What Minnesota Legal Ethics Is All About

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

What Minnesota Legal Ethics Is All About

Most of this treatise is casuistry, that is, the application of the Rules of Professional Conduct to detailed factual situations, usually found in cases. Because lawyers are pragmatists, they should find this type of hair-splitting familiar and useful. Before becoming absorbed with particulars, however, it is best to survey the broad landscape of Minnesota legal ethics. This chapter is a survey, from several broad perspectives—philosophy, history, human relations, systems analysis, and good stories among them. Most of the topics and people introduced here will receive more detailed consideration in the following chapters.

A companion to this treatise is a handbook, Dealing With and Defending Ethics Complaints. The first edition of the handbook was published in 2017. Like this treatise, the handbook is free, online, hosted by MSBA, and updated annually. Unlike this treatise, the handbook primarily draws on my experience in investigating, prosecuting, and defending ethics complaints. This treatise addresses the meaning and application of substantive regulations, that is, the Rules of Professional Conduct. Dealing With and Defending Ethics Complaints addresses the applications of procedural regulations, that is, the Rules on Lawyers Professional Responsibility.

The Rules recognize that broad perspectives are needed. "The rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by rules." Minn. R. Prof. Conduct Scope ¶ 16. A lawyer's advice may well include "considerations such as moral, economic, social, and political factors ... ." Rule 2.1.

The historical sections of this chapter and treatise will introduce the reader to colorful characters and cases. "Ethics" is related to "ethos"—the characteristic spirit of a culture. Stories about Minnesota lawyers and judges, from cases and history, often best describe our character and ethics.

Moral considerations are built into rule-making. When may or must a lawyer disclose confidential information to save a life, to rectify wrongdoing, or to prevent fraud? When may or must a lawyer before a tribunal introduce evidence that the lawyer reasonably believes is false? Rules 1.6 and 3.3 address these issues, based in part on degrees of knowledge.

Epistemology—that is philosophical consideration of degrees and nature of knowledge—is found in the very first Rule of Professional Conduct. Rule 1.0 defines "belief," "knowledge," "reasonable belief," and "reasonably should know." Rule 3.3 cmt. 8 advises, "although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood." Lawyers who cannot recognize and apply definitions of mental states lead lives of constant danger.

Equally prone to problems are lawyers who do not precisely identify, and recognize the consequences of, their relationships and the relationships of their clients with others. These relationships and consequences generally are not defined by the Rules, but by the common law and by understandings of the social aspects of human nature.

Theological considerations are found in Minnesota ethics cases. Has a petitioner for reinstatement after disbarment "restored her soul" or been "redeemed?" Demonstrating "remorse" is important for mitigating discipline, as well as for gaining or regaining a law license after misconduct; but what is remorse? The court has addressed these issues, using theological and philosophical vocabularies.

The people of Minnesota, through the Legislature, require lawyers' allegiance to basic moral principles. Initiation into the profession requires a solemn oath of fealty to such principles. Litigators who use "any deceit" commit misdemeanors and are, by statute, liable for treble damages.

Instead of being "the author," who appears throughout the treatise, I will appear in this chapter in the first person. Since 1981, my career has been in legal ethics, as prosecutor, as defense counsel, as advisor, as administrator, as teacher, and as writer. In some of the leading cases and stories, I was a lawyer or observer.

When I first undertook to write Minnesota Legal Ethics, I was asked, "Is there enough about legal ethics that's special to Minnesota to write a book?" In over thirty-five years as a lawyer specializing in legal ethics, the most common question from non-lawyers has been, "Legal ethics—isn't that an oxymoron?" I hope that readers of this treatise will not ask these questions. If they do, then Samuel Johnson's dictum may be true of me—"No one but a blockhead ever wrote except for money."

