A trade name may be used by a lawyer in private practice if it ... is not otherwise in

violation of Rule 7.1. Comment 1 to Rule 7.5, MRPC, states, in pertinent part, that "the use of trade names ... is acceptable so long as it is not misleading." Rule 7.1, MRPC, states: A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. Comment 2 to Rule 7.1, MRPC, provides: Truthful statements that are misleading are also prohibited by this rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. PROFESSIONAL RULES 156 MINNESOTA COURT RULES likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation. While the word "Associates" and the phrase "& Associates" undoubtedly have other meanings and connotations in other contexts, in the practice of law the word and the phrase have been used and are perceived as referring to an attorney practicing law in a law firm. See In re Sussman, 405 P.2d 355, 356 (Or. 1965) ("Principally through custom the word ["associates"] when used on the letterheads of law firms has come to be regarded as describing those who are employees of the firm. Because the word has acquired this special significance in connection with the practice of law the use of the word to describe lawyer relationships other than that of employer-employee is likely to be misleading."); St. B. of N.M. Ethics Advisory Comm., Formal Op. 2006-1 (2006) ("It is well accepted in the legal community that an 'associate' is an attorney that works for a firm. 'Associates,' at least in the legal context, do not include support staff such as legal assistants or investigators."); Ass'n of the B. of the City of N.Y. Comm. on Prof'l & Jud. Ethics, Formal Op. 1996-8 (1996), 1996 WL 416301 ("[T]he term ['associate'] has been interpreted by courts and other ethics committees to mean a salaried lawyer-employee who is not a partner of a firm."); Utah St. B. Ethics Advisory Op. Comm., Op. 04-03 (2004), 2004 WL 1304775 ("We believe that, if a member of the public examined a firm name such as 'John Doe & Associates," he would conclude that John Doe works regularly with at least two other lawyers."). While some members of the public may care little about the number of attorneys practicing law at a firm, clearly some members of the public seeking legal counsel do care whether there is more than one attorney at a firm available to provide legal services. "A client may wish to be represented by a law firm comprised of several or many lawyers, and the implications of the law firm name may affect the client's decision. Any communication that suggests multiple lawyers creates the appearance that the totality of the lawyers of the law firm could and would be available to render legal counsel to any prospective client ...." Cal. St. B. Standing Comm. on Prof'l Responsibility & Conduct, Formal Op. 1986-90 (1986), 1986 WL 69070 (opining that solo practitioners may not ethically advertise using a group trade name such as "XYZ Associates" unless the advertisement affirmatively discloses they are solo practitioners). A law firm name which suggests there are multiple attorneys to service a client's needs when there is only one attorney is inherently misleading. The Board's opinion is consistent with decisions and ethics opinions from other jurisdictions which have held that the use of "associates" in the name of a law firm with one practicing lawyer is false and misleading. See, e.g., In re Mitchell, 614 S.E.2d 634 (S.C. 2005) (holding a solo practitioner made false and misleading communications by using the word "associates" in his form name); In re Brandt, 670 N.W.2d 552, 554-55 (Wis. 2003) (solo practitioner holding himself out as "Brandt & Associates" was in violation of ethics rule prohibiting false and misleading communications); Portage County B. Ass'n v. Mitchell, 800 N.E.2d 1106 (Ohio 2003) (solo practitioner engaged in misleading conduct by holding himself out as "Mitchell and Associates"); Office of Disciplinary Counsel v. Furth, 754 N.E.2d 219, 224, 231 (Ohio 2001) (a solo practitioner's use of letterhead referring to his firm as "Tom Furth and Associates, Attorneys & Counselors at Law" was misleading); S.C. B. Ethics Advisory Comm., Op. 05-19 (2005), 2005 WL 3873354 (opining that a solo practitioner's use of a firm name such as "John Doe and Associates, P.A." is misleading); Utah St. B. Ethics Advisory Op. Comm., Op. 138 (1994), 1994 WL 579848 ("[A] sole practitioner may not use a firm name of the type 'Doe & Associates' if he has no associated attorneys, even if the firm formerly had such associates or employs one or more associated nonlawyers such as paralegals or investigators."). The use of "Associates" or "& Associates" in a firm name, letterhead, or other professional designation by lawyers who share office space or who associate with other lawyers on a particular legal matter but who do not otherwise practice together as a law firm is false and misleading. Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. 