May/June '01 Issue
MSBA Home Page
The Court Draws the Line
By Edward J. Cleary
Website of Minnesota's Lawyers Professional Responsibility Board
Several months ago, the Minnesota Supreme Court issued an opinion that appears to have far-reaching implications for the regulation of the profession. In the case that led to the opinion, this office issued an admonition (for isolated and nonserious misconduct, the least serious form of discipline available) to an attorney for allowing a nonlawyer in his firm to withhold a deposition transcript from a client unless and until the client reimbursed the firm for the transcript expense. Not egregious misconduct, to be certain, but the failure to return the deposition to the client did appear to be in violation of a Lawyers Board opinion and perhaps a rule provision as well. The district ethics committee recommended that the attorney be privately admonished and this office agreed. The Court reversed the admonition and in doing so made it clear that Lawyers Board opinions are limited in their authority.1
Almost three decades ago, shortly after the Lawyers Professional
Responsibility Board and this office were formed in 1971, the
board issued its first opinion noting that "from time to
time" advisory opinions would be issued by the board on
matters "deemed important." Rule 4(c) of the Rules
on Lawyers Professional Responsibility constituted the authority
for the issuance of said opinions providing that "the Board
may, from time to time, issue opinions on questions of
professional conduct." In 1984, the Court held, in a case
involving professional misconduct, that a lawyer's refusal to
honor a fee arbitration award "violated Opinion 5."2 The Court also specifically noted that such
a refusal to honor an arbitration agreement after agreeing to
arbitrate was professional misconduct. Consequently, language
was added to Opinion 1 to notify the bar that, although the opinions
(by 1984, 12 opinions had been issued, one had been repealed)
had been described earlier as "advisory," now, "failure
to comply with the standards set forth in these opinions"
could subject a lawyer to discipline.
As noted, the infraction in the instant case was not serious,
resulting in the issuance of the lowest form of discipline available,
and that discipline was dismissed by the Court. In a footnote
to the decision, the Court noted that two previous directors
of this office disagreed over an interpretation of 1.16(d) as
to whether a lawyer is allowed to withhold a deposition transcript
from a client until she or the firm is reimbursed for the transcript
expense. The bar should be aware, however, that both previous
directors agreed on the general principle that "if there
is insufficient time for the client to obtain this transcript
without suffering prejudice" the deposition should be released.3 Although violations of neither Opinion 11
nor Opinion 13 standing alone can now lead to professional discipline,
violations of 1.16(d) can and do.
While the Court has made it clear that the opinions issued by the board cannot be the sole basis for professional discipline, opinions will continue to be cited when a predicate rule provision exists and is violated. In most cases the opinions correlate with rule provisions, although in a few instances, the opinions stand alone. As it regards those opinions, the board and this office will in the future decide if and when a rule petition should be filed with the Court requesting the Court to consider whether it is proper and permissible to make provision in the existing rules for amendments to cover the spirit, if not always the language, of the now nonbinding opinions. When and if that happens, the bar will have a chance to be heard, and, as the Court has noted, any such proposal will be subject to comment, public hearing, and the Court's deliberative process. The Lawyers Professional Responsibility Board never intended to exceed the limit of its authority; the members of the board and this office are, and always have been, cognizant of the fact that the authority to regulate and discipline attorneys rests finally with the Court. The long-time incorrect assumption regarding delegation of that authority has now been corrected. Nevertheless, the hard work and dedication of past and current board members who have contributed their time and expertise to the adoption of these opinions should not be overlooked. These opinions were intended to serve as (and remain as) an effort to protect the public and help the members of our profession understand their obligations. Even those opinions that do not correlate to a rule provision, remain, at the very least, the best practice.
Edward J. Cleary is director of the Office of Lawyers Professional Respnsibility. He has practiced both privately and as a public defender for 20 years and is past president of the Ramsey County Bar Assocation. His book, Beyond the Buring Cross, won a national award in 1996.