MSBA Rules of Professional Conduct Committee
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 MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary

July 31, 2012
8:00 a.m.


Members Present: Luke Seifert – Chair, Mark Berhow, Eric Cooperstein, Cassie Hanson, Ken Kirwin, Michael Vadnie, Nancy Mischel-MSBA staff.  By telephone: Thomas Haluska, James Keuning, Marc Sebora, Elizabeth Wefel.

 

Discussion of Board of Law Examiners’ Petition for Rule Amendment:  Members briefly discussed this issue.  The Chair indicated he did not see a need to file any comments.

Social Security Ethics:  The law allows attorneys licensed in one state to handle social security disability cases in another state provided they do not hold themselves out as attorneys in the state where they are not licensed.  However, there have been some instances where attorneys licensed elsewhere have held themselves out as attorneys here. 

There have been few disciplinary actions across the country to address this issue, likely due to the fact that it is not very effective to issue an order regarding an attorney who is not licensed in the state.  There is little collaboration among the attorney regulation entities in the various states.

The Social Security Disability Law section of the MSBA may draft legislation to address this problem.  Committee members were hesitant about this approach because enforcement is a problem.  The Committee decided to ask the section to either send some representatives to the next RPC meeting to discuss it further, or have the Chair attend the next section meeting. 

Future Meetings:  The Committee will meet the last Tuesday of every month at 8:00 a.m.  An agenda will be sent via email one to two weeks prior to the meeting.  Meetings will be cancelled if there are no agenda items.  Committee members are welcome to send proposed agenda items to the Chair or to MSBA staff Nancy Mischel.


 

MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary

September 25, 2012
8:00 a.m.


Members Present: Luke Seifert – Chair, Timothy Baland, Pat Burns, Eric Cooperstein, Ken Kirwin, Michael Vadnie, Nancy Mischel-MSBA staff.  By telephone: Stephen Hoffman, James Keuning, David Schultz, Marc Sebora, Michael Vadnie.

 

GrouponsThe New Lawyers Section asked Mr. Seifert to present at a seminar they are holding on January 10 regarding using groupons to build your practice.  Groupons are discount deals where the service provider is generally paid half the amount charged as soon as the deal is purchased.  The Committee discussed some of the potential concerns in this area.  Mr. Keuning researched ethics issues with groupons in other states and shared this information with the Committee.  Timothy Baland will attend the New Lawyers Section seminar with Mr. Seifert and Mr. Keuning agreed to be a back-up if needed.

Social Security Disability and Ethics:  The federal government allows both attorneys and nonattorneys to represent social security disability claimants.  An attorney does not need to be licensed in the state where they are representing a claimant provided they are licensed in some state.  Andrew Kinney and Emily Cooper, co-chairs of the MSBA’s Social Security Disability Law Section, discussed issues they are seeing in this area.  Nonlawyers are allowed to advertise without the restrictions faced by attorneys, thus putting attorneys at a disadvantage.  Some companies engage in this advertising but contract with attorneys to represent the claimants or may have attorneys as employees.  Mr. Kinney has drafted legislation that may address this issue and will forward it to the Committee for their review and comment.

Future Meetings:  The Committee’s next meeting is Tuesday, October 30 at 8:00 a.m.  An agenda will be sent via email one to two weeks prior to the meeting.  Committee members are welcome to send proposed agenda items to the Chair or to MSBA staff Nancy Mischel.


 

 MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary

November 27, 2012
8:00 a.m.


Members Present: Luke Seifert – Chair, Timothy Baland, Eric Cooperstein, Cassie Hanson, Ken Kirwin, Nancy Mischel-MSBA staff, Andrew Kinney and Tracy Reid from the Social Security Disability Law Section.  By telephone: Megan Gaudette, Stephen Hoffman, James Keuning, David Schultz, Marc Sebora, Michael Vadnie.

Social Security Disability - proposed legislation:
Mr. Kinney spoke with the Committee at a prior meeting regarding issues social security disability practitioners were seeing in social security representation.  Mr. Kinney returned to the Committee to discuss proposed legislation he wrote to address the issues.  The Committee debated the merits of the proposed legislation, focusing on the aspects that pertain to the rules of professional conduct.  Following this discussion, a motion was made and seconded that the Committee take no position on the proposed legislation.  The motion passed. 

Guidance and information on the Gatekeeper Initiative: 
Ms. Mischel distributed information from the ABA regarding the gatekeeper initiative, which is an effort by governmental authorities to impose stringent anti-money laundering (“AML”) and counter-terrorist financing obligations on “gatekeepers” to the domestic and international monetary systems, including lawyers, civil law notaries, trust and company service providers, real estate agents, accountants and auditors.  The purpose of providing the information to Committee members is to make them aware of it; the MSBA will also look to distribute the information to its membership more broadly.

Future Meetings:  The Committee will not meet in December.  The next meeting will be Tuesday, January 29 at 8:00 a.m.  An agenda will be sent via email one to two weeks prior to the meeting.  Committee members are welcome to send proposed agenda items to the Chair or to MSBA staff Nancy Mischel.

MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
September 27, 2011
8:00 a.m.


Members Present: Eric Cooperstein – Chair, Tim Baland, Pat Burns, Ken Kirwin, David Sasseville, Luke Seifert, Nancy Mischel-MSBA staff.  By telephone: Thomas Haluska, David Schultz.

Proposed Amendments to the MRPC:  Bill Wernz, in publishing his e-book on legal ethics, has raised questions and/or issues with some of the current rules.  The Committee began reviewing these issues at its August meeting and discussed the remaining items at this meeting.

1.16(e) Return of Client Files:  The concern here arises from documents that may have legal effect because they have been signed by an attorney but never filed and the client has not paid for the work.  Members agreed the common practice of most attorneys is to turn over a client file upon request, regardless of whether the attorney has been paid or not.  For this reason, members agreed there was no issue here at present. 

4.3 Dealing with Unrepresented Persons:  Some states have amended their rules to allow attorneys to conduct undercover investigations.  Mr. Burns commented the LPRB has not seen issues with this section of the rules.  The Committee determined no action is necessary at this time.

8.3(c) and 1.6(b)(10) Reporting Misconduct:  Members commented there are some other rules that likely trump both 8.l3(c) and 1.6(b)(10), depending on the circumstances.  The LPRB does not have many attorneys reporting misconduct.  Members agreed there is merit to the rule as it is and there is no need for change.

ABA Ethics 20/20 Update:  Mr. Cooperstein summarized for the Committee some of the issues the ABA Commission on Ethics 2020 has been examining and discussing over the past two years.  Examples include: multijurisdictional practice, outsourcing, admission on motion, technology and advertising.

Next Meeting:  The Committee’s next meeting is scheduled for October 25 at 8:00 a.m.  If there are no agenda items, the meeting will be cancelled.

 


MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
August 30, 2011
8:00 a.m.


Members Present: Eric Cooperstein – Chair, Tim Baland, Pat Burns, Cassie Hanson, Ken Kirwin, Luke Seifert, Nancy Mischel-MSBA staff.  By telephone: Mark Berhow, Fred Finch, Thomas Haluska, Karen Marty, Kevin Seifkin, Michael Vadnie, Cass Weil.

 

Proposed Amendments to the MRPC:  Bill Wernz, in publishing his e-book on legal ethics, has raised questions and/or issues with some of the current rules.  The Committee began reviewing these issues. 

1.8(a) Business Transactions with Clients:  While moving the word “knowingly” further up in the rule could alleviate any potential problems, the general sense of the Committee is that there is no pressing need to change this rule at the present time. 

1.8(c) (Gifts from Clients):  Under the Minnesota rules as opposed to the model rules, an attorney may receive a fairly substantial gift from a client.  Mr. Burns and Ms. Hanson commented the LPRB is not seeing this as an issue.  A conflict under 1.7(a)(2) may be more likely than one arising under 1.8(c).  If the Committee does decide to pursue a recommendation for change to any of the rules, this one may be revisited.

1.8(j) (Sexual Relations with Clients):  The Committee agreed this does not need to be addressed.

1.15 (Safekeeping Property):   Committee members did not feel it necessary to clarify the line between the types of funds attorneys are and are not allowed to keep in a trust account.  However, an article or a CLE on this topic might be appropriate.

1.16(e) (Return of Client Files):  Committee members needed further details from Mr. Wernz regarding the problem with this part of the rules since it was not clear to the Committee.  Mr. Cooperstein will obtain this information.

Mr. Cooperstein asked Committee members to let him know if there are other rules they would like the Committee to review and mentioned he may raise Rule 7.2 for discussion.

Next Meeting:  The Committee will continue discussing the proposed rule changes at their next meeting is scheduled for Tuesday, September 27 at 8:00 a.m.  Meetings will be the 4th Tuesday of every month at 8:00 a.m.

 

 MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
March 22, 2011
8:00 a.m.


Members Present: Eric Cooperstein – Chair, Tim Baland, Pat Burns, Ken Kirwin, David Sasseville, Luke Seifert, Nancy Mischel-MSBA staff.  By telephone: Thomas Haluska, David Schultz.

Proposed Amendments to the MRPC:  Bill Wernz, in publishing his e-book on legal ethics, has raised questions and/or issues with some of the current rules.  The Committee began reviewing these issues at its August meeting and discussed the remaining items at this meeting.

1.16(e) Return of Client Files:  The concern here arises from documents that may have legal effect because they have been signed by an attorney but never filed and the client has not paid for the work.  Members agreed the common practice of most attorneys is to turn over a client file upon request, regardless of whether the attorney has been paid or not.  For this reason, members agreed there was no issue here at present. 

4.3 Dealing with Unrepresented Persons:  Some states have amended their rules to allow attorneys to conduct undercover investigations.  Mr. Burns commented the LPRB has not seen issues with this section of the rules.  The Committee determined no action is necessary at this time.

8.3(c) and 1.6(b)(10) Reporting Misconduct:  Members commented there are some other rules that likely trump both 8.l3(c) and 1.6(b)(10), depending on the circumstances.  The LPRB does not have many attorneys reporting misconduct.  Members agreed there is merit to the rule as it is and there is no need for change.

ABA Ethics 20/20 Update:  Mr. Cooperstein summarized for the Committee some of the issues the ABA Commission on Ethics 2020 has been examining and discussing over the past two years.  Examples include: multijurisdictional practice, outsourcing, admission on motion, technology and advertising.

Next Meeting:  The Committee’s next meeting is scheduled for October 25 at 8:00 a.m.  If there are no agenda items, the meeting will be cancelled.

 


MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
August 30, 2011
8:00 a.m.


Members Present: Eric Cooperstein – Chair, Tim Baland, Pat Burns, Cassie Hanson, Ken Kirwin, Luke Seifert, Nancy Mischel-MSBA staff.  By telephone: Mark Berhow, Fred Finch, Thomas Haluska, Karen Marty, Kevin Seifkin, Michael Vadnie, Cass Weil.

 

Proposed Amendments to the MRPC:  Bill Wernz, in publishing his e-book on legal ethics, has raised questions and/or issues with some of the current rules.  The Committee began reviewing these issues. 

1.8(a) Business Transactions with Clients:  While moving the word “knowingly” further up in the rule could alleviate any potential problems, the general sense of the Committee is that there is no pressing need to change this rule at the present time. 

