This blog is an expanded and modified version of a column that appeared in MINNESOTA LAWYER on September 20, 2002. On September 14, 2022, the author sent an advance copy of the article to Susan Humiston and offered to post any comment Ms. Humiston wished to make with this blog. No reply was received. However, on September 21, 2022, the author learned on making inquiry of Bench & Bar that earlier on the same date Ms. Humiston submitted an “Author’s Note” to Bench & Bar. The Author’s Note and Ms. Humiston’s article are linked at https://www.mnbar.org/resources/publications/bench-bar/2022/09/01/your-ethical-duties-in-dealing-with-unrepresented-persons The blog below has been updated to take account of the Author’s Note.
In a September 2022 column, Susan Humiston, the Director of the Office of Lawyers Professional Responsibility repeats an interpretation of Rule 4.3(d), Minn. R. Prof. Conduct, that her predecessor, Martin Cole, stated in 2015, “The rule does not require an attorney to advise an unrepresented person in all instances to secure counsel, although since Rule 4.3(c) places the obligation upon a lawyer to reasonably know if the person misunderstands the lawyer’s role, caution is advised.”[i] This statement has two problems. First, it is erroneous because there are no circumstances in which Rule 4.3(d) requires an attorney to advise an unrepresented person to secure counsel. Second, the statement, and other statements in the current column, were taken without attribution from Mr. Cole’s 2015 column.
OLPR has misinterpreted Rules 4.3(d) several times over a twenty-five year period, even after OLPR’s positions have been found to be erroneous by a Lawyers Board panel, by OLPR’s own admission, and by a Supreme Court order.
To recognize OLPR’s errors, it is important to understand what Rule 4.3(d) does and does not require. Rule 4.3(d) 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.”
The key points are (1) Rule 4.3(d) includes a “shall not give legal advice” provision; (2) but Rule 4.3(d) does not include a “shall” provision. Without a “shall” provision, Rule 4.3(d) cannot, in the nature of the case, be interpreted to require that an attorney affirmatively take any action. Rule 4.3(d) permits but does not require an attorney to advise an unrepresented person to secure counsel. Rule 4.3(d) never requires an attorney to advise an unrepresented person to secure counsel. In fact, Rule 4.3(d) never requires an attorney to do anything at all.
Ms. Humiston’s 2022 column is almost entirely correct in describing Rule 4.3(d). The column uses the heading, “No Legal Advice.” The column states, correctly, “Rule 4.3(d) prohibits an attorney from giving legal advice to the unrepresented person, except for the limited advice to secure their own legal counsel, if the lawyer knows or reasonably should know that the person’s interests conflict with the interests of the lawyer’s client.” Unfortunately, the 2022 column veers into error by repeating the 2015 column’s statement, “The rule does not require an attorney to advise an unrepresented person in all instances to secure counsel, . . ..” The import of this statement is that in some, indeed apparently in most, situations Rule 4.3(d) requires an attorney to advise an unrepresented person with adverse interests to secure counsel. The statement should be amended to, “The rule does not require an attorney to advise an unrepresented person in any instance to secure counsel.”
Ms. Humiston’s Author’s Note states, ““to clarify any potential confusion caused by the statement, “The rule does not require an attorney to advise an unrepresented person in all instances to secure counsel,” Rule 4.3(d), MRPC, permits but does not require a lawyer to advise an unrepresented person to secure counsel.”
OLPR’s Rule 4.3(d) error first occurred in 1997, when OLPR issued an admonition to an attorney for conduct including alleged violation of Rule 4.3(d), by not advising an unrepresented deponent with adverse interests that she could retain counsel. The attorney appealed. A Board panel found no violation of Rule 4.3(d) and dismissed the admonition.[ii]
OLPR’s Rule 4.3(d) error next occurred in 2015, when Mr. Cole’s column made the statement repeated in Ms. Humiston’s current column, “The rule [4.3(d)] does not require an attorney to advise an unrepresented person in all instances to secure counsel, . . ..”