Several entities and persons have played important roles in the Minnesota attorney professional responsibility system—the Minnesota Supreme Court, the State Bar Association and its committees, the Lawyers Professional Responsibility Board, the Office of Lawyers Professional Responsibility and its Director, and the Client Security Board. In days gone by, the Board of Law Examiners and the Minnesota Legislature also played important roles. Short histories of thsee roles can be found in three articles. The first article is William J. Wernz, Out, Damned Spot! The Creation of the Client Security Board, BENCH & B. OF MINN., Feb. 2018. The second article is titled, William J. Wernz, Whence Lawyer Discipline? The Origins and Evolution of the Lawyers Professional Responsibility Board, BENCH & B. OF MINN., July 2018. The third article is William J. Wernz and Sara Boeshans, Who Will Judge the Judges? The Origins of Judicial Discipline in Minnesota, BENCH & B. OF MINN., Dec. 2018. The Minnesota Supreme Court has always had ultimate responsibility for legal ethics. In 1971, the Lawyers Board and the Board's "Administrative Director" were created by the Court. From 1971 to 1987, various responsibilities for discipline cases were shifted from the Board and from MSBA committees to the Director. These shifts resulted in the Director having, by far, the greatest day-to-day responsibility for dealing with ethics complaints and handling discipline cases. Interesting memories of these early years are found in an interview of Allen I. Saeks, a member of the original Lawyers Board. Charles E. Lundberg, Quandaries and Quagmires, Allen Saeks: More Than 50 Years of Legal Ethics, MINN. LAW., Dec. 2017.

I. MINNESOTA LEGAL ETHICS IS ABOUT MORALS—ABOUT REDEMPTION, REMORSE, ROLES, AND RELATIONSHIPS

A. "Mr. Wernz, Don't You Believe That All Human Beings Can Be Redeemed?"

Justice Kelley wanted to know whether the position of the Office of Lawyers Professional Responsibility (OLPR), that T. Eugene Thompson should be permanently disbarred, squared with the court's view of human nature.

If memory serves, my answer was, "Your honor, the Director concedes that people, generally, are capable of transformation. Mr. Thompson is, however, a special case. He was disbarred twenty years ago, after conviction for hiring the murder of his wife. Upon release, he misappropriated a widow's assets. Mr. Thompson's only character witness acknowledged that truth-telling was not among his virtues. Even if Mr. Thompson might some day replace corruption with virtue, the Court could never confidently certify to the public his fitness to handle their most intimate and important affairs."

Thompson was not reinstated, but neither was he permanently disbarred. In re Thompson, 365 N.W.2d 262 (Minn. 1985).¹ The court apparently acted on the conviction that "all human beings can be redeemed." Thompson sought to revive his own career by seeking a limited license as a jailhouse lawyer. The Minnesota Supreme Court commissioned a study, which recommended against such a license. The Court accepted the recommendation and explained, "While it is not our intent to forever preclude incarcerated attorneys from using their legal training and experience to the benefit of fellow prisoners, we have concluded, based upon our own study and consideration as well as the report of the State Board of Law Examiners, that we must deny respondent's request at this time." In re Thompson, 209 N.W.2d 412 (1973).

In other reinstatement, bar admission, and discipline cases, the court has used a resonant, even religious, vocabulary: "contrition," "atonement," "remorse," and "repentance" are not just the words used, they are decisive criteria. William J. Wernz, Character, Fitness & Redemption, BENCH & B. OF MINN., Oct. 2007, at 19, 19. In a reinstatement case, the court noted, a character witness testified that the petitioner had "restored her soul." In re Ramirez, 719 N.W.2d 920, 924 (Minn. 2006).

B. More Moral Philosophy—Is Remorse Possible Without Amends or Apologies or Recognition of Wrongdoing?

Moral philosophy has been central to the court's decision-making. For example, in 2010 alone, the court answered three important questions about the nature and importance of "remorse."

First, how important are findings regarding remorse to determining discipline and how are the findings to be made? Several discipline cases state that remorse is a very important substantive consideration which is subject to considerable procedural nuance. A discipline trial judge normally commits clear error by failing to consider remorse, but subject to four qualifications. First, if neither party raises the issue of remorse, the judge who makes no finding regarding remorse does not err. In re Tigue, 843 N.W.2d 583 (Minn. 2014). Second, even where the parties do not raise the issue of remorse, the judge may make findings on remorse. Id. Third, where the judge fails to make findings regarding remorse, the supreme court may make its own finding, based on careful review of the record. In re Fairbairn, 802 N.W.2d 734 (2011). Fourth, if misconduct is sufficiently serious, the error may not affect otherwise appropriate discipline. In re Albrecht, 779 N.W.2d 530 (Minn. 2010).

Second, to demonstrate...