CORRECTION
An early version of the March 2012 Minnesota Legal Ethics Update incorrectly stated “As explained in the chapter of this treatise on Rule 1.9, if the comments to Rule 1.9 are taken into account, as OLPR will do, representation of joint clients, followed by representation of one client against the other in the same matter, will not violate Rule 1.9, where there is no confidential information as between the clients.” The phrase “in the same matter” was incorrect. A correct statement is, “As explained in the chapter of this treatise on Rule 1.9, if the comments to Rule 1.9 are taken into account, as OLPR will do, representation of joint clients, followed by representation of one client against the other in a matter which is not the same, but is related, will not violate Rule 1.9, where there is no confidential information as between the clients.” Thanks to Eric Cooperstein for spotting the error.
UPDATES
OLPR DISCRETION AND PROCEDURES
A. Discipline for “Innocent” and “Technical” Violations. The Office of Lawyers Professional Responsibility (OLPR) exercises considerable discretion in determining whether to impose discipline. Consider two examples. On one hand, as noted in more detail in the March 2012 update, even “well-intentioned” conduct, and conduct involving an “innocent oversight,” can result in discipline, “regardless of how technical it may seem.” Martin A. Cole, Summary of Admonitions, BENCH & B. OF MINN., Feb. 2012; Siama Chaudhary, An Overview of the Disciplinary Process, MINN. LAW., March 7, 2011.
B. No Discipline for Some Violations – Three Factors. On the other hand, a recent disposition by OLPR explained that in some case a Rule violation does not warrant any discipline. “Rule 8, Rules on Lawyers Professional Responsibility (RLPR), provides a variety of ways in which a complaint may be resolved. A determination that discipline is not warranted may be issued upon the Director's conclusion that such resolution is appropriate. Rule 8(d)(1), RLPR. The Director may issue an admonition if the lawyer's conduct was unprofessional, but of an isolated and non-serious nature. Rule 8(d)(2), RLPR. Nothing in the rules requires the Director to issue discipline whenever misconduct is established. In this matter, there is evidence that respondent committed a violation. However, the Director declines to issue discipline due to three factors. First, neither of respondent's clients submitted a complaint, nor did the court. Second, respondent self-reported, and it is unlikely that the Director would have discovered the misconduct without such action. Third, respondent obtained an advisory opinion prior to engaging in the conduct, a step that the Director's Office regularly encourages lawyers to do. Although the extent to which respondent actually relied upon the opinion in shaping his conduct is questionable, the Director elects not to pursue this matter where an Office opinion is at issue. Therefore, pursuant to his discretion according to Rule 8, RLPR, the Director declines to issue discipline.” Again, Eric Cooperstein is to be thanked for this contribution.
C. OLPR’S Authority to Investigate.
1. Rule 8(a). An OLPR article explained the basis on which OLPR conducts investigations. “Rule 8(a), RLPR, establishes the threshold for initiating an investigation into an attorney’s alleged misconduct, authorizing an investigation if there is a ‘reasonable belief that professional misconduct may have occurred.’ This is somewhat akin to the civil litigation standard that a complaint must state a claim upon which relief can be granted; that is, if the allegations in the complaint are true, do they constitute a violation of one of the Minnesota Rules of Professional Conduct?” Martin A. Cole, OLPR Investigation Procedures, BENCH & B. OF MINN., Oct. 2011, at 12.
2. A Challenge to the Scope of OLPR’s Authority.
a. The Supreme Court recently considered a respondent lawyer’s argument that OLPR exceeded the scope of its authority. In re Nathanson, 2012 WL638014 (Minn. 2012). The case is well-summarized in Kevin A. Slator, Director’s Rule in Conducting Disciplinary Investigations, MINN. LAW., Apr. 9, 2012 at 10.
b. A former client complained to OLPR, regarding Nathanson’s handling of an appeal. On its own initiative, OLPR also investigated Nathanson’s handling of other appeals. Nathanson argued these additional investigations were unauthorized.
