The Minnesota Lawyers Board is soliciting comments on its proposal to amend Board Opinion 21, on a lawyer’s duties to consult with a client regarding the lawyer’s material errors in representation. Comments are due by August 16 and the Board will vote on the proposal on September 27. An article by the Director gives the rationale for amendment.[i] The proposal raises several important questions – but first, some background to frame the questions.
The Board issued Opinion 21 in 2009. Op. 21 explained lawyers’ duties of consultation under Rule 1.4 (reasonable communication) and Rule 1.7(a)(2) (conflicts of interest arising from materially limited representations) with respect to the lawyers’ own possible malpractice.
In 2009, the Board’s process for issuing opinions included consultations with stakeholders. Board Opinion Committee Chair Stuart Williams met with numerous groups. In 2009, the Board clearly wished to engage with lawyers and learn from their perspectives. The process resulted in a refined Board opinion.[ii]
To a considerable degree, Op. 21 explicated an important case law holding in Minnesota law on the duty of client consultation regarding a lawyer’s own possible malpractice.[iii] Proposed Opinion 21 does not mention this case.[iv] Instead, the proposed opinion seeks “conformity with ABA Opinion 481,” issued in 2018.
Proposed Op. 21 would broaden the subject of consultation from a lawyer’s malpractice to a lawyer’s “material error.” Proposed Op. 21 states, “An error is considered material if a disinterested lawyer would find that it is (a) reasonably likely to harm or prejudice a client; or (b) could [sic] reasonably cause a client to consider terminating the lawyer even in the absence of apparent harm or prejudice.”
The first question raised by proposed Op. 21 is what mental state of the lawyer is required to trigger an obligation to disclose and consult. The 2009 version of Op. 21 requires that the lawyer “know” of the malpractice. ABA Op. 481 requires that the lawyer, “believes that he or she may have materially erred in the client’s representation.”[v] Proposed Op. 21 rejects both knowledge and belief. The Board’s Comment to Op. 21 refers to communication duties “when a lawyer determines a material error has been committed,” but “determines” does not appear in proposed Op. 21 itself.
If the Board expressly intends to “conform” Op. 21 to ABA Op. 481, why does proposed Op. 21 reject the material, indeed crucial, mental state requirement provided by Op. 481? Why does proposed Op. 21 make no provision for mental state? The result appears to create a strict ethics liability for lawyers who are unaware of their own mistakes.
Consider a hypothetical. A lawyer does research in a litigated case but fails to find the leading authority in the jurisdiction. The lawyer has arguably committed a “material error.” However, the lawyer is unable to consult with the client, because the lawyer does not know of the error. Under current Op. 21 and under ABA Op. 481, the lawyer would not violate Rules 1.4 or 1.7 by failing to consult. Under proposed Op. 21, the lawyer would violate both rules. The rules define both “knows” and “believes,” but proposed Op. 21 rejects both.[vi]
I recently wrote, “I believe that in Minnesota the discipline system is only rarely ‘a gotcha game.’”[vii] I would amend my assessment if proposed Op. 21 is adopted without conforming to the ABA position that lawyers must “believe” they may have materially erred before they had duties of disclosure and consultation.
The second question raised by proposed Op. 21 again relates to an inconsistency between announced intent to conform to ABA Op. 481 and rejection of a key term. Op. 481 defines “material error” to arise when there is malpractice or another error, “of such a nature that it would reasonably cause a client to consider terminating the representation. . ..” Proposed Op. 21 deletes “would” and substitutes the much broader term “could.”
In ABA Op. 481, the terms “believes” and “would cause” are the triggers that require disclosure and consultation. They are absolutely essential and pivotal terms. Neither the Director’s article nor the Board’s official Comment to amended Op. 21 explain why the Board announces its intent to “conform” to ABA Op. 481 while rejecting Op. 481’s key terms.
Were the Board’s deletions of ABA Op. 481’s triggers intentional? The first sentence of the Director’s article acknowledges, “Everyone makes mistakes.” Proposed Op. 21’s substitution of “could” for “would” might well have been a mistake. However, the deletion of a state-of-mind standard may well be intentional. The redlined version of proposed Op. 21 shows that the Board systematically deleted “knows” throughout current Op. 21. And the “believes” state-of-mind standard of ABA Op. 481 is hard to miss, because “believes” appears in both its prefatory synopsis and its conclusion.
A third question arises from the different warrants and authority of the groups that issue ABA and Minnesota ethics opinions. The ABA Standing Committee on Ethics and Professional Responsibility issues ABA formal opinions. The Minnesota Lawyers Board may “issue opinions on questions of professional conduct.”[viii] However, the Supreme Court has greatly limited the scope of Board opinions, while ABA opinions have no such limits.
