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A Lawyer Shall...
By Martin Cole
There are essentially three types of rules of professional conduct:
mandatory rules that set out obligations that all lawyers must
meet (“a lawyer shall”), mandatory rules that prohibit certain conduct
(“a lawyer shall not”) and rules that give the lawyer discretion (“a
lawyer may”).1 The largest group is the
“shall not” rules, and in many instances these rules are easier to
apply by practitioners trying to shape their behavior to comply with
the rules. The “shall” rules create obligations but often
leave some subjective areas of interpretation. Some rules contain both positive and negative
mandatory statements, such as Rules 1.5 (fees) and 1.16 (declining
or terminating representation). Are
there any discernible reasons for treating some rules as affirmative
obligations and others as negative prohibitions? Is a concept somehow more or less important
if it is phrased one way as opposed to the other? Or is it just another half-full vs. half-empty
debate? Many
of the most fundamental requirements of legal representation are set
out in the first rules contained in the Minnesota Rules of Professional
Conduct. Competence (Rule 1.1), Diligence (Rule 1.3),
and Communication (Rule 1.4) are certainly cornerstones of any solid
attorney-client relationship. Equally
essential is a lawyer’s fiduciary obligation of Safekeeping Property
(Rule 1.15). All four of these basic tenets are set out as
positive “shall” rules: a lawyer
shall provide competent representation, shall act with reasonable
diligence, shall inform and consult with clients, and shall deposit
all client or third-person funds into a trust account and keep appropriate
books and records.2 By complying with those four rules a lawyer
has gone a long way towards a successful, and ethical, practice.3 A Lawyer Shall Not A
far larger number of rules are largely “shall not” prohibitions of
certain, often more specific, conduct.
The majority of litigation-related rules and most advertising
rules fall into this group. For example, lawyers shall not assert nonmeritorious
claims or make frivolous discovery requests (Rules 3.1 and 3.4(d)),
falsify evidence (Rule 3.4(b)), act as both advocate and necessary
witness in the same matter (Rule 3.7(a)), make false statements of
fact or law (Rule 4.1), contact represented persons without consent
of counsel (Rule 4.2), or make false or misleading statements in advertisements
(Rule 7.1). As
noted, some rules are an amalgam of positive and negative statements. Rule 1.16, for example, states in part that
a lawyer shall withdraw from representation in some circumstances,
may withdraw in others, shall take steps upon termination of representation
to protect a client’s interests, but shall not withhold a client’s
file conditional on payment of fees.
Rules concerning fees and fee agreements (Rule 1.5) and most
conflict-of-interest rules (Rule 1.7 et seq.) have both “shall” and “shall not”
aspects to them as well. No
doubt the current rules were drafted with the intent of reflecting
what ought to be our intuitive actions in most instances.
Some things we intuitively know we must do, while others we
know we must not do. Thus,
we intuitively understand as lawyers that we shall not knowingly reveal
confidential client information, just as Rule 1.6(a) demands.
Equally intuitively, we desire to carve out permissive exceptions
to such a rule to allow disclosure in some limited situations (to
rectify consequences of client fraud or criminal activity; to prevent
reasonably certain death or bodily harm; to defend ourselves against
accusations made by the client). Is There a Difference? “Shall”
rules set minimum reasonable standards that all lawyers must meet;
their conduct must rise above the line set by the rule. Conduct over and above that line may certainly
be appropriate and constitute better quality representation (think
communication), but failure to provide such extra quality is not a
disciplinary matter. “Shall
not” rules similarly draw lines, but below which an attorney’s conduct
may not fall. Rules
governing certain conduct have changed over the years from “shall”
rules to “shall not” rules, or vice versa.
Present rules on competence and diligence, as already noted,
are affirmative in nature. Prior
to 1985, however, under the former Minnesota Code of Professional
Responsibility, these duties were treated in the negative:
“a lawyer shall not
handle a legal matter which he knows or should know that he is not
competent to handle without associating with a lawyer who is competent
to handle it,” and “shall not handle a legal matter without
preparation adequate in the circumstances.”
Likewise, prior to 1985, the rule stated that “a lawyer shall not neglect a legal matter.”4 Such
changes in approach may seem inconsequential, but they also signal
a shift in emphasis for an attorney’s conduct.
Neglect was a term that often was difficult to establish. An attorney could fail to take several actions
or take a considerable amount of time to complete a matter, yet still
argue that he had not “neglected” the matter – “neglect” seemed to
require substantial inactivity. Failure
to provide reasonable diligence, as an affirmative obligation, however,
requires an attorney to do more than just not neglect a legal matter;
it requires activity. In this
instance semantics do matter. From
both an advisory and disciplinary perspective, neither “shall” nor
“shall not” rules are necessarily any more difficult to deal with. Fee agreements for contingent fees shall be
in writing – the failure to do so is clearly a rule violation. A lawyer shall not enter into a contingent fee
for representing a defendant in a criminal case – doing so is an equally
clear violation. Application
of many other rules, however, whether posited in a positive or negative
manner, requires a more nuanced analysis.
It can be far easier to state that a lawyer shall not represent
a client if the representation involves a concurrent conflict of interest
(Rule 1.7(a)) than it is sometimes to determine whether such a concurrent
conflict exists. Likewise with former clients, a lawyer shall
not represent a client with interests materially adverse to a former
client in the same or a substantially related matter (Rule 1.9(a)). Determining whether matters are substantially
related, however, can occasionally require detailed analysis. For
advisory purposes, therefore, the Director’s Office, while perhaps
discussing the details of the caller’s fact situation, ultimately
will try to steer callers inquiring about conflicts towards the safer
course. So
… shall or shall not. Affirmative
or negative. Half full or half
empty? Either way, the rules draw a line which can
be viewed as requiring conduct above that line and prohibiting conduct
below that line. In the end,
however drafted, a lawyer shall comply with the Rules of
Professional Conduct.
2
Rule 1.15 does contain some implicit “shall not” aspects concerning
commingling a lawyer’s personal funds with client funds, and some
discretionary elements as to the particular type of trust account
employed to hold funds, depending upon the amount and length of time
the funds will be held. 3
Other rules that are predominantly “shall” in nature include
attorneys’ supervisory obligations of ensuring that subordinates and
nonlawyer employees comply with the requirements of the MRPC (Rules
5.1 and 5.3) and the duty to report known, serious misconduct of other
lawyers and judges to the proper disciplinary authority (Rule 8.3,
subject to certain confidentiality requirements). 4
Former DR 6-101(A)(1),(2),(3), Minnesota Code of Professional Responsibility.
As to diligence, the current rule of course also uses the term
“reasonable diligence” rather than “neglect,” a term that essentially
required the use of a negative imperative. |
