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| The
Ethics Rules: Lost and Found Much
has already been written introducing lawyers to the amendments to
the Minnesota Rules of Professional Conduct (MRPC) that took effect
last October 1, 2005. Attorneys
in the Director’s Office have been writing articles and making Continuing
Legal Education seminar presentations regularly since even before
the new rules were adopted. Now, after ten months, the new rules can hardly
be called “new” for much longer. Most
of the emphasis has been on new rules and additions to existing rules.
Far less has been written, however, on rules that were eliminated
or on those provisions of remaining rules that have been lost.
If history is a guide,
some practitioners may take several years to realize that certain rules no longer exist. For example, some attorneys who were licensed
before 1985 still inquire about the status of the former disciplinary
rule prohibiting an attorney from threatening criminal prosecution
solely to gain an advantage in a civil matter.
Often these attorneys are absolutely certain the prohibition
exists yet they can’t seem to locate it within the Rules of Professional
Conduct. That is so, of course, because the specific
prohibition that existed in the former Code of Professional Responsibility
was not continued with the adoption of the current Rules.1 Now, following the October
amendments to the Rules of Professional Conduct, which recently deleted
or altered rules will some attorneys stubbornly continue to believe
remain as they existed before the recent changes?
And what of the former Opinions of the Lawyers Professional
Responsibility Board: where have they gone? Relative
Opposition On the question of whether
in Minnesota spouses or other close relatives could appear on both
sides of a matter, such as occurred in “Adam’s Rib,” for approximately
20 years the answer clearly had been “No.”
That’s because Rule 1.8(i) prohibited
attorneys who were related as parent, child, sibling or spouse from
representing clients whose interests were directly adverse, unless
both clients consented after consultation regarding the relationship.
Such disqualification was considered a personal conflict and
not imputed to other lawyers in a firm.
As of October 1, 2005, however, Rule 1.8(i)
no longer exists. Has the elimination
of Rule 1.8(i) now created the possibility
for spouses or other close relatives to represent adverse clients
in the same matter? Perhaps,
but probably not. The
express prohibition against spouses appearing on opposite sides of
a matter has been replaced by Comment [11] to Rule 1.7, which states
that when lawyers representing different clients in the same matter
are closely related by blood or marriage, there may be a significant
risk that client confidences will be revealed and that the lawyer’s
family relationship will interfere with loyalty and professional judgment.
The Comment then recommends that each client should be advised
of the relationship and the possible implications before the lawyer
undertakes the representation. Only if both clients consent should the two
related lawyers appear in the same matter.
The disqualification remains personal and is not imputed to
other members of a lawyer’s firm.
Thus an express prohibition has been replaced by a recommendation,
contained in a Comment that the Supreme Court has not formally adopted.2 This change does not
prevent the Director’s Office from interpreting Rule 1.7 as preventing
spouses from appearing on both sides in many circumstances, especially
in a criminal prosecution. Thus,
even with the elimination of Rule 1.8(i),
the Comment to Rule 1.7 clearly indicates that opposing spouses in
a criminal matter, such as in the Tracy-Hepburn movie, still would
be improper. Consent should
not even be sought in such an unlikely situation. In contrast, however, under the new Comment,
sibling lawyers handling opposite sides in a civil matter is far more
plausible than before. Others
Eliminated One lost and found example
from this group is the former requirement previously contained in
Rule 7.2(f) that the word “Advertisement” appear at the top of all
written communications offering representation to individuals known
to be in need of specific legal services.
This provision won’t be found there any more.
Instead, as part of Rule 7.3, the words “Advertising Material”
now must appear on any envelope and within any written, recorded or
electronic communications to such individuals.
Along with the additions
to and subtractions from the Rules, the Opinions of the Lawyers Professional
Responsibility Board may be considered to be part of the lost and
found as well.3 Several former
Board Opinions have been incorporated into portions of the Rules or
as part of a Comment to a Rule. Other
Opinions have been repealed while a few remain in effect.
A complete listing of the status of all Lawyers Board Opinions
is set out in the attached sidebar. The rules governing
lawyers’ conduct are not static. They
evolve and change over time. Rules
also may vary from jurisdiction to jurisdiction.
Certainly some true ethical norms do not, and should not, ever
change: it is wrong to lie, steal or commit acts of
fraud under any comprehensive set of normative standards. Other types of rules of conduct, however, have
changed over time, reflecting changes in societal values, changes
in the way law is practiced, or occasionally in response to constitutional
challenges. Some rules have
been “lost” in this process while others merely have “found” a new
home. Notes 2 In its June 17, 2005,
order promulgating the new amendments, the Court stated “[t]hat the
inclusion of comments is made for convenience and does not reflect
court approval of the comments made therein.” 3 In 2001, the Minnesota
Supreme Court ruled that Lawyers Board Opinions could not be an independent
basis for discipline. In re Admonition Issued in Panel
File No. 99-42, 621 N.W.2d 240 (Minn. 2001). Status of Lawyers
Board Opinions: Opinion
No. 2: Defense of Criminal Cases by a County Attorney:
repealed. Incorporated
into Comment 1 of Rule 1.11, MRPC. Opinion
No. 3: Practice of Law by Part-time Judges: repealed. Opinion
No. 4: Withdrawal for Nonpayment of Fees: repealed.
Opinion
No. 5: Failure to Comply with Fee Arbitration: repealed.
Incorporated into Rule 8.4(i),
MRPC. Opinion
No. 6: Defense of Criminal Cases by Municipal Attorneys,
repealed. Incorporated
into Comment 1 of Rule 1.11, MRPC. Opinion
No. 7: Professionally Incurred Indebtedness: repealed. Opinion
No. 8: Guidelines for Services by Nonlawyers: still in effect. Opinion
No. 9: Maintenance of Books and Records: repealed.
Incorporated through Rule 1.15(i),
as Appendix 1 to the MRPC. Opinion
No. 10: Debt Collection Procedures: repealed. Opinion
No. 11: Attorneys’ Liens: repealed. Incorporated into Rule 1.16(g),
MRPC. Opinion
No. 12: Trust Account Signatories: repealed. Incorporated into Rule 1.15(j),
MRPC. Opinion
No. 13: Copying Costs of Client Files, Papers and Property:
still in effect. Also incorporated
into Rules 1.16(e) and (f), MRPC. Opinion
No. 14: Attorney Liens on Homesteads: repealed. Opinion
No. 15: Advance Fee Payments and Nonrefundable Retainers:
repealed. Incorporated into
Rules 1.5(b) and 1.15(c), MRPC. Opinion
No. 16: Interest on Attorneys Fees: repealed. Opinion
No. 17: Accepting Gratuities from Court Reporting and
Other Services: still in effect. Opinion
No. 18: Secret Recording of Conversations: repealed. Opinion
No. 19: Using Technology to Communicate Confidential
Information: still in effect. MARTIN
COLE |
