In a September 2022 column, Susan Humiston, the director of the Office of Lawyers Professional Responsibility repeats an interpretation of Rule 4.3(d), Minn. R. Prof. Conduct, that her predecessor, Martin Cole, stated in 2015: “The rule does not require an attorney to advise an unrepresented person in all instances to secure counsel, although since Rule 4.3(c) places the obligation upon a lawyer to reasonably know if the person misunderstands the lawyer’s role, caution is advised.”1 This statement has two problems. First, it is erroneous because there are no circumstances in which Rule 4.3(d) requires an attorney to advise an unrepresented person to secure counsel. Second, the statement, and other statements in the current column, were taken without attribution from Mr. Cole’s 2015 column.
OLPR has misinterpreted Rules 4.3(d) several times over a 25-year period, even after OLPR’s positions have been found to be erroneous by a Lawyers Board panel, by OLPR’s own admission, and by a Supreme Court order.
To recognize OLPR’s errors, it is important to understand what Rule 4.3(d) does and does not require. Rule 4.3(d) provides, “In dealing on behalf of a client with a person who is not represented by counsel: * * * (d) a lawyer shall not give legal advice to the unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of the unrepresented person are or have a reasonable possibility of being in conflict with the interests of the client.”
The key points are (1) Rule 4.3(d) includes a “shall not give legal advice” provision; (2) but Rule 4.3(d) does not include a “shall” provision. Without a “shall” provision, Rule 4.3(d) cannot, in the nature of the case, be interpreted to require that an attorney affirmatively take any action. Rule 4.3(d) permits but does not require an attorney to advise an unrepresented person to secure counsel. Rule 4.3(d) never requires an attorney to advise an unrepresented person to secure counsel. In fact, Rule 4.3(d) never requires an attorney to do anything at all.
Ms. Humiston’s 2022 column is almost entirely correct in describing Rule 4.3(d). The column uses the heading, “No Legal Advice.” The column states, correctly, “Rule 4.3(d) prohibits an attorney from giving legal advice to the unrepresented person, except for the limited advice to secure their own legal counsel, if the lawyer knows or reasonably should know that the person’s interests conflict with the interests of the lawyer’s client.” Unfortunately, the 2022 column veers into error by repeating the 2015 column’s statement, “The rule does not require an attorney to advise an unrepresented person in all instances to secure counsel, . . ..” The import of this statement is that in some, indeed apparently in most, situations Rule 4.3(d) requires an attorney to advise an unrepresented person with adverse interests to secure counsel. The statement should be amended to, “The rule does not require an attorney to advise an unrepresented person in any instance to secure counsel.”
OLPR’s Rule 4.3(d) error first occurred in 1997, when OLPR issued an admonition to an attorney for conduct including alleged violation of Rule 4.3(d), by not advising an unrepresented deponent with adverse interests that she could retain counsel. The attorney appealed. A Board panel found no violation of Rule 4.3(d) and dismissed the admonition.2
OLPR’s Rule 4.3(d) error next occurred in 2015, when Mr. Cole’s column made the statement repeated in Ms. Humiston’s current column, “The rule [4.3(d)] does not require an attorney to advise an unrepresented person in all instances to secure counsel, …”
OLPR’s Rule 4.3(d) error occurred a third time in a December 30, 2019, Petition for Disciplinary Action. The petition alleged that an attorney, Mulligan, represented T.N. T.N. was charged with felony possession of a gun and drugs. Mulligan interviewed T.N.’s wife, as the “possible alternate” possessor of the gun and drugs. Mulligan did not advise Ms. N. to secure counsel. Mulligan admitted all of the petition’s allegations, including, “Mulligan’s conduct in failing to advise T.N.’s wife … to seek counsel … violated … Rule 4.3(d).” The Minnesota Supreme Court entered an order disciplining Mulligan for violating rules including Rule 4.3(d).
The Mulligan case prompted discussion among ethics lawyers. The director, Ms. Humiston, was advised that Rule 4.3(d) cannot be violated by a failure to advise a person of the right to secure counsel. To her credit, Ms. Humiston admitted the error and filed a Motion to Amend Order. The Motion explained, “there is no evidence in the petition that respondent gave the witness legal advice in violation of Rule 4.3(d), MRPC.” The Court issued an amended order, deleting its prior finding of a Rule 4.3(d) violation.3
An article on Mulligan was titled To Err is Human . . .What Next?4 The article pointed out the importance of acknowledging errors and taking corrective action. OLPR succeeded admirably in this regard. The article also discussed the importance of taking steps to ensure mistakes are not repeated, “The knowledge management systems problem revealed by the Rule 4.3(d) charge is that Board precedents are not systematically saved and retrieved * * * Comprehensive, up-to-date information on important rulings is needed to avoid repeating yesteryear’s errors.” Id. The latest repetition of OLPR’s mistake, in this month’s column, raises the question of whether an effective knowledge management system has been adopted.5
When is it good practice — as opposed to a Rule 4.3(d) requirement — to advise a person with adverse interests to retain counsel? What types of situations often make it difficult for an attorney not to give legal advice to an unrepresented person? Those subjects are beyond the scope of this article, but both the 2015 and the 2022 OLPR columns discuss how landlord-tenant, family law, and suits against pro se parties can be particularly challenging.6
This month’s OLPR column makes another serious error, namely a failure to attribute several statements made in the author’s name to their actual author, Martin Cole. The statement of the 2022 Humiston column quoted at the beginning of this article repeats the 2015 Cole column article except for one word. The 2022 column does not cite the 2015 column as the source of this statement or as the source of other sentences that it repeats from the 2015 article more or less verbatim. For example, compare:
The 2022 column also borrowed its basic structure from the 2015 column. Readers reasonably expect an author to tell them when words, thoughts, and structures that are presented in her name in fact originate with another author. This expectation is stronger when the author is the state’s chief legal ethics officer and she is writing about the ethical obligations of attorneys. The Cole column was speaking in a distinct authorial voice in explicating the meaning of “disinterested.” That voice belongs to its author.
Mr. Cole stated his views in his pointedly titled column, I Wrote This Article Myself, Bench & B. of Minn., July 1993. The column described several instances of attorneys recycling others’ work without attribution. Mr. Cole’s 1993 column concluded, “I can truthfully state that I wrote this article myself. It is a matter of professional responsibility that all lawyers always be able to say the same.”
It is again time to ask: “To err is human. What next?” It is also time to ask two more questions: When will OLPR have a knowledge management system that prevents repeatedly making the same mistake? Do we agree with Mr. Cole that it is a matter of professional responsibility that all lawyers should either cite their sources or be able to say — without substantial qualification — “I wrote this article myself?”
William J. Wernz is the author of the online treatise, “Minnesota Legal Ethics.” He has been a member of the Board on Judicial Standards, and he has served as Dorsey & Whitney’s ethics partner and as director of the Office of Lawyers Professional Responsibility.