OLPR’s Rule 4.3(d) error occurred a third time in a December 30, 2019, Petition for Disciplinary Action. The petition alleged that an attorney, Mulligan, represented T.N. T.N. was charged with felony possession of a gun and drugs. Mulligan interviewed T.N.’s wife, as the “possible alternate” possessor of the gun and drugs. Mulligan did not advise Ms. N. to secure counsel. Mulligan admitted all of the petition’s allegations, including, “Mulligan’s conduct in failing to advise T.N.’s wife . . . to seek counsel . . . violated. . . Rule 4.3(d).” The Minnesota Supreme Court entered an order disciplining Mulligan for violating rules including Rule 4.3(d).
The Mulligan case prompted discussion among ethics lawyers. The Director, Ms. Humiston, was advised that Rule 4.3(d) cannot be violated by a failure to advise a person of the right to secure counsel. To her credit, Ms. Humiston admitted the error and filed a Motion to Amend Order. The Motion explained, “there is no evidence in the petition that respondent gave the witness legal advice in violation of Rule 4.3(d), MRPC.” The Court issued an amended order, deleting its prior finding of a Rule 4.3(d) violation.[iii]
An article on Mulligan was titled To Err is Human . . .What Next? [iv] The article pointed out the importance of acknowledging errors and taking corrective action. OLPR succeeded admirably in this regard. The article also discussed the importance of taking steps to ensure mistakes are not repeated, “The knowledge management systems problem revealed by the Rule 4.3(d) charge is that Board precedents are not systematically saved and retrieved * * * Comprehensive, up-to-date information on important rulings is needed to avoid repeating yesteryear’s errors.” Id. The latest repetition of OLPR’s mistake, in this month’s column, raises the question of whether an effective knowledge management system has been adopted.[v]
When is it good practice – as opposed to a Rule 4.3(d) requirement – to advise a person with adverse interests to retain counsel? What types of situations often make it difficult for an attorney not to give legal advice to an unrepresented person? Those subjects are beyond the scope of this article, but both the 2015 and the 2022 OLPR columns discuss how landlord-tenant, family law, and suits against pro se parties can be particularly challenging.[vi]
This month’s OLPR column makes another serious error, namely a failure to attribute several statements made in the author’s name to their actual author, Martin Cole. The statement of the 2022 Humiston column quoted at the beginning of this article repeats the 2015 Cole column article except for one word. The 2022 column does not cite the 2015 column as the source of this statement or as the source of other sentences that it repeats from the 2015 article more or less verbatim. For example, compare:
- The 2015 Cole column: “First, Minnesota’s Rule 4.3(a) states that a lawyer shall not state or imply that the lawyer is disinterested. That last term doesn’t mean bored or uncaring; it means, as the comment to the rule explains, that a person not experienced in dealing with legal matters might incorrectly assume that a lawyer is disinterested in his or her loyalties or is a disinterested authority on the law. If the lawyer’s client’s interests are in fact adverse to the unrepresented person, a lawyer may not falsely state or imply anything to the contrary.”
- The 2022 Humiston column: “First, Minnesota’s Rule 4.3(a) forbids a lawyer to state or imply that the lawyer is disinterested. That last term doesn’t mean bored or uncaring; it means, as the comment to the rule explains, that a person not experienced in dealing with legal matters might incorrectly assume that a lawyer is disinterested in his or her loyalties or serves as a disinterested or neutral authority on the law. If the lawyer’s client’s interests are in fact adverse to the unrepresented person, a lawyer may not falsely state or imply anything to the contrary.”
The 2022 column also borrowed its basic structure from the 2015 column. Readers reasonably expect an author to tell them when words, thoughts, and structures that are presented in her name in fact originate with another author. This expectation is stronger when the author is the state’s chief legal ethics officer and she is writing about the ethical obligations of attorneys. The Cole column was speaking in a distinct authorial voice in explicating the meaning of “disinterested.” That voice belongs to its author.
Mr. Cole stated his views in his pointedly titled column, I Wrote This Article Myself, Bench & B. of Minn., July 1993. The column described several instances of attorneys recycling others’ work without attribution. Mr. Cole’s 1993 column concluded, “I can truthfully state that I wrote this article myself. It is a matter of professional responsibility that all lawyers always be able to say the same.”
It is again time to ask: “To err is human. What next?” It is also time to ask two more questions: When will OLPR have a knowledge management system that prevents repeatedly making the same mistake? Do we agree with Mr. Cole that it is a matter of professional responsibility that all lawyers should cite their sources, use quotation marks to denote others’ words, and be able to say – without substantial qualification – “I wrote this article myself?”
Ms. Humiston’s Author’s Note states, “This article is an update of Martin Cole’s 2015 article entitled “Dealing with Unrepresented Persons,” published in Bench & Bar in July 2015, and available on our website at lprb.mncourts.gov, as are all prior articles written by this Office. My failure to highlight that fact and provide the appropriate attribution was an error, which I regret. Thank you to Mr. Cole for graciously accepting my apology for this mistake.” Readers may judge for themselves whether “update” is a word that accurately describes the degree of duplication exemplified above.
The following has been added to the column originally published in MINNESOTA LAWYER.
Perhaps for clarity Rule 4.3(d) could be amended to state, ““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, except that a lawyer may give to the unrepresented person 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.”” The amendment would perhaps prevent the erroneous interpretation that Rule 4.3(d) sometimes requires a lawyer to give the advice to secure counsel.
However, even with clarification there are inherent tensions in Rule 4.3(d) applications. One tension is that the adverse party who most needs independent counsel may be the same person whom the lawyer’s client least wants to have counsel. In the Mulligan case discussed above, T.N.’s wife very much needed counsel if she was inclined to tell T.N.’s lawyer that she was the actual possessor of the guns and drugs. However, if she had counsel, she would be advised not to give T.N.’s lawyer or anyone the incriminating information. Although Rule 4.3(d) does not forbid T.N.’s lawyer from advising T.N.’s wife of her right to counsel, the lawyer’s duties to T.N. may preclude giving such advice to T.N.’s wife.
The author was once asked to opine on a Rule 4.3(d) issue involving an in-house lawyer who was tasked with conducting an internal investigation. Among the persons to be interviewed were managerial employees with whom the lawyer had dealt as client representatives. In such situations, Rule 4.3 makes it extremely important for the lawyer to make clear that the lawyer represents only the organization, and not the interviewees; that the interviewees and the organization have adverse interests; and that the lawyer cannot give legal advice. Rule 1.13(e) restates the duty to make clear the identity of the lawyer’s client or clients. Because of the possibility of later dispute about what was said, it may be best that these clarifications be made both orally and in writing.
An interviewee may say something like, “I know you have to say that, but I know you’ll look out for me.” Again, the lawyer must disabuse the interviewee of any such understanding. Or the interview may ask, “Do I need my own lawyer?” Under Rule 4.3(d) the lawyer may answer this question “yes,” but the lawyer may not answer “no.”
The organizational representative who is giving instructions to the in-house lawyer may say, “You are specifically instructed not to advise any interviewee that they may or should retain counsel.” As a general principle, lawyers must either follow client instructions or withdraw from representation. There are some circumstances that are so much a part of a lawyer’s professional discretion that the lawyer should not follow client instructions. For example if the client is a lay person and attempts to instruct the lawyer regarding objections to testimony at trial, I believe the lawyer may refuse to follow instructions. Withdrawing from representation may not be a realistic option during trial. Similarly, if the client instructs the lawyer to engage in unethical or abusive tactics, the lawyer may refuse.
A second tension arises in comparing the prohibition on giving advice in Rule 4.3(d) with the permission to give an “evaluation” or “information” in Rule 2.3(a), which provides, “(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client.” Comment 2 to Rule 2.3 states, “Such an evaluation may be for the primary purpose of establishing information for the benefit of third parties; for example, an opinion concerning the title of property rendered at the behest of a vendor for the information of a prospective purchaser, or at the behest of a borrower for the information of a prospective lender.” At a client’s behest, lawyers often render opinions of counsel to non-clients. There are various ways of attempting to square this accepted practice with Rule 4.3(d). It could often be said that buyer and seller, or lender and borrower, have a commonality of interest, rather than adverse interests, in good title. Another approach is suggested by Comment 2 above – that the lawyer is providing “information,” rather than advice. Perhaps this approach can be used where the information being given to the underrepresented person is an indisputable and well-known principle of law, or a clear application of law to fact, or some trivial point. “Information” is not, however, a sufficiently elastic concept to fit all situations. “Evaluations” for third parties are often expressly labeled “opinion,” rather than “information.”
Another inherent tension is that in some situations it appears that Rule 4.3(d) may forbid giving legal advice to unrepresented parties, yet it seems to make sense for a lawyer to respond in some helpful way to an unrepresented party’s requests regarding simple points of law that are not subject to dispute. As described in both the Cole and the Humiston articles, such issues frequently arise when dealing with unrepresented persons who are not accustomed to dealing with legal situations. The articles also note that, as a matter of common law, an attorney-client relationship can be created where the lawyer provides legal advice to an unrepresented party and the party reasonably relies on it.[vii] Giving helpful responses about simple points of law may seem especially practical in business dealings in which the adversity of interests is less than in litigation.
Over a century ago, in confirmation proceedings in the U.S. Senate for his nomination to the Supreme Court, Louis Brandeis said that he sometimes provided services as “counsel for the situation.” Brandeis in effect purported to avoid conflicts by making “the situation” play the role of client. Some ABA leaders opposed confirmation on the grounds that Brandeis had engaged in impermissible conflicts of interest. The Rules of Professional Conduct have generally sided with the ABA by making it clear that lawyers represent clients rather than situations.
Although the Brandeis approach appears no longer acceptable, lawyers have developed other approaches that avoid Rule 4.3(d) violation while also responding to simple questions. Lawyers sometimes preface a response to an unrepresented party’s inquiry with words such as, “I cannot give you advice, but our position is . . ..” The suitability of this approach depends on the context and the statement of legal position. A lawyer might say to a deponent, “I cannot advise you, but our position is that the law provides for sanctions when a deponent does not answer a question that is likely to provide or lead to relevant evidence.” Or a lawyer might say to an unrepresented party to a transaction, “I cannot advise you, but our understanding is that in order for this deal to be finalized, filings must be made with the following offices, . . ..”
Another important point regarding Rule 4.3(d) is that it is often in the client’s interest that an unrepresented adverse party be advised that they may or should retain counsel. An unrepresented party may be more likely to seek to undo a deal if the party did not understand the terms or consequences of the deal. A deal may have serious tax or other consequences that are unknown to an unrepresented party but will become painfully clear afterwards. The lawyer’s client may desire that a win-win transaction be effectuated but the unrepresented party may not know how to articulate their own interests.
There are, in short, many issues and some gray areas in how and when Rule 4.3(d) may be applied. What is not in doubt, however, is that Rule 4.3(d) does not ever require a lawyer to advise an unrepresented adverse party to secure counsel. Thankfully, OLPR has again acknowledged this basic principle.
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[i] Susan Humiston, Your Ethical Duties in Dealing with Unrepresented Persons, Bench & B. of Minn., Sept. 2022; Martin A. Cole, Dealing With Unrepresented Persons, Bench & B. of Minn., July 2015. The 2022 and 2015 statements are identical, except the word “certainly” was deleted from the 2022 version.
[ii] Minnesota Lawyers Board Panel File No. 97-2. The author represented the respondent attorney. The case is discussed further in William J. Wernz, Minnesota Legal Ethics 12th ed. (2022), at 1117, 1119.
[iii] In re Mulligan, 938 N.W.2d 806 (Minn. 2020). The OLPR website erroneously omits this order, and instead provides a link to the December 30, 2019 order that was vacated.
[iv] my.mnbar.org blog, William J. Wernz, To Err is Human. What Next? (June 26, 2020). William J. Wernz, Quandaries & Quagmires: To Err is Human. . . What Comes Next? Minn. Law., Feb. 5, 2020.
[v] Because in the Mulligan case the Director and the Court in effect acknowledged their error in interpreting Rule 4.3(d), it appears unnecessary here to cite authorities supporting the rule’s correct interpretation.
[vi] These topics and citations to Rule 4.3(d) authorities will appear in an expanded version of this article, to be posted as one of the author’s blogs on the MSBA website at http://my.mnbar.org/blogs/william-wernz
[vii] Togstad v. Veseley, Otto, Miller & Keefe, 291 N.W.2d 686, 696 n.4 (Minn. 1980). The consequences of unknowingly creating such a relationship can be catastrophic for the attorney. See Gillespie v. Klun, 406 N.W.2d 547 (Minn. Ct. App. 1987) (punitive damages and emotional distress damages awarded against attorney who was found to represent opposing parties).