn.Stat. § 645.26, subd. 1 (2006). The general provision here would be the discretionary provision allowing the appointment of a neutral physician with or without a request. The specific provision would be the mandatory provision addressing a timely request by an interested party. As the legislature has directed, the specific controls the general. Id.; see also Westrom v. Mn. Dept. of Labor and Indus., 686 N.W.2d 27, 36 (Minn.2004) (applying specific provision over general). The legislature has also provided that “[w]hen, in the same law, several clauses are irreconcilable, the clause last in order of date or position shall prevail.” Minn.Stat. § 645.26, subd. 2 (2006). Applying this principle, the mandatory provision, having been enacted after the discretionary provision, and being last in position, would control the decision here.

Finally, we recognize that the WCCA majority concluded that “practical problems” would result from a conclusion that a party’s timely request for a neutral physician always requires appointment. The WCCA majority specifically noted that a mandatory neutral-physician-examination process will be difficult to implement, particularly in the absence of a list of available neutral physicians or any rules establishing procedures for the designation of a neutral physician.

We are not unmindful of these concerns. Although a mandatory neutral-physician-examination process will probably not be without administrative burden or expense, “[i]t is for the legislature, not the [cjourt, to judge the social utility of this statutory system, which has no common law counterpart, to balance the interests of employees and employers, and to make whatever adjustments and corrections it deems appropriate.” Parson v. Holman Erection Co., Inc., 428 N.W.2d 72, 76 (Minn.1988).

We hold that the neutral-physician-examination provision, Minn.Stat. § 176.155, subd. 2, is mandatory when an interested party makes a timely request for a neutral physician. The school district made its request for a neutral physician within the time deadline specified in Minn.Stat. § 176.155, subd. 2. Where, as here, the request is timely, the compensation judge has no discretion under the plain language of the statute to deny the request.

II.

In its plea for relief, the school district requests that in the event a neutral-physician examination is allowed, the matter be remanded not only for the examination but also for appointment of a different compensation judge and a new hearing. We decline to grant this request. As the WCCA dissenting panel member noted, “compensation judges are experienced factfinders, and possess the integrity and willingness to review newly-received evidence and to re-evaluate the issues in view of that new evidence.” Reider, 2006 WL 1977512, at *11.

We reverse the denial of a neutral-physician examination and remand the matter for further proceedings and redetermination on the existing record as supplemented by new evidence provided by the neutral physician.

Reversed and remanded.

ANDERSON, RUSSELL A., C.J., took no part in the consideration or decision of this case.

MEYER, Justice

(dissenting).

I respectfully dissent. The school district’s position, adopted by the majority, removes the compensation judge’s discretion from the statute, is inconsistent with the function of a medical examination in the resolution of medical questions, and undermines the legislative plan for the efficient delivery of compensation to injured workers. I would conclude that the statute is not clear and free from all ambiguity, and that it should more reasonably be read as providing for the mandatory appointment of a neutral physician only when there is a genuine need for such evidence.

Minnesota Statutes § 176.155, subd. 2 (2006), makes the appointment of a physician both discretionary and mandatory upon the request of an interested party. The statute provides:

In each case of dispute as to the injury the commissioner of labor and industry, or in case of a hearing the compensation judge conducting the hearing, or the Workers’ Compensation Court of Appeals if the matter is before it, may with or without the request of any interested party, designate a neutral physician to make an examination of the injured worker * * *, and further provided that when an interested party requests, not later than 30 days prior to a scheduled prehearing conference, that a neutral physician be designated, the compensation judge shall make such a designation.

Minn.Stat. § 176.155, subd. 2 (emphasis added). The statute further provides that the compensation judge “may request the neutral physician to answer any particular question with reference to the medical phases of the case.” Id. (emphasis added). In my view, reading the “shall make ” language as mandatory upon timely request effectively extinguishes the discretion conferred through the “may with or without the request” clause. Moreover, to mandate an additional medical examination whenever the self-insured employer or insurance carrier makes a timely request seriously impedes the overarching intent of the legislature in providing medical and wage-loss compensation quickly and efficiently at a reasonable cost to employers and is problematic in its implementation.

