UPDATES
Rule 1.0(i): “Reasonable.”
A. OLPR Characterization – Lawyer’s Perspective Counts, Client’s Does Not. The Office of Lawyers Professional Responsibility (OLPR) has provided an important characterization of the key terms, “reasonable” and “reasonably.” “For purposes of imposing lawyer discipline, Rule 1.0(i), MRPC, defines ‘reasonable’ or ‘reasonably,’ when used in relation to conduct by the lawyer, to mean the conduct of a reasonably prudent and competent lawyer. While not an overly helpful definition, this plainly views the term from a lawyer’s perspective and not from that of a client.” Martin A. Cole, Managing Expectations, BENCH & B. OF MINN., July 2012, at 14 (emphasis added).
B. “Rules of Reason.” The “Scope” section of the Rules states basic interpretative principles. The foremost principle is that, “The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself.” Id. at 14. “Reason” and its derivatives are used 264 times in the Rules and Comments.
C. Defending Discipline Complaints. Lawyers responding to ethics complaints may well cite Mr. Cole as authority that the lawyer’s perspective, and not theclient's perspective, determines reasonableness and therefore Rule interpretation. Two responses might be made to this defense.
D. Good Lawyers Determine What’s Reasonable. The governing perspective is that of “a reasonably prudent and competent lawyer,” not necessarily the perspective of the respondent lawyer. Rule 1.0(i). More precisely, the conduct of good lawyers determines reasonableness. “Conduct” is a more objective standard than the “perspective” adopted by OLPR.
E. Not From Client’s Perspective? OLPR could have interpreted rule 1.0(i) to give a lawyer’s perspective its due, without appearing to negate the client’s perspective. The conduct of “a reasonably prudent and competent lawyer” includes attempting to understand, and take account of, the perspectives of individual clients. The main thrust of Mr. Cole’s article is that “managing expectations” of clients -- reasonable and unreasonable -- is integral to professional responsibility. Rule 1.0(i) undeniably gives priority to good lawyers’ conduct. Rather than appearing to wholly negate the client’s perspective on reasonableness, however, it could be said that good lawyers earnestly attempt to take account of client perspectives.
In re Grigsby: Rules 1.2(a), 1.16(d), 5.5(a), 8.4(c); OLPR Delay.
A. Unusual Opinion. In re Grigsby, No. A11-0976, 2814088 WL 2012 (Minn. July 11, 2012) is an unusual discipline opinion both because it features three dissents and because it includes a sharply-worded observation that OLPR took 727 days to proceed from a simple complaint to a discipline petition.
B. Facts. When Grigsby was suspended for discipline offenses in 2009, he could not find another lawyer to handle briefing in his client J.R.’s pending appeal of a DWI conviction. Grigsby completed J.R.’s appellate brief, signed J.R.’s name to it, indicated that J.R. was pro se, and timely filed the brief. J.R.’s conviction was reversed. However, the state brought Grigsby’s actions to OLPR’s attention.
C. UPL. Drafting and filing a brief obviously involved the unauthorized practice of law, because “Grigsby was ‘defending the legal rights of another,’ and thus practicing law without a license.” Id., at *4, citing In re Jorissen, 391 N.W.2d 822, 825 (Minn. 1986).
D. “False Dilemma.” Grigsby argued that Rule 1.16(d) required him to protect J.R.’s interests, by writing and filing the brief. The court rejected this argument. The could also found that Grigsby had other alternatives, e.g. “seeking an extension of the time to file a brief or requesting other relief. . ..” Id. Apparently, seeking an extension for filing would not be regarded as “defending the legal rights of another,” and, therefore, would not be UPL.
E. Limits of Client Authorization. Grigsby’s argument that J.R. implicitly authorized his actions foundered on two principles – (1) a client may not authorize illegal conduct, and (2) “J.R. could not give Grigsby authority to write and file the brief for him or to sign J.R.’s name to the brief.” Id., at *5. In fact, “a lawyer may not sign another person’s name to a court document, regardless of intent.” Id., at *6.
F. “Pro Se”/“Represented Oneself” The court rejected the referee’s conclusion that Grigsby falsely represented that J.R. acted on a pro se basis in the appeal. Citing Black’s definition of pro se -- “(o)ne who represents oneself in a court proceeding without the assistance of a lawyer” -- the court concluded J.R. was pro se. Id. The court’s reasoning does not seem to answer an obvious question, viz. whether J.R. could be said to have “represented himself,” in the appeal, when he did nothing.