c. The court disagreed. “Rule 8(a) does, however, place some limitations on the Director's authority to conduct an investigation beyond the allegations of the complaint. Specifically, the Director's discretion to “make such investigation as the Director deems appropriate” is limited to matters upon which the Director has a “reasonable belief that [additional] professional misconduct may have occurred.” We also conclude that the Director may not unduly expand the scope of an investigation to explore matters not reasonably related to the original complaint.” As the court explained, “The Director's investigation was commenced pursuant to the complaint filed by a former client, not upon the Director's sole initiative. Based upon the results of the investigation, which showed Nathanson had failed to communicate with this client and mishandled his appeals, the Director had a reasonable belief that Nathanson may have committed similar misconduct in other appeals. The record supports the conclusion that the Director's additional investigation was reasonably related to the original complaint, and was appropriate.” Id. at *5.
D. Failure to Cooperate Promptly With OLPR – In In re Paul, 809 N.W.2d 693 (Minn. 2012) Paul was tardy both in his client representations and in his responses to OLPR, on several matters. In the A.B. matter, Paul disputed a finding that he failed to reasonably cooperate. OLPR mailed a notice of investigation on July 1, 2010, requesting a response and a copy of Paul’s file for A.B., within 14 days. Paul responded and provided the file on July 26, 2010. Paul supplemented his response on August 6, 2010. Although Paul’s tardiness was “less serious” in the A.B. matter than in others, the Minnesota Supreme Court found that its referee did not clearly err in finding a violation by Paul. In matters not involving repeated tardiness, OLPR is ordinarily very accommodating in granting reasonable extensions of time for response.
EXCEPTIONS TO CONFIDENTIALITY
A. Disclosing Confidential Information – Implied Authority. A useful general exposition of the permissions, under Rule 1.6(b), to disclose client information, is found in Martin A. Cole, Disclosing Confidential Information, BENCH & B. OF MINN., Apr. 2012 at 14. The article includes discussion of permissions to disclose under Rules 1.6(b)(2) and (3). The article suggests – inaccurately, in the author’s view -- that disclosures under these provisions are rare – “Most lawyers opt not to make disclosures in almost all instances, . . ..” Id.
B. Rule 1.6(b)(2) - Harmless Disclosures Broadly Authorized. Rule 1.6(b)(2) authorizes disclosure of information relating to the representation of a client when disclosure is not apt to be “embarrassing or likely detrimental,” and the client has not “requested the information be held inviolate.” Most information in most representations may be disclosed because disclosure is not harmful. Such disclosures are not rare.
C. Discretionary Disclosures Broadly Authorized by Common Law and Rule 1.6(b)(3). In addition, Minnesota case law and the Restatement, citing Minnesota cases, accord lawyers very broad implied authority to disclose.
1. Common Law. The main authorities for implied authority to disclose are Restatement (Third) of the Law Governing Lawyers § 60 cmt. f, and related Reporter’s Note (2000) (citing State v. Schneider, 402 N.W.2d 779, 787 (Minn. 1987) and Sprader v. Mueller, 265 Minn. 111, 117, 121 N.W.2d 176, 180 (Minn. 1963)). In these cases, attorneys disclosed privileged information to their clients’ opponents, with the intent of benefiting the clients. Even though actual harm to clients ensued, the court found the disclosures were appropriately within the attorneys’ discretion, without client consultation. The court declared, “It is axiomatic that an attorney enjoys broad authority in dealing with the procedural aspects of his client’s cause.” Sprader v. Mueller, 265 Minn. 111, 117, 121 N.W.2d 176, 180 (1963). Sprader held that, “within limits which do not offend our sense of professional propriety (however elusive this definition of the rule may prove to be), an attorney has the right to use privileged matter for legitimate bargaining purposes. In so doing, he may waive the privilege without committing any breach of his ethical obligation to respect his client’s confidences.” Id.
2. Rule 1.6. Similarly, a comment to Rule 1.6 accords broad discretion to the lawyer, “Except to the extent that the client’s instruction or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation.” Rule 1.6 cmt. 5 (emphasis added). For further discussion of these points, see Minnesota Legal Ethics § XVI, “Implied Authority to Disclose Client Information.”