The rule in this state is that a conflict in expert medical testimony must be resolved by the factfinder. Nord v. City of Cook, 360 N.W.2d 337, 342 (Minn.1985). The neutral-physician examination statute was therefore designed to vest in the compensation judge “the discretionary power to appoint a neutral physician when, in the exercise of its judicial discretion, it would be needful or desirable in arriving at a decision.” See Hosking v. Metropolitan House Movers Corp., 272 Minn. 390, 397, 138 N.W.2d 404, 408 (1965). The study commission’s recommendation, from which the 1979 amendment was drawn, contemplated “a check on the inconsistency of medical testimony and a means to provide a resolution of genuinely disputed medical issues which are beyond the capacity of the court to resolve.” Minnesota Workers’ Compensation Study Commission, A Report to the Legislature and Governor 37-38 (1979). As a corollary, it seems to me that the neutral-physician examination provision would have no justifiable application in the common medical-causation dispute. I believe the more reasonable construction of the statute, that gives meaning to all terms and effectuates legislative intent, is that the compensation judge has discretion to appoint a neutral physician upon request made at any time, but that such appointment is mandatory upon timely request only when genuinely disputed medical issues are inherently complex. I would affirm.

PAGE, Justice

(dissenting).

I join in the dissent of Justice Meyer.

      . "In primary liability issues, the question is whether the injury arose out of and in the course of employment.” Jackson v. Red Owl Stores, Inc., 375 N.W.2d 13, 17 (Minn.1985).

      . Gillette v. Harold, Inc., 257 Minn. 313, 317-22, 101 N.W.2d 200, 204-07 (1960) (holding that where a preexisting infirmity is aggravated by repetitive trauma as a result of the ordinary and necessary duties of employment, the disability resulting from such aggravation is compensable as a personal injury under the workers’ compensation statute).

      . Minnesota Statutes § 176.155, subd. 2, provides:
      In each case of dispute as to the injury the commissioner of labor and industry, or in case of a hearing the compensation judge conducting the hearing, or the Workers’ Compensation Court of Appeals if the matter is before it, may with or without the request of any interested party, designate a neutral physician to make an examination of the injured worker and report the findings to the commissioner of labor and industry, compensation judge, or the Workers’ Compensation Court of Appeals, as the case may be; provided that the request of the interested party must comply with the rules of the commissioner of labor and industry and the Workers’ Compensation Court of Appeals regulating the proper time and forms for the request, and further provided that when an interested party requests, not later than 30 days prior to a scheduled prehearing conference, that a neutral physician be designated, the compensation judge shall make such a designation. When a party has requested the designation of a neutral physician prior to a prehearing conference, that party may withdraw the request at any time prior to the hearing. The commissioner of labor and industry, compensation judge, or the Workers' Compensation Court of Appeals, as the case may be, may request the neutral physician to answer any particular question with reference to the medical phases of the case, including questions calling for an opinion as to the cause and occurrence of the injury insofar as medical knowledge is relevant in the answer. A copy of the signed certificate of the neutral physician shall be mailed to the parties in interest and either party, within five days from date of mailing, may demand that the physician be produced for purposes of cross-examination. The signed certificate of a neutral physician is competent evidence of the facts stated therein. The expense of the examination shall be paid as ordered by the commissioner of labor and industry, compensation judge, or the Workers’ Compensation Court of Appeals.

      . In denying the neutral-physician-examination motion, the compensation judge reasoned, in part:
      WHEREAS, the Motion did not provide the following necessary documents: a complete medical history, medical records, history of the alleged injury, description of job duties, list of questions to be addressed, or list of possible neutral physicians who are willing and available to examine the employee and provide a narrative report in a timely manner; and
      WHEREAS, the Motion for Neutral Physician is deficient in necessary information in order to trigger the provisions of Minn. Stat. § 176.155, subd. 2 * * *.
      The compensation judge made no reference to applicable rules or other authority as to the information necessary "to trigger the provisions” of the statute, and we have found none.

