Minnesota Legal Ethics: My Views on Four Legal Ethics Propositions

Introduction

As an expert in legal ethics and the author of “Minnesota Legal Ethics,” I am sharing my views on four legal ethics propositions. These propositions were stated in 2023-24 by the Minnesota Supreme Court or the Director of the Office of Lawyers Professional Responsibility (OLPR).

Proposition One

The first proposition is that a respondent attorney who does not cite authority other than a Rule of Professional Conduct forfeits their argument. I must say that this proposition is erroneous because arguments based solely on the language of a rule should be considered, and in fact, have been considered.

Arguments that rely entirely on the language of rules should not be categorically rejected. Doing so could prevent respondent attorneys from defending against new and mistaken theories of rule violations for which there is no precedent. The language of the rule is the governing law. Therefore, a lawyer’s argument based on the rule’s language must be considered.

Proposition Two

The second proposition suggests that if an attorney is personally interested, they should terminate the fiduciary representation, and there is no issue. But this proposition is erroneous because personal interest by itself does not necessarily cause a conflict of interest. Most lawyers can put their professional duties before their personal interests.

Moreover, terminating a representation over personal interests may not be necessary and can be prejudicial to a client. There are situations where the nature of the legal work may be remote from any personal feelings. Also, the representation may be near completion, and withdrawing from representation can be disadvantageous to the client.

Proposition Three

The third proposition states that extreme stress would not mitigate dishonest conduct. It’s essential to understand that in several severe cases of dishonest conduct, extreme stress was mitigating. Therefore, this proposition is wrong.

For example, McEnroe’s dishonesty of making a false statement to a court on a non-substantive matter was far less serious than that in other cases of dishonest misconduct where stress was found to be mitigating. In cases involving extensive misappropriation of client funds by an attorney, the courts found that the referee had erred in failing to address and find that “extreme stress” was a mitigating factor.

Proposition Four

The fourth proposition suggests that if you represent multiple parties in a matter, clients never consent to an actual conflict. But this proposition is false. The governing rules permit clients to consent to actual conflicts, provided the lawyer believes that they can provide competent and diligent representation to each affected client.

It’s imperative to weigh all factors in each case individually and obtain the clients’ informed consent before proceeding with the representation. Clients who are experienced with legal services and clients with independent counsel have great latitude in consenting to conflicts, particularly where counsel has a defined and known conflict of interest.

Conclusion

In conclusion, the above propositions are erroneous and need clarification. We should be very careful while choosing and interpreting legal ethics propositions. I hope my views would help understand these propositions better while making ethical decisions.

Originally Post From https://minnlawyer.com/2024/05/20/quandaries-quagmires-four-erroneous-ethics-propositions/

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