Website of Minnesota's Lawyers
Professional Responsibility Board
"We have retained the basic architecture of the Model
Rules . . . we tried to keep our changes to a minimum . . . even
so, the Commission ended up making a large number of changes
. . . ."
E. Norman Veasey,
Chair of the Ethics 2000 Commission
Last month, I noted some of
the changes recommended by the Ethics 2000 Commission, including
those provisions already included in the Minnesota Rules of Professional
Conduct. There are many other areas addressed by the Report;
here are some of the more important proposals.
Responsibilities in Law Firms (5.1 and 5.3)
Until now, 5.1 provided that a partner was charged with making
reasonable efforts to ensure that a firm complied with the rules.
Now the ABA is recommending that this responsibility be extended
to any lawyer who individually, or together with other lawyers,
possesses comparable "managerial authority" in a law
firm. Further, the ABA had planned on expanding this responsibility
to the "law firm," itself, which would have resulted
in a law firm being subject to discipline. As an example, this
might have resulted when a conflict occurred and the law firm
did not have a system in place for identifying conflicts.
The theory of the Commission was that the prospect of law firm
discipline (damaging the reputation of the firm in the community)
would have provided an additional incentive for those in charge
to comply with the rules. Currently there are only two states
in the country that have adopted law firm discipline, and Minnesota
is not one of them. Most states viewed this proposed change as
unnecessary since the only likely form of discipline that a law
firm could receive is a "public reprimand," and such
discipline is rather amorphous when applied to an entity rather
than an individual. In June of 2001, the Commission dropped this
proposed change for fear that law firm discipline "might
undermine the principle of individual responsibility."
Unauthorized Practice of Law (5.5)
Amendments to this rule are aimed at the complex issues raised
by multijurisdictional practice.1 A separate
ABA commission is currently studying this issue, but in the interim,
the Commission recommended significant changes to 5.5 "in
recognition of modern legal practice."
In addition to providing for the already recognized right to
appear before a tribunal when admitted pro hac vice, the
rule provides for practice in another jurisdiction in three instances:
first, when a lawyer who is an employee of a client acts on the
client's behalf, or in connection with the client's matters,
on behalf of the client's employees (the in-house counsel exception);
second, when the lawyer acts with respect to a matter arising
out of, or otherwise reasonably related to, the lawyer's practice
on behalf of a client in a jurisdiction in which the lawyer is
permitted to practice (the spillover exception); and, third,
when the lawyer is associated in a particular matter with a lawyer
admitted to practice in the jurisdiction (the association exception).
It remains to be seen whether or not the multijurisdictional
commission will recommend further changes to these provisions.
Disciplinary Authority (8.5)
Recommended changes to this provision are related to the amendments
made to 5.5 with regards to multijurisdictional practice and
the unauthorized practice of law. This provision was amended
to expand the disciplinary authority of each state. Currently
a lawyer is subject to disciplinary action in the state in which
he is licensed. When a complaint is made on that attorney in
a state where she is not licensed, the procedure has been to
refer the complaint to the state where the attorney is licensed.
Now, however, the framework is being changed to allow disciplinary
counsel to proceed against attorneys in the jurisdiction where
they violate the rules, not where they are licensed ("a
lawyer not admitted in this jurisdiction is also subject to the
disciplinary authority of this jurisdiction if the lawyer renders
or offers to render any legal services in this jurisdiction.").
Further, there is a choice of law provision that provides that
the rules of the jurisdiction in which the lawyer's conduct occurred
should generally be applied to the attorney's conduct. However,
if the "predominant effect" of the conduct is in a
different jurisdiction, the lawyer is not subject to discipline
if the lawyer's conduct conforms to the rules of the jurisdiction
in which the lawyer reasonably believes the predominant effect
of the lawyer's conduct will occur.
These recommended changes are problematic in a number of ways.
First, since disciplinary authorities are funded by license fees
provided by those attorneys licensed within a given state, funds
expended to investigate and prosecute an attorney licensed in
another jurisdiction lack the "user fee" aspect of
the investigation of licensed counsel. It is questionable whether
it is fair to Minnesota lawyers to be paying for this service
for the public as it regards out-of-state lawyers. Further, even
if a jurisdiction feels that its rules are being violated (such
as solicitation of victims in mass tort litigation by out-of-state
attorneys) the fact remains that there is no guarantee that,
as in reciprocal enforcement, the state where the attorney is
licensed will encumber her ability to practice law to the extent
recommended by the state where the misconduct occurred. Virtually
every state in the nation has its own regulatory framework, including
different procedural and substantive rules. Most states view
reciprocal enforcement as a recommendation and may well disagree
with recommended discipline under these new provisions, except
for the most egregious cases. It is likely that, even if this
rule change is made, many disciplinary authorities throughout
the country will be reluctant to utilize it.
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.
In most states, including Minnesota, there remains a ban on in-person
or telephone solicitation for professional employment by a prospective
client when a significant motive for the lawyer doing so is the
lawyer's pecuniary gain. The changes recommended to this rule
relate to technological advances that have occurred over the
years. Consequently, it is recommended that this ban be extended
to "real time electronic contact" (e.g., chat
rooms). While some have argued in the past that chat rooms are
more like mass mailings, this is not true when direct solicitation
is occurring. Further, the amendments to the rules provide that
any electronic communication (e.g., email) from a lawyer
soliciting professional employment to a prospective client known
to be in need of legal services in a particular matter include
the words "Advertising Material" at the beginning and
ending of the electronic communication, just as is now required
with written letters under the Model Rule.
Pro Bono Service (6.1)
The debate over mandatory pro bono service continues.
