UPDATES
RULE 4.2
Minnesota Legal Ethics provides a critical discussion of ABA
Formal Opinion 11-461 (2011), titled “Advising Clients Regarding Direct Contacts with Represented Persons.”
Id. at 495-8. This discussion referred to an article expected to be published by Martin Cole, stating the position of the Office of Lawyers Professional Responsibility regarding Op. 11-461. That article has now been published: Martin A. Cole,
Scripting Contacts with Unrepresented Persons, BENCH & B. OF MINN., Nov. 2011. The article states, “It has long been the position of the Director’s Office and its interpretation of Rule 4.2 that an attorney
may initiate the idea of the client contacting the adverse party directly but
may not script any such communication or draft an agreement to be presented to the adverse person, even at the client’s request. The latter level of involvement is perceived as an “end run” on the protections of Rule 4.2 and thus has been found to violate the rule and can subject the attorney to discipline. Therefore, with the approval of the Lawyers Board, the Director’s Office intends to not follow ABA Formal Opinion 461, at least to the extent it authorizes an attorney to script a communication or draft an agreement for the client to present to a represented adversary. “
Id. Notarizations
For nearly 35 years, Minnesota lawyers have been disciplined frequently, publicly and privately, for causing documents to be notarized improperly. See, e.g., In re Finley, 261 N.W.2d 841 (1978). OLPR has twice published an article that guides lawyers in proper notarizations: Patrick R. Burns, Notarization of Signatures, MINN. LAW., Oct. 7, 2002 and June 4, 2007. The article states, “So what exactly is required when notarizing a document? It is not that hard.Minnesota Stat. Chap. 358 and Chap. 359 deal with notaries, seals, oaths, and acknowledgments. The standards of conduct for notarial acts are specifically set forth in Minn. Stat. sec. 358.42 and sec. 359.085.” Id. (emphases added). Mr. Burns’ article is helpful but not entirely comprehensive.
In a dismissal of a case on November 11, 2011, OLPR cited a source that does not appear in Mr. Burns’ article, namely the Notary Commission Guide from the Minnesota Secretary of State. However, the Guide states standards of propriety that are not found in the statute. Moreover, some of the standards found both in the statute and the Guide are apparently regarded by OLPR as not rising to the level of discipline standards. For example, notarizations should be preceded by an oath (“sworn to before me”), but there are no reported disciplines for omitting the oath and such omissions are not uncommon.
The November 11 dismissal pertained to a lawyer whose legal assistant notarized documents before they were signed, expecting them to be signed by clients when the clients appeared in the lawyer’s office. The dismissal explained, “The Director has concluded that respondent’s notarization practices, while not consistent with the Minnesota Statutes regarding notarization, as interpreted by the Secretary of State's handbook, do not rise to a level constituting a violation of the Rules of Professional Conduct identified above. Among the factors leading the Director to this conclusion are that (1) respondent has since changed his notarization practices to comport with the process described in the Secretary of State's interpretative handbook, (2) the notary who pre-signed the documents was present at the meetings and (3) the ... documents respondent prepared for complainants were ultimately not used and were provided to complainants.”
CORRECTION
RULE 4.4
Minnesota Legal Ethics fails to note a reversal on appeal. The treatise states, “
Fieger v. Michigan Supreme Court, E.D. Mich., Civ. No. 06-11684, Sept. 4, 2007, 2007 WL 2571975. Michigan Rules of Professional Conduct forbidding “undignified or discourteous” conduct toward a tribunal and mandating treating all persons with “courtesy and respect” were found to violate the First Amendment, as vague and overbroad.”
Id. at 562. However, the above District Court determination was reversed on appeal.
Fieger v. Michigan Supreme Court, 553 F.3d 955 (6
th Cir. 2009).