1.8(c) (Gifts from Clients):  Under the Minnesota rules as opposed to the model rules, an attorney may receive a fairly substantial gift from a client.  Mr. Burns and Ms. Hanson commented the LPRB is not seeing this as an issue.  A conflict under 1.7(a)(2) may be more likely than one arising under 1.8(c).  If the Committee does decide to pursue a recommendation for change to any of the rules, this one may be revisited.

1.8(j) (Sexual Relations with Clients):  The Committee agreed this does not need to be addressed.

1.15 (Safekeeping Property):   Committee members did not feel it necessary to clarify the line between the types of funds attorneys are and are not allowed to keep in a trust account.  However, an article or a CLE on this topic might be appropriate.

1.16(e) (Return of Client Files):  Committee members needed further details from Mr. Wernz regarding the problem with this part of the rules since it was not clear to the Committee.  Mr. Cooperstein will obtain this information.

Mr. Cooperstein asked Committee members to let him know if there are other rules they would like the Committee to review and mentioned he may raise Rule 7.2 for discussion.

Next Meeting:  The Committee will continue discussing the proposed rule changes at their next meeting is scheduled for Tuesday, September 27 at 8:00 a.m.  Meetings will be the 4th Tuesday of every month at 8:00 a.m.

 


Members Present: Eric Cooperstein – Chair, Tim Baland, Pat Burns, Cassie Hanson, Kenneth Kirwin.  By telephone: Roger Kramer, Michael McCarthy, Michael Moberg, Frederic Nguyen, David Schultz, Michael Vadnie.

 Next Meeting:  The Committee’s next meeting is scheduled for Tuesday, April 26 at 8:00 a.m..


 MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
November 23, 2010
8:00 a.m.


Members Present: Eric Cooperstein – Chair, Frederick Finch, Cassie Hanson, Kenneth Kirwin, Tamara Patton - MSBA Staff.   By telephone: Tim Baland, Roger Kramer, Michael McCarthy, Michael Moberg, Frederic Nguyen, David Schultz, Michael Vadnie, Elizabeth Wefel and Bonnie Wittenberg.

MBLE’s proposed Rule 20 to allow graduates of non-ABA accredited law schools to sit for the MN bar exam:  Mr. Cooperstein sent a revised draft of the committee’s concerns regarding of the proposed Rule 20.  Members again voiced concerns that the 10 of the past 13 years practice requirement may hinder some applicants who took time off to have or raise children, had a period of unemployment, attended law school later in life or were in the armed. Mr. Finch commented that maybe there needs to be a different formula for qualifying created by the MBLE for each situation. Overall members agreed with the wording used to explain the committee’s concerns with this requirement. Members then gave comments for the content pertaining to “Principal Occupation” and “Full-Time Practice.” Mr. McCarthy suggested that if this rule does get passed that maybe examples could be given to help clarify or give more definition to the practice of law.

Moving on, Ms. Hanson added to the work product requirement content that some lawyers cannot take their work product with them and that there is a confidentiality issue with this requirement. Finally the committee discussed the admission of graduates from foreign law school being permitted. Mr. Schultz brought up two points, one being the admission of Canadian graduates from University of Toronto and two the admission of graduates from the European countries. Toronto has the same path the U.S. does to become a lawyer path whereas most European schools treat a law degree as a Bachelorette degree instead of a post Bachelorette.
 
Other Business:  Mr. Finch asked if the committee should draft another proposal

Mr. Finch moved a resolution authorizing the Chair to revise the report on Proposed Rule 20 of the Board of Law Examiners to incorporate the changes discussed at the meeting and to circulate the revised report to the members of the committee by email.  Further, if no objections are made to the revised report, that the Chair be authorized to request permission from the MSBA President to submit the revised report to the Supreme Court on behalf of the Committee.  The motion was seconded and, after discussion, adopted on a voice vote.
 
Mr. Finch moved a resolution authorizing the Chair to appear before the Supreme Court on behalf of the Committee in support of the substance of the report at the hearing on the proposed amendments.  The motion was seconded and, after discussion, adopted on a voice vote.

Next Meeting:  The Committee’s next meeting is scheduled for Tuesday, December 28 at 8:00 a.m., depending on the number of agenda items. 


MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
October 26, 2010
8:00 a.m.


Members Present: Eric Cooperstein – Chair, Tim Baland, Mark Berhow, Myron Frans, Cassie Hanson, David Sasseville, Luke Seifert, Nancy Mischel - MSBA Staff.   By telephone: Tom Haluska, Michael Moberg, Cass Weil.

MBLE’s proposed Rule 20 to allow graduates of non-ABA accredited law schools to sit for the MN bar exam:  Mr. Cooperstein earlier circulated MBLE’s response to the Supreme Court’s order that MBLE propose an amendment to allow graduates of non-ABA accredited law schools to sit for the MN bar exam.  The MBLE proposed three requirements:  practice in 10 of the last 13 years, submission of work product from each of the 10 years, and payment of a $1500 fee.  The high fee is due in part to the extra time for MBLE to review work product (in addition to the cost of administering the bar exam and the character and fitness investigation).

The work product requirement sparked the most discussion.  Members voiced concerns regarding the nebulous, subjective nature of the standard, whether there would be uniformity, and the ease with which someone might submit the work product of another or submit an excellent work product that did not accomplish the client’s intent.  It was noted that work product does not get to work habits which may be equally as important for verifying competency.  Requiring references might be a better way to assess core competency, as well as setting a standard that prior disciplinary issues will result in disqualification.

Members noted the 10 of the past 13 years practice requirement may hinder some applicants who took time off to have or raise children or had a period of unemployment.  It is unclear how part-time practice is considered.

The Court has not yet published MBLE’s proposed rule nor has it established a comment period.  Depending on the deadline for comments, this discussion will resume at a future meeting of the Committee.

Other Business:  Mr. Baland reported that the cloud computing subcommittee held its first meeting but does not yet have a recommendation for the Committee to consider. 

Next Meeting:  The Committee’s next meeting is scheduled for Tuesday, November 23 at 8:00 a.m., but the meeting will be cancelled if there are no agenda items. 


 MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
August 24, 2010
8:00 a.m.


Members Present: Eric Cooperstein – Chair, Tim Baland, Pat Burns, Lucinda Jesson, Ken Kirwin, David Sasseville, Luke Seifert, Bonnie Wittenburg, Nancy Mischel - MSBA Staff.   By telephone:  Myron Frans, Michael McCarthy, Michael Moberg, David Schultz, Bryan Seiler, Kevin Siefkin, Michael Vadnie.

Report and Recommendation from the MBLE regarding Legal Education Standard for Admission to the Minnesota Bar and Supreme Court order directing MBLE to prepare and file a proposed amendment:  Mr. Cooperstein reported that the MBLE completed its review of this issue and submitted its report to the Court.  In response, the Court issued an order directing MBLE to file a proposed amendment that would permit a licensed attorney who has successfully practiced law in another United States jurisdiction for a specified number of years to sit for the Minnesota Bar Examination and, if successful and otherwise qualified, to be admitted to the practice of law in Minnesota, notwithstanding the fact that the attorney had not graduated from an ABA-approved law school.  The Committee agreed it would continue to track this issue and review the proposed amendment submitted by MBLE to ensure it does not conflict with the Committee’s prior comments on this topic. 

Summary/discussion of recent 8th Circuit decision in Wersal v. Sexton, et.al.:Mr. Cooperstein summarized this decision which strikes down elements of the Canon 4 of the Judicial Canons as unconstitutional.  Because it is likely the case will be appealed, the Committee will not at this time consider making any recommendations, such as to strengthen the recusal rule.  

Discussion of proposed redraft of MSBA Bylaws relating to how the association, sections, and committees take legislative positions, amicus positions and other actions:  Ms. Mischel provided a summary of the proposed revisions, which were developed by the Governance Committee of the Assembly.  The Governance Committee is accepting comments through September 30, 2010, before finalizing its recommended changes for the December Assembly meeting.  The Committee suggests inserting the 3-day notice requirement in section 14.1 to be consistent with the other sections.  Mr. Kirwin suggested some additional edits that Committee members requested Ms. Mischel forward to the Governance Committee for consideration. 

Other Business:  Mr. Baland proposed that the Committee look at cloud computing, which is not directly addressed by the Rules.  A subcommittee was formed to study this issue and return to the Committee at their October meeting with a recommendation or a report.  The subcommittee members are Mr. Baland, Mr. Sasseville, and Mr. Burns.  Sam Glover and Stuart Williams will also be asked to serve.

Future Meeting Schedule:  The Committee will meet the fourth Tuesday of every month at 8:00 a.m. at the MSBA offices.  Meetings will be cancelled if there are no agenda items.

 

MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
February 23, 2010
8:00 a.m.


Members Present: Eric Cooperstein – Chair, Tim Baland, Pat Burns, Myron Frans, Thomas Haluska, Cassie Hanson, Ken Kirwin, Michael McCarthy, David Sasseville, Luke Seifert, Bryan Seiler, Bill Wernz, Nancy Mischel - MSBA Staff.   By telephone:  Ngozi Akubuike, Karen Marty, Hon. Charles Porter, David Schultz, Kevin Siefkin, Michael Vadnie.

Recommendation to amend Rule 1.5 regarding advance fees that are not deposited in lawyers' trust accounts

Lawyers Professional Responsibility Board Proposed Opinion 22 pertaining to a lawyer’s ethical obligation regarding metadata: 

Next Meeting:  Tuesday, March 23, 8:00 a.m. at the MSBA

 


MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
December 22, 2009
8:00 a.m.


Members Present: Eric Cooperstein – Chair, Tim Baland, Mark Berhow, Pat Burns, Cassie Hanson, Cindy Jesson, Ken Kirwin, Luke Seifert, Nancy Mischel - MSBA Staff.   By telephone:  Fred Finch, Myron Frans, Roger Kramer, Karen Marty, Michael Moberg, Hon. Charles Porter, Kevin Siefkin, Michael Vadnie.