157 PROFESSIONAL RULES MINNESOTA COURT RULES Whether or not a law firm name using the word "Associates" or the phrase "& Associates" is false and misleading will depend on the particular facts and circumstances of each case. For example, there may be circumstances where three attorneys with a law firm name such as "Doe & Associates" may lose one of the firm's attorneys. In that event, if another attorney joins the firm within a reasonable period of time thereafter, or if the firm reasonably and objectively anticipates another attorney joining the firm within a reasonable period of time, it is not false or misleading for the firm to continue using "& Associates" in its name during the interim period. If neither circumstance exists, the continued use of "& Associates" would be considered false and misleading. In addition, there may be circumstances where one or more of the attorneys practicing with a firm may be working part-time. As long as the requisite minimum number of attorneys, part-time or otherwise, regularly and actively practice with the firm, the use of "Associates" or "& Associates" would not be considered false or misleading. The proper use of "Associates" or "& Associates" in a firm name, letterhead, or other professional designation previously has not been the subject of guidance from the Board. Therefore, the Office of Lawyers Professional Responsibility will defer invoking this opinion in disciplinary proceedings under Rules 7.1 and 7.5, MRPC, until January 1, 2010. For the same reason, to the extent a lawyer has already contracted for an advertisement or other promotional material using a name contrary to Opinion No. 20, the continued availability of the advertisement or other material for the duration of the contract term should not be the basis for discipline. OPINION NO. 21 A Lawyer's Duty to Consult with a Client About the Lawyer's Own Malpractice 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. The requirements of Rules 1.4 and 1.7 are implicated in such a circumstance and the lawyer must determine what actions may be required under the Rules, with particular attention to Rules 1.4 and 1.7. Since the possibility of a malpractice claim that arises during representation may cause a lawyer to be concerned with the prospect of legal liability for the malpractice, the provisions of Rule 1.7 dealing with a "concurrent conflict of interest" must be considered to determine whether the personal interest of the lawyer poses a significant risk that the continued representation of the client will be materially limited.1 Under Rule 1.7 the lawyer must withdraw from continued representation unless circumstances giving rise to an exception are present.2 Assuming continued representation is not otherwise prohibited, to continue the representation the lawyer must reasonably believe he or she may continue to provide competent and diligent representation.3 If so, the lawyer must obtain the client's "informed consent," confirmed in writing, to the continued representation.4 Whenever the rules require a client to provide "informed consent," the lawyer is under a duty to promptly disclose to the client the circumstances giving rise to the need for informed consent.5 In this circumstance, "informed consent" requires that the lawyer communicate adequate information and explanation about the material risks of and reasonably available alternatives to the continued representation.6 Regardless of whether the possibility of a malpractice claim creates a conflict of interest under Rule 1.7, the lawyer also has duties of communication with the client under Rule 1.4 that may apply. When the lawyer knows the lawyer's conduct may reasonably be the basis for a non-frivolous malpractice claim by a current client that materially affects the client's interests, the lawyer shall inform the client about that conduct to the extent necessary to achieve each of the following objectives: (1) keeping the client reasonably informed about the status of the representation,7 Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. MINNESOTA COURT RULES PROFESSIONAL RULES 158 (2) permitting the client to make informed decisions regarding the representation,8 (3) assuring reasonable consultation with the client about the means by which the client's objectives are to be accomplished.9 Adopted: October 2, 2009. Repealed: April 24, 2020. Comment The issue of when and what to say to a client when a lawyer knows that the lawyer's conduct described in Opinion 21 could reasonably be expected to be the basis for a malpractice claim is difficult and may create inherent conflicts. The Board is issuing Opinion No. 21 to apprise the Bar of the Board's position on the matter and to provide guidance to lawyers who may confront the issue. In consulting with the current client about the possible malpractice claim, the lawyer should bear in mind Comment 5 to Rule 1.4, which provides that "[t]he guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation." Other jurisdictions have recognized a lawyer's ethical duty to disclose to the client conduct which may constitute malpractice. See, e.g., Tallon