The Board once affirmed an admonition issued to a lawyer for purported violation of a Board opinion. The Court reversed, holding that only violations of ethics rules, not alleged violations of Board opinions, suffice for discipline. The Court explained, “[B]oard opinions that interpret preexisting rules without either effectively creating new rules of professional conduct or exceeding the scope or plain meaning of the rules are entitled to careful consideration.”[ix]
Does the “plain meaning” of the reasonable communication duty of Rule 1.4 or Rule 1.7 include that a lawyer must disclose an error that, “could [or would] reasonably cause a client to consider terminating the lawyer even in the absence of apparent harm or prejudice?” Minnesota lawyers have no doubt failed to disclose harmless errors, but no discipline has ever been reported for such failures.
To return to the hypothetical above, suppose that the lawyer prevails on a motion for plaintiff’s summary judgment, even though the lawyer failed to find or cite the leading authority. Before the court actually enters judgment, the lawyer learns of the uncited precedent. Must the lawyer disclose the error to the client?
The Director’s article explains that answers to such questions will be determined on a “case-by-case” basis. Put differently, the “plain meaning” of Rules 1.4 and 1.7 will not be apparent in many cases. Because there is no disciplinary precedent cited in Op. 481 or proposed Op. 21, lawyers will have to make educated guesses.
Is there any case law or other resource for determining when a disinterested lawyer would reasonably expect a client to consider firing a lawyer for harmless error? I do not know of any precedent. Proposed Op. 21 and the Director’s article do not cite any such authority, or any Minnesota authority whatsoever. The Director has frequently opposed expert testimony in discipline cases, but such testimony would appear necessary for such determinations in all but the most obvious cases.
Based on my experience of nearly forty years in legal ethics, I do not believe that even competent and prudent lawyers disclose harmless errors, even where the error could have caused serious harm. I do not believe other professionals make such disclosures. I would be very surprised, for example, to be told in a recovery room, “The surgery was successful, but you should know that we almost amputated the wrong limb due to a nurse’s pre-op error, which we caught just in time.”
Over thirty years ago, a Lawyers Board member told me, “The Rules should be interpreted to codify what good lawyers do.” The Rules themselves adopt this perspective through two related statements: (1) “The Rules of Professional Conduct are rules of reason.” (2) “’Reasonable’ or ‘reasonably’ when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.”[x]
The Board and the Director do not claim that the Board has determined that prudent and competent Minnesota lawyers disclose their harmless errors. The Board apparently wishes to elevate the standards of conduct for Minnesota lawyers. The Board may undertake such efforts, by petition to the Supreme Court for amendment of the Rules of Professional Conduct. However, Minnesota lawyers may ask the Board: “Would you please explain how proposed Op. 21 complies with the Supreme Court's directive against 'exceeding the scope or plain meaning' of the Rules? If proposed Op. 21 fits the plain meaning of Rules 1.4 and 1.7, why have these rules never before been interpreted as proposed Op. 21 now interprets them?”
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[i] The proposed amendment is at http://lprb.mncourts.gov/rules/Pages/PendingRules.aspx. The article is Susan Humiston, Disclosing Errors, Bench & B. of Minn., July 2019.
[ii] See Barbara L. Jones, Proposed Ethics Opinion on Reporting Malpractice Proves Controversial, Minn. Law., July 13, 2009; Barbara L. Jones, Board Passes Much-Debated Ethics Opinion on Self-Reporting Malpractice, Minn. Law., Oct. 12, 2009.
[iii] Leonard v. Dorsey & Whitney LLP, 553 F.3d 609 (8th Cir. 2009). Leonard dealt directly with a lawyer’s fiduciary duties of disclosure and consultation and only indirectly with ethical duties.
[iv] ABA Opinions include a standard caution: “The laws, court rules, regulations, rules of professional conduct and opinions promulgated in individual jurisdictions are controlling.”
[v] Op. 481 and Op. 21 use “discovers” to define the state of the lawyer’s mind regarding an error in a former client representation. Errors do not have to be disclosed to former clients under Op. 481 or Op. 21.
[vi] “’Belief’ or ‘believes’ denotes that the person involved actually supposed the fact in question to be true.” Rule 1.0(a). “’Knowingly,’ ‘known,’ or ‘knows’ denotes actual knowledge of the fact in question.” Rule 1.0(g). Both belief and knowledge “may be inferred from circumstances.” Id.
[vii] William J. Wernz, Is Attorney Discipline a “Gotcha Game?” Minn. Law., Oct. 4, 2018.
[viii] Rule 4(c), R. Law. Prof. Resp.
[ix] In re Panel File 99-42, 621 N.W.2d 240 (Minn. 2001).
[x] SCOPE [14}; Rule 1.0(i), Minn. R. Prof. Conduct.