Brushing up on Ethics Rules in MN

Thu, Feb 10, 2011

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By Francis Rojas

When was the last time you checked out the proposed rules and amendments to Minnesota Ethics?

For example, on the Board’s Opinion 22, the Ethics Board urges all attorneys to take care of what documents are being produced and if you are producing critical metadata, which may adversely affect your client. In other words, be careful of what you are sending. Make sure the document that you are sending does not have any work product or attorney client privilege notes added to its metadata. A very simple easy way to deal with this is by providing the document in a PDF format.

The Board’s Opinion 21 describes the duty of an attorney to discuss possible malpractice with his/her clients. The Board states,

A lawyer who knows that the lawyer’s conduct could reasonably be the basis for a non-frivolous malpractice claim by a current client that materially affects the client’s interests has one or more duties to act under the Minnesota Rules of Professional Conduct.

In other words, the lawyer must keep the client reasonably informed of aspects of the representation, permit the client to make decisions regarding the representation, and assuring how the goals will be accomplished.

It is important to note that throughout Opinion No. 21, the Board makes clear that other jurisdictions also impose an ethical duty on attorneys to report malpractice to their clients.

Lastly, there is a current opinion pending that will be in effect on July 1, 2011. This rule dictates fee agreements, retainers, and trust accounts. So be sure to brush up on the new rules and make sure your agreements state all the necessary information and that you are complying pursuant to the amended ethical rule.

Ethics

This post was written by:

Francis Rojas - who has written 31 posts on JDs Rising.

Francis practices in the areas of employment and labor law. She focuses on helping workers who have experienced employment discrimination, harassment and retaliation. In addition, Francis counsels workers who have experienced wage and hour violations. Francis also advises workers in union organizing campaigns and assists unions with contract enforcement. She graduated from William Mitchell College of Law in 2008 and has a B.A. in Psychology and Sociology from Augsburg College. While in law school, Francis interned with the Equal Employment Opportunity Commission. She also helped individuals and non-profit organizations through the William Mitchell Civil Advocacy Clinic and the Tax Planning Clinic. Francis was born in Bogotá, Colombia and is fluent in Spanish.

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2 Comments For This Post

Peter Swanson Says:
February 11th, 2011 at 9:05 am

It is important to remember that these opinions are merely advisory and not “new rules.” The Minnesota Supreme Court has said attorneys can not be disciplined for purported violations of same. There could be discipline based on the underlying conduct, if it violates one of the Court’s Rules of Professional Conduct. Also, Minnesota Lawyer published an October 12, 2009 article about the controversy surrounding Opinion 21.

The link to the pending “opinion” appears to be a proposed amendment to the Rules of Professional Conduct. It is important to distinguish between LPRB opinions and the rules themselves.

Finally, with respect to metadata, a converted PDF document could still have metadata, while a document that is printed and then scanned could not.

Francis Says:
February 11th, 2011 at 10:16 am

Those are well made points.

Regarding the PDF, you really have to be careful – and I agree with your statement. With a PDF you can still have highlights and comments, and the metadata might not be completely stripped.

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