Legal Ethics

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To Err is Human. What Next?

By William Wernz posted 06-26-2020 11:20

  

A familiar legal ethics maxim is, “We all make mistakes.  What matters is what we do next.”  All too many attorneys have turned manageable problems into catastrophes by refusing to recognize errors or trying to cover them up.  Other attorneys have corrected the errors, but failed to correct a system’s deficiency that helped cause the error.

The Office of Lawyers Professional Responsibility has provided a model for recognizing and correcting errors.  On January 24, 2020, OLPR filed a motion asking the Minnesota Supreme Court to correct a disciplinary order by deleting findings that a lawyer had violated Rules 3.7(a) (the advocate-witness rule) and 4.3(d) (no advice to unrepresented adverse party).[i]  The errors and corrections are worth examining.

OLPR’s petition for disciplinary action alleged that an attorney, Mulligan, represented T.N.  T.N. was charged with felony possession of a gun and drugs.  Mulligan interviewed the wife of T.N., as the “possible alternate” possessor of the gun and drugs.  Mulligan did not bring a note-taker to the interview.  Mulligan did not advise Ms. N. of T.N.’s adverse interests, nor did Mulligan advise Ms. T.N. to secure counsel.

In a standard stipulation with OLPR, Mulligan admitted all of the petition’s allegations, including, “Mulligan’s conduct in failing to advise T.N.’s wife . . . to seek counsel regarding her possible testimony during T.N.’s trial violated. . . Rule 4.3(d).”  Rule 4.3 provides, “In dealing on behalf of a client with a person who is not represented by counsel: . . . (d) a lawyer shall not give legal advice to the unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of the unrepresented person are or have a reasonable possibility of being in conflict with the interests of the client.”

 Some may think that a lawyer should advise an unrepresented person to secure counsel before the lawyer elicits an admission of guilt to a felony. A divided Eighth Circuit panel showed such concerns.[ii]  A defendant alleged ineffective assistance of counsel because standby defense counsel advised a possible alternate possessor of drugs to secure counsel.  Two judges affirmed the conviction, reasoning that counsel, “was permitted – and arguably obligated” to give such advice.  A third judge dissented, “interpreting the rule in the way that the court does leads to the extraordinary conclusion that a lawyer has an ethical duty to act in a way that is contrary to the duty of loyalty that he owes to a party . . ..”

There is, however, clear error in interpreting Rule 4.3(d) to discipline a lawyer for not advising an unrepresented, adverse party to secure counsel.  Such an interpretation has textual, practical, and knowledge management systems problems.

The textual problem is that Rule 4.3(d) does not command a lawyer to take any action – it does not have a “shall” provision.  The rule does not mandate that a lawyer give the advice to secure counsel, or any advice at all.  Instead, the rule is prohibitory - a lawyer “shall not give legal advice” to an unrepresented person with adverse interests.  This prohibition has one exception –the lawyer may give “the advice to secure counsel.”  The rule permits but does not require the lawyer to advise the unrepresented adverse party to secure counsel. 

The practical problem if one reads “shall” into Rule 4.3(d) is that the rule will have extremely broad, surprising, and undesirable applications. For example, transactional lawyers would be required to advise unrepresented persons on the other side of deals that they should secure counsel.  OLPR and the rules themselves find directly adverse conflicts in ordinary transactions such as buy/sell or lend/borrow.[iii]  Transactional lawyers would be subject to discipline for doing what they have always done – negotiating and closing deals with unrepresented parties, without warning them to retain counsel.

The knowledge management systems problem revealed by the Rule 4.3(d) charge is that  Board precedents are not systematically saved and retrieved.  In 1997, OLPR issued a Rule 4.3(d) admonition to a lawyer who conducted a deposition of an unrepresented adverse witness but did not begin the deposition by advising the deponent to secure counsel.  The lawyer appealed and a Board panel reversed.[iv]  OLPR likely would not have made the Rule 4.3(d) pleading error in Mulligan if the OLPR/LPRB knowledge management systems included synopses of important Board Panel cases.  OLPR publishes summaries of some important private disciplines, but rarely makes note of discipline dismissals, even when they decide an important issue.[v]  

Comprehensive, up-to-date information on important rulings is needed to avoid repeating yesteryear’s errors.[vi]  Whether OLPR’s errors resulted from lack of information, failures to spot issues and consult authority, or failures of reasoning is unknown. 

The second charging error in Mulligan was an alleged violation of Rule 3.7(a), “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless . . ..”  The exceptions to Rule 3.7(a) are not relevant here.  

