OPINIONS
OF
THE
LAWYERS PROFESSIONAL
RESPONSIBILITY BOARD
INDEX
(includes
Opinions adopted and amended through January 26, 2006)
It is the policy of the State Board of Professional Responsibility to issue, from time to time, advisory opinions as to the professional conduct of lawyers, whether as a result of a specific request or its own initiative, on matters deemed important by the Board.
The Board and the Supreme Court consider these opinions as rule interpretations that guide attorneys’ professional conduct even though they are not binding on the Court. See, In re Admonition Issued in Panel File No. 99-42, 621 N.W.2d 240 (Minn. 2001).
Opinions issued by the Board will be subject to change from time to time as deemed necessary by the Board, or as required by decisions of the Minnesota Supreme Court.
Adopted: October 27, 1972.
Amended: December 4, 1987; and
January 26, 2006.
Related authorities and other resources: Rule 4(c), Rules on Lawyers Professional Responsibility.
OPINION NO. 2
DEFENSE OF CRIMINAL CASES BY A COUNTY ATTORNEY
Repealed: January 26, 2006
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repealed opinion.
Related authorities and other resources: Incorporated in Comment 1 of Rule 1.11, Minnesota Rules of Professional Conduct (Oct. 2005).
OPINION NO. 3
PRACTICE OF LAW BY PART-TIME JUDGES
Repealed:
October 25, 2002
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repealed opinion.
Related authorities and other resources: Repeal of Opinion explained in Minnesota Lawyer, Dec. 2, 2002, p. 2. Code of Judicial Conduct, Section A of the compliance requirements.
OPINION NO. 4
WITHDRAWAL FOR NON-PAYMENT OF FEES
Repealed: October 25, 2002
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repealed opinion.
Related authorities and other resources: Repeal of Opinion explained in Minnesota Lawyer, Dec. 2, 2002, p. 2. Rule 105, Minnesota General Rules of Practice for the District Courts; Rule 83.7, Local Rules of the United States District Courts for the District of Minnesota.
OPINION NO. 5
FAILURE TO COMPLY WITH FEE ARBITRATION DECISION
Repealed: January 26, 2006
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repealed opinion.
Related authorities and other resources: Incorporated into Rule 8.4(i), Minnesota Rules of Professional Conduct (Oct. 2005).
OPINION NO. 6
DEFENSE OF CRIMINAL CASES BY MUNICIPAL ATTORNEYS
Repealed: January 26, 2006
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repealed opinion.
Related authorities and other resources: Incorporated in Comment 1 of Rule 1.11, Minnesota Rules of Professional Conduct (Oct. 2005).
OPINION NO. 7
INDEBTEDNESS INCURRED FOR PROFESSIONAL SERVICES
ON BEHALF OF CLIENTS
Repealed: January 7, 1983
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repealed opinion.
Related authorities and other resources: Repeal of opinion explained in Minnesota Bench & Bar, July 1997 at p.16; Minnesota Bench & Bar, March 1983 at p. 35.
OPINION NO. 8
ATTORNEYS' GUIDELINES FOR
LAW OFFICE SERVICES BY NON-LAWYERS
Except to the extent permitted by the Supreme Court of the State of Minnesota, (e.g., Student Practice Rules) neither law students nor any other person not duly admitted to the practice of law shall be named on pleadings under any identification.
Legal assistants, or other paralegal employees, may be listed on professional cards, professional announcement cards, office signs, letterheads, telephone directory listings, law lists, legal directory listings, or similar professional notices or devices, so long as the paralegals are clearly identified as such, and so long as no false, fraudulent, misleading, or deceptive statements or claims are made concerning said paralegals, their legal status and authority, or their relationships to the firms by which they are employed. Paralegals may use business cards so identifying themselves, which cards carry the law firm's name and address.
Such a paralegal, so identified, may sign correspondence on behalf of the law firm, provided he or she does so by direction of an attorney-employer.
Non-lawyers must be supervised by an attorney who is responsible for their work. See, Rules 5.3 and 5.5 and Comments, Minnesota Rules of Professional Conduct.
Adopted: June 26, 1974.
Amended: June 18, 1980;
December 4, 1987; and
January 26, 2006.
OPINION NO. 9
MAINTENANCE OF BOOKS AND RECORDS
Repealed: January 26, 2006
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repealed opinion.