      . Reider cites Hosking v. Metropolitan House Movers Corp., 272 Minn. 390, 138 N.W.2d 404 (1965), and Stotz v. Sabin Bros., 257 N.W.2d 359 (Minn.1977), to support her argument that the designation of a neutral physician should be discretionary in all cases. These cases are not helpful to the issue presented here because they involve application of the statute before the mandatory provision was enacted in 1979.

      . The WCCA majority also noted that Minn. Stat. § 176.391, subd. 2 (2006), gives compensation judges discretion to appoint neutral physicians and other experts. Reider, 2006 WL 1977512, at *8.

      . The dissent argues that the statute is "more reasonably * * * read as providing for the mandatory appointment of a neutral physician when there is a genuine need for such evidence.” The legislature could have en-grafted this condition onto the mandatory portion of the statute. It did not do so and it would be inconsistent with our precedent for us to rewrite the statute to include the dissent's "genuine need” requirement. See Genin, 622 N.W.2d at 119.

      . The dissent contends that this reading "removes the compensation judge’s discretion from the statute.” To the contrary, this reading ensures that both provisions in the statute — discretionary and mandatory — are given effect. It is the dissent’s construction that renders a provision of the statute — the mandatory provision — a nullity. Under the dissent’s reading, the appointment of a neutral physician would be "mandatory” only if the compensation judge first found that there was a "genuine need” for this evidence. This construction is simply another way of saying the appointment of a neutral physician is up to the discretion of the compensation judge and ignores the legislature’s directive that "when an interested party requests * ⅜ ⅜ the compensation judge shall make such a designation.” See Minn.Stat. § 176.155, subd. 2.

      . In addition, any party "may demand that the physician be produced for purposes of cross-examination.” Minn.Stat. § 176.155, subd. 2. And, "[t]he expense of the examination shall be paid as ordered by the * * * compensation judge.” Id. However, there is no funding mechanism for the additional medical examination and no provision for the expense of the physician’s cross-examination.

      . Minnesota Statutes § 176.001 (2006) provides that "[i]t is the intent of the legislature that chapter 176 be interpreted so as to assure the quick and efficient delivery of indemnity and medical benefits to injured workers at a reasonable cost to the employers who are subject to the provisions of this chapter.”

      . As the WCCA observed:
      In most cases, the resolution of a medical issue depends not solely on the opinion of the doctor but upon the testimony of witnesses and upon the credibility attached by the compensation judge to those witnesses. Typically, an attorney for one party or the other will provide these facts to an examining doctor in a hypothetical question. Absent any rules governing the utilization of a neutral physician, we do not know what factual information would be communicated to a neutral physician, particularly when the examination occurs prior to the hearing. Presumably, the compensation judge could not do so until the judge has heard the evidence. We further note there is no designated list of neutral physicians or any rules establishing procedures for the appointment of a neutral physician.

        Reider v. Anoka-Hennepin Sch. Dist. No. II, No. WC05-276, 2006 WL 1977512, at *9 (Minn. WCCA June 21, 2006).

      . There are situations in which expert opinion as to cause and effect may be desirable, but it is not always essential given other reliable evidence. See Reimer v. Minnit Tool/ M.I.T. Tool Corp., 520 N.W.2d 397, 398 (Minn.1994) (holding that medical opinion connecting return of carpal tunnel syndrome-type symptoms to postinjury employment was not essential). On the other hand, expert testimony is deemed indispensable when the question is complicated and “carries the fact-finders into realms that are properly within the province of medical experts." 7 Arthur Larson & Lex K. Larson, Larson’s Workers' Compensation Law § 128.05(1) (2006) (summarizing cases on basic rule when medical testimony is indispensable); see, e.g., Stevens v. Computer Metal Prods., Inc., 312 N.W.2d 450, 453 (Minn.1981) (holding that expert medical opinion essential to causal relationship between work injury and ongoing disability). "Since the underlying reason for the rule requiring medical evidence in this class of cases is the inherent complexity of the medical question involved, it follows logically that when the medical problem becomes sufficiently abstruse, the rule can be satisfied only by corresponding expertise in the medical witness * * ⅞.” Larson & Larson, supra, § 128.05(8). "[A]s the degree of complexity of the medical issue increases, so does the degree of requisite thoroughness and definiteness of [expert medical opinion regarding] diagnosis.” Id., § 128.05(9).

