Interpreting and Applying the Rules and Other Authorities

• Library: Minnesota Legal Ethics: A Treatise (MSBA) (2022 Ed.)

Interpreting and Applying the Rules and Other Authorities

I. INTRODUCTION: SOURCES, ISSUES, LIMITATIONS

What resources are available for interpreting and applying the Minnesota Rules of Professional Conduct? What standards have been used for interpreting the Rules themselves? These sources and interpretative issues are identified and discussed in this chapter, beginning with the following introductory notes on the nature and limitations of the sources.

A. Court Interpretations

The Minnesota Supreme Court's interpretations of the Rules are authoritative. The applications of these interpretations are, however, limited because they are most often made in cases imposing discipline for extreme departures from ordinary standards. Many issues that arise in ordinary practice settings do not come before the court as discipline issues or otherwise. Most public discipline cases do not present refined issues of Rule interpretation.

B. Semi-Private Resources

Private admonitions, issued for "isolated and non-serious misconduct," are more likely to present close questions, but few admonitions are appealed to the court. Advisory opinions issued by the Office of Lawyers Professional Responsibility (OLPR) are both numerous and oriented toward daily practice issues. OLPR publishes annual summaries of admonitions and advisory opinions that offer some access to these resources.

C. The Rules

How are the Rules themselves to be interpreted? The Rules present interpretative issues, such as whether they are to be strictly or broadly construed. For the most part, disciplinary interpretations have tended not to give the Rules broad or vague meanings, in contrast to interpretations of the predecessor Code of Professional Responsibility, which included its "spirit," as well as its literal meaning. However, some Rule, e.g., Rule 8.4(d) (prohibiting conduct "prejudicial to the administration of justice") are so broadly framed that strict construction has not been the norm.

D. Comments

The status of the comments to the Rules in Minnesota is not simple, clear or consistent. The comments to the ABA Model Rules are "guides to interpretation," according to the Scope section of the Rules. In some cases, however, the comments are drafted or interpreted to be mandatory. For example, Rule 1.7 cmt. 11 states that a lawyer "may not represent a client in a matter" involving certain personal relationships, unless there is consent, even though Rule 1.7 itself has no such express provision. Similarly, Rule 4.2 cmt. 7, which identifies the persons related to a represented entity who may not be contacted by counsel, has been held to "establish" the law on the subject. State v. Miller, 600 N.W.2d 457, 467 (Minn. 1999). In any event, the Minnesota Supreme Court has repeatedly declined to adopt the comments en bloc. However, the court not infrequently cites individual comments, as well as the Preamble and Scope sections. Notwithstanding the court's declinations to adopt the comments even as guides, the OLPR has adopted the comments for its own uses and the Lawyers Professional Responsibility Board (LPRB) also cites the comments. A Board Chair, before leaving office, shared personal reflections and appreciations regarding the comments. Judith M. Rush, A Commentary on the Comments, BENCH & B. OF MINN., May/June 2015.

E. Board Opinions

The limitations of LPRB Opinions are threefold. LPRB Opinions are "advisory," not authoritative. They are limited, by case law, to interpreting the "plain meaning" of the Rules. They have been issued infrequently and repealed often.

F. Statutes

Certain Minnesota statutes are incorporated by reference (sometimes very obliquely so) into the Rules' references to outside law. Other statutes, particularly Chapter 481, "Attorneys at Law," purport to govern attorneys. On some subjects, the court has asserted its primacy over the legislature in governing attorneys as officers of the court. On other subjects, the court has either recognized the validity of statutes applying to attorneys or has adopted parallel regulations as a matter of comity.

G. Restatement and ABA Opinions

Where important issues have not been addressed by the court, or by other Minnesota authorities, national authorities—especially the Restatement (Third) of the Law Governing Lawyers and the Formal Opinions of the ABA Standing Committee on Ethics and Professional Responsibility—will be cited here. These authorities are frequently cited by OLPR.

H. OLPR Opinions and Website

OLPR renders over two thousand informal opinions annually. The OLPR/LPRB website provides a very large and useful collection of Minnesota ethics materials, including rules, OLPR and LPRB articles, public discipline records, trust account guides, and links for seeking advisory opinions. Helpful indices, arranged by rule and by subject matter, are also included. Although these resources are very useful, they also have important limitations, discussed below.