v. Comm. on Prof'l Standards, 447 N.Y.S.2d 50, 51 (App. Div. 1982) ("An attorney has a professional duty to promptly notify his client of his failure to act and of the possible claim his client may thus have against him."); Colo. B. Ass'n Ethics Comm., Formal Op. 113 (2005) ("When, by act or omission, a lawyer has made an error, and that error is likely to result in prejudice to a client's right or claim, the lawyer must promptly disclose the error to the client."); Wis. St. B. Prof'l Ethics Comm., Formal Op. E-82-12 ("[A]n attorney is obligated to inform his or her client that an omission has occurred which may constitute malpractice and that the client may have a claim against him or her for such an omission."); N.Y. St. B. Ass'n Comm. on Prof'l Ethics, Op. 734 (2000), 2000 WL 33347720 (Generally, an attorney "has an obligation to report to the client that [he or she] has made a significant error or omission that may give rise to a possible malpractice claim."); N.J. Sup. Ct. Advisory Comm. on Prof'l Ethics, Op. 684 ("The Rules of Professional Conduct still require an attorney to notify the client that he or she may have a legal malpractice claim even if notification is against the attorney's own interest."). In re SRC Holding Corp., 352 B.R. 103 (Bankr. D. Minn. 2006), aff'd in part and rev'd in part In re SRC Holding Corp., 364 B.R. 1 (D. Minn. 2007), reversed Leonard v. Dorsey & Whitney LLP, 553 F.3d 609 (8th Cir. 2009) discuss certain matters addressed in Opinion 21. In Leonard, the Eighth Circuit held that the bankruptcy court had relied too heavily on ethics rules in determining whether the law firm had violated a legal duty to consult with its client about the law firm's possible malpractice. The Eighth Circuit said "[d]emonstrating that an ethics rule has been violated, by itself, does not give rise to a cause of action against the lawyer and does not give rise to a presumption that a legal duty has been breached." 553 F.3d 628. In predicting how the Minnesota Supreme Court would rule on an attorney's legal duty to consult with a client about the law firm's possible malpractice, the Eighth Circuit did not opine on a law firm's ethical duties to consult about such a claim. Recognizing the distinction, this Opinion does not opine on a law firm's legal duties to consult about such a claim. A lawyer's obligation to report a possible malpractice claim to the lawyer's client also is discussed in a local article written by Charles E. Lundberg, entitled Self-Reporting Malpracticeor Ethics Problems, 60 Bench & B. of Minn. 8, Sept. 2003, and more recently and extensively in Benjamin P. Cooper's article, The Lawyer's Duty to Inform His Client of His Own Malpractice, 61 Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. 159 PROFESSIONAL RULES MINNESOTA COURT RULES Baylor L. Rev. 174 (2009) and Brian Pollock's article, Surviving a Screwup, 34 ABA Litig. Mag. 2, Winter 2008. OPINION NO. 22 A Lawyer's Ethical Obligations Regarding Metadata A lawyer has a duty under the Minnesota Rules of Professional Conduct (MRPC), not to knowingly reveal information relating to the representation of a client, except as otherwise provided by the Rules, and a duty to act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure. See Minn. R. Prof. Cond. 1.1 and 1.6. The lawyer's duties with respect to such information extends to and includes metadata in electronic documents. Accordingly, a lawyer is ethically required to act competently to avoid improper disclosure of confidential and privileged information in metadata in electronic documents. If a lawyer receives a document which the lawyer knows or reasonably should know inadvertently contains confidential or privileged metadata, the lawyer shall promptly notify the document's sender as required by Minn. R. Prof. Cond. 4.4(b). Adopted: March 26, 2010. Comment Metadata Generally Metadata, sometimes defined as data within data, is used in this Opinion to refer to information generated and embedded in electronically created documents. Metadata is generated automatically by software when an electronic document is created, accessed and modified and typically may include such information as the date the document was created, the author, and the date changes were made to the document. Other times metadata may be purposely created, such as when the author adds comments or other information visible in the document's electronic format but which may not be visible in its printed version. When electronic documents are transmitted electronically - for example, as a Word document attached to an e-mail - the metadata is transmitted with the document. Metadata con be "scrubbed" or removed from an electronic document by various means, including the use of special software programs or by scanning a printed copy of the document and sending it in a PDF format. Transmission of metadata can also be avoided by transmitting hard copies of the document rather than electronic copies or by faxing the document. Metadata embedded in an electronic document can be "mined" or viewed by a recipient of the document. Some metadata can be accessed simply by right-clicking a mouse or selecting "properties" or "show markup" on a Word document. Other metadata can be accessed by the use of special software programs. There are many types of metadata, many ways of creating metadata, and many means for removing and accessing metadata, all of which will undoubtedly continue to expand and evolve with technological innovation. Most metadata is not confidential, and the disclosure of metadata may often be intentional and for the mutual benefit of clients with adverse interests. Other metadata may contain confidential information the disclosure of which can have serious adverse consequences to a client. For example, a lawyer may use a template for pleadings, discovery and affidavits which contain metadata within the document with names and other important information about a particular matter which should not be disclosed to another party in another action. Also as an example, a lawyer may circulate Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. PROFESSIONAL RULES 160 MINNESOTA COURT RULES within the lawyer's firm a draft pleading or legal memorandum on which other lawyers may add comments about the strengths and weaknesses of a client's position which are embedded in the document by not apparent in the document's printed form. Similarly, documents used in negotiating a price to pay in a transaction or in the settlement of a lawsuit may contain metadata about how much or how little one side or the other may be willing to pay or to accept. Due to the hidden, or not readily visible, nature of metadata and the ease with which electronic documents can be transmitted, a potential exists for the inadvertent disclosure of confidential or privileged information in the form of metadata in both a litigation and non-litigation setting, which in turn could give rise to violations of lawyer's ethical duties. Applicable Rules Minn. R. Prof. Cond. 1.1 states that "[a] lawyer shall provide competent representation to a client." Comment 5 to Rule 1.1 provides that "[c]ompetent handling of a particular matter includes . . . use of methods and procedures meeting the standards of competent practitioners." As noted in American Bar Association Formal Opinion 06-442 (2006) at 1: In modern legal practice, lawyers regularly receive e-mail, sometimes with attachments such as proposed contracts, from opposing counsel and other parties. Lawyers also routinely receive electronic documents that have been made available by opponents, such as archived e-mail and other documents relevant to potential transactions or to past events. Receipt may occur in the course of negotiations, due diligence review, litigation, investigation, and other circumstances. Competence requires that lawyers who use electronic documents understand that metadata is created in the generation of electronic documents, that transmission of electronic documents will include transmission of metadata, that recipients of the documents can access metadata, and that actions can be taken to prevent or minimize the transmission of metadata. Minn. R. Prof. Cond. 1.6(a) states that, "[e]xcept when permitted under paragraph (b), a lawyer shall not knowingly reveal information relating to the representation of a client." Comment 2 to the rule explains that "[a] fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation." Comment 15 provides that "[a] lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision"; and Comment 16 further provides that "when transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients." Opinion No. 22 makes clear that the duty imposed by Minn. R. Prof. Cond. 1.6(a) regarding client information extends to and includes metadata in electronic documents. Thus, a lawyer must take reasonable steps to prevent the disclosure of confidential metadata. See ABA/BNA Lawyers' Manual on Professional Conduct 55:401 (2008) ("When a lawyer sends, receives, or stores client information in electronic form, the lawyer's duty to protect that information from disclosure to unauthorized individuals is the same as it is for information communicated or kept in any other form."). Minn. R. Prof. Cond. 4.4(b) states that "[a] lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender." Comment 2 to the Rule explains that lawyers Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. 