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Quandaries & Quagmires: Professional competence as an ethics obligation

By William Wernz posted 06-29-2022 13:26

  
This blog was originally published as William J. Wernz, Professional Competence as an Ethics Obligation, Minn. Law., June 29, 2022.

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A brochure of the Office of Lawyers Professional Responsibility (OLPR) informs persons considering complaints, “Lawyers, like other professionals, sometimes make mistakes. A lawyer might handle a matter in a way that is inadequate but not unethical. … Most malpractice and inadequate performance matters are not handled by the Office of Lawyers Professional Responsibility.”i For many years, OLPR has generally dismissed complaints of isolated mistakes and has charged Rule 1.1 (“Competence”) violations only
for “mistake plus” shortcomings. For example, a lawyer who drafted a deed was admonished for (a) relying on his client’s obviously erroneous title description and (b) refusing to correct the deed unless he was paid additional fees.ii However, lawyers should understand that Rule 1.1 is becoming an important ethics subject in several ways they might not expect.

Cultural and language competence

ABA Formal Opinion 500 (2022), titled “Language Access in the Client-Lawyer Relationship,” deals with a lawyer’s ethics responsibilities to a client who speaks a language different from the lawyer’s. Op. 500’s main subject is the lawyer’s duty to engage a translator who is proficient in both languages and can also translate relevant legal concepts. If, say, a client’s family member has a good command of the lawyer’s and the relative’s languages, but lacks understanding of legal concepts, Op. 500 opines that the lawyer must find a translator who understands both relevant languages and law.

Op. 500 also opines, “The duty of competence requires close attention to social and cultural differences that can affect a client’s understanding of legal advice, legal concepts, and other aspects of the representation.” According to Op. 500, Rule 1.1 requires lawyers to consider seven specific aspects of cultural differences, including identifying such differences and “paying attention to implicit bias and other cognitive biases that can distort understanding.”

The OLPR director has summarized Op. 500 with favor. The director characterizes Op. 500’s views on cultural competence as “intriguing.” The director reports that Op. 500 “recommends” cultural competence, but in fact Op. 500 describes what Rule 1.1 “requires.”iii

Cultural competence issues can be found without language differences. The Minnesota Supreme Court found that a Lawyers Board panel clearly erred in recommending against reinstatement of a lawyer who explained, but did not justify, his misconduct by referring to the differences between norms of the Oromo culture in which he grew up and standards for Minnesota lawyers. The court referred to “culture” 21 times in its opinion.iv

Op. 500 and OLPR appear to set the bar higher than current practice both for suitable translators and for cultural competence. Who will pay for the enhanced quality? Normally, clients pay for outside service providers. If the client is unable to pay, may the lawyer provide services with a client’s family member translating,
even though that person does not understand legal concepts well? Op. 500 advises, “if obtaining necessary services would place an unreasonable financial burden on the lawyer or the client or if necessary services are unavailable, the lawyer should ordinarily decline or withdraw from the representation . …” My own view is that where the client’s goal is reasonably standard and straightforward — avoiding eviction or incarceration, obtaining a governmental or insurance benefit, etc. — the client and lawyer should be free to decide whether the lawyer can, with the help of a family or friend translator if needed, provide services beneficial to the client.

An express objective of the OLPR/Lawyers Board Strategic Plan is to “Promote access to justice and public choice in the availability and affordability of competent legal services.” Will following the high standards of Op. 500 promote access to justice or might it have the opposite effect? Would a poor client be better off with no representation or with a representation in which, for example, a family member translates but the family member’s understanding of legal concepts is imperfect? Will having to meet numerous, demanding cultural competence criteria deter lawyers from serving diverse clients? Op. 500 and the director’s article about Op. 500 do not address these important questions.

Technological competence

In the period 2010-15, through several developments, the duty of competence was expanded to include technological competence.

The Lawyers Board amended Opinion 19, “Using Technology to Communicate Confidential Information to Clients.” Op. 19 finds use of email and cellphones compatible with confidentiality obligations. Op. 19 opines, “When the lawyer knows, or reasonably should know,” that a client or other person is using an insecure means to communicate with the lawyer about confidential client information, the lawyer shall consult with the client about the confidentiality risks associated with inadvertent interception and obtain the client’s consent.” Op. 19 in effect holds all lawyers to a standard of what a lawyer “reasonably should know” about security risks of various communication modes.