Petition to amend the bar admission rules to allow lawyers admitted in other jurisdictions but not graduates of ABA-accredited law schools to sit for the MN bar examination:  Mr. Cooperstein reviewed the history of this issue, which was considered by the Committee before the petition was actually filed when proponents of the rule change contacted then MSBA President Mike Ford asking for the MSBA to support the proposal.  The Committee heard from proponents of the proposal at their September 2008 meeting and heard from opponents at their October 2008 meeting.  The motion adopted by the Committee at that time was to support no change to the current rules.Current MSBA President Leo Brisbois has asked the Committee to review the issue again now that a petition has been filed and the MSBA has been invited by the MBLE to submit comments and/or make a presentation at one of the upcoming public hearings.  (The Supreme Court referred the Petition to the MN Board of Law Examiners to study and make a recommendation.)Mr. Cooperstein summarized the materials included in the voluminous binder that Petitioners delivered to the MSBA office.  He noted that some materials were not germane to the Petition, for example, reference letters written on behalf of people who want to take the MN bar exam and would benefit from the proposed rule change. Mr. Finch disclosed that he is a member of the ABA Board of Governor’s and therefore has a potential conflict of interest.  Members agreed that Mr. Finch should participate in the discussion and any voting.  Mr. Finch mentioned that there is a low positive correlation between success in law school and success in practice but that this dissipates over time.  He expressed an opinion that an experienced attorney with a good track record should perhaps not be barred from sitting for the MN State bar exam simply because he or she did not graduate from an ABA-accredited school.Members discussed the competing interests of ensuring professionalism and quality vs. recognition of cost and hardship.  However, some members noted that there are lower cost accredited law schools.  While there are other forms of regulation in some states that have non-ABA accredited schools (such as California, where there is a “baby bar” and a rigorous bar exam), that is not necessarily true of all states.Ms. Marty moved that the Committee oppose the Petition due to insufficient reasons demonstrated to discard the ABA accreditation requirement.  Mr. Vadnie seconded the motion.  Discussion ensued.    Mr. Kirwin moved an amendment providing an exception for attorneys who otherwise meet the requirements of Rule 7A regardless of the law school they attended.  Members expressed concern the amendment was too broad.  The motion on the amendment failed. Mr. Kirwin then moved a friendly amendment to the original motion that attorneys who meet the requirements of Rule 7A except that they attended a non-ABA accredited school be allowed to sit for the Minnesota bar exam. Ms. Jesson seconded the motion.  The motion on this amendment and the underlying language passed.Mr. Finch volunteered to present the Committee’s position at the upcoming MBLE hearing in February.  That position is as follows: 

The MSBA Rules of Professional Conduct Committee opposes the rule change requested by the Petitioners.  However, the Committee believes that the admission rules should permit a graduate of a non-ABA-approved law school to sit for the Minnesota bar exam if, other than graduation from an ABA-approved law school, he or she meets the requirements of Rule 7A as a lawyer admitted in another U.S. jurisdiction who has for at least five of the immediately preceding seven years been engaged as his or her principal occupation in the active and lawful practice of law.
Next Meeting:  Tuesday, January 26, 3:00 p.m. at the MSBA.  Discussion at the January meeting will focus on the proposed changes to Rules of Professional Conduct related to retainer agreements and fees.


 MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
October 27, 2009
3:00 p.m.


Members Present: Eric Cooperstein – Chair, Tim Baland, Pat Burns, Fred Finch, James Garlough, Roy Ginsburg, Cassie Hanson, Ken Kirwin, Luke Seifert, Cass Weil, Bill Wernz, Nancy Mischel - MSBA Staff.   By telephone:  Kim Brzezinski, David Schultz, Bryan Seiler.Report on the Joint Non-refundable Fees Committee with the LPRB:  Mr. Cooperstein provided background on Non-refundable Fees draft memo written by the subcommittee which consisted of members from the Rules of Professional Conduct Committee and representatives from the Lawyers Professional Responsibility Board.  The Rules Subcommittee developed a draft rule that would eliminate the concept of non-refundable fees by requiring they be deposited in a trust account, rather than a business account, until the fee is actually earned.  Members discussed the draft memo and had a number of comments, concerns and suggestions.  Members decided the draft would be circulated to MSBA sections (particularly the Criminal Law and Bankruptcy sections) and committees for comment, following which it will be reviewed by the Committee again for possible action.  A suggestion was made to solicit input from the bankruptcy bench.  Main concerns are in these areas:  binding arbitration, lawyer must make reasonable and prompt effort to resolve dispute, reasonable negotiation.The memo will be revised according to some of the concerns raised prior to distribution for comment.Mr. Wernz moved that the Committee adopt the Washington provision.  The motion was seconded and passed unamimously.  Mr. Burns will rewrite the memo accordingly and ask for comments to be submitted by the December/January meting.  Ms. Mischel will assist in distributing the memo for comment. 

Upcoming Meetings: 
            November 24, 8:00 a.m.
            December 22, 8:00 a.m.


MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
August 25, 2009
8:00 a.m.

Members Present: Eric Cooperstein – Chair, Tim Baland, Pat Burns, Fred Finch, Cindy Jesson, Ken Kirwin, Luke Seifert, Bill Wernz, Nancy Mischel - MSBA Staff.   By telephone:  Hon. Peter Cahill – Vice-Chair, Kim Brzezinski, Karen England, Tom Haluska, David Schultz, Kevin Siefken, Michael Vadnie, Elizabeth Wefel.
Guest:  Michael Unger. 

Committee Response to LPRB Draft Opinion #21:

Mr. Unger was invited to the meeting because he sits on the Committee that drafted Opinion #21.  Mr. Unger said the Committee expects there will be comment and room for improvement on the draft opinion.  The committee will likely meet in mid-September to review the comments and determine whether the Opinion is a good idea, bad idea or needs some changes. 

Mr. Cooperstein mentioned there is a group of ethics counsel that meets occasionally.  They met about Opinion 21 and expressed some concerns.

Mr. Wernz reported that Ken Jorgerson believes the Opinion does not work from a prosecutorial standpoint.  According to Mr. Wernz, the draft Opinion opines on fiduciary duty and the Board has no authority to do that.  Mr. Wernz argues that the restatement position of “substantial and material” (Rule 1.4) as the standard for reporting one’s own potential malpractice to a client is the one that should be used.

Mr. Schultz stated that in the two cases he was involved in as part of the 2nd District ethics committee involving the duty to report potential malpractice, the draft Opinion would not have helped because it does not clarify the Rule.

Mr. Finch questioned the reason for issuing this Opinion at this particular time.

Mr. Siefken suggested that something similar to Ethics Opinion 113 out of Colorado would be helpful.

According to Mr. Burns, while the Office of Lawyers Professional Responsibility has not been inundated with complaints on this topic, they do come up.  The Office prosecutes the more egregious cases, such as where the attorney did not tell the client the case was dismissed.  Mr. Burns suggested the Opinion could be narrowed to simply require disclosure of facts.

Mr. Unger stated the Opinion can serve as a reminder to the general bar regarding their ethical obligations in this area.   Some Committee members thought this could be better done through an article in the Bench & Bar, for example.

The Committee noted that draft Opinion 21 uses the language “should” rather than “shall” as was the case in Opinion 20.  There is a vast difference between advice and obligation.  The Courts and the Board have never formally adopted comments. 

Ms. Jesson made a motion that the Mr. Cooperstein draft a letter to the Opinion Committee questioning the need to issue Opinion 21 in light of concerns that have been raised and the fact that further education of the bar can be done by other means such as an article in Bench & Bar magazine.  The motion was seconded and passed.  Mr. Burns abstained from the vote.  Mr. Cooperstein will attempt to circulate a draft letter to the Committee for review within a week.

Report on the Joint Non-refundable Fees Committee with the LPRB:  Some members of the Rules of Professional Conduct Committee are participating on a Rules Subcommittee with representatives from the Lawyers Professional Responsibility Board.  The Rules Subcommittee is considering a draft rule that would eliminate the concept of non-refundable fees by requiring they be deposited in a trust account, rather than a business account, until the fee is actually earned.

Upcoming Meetings:  Mr. Cooperstein has been contacted by at least one member who requested the Committee meet at a time other than early morning.  Mr. Cooperstein suggested every third meeting of the Committee be held at 3:00 p.m. rather than 8:00 a.m. Members agreed to try this.  The meeting schedule is now updated as follows (all meetings are held at the MSBA):
           September 22, 8:00 a.m.
            October 27, 3:00 p.m.
            November 8:00 a.m.
            December  8:00 a.m.
            January 3:00 p.m.
            February, 8:00 a.m.
            March, 8:00 a.m.
            April, 3:00 p.m.
        
    May, 8:00 a.m.


 MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
March 24, 2009
7:30 a.m.


Members Present: Eric Cooperstein – Vice-Chair, Mark Berhow, Tim Baland, Pat Burns, Brad Eggen, Fred Finch, Cassie Hanson, Ken Kirwin, Luke Seifert, Nancy Mischel - MSBA Staff.   By telephone:  Charles Bird, David Schultz, Michael Vadnie.

LPRB Opinions Committee’s Draft Opinion Regarding Use of “& Associates”:  Mr. Cooperstein put a request for comments out to the solo/small listserv and summarized the comments in a memo provided to members.  Mr. Burns will provide a copy of the memo to members of the Opinions Committee.  RPC Committee members discussed the draft opinion.  Mr. Cooperstein noted that for the Rules of Professional Conduct to operate properly they must make sense; if the bar perceives them as unfair the legitimacy of the system is undermined. 

A motion was made to direct the Chair or his designee to send a letter to the Opinions Committee containing the following points: 1) questioning the underlying assumption that “& Associates” is in fact materially misleading to the public; 2) noting the absence of any social science research or public surveys in this area; 3) noting the unfair impact on solo/small firms and suggesting the Opinions Committee choose an issue with a broader reach for its first opinion; and 4) expressing the Committee’s opinion that there is no need for the proposed rule in the absence of any showing of widespread concern or public harm.  The motion was seconded and passed.  Mr. Burns and Ms. Hanson abstained from the vote. 

ABA amendments to Rule 1.10 related to screening of lateral hires:  Members continued their discussion from the last meeting and reviewed their prior history of thought on the Rule.  In 2004 the Committee proposed a bright line rule, but it was not adopted by the Minnesota Supreme Court.  The general sense of the Committee is that our current Rule 1.10 seems to be working.  The Committee decided to review this item again in 6-9 months to see action, if any, other states take.

Non-Refundable Retainers:  This item will be on next month’s agenda; it is an issue the Lawyers Board is going to review.


 MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
February 24, 2009
7:30 a.m.


Members Present: Hon. Peter Cahill – Chair, Eric Cooperstein – Vice-Chair, Mark Berhow, Pat Burns, Fred Finch, Tom Haluska, Cassie Hanson, Cindy Jesson, Ken Kirwin, Hon. Charles Porter, Nancy Mischel - MSBA Staff.   By telephone:  Karen England, Mike McCarthy, Mike Moberg, David Schultz, Michael Vadnie, Elizabeth Wefel, Cass Weil. 

ABA amendment to Model Rule 3.8:  Members discussed whether they should recommend Minnesota adopt Model Rule 3.8 and a proposed amendment to it drafted by Judge Cahill.  Judge Porter made a motion to table the issue, which Mr. Haluska seconded.  The motion passed.

ABA amendments to Rule 1.10:  Mr. Finch provided the Committee with the history behind the recent ABA adoption of model rule 1.10, relating to screening of lateral hires.  The adopted Rule 1.10 permits screening of virtually all laterally hired lawyers who would be personally disqualified by Rule 1.9 because of their representation of a former client.  Members discussed whether to recommend adoption of the new model rule.  The discussion was postponed to the next meeting in order to provide members additional background regarding prior Committee action on the issue.

New Business:  For informational purposes, the MSBA Petition to amend the Student Practice Rules has been filed.  The Court has posted it and the deadline for comments is March 30.


MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
January 27, 2009
7:30 a.m.

Members Present:  Honorable Peter Cahill - Chair, Eric Cooperstein – Vice-Chair, Brad Eggen, Fred Finch, Tom Haluska, Cassie Hanson, Cindy Jesson, Ken Kirwin, John Kingrey - Guest, Steve Hirsh – MSBA Staff.  By Telephone: Charlie Bird, Cass Weil.

ABA Model Rule 3.8:  There was much discussion between defense and prosecution bars on the merits and possible alternatives to the model rule. Conversation to be continued at a future meeting. No formal action taken.

ABA Model Rule 1.10:  Fred Finch would like to receive comments regarding model rule 1.10 to take back to the ABA.  No formal action taken.



 MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
November 25, 2008
7:30 a.m.