      . As the WCCA observed, the neutral-physician statute was not meant “to give a party the right to an additional medical expert.” Reider, 2006 WL 1977512, at *8. The employee is already obligated to submit to a medical examination by the employer’s physician. Minn.Stat. § 176.155, subd. 1 (2006). It seems to me most unlikely that the legislature intended to compel an additional medical examination in the absence of some legitimate need for such evidence in the accurate determination of the disputed medical question.


author: PER CURIAM.

text:
    In re CHARGES OF UNPROFESSIONAL CONDUCT IN PANEL CASE NO. 23236.
    No. A06-1400.
    Supreme Court of Minnesota.
    March 8, 2007.

      Allen I. Saeks, Minneapolis, MN, for Appellant.
    Martin A. Cole, Director, Craig D. Klausing, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Respondent.
   OPINION

PER CURIAM.

This case presents the issue of whether a superasing lawyer has a duty to disclose to a client that another lawyer at the law firm, working on a matter for the client, had not been authorized to practice law for more than two years. This case also asks whether it is a violation of the Minnesota Rules of Professional Conduct for a law firm to bill a client at a contractually agreed upon rate for lawyer services when the lawyer provided these services during a time when the lawyer was not authorized to practice law.

The following facts were found by a panel of the Lawyers Professional Responsibility Board and are essentially undisputed. Appellant lawyer (hereinafter Appellant) was admitted to practice law in Minnesota in 1977 and currently is a shareholder in a Minneapolis law firm (hereinafter Law Firm). As a lawyer with the Law Firm, Appellant represented a government entity (hereinafter Client). Another lawyer in the Law Firm (hereinafter Restricted Lawyer) worked with Appellant in providing representation to the Client.

On August 27, 2002, Restricted Lawyer, who is not a subject of this disciplinary matter, was placed on CLE restricted status pursuant to Rule 12, Rules of the Minnesota Board of Continuing Legal Education, for failure to comply with Minnesota’s CLE requirements. Appellant was unaware of Restricted Lawyer’s failure to comply with the CLE requirements or that he was not authorized to practice law. On January 21, 2005, Appellant learned of Restricted Lawyer’s status and at that time the Law Firm notified Restricted Lawyer that he was prohibited from engaging in the practice of law or representing any person or entity on behalf of the Law Firm in the State of Minnesota. However, Appellant did not inform the Client of Restricted Lawyer’s status. Appellant continued working with Restricted Lawyer as a “non-lawyer assistant” in a supervisory capacity. In late January 2005, the Human Resources Manager of the Law Firm removed the reference in the Law Firm’s website that Restricted Lawyer was authorized to practice law.

In late February 2005, the Client discovered that Restricted Lawyer’s profile had been changed on the Law Firm’s website and that the website no longer indicated that Restricted Lawyer was licensed to practice law in Minnesota. On February 22, 2005, the Client contacted Appellant and asked why Restricted Lawyer’s profile had changed on the Law Firm’s website. Appellant did not acknowledge that she was then aware that Restricted Lawyer had not been authorized to practice law for almost two and one-half years. Appellant told the Client that she would look into the matter and get back to the Client.

On February 23, 2005, Appellant telephoned the Client and for the first time acknowledged Restricted Lawyer’s noncompliance with CLE requirements. However, Appellant did not tell the Client that Restricted Lawyer had been on involuntary restricted status and had not been authorized to practice law since 2002, a period during which Restricted Lawyer was providing legal services to the Client although not authorized to do so.

