Quandaries & Quagmires: Ethics rule revisions on the horizon

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The Minnesota Supreme Court is reviewing a joint petition from the Lawyers Professional Responsibility Board (LPRB) and the Office of Lawyers Professional Responsibility (OLPR) to amend the Minnesota Rules of Professional Conduct. The proposed changes seek to align Rules 1.8¹ and 3.8² —concerning financial assistance to clients and prosecutors’ ethical duties—with the American Bar Association’s Model Rules. Both rule changes are intended to improve the legal practice in the state with regard to fairness, transparency, and humanitarian responsiveness. The Court has issued an order establishing a public comment period, with submissions due by June 23, 2025. The order for public comment, the joint petition, and the texts of the proposed amendments can be viewed at ADM10-8005 Order.

Financial assistance to indigent pro bono clients: Rule 1.8(e)

Under current Rule 1.8(e), lawyers are generally prohibited from providing financial assistance to clients in connection with litigation, with three exceptions. Two exceptions relate to court costs and litigation expenses and the third exception allows loan guarantees, subject to certain conditions. This restriction, while rooted in legitimate concerns about improper inducement and conflicts of interest, has created challenges for lawyers working with indigent clients in pro bono settings.³ The proposed amendment adds a humanitarian exception under paragraph 1.8(e)(4), permitting lawyers representing indigent pro bono clients to assist with basic needs that affect access to the justice system.

Specifically, lawyers representing indigent clients on a pro bono basis—whether independently or through nonprofit organizations, public interest legal groups, or law school clinical programs— would be able to provide modest gifts for basic necessities such as “food, rent, transportation, medicine, and other basic living expenses.” New Comments 11-12 clarify that these gifts must be modest, narrowly defined, and humanitarian in nature. A gift cannot influence a client’s legal decisions, create a conflict of interest, or invite abuse. Furthermore, lawyers are advised to inform clients about potential legal or financial implications of accepting such assistance, including how it might affect eligibility for public benefits. There are additional guardrails. Rule 1.8(e)(4)(i) prevents lawyers from offering gifts to establish or sustain attorney-client relationships. Rule 1.8(e)(4)(ii) bars lawyers from seeking reimbursement for these gifts from the client or any related party.

This amendment aims to fill a critical humanitarian gap in the current rule. For many indigent clients, the inability to meet basic needs can severely limit their participation in legal proceedings. By permitting limited, good-faith assistance, the amendment supports a more compassionate and practical approach to pro-bono representation while maintaining appropriate ethical safeguards.

Katy Drahos, the director of Pro Bono & Community Service Administration, Fredrikson & Byron, offered examples of gifts from a lawyer that could assist indigent, pro bono clients with access to the justice system. She noted many clients in asylum and other immigration cases lack financial resources and must often travel great distances to appear in person for an immigration hearing. “When a client can’t afford to travel that distance, a pro bono attorney can step in to cover a bus fare or provide a gift card to a gas station, ensuring the client gets to court and can present their case effectively.” Katy stated that pro bono clients in family law cases would also benefit. “In cases where clients have fled domestic violence and are locked out of their finances, attorneys may provide grocery gift cards to help feed their children—preventing the need to return to a dangerous situation just to meet basic needs.” When asked how often pro bono clients face urgent humanitarian needs that lawyers are currently prohibited from addressing Katy noted, “It is a small percentage of total pro bono cases but can be vital when the need arises.” I asked Katy if the change would encourage more attorneys to take on pro bono cases. “I think it’s important to note that attorneys won’t be expected to cover these costs, but with this proposal, they would have the option to do so. It has the potential to make the process easier for both client and attorneys, which always helps with pro bono recruitment. Lives are complicated and poverty can make that so much worse. This change could help clients meet their legal needs more creatively, increasing the impact of their representation.

The LPRB and OLPR might consider issuing an ethics opinion to assist attorneys in understanding the term “modest,” which is inherently subjective and may be interpreted inconsistently across different practice settings. Such guidance could address the duration and frequency of gifts. Can a gift exceed modest if repeated or multiple gifts are given to the same client? For example, a lawyer could reasonably conclude a one-time payment of a client’s rent to avoid eviction falls within the definition of modest, but what if a lawyer does this multiple times over the course of a representation? Without illustrative examples, both compliance and enforcement could vary widely. Additionally, guidance regarding what records, if any, lawyers should maintain regarding gifts given in connection with Rule 1.8(e)(4) and how to address a prospective client who raises the availability of gifts with a lawyer prior to retention.

Finally, it is worth noting that the petition declined to adopt the restraints on lawyer speech (advertising) about gifts found in Model Rule 1.8(e)(3)(i) and (iii), because, as the joint petition puts it, “The Board and the Director have serious concerns about the First Amendment implications of that kind of restriction on speech. They concluded that the risk of litigation re advertising restrictions outweighed the benefit, and, ultimately, the advertising restriction was not necessary to prevent misuse.