Members Present: Hon. Peter Cahill – Chair, Eric Cooperstein – Vice-Chair, Timothy Baland, Pat Burns, Brad Eggen, Fred Finch, Roy Ginsburg, Tom Haluska, Cassie Hanson, Cindy Jesson, Ken Kirwin, David Schultz, Nancy Mischel - MSBA Staff.   By telephone:  Karen England, Karen Marty, Mike McCarthy, Hon. Charles Porter, Luke Seifert, Cass Weil. 

Response to Proposal to modify rules on bar admission:   Mr. Schultz moved that the Committee support no change to the current rules on bar admission.  The motion was seconded.  Although a concern was voiced that there should be some way for a meritorious individual to sit for the Minnesota bar exam despite not having graduated from an ABA-accredited law school, the motion passed.  Ms. Mischel will communicate the Committee’s position to MSBA President Mike Ford.
ABA amendment to Model Rule 3.8:  Mr. Burns provided members with a copy of a letter from the MN County Attorneys Association outlining their position on this issue.  Mr. Burns informed the Committee that the Lawyers Board Rules Committee has not yet taken a position.  While the proposed rule is under consideration in other states, it appears no state has adopted it.  Members expressed some concerns regarding the proposed rule. 

Since there is no deadline for action, the Committee decided to seek input from the public defenders, the Department of Justice, and the section of criminal defense attorneys regarding the suggestions made by the County Attorneys Association in their letter.

The Chair and Vice-Chair of the Committee will decide whether to this input will be provided in written form, or whether individuals from the various groups will be asked to present to the Committee.

Use of “& Associates”:  The Lawyers Board’s draft opinion states that the use of the word “Associates” or “& Associates” is false and misleading if it conveys there are more attorneys practicing law than is actually the case.

Members suggested the Lawyers Board would better serve attorneys and the public if they dealt with this issue on a case by case basis, rather than with a blanket opinion.  A motion was made to recommend to the Lawyers Board Opinion Committee that they issue their opinions in the form used by other jurisdictions; that is to present hypotheticals dealing with various fact scenarios.  The motion was seconded and passed.  Members recommended the Lawyers Board publish such hypotheticals in Bench & Bar magazine or Minnesota Lawyer. 

The December 23 Committee meeting is cancelled; please mark your calendars for the next meeting on January 27.


 MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
October 28, 2008
7:30 a.m.


Members Present: Hon. Peter Cahill – Chair, Eric Cooperstein – Vice-Chair, Timothy Baland, Pat Burns, Fred Finch, Tom Haluska, Ken Kirwin, Luke Seifert, Nancy Mischel - MSBA Staff.   By telephone:  Karen England, David Schultz, Cass Weil.  Guests:  Ed Butterfoss and Dean Don Lewis, Hamline University School of Law; Dean Thomas Mengler, University of St. Thomas School of Law; Nancy Ver Steegh, William Mitchell College of Law (for Dean Eric Janus); University of Minnesota Law School (for Dean Whitman); Peg Corneille and Tyrone Bujold, MN Board of Law Examiners.
ABA amendment to Model Rule 3.8, relating to a prosecutor's duty to disclose 

LPRB petition to the Court:  Pat Burns reminded the Committee that comments regarding the LPRB petition are due November 26.

ABA amendment to Model Rule 3.8:  This discussion was postponed to the November meeting for lack of an official position from the MN County Attorneys Association.

Response to Proposal to modify rules on bar admission:  As a counterpoint to Mr. McGrath’s presentation at the October meeting, the Committee heard from law school representatives and the Board of Law Examiners.  Mr. Butterfoss, former Dean at Hamline School of Law, served seven years on the ABA Accreditation Committee, including a term as Chair.  According to Mr. Butterfoss, accreditation does matter.  The percentage of graduates from non-ABA accredited schools that pass the bar exam is less than 50%.  He cautioned the Committee to be wary of piecemeal change to the system and indicated that the change proposed by Mr. McGrath is quite broad. 
Dean Mengler stated that the ABA accreditation process which St. Thomas has been undergoing is rigorous.  Dean Lewis believes the question to be asked is whether the proposal from Mr. McGrath adds confidence and respect to the profession.
Ms. Ver Steegh said that William Mitchell’s mission is instilling practical wisdom.  Ms.  XX mentioned that the U of M Law School is undertaking a self-study prior to their upcoming ABA accreditation review in two years. 
In response to a question concerning the cost of attending ABA accredited schools, all the law school representatives agreed that accreditation does lead to higher costs due to requirements such as having a law library and faculty that both teach and do scholarship.  Right now, there is no alternative that assures quality.  We have only a tier of law schools that is highly regulated and another that is not regulated at all.  However, there is a wide variety of ABA accredited schools.
Ms. Corneille stated that the Board of Law Examiners has not yet taken up the issue but will be doing so in response to Mr. McGrath’s request.  Minnesota does allow for admission after motion once in practice for five years, but the applicant must still have graduated from an ABA-accredited school.  Minnesota’s bar exam passing score is relatively low, and we rely heavily on other requirements, such as graduation from an accredited school.  In other states, such as California, there is heavy reliance on the bar exam rather than the school attended.  Mr. Bujold, a retired lawyer who serves on the Board of Law Examiners, indicated that he was not in favor of Mr. McGrath’s proposal.
No one was aware of any studies regarding success as an attorney that compared graduates from ABA and non-ABA accredited schools. 
Georgia appears to be undertaking, and perhaps has completed, a comprehensive review of standards for admission to their bar.  The speakers felt Minnesota should do the same before approving an idea such as that brought forward by Mr. McGrath.  The Supreme Court is the body that would set up such a review process.
The meeting adjourned at 8:45 a.m.


MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
September 23, 2008
7:30 a.m.


Members Present: Hon. Peter Cahill – Chair, Eric Cooperstein – Vice-Chair, Timothy Baland, Pat Burns, Fred Finch, Tom Haluska, Cassie Hanson, Ken Kirwin, Luke Seifert, Nancy Mischel - MSBA Staff.   By telephone:  Karen England, Cass Weil.  Guests:  MSBA President Mike Ford, Presenters Lee McGrath and Henry Ongeri.
Presentation by Lee McGrath, Institute for Justice
Mr. McGrath provided background to the Committee on the work of his organization, which focuses on cases involving issues of economic liberty.  The Institute is meeting with the MN Board of Legal Examiners on November 12 to present their proposal to modify Minnesota’s bar admission rules to allow graduates of non-accredited law schools to sit for the bar exam in Minnesota if they have passed the bar exam of another state.
Right now California and New York allow attorneys who have graduated from non-accredited schools to sit for their bar exam.  Ten years ago Wisconsin implemented the proposal Mr. McGrath is recommending.  In the last 10 years, 26 graduates of non-accredited schools sat for the Wisconsin bar and 22 passed.  So far there have been no instances of public discipline issued against these 22.  
Mr. Ongeri, who graduated from law school in Kenya and then came to William Mitchell and earned an LL.M. degree, also spoke.  Mr. Ongeri has passed the bar exam in New York, but his wife has a job here and he would really like to be able to sit for the Minnesota bar exam.  Unfortunately, he cannot.  Minnesota is in the minority of 19 states that only allow graduates of ABA-accredited law schools to sit for the bar exam.
Mr. McGrath believes the four law schools in Minnesota offer the “Cadillac” of legal education, while most of the non-accredited schools offer the “Buick” of legal education.  However, offering a Buick increases opportunities for those who cannot afford the Cadillac.  A Buick education is around $10,000 per year while the average cost of one year’s tuition at the Twin Cities law schools is $28,000.
Mr. McGrath stated that distance and online education has spread rapidly, even to Oxford.  Most online schools handle teaching trial skills by using the facilities of a bricks and mortar school for a summer session.  For example, Concord law school uses William Mitchell’s facilities.
Mr. Ford mentioned that GATT may come into play at some point to limit restrictions that can be placed on those desiring to practice law in the United States.
When asked about opposition to the proposal, Mr. McGrath thought the ABA might be opposed on the grounds that the interaction that happens in classrooms is important and cannot be replicated online.  While Mr. McGrath agrees that that live dynamic interaction is important, the lack of it is not reason enough to exclude many potential members of our profession.
Mr. McGrath urged members to support the Institute’s proposal.
Mr. Finch agreed to contact the ABA and find someone to present a counterpoint at the next RPC Committee meeting in October. 
Use of “& Associates”
Mr. Burns reported that the LPRB Opinion Committee has been asked to recommend to the Board the issuance a formal written opinion pursuant to its authority under Rule 4(c) of the Rules of Professional Conduct that the use of "& Associates" in a firm name and advertisements is misleading if there are not at least two other attorneys employed by the firm.   Members discussed the fact that while it may appear disingenuous for a solo attorney to use the term “& Associates” the truth is that almost all solo attorneys associate with other attorneys in some way.  For example, they may share office space or support staff.  They may cover hearings for each other or provide a source of referrals.  Mr. Burns indicated he will take this perspective back to the Opinion Committee.
Committee Roster
Members discussed the fact that even though there are 39 voting members on the Committee, it has been difficult to muster the required 1/3, or 13 members, necessary for a quorum.  Committee members will be contacted asking them to move onto the “mailings only” list if they will not be able to attend meetings.
The meeting adjourned at 8:40 a.m.


 MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
May 6, 2008


Members Present: Cindy Jesson - Chair; Mark Berhow, Pat Burns, Eric Cooperstein, Brad Eggen, Fred Finch, Cassie Hanson, Ken Kirwin, Cass Weil, Nancy Mischel - MSBA Staff.   By telephone:  Charles Bird, Karen Marty, Michael Moberg, Michael Vadnie.  Guests:  Lisa Montpetit Brabbit and Dave Bateson - University of St. Thomas School of Law, Peter Thompson – Hamline University School of Law.
Update on Proposal Regarding Mentor Externship:  Mr. Burns, a member of the working group on mentor externship, reported on the proposed amendments to the student practice rule developed by the working group.  Mr. Burns reported that the group opted not to pursue a legislative remedy due to the risk and lack of control they would have over the final outcome, as well as the lengthy time it could take to get something passed.  Ms. Brabbit added that the working group consisted of 71 stakeholders from all interested groups.  A petition to the Court to amend the student practice rule would not impact the attorney-client privilege statute, but would further define who qualifies as an “attorney.”  Members discussed the proposal; some expressed a concern it was overly broad.  Mr. Burns made a motion that the Committee support the proposal as drafted by the working group.  The motion was seconded by Mr. Bird.  A vote was taken; the motion failed.  The proposal will be considered by the Professionalism Committee at their meeting on May 16.
ABA Amendment to Model Rule 3.8:  Mr. Burns reported that the MN County Attorneys Association had referred the issue to their Ethics Committee, which does not meet until May 16.  Ms. Mischel reported that the Criminal Law Section will discuss the issue at their meeting tomorrow.  The League of MN Cities sent an email to all of the city attorneys with information about the issue and requesting they send comments directly to Ms. Mischel for distribution to the Committee.  One comment was received and shared with the members.  Members agreed to postpone additional discussion until further input is received. 


 MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
April 1, 2008


Members Present: Cindy Jesson - Chair; Mark Berhow, Honorable Peter Cahill, Eric Cooperstein, Fred Finch, Cassie Hanson, Ken Kirwin, Luke Seifert, Cass Weil, Nancy Mischel - MSBA Staff.   By telephone:  Charles Bird, Pat Burns, Christopher Cain, Karen Marty, Michael Moberg, Kevin Siefken, Michael Vadnie.  Guests:  Emily Eschweiler - MN Board of Continuing Legal Education, Meaghan Harper - MSBA Staff.
ABA Amendment to Model Rule 3.8:  Members discussed the ABA amendment to Model Rule 3.8 relating to a prosecutor’s duty to disclose.  A recent article in Minnesota Lawyer discussed what led to the rule change.  Some members expressed concern that the amendment would make the rule unmanageable if it applies to all levels of offenses.  An advantage of the rule is that it sets out standards.  Members held differing opinions on whether it would open the floodgates for reconsideration requests.  The Lawyers Board of Professional Responsibility is also reviewing the proposed amendment, and has forwarded it to the County Attorneys Association for their consideration and input.  Ms. Mischel will forward it to the League of Minnesota Cities and the MSBA’s Criminal Law Section for their input.  A motion was made to postpone further discussion until the Committee receives input from the county and city attorneys.  The motion was seconded and passed.
Request from MN Board of Legal Certification that the Committee Propose an Amendment to the Comment for Rule 7.4:  Ms. Harper, the MSBA’s former Certification Manager, provided some background information to the Committee regarding the confusion the comment has caused for practitioners in that it seems inconsistent with the rules.  Although the Committee has pushed in the past, the Supreme Court has stated it does not adopt comments.  Thus, members felt it is highly unlikely the Court would adopt any proposed changes to a comment, particularly when if it did not come with any proposed change to the affiliated rule.  A motion was made that Chair Jesson write a letter to Peg Corneille informing her that the Committee declined to take any action on the issue she raised in her letter.  The motion was seconded and passed.  A motion was then made to refer the question regarding the proper procedure to change a comment to the MSBA’s Court Rules and Administration Committee for their consideration. The motion was seconded and passed.
LAD Resolution Regarding ABA Disaster Planning Rules:  Mr. Burns, co-chair of the LAD (Legal Assistance to the Disadvantaged Committee) reported that LAD is bringing forward a resolution and proposal that the MSBA adopt the ABA disaster planning rules.  The proposal is on the April meeting agenda of the MSBA Assembly.  Following brief discussion, a motion was made recommending adoption of the LAD resolution. The motion was seconded and passed.
Update on Proposal Regarding Mentor Externship:  Mr. Burns reported on the progress being made on this issue and the two drafts that provide different ways to address it.  Members discussed their concerns regarding proposals and questioned why the working group did not look at a statutory change or the possibility of bringing a case with the right facts.  Mr. Burns will bring the Committee’s thoughts back to the working group when they meet again on April 10.  A motion was made to table the discussion until the next Committee meeting when it is hoped a final version of the proposal will be available.  The motion was seconded and passed.


 MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
February 4, 2008


Members Present: Cindy Jesson - Chair; Mark Berhow, Eric Cooperstein, Ken Kirwin, Karen Marty, Cass Weil, Nancy Mischel - MSBA Staff.   By telephone:  Honorable Peter Cahill, James Garlough, Honorable Charles Porter, Luke Seifert.  Guests:  Lisa Montpetit Brabbit and Dave Bateson, University of St. Thomas
Presentation from Lisa Brabbit, University of St. Thomas School of Law:  Ms. Brabbit and Mr. Bateson from the University of St. Thomas School of Law provided information to the Committee regarding the difficulty of having students in their mentor externship program participate in client meetings with their mentors without risking waiver of the attorney/client privilege.  The difficulty stems from the fact that not all cases fit within the student practice rules.  St. Thomas, in such instances, has worked from the premise that an agency relationship exists and therefore the attorney/client privilege is not waived.  However, there is no case law on the question and many mentors are uncomfortable with the lack of certainty.  The result is many students are not able to experience first-hand how attorneys advise actual clients. 

The St. Thomas group is working with a few members from the MSBA Professionalism Committee and interested other parties to further explore the issue and possible solutions, such as amending the student practice rules to encompass a broader array of cases.  All four law school deans support the concept.  Members expressed interest in reviewing the actual language of a proposal once it is developed and also suggested the presenters talk to the LAD (Legal Assistance to the Disadvantaged) Committee.  Committee members Pat Burns or Cassie Hanson were suggested as good additions to the St. Thomas working group because of their dual role working with the LPRB and serving on the RPC Committee.

Discussion of Report from the Ad Hoc Advisory Committee to Review the Minnesota Code of Judicial Conduct:  Mr. Kirwin went over the subcommittee’s four recommended changes with members.  There being insufficient members to constitute a quorum, Committee members agreed to meet via teleconference call before the end of the week to further discuss and vote on the matter.
Discussion of Uniform Act for the Representation of Children in Custody, Abuse and Neglect  Proceedings:  This agenda item was postponed due to the absence of member Fred Finch, who raised the issue.  It will be discussed during the upcoming teleconference meeting.


MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
December 13, 2007

Members Present: Cindy Jesson - Chair; Pat Burns, Eric Cooperstein, Brad Eggen, Fred Finch, James Garlough, Cassie Hanson, Ken Kirwin, Honorable Charles Porter, Luke Seifert, Elizabeth Wefel, Nancy Mischel - MSBA Staff. By telephone: Charles Bird, Karen England, David Schultz.
ABA Disaster Planning Rules: Ms. Wefel and Mr. Cooperstein reported that their subcommittee of two met and while they had no objection to the proposed rule per se they questioned whether it is necessary. They suggested a few provisions could be added to MRPC 505(c) to accomplish the same thing. Mr. Garlough raised a concern that there is no time limit in the proposal with regard to ability to practice and that there are no standards or verification procedures to ensure an attorney is in good standing in their home practice state. In addition, members questioned whether the Minnesota Supreme Court was the appropriate entity to decide whether or not to declare a disaster. Members with additional concerns should contact Mr. Burns. Mr. Burns will take the concerns raised at the meeting back to the LAD (Legal Assistance to the Disadvantaged) Committee for their consideration. When the LAD Committee makes its recommendation regarding the ABA proposal, Mr. Burns will bring it back to this Committee for review.
Discussion of Report from the Ad Hoc Advisory Committee to Review the Minnesota Code of Judicial Conduct: Ms. Jesson explained that the Ad Hoc Committee made a few changes to their report following the public hearing, particularly in the definitions section. Mr. Kirwin moved the Committee support the Ad Hoc Committee's report. During the discussion members raised the following concerns:
1) Gift provisions in 3.13(B)(10) and 3.15(A)(2) are inconsistent
2) Definition of "intimate relationship" in 3.13(B)(7)
3) Definition of political organization
4) Applicability section (see page 5) does not encompass traffic courts that are authorized by cities or municipalities rather than the state
5) The part-time judge provisions (see page 7) refer to "division" of the court. This is a term of art that does not fit here; it should be "district" rather than "division."

A friendly amendment to Mr. Kirwin's motion was made to authorize a subcommittee to review the issues raised and return to the Committee with a proposal for recommended changes, limited to those mentioned. Depending on the time frame for public comment, the subcommittee may distribute their report by email to the Committee. The amendment was seconded and the motion was adopted.
Mr. Burns informed members that the ABA Criminal Justice Section filed a report and recommendation on revisions to Model Rule 3.8 regarding prosecutorial disclosure of evidence. It will be considered by the House of Delegates at their February mid-year meeting.
There being no further business, the meeting adjourned.



MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
October 3, 2007

Members Present: Cindy Jesson - Chair; Mark Berhow, Honorable Peter Cahill (via telephone), Eric Cooperstein, Ken Kirwin, Mike Moberg, David Schultz, Cass Weil, Kathy Yip, Nancy Mischel - MSBA Staff.
Discussion of Report from the Ad Hoc Advisory Committee to Review the Minnesota Code of Judicial Conduct:

Chair Cindy Jesson gave a very brief overview of the Ad Hoc Committee's deliberations and process. David Schultz discussed the memo he wrote regarding issues he sees with the report. He also mentioned the case of Lopez Torres from New York which the Supreme Court will be hearing. The case will indicate where these sorts of challenges are headed, according to Professor Schultz. Members raised and discussed the following:
" Whether the goal should be to have litigation proof rules for judges, or the optimum rules, or something in between.
" Rule 4.1(A)(3): What judicial candidates can do in terms of endorsing others. The proposed model draws a distinction between issues and candidates - issues are all right, but candidates are not. However, there is the exception in Rule 4.2 that allows a candidate to make endorsements of other candidates for the same position (i.e. trial judges can endorse other trial judges) in a two-year campaign window.
" Appearance of impropriety. Eric Cooperstein raised concerns about the vagueness of the standard, as well as the need for it. If it is adopted now it will impact a greater number of judges, including administrative law judges. Most members, with the exception of Mr. Cooperstein, agreed they saw this as merely aspirational, and were not overly concerned.
" Definitions section: The "political organization" definition assumes the only purpose of a political organization is to run candidates. That is not always the case - such an organization might have other purposes, such as taking positions on legislation.
" Rule 4.1(A)(4)(b): Although a judge clearly has the right to seek endorsement from a political party, the rationale here is to try and keep judges from making numerous contributions to a political party in order to gain their endorsement.

Members asked whether the Ad Hoc Committee discussed attaching an explanation of its reasons for the recommended rules. Ms. Jesson replied that the Ad Hoc Committee will include a background report to the Court explaining the rationale behind the recommended changes.
Members discussed what, if any, action they should take. Ken Kirwin suggested that the Committee endorse the proposed rules. Because there was not a quorum, they could not take a position as a Committee. Ms. Jesson will schedule a meeting of the RPC Committee after the Ad Hoc Committee files their report with the Court and the Committee can consider whether to provide comments to the Court at that point.
There being no further business, the meeting adjourned at 5:25 p.m.