On April 13, 2005, Appellant submitted a statement for services rendered to the Client by the Law Firm. The statement included charges for work performed by Restricted Lawyer while he was not authorized to practice law, but neither the cover letter nor the bill stated that Restricted Lawyer was not authorized to practice law at the time the services were rendered. Moreover, Restricted Lawyer’s services were billed at $205 per hour, the rate charged for work done by lawyers for the Client.

On July 14, 2005, the Client e-mailed Appellant and inquired about the time period that Restricted Lawyer was without a license and whether the Client was billed for Restricted Lawyer’s time when he was not authorized to practice law. Appellant responded that Restricted Lawyer had been on involuntary restricted status since August 27, 2002, and sent the Client a second billing statement. In the second billing statement, Appellant removed all of the charges for time she had personally billed to the Client, eliminating accidental double billing for administrative time she had spent supervising Restricted Lawyer. However, the second billing statement continued to reflect a $205 per hour charge for Restricted Lawyer’s services.

The Client objected to being billed for Restricted Lawyer’s time while he was not authorized to practice law. Eventually, the Law Firm refunded to the Client all fees paid for Restricted Lawyer’s time during the period he was not authorized to practice law. The Client then filed an ethics complaint with the Director of the Office of Lawyers Professional Responsibility.

After investigating the complaint, the Director concluded that Appellant had committed ethical violations of an “isolated and non-serious nature” and privately admonished Appellant for violating Minn. R. Prof. Conduct 1.4(b) by failing to inform the Client that Restricted Lawyer was not authorized to practice law and for violating Minn. R. Prof. Conduct 1.5(a) for billing the Client for Restricted Lawyer’s time at the Law Firm’s lawyer rate during the period that Restricted Lawyer was suspended from the practice of law.

Pursuant to Rule 8(d)(2)(iii), Rules on Lawyers Professional Responsibility (RLPR), Appellant demanded that the Director present the charges to a panel of the Lawyers Professional Responsibility Board for de novo consideration. The panel conducted a hearing and determined that Appellant had violated Rules 1.4(b) and 1.5 and that this violation warranted issuing an admonition. The panel further concluded that the decision of other lawyers in the Law Firm not to disclose the status of Restricted Lawyer’s license did not impact Appellant’s obligation to comply with the rules.

Findings made in lawyer discipline cases are reviewed under a clearly erroneous standard. In re Panel File Number 99-5, 607 N.W.2d 429, 431 (Minn. 2000); see also In re X.Y., 529 N.W.2d 688, 689-90 (Minn.1995) (noting that since admonitions are a form of attorney discipline, the clearly erroneous standard should be used to review findings). Great weight is given to the recommendations of the panel, but this court has the final responsibility for determining appropriate discipline for violations of the rules of professional conduct. In re Panel File Number 99-5, 607 N.W.2d at 481. Sanctions are imposed 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.” Id.

I.

Rule 1.4(b) states that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Lawyers comply with Rule 1.4 when they provide their clients with “sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued.” Rule 1.4 cmt.— 1985; see also In re Keate, 488 N.W.2d 229, 234 (Minn.1992) (noting that Rule 1.4(b) imposes an affirmative duty on lawyers to explain to their clients how they intend to proceed in a matter).

Appellant argues that the Director erroneously disciplined her for failing to disclose that Restricted Lawyer was not authorized to practice law in that Appellant did not have an affirmative duty to disclose information to the Client that lawyers on involuntary restricted status are not themselves required to disclose under either the Minnesota Rules of Professional Conduct or the Rules on Lawyers Professional Responsibility. Appellant also asserts that the requirement under Rule 20, RLPR, that disciplinary proceedings be kept confidential led her to reasonably conclude that she did not need to disclose Restricted Lawyer’s license status to the Client.

