Administrative Suspension

(a) Upon receipt of a district court order or a report from an Administrative Law Judge or public authority pursuant to Minnesota Statutes, section 518A.66, finding that a licensed Minnesota attorney is in arrears in payment of maintenance or child support and has not entered into or is not in compliance with an approved payment agreement for such support, the Director's Office shall serve and file with the Supreme Court a motion requesting the administrative suspension of the attorney until such time as the attorney has paid the arrearages or entered into or is in compliance with an approved payment plan. The Court shall suspend the lawyer or take such action as it deems appropriate. (b) Any attorney administratively suspended under this rule shall not practice law or hold himself or herself out as authorized to practice law until reinstated pursuant to paragraph (c). The attorney shall, within ten days of receipt of an order of administrative suspension, send written notice of the suspension to all clients, adverse counsel and courts before whom matters are pending and shall file an affidavit of compliance with this provision with the Director's Office. (c) An attorney administratively suspended under this rule may be reinstated by filing an affidavit with supporting documentation averring that he or she is no longer in arrears in payment of maintenance or child support or that he or she has entered into and is in compliance with an approved payment agreement for payment of such support. Within 15 days of the filing of such an affidavit the Director's Office shall verify the accuracy of the attorney's affidavit and file a proposed order for reinstatement of the attorney requesting an expedited disposition. (d) Nothing in this rule precludes disciplinary proceedings, if the attorney's conduct also violates the Minnesota Rules of Professional Conduct. (Added effective June 13, 1996; amended effective June 24, 1996; amended effective May 14, 2010.) Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. 147 Opinion 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MINNESOTA COURT RULES PROFESSIONAL RULES Lawyers Professional Responsibility Board Opinions TABLE OF HEADNOTES The Legal Force and Effect of Opinions Issued by the State Board of Professional Responsibility [Repealed] [Repealed] [Repealed] [Repealed] [Repealed] [Repealed] Attorneys' Guidelines for Law Office Services by Non-lawyers [Repealed] [Repealed] [Repealed] [Repealed] Copying Costs of Client Files, Papers and Property [Repealed] [Repealed] [Repealed] Accepting Gratuities from Court Reporting Services and Other Similar Services [Repealed] Using Technology to Communicate Confidential Information to Clients Use of the Word "Associates" in a Law Firm Name [Repealed] A Lawyer's Ethical Obligations Regarding Metadