FIVE NEW CHAPTERS
- New chapters of Minnesota Legal Ethics have been posted, covering Rules 1.2, 1.6, 3.1, 4.2, 4.3 and 4.4. The treatise has grown to 572 pages. Request your copy by clicking here.
- When completed, Minnesota Legal Ethics may top out at 1,000 pages! Publication of additional chapters is planned, roughly, for March 2012. At or about that time, the materials in monthly blog posts will be integrated into the treatise.
UPDATES
1.9(a) - Defining “Substantially Related” for Former Client Conflicts
A recent Lawyers Board determination adopted, from the Restatement of the Law Governing Lawyers, a definition of “substantially related” matters. The “substantially related” test is used in Rule 1.9, to define conflicts of interest arising in representations adverse to former clients. The Restatement test applied by a Board member covers a narrower range of cases than the definition the Office of Lawyers Professional Responsibility (OLPR) has been using. OLPR will now presumably consider whether to relax its standards to comport with those of the Restatement (which OLPR generally follows) and a Board member.
Board Determination
The determination was issued by an individual Board member, reviewing a complainant appeal of an OLPR Determination That Discipline is not Warranted. The determination stated, “[O]n the surface, it would appear that the two matters are at least substantially related - same parties, same property, same general objective. . .. However, Rule 1.9(a) is analyzed under principles articulated in the Restatement (Third) of The Law Governing Lawyers § 132, comment d. Applying those principles here, the key questions are whether the Respondent was attacking his own work against his former client, or whether there is a substantial risk of misuse of confidential information of the former client. Here, . . . it does not appear that any confidential information . . . was actually transmitted to Respondent during the course of his representation [ of X, the client in the first matter]. Further, it does not appear from this record that Respondent was taking inconsistent positions in the two litigations with respect to interests in the Property or that Respondent was otherwise attacking his own work with respect to [X]. On this record, there is insufficient evidence to meet the clear and convincing evidence standard to find that the two matters were truly "substantially related" applying the principles set forth in the Restatement. Accordingly, the Director's determination that discipline is not warranted is Affirmed.” Oct. 6, 2011 letter of Lawyers Board member.
OLPR Position
As noted in Section VI.F. of the chapter of Minnesota Legal Ethics on Rule 1.9, an article by the OLPR Director states that only in “unique,” or at least unusual, circumstances may a lawyer who represented spouses in their estate planning representing one spouse against the other in a divorce. However, under Restatement § 132, cited by a Board member, and under Rule 1.9 cmt. 3, such divorce representations ordinarily would be permitted. The prior joint representation would ordinarily eliminate confidentiality considerations. A divorce lawyer would ordinarily not be attacking prior estate planning work product.
Clarification
One clarification of the Restatement is in order, both as to the Board determination and as to the treatise. Although Restatement § 132 cmt. (d)(ii) is captioned, “Attacking a lawyer’s own former work product,” the principle stated in the comment is somewhat broader. The comment states, “A matter is substantially related if it involves the work the lawyer performed for the former client.“ The work might be “involved” as coming under “attack,” or in some other substantial fashion, e.g. controversy in a divorce about interpretation of estate planning documents drafted by the lawyer. Id.
3.1, 4.4, 8.3 – Threats of Criminal Prosecution/Ethics Complaints
A recent article essentially restates OLPR positions that, in some circumstances, a lawyers’ threats either of criminal prosecution, or of an ethics complaint, against adverse counsel can violate Rules, including Rules 3.1, 4.4, 8.3 and 8.4(d). Patrick R. Burns, Limits on Threats of Criminal Prosecution, MINN. LAW., Oct. 10, 2011 at 5. Regarding threats of ethics complaints, however, the article does not take account of amendments to Rule 8.3(c) that make the reporting of almost all misconduct by other lawyers optional. Explanation of this point can be found both in the new chapter of this treatise on Rule 1.6 and in a leading commentary, 2 Geoffrey C. Hazard Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering § 64.8, at 64-23 (3d ed. Supp. 2009).
Discipline Defense and “Extraordinary Stress” - In re Fairbairn, 2011 WL 4056183(Minn. Sept. 14, 2011) Redux
The Case and the Record
Last month’s blog reported that in Fairbairn, the court substantially reduced otherwise appropriate discipline, due to factors including the respondent lawyer’s “extraordinary stress.” The author has now examined portions of the record, to learn more about what might so clearly amount to “extraordinary stress,” that it would be plain error to think otherwise. The relevant portions of testimony and briefing are very short. The court did not require proof of causal connection between stress and misconduct.
A “Powerful Medication” – Coumadin
One of Fairbairn’s extraordinary stressors was taking what the court called, “powerful medications that could be dangerous if taken incorrectly.” Respondent’s main medication was Coumadin, one of the brand names for Warfarin, the most commonly prescribed anti-coagulant.
Another Extraordinary Stressor – Care-Giving and “A Drink”
Another extraordinary stressor found by the court was being, “required to take care of her daughter and infant grandchild unexpectedly.” The record indicates, however, that respondent and her daughter planned that respondent would visit immediately after the birth. T. 216. Expectation of the birth apparently was not stressful – respondent testified the news was “exciting” and she was expecting “nice things” and “great things.” Id. The daughter’s C-Section was the occasion for respondent caring for both daughter and grandchild. Testimony does not appear to include the number of days of care-giving. The care-giving caused fatigue, because the baby did not sleep through the night. So far, “extraordinary” stress does not appear evident. Fairbairn testified she had “a drink,” apparently to get back to sleep. The drink was contraindicated due to medications. T. 217. Testimony did not include the quantity or nature of the drink, nor whether the drink actually caused any physical problem. In any event, the duration of care-giving was presumably a small fraction of the thirteen months of respondent’s intentional misappropriation of client funds.
Future Cases
The court found clear error when its referee did not find factors including those above to be mitigating. In effect, the court found clear error (1) for not taking respondent –whose license was suspended for her dishonest misappropriations – at her word; and for (2) for not regarding the above circumstances as “extraordinary.” Future referees will apparently be bound to deem assertion of such factors as “extraordinary stress,” rather regard them as unusual over-reactions to life’s ordinary problems. In any event, respondent lawyers may be expected to assert extraordinary stressors early and often. Arguments and determinations may be expected regarding which of life’s problems produce “extraordinary stress,” either because they are objectively such or are subjective experienced as such, by someone who is extraordinarily susceptible to stress.