The Lawyers Board issued Opinion 22, “A Lawyer’s Ethical Obligation Regarding Metadata.” The heart of the opinion is that a lawyer’s duty of competence and confidentiality “extends to and includes metadata in electronic documents.” Op. 22 has a lengthy comment, with helpful guidance, including basic points, “Metadata can be “scrubbed” or removed from an electronic document by various means, including the use of special software programs or by scanning a printed copy of the document and sending it in a PDF format.”

The court disciplined a lawyer for not responding to electronic CM/ECF notices and orders. Citing two grounds, the court rejected the lawyer’s excuse that she had computer phobia: First, she did not suffer from a computer phobia, but rather had an “indifference to computers exhibited by many persons in the general
population.” Second, even if she had computer phobia, she could have avoided problems by assigning a competent person to computer operations.v

An OLPR article opined, “[A]n attorney must have at least a baselevel comprehension of the technology and the implications of its use. While no attorney is required to know precisely how cutting-edge technology truly works or be a computer genius, the competence requirements of the Rules necessitate at least a cursory understanding of any technology used if for no other reason than to enable an attorney to effectively communicate to a client the pros and cons of its use in the representation.”vi

In 2015, Comment 8 to Rule 1.1 was adopted, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, . …”

More competence applications

Violations of the competence rule have often been charged in tandem with other rule violations. For example, if a lawyer files frivolous pleadings, the lawyer will violate both Rule 3.1 (“Meritorious Claims and Contentions”) and Rule 1.1. As the court explained, “In fact, contrary to MacDonald’s position, the Minnesota Rules of Professional Conduct specifically recognize an attorney’s obligation to exercise reasonable care before making claims during the course of litigation, emphasizing that competency ‘includes inquiry into … the factual and legal elements of the problem’ and that lawyers need to ‘inform themselves about the facts of their clients’ positions.’”vii OLPR has stated that Rules 1.1 (competence), 1.3 (diligence), and 1.4 (communication) are the “cornerstones of any solid attorney-client relationship.”viii

A variation on the application of Rule 1.1 and another rule is found in a pending petition for disciplinary action. The petition alleges, “Respondent’s conduct in engaging in explicit sexual conversations with LD [a divorce client], including contemporaneous efforts to meet in person, caused a personal conflict of interest in violation of Rule 1.7(a)(2) . . ..” The petition also alleges, “His failure to recognize that this conduct would result in a conflict of interest violated Rule 1.1, MRPC.”ix The allegation is based on a lawyer’s boundary violation — mixing his sexual interest in a divorce client with his work. Thus, the lawyer’s emails to his client contained both legal advice and sexual innuendo, putting the attorney-client privilege at risk. Adding a failure-to recognize competence charge in some cases could be piling on, but here the lawyer’s obtuseness may well have justified the charge.

Another unusual application of Rule 1.1 is found in a case where a lawyer, Dedefo, appeared pro se – or anti se, as it turned out. When defendants attempted to obtain discovery of the factual basis for Dedefo’s claims, Dedefo made work product objections, without any legal basis. The court concluded, “that Dedefo’s conduct at the deposition was both incompetent and obstructive. ...”x

In sum, Minnesota lawyers should know that Rule 1.1 is being applied more broadly than ever before.

William J. Wernz is the author of the online treatise, “Minnesota Legal Ethics.” He has been a member of the Board on Judicial Standards, and he has served as Dorsey & Whitney’s ethics partner and as Director of the Office of Lawyers Professional Responsibility.


End notes

i http://lprb.mncourts.gov/complaints/Pages/FileComplaint-English. aspx (last visited June 1, 2022).

ii Kenneth L. Jorgensen, Summary of Admonitions, Bench & B. of Minn., Mar. 2005.

iii Susan Humiston, ABA Opinion 500 Takes on Language Access in the Client-Lawyer Relationship, Bench & B. of Minn., March 2022.

iv In re Dedefo, 781 N.W.2d 1 (Minn. 2010).

v In re Waite, 782 N.W.2d 820 (Minn. 2010).

vi Joshua H. Brand, The Ethics of Cloud Storage, Minn. Law., Jan. 2, 2012.

vii Minn. R. Prof. Conduct 1.1 cmt. 5; Minn. R. Prof. Conduct 3.1 cmt. 2. In re MacDonald, 906 N.W.2d 238, 246 (Minn. 2018).

viii Martin A. Cole, A Lawyer Shall … , Bench & B. of Minn., Sept. 2007.

ix In re Winter, File No. A21-0831 (Minn.). (Pending).

x In re Dedefo, 752 N.W.2d 523 (Minn. 2008).
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