 


MSBA Rules of Professional Conduct (RPC) Committee
Meeting Summary
September 26, 2007

Members Present: Cindy Jesson - Chair; Mark Berhow, Pat Burns, Honorable Peter Cahill, Eric Cooperstein, Fred Finch, Cassie Hanson, Ken Kirwin, Roger Kramer, Mike McCarthy, Mike Moberg, Elizabeth Wefel, Kathy Yip, Nancy Mischel - MSBA Staff. By telephone: Charles Bird, Cherie Clark, Karen England, James Garlough, David Schultz, Kevin Siefken.
Supreme Court Committee to Review Attorney Discipline System: Eric Cooperstein, a member of the Supreme Court Committee, reported that the group has met once so far. Their report to the Court is due in April 2008. This sort of Committee is formed periodically by the courts. It is likely the RPC Committee will be able to respond to draft recommendations as they are developed by the Court Committee.
Update on Ad Hoc Advisory Committee to Review the Minnesota Code of Judicial Conduct: Fred Finch reported on the proceedings of the Advisory Committee, which was formed by the Court upon the suggestion of the RPC Committee last year. The Advisory Committee operated on a baseline presumption to adopt the ABA model rules unless there was a good reason not to do so. Most of the work was done in subcommittees, each one studying a particular canon. A public hearing is scheduled for October 17. Because the report from the Ad Hoc Committee did not become available until just before the RPC Committee meeting, members agreed they needed time to read and study the report before deciding whether or not the Committee should make any comments. Another meeting of the Committee was set for Wednesday, October 3 at 4:00 p.m. specifically to discuss this issue. Members asked whether other states in the 8th Circuit have been considering changes to their judicial rules in light of the White decisions. If so, the Committee might benefit from seeing their work.
Proposed Changes to the Rules of Lawyer Professional Responsibility: Mike McCarthy reported that a subcommittee consisting of himself, Bill Wernz and Luke Seifert met with David Sasseville, who chairs the Rules Committee of the LPRB, and Pat Burns of the Office of Lawyers Responsibility to discuss the proposed changes to Rule 1.16. LPRB has indicated they would like to work with the MSBA to find acceptable language. Since they did not see any downside to it, the Committee gave approval for the subcommittee to continue working with the LPRB. Members should send their comments regarding the 1.16 draft directly to Mike at Mike.McCarthy@maslon.com.
Update on Malpractice Reporting Rule: This item was moved to a future agenda due to lack of information.
ABA Proposed Disaster Planning Rules: Pat Burns reported that the proposed disaster planning rules came about mainly because of Hurricane Katrina. The Legal Assistance to the Disadvantaged Committee will be looking at the proposed rules in more depth and will likely make a recommendation to the MSBA Assembly. A brief summary: If the Supreme Court declares a major disaster, then out-of-state attorneys will be temporarily allowed to practice in the disaster state and they will be allowed to provide pro bono services through a recognized pro bono organization. Committee members Eric Cooperstein and Elizabeth Wefel volunteered to look through the ABA proposal and make a recommendation to the Committee at their next meeting.
Review of Rule 4.2 as to criminal prosecutors: In footnote 10 of the Clark case, the Supreme Court asked for recommended changes to the Rule 4.2 of the Rules of Criminal Procedure. Some members commented that Rule 4.2 has a convoluted past. A suggestion was made to solicit input from the Criminal and Public Law Sections of the MSBA and the County Attorneys Association.
There being no further business, the meeting adjourned at 5:25 p.m.

 


MSBA Rules of Professional Conduct Committee
Meeting Minutes
December 20, 2006

Members Present: Cindy Jesson - Chair; Pat Burns, Brad Eggen, Fred Finch, James Garlough, Cassie Hanson, Ken Kirwin, Mike McCarthy, Hon. Chuck Porter, David Schultz, Elizabeth Wefel, Bill Wernz, Nancy Mischel - MSBA Staff. By phone: Andrew Muller
Report from Rule 1.16 Subcommittee: Brad Eggen reported that the subcommittee did not meet, although some discussions took place between members via email. The focus of the subcommittee was the rule dealing with closing a client's file and information that should be included, in particular emails and e-documents. The subcommittee decided to ask for further direction regarding their charge from the full Committee.
Members agreed there was a drafting problem in the 2002 rules since they address unexecuted but not executed documents. Members discussed leaving the rule as is, but felt some attorneys need more guidance than what is currently in Rule 1.16(e) as to what should be returned to clients. Fred Finch made a motion that the Committee support amending Rule 1.16(e)(3) as follows:
(3) in nonligitation or transactional representations, any document or copy of a document that has been signed or executed.papers, and property shall not include drafted but unexecuted estate plans, title opinions, articles of incorporation, contracts, partnership agreements, or any other unexecuted document which does not otherwise have legal effect, where the client has not paid the lawyer's fee for drafting the document(s).
The motion was seconded and passed. Mr. Eggen agreed to write a letter to the OLPR Board Rules Subcommittee explaining the reasons behind the proposed amendment.
Supreme Court Order in the Ira Wilbur Whitlock Matter: Chair Cindy Jesson informed the Committee she decided not to write a letter to the Supreme Court as directed by members at the November 2 meeting. Her decision was based on two reasons: 1) the Court is not going to form a Commission to review lawyer discipline as had been anticipated earlier; and 2) the Court has since issued an order in the Hawkins case that emphasized due process issue. Members agreed with the Chair's decision.
Collaborative Law Proposal: Members discussed whether or not they should weigh in on the proposed Rule 114A dealing with collaborative law that is being considered by a Supreme Court Advisory Committee. Pat Burns reported that the LPRB will respond to a specific request that they comment on the proposal. Nancy Mischel informed the Committee that the family law, ADR and civil litigation sections of the MSBA were reviewing the proposal. The Committee agreed to revisit the rules once the collaborative law proposal has been decided upon.
Other Business: Chair Jesson reported that she spoke with the Chief Justice after he received her letter regarding appointing the Ad Hoc Committee on Canon 5. The Chief Justice confirmed that Committee members are being solicited now.
There being no further business, the meeting adjourned.

 


MSBA Rules of Professional Conduct Committee
Meeting Minutes
November 2, 2006

Members Present: Cindy Jesson - Chair; Mark Berhow, Pat Burns, Brad Eggen, Thomas Haluska, Cassie Hanson, Ken Kirwin, Hon. Chuck Porter, Luke Seifert, Bill Wernz, Nancy Mischel - MSBA Staff. By phone: James Garlough
Minutes: Minutes from the September 28 meeting were reviewed and approved.
Goals for the Year; Bar Education: Members revisited this item from the last meeting agenda. Pat Burns stated that OLPR has been asked by MN CLE to do a monthly hourlong CLE talk show. If OLPR decides to do it, Pat will be approaching members of the Committee to appear as guest speakers.
Supreme Court Order in the Ira Wilbur Whitlock Matter: Members continued discussion on this item and agreed the case raises concern sufficient to warrant action from the Committee. Kent Gernander, OLPR Board Chair, will be recommending a study commission be formed to review lawyer discipline; this may provide another avenue to bring forward the Committee's concerns.
A motion was made and seconded to have the Chair write a letter to the Supreme Court offering to participate on the Commission being formed to review lawyer discipline and/or offer to forward issues to the Court in this area that warrant consideration. The motion passed. Members Pat Burns, Cassie Hanson and James Garlough abstained from voting.
Update on RPC Committee Recommendation on Canon 5: Per the Committee's motion at the September meeting, Chair Cindy Jesson wrote a letter to the Chief Justice of the Supreme Court reminding him of the Court's Order, requesting that the Ad Hoc Committee be appointed, and offering to provide a representative from the RPC Committee.
Proposed Changes to Rule 1.16: Pat Burns provided background on the proposed changes for members who missed the September meeting. Members raised a number of questions and issues with the proposed language, much of it centering on what constitutes a client file and whether emails are included. Chair Jesson will appoint a subcommittee to study the issues and come back to the full Committee with a recommendation. The Chair of the Subcommittee will contact Pat and the subcommittee may meet with the OLPR Board as part of this.
There being no further business, the meeting adjourned.



MSBA Rules of Professional Conduct Committee
Meeting Minutes
Spetember 28, 2006

Members Present: Cindy Jesson - Chair; Mark Berhow, Pat Burns, Brad Eggen, Fred Finch, Thomas Haluska, Cassie Hanson, Maury Landsman, Kathleen Murphy, Hon. Chuck Porter, Luke Seifert, Elizabeth Wefel, Nancy Mischel - MSBA Staff
By phone: David Schultz
Introductions: Members introduced themselves and Cindy Jesson welcomed new members.
Update on Malpractice Insurance Reporting Rule: Cindy Jesson reminded the Committee that the Court adopted the new Rule 6 requiring reporting of malpractice insurance. This was done thanks to Ken Kirwin's leadership and David Herr's work drafting and filing the Petition.
Goals for the Year; Bar Education: Cindy Jesson asked members whether the Committee should provide some specific outreach efforts and/or training, particularly given the fact that the MSBA Convention will be held in the Twin Cities in June. She suggested legal issues in cyberspace as a possibility. Pat Burns said that his office is receiving a number of calls regarding Rule 5.5, the unauthorized practice of law. Members agreed to revisit this question at the next meeting.
Supreme Court Order in the Ira Wilbur Whitlock Matter: Committee Member Bill Wernz, who was unable to attend the meeting, had earlier requested discussion of this matter. Pat Burns, who handled the case for the Office of Lawyers Professional Responsibility (OLPR), reviewed the facts for members. Members were concerned about the due process issues raised by the Court's Order, which gives extreme discretion to the OLPR. Members debated possible action including having the Chair draft a letter to the Court Liason to the OLPR with the Committee's concerns. It was decided to wait until the next meeting before taking action in order to talk further with Bill Wernz.
Update on RPC Committee Recommendation on Canon 5: Per the Committee's recommendation, the Court issued an order in July that an Ad Hoc Advisory Committee be appointed to further study Canon 5 issues. To date, the Ad Hoc Committee has not been appointed. Fred Finch made a motion that the RPC Committee Chair write a letter to the Chief Justice of the Supreme Court reminding him of the Court's Order, requesting that the Ad Hoc Committee be appointed, and offering to provide a representative from the RPC Committee. The motion was seconded and passed.
Proposed Changes to Rule 1.16: Pat Burns explained to Committee members the draft proposed changes to Rule 1.16. The Lawyers Professional Responsibility Board has not yet voted to move forward with the proposed changes. Members raised a number of questions and issues with the proposed language and suggested that Pat convey to the Board that the RPC Committee advocates a go-slow approach. Members are interested in reviewing a final version of the proposed changes.
There being no further business, the meeting adjourned.

 


 

MSBA Rules of Professional Conduct Committee
Meeting Summary
September 19, 2005


Members Present: L. Jesson, Chair; Hon. B. Boland, P. Burns, Hon. C. Dietzen, B. Eggen, R. Figueroa, F. Finch, K. Kirwin, L. Seifert, T. Vasaly, W. Wenz


Following introductions, the Chair directed attention to the Petition of the MSBA to the Minnesota Supreme Court to adopt a new Rule 10 as part of its Registration Rules requiring lawyers who represent private clients to report annually whether they carry professional liability insurance. There was no discussion.

Request to Review Canon 5, Code of Judicial Conduct
At the direction of Sue Holden, MSBA President, this Committee will review Canon 5 of the Code of Judicial Conduct in light of the recent White decision. Tom Vasaly gave a brief history of the case indicating an appeal has been filed and the deadline for cert is October 31, 2005.

A subcommittee comprised of Judge Bernard Boland, Judge Christopher Dietzen, and Fred Finch will develop a plan to draft changes to the canon that will pass constitutional scrutiny. The Committee discussed the feasibility of developing a recommendation in the form of a rule to submit to the Assembly in early December if cert is denied. Members questioned the implications for all provisions except the "solicitation" clause if cert is denied. Given the short time frame and complexity of the rule change task, committee members noted that this is a sizeable 1st Amendment legal research project.

Statewide Training on New Rules of Professional Conduct
Pat Burns reported that lawyers are accepting the changes and that new rule books have been published.

MSBA Support of Hurricane Katrina Relief Efforts
Contributions to the effort through the Bar Foundation will be used in part to rebuild the legal infrastructure and restore law firms to functionality. Members are generously contributing to the effort.

Meeting Location and Times
Committee members indicated a preference for late afternoon meetings. The next meeting of the committee will be at the call of the Chair.

 


MSBA Rules of Professional Conduct Committee
Meeting Summary
January 31, 2005

Present: K. Kirwin, Chair; P. Burns, B. Eggen, F. Finch, L. Jesson, M. McCarthy, M. Michales, J. Ryan, L. Seifert, B. Shaw, T. Vasaly, D. Wagenius, R. Wexler, A. Moravetz, MSBA Staff.

