I. INTRODUCTION.
A. Rules Petition. On August 4, 2014, the MSBA and the Lawyers Board filed a petition in the Minnesota Supreme Court (“Court”), to amend the Rules of Professional Conduct (“Rules”). The Rules amendments are few and generally inconsequential. One of two “most significant” Rules amendments codifies a long-standing mandate - to be careful with confidential information – already found in Rule 1.6 cmt. 15. The other significant amendment restates the long-operative permission to share information for lateral hire conflict-checking. Kevin Slator,
Ethics: Highlights of Petition to Amend Conduct Rules, MINN. LAW, Sept. 1, 2014.
B. “Acknowledge” Amendments to Comments. Most of the petition seeks amendments to the comments to the Rules. However, because the Court has repeatedly rejected petitions to adopt or amend the comments, even as guidelines, the petition asks the court to “acknowledge” amendments to comments.
C. Adopt No, Cite and Require Yes. Although the Court has rejected petitions to adopt or amend the comments, the Court has also repeatedly cited comments. Over the last 25 years, this combination has produced confusion in lawyers and trial courts about when to rely on the comments for guidance. The confusion is compounded because the Office of Lawyers Professional Responsibility (OLPR), which operates at the Court’s direction and brings cases before the Court, has long stated it uses the comments both for interpretation and enforcement. This year, the Court has twice found trial error for failure to consider or follow comments.
D. This Blog. This blog, and next month’s blog, will attempt to explain how confusion about the comments has arisen, how the confusion has recently been exacerbated, how the MSBA/LPRB petition proposes a very small-scale fix for part of the problem, and how I believe the problem should be resolved.
II. THE COURT, THE OLPR AND THE COMMENTS A. Forty States Adopt the Comments. Minnesota is well outside the mainstream regarding the comments. Of the states that have adopted the ABA Model Rules, forty have also adopted the comments.
http://www.americanbar.org/content/dam/aba/migrated/cpr/pic/comments.authcheckdam.pdf.
B. 1988, 1995, 2005 - The Minnesota Supreme Court Rejects the Comments. The comments to the Rules are said to be “guides to interpretation, but the text of each rule is authoritative.” Rules, SCOPE [21]. In 1988, 1995 and 2005, the Minnesota Supreme Court [“Court”] declined to adopt the Comments, individually or en bloc, even as guides. Detail regarding these declinations is found in MINNESOTA LEGAL ETHICS at 43.
C. 2009 - The Minnesota Supreme Court Adopts Similar Comments to the Judicial Code. In 2009, without any apparent hesitation or question, the Court adopted the comments to the Code of Judicial Conduct. The Code comments “provide guidance” and “identify aspirational goals,” much like the Rules comments. Code, SCOPE. Both sets of comments were drafted in connection with ABA Model Rules or Codes. No jurisprudential reason is evident for adopting the judicial Code comments and rejecting the lawyers Rules comments.
D. The “Specifically Adopted” Exception. In its 1988 order, the Court noted an exception, namely that a comment could become a guide if “specifically adopted by this court.” Has there ever been such an adoption? The best candidates would be three 2014 cases, discussed below, in which lower courts were reversed for failing to take account of comments. Would it not be preferable to have such adoption before an actual case, so parties in advance of conduct, and judges in advance of ruling, knew of applicable standards? No such advance adoption appears ever to have occurred. There is one possible exception. In 1985, the Court drafted comments to Rule 1.6, because it had rejected certain essential elements of proposed Rule 1.6, and the proposed comments would have been ill-suited to Rule 1.6 as adopted. However, although the 1985 comments have been rendered obsolete by subsequent Rule 1.6 amendments, the Court has never repealed the comments it drafted.
E. The Court Nonetheless Cites Individual Comments – Usually After the Fact. The Court has, nonetheless, cited the comments – sometimes unpredictably – as guidelines and even as effectively amending the Rules. For example, the court stated, “the comments to MRPC 4.2
establish that this relationship [general manager] falls within the protection of the Rule.”
State v. Miller, 600 N.W.2d 457, 467 (Minn. 1999)(emphasis added). A comment that can “establish” the meaning of a Rule is more than a guideline. How would lawyers or judges know, before
Miller, that the Rule 4.2 comments “established” anything at all? Additional Minnesota appellate citations of the comments are found in MINN. LEGAL ETHICS at 43-4.
F. OLPR Systematically Uses the Comments. OLPR has taken a “general” position, “[T]he comments generally will reflect the OLPR’s interpretation and enforcement position. Lawyers can follow the comments’ guidance with confidence.” Timothy M. Burke,
Comparing Services can be Dicey, Minn. Law., July 2006, at 5. (OLPR has never identified the exceptions to this “general” position.) How can OLPR “enforce” comments, including in proceedings before the Court, when the Court itself has declined to regard the comments even as “guides?” “Enactment” or “adoption” precedes “enforcement,” except in OLPR’s practice. This jurisprudential hodgepodge has left lawyers and judges uncertain about a fundamental question – what is the law of legal ethics?
G. Which Rules Apply to Pro Se Lawyers? A good example of the confusion caused by the Court’s inconsistent approach to the comments can be found in a question recently posed by OLPR. Do Rules 3.1-3.9 (“Advocate”) and 4.1-4.4 (“Transactions With Persons Other Than Clients”) apply to lawyers acting pro se? Recent case law applying comments creates uncertainty. Who knows the answer? Lawyers normally look to OLPR for answers about the Rules. However, the OLPR Director’s article on this subject includes more questions (fourteen) than answers. Martin A. Cole,
Ethics and Pro Se Lawyers, BENCH & B. OF MINN., Sept. 2014. OLPR is not responsible for the uncertain situation in which OLPR and Minnesota lawyers find themselves.
III. ALBRECHT AND MOE – THE COMMENTS AMEND THE RULES A. A Comment Amends a Rule! In two recent cases, the Court has elevated a comment to a status at least equal to the Rules. These cases give short shrift to the principle, “the text of each rule is authoritative.” SCOPE [21]. In one case, the Court held, “Albrecht challenges the referee’s conclusions that his false or misleading statements violated Rule[] 3.3 [(a)(1)]… . Albrecht invokes a comment to Rule 3.3 … which refers to a lawyer ‘representing a client.’ Because Albrecht was not representing a client when he made the statements, we agree that he did not violate Rule[] 3.3.”
In re Albrecht, 845 N.W.2d 184, 191 (Minn. 2014). The court cited
Albrecht as precedent in
In re Moe, A13-1611 (Minn., 08/13/2014) fn. 8.
http://mn.gov/lawlib/archive/supct/2014/OPA131611-08132014.pdf B. Rule 3.3(a) On Its Face Applies to All Lawyers. Rule 3.3(a) begins, “A lawyer shall not knowingly . . ..” The Rule then prohibits making false statements and offering false evidence to tribunals, and requires disclosures and corrections in certain circumstances. Numerous other rules in the 3.1-3.9 and 4.1-4.4 series apply only “In representing a client,” but Rule 3.3(a) has no such restriction.
C. Rule 3.3 Cmt. 1. A comment takes a position different from Rule 3.3(a), “This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal.” Rule 3.3 cmt. 1. This comment purports to alter the language of a rule. It is true that Rule 3.3(b) applies, “When a lawyer represents a client. . ..” However, Rule 3.3(a) and (d) on their face – but no longer, as a matter of law -- apply to “a lawyer,” whether pro se or in a representative capacity.
D. Application to Ex Parte Proceedings. Rule 3.3(d) provides, “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” After
Albrecht and
Moe, a pro se lawyer may, without suffering discipline, seek ex parte relief without disclosing material facts adverse to his or her position. Thus, in a marriage dissolution, an unrepresented husband/lawyer may seek ex parte relief without making adverse disclosures that would be required of a lawyer representing the wife. What theory of legal ethics would endorse such inequality?
E. In Albrecht, Conclusions Were Not Properly at Issue. Albrecht is marred by procedural confusion as well as substantive problems. The Court rejected Albrecht’s argument that factors mitigating discipline should be considered, “Because the identification of mitigating and aggravating factors includes “both find[ing] facts and draw[ing] conclusions from those facts,” Rule 14(e), RLPR, renders the referee's findings and conclusions conclusive when, as here, neither party orders a transcript.
Montez, 812 N.W.2d at 67.” 845 N.W.2d at 193, n. 15. The cited rule provides, “Unless the respondent or Director, within ten days, orders a transcript and so notifies this Court, the findings of fact and conclusions shall be conclusive.” Rule 14(e), RLPR. If the referee’s conclusions were “conclusive,” as the Court found and the rule provides, how could the referee’s conclusion regarding a Rule 3.3 violation be reversed? Again, no answer is evident.
F. What About Rule 3.1 - Pro Se Frivolous Litigation? OLPR and the Court have disciplined numerous pro se lawyers for frivolous litigation, in violation of Rule 3.1. MINN. LEGAL ETHICS at 739-43. Rule 3.1 begins on the same track as Rule 3.3, “A lawyer shall not. . ..” Both Rules appear to apply to pro se lawyers. Rule 3.1 cmt. 2, however, includes a provision (“action taken
for a client”) that is similar to Rule 3.3 cmt. 1. After
Albrecht, the Rule 3.1 comments suggests that Rule 3.1, like Rule 3.3, does not apply to pro se lawyers. Again, would there be a policy reason for reversing decades of Minnesota discipline law, solely because a comment appears to purport to act beyond the power of a comment, by amending a rule? And, as to whether Rule 3.1 currently applies to pro se lawyers, who knows?
G. State v. 3M – Is “Historical Reliance” the Same as Previous Citation?
1. To be convinced that the status of the comments matters greatly, one need only review State v. 3M, 845 N.W.2d 808 (Minn. 2014). After very lengthy and expensive litigation, the Court reversed and remanded a disqualification order, in large part because the lower court failed to consider the comments to Rule 1.9. The Court cited its “historical reliance,” in two prior cases, on Rule 1.9 comments, to explain how the lower court erred. Id. at 845 N.W.2d 808, 817, n. 3.
2. In one of these cases, the Court cited foreign authorities, then stated, “in our view none appear to materially improve upon the interpretive guidance furnished in the commentary following Rule 1.9, M.R.P.C.” Prod. Credit Ass’n of Mankato v. Buckentin, 410 N.W.2d 820, 823. (Minn. 1987). Buckentin was not citing the same Rule 1.9 comment as the comment construed in 3M. In the other case, the Court quoted Rule 1.9 cmt. 3, in apparent explication of the meaning of “substantially related.” State v. Patterson, 812 N.W.2d 106, 112 (Minn. 2012).
3. However, Patterson did not preface its citation of the comment with any characterization, and did not specifically adopt the comment, as the Court’s 1988 order prescribed, for the comment to become official. If the clock is turned back to the time of the Patterson trial, a question arises - During the lower court proceedings in Patterson, should the judge and lawyers have regarded the comment to Rule 1.9 as providing controlling authority, or guidance, or nothing at all? The cryptic reference in Buckentin could hardly be called a specific adoption of the comment or evidence of historical reliance.
4. 3M, like Albrecht, reversed a trial court finding because a judge failed to give a comment its due. The status due a comment in these cases is not mere “guide to interpretation,” but a controlling definition (of “substantially related” in 3M) and a rule amendment (restricting the meaning of “a lawyer” in Rule 3.1 to “a lawyer who is representing a client”). Lawyers and judges must know – somehow - both when they may use the comments as guides and when they must follow the comments as law.
H. Does Anyone Have a List of Cited Comments? If mere prior Court citation suffices for a comment to become mandatory for lawyers’ conduct and trial court consideration, which comments has the Court cited so as to be included in the list of authorities? If the Court, after citing a comment, amended the related rule, does the old citation mandate (as the Court’s reference to
Buckentin implies) that the newest version of the comment must be considered? Do all the comments to a Rule receive Court endorsement when the Court cites any individual comment to that Rule? This is important because, for example, Rule 1.7 has 35 comments. The Court’s references in
3M, to the comments to Rule 1.9, included both a specific reference to “comment 3” and more general references to “the comments to Rule 1.9” and “those comments.” 845 N.W.2d 808, 817 n. 3. The large scale puzzle underlying these questions is how lawyers and trial courts are to know which comments have gained status through court approval, which comments having gained such status retain it, and which comments are, from the Court’s view, unworthy of any guidance whatsoever.
IV. MSBA/LPRB PETITION TO “ACKNOWLEDGE” AMENDMENTS TO COMMENTS. A. Acknowledge Amendments to Comments? The MSBA/Board petition states, “Petitioners request that the proposed amendments to the MRPC as set forth in Attachment A hereto be adopted and that the proposed amendments to the comments to the MRPC, as also set forth in Attachment A, be acknowledged so that they may be published to the bar and the public.” Petition ¶ 5. This novel request – for a court to “acknowledge” by order – raises several questions.
B. Why “Acknowledge?” It is entirely understandable that petitioners, having thrice been denied “adoption” of the comments by the Court, would not seek adoption yet again. However, will having comments “acknowledged” clarify their status or create still more confusion? Courts do not generally “acknowledge.” The Rules do not define or use the word “acknowledge.” The comments use, “acknowledge” only a few times, e.g. “Client telephone calls should be promptly returned or acknowledged.” Rule 1.4 cmt. 4. This apparently requires a locution such as, “Received your VM of yesterday.” A somewhat similar locution from the Court would not clarify the status of the comments.
C. Why Acknowledge Only “The Proposed Amendments” and Not the Other Comments? The petition twice asks the court to “acknowledge,” but the direct object of acknowledgment is only “the proposed amendments” to the comments, not the comments as a whole. ¶¶ 5, 8. Having a small percentage of the comments “acknowledged,” and combined with the great majority of unacknowledged comments, which were rejected for adoption, will increase the heterogeneity and the inscrutability of the comments.
V. PROBLEMS WITH COMMENTS AND OTHER ISSUES – TO BE CONTINUED A. Next Blog. In my next blog – unless bigger news preempts - I will discuss what I think the Minnesota Supreme Court should do regarding the MSBA/LPRB petition. I will also discuss some of the serious drafting problems with the comments. Let me preview these topics briefly.
B. What the Court Should Do. I believe the Court should adopt the proposed Rules changes. The Court should also state that it will adopt the comments, and not just the proposed amendments to comments. However, first the Court should ask petitioners to review all the comments and propose them in amended form. Several types of problems illustrate the need for review and amendment.
C. The Subtraction Problem. Comments are only for guidance and may not add to or subtract from obligations created by the Rules. As shown in
Albrecht and
Moe, the Court has, unwisely, used a comment to subtract from the Rules. Comments which purport to subtract should be amended.
D. The Addition Problem. “Many of the comments use the term “should.” Comments do not add obligations to the rules, . . ..” SCOPE [14]. Some comments use “must,” but merely restate the “shall” mandate of a rule. Other comments, however, use “must” and thereby purport to create obligations beyond the rules. For example, while Rule 1.3 mandates only “diligence,” an associated comment purports to mandate zeal, “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” Rule 1.3 cmt. 1. A more important gratuitous additional obligation is found in another comment, “Care must be taken to assure that the individual understands . . . that discussions between the lawyer for the organization and the individual may not be privileged.” Rule 1.13 cmt. 9. Rules 4.3 and 1.13(e) carefully prescribe several subjects that a lawyer must communicate to an unrepresented person, but the subjects of privilege, and ensuring the understanding of privilege, are not among them.
E. The “Should” Problem. “Should” is the normal and proper language of the comments. However, some comments use “should” for important actions, even though there is no language in the rule that anchors such advice. For example, a comment advises a lawyer for an organization, that when there is adversity between the organization’s interests and those of an employee or other constituent, “the lawyer should advise any constituent. . .that such person may wish to obtain independent counsel.” Rule 1.13 cmt. 9. The organizational client may, however, desire unvarnished candor from the employee interview and not wish to alert the employee to possibly retaining independent counsel. Why “should” the lawyer for the organization alert the employee to the desirability of counsel, notwithstanding the client’s direction to the contrary?