OPINIONATED
By
Martin A. Cole, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (November
2009)
At its
October meeting, the Lawyers Professional Responsibility Board adopted Opinion
21: A Lawyer’s Duty to Consult with a Client about the Lawyer’s Own
Malpractice.Ftn 1 This is the second
opinion adopted by the Lawyers Board since the reconstitution of its opinion
committee in 2008. The process of
posting a proposed opinion for public comment, established by the board,
assures that all voices are heard before an opinion is adopted. In this particular instance, several changes
were incorporated based upon comments (both favorable and critical) received
from interested attorneys in response to the posting. The board also adopted an amendment to its
summary dismissal guidelines, directing that the Director’s Office will not
customarily investigate allegations that an attorney failed to disclose her own
malpractice absent court findings that such malpractice occurred or in some
limited, patently egregious situations.
Minnesota is not the
only state or entity that issues opinions on topics of professional
responsibility. Indeed, many states
issue formal and informal opinions on a far more regular basis than does
Minnesota. The American Bar Association
also issues periodic formal opinions. A
review of some of these opinions issued in the past two years, or since
Minnesota’s opinion committee again began considering issues, shows that the
two Minnesota opinions issued fit fairly well into the range of topics
addressed by others.
Advertising Opinions
Minnesota’s Opinion 20Ftn 2 dealt
principally with the use of the term “& Associates” in a law firm’s name
when there is in fact only one attorney in that firm. The opinion was an interpretation of Rules
7.1 and 7.5, Minnesota Rules of Professional Conduct (MRPC), which govern all
communications about law firm names and a lawyer’s services. Thus, it falls into the generic category of
lawyer advertising. As has been noted
previously, many states attempt to regulate advertising to a far greater degree
than does Minnesota.Ftn 3
It should come as no
surprise therefore, that lawyer advertising is among the most common topics
upon which other states have issued opinions.
For example, several states, most recently Alaska,Ftn 4 have
issued opinions dealing with an attorney’s ability to publicize that he has
been declared a “Super Lawyer” by some local publication. Most such opinions appear to be intended to
reassure lawyers that publicizing one’s “Super Lawyer” designation remains
acceptable in their state, despite New Jersey’s controversially having declared
otherwise.Ftn 5 Closer to home, North
Dakota also issued an opinion on this issue, allowing the designation subject
to certain explanatory disclaimers.Ftn 6 Minnesota has elected
more informal means, including press coverage of the issue and mention in
articles,Ftn 7 to indicate that use of the designation is acceptable. In addition to addressing the “Super Lawyer”
debate, states recently have issued opinions related to advertising and
law-firm designations involving the use of testimonials, celebrity
endorsements, or the term “Of Counsel” on the firm’s letterhead.
MetaData, Credit Cards,
& Facebook
Perhaps the next
most-addressed topic for opinions over the past two years has been “metadata
mining”: whether it is appropriate for a lawyer to access hidden electronic
information contained in a document that has been sent to the lawyer via
email. States are closely divided on
this issue, which perhaps explains the volume of opinions issued, as lawyers
genuinely may be unsure of how their state’s disciplinary agency views the
ethical obligation. Is this an issue of
the sender’s handling of confidential information or of the recipient’s action
in bringing to light information that was sent inadvertently? States have reached differing answers,
although the trend clearly seems to be swinging towards allowing recipient
attorneys to look for metadata without presuming that it was inadvertently
included.Ftn 8 The Pennsylvania Bar
Association reached that conclusion by an interesting process. After initially opining that it was up to
each lawyer’s individual judgment whether to “mine” for metadata, the
Pennsylvania Bar reconsidered. Perhaps
realizing that such a decision implicitly allowed the activity, the bar’s
ethics committee revised its opinion expressly to allow Pennsylvania attorneys
to search for metadata.Ftn 9 Minnesota’s Lawyers
Board opinion committee has expressed some interest in investigating this issue
in the future.
Another topic that has
generated multiple ethics opinions in the past two years is the use of credit
cards as a means of paying advance fees.
Here too, states have reached differing conclusions on whether attorneys
may accept credit cards in payment of fees that will be placed into a lawyer’s
trust account, and also on the safeguards necessary to ensure that merchant
fees and charge-backs do not reduce a client’s trust balance.Ftn 10 This is an issue that the Director’s Office
addressed in an article, stating that, “while the use of credit cards for
payment of funds that are to be held in trust is discouraged, it can be done.”Ftn 11
A topic related to the
ever-expanding universe of modern technologies is whether attorneys may use
misleading means to gain access to someone’s social networking website, such as
Facebook. Most authorities (but again
not all) have found no investigative exception exists to the prohibitions on
deception, false statements, or responsibility for the acts of agents or staff
when gathering information on adverse parties or witnesses from internet
sources.Ftn 12 Thus, it would be
improper to have a staff person in the lawyer’s office falsely claim to be a
“friend” and ask permission to access an adverse party’s Facebook page, solely
in the hope of finding information that may be used for impeachment. Indeed, a Minnesota attorney received an
admonition this past year for just such conduct.
Weighing Opinions
What weight should be
given to these opinions? Well, in all
instances, opinions are intended as guidance on how to prospectively shape
conduct. Advisory opinions offered by
the Director’s Office play a similar role.
Opinions are interpretations of rules, much like the comments to the
ethics rules in Minnesota. Although
neither American Bar Association formal opinions nor other states’ ethics
opinions are binding in Minnesota, they are entitled to considerable weight
and, in the absence of clear authority in Minnesota, may be useful in resolving
an ethical issue. As noted, however,
conflicting opinions often exist.
Opinions issued by
Minnesota’s Lawyers Board represent a position that the Director’s Office and
the board itself will be expected to follow in interpreting and enforcing a
particular rule. They are not
independently enforceable, however. The
Minnesota Supreme Court retains exclusive rule-making and rule-interpreting
authority.Ftn 13 Nevertheless, the
level of interest and debate that the two recent Lawyers Board opinions
generated has brought renewed vigor and attention to the professional
responsibility field, and reflects favorably on how seriously most Minnesota
attorneys take their ethical obligations.
Notes
1 A complete copy of the opinion and accompanying
comment can be found on the website of the Lawyers Board and the Office of
Lawyers Professional Responsibility at http://www.mncourts.gov/lprb/Opinion21.pdf. The final opinion as adopted is slightly
different from the version that earlier had been posted for comment.
2 http://www.mncourts.gov/lprb/Opinion20.pdf.
4 Alaska Bar Association Ethics Committee, Opinion
2009-2, May 5, 2009.
6 North Dakota Ethics Op. 08-02 (2008).
7 See
Cole, “What We Don’t Do,” 63 Bench &
Bar of Minnesota 10 (November 2006), p. 11.
12 See
Philadelphia Bar Assn. Professional Guidance Committee Op. 2009-02, March 2009.
13 In re
Admonition Issued in Panel File 99-42, 621 N.W.2d 240 (Minn. 2001).