161 PROFESSIONAL RULES MINNESOTA COURT RULES sometimes receive documents that were mistakenly sent and that "[i]f a lawyer knows or reasonably should know that such a document was sent inadvertently, then this rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures." Comment 2 states that "[f]or purposes of this rule, 'document' includes e-mail or other electronic modes of transmission subject to being read or put into readable form. Opinion No. 22 makes clear that the duty imposed by Minn. R. Prof. Cond. 4.4(b) regarding documents extends to metadata in electronic documents. "Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived." Comment 2 to Minn. R. Prof. Cond. 4.4. The generation, transmittal and receipt of documents containing metadata also implicates ethical obligations under Minn. R. Prof. Cond. 5.1 and 5.3. Opinion 22 is not meant to suggest there is an ethical obligation on a receiving lawyer to look or not to look for metadata in an electronic document. Whether and when a lawyer may be advised to look or not to look for such metadata is a fact specific question beyond the scope of this Opinion. A layer may be subject to a number of obligations other than those provided by the MRPC in connection with the transmission and receipt of metadata, including obligations under the Federal Rules of Civil Procedure and the Minnesota Rules of Civil Procedure. Removing metadata from evidentiary documents in the context of litigation or in certain other circumstances may be impermissible or illegal. Opinion No. 22 addresses only a lawyer's ethical obligations regarding metadata under the Minnesota Rules of Professional Conduct. OPINION NO. 23 Advising Clients on Medical Marijuana A lawyer may advise a client about the Minnesota Medical Marijuana Law and may represent, advise and assist clients in all activities relating to and in compliance with the Law, including the manufacture, sale, distribution and use of medical marijuana, without violating the Minnesota Rules of Professional Conduct, so long as the lawyer also advises his or her client that such activities may violate federal law, including the federal Controlled Substance Act, United States Code, title 21, section 841(a)(1). Adopted: April 6, 2015. OPINION NO. 24 Confidentiality of Information Rule 1.6(a), Minnesota Rules of Professional Conduct (Minn. R. Prof. Cond. Rule 1.6(a)), generally prohibits a lawyer from knowingly revealing information relating to the representation of a client. Contained within the subsections of Minn. R. Prof. Cond. Rule 1.6(b), however, are eleven enumerated exceptions to that general prohibition. Amongst those exceptions is Minn. R. Prof. Cond. Rule 1.6(b)(8), which permits a lawyer to reveal information relating to the representation of a client provided: [T]he lawyer reasonably believes the disclosure is necessary to establish a claim or defense on behalf of the lawyer in an actual or potential controversy between the lawyer and the client, to establish a defense in a civil, criminal, or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond in any proceeding to allegations by the client concerning the lawyer's representation of the client .... Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. PROFESSIONAL RULES 162 MINNESOTA COURT RULES When responding to comments, negative or otherwise, posted on the internet (or any other public forum) concerning the lawyer's representation of a client, Minn. R. Prof. Cond. Rule 1.6(b)(8) does not permit the lawyer to reveal information relating to the representation of a client. Lawyers are cautioned that, when responding to comments posted on the internet or other public forum which are critical of the lawyer's work, professionalism, or other conduct, any such response should be restrained and should not, under Minn. R. Prof. Cond. Rule 1.6(b)(8), reveal information subject to Minn. R. Prof. Cond. Rule 1.6(a). Adopted: September 30, 2016. OPINION NO. 25 IN RE AMERICAN BAR ASSOCIATION FORMAL OPINION 502 REGARDING COMMUNICATION WITH A REPRESENTED PERSON BY A PRO SE LAWYER On September 28, 2022, the American Bar Association issued its formal opinion 502.1 This new ABA Opinion 502 significantly expands the scope of ABA Model Rule 4.2 by asserting that the pro se lawyer does represent "a client". This opinion is unusual in that it contains a dissent since this expansion of ABA Model Rule 4.2 was made without regard to the important operative language of "In representing a client..." The instant Opinion adopts the position of the dissent in ABA Opinion 502 in order to eliminate any ambiguity in the meaning of Minnesota Rule of Professional Conduct 4.2 (Minn. R. Prof. Cond. Rule 4.2). Minn. R. Prof. Cond. Rule 4.2 is a long-established "no-contact" rule of ethics that strictly prohibits Minnesota lawyers from contacting represented clients on any extant legal issue in which those clients have retained legal representation. More specifically, Minn. R. Prof. Cond. Rule 4.2 provides that "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has consent of the other lawyer or is authorized to do so by law or court order." Minn. R. Prof. Cond. Rule 4.2 has long served the overriding, critical interests of eliminating improper overreach with less sophisticated clients, interfering in other lawyers' relationships with their clients, and from eliciting uncounseled disclosure of protected information. ABA Opinion 502 provides that pro se lawyers are now also subject to the Minn. R. Prof. Cond. Rule 4.2, notwithstanding the fact that the pro se attorney is not representing an actual third-party client as directly contemplated by Model Rule 4.2. In expanding the reach of Minn. R. Prof. Cond.