Guests: T. Mielenhausen, M. Trittipo, MSBA Staff

Practicelaw.org
Mike Trittipo, MSBA Director of Technology, introduced the idea of adding the area of professional responsibility to practicelaw.org. The committee discussed whether or not this is a needed resource, the challenge of maintaining high quality in the information provided, and updating the information. No action was taken.

Increase in Attorney Registration Fee
Tom Mielenhausen introduced a proposal for an increase in the Attorney Registration Fee by $75.00 to provide funding for legal services to the disadvantaged and asked committee members to respond. After discussion the committee agreed there is no active role for the committee to take at this time.

Professional Liability Insurance Disclosure
Betty Shaw reported that the subcommittee met with the Rules Committee of the Lawyers Board to discuss the ABA's Model Court Rule on Insurance Disclosure. The joint committee recommended that Minnesota adopt a rule requiring lawyers who represent private clients to annually report whether or not they carry professional liability insurance. Betty Shaw moved and Tom Vasaly seconded the motion to recommend to the MSBA Assembly that the rule be adopted.

Following discussion the committee approved the rule and proposed form for reporting with the following changes:

1. Paragraph B should begin with The Minnesota Supreme Court shall prescribe the form of certification.
2. Paragraph D should be changed to C.
3. Proposed Form:
Do you represent private clients?* ____yes; if so, are you covered by professional liability insurance? _____yes (Carrier_____________);
_____no. If so, do you intent to maintain professional liability insurance during the next twelve months? _____yes; _____no.
*For the purpose of this rule, the clients of government lawyers and in-house counsel are not private clients.


The rule will go to the MSBA Assembly for approval at its April 15 meeting.

Next Meeting
The committee will next meet at the call of the Chair.


MSBA Rules of Professional Conduct Committee
Meeting Summary
September 27, 2004

Present:
K. Kirwin, Chair; R. Ginsburg, T. Haluska, M. Landsman, M. Michales, L. Seifert, B. Shaw, S. Silk, T. Vasely, D. Wagenius, R. Wexler, A. Moravetz, MSBA Staff

Guest: Ying Xu, Law Student, St. Thomas University Law School


Chair Kenneth Kirwin called the meeting to order.

September 17 Assembly Meeting Update
Professor Kirwin updated the committee on the outcome of the Assembly Meeting where the committee's recommended changes to Rule 1.10 were approved. The Second Supplemental and Amended Petition of the MSBA for Amendment to the Rules of Professional Conduct has been filed with the Supreme Court.

Report of the Malpractice Disclosure Subcommittee
Betty Shaw reported to the committee that the subcommittee has reviewed the ABA Model Court Rule on Insurance Disclosure. They plan to invite the Lawyers Board Rules Committee to meet with their subcommittee to address issues related to the rule. The subcommittee will prepare a report to the Supreme Court but not offer specific language for a rule to be adopted in Minnesota.

Report of the Payee Notification Subcommittee
Roy Ginsburg reported that the subcommittee is contacting the states where a payee notification rule has been adopted to gather data on the cost and efficacy of the rule. The subcommittee will continue to work and develop a recommendation for the committee.

Report and Recommendation of the Unclaimed Funds Subcommittee
Maury Landsman reported on behalf of Pat Burns that the subcommittee had reviewed the proposal to divert abandoned trust account funds to the Client Security Fund. The subcommittee recommended that the proposal not be pursued.

New Business
The Committee discussed the Supreme Court's Order in Re Petition for Reinstatement to the Practice of Law of David V. Anderley inviting the MSBA to file an amicus curiae brief addressing where there is some conduct, the seriousness of which should preclude reinstatement. The brief is due within 30 days of the order dated September 23, 2004. Tom Vasaly moved and Maury Landsman seconded the motion that the committee draft a short letter for MSBA President David Stowman to submit to the Supreme Court rather than an amicus brief due to the time limitations. The letter will indicate that this committee believes disbarment should remain presumptively permanent and that a disbarred lawyer should not be irrebutatbly presumed to be beyond the possibility of rehabilitation. The committee voted to pass the motion. Betty Shaw abstained.

Next Meeting
The committee will next meet at the call of the Chair.


MSBA Rules of Professional Conduct Committee
Joint Meeting with the Lawyers Professional Responsibility
Board Rules Committee
Meeting Summary
August 2, 2004

Committee Members Present: K. Kirwin, chair; P. Burns; J. Dressen; F. Finch; S. Gaustad; S. Hawley; L. Jesson; M. Landsman; M. McCarthy; M. Michales; G. Seager;
L. Seifert; B. Shaw; W. Wernz; A. Moravetz, MSBA staff

LPRB Representatives: K. Jorgenson; K. Gernander; D. Sasseville; J. Rush


Rule 1.10 (b)
The chair welcomed LPRB representatives to the meeting. After introductions, the chair gave a brief history of the background of the committee's work including the charge in the Lennartson case and the issue before the committee regarding proposed amendments to Rule 1.10(b) of Minnesota Rules of Professional Conduct regarding screening of lateral hires. Because of the LPRB's opposition to the committee's recommendations at the MSBA Convention in June 2004, LPRB representatives were invited to give input and participate in this joint meeting to discuss the issues.

The committee and LPRB representatives discussed the proposals presented by each group. After considerable discussion, no consensus was reached. Several questions were articulated that are at the crux of the differences in the proposals:

1. Should the proposal differentiate between disqualification and disciplinary application?
2. What is the purpose of the rule? Are we protecting the client's interests of confidentiality or the attorneys' interest in moving from one firm to another?
3. What are our options? Should we leave Lennartson in place? Should we offer two suggestions to the Supreme Court?

Those present indicated hope for compromise on the issues. The chair directed that a small workgroup made up of Cindy Jesson, Bill Wernz, David Sasseville, Kent Gernander, Ken Jorgenson and the chair work out a proposal acceptable to both the committee and LPRB.

Next Step
The workgroup is scheduled to meet August 9, 2004, from 3:30 to 5:00 p.m. at the MSBA Office.


MSBA Rules of Professional Conduct Committee
Meeting Summary
April 26, 2004


Present: K. Kirwin, chair; F. Finch; C. Jesson; B. Shaw; D. Wagenius; B. Wernz; M. Grau, staff


Rule 1.10(b)
Dwight Wagenius, subcommittee chair, presented the report of the subcommittee on Rule 1.10(b) of the MRPC recommending amendment of the rule and comment. After discussion, the committee agreed by consensus to adopt the subcommittee report with the following amendments to proposed Comment [6]: 1) insertion of 'either" between "denotes" and "management" in line one; 2) deletion of "litigation or transaction" in line 3; 3) insertion of "in the matter" after the word "decisions" at the end of line 3; and 4) addition of this sentence at the end of the comment-"In certain matters more than one lawyer may have primary responsibility."

Ken Kirwin and Dwight Wagenius will revise the subcommittee report as necessary and submit the committee report for action at the MSBA General Assembly June 11. The report will be distributed to members of the committee; a copy of the report will also be provided to the LPRB as soon as it is available.

Dwight Wagenius will be out of town and unable to attend the June 11 meeting. Ken Kirwin, Cindy Jesson and Fred Finch will present the report to the General Assembly.

Next meeting
The committee does not plan to meet again during the 03/04 bar year. The next meeting will take place at the call of the chair.


MSBA Rules of Professional Conduct Committee
Meeting Summary
February 23, 2004


Present: K. Kirwin, chair; P. Burns; B. Eggen; F. Finch; C. Jesson; L. Seifert; B. Shaw; S. Silk; T. Vasaly; D. Wagenius; B. Wernz; Leah Morgan, guest; M. Grau, MSBA staff

Model Rule on Financial Responsibility Reporting
Betty Shaw reported for the subcommittee appointed to review the proposed ABA Model Rule on Financial Responsibility. A written subcommittee report supporting the concept of the proposed rule was distributed at the meeting. After discussion, the committee agreed to submit comments consistent with the subcommittee report to the ABA Standing Committee on Client Protection. The subcommittee will circulate draft comments to the entire committee this week; the comments must be submitted to the ABA by February 28.

Rule 1.10 (b)
Dwight Wagenius reported for the subcommittee on Rule 1.10 (b) and submitted a written summary. That summary follows:

Recall that the subcommittee's charge is to bring a recommendation to the committee on whether the committee ought to recommend to the bar any revision in MRPC 1.10 (b) after conducting the comprehensive reexamination of the rule that the Minnesota Supreme Court requested in its Lennartson decision. The rule addresses imputation of the conflicts of interest of a lawyer moving from one law firm to another to the new firm.

Since the committee's last report we have continued our research on the rules and experiences of other states. We have identified a number of articles that address the issues raised by the imputation of the conflicts of interest of the moving attorney.

Through the leaders of the MSBA New Lawyers Section we arranged a meeting with a number of associates who have recently experienced transfers that involved conflicts of interest. That meeting included a couple of young lawyers who work for a legal headhunting firm; they volunteered to provide us more anecdotal accounts of lawyers moving from firm to firm and some statistics on such transfers.

We have identified the need to talk to recruitment and hiring attorneys in firms that are soliciting or accepting lateral transfers, and have made some of those contacts. We expect to receive written reports from them as well as conducting interviews.

We have discussed a plan to complete our work and anticipate having a report in the hands of the committee in time for a full discussion at the April meeting. We welcome any suggestions.

BLE Petition
The committee reviewed the petition recently submitted by the MN Board of Law Examiners to the Supreme Court to amend Rules 9 and 10 of the Rules for Admission to the Bar regarding house counsel. The hearing on the petition is May 18 with a comment deadline of May 7. The consensus of the committee was that the proposed rules do a reasonable job of addressing the concerns raised by the MSBA Ethics 2003 Task Force. The committee does not plan to submit comments on the proposed amendments.

Supplemental Petition
The chair noted that the hearing on the MSBA petition resulting from the work of the Ethics 2003 Task Force is also May 18. MSBA staff will monitor the written comments submitted to the court between now and the May 7 comment deadline.

Rule 1.6
The committee decided to take no action regarding Rule 1.6 (b) or Comment [8].

Next Meeting
The committee will meet next in April at the call of the chair.


MSBA Rules of Professional Conduct Committee
Meeting Summary
January 26, 2004

Present: K. Kirwin, chair; P. Burns; F. Finch; M. Landsman; M. Michales; L. Seifert; B. Shaw; T. Vasaly; B. Wernz; M. Grau, MSBA staff

Petition Update
The supplemental amended petition on proposed changes to the MRPC will be filed within the next few days. At that point the court will set a hearing date and comment period on the supplemental and main petitions.

Rule 1.10(b) Subcommittee
The subcommittee will report at the next meeting of the full committee.

Malpractice Coverage Notification
The committee discussed the proposal of the ABA Standing Committee on Client Protection for a model rule that would require a lawyer to annually certify to the state supreme court whether the lawyer has professional liability insurance. The proposal will be on the agenda at the ABA annual meeting in August 2004. The standing committee is requesting comments on the proposed rule by February 28.

Pat Burns reported that the Minnesota Client Security Board is in favor of the proposal.

Tom Vasaly reported that the ABA will be doing a study over the next few months on the experience of states that have adopted malpractice insurance disclosure rules.