Studies show that two-thirds to three-quarters of those who cannot
afford to pay a lawyer go without legal services when the need
arises. Most states currently do not subject a lawyer to discipline
for failing to provide a minimum number of pro bono hours,
nor, in my opinion, should they. Two states, Florida and Texas,
while not mandating pro bono service, mandate the reporting
of pro bono service. The proposal for a rule change to
this effect was recommended by the MSBA several years ago but
was turned down by the Minnesota Supreme Court. Some saw this
provision as an attempt to lay the groundwork for mandatory pro
bono. The Commission concluded that many lawyers who currently
provide voluntary pro bono do not support a mandatory
provision. The majority of the Commission refused to set a specified
number of hours of mandatory pro bono service. Instead,
a sentence was added to 6.1 stating that "Every lawyer has
a professional responsibility to provide legal services to those
unable to pay." The aspiration in the rule remains at 50
hours of legal services to be provided annually by each attorney.
Prospective Clients (1.18)
Most attorneys are aware that certain duties attach to an attorney-prospective
client relationship when a first discussion occurs.2
The ABA is recommending that a new rule be created to codify
these obligations. First, even when no client-lawyer relationship
ensues, a lawyer who has had discussions with a prospective client
may not use or reveal information learned in the consultation.
Second, a lawyer in this situation shall not represent a client
with interests materially adverse to those of a prospective client
in the same or substantially related matter if the lawyer receives
information from the prospective client that could be significantly
harmful to that person. Disqualification is imputed in this situation
and no lawyer in a firm with which that lawyer is associated
may knowingly undertake or continue representation in such a
matter. The lawyer is conflicted and the conflict is imputed
unless both the affected client and the prospective client give
informed consent, confirmed in writing, or timely screening (without
a fee for the disqualified lawyer) occurs and written notice
is given to the client. In this and in other situations involving
screening, "an adequate showing of screening ordinarily
requires affidavits by the personally prohibited lawyer and by
a lawyer responsible for the screening measures. A tribunal can
require that other appropriate steps be taken."3
Disqualification in these circumstances has become a particularly
important issue in large firms. When a corporate client undertakes
a "beauty contest" between law firms, it may poison
the ability of the interviewing firm to represent an adversary
if not selected by the corporate client. A law firm may condition
conversations with a prospective client on the client's consent
that nothing disclosed will prohibit the lawyer from representing
a different client in the matter. Even without such an agreement,
a lawyer or law firm is not prohibited from representing a client
with interests adverse to those of a prospective client, unless
the lawyer has received from the prospective client information
that could be significantly harmful if used against the prospective
client in the matter. It isn't hard to see how these issues could
end up in litigation without a written agreement concerning the
initial interview between the law firm and the potential client.
Candor Toward the Tribunal (3.3)
The intent of the recommended changes for this provision is to
"clarify a lawyer's obligations with respect to testimony
given and actions taken by the client and other witnesses."
One area where the lawyer's obligations to the tribunal has been
strengthened and clarified is that the lawyer now must not allow
the introduction of false evidence and must take remedial steps
when the lawyer knows that material evidence offered by the client
or witness is false, regardless of the client's instructions.
"Reasonable remedial measures" are defined, in part,
as "disclosure to the tribunal." On the other hand,
a lawyer's obligation to the client has been reaffirmed, particularly
in the context of the representation of a criminal defendant.
Finally, the new amendment provides that "a lawyer may refuse
to offer evidence, other than the testimony of a defendant in
a criminal matter, that the lawyer reasonably believes is false."
What is the obligation of a criminal defense lawyer when offering
the testimony of a defendant? A criminal defense attorney under
proposed Rule 3.3 would be under the obligation to allow a defendant
to testify in his own defense even if the lawyer "reasonably
believes" the testimony is false. It would only be when
the lawyer "knows" that it is false (i.e., to
be inferred from the circumstances; the attorney cannot ignore
an obvious falsehood) that the attorney will be unable to allow
the testimony. Further, if the court requires defense counsel
to present her client as a witness or to proceed with a narrative
statement if her client so desires, the attorney is relieved
of any ethical duty even if she knows the evidence to be false.
These changes will presumably help both civil litigators and
criminal defense attorneys more clearly understand their obligations.
Other Suggested Amendments Not Incorporated
Several recommendations made by interested parties were not incorporated
into the amendments. One law professor suggested a rule should
be added that would prevent lawyers from cooperating in secret
settlements that would result in information being hidden from
the public about substantial dangers to safety or health. Another
suggested a rule requiring lawyer support for client protection
funds. As it regards this latter recommendation, Minnesota is
already a leader in the nation in this area and, over the past
14 years, has paid out over 316 claims involving 92 attorneys,
totaling $3.9 million in reimbursement.
The Time Framework
After nearly four years, the work of the ABA Ethics 2000 Commission
is almost over. Based on past experience, the ABA will continue
to debate the amendments into the next year. Consequently, the
earliest Minnesota would be preparing a comprehensive petition
to the Supreme Court recommending a number of the changes approved
by the ABA would be a year or two from now. The legal profession
in our state should be aware of the likely changes to the practice
of law that will be adopted within the next several years. Once
these amendments have been adopted, the new rules will impact
a generation of lawyers in the years to come.
1. See Cleary, "Crossing State Lines: Multijurisdictional
Practice," Bench & Bar, October 2000, p. 29.
2. See Cleary, "Forming The Attorney-Client Relationship,"
Bench & Bar, December 2000, p. 23.
3. Martin A. Cole, "Screening conflicted lawyers under
Rule 1.10," Minnesota Lawyer, 5/28/01, p. 3.