The Director counters that under the circumstances of this case, the absence of a rule compelling disclosure is not determinative. Rather, this case concerns a lawyer’s duty to disclose information that is reasonably necessary for clients to make informed decisions about their representation. The Director further notes that since Restricted Lawyer was not disciplined until September 2005 and Appellant disclosed that Restricted Lawyer was not authorized to practice law in February 2005, Appellant’s Rule 20 argument is more of an afterthought than a rule she relied on to her detriment.

A lawyer on involuntary restricted status does not have the same mandatory disclosure obligations as those imposed upon lawyers who have been disbarred, suspended, or administratively suspended from practice. See Rule 26, RLPR (requiring disbarred, suspended, or lawyers on disability inactive status to inform their clients of their status); Rule 30, RLPR (requiring lawyers on administrative suspension to inform their clients of their status). The absence of such a rule does not mean that a lawyer’s involuntary suspension from the practice of law for failure to comply with CLE requirements is not of interest to a client.

Like a suspended or disbarred lawyer, a lawyer on involuntary restricted status may not engage in the practice of law. Rule 12(B), Rules of the Minnesota State Board of Continuing Legal Education. It is not unreasonable to assume that lawyers are typically retained because of their ability to practice law. In fact, a lawyer’s authorization or lack of authorization to practice makes a significant difference in his or her ability to represent a client. See Minn.Stat. § 481.02, subd. 1 (stating that unlicensed individuals may not appear as attorneys in any action or proceeding in any court in the state, hold themselves out as competent or qualified to give legal advice or counsel, prepare legal documents, or engage in advising or counseling in law or acting as attorney or counselor at law) (2006). It is important for a client to know whether or not his or her lawyer is permitted to practice law. See In re Westby, 639 N.W.2d 358, 364, 365, 368 (Minn.2002) (concluding that the lawyer had violated Rule 1.4(b) by failing to disclose to clients that she was suspended from the practice of law when she accepted retainers from clients, obtained a continuance for a matter, and helped clients prepare for hearings); see also Attorney Griev. Comm’n v. Cassidy, 362 Md. 689, 766 A.2d 632, 636 (2001) (concluding that under Maryland Rule of Professional Conduct 1.4(b), which mirrors Minn. R. Prof. Conduct 1.4(b), a lawyer’s failure to disclose that he was suspended from the practice of law violated Rule 1.4(b) because the matter the client had contracted with the lawyer to complete could not be completed by an unlicensed attorney and had the lawyer informed the client of his suspension, the client could have “made the informed choice to seek another attorney.”).

In this case, a three-member panel heard testimony from witnesses and reviewed numerous documents and came to the conclusion that Appellant’s conduct in failing to explain to the Client that Restricted Lawyer was on CLE restricted status violated Rule 1.4(b). Under Rule 1.4 the “guiding principle” of communicating with a client is that “the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character or representation.” Rule 1.4 cmt.~1985.

Appellant testified that she did not disclose that Restricted Lawyer was not authorized to practice law to the Client in part because the work Restricted Lawyer had done while on involuntary restricted status had been “done in a way that [she] thought was professional,” and that an opinion letter written by Restricted Lawyer while he was not authorized to practice law was an opinion that the Law Firm supported. However, the quality of Restricted Lawyer’s work was not at issue for the Client. The Client testified that it felt it was important for the Client to know that Restricted Lawyer was not authorized to practice law because it had been told that services would be provided by a lawyer, when instead the services were provided by someone who was not authorized to practice law.

For the Client, Restricted Lawyer’s CLE restricted status created a

whole bunch of red flags. What did this mean about different matters that he had handled? What did it mean about bond issues that he had been involved in? What did that mean about malpractice coverage for that firm? We also had concerns about how it is possible for a lawyer who is handling what are relatively complex matters [to be] unable to simply file a CLE affidavit? * * * We were very concerned about it.

Moreover, as a government entity, the Client had been using public money to finance its legal work and the Client was concerned about how paying legal fees for a lawyer who was not authorized to practice law would impact the public’s perception that the Client was responsibly spending public money. The Client felt that knowledge about Restricted Lawyer’s status would have allowed the Client to make “some decisions about what [it] thought was in [its] best interest.”