G. Mitigation, Delay, Discipline. The court found several mitigating circumstances, including that Grigsby’s misconduct was a single instance (despite having several dimensions) and J.R. was not harmed. The court also pointedly noted OLPR’s “delay” in proceeding: “The Director did not file a petition for disciplinary action until May 31, 2011, 727 days after notice of the misconduct.” Id., at *8. The court discounted the referee’s recommendation for a nine month suspension to 60 days, permitting reinstatement without a hearing. Three dissenting justices argued that because the undue passage of time was overshadowed by Grigsby’s failure to recognize his misconduct, a hearing should be required.
H. Delay and the Discipline System. Although OLPR’s delay was not formally regarded as a mitigating circumstance in Grigsby, the majority seems to have taken account of it. Respondents may well raise any similar delays by OLPR as relevant in future discipline proceedings. Two rules may also be noted. First, Rule 3.2(a) requires all lawyers, including OLPR lawyers, to “make reasonable efforts to expedite litigation consistent with the interests of the client.” Second, Rule 2, R. Law. Prof. Resp. provides, “It is of primary importance . . .that cases of lawyers’ alleged disability or unprofessional conduct be promptly investigated and disposed of. . ..” OLPR file aging statistics have improved somewhat in recent months, but remain at levels that are extremely high by historical standards. OLPR 2012 Annual Report, A. 4.
Rule 4.2, Contact With Represented Parties.
A. Useful Reminders. Two useful reminders about Rule 4.2 are given in another recent OLPR article. Megan Engelhardt, Communication is Vital but can Bring Difficulties, MINN. LAW., June 4, 2012, at 8.
B. Rule 4.2 Does Not Require Adversity. Rule 4.2 applies without regard to whether the client of the communicating lawyer (L) and the represented person with whom L communicates have adverse interests. OLPR issued an admonition to an assistant county attorney who communicated with a victim, in a domestic abuse matter, even though the attorney had received notice from the victim’s attorney to “refer all communication and correspondence through my office and do not contact my client directly.”
C. “Authorized by Law?” Communications with represented parties that are otherwise prohibited by Rule 4.2 are permissible if “authorized by law.” Prosecutors are required by Minn. Stat. §611A.03 (2011) to use best efforts to notify crime victims of certain developments. Prosecutors have been disciplined for failing to provide such notices. Timothy M. Burke, The Unique Responsibilities of Criminal Prosecutors, MINN. LAW., Oct. 6, 2008; Martin A. Cole, Summary of Admonitions, BENCH & B. OF MINN., Feb. 2012. It seems arguable that the notice described in the Engelhardt article was “authorized by law.” Because the notice apparently was purely informational, and did not ask the victim to take any action, the basic protections of Rule 4.2 were not threatened.
D. Copying is Communicating: A New Wrinkle. Every few years, OLPR reports an admonition to a lawyer who communicates with counsel and sends a copy to counsel’s client. Martin A. Cole, Summary of Admonitions, BENCH & B. OF MINN., Feb. 2010, at 16; Craig D. Klausing, Communication with Represented Parties, MINN. LAW., Nov. 5, 2001, at 2. Engelhardt’s article repeats this report and adds a new wrinkle. She warns about a lawyer’s “reply all” response to an e-mail from counsel, where counsel has copied his or her own client. One hopes that OLPR would not too readily discipline a lawyer who had not paused to contemplate the possible Rule violation.
HISTORY
RULE 1.7(a)(2), “Directly Adverse” Conflicts.
A. It is sometimes assumed that the ethics rules, or at least those governing such core values as confidentiality and conflicts, are immutable general principles. Among these presumed eternal verities might be that a law firm cannot sue a current client, even on a subject unrelated to the representation. An article that is about to be published shows that the “directly adverse” conflicts standard, even in litigation applications, is of fairly recent vintage. Daniel J. Bussel, No Conflict, 25 GEO.J.L.E. 207 (2012).
B. The “directly adverse” conflicts standard has only about a thirty year history (within the ABA), or forty years, if two leading disqualification cases are considered. ABA Comm. on Ethics and Prof’l Responsibility, Informal Op. 495 (1982); IBM Corp. v. Levin, 579 F.2d 271 (3d Cir. 1978); Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976). A single “directly adverse” discipline case is nearly fifty years old. Grievance Comm. of the Bar v. Rottner, 203 A.2d 82 (Conn. 1964).
C. Application of the “directly adverse” standard to unrelated subject matter, non-litigation adversity is still more recent. The approximately 200 page treatment of conflicts in the Restatement (Third) The Law Governing Lawyers (2000) does not include non-litigation adversity. Whether, and in what circumstances, the most common activity of lawyers – opining – is “directly adverse” is considered by only a few authorities.