Related authorities and other resources: Pursuant to Rule 1.15(i), Minnesota Rules of Professional Conduct (Oct. 2005), is now Appendix 1 to 2005 Minnesota Rules of Professional Conduct. Brochures entitled: Instructions for Using Quicken 5.0 with Windows 95 or Windows 3.1 for Maintaining, Balancing and Reconciling Minnesota Lawyer Trust Accounts; and Other People's Money available from the Office of Lawyers Professional Responsibility; In re Isaacs, 451 N.W.2d 209 (Minn. 1990).
OPINION NO. 10
DEBT COLLECTION PROCEDURES
Repealed: October 25, 2002
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repealed opinion.
Related authorities and other resources: Repeal of Opinion explained in Minnesota Lawyer, Dec. 2, 2002, p. 2. In re DeVinney, 255 N.W.2d (Minn. 1977).
OPINION NO. 11
ATTORNEYS' LIENS
Repealed: January 26, 2006
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repealed opinion.
Related authorities and other resources: Incorporated into Rule 1.16(g), Minnesota Rules of Professional Conduct (Oct. 2005).
OPINION NO. 12
TRUST ACCOUNT SIGNATORIES
Repealed: January 26, 2006
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repealed opinion.
Related authorities and other resources: Incorporated into Rule 1.15(j), Minnesota Rules of Professional Conduct (Oct. 2005); Brochure entitled Other People's Money available from the Office of Lawyers Professional Responsibility.
OPINION NO. 13
COPYING COSTS OF CLIENT FILES, PAPERS AND PROPERTY
Client files, papers and property, whether printed or electronically stored, shall include:
1. All papers and property provided by the client to the lawyer.
2. All pleadings, motions, discovery, memorandums, and other litigation materials which have been executed and served or filed regardless of whether the client has paid the lawyer for drafting and serving and/or filing the document(s).
3. All correspondence regardless of whether the client has paid the lawyer for drafting or sending the correspondence.
4. All items for which the lawyer has advanced costs and expenses regardless of whether the client has reimbursed the lawyer for the costs and expenses including depositions, expert opinions and statements, business records, witness statements, and other materials which may have evidentiary value.
Client files, papers and property, whether printed or electronically stored, shall not include:
1. Pleadings, discovery, motion papers, memoranda and correspondence which have been drafted, but not sent or served if the client has not paid for legal services in drafting or creating the documents.
2. In non-litigation settings, client files, papers and property shall not include drafted but unexecuted estate plans, title opinions, articles of incorporation, contracts, partnership agreements, or any other unexecuted document which does not otherwise have legal effect, where the client has not paid the lawyer for the services in drafting the document(s).
A lawyer who has withdrawn from representation or has been discharged from representation, may charge a former client for the costs of copying or electronically retrieving the client's files, papers and property only if the client has, prior to termination of the lawyer's services, agreed in writing to such a charge. Such copying charges must be reasonable. Copying charges which substantially exceed the charges of a commercial copy service are normally unreasonable.
A lawyer may not condition the return of client files, papers and property on payment of copying costs. Nor may the lawyer condition return of client files, papers or property upon payment of the lawyer's fee. See Opinion No. 11 of the Lawyers Professional Responsibility Board.
A lawyer may withhold documents not constituting client files, papers and property until the outstanding fee is paid unless the client's interests will be substantially prejudiced without the documents. Such circumstances shall include, but not necessarily be limited to, expiration of a statute of limitations or some other litigation imposed deadline. A lawyer who withholds documents not constituting client files, papers or property for nonpayment of fees may not assert a claim against the client for the fees incurred in preparing or creating the withheld document(s).
Adopted: June 15, 1989.
Related authorities and other resources: Minnesota Statutes §481.13 and
§481.14; and
Minnesota Bench & Bar, August 1989 at p. 11.
OPINION NO. 14
ATTORNEY LIENS ON CLIENT HOMESTEADS
Repealed: April 4, 2003
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repealed opinion.
Related authorities and other resources: Minnesota Bench & Bar, August 1990 at p. 13, Minnesota Bench & Bar, November 1982 at p. 25.
OPINION NO. 15
ADVANCE FEE PAYMENTS AND AVAILABILITY OR
NON-REFUNDABLE RETAINERS
Repealed: January 26, 2006
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repealed opinion.