After discussion, the committee agreed to form a subcommittee to review the ABA proposal and to obtain whatever information is currently available about other states.
Betty Shaw will chair the subcommittee. Marilyn Michales, Luke Seifert and Tom Vasaly will serve on the committee; the Client Security Board will be asked to appoint an ex-officio member. Any other Rules of Professional Conduct Committee members who would like to serve on the subcommittee should contact the subcommittee chair. The subcommittee will report to the full committee in February.

MSBA Convention
There was consensus that the committee should not meet in conjunction with the MSBA convention in Duluth June 9-11.

Next Meeting
The committee will meet next on Monday February 23, 2004 at 3:30 p.m. at the MSBA office in Minneapolis.


MSBA Rules of Professional Conduct Committee
Meeting Summary
November 10, 2003

Present: K. Kirwin, chair; P. Burns; F. Finch; C. Jesson; M. Landsman; L. Seifert; B. Shaw; S. Silk; T. Vasaly; D. Wagenius; B. Wernz; guest M. Unger; M. Grau, MSBA staff

Rule 7.4
Tom Vasaly presented his subcommittee's second report on Rule 7.4 dated November 6, 2003 and moved its adoption. There was discussion on the motion. It was moved and seconded to amend the subcommittee report to recommend a revised Rule 7.4 as included in the report without the provisional language on reconsideration. The motion passed. The subcommittee report was adopted as amended.

Rule 1.6
Pat Burns presented his subcommittee's revised report on Rule 1.6 recommending amendment of currently proposed Rule 1.6 (b) (4) to read "the lawyer reasonably believes the disclosure is necessary to prevent the commission of a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services or to prevent the commission of a crime" and moved its adoption. The motion passed.

Rule 1.13
Fred Finch presented his subcommittee report and moved its adoption. It was noted that the subcommittee recommendation departs from recently adopted ABA Model Rule 1.13 only in Rule 1.13 (c), where the subcommittee recommends retention of the current Minnesota rule. It was moved and seconded to amend the subcommittee report by striking 1.13 (d). The motion passed. The subcommittee report was adopted as amended on a six to three vote.

Rule 1.10
Dwight Wagenius indicated that his subcommittee would be submitting its final report at an upcoming meeting.

Consideration by Board of Governors
The committee discussed the timing of submission of its recommendations regarding rules 1.6, 1.13 and 7.4 to the MSBA Board of Governors. Bill Wernz noted that he and chair Ken Kirwin have been asked to attend the Supreme Court bench meeting on November 13 to provide an overview of the recommendations in the MSBA Petition to Amend the Minnesota Rules of Professional Conduct that is currently before the Court. There was consensus that the committee will prepare a report for consideration by the MSBA Board of Governors at its December 5 meeting seeking amendment of the pending Supreme Court petition on rules 1.6, 1.13 and 7.4, but will leave open the option to revise its recommendation to the Board if the chair and Bill Wernz believe it advisable to do so after the November 13 meeting with the Court.

If necessary, the chair will call a meeting in early December to reconsider the timing of the committee's report to the Board of Governors. If there is no need for an early December meeting, the committee will meet next in January at the call of the chair.


MSBA Rules of Professional Conduct Committee
Meeting Summary
October 13, 2003

Present: K. Kirwin, chair; P. Burns; B. Eggen; F. Finch; C. Jesson; M. Michales; L. Seifert; B. Shaw; S. Silk; T. Vasaly; T. Votel; D. Wagenius; B. Wernz; D. Wexler.
Ken Kirwin convened the meeting at 3:30 pm.
Fred Finch of the Rule 1.13 subcommittee reported that the subcommittee's consideration of the ABA revision of Model rule 1.13 is not complete but he hopes to report at the November 10 meeting.
Betty Shaw reported that President Jim Baillie is in the process of selecting a task force on multijurisdictional practice and that our Rule 5.5 subcommittee will work with that committee in considering changes to Rule 5.5. As a result, no recommendation will be forthcoming on Rule 5.5 until after the work of the MJP task force is well underway.
Tom Vasaly presented a written report on Rule 7.4. He indicated that his subcommittee had concluded that the present Minnesota Rule 7.4 may be vulnerable to constitutional attack and that the ABA Model Rule 7.4 included in the MSBA Ethics 2003 petition is only marginally better. Because of the assessment of his subcommittee and others that ABA approval of certifying agencies is insufficiently rigorous, the subcommittee recommends dropping ABA accreditation from Rule 7.4(c)(2) and going to a pure disclaimer for lawyers wishing to claim to be certified specialists but who are not approved by organizations accredited by the MN Board of Legal Certification. Vasaly discussed the significance of trying to retain a limitation on the use of the term "specialist" vs. limiting only the phrase "certified specialist". He pointed out that under a Lawyers Board proposal currently being considered, only the designation "certified specialist" would be protected. He expressed his opinion that under the Peel and Borgner cases, it is not fully clear that it is constitutionally permissible to protect the term "specialist" without empirical data on whether the use of the term is misleading and causes harm to the public if not regulated. He pointed out that no such empirical data is available, no one has made a commitment to gather it, and that the cost of doing so could be significant. He indicated that the subcommittee's recommendation is contained in paragraph 6 of its written report, and that the committee should decided on recommended language for rule 7.4 at its November 10 meeting. He invited individual members of the committee to express their own views. Terry Votel indicated that he thinks the Rule should limit use of the word "specialist" but acknowledged the constitutional problems inherent in doing so. Brad Eggen stated that he was initially in favor of limiting use of the term "specialist" but had changed his mind and favored restrictions only on the use of the term "certified specialist" and explained his reasons for doing so.
A member asked if, in light of the constitutional restrictions and the watered-down protections afforded by the various proposals being floated, there was any point in retaining Rule 7.4 at all. Claims of specialization would be regulated only by rule 7.1, prohibiting false or misleading advertising. He pointed out that in the medical profession, anyone can claim to be a specialist, any group can purport to accredit specialists, and only by the consensus of members of the profession, based upon a history of rigorous and uniform application of certification standards, does a group (like the American College of Surgeons or the American Board of Internal Medicine) come to be recognized as the de facto accrediting agency for a specialty. A spirited discussion followed.
After discussion, Mr. Vasaly asked for a non-binding straw vote on trying to protect the term "specialist", trying to protect the term "certified specialist", and eliminating Rule 7.4 altogether and relying on Rule 7.1 to police claims of specialization. Protecting the term "certified specialist" prevailed by a large margin.
Members of the Rule 1.10(b) subcommittee informally reported. The subcommittee is considering a recommendation for responding to the Supreme Court's concerns expressed in the Lennartson [Lennartson v. Anoka Hennepin School District, 662 NW2d 125 (Minn. 2003)] case The consensus was that the committee would need more time to evaluate what other states are doing with screening, the standards for what can be screened, and what their experience has been with screening, in addition to other aspects of the Court's inquiry. The subcommittee will be meeting with Ken Jorgensen before the next meeting to learn his views and those of the Lawyers Board. There has been some discussion of amending the Preamble to the Rules to clarify the role of the Rules in judicial consideration of disqualification motions in lieu of or in addition to amendment of Rule 1.10. Mr. Wernz pointed out that the role given to equitable factors in determination of disqualification motions and other issues the court asked for input on in Lennartson, are beyond the scope of our committee.
Patrick Burns reported on the work of the Rule 1.6 subcommittee. He inquired whether the committee had reached a consensus on whether changes, if any to Rule 1.6 should be bundled with consideration of Rule 1.13 and how they both should affect the MSBA petition currently pending. A member responded that the committee had decided at the last meeting that the petition would not be delayed, but that at oral argument, the Court would be told that the MSBA is considering amendments to Rules 1.6 and 1.13, (and perhaps others) but that the MSBA could not take an official position on them pending completion of its internal approval process. There was discussion of putting amendments to Rules 1.6, 1.13 and 7.4 on the MSBA Board of Governors agenda in December.
Burns indicated that his subcommittee would recommend a vote at the next meeting on changing Rule 1.6(b)(4) to read:
(4) the lawyer reasonably believes the disclosure is necessary to prevent a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services or the commission of a crime.
This is a revision of the prior text of the subcommittee's proposed amendment. The revision moves the "commission of a crime" to the end of the sentence.
After discussion, Chair Kirwin announced that the next meeting will be held at 3:30 pm on November 10, 2003 at the William Mitchell College of Law in St. Paul. Further information will be included with the notice of meeting.
The meeting was adjourned at 4:35 pm.


MSBA Rules of Professional Conduct Committee
Meeting Summary
September 15, 2003

Present: K. Kirwin, chair; P. Burns; B. Eggen; F. Finch; C. Jesson; M. Landsman; M.
Michales; L. Siefert; B. Shaw; T. Vasaly; T. Votel; D. Wagenius; B. Wernz; K.
Jorgensen, guest; M. Grau, MSBA staff

Rule 7.4
Ken Jorgensen, director of the Office of Lawyers Professional Responsibility, presented
his concern that proposed Rule 7.4 (d)’s limitation on the ability to communicate
specialty certification to lawyers certified by organizations approved by state authorities
or accredited by the ABA could be challenged on constitutional grounds. He also
reported that the Board of Legal Certification is considering policy questions regarding
the provision in the proposed rule permitting certification of Minnesota specialists by
ABA accredited organizations. The committee agreed that the issues deserve serious
consideration and have not been specifically addressed by the MSBA Task Force on the
Model Rules or the MSBA General Assembly. It was moved and seconded that the
committee, as the entity within the MSBA charged with reviewing and making
recommendations on ethics rules, should study both the constitutional and policy issues
raised by Mr. Jorgensen regarding proposed Rule 7.4. The motion passed. Tom Vasaly,
who is a member of the Minnesota Board of Legal Certification as well as a member of
this committee, will chair a subcommittee examining the issues and will report the
subcommittee’s recommendations at a future meeting.

Rule 1.6
Pat Burns presented the report of his subcommittee regarding the recent amendments to
ABA Model Rule 1.6. It was moved that the committee recommend that the MSBA
propose further amendment of Rule 1.6 (b) (4) as set out in the subcommittee report.
After discussion, there was consensus that the subject should be held over for further
discussion at the next committee meeting. The motion to adopt the subcommittee report
was withdrawn.

Rule 1.10 (b)
Dwight Wagenius and Cindy Jesson presented the ir subcommittee report reexamining
Rule 1.10 (b) after the decision in Lennartson. There was consensus that it would be
helpful to obtain additional information about the experience in states that permit full
screening, including the response of clients, problems firms may face with lateral hires,
and the interplay of 1.10 (b) with rules 1.11 and 1.12. The subcommittee will continue to
gather information and will report again at an upcoming meeting. This subcommittee is
also seeking additional members; anyone interested in joining should contact committee
chair Ken Kirwin.

Rule 1.13
Fred Finch reported that his subcommittee, which is reviewing proposed Rule 1.13 in
light of recent ABA adoption of the recommendations of the ABA Task Force on
Corporate Responsibility, has not met yet. The subcommittee will report at the October
meeting.

Rule 5.5
Marilyn Michales reported for subcommittee chair Doug Heidenreich that the
subcommittee monitoring Board of Legal Certification action regarding Rule 9 of the
Rules for Admission to the Bar is meeting September 17.

Future Meetings
October 13
November 10
Both meetings will run from 3:30-5:00 p.m.

- Last Updated 09/20/10 -