Prosecutorial ethics and post-conviction duties: Rule 3.8

The joint petition to amend Rule 3.8 came at the behest of the Great Northern Innocence Project (GNIP), which submitted a letter urging adoption of ABA Model Rule 3.8 to clarify prosecutors’ ethical duties when new or compelling evidence suggests a wrongful conviction. Their request highlighted concerns about inconsistent practices across Minnesota and emphasized the need for clearer guidance to ensure prosecutors fulfill their obligations to disclose or act on exculpatory evidence, including post-conviction. GNIP reported that half of the states had adopted versions of ABA Model Rule 3.8(g) and (h).

The proposed changes include two new paragraphs, (g) and (h), which require prosecutors to disclose new, credible, and material evidence of wrongful conviction and to take appropriate steps to investigate and remedy potential injustices. Under paragraph (g), when a prosecutor becomes aware of new, credible, and material evidence that creates a reasonable belief that a convicted defendant may be innocent, the prosecutor must promptly disclose the evidence to the appropriate court or authority. If the conviction occurred in the prosecutor’s current jurisdiction, they must also disclose the evidence to the defense—unless a court authorizes delay—and take reasonable steps to initiate an investigation.

Paragraph (h) goes further, mandating that if a prosecutor knows of clear and convincing evidence indicating that a person in their current jurisdiction was wrongfully convicted, the prosecutor must take action to remedy the conviction. These provisions underscore the prosecutor’s ethical role not merely as an advocate for conviction, but as a minister of justice responsible for ensuring the integrity of the legal system.

Inclusion of paragraphs (g) and (h) is not without complications. Prosecutors, particularly in rural or underfunded offices, may lack the resources needed to investigate old convictions when new evidence arises. Limiting a prosecutor’s investigation or remedy obligations to their current jurisdiction under (g)(2) may also create potential gaps in accountability for past cases. The LPRB and OLPR note that prosecutors would still have a duty to notify the appropriate court or authority under (g)(1), but it does not require notifying the defense when the conviction was obtained outside the prosecutor’s current jurisdiction. The LPRB and OLPR have stated that requiring a prosecutor to initiate an investigation or other remedy in a jurisdiction where they do not currently work is impractical. However, since not all states have adopted Rules 3.8(g) and (h), there may be a gap in accountability if the conviction occurred in a jurisdiction without these rules. Additionally, the new paragraphs do not include any timeframe for when an attorney must initiate an investigation under (g)(2). The prosecutor must only make “reasonable efforts to cause an investigation” and a prosecutor may be reluctant. Prosecutors may also fear professional liability or discipline, which could create a chilling effect and deter them from revisiting questionable convictions.

The petition also makes changes to Rule 3.8(d), which requires prosecutors to disclose evidence that may negate the guilt of the accused or mitigate the offense. The proposed amendment is supposed to align prosecutors’ ethical disclosure obligations more closely with constitutional and procedural standards. The revised language requires prosecutors to disclose all evidence or information required “under applicable law and procedural rules” that the prosecutor “knows or reasonably should know” tends to negate guilt or mitigate the offense. This deviates from ABA Model Rule 3.8(d), which mandates disclosing evidence that negates guilt or mitigates the offense. The LPRB and OLPR indicate that the amendment to Minnesota’s Rule 3.8(d) is intended to require prosecutors to do what caselaw and the constitution already requires. Rule 9.01 of the Minnesota Rules of Criminal Procedure requires prosecutors, upon request and without a court order, to disclose to the defense all evidence and information in their possession or control that relate to the case, including any exculpatory material. It is not clear if the inclusion of “reasonably knows” in Rule 3.8(d) will be interpreted as creating obligations beyond that required under Rule 9.

Conclusion

The proposed amendments to Rules 1.8 and 3.8 aim to improve fairness and access to justice in Minnesota. They allow modest financial support for indigent pro bono clients and create clear ethical responsibilities for prosecutors faced with new evidence of innocence. While challenges to implementation and enforcement remain, the amendments lay a solid foundation for a more compassionate legal system. Those interested in submitting public comments may do so by filing comments with the Clerk of Appellate Courts by June 23, 2025.

Cassie Hanson is a legal ethics lawyer with substantial experience in the field of ethics and professional responsibility. As Ethics Counsel at Fredrikson & Byron, P.A., Cassie is focused on legal ethics, conflict prevention and resolution, legal malpractice/loss prevention and trust account compliance. Additionally, Cassie worked for 20 years as a senior litigator and adviser at the Office of Lawyers Professional Responsibility. Cassie investigated and prosecuted high-level attorney discipline cases. She is an experienced trial attorney and appellate advocate who regularly argued complex attorney discipline cases in front of the Minnesota Supreme Court. She has advised various government agencies, law firms and other stakeholders on legal ethics and professional responsibility. Cassie is a frequent public speaker on ethics and lawyer well-being.

Notes

1. In 2020, the ABA adopted a “humanitarian exception” at Model Rule of Professional Conduct 1.8(e)(3), which governs lawyers’ (1) representation of and (2) ability to provide modest gifts to indigent clients pro bono.
2. In 2008, the ABA amended Model Rule 3.8 to include new paragraphs (g) and (h), which impose new ethical duties on a prosecutor who learns of evidence that casts doubt on a conviction.
3. Minnesota lawyers have been disciplined for making humanitarian gifts to clients. See, e.g. In re Novak, 918 N.W.2d 822 (Minn. 2018) (Discipline for misconduct including helping a client buy a TV set for his prison cell.)