Related authorities and other resources: Incorporated into Rules 1.5(b) and 1.15(c), Minnesota Rules of Professional Conduct (Oct. 2005); Brochure entitled Other People's Money available from the Office of Lawyers Professional Responsibility; Minnesota Bench & Bar, November 1991 at p. 11.
OPINION NO. 16
INTEREST AND LATE CHARGES ON ATTORNEYS FEES
Repealed: October 25, 2002
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repealed opinion.
Related authorities and other resources: Repeal of Opinion explained in Minnesota Lawyer, Dec. 2, 2002, p. 2. Minnesota Bench & Bar, October 1989 at p. 18; Yilek, "Interest and Late Charges: How to Charge Clients," Minnesota Bench & Bar, March 1991 at p. 18.
OPINION NO. 17
ACCEPTING GRATUITIES FROM COURT REPORTING SERVICES
AND OTHER SIMILAR SERVICES
A lawyer ought not to accept, or to permit any nonlawyer employee to accept, a gratuity offered by a court reporting service or other similar service for which a client is expected to pay unless the client consents after consultation. However, a lawyer may accept nominal gifts, such as pens, coffee mugs, and other similar advertising-type gifts without consent of the client. See Rules 1.4, 1.5(a), 1.8(f)(1) and 5.3, Minnesota Rules of Professional Conduct (MRPC). See also Rule 1.0(c), MRPC.
Adopted: June 18, 1993.
Amended: January 26, 2006.
Related authorities and other resources:
Minnesota Bench & Bar, August
1993 at p. 14; ABA Informal Opinion 278 (undated); and Alabama Bar Opinion
RO-89-83 (1989).
OPINION NO. 18
SECRET RECORDINGS OF CONVERSATIONS
Repealed: April 18, 2002
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repealed opinion.
Related Authorities and other resources: Repeal of opinion explained in Minnesota Lawyer, June 3, 2002. Minnesota Bench & Bar, Nov/Dec 1996 at p.19.
OPINION NO. 19
USING TECHNOLOGY TO COMMUNICATE
CONFIDENTIAL INFORMATION TO CLIENTS
A lawyer may use technological means such as electronic mail (e-mail) and cordless and cellular telephones to communicate confidential client information without violating Rule 1.6, Minnesota Rules of Professional Conduct (MRPC). Such use is subject to the following conditions:
Adopted: January 22, 1999.
Comment
A lawyer may not knowingly reveal a confidence or secret of a client. Rule 1.6(a)(1). A lawyer should exercise care to prevent unintended disclosure. See Comment to Rule 1.6. For example, the lawyer should avoid professional discussions in the company of persons to whom the attorney-client privilege does not extend. Id. Similarly, a lawyer should take reasonable steps to prevent interception or unintended disclosure of confidential communications. All communication carries with it some such risk, for example by eavesdropping, wiretapping, or theft of mail. The precautions to be taken by a lawyer depend on the circumstances, including the sensitivity of the information, the manner of communication, the apparent risks of interception or unintended disclosure, and the client's wishes.
The purpose of this opinion is to address concerns that certain devices or methods may not be used by lawyers to communicate client confidences or secrets because they do not guarantee security. The committee believes absolute security is not required, and that the use of new technology is subject to the same analysis as the use of more traditional methods of communication.
This opinion reflects the prevalent view of other states and technology experts, that communications by facsimile, e-mail, and digital cordless or cellular phones, like those by mail and conventional corded telephone, generally are considered secure; their interception involves intent, expertise, and violation of federal law. Some states have required client consent or encryption for the use of e-mail, but the majority of recent state ethics opinions sanction the use of e-mail without such requirements. The committee finds the reasoning of the latter opinions persuasive. Communications by analog cordless or cellular phones generally are considered insecure; they may be intercepted intentionally or inadvertently with unsophisticated and readily available equipment, such as other similar phones or scanners. This opinion presumes that the digital telephone is being used in a location where digital service is available. Some digital cell telephones are programmed to convert automatically to analog service when brought into a location where digital service is not available. When this is the case, the precautions for analog cellular telephones apply.
The opinion intentionally omits facsimile machines, which typically transmit data over conventional telephone lines. With facsimile machines, the concerns are less with interception than with unintended dissemination of the communication at its destination, where the communication may be received in a common area of the workplace or home and may be read by persons other than the intended recipient. The Director has received client complaints involving such situations and cautions lawyers to take reasonable precautions to prevent unintended dissemination. Similar concerns may be raised by voice-mail and answering machine messages.