II. THE RULES, CODE AND CANONS

A. Rules/Code/Canons

The Minnesota Rules of Professional Conduct (Rules) were first adopted by the Minnesota Supreme Court effective September 1, 1985. They superseded the Minnesota Code of Professional Responsibility, which the Court had adopted in 1970. The Code had been preceded by the Canons of Ethics. The ABA approved the Canons in 1908 but the Canons were not adopted in Minnesota until 1955. Before 1955, Minnesota discipline cases cited a variety of authorities, including case law precedent, the ABA Canons (as weighty, but not precedential), the common law, and the attorney's oath on admission to practice.

B. Code Deficiencies

An important consideration in the transition from Code to Rules was the belief that the tripartite structure of the Code—Disciplinary Rules, Ethical Considerations, and Canons—caused confusion among the mandatory, the aspirational, and the advisory. In Minnesota, at least one lawyer was disciplined by the court for violation of an Ethical Consideration. In re Prueter, 359 N.W.2d 613, 616 (Minn. 1984) ("We agree with the referee that a violation of Ethical Consideration 5-5 of the Minnesota Code of Professional Responsibility has occurred.")

C. Rules Amendments

After adoption of the Rules in 1985, the only sweeping series of amendments was adopted effective October 1, 2005. Again, the impetus for change came from ABA Model Rule amendments. The Minnesota State Bar Association, which petitioned for the 2005 Rules amendments, adopted a principle that it would follow the Model Rules unless there was a strong reason not to do so. The 2005 amendments closely track the Model Rules. See Kenneth L. Jorgensen and William J. Wernz, New Directions in Professional Conduct: The Devil is in the Details, Bench & B. of Minn., Sept. 2005, at 15, 18-19.

D. Canons

In 1908, the ABA adopted the Canons of Ethics, which were thereafter approved by the MSBA. The Minnesota Supreme Court declined to adopt the canons until 1955. MINN. STATE BAR ASS'N, FOR THE RECORD: 150 YEARS OF LAW AND LAWYERS IN MINNESOTA, 135 (1999). Before 1955, the Minnesota Supreme Court gave great weight to the Canons, but did not regard them as binding. In re McDonald, 204 Minn. 61, 282 N.W. 677 (1938). The court expressed incredulity that an attorney would not be aware of the Canons. Id. at 71-72, 282 N.W. at 683-84. See also In re Tracy, 197 Minn. 35, 36-37, 266 N.W. 88, 89 (1936). Lawyers of a certain age sometimes cite "the Canons" as shorthand for ethics rules. There are no "canons" in the Rules, so the reference is either to the ABA Canons of Ethics, or the "statements of axiomatic norms" in the Code that were called "Canons." Code, Preliminary Statement.

III. THE RULES: GENERAL CONSTRUCTION

A. 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. [14]. Because "reasonable" and its cognates are defined by the conduct of prudent and competent lawyers, interpretation of the Rules should consider the customs and practices of good lawyers. Rule 1.0. The Scope section also indicates that most of the Rules are imperative (using "shall"), but some are advisory or permissive (using "may"). Id.

B. Plain Meaning

The Court has provided a helpful compendium of interpretative sources that it uses. "In interpreting the plain language of the Rules of Professional Conduct, we may consider dictionary definitions, as we do when we interpret statutes. See, e.g., In re Torgerson, 870 N.W.2d 602, 610 (Minn. 2015); In re Panel Case No. 19453, 690 N.W.2d 716, 720 (Minn. 2005). We may also consider the comments to the Rules; precedent from our court and foreign jurisdictions; and outside resources, such as the Restatement and the A.B.A. Model Rules. See, e.g., Panel File No. 41310, 899 N.W.2d at 826; In re Panel File No. 39302, 884 N.W.2d 661, 665-68, 670 (Minn. 2016)." In re Panel File No. 41755, 912 N.W.2d 224 (Minn. 2018). The dictionaries used by the Court in professional responsibility matters are usually BLACK'S LAW DICTIONARY AND THE AMERICAN HERITAGE DICTIONARY. The Court's reference to "the Restatement" is to THE RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS (2000). The Court and OLPR also sometimes consider the Formal Opinions of the ABA Standing Committee on Ethics and Professional Responsibility.

C. Clear and Convincing Standards

For discipline to be imposed, OLPR must prove factual allegations by "cogent and compelling evidence." In re Schmidt, 402 N.W.2d 544, 545 (Minn. 1987). "While it is not necessary to establish a charge against an attorney at law which will result in his disbarment beyond a reasonable doubt, yet such a charge is so grave, and the consequences of a conviction so serious, that something more than a preponderance of the evidence-the rule in civil actions-is required. The rule in such a case is...