The record supports the panel’s conclusion that the status of Restricted Lawyer’s license was important to the Client. On January 1, 2004, the Client and the Law Firm entered into a contractual agreement for legal services that provided that Appellant and Restricted Lawyer would be the lawyers primarily responsible for providing services to the Client. During the entire period of that contract, Restricted Lawyer was not authorized to engage in the practice of law. As the Client testified, Restricted Lawyer’s status raised a “whole bunch of red flags” and created concerns about the soundness of legal opinions rendered by the firm and violations of public trust. Therefore, under the circumstances presented in this case, we believe that the Panel properly concluded that Appellant had violated Rule 1.4(b).

Under Rule 12(D), Rules of the Minnesota State Board of Continuing Legal Education, transfer from restricted status to active status can easily be accomplished by notifying the Director of an intent to resume active status, submitting a $125 transfer fee, and completing the required number of CLE hours. Because transfer from involuntary restricted status to active status can be accomplished easily, it is possible that a lawyer could be placed on involuntary restricted status and immediately request a transfer to active status by submitting paperwork showing compliance with CLE requirements and the requisite fee. In such a situation, where the lawyer’s time as a restricted lawyer is limited, it may not be necessary to inform the client because the impact on the client is likely to be minimal. But, those are not the facts presented in this case.

II.

Rule 1.5(a) states that “[a] lawyer’s fee shall be reasonable.” Appellant maintains she had a good-faith belief that the fee charged to the Client was reasonable because it reflected a deep discount in Restricted Lawyer’s normal hourly rate and took into consideration the factors reflected in Rule 1.5(a). The Director acknowledges that the factors cited by Appellant are appropriate to consider when determining the reasonableness of a fee charged by a lawyer. However, in this case, the Director notes that Restricted Lawyer was not allowed to engage in the practice of law and therefore the Client should not have been charged for Restricted Lawyer’s services at the same rate that the client would have been charged had Restricted Lawyer been authorized to practice law.

The Client and the Law Firm had a contractual agreement that the Client would be charged $205 per hour for services performed by lawyers. According to this agreement, any work performed by a paralegal would be billed to the client at $125 an hour. On January 21, 2005, when the Law Firm discovered that Restricted Lawyer was not authorized to practice law, the Law Firm prohibited Restricted Lawyer from engaging in the practice of law. Appellant testified that during the time she supervised Restricted Lawyer she treated his work just as she would have treated work performed by a senior paralegal. Yet, when Appellant submitted the April billing statement to the Client, Restricted Lawyer’s services were billed at the contractual attorney rate of $205 per hour. Although the $205 hourly rate negotiated by the Client was well below Restricted Lawyer’s normal hourly rate of $355 per hour, Restricted Lawyer’s normal hourly rate is not the relevant benchmark. At the time that Restricted Lawyer was providing services, he was not permitted to engage in the practice of law. In essence, Restricted Lawyer could function only as a paralegal. Given the clear language of the contract between the Client and the Law Firm, it is reasonable to conclude that Appellant should have billed Restricted Lawyer’s services at a paralegal rate while he was not authorized to practice law; Appellant’s failure to do so violated Rule 1.5(a). We hold that the panel properly concluded that Appellant violated Rule 1.5(a), and affirm that an admonition should issue.

Affirmed.

      . When a lawyer fails to comply with the state’s CLE requirements, he or she is placed on involuntary restricted status pursuant to Rule 12, Rules of the Minnesota State Board of Continuing Legal Education. See also Rule 2(L), Rules of the Minnesota State Board of Continuing Legal Education. A lawyer on involuntary restricted status "may not engage in the practice of law or represent any person or entity in any legal matter or proceedings within the State of Minnesota." Rule 12(b), Rules of the Minnesota State Board of Continuing Legal Education.

      . Restricted Lawyer was also under investigation by the Board for unauthorized practice and failure to cooperate with the Director.