Mulligan acted imprudently and in violation of ethics rules other than Rule 3.7 when he interviewed Ms. T.N. without a note-taker. In many situations, a lawyer should communicate with a potential witness only through an investigator, or with a note-taker present, or by making a recording.  The lawyer who does not take precautions risks becoming disqualified as an advocate because the lawyer has become a necessary witness.

However, lawyers often interview witnesses without a note-taker and often they have a good reason.  They may expect the witnesses to be friendly and consistent.  They may expect the case to settle.  The client may not be able to pay a note-taker.  The witness may unexpectedly contact the lawyer and the lawyer may have no second opportunity for interview.  If the lawyer becomes a witness, another lawyer in the firm may act as advocate, unless the testimony will be adverse to the firm’s client.

The petition alleged Mulligan’s conduct, “in interviewing T.N.’s wife as a potential trial witness without a third person present violated Rules 1.1, 3.7(a) and 8.4(d).”  However, Rule 3.7(a) applies only “at a trial,” not in a pre-trial interview.  The petition failed to allege facts that made it “likely” that Mulligan would be a “necessary witness” at T.N.’s trial.  Mulligan would have been a necessary witness only if Ms. T.N. admitted to Mulligan that she possessed the gun or drugs but then recanted.   

Even without the erroneous charges of Rule 3.7(a) and 4.3(d) violations, Mulligan’s misconduct warranted the discipline ordered.  This article does not summarize the full range of Mulligan’s conduct.

It appears that, as a summary disposition, Mulligan is not precedential in its original or corrected form.  “[S]ummary dispositions ‘have no precedential value because they do not commit the court to any particular point of view,” doing no more than establishing the law of the case.”[vii]  To the best of my memory, the Court does not customarily cite as precedent discipline orders that it enters pursuant to stipulation and without opinion.[viii] 

The Court carefully reviews the disciplines recommended in all cases, including stipulations between the Director and respondent attorneys.  Not infrequently, the Court orders briefing from the parties to ensure consistency of the recommended discipline, precedent, and non-precedential discipline orders.

In cases involving stipulated recommendations for discipline, the Court, OLPR, and respondent attorneys may not always give exacting scrutiny to all allegations of rule violations.  The main concern is normally the recommended discipline.  Another concern is whether the alleged conduct violated some ethics rule.  Many respondent attorneys are unrepresented and are not knowledgeable regarding the rules.

However, every alleged rule violation is important.  The allegations state OLPR’s positions.  If the allegation is adopted in a discipline order, it has the Court’s approval, even if the approval is not precedential.

OLPR might have regarded the mistakes in the Mulligan petition as inconsequential.  Instead, OLPR did the right thing by seeking the Court’s correction.  OLPR thereby provided a good example.  If OLPR has considered whether its errors resulted from inadequacies in systems or resources, its good example will be complete.

OLPR’s good example is timely.  At its January 31 meeting, the Lawyers Board will vote on amendments to Board Opinion 21, dealing with client notification and conflict issues when a lawyer commits a material error. 

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[i] Motion for Amended Order, In re Mulligan, File No. A19-1932 (Minn. Jan. 24, 2020).

[ii] U.S. v. Gutierrez, 351 F.3d 897 (8th Cir. 2003)

[iii] Martin A. Cole, Direct Adversity Conflicts, Bench & B. of Minn., Oct. 2010 (citing Rule 1.7 cmt. 7).

[iv] Minnesota Lawyers Board Panel File No. 97-2.  I represented the respondent attorney. 

[v] If it is thought that the rule requiring expungement of dismissals prohibits such record-keeping, amendment of the rule should be sought.  Rule 20(e), R. Law. Prof. Resp.

[vi] A synopsis of Board Panel File No. 97-2 can be found in Minnesota Legal Ethics (9th ed. 2019) at 1053.  The ABA/BNA Lawyers’ Manual on Professional Conduct Practice Guide on Rule 4.3 likewise cites authority holding that Rule 4.3 does not require a lawyer to advise an unrepresented person to secure counsel.

[vii] Rogers v. COMPASS AIRLINES, Inc., 920 N.W.2d 835 (Minn. 2018), citing Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn. 1982).

[viii] To the best of my memory, OLPR also generally refrains from citing orders pursuant to stipulation as authorities.  However, in a 2016 case, OLPR cited In re Fink, File A08-1534 (Minn., Sept. 25, 2008) as its leading authority.  In re Olson, File No. A16-0280, (Minn., Sept. 9, 2016). 

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