ADVISORY OPINION SAMPLER
By
Martin A. Cole, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (September
2009)
Last
year, the Director’s Office received 2,135 requests for an advisory opinion. Most such requests are by telephone, although
a growing number of attorneys, approximately 10 percent, are taking advantage
of the ability to submit questions through the internet from the office’s
website. So far this year, over 1,500
requests have been received through the end of July, a pace that if maintained
will result in a substantial increase in opinions this year. The advisory opinion service is manned only
by the most experienced attorneys in the Director’s Office (presently me, Pat
Burns, Tim Burke, Craig Klausing, Cassie Hanson, and Julie Bennett), as
providing immediate answers to ethical dilemmas requires extensive familiarity
with the Rules of Professional Conduct and experience as a lawyer.
A sampling of advisory
opinion calls is set out below—sort of a Frequently Asked Questions (FAQ) list. Perhaps someone else’s question and the
response will help another lawyer similarly situated to better analyze the
rules and their ethical obligations. All
of these examples are based upon real inquiries from the past three months, but
are in no way intended to exhaust the list of topics upon which inquiry is made. For example, some conflict-of-interest issues
are addressed in this article as conflicts are a common source of inquiry;
usually, however, these situations are very fact-specific, and rarely make
useful examples for educating others. An
area not addressed in this article is the many questions we are receiving of
late concerning lawyers being laid off, leaving their firm, or starting a solo
practice. The advisory opinion service
will address general questions about the rights and obligations of departing
attorneys and about starting up a law office, but these may be better suited to
a future article devoted only to that topic, rather than being included here.
Sample
Opinions
Fee Agreements. The requirements for reasonable fees and written
agreements have been a common source of advisory opinion inquiry recently,
particularly since this topic has been receiving some reconsideration of late.Ftn 1
Although written fee agreements are not
mandatory in all instances, several types of representation do require a
written agreement (contingent fees, for example). While explaining what the rules require, our
attorneys may well advise that a written agreement be prepared in all
situations to avoid misunderstandings. This
highlights one of the purposes of the advisory opinion service: to advise the caller
how to clearly avoid an ethical problem, not to ascertain just how “close to
the line” the caller can get without crossing it.
Business Transactions and Adverse Pecuniary Interests. A caller inquired
whether a client could be asked to sign a confession of judgment for fees
already incurred in connection with an agreement to continue representation. Signing a
confession of judgment involves the waiver of significant legal rights. Under Rule 1.8(a),
MRPC, such an agreement would be considered potentially adverse to the
pecuniary interest of a client, triggering attorney obligations of fairness,
written notice to the client to consider obtaining separate counsel, and
written consent from the client. Note that the
protection of the rule does not extend to former clients, although other
rules—1.8(h) or 4.3, depending upon the facts and claimsFtn 2—may still require certain notices to the former client, especially if
unrepresented.
Former Clients. As noted, many
conflict-of-interest questions are very fact-specific. Pursuant to Rule
1.9, MRPC, lawyers are allowed to represent a client whose interests are
adverse to a former client, unless it is in the same or a substantially related
matter. Whether matters are substantially related in particular involves an
analysis of the particular facts and issues involved in the proposed new
representation.
Our advisory opinion attorneys will attempt to help
callers sort through such analyses, as they will with issues of concurrent
representation of conflicting interests under Rule 1.7, MRPC. They also can help
determine whether, if there is a conflict of interest, the conflict can be
waived with informed consent confirmed in writing.
One
cautionary aspect of analyzing conflicts is to inform the caller that despite
our considered opinion, a former client or opposing counsel may disagree and
still seek to have the caller disqualified or may file a disciplinary complaint. Whenever the potential for a conflict claim
exists it is good practice to alert your new client and discuss how a
disqualification motion could occur and distract attention away from the merits
of the client’s matter. Counsel without
such a potential conflict might be beneficial to the client. If the client nevertheless wants you to
represent them, you should discuss with them in advance who will be expected to
pay the costs associated with defending against a disqualification motion if
brought against you in this matter.
Trust Accounts. A caller inquired
whether he was required to maintain a trust account. Trust accounts
(primarily in the form of an IOLTA account) are required for attorneys who
handle client or third-party funds, pursuant to Rule 1.15(a), MRPC. If the attorney
does not handle such funds, a trust account is not mandatory. Few lawyers are
likely to fit this exception for their entire careers. Many questions
about trust accounts may be answered by visiting the FAQ section on the OLPR
website devoted solely to questions about lawyer trust accounts.Ftn 3
Withdrawal. Issues connected
with withdrawing from representation are very common sources of advisory
opinion inquiries.
A typical recent call asked whether the caller could
withdraw approximately two weeks before a trial in a contested marital
dissolution proceeding if the client was not current in paying fees. Rule 1.16, MRPC,
governs withdrawal from representation and allows an attorney to withdraw for
nonpayment of fees by a client in some situations, if sufficient notice has
been given. The rule also requires that upon termination, a lawyer must take steps to
the extent reasonably practicable to protect a client’s interests, which
includes allowing enough time for the client to obtain substitute counsel. Two weeks before a
contested trial, even if the client is behind on fees, almost never is enough
time.
There are
also calls about the return of a client’s file upon termination of
representation, including withdrawal. Rule
1.16(e)-(g), MRPC, incorporated substantially all of former Lawyers Board
Opinion No. 13 into the MRPC, identifying what are client papers and property,
saying when clients may be charged for copying costs, and prohibiting
conditioning return of a file upon payment of fees or copying costs.
MJP
(Multijurisdictional Practice). We often receive
calls inquiring about an attorney’s ability to handle a matter in another
jurisdiction. A recent caller asked about setting up a corporation for a friend in
Wisconsin: the prospective client lives in Wisconsin, the business would
be in Wisconsin, and there is no connection to the caller’s Minnesota practice. MJP rules have been greatly relaxed and
now allow a Minnesota attorney to provide services in other states on a
temporary basis in many instances if in association with a local attorney or
arising out of a proceeding in Minnesota. Otherwise, Rule
5.5, MRPC, still requires that the services be reasonably related to the
lawyer’s Minnesota practice, and don’t stretch so far as to allow a Minnesota
lawyer to simply handle any Wisconsin (or any other state) matter. That would still
be considered the unauthorized practice of law and be subject to possible
criminal prosecution.
Duty to Report. A frequent inquiry
concerns whether the caller has a duty to report the alleged misconduct of some
other attorney, usually opposing counsel in some contested matter. The advisory
opinion service does not provide opinions on third-party conduct, i.e., the
conduct of the “other lawyer.” Certainly Rule 8.3(a), MRPC, imposes a
duty on lawyers to report the misconduct of other lawyers of which they have
knowledge and that raises a substantial question as to the other lawyer’s
honesty, trustworthiness or fitness. But the recent
call about an opposing attorney who might have a conflict of interest did not
raise such an issue; posing it as an advisory opinion question about the
caller’s duty to report doesn’t change that. We’ll describe the
limited scope of the rule and usually be able to advise a caller that she has
no duty to report; but we’ll not say whether the other lawyer’s conduct
violates the rules.
Conclusion
Advisory
opinions are available by calling the Director’s Office at (651) 296-3952 (or
toll free at (800) 657-3601) and asking for the advisory opinion attorney of
the day. If the attorney is not
immediately available, the call will be returned, almost always the same day
(this applies to advisory opinion requests received by email from the website
as well).Ftn 4 There are some limitations as noted
above: no opinions about third-party conduct, or about the caller’s past
conduct, or to answer questions of law. Still,
we are here to help as many lawyers as possible to avoid ethical problems
before they occur. Your lawyer
registration fees are already paying for this wonderful service, so take
advantage of it.
Notes
1 See Gernander, “Nonrefundable Retainers
& Other Oxymorons,” 66 Bench & Bar of
Minnesota 2 (February 2009), p. 16.
2 Rule 1.8(h)(2), MRPC, deals with settling
certain liability claims with unrepresented clients and former clients. Rule 4.3, MRPC, covers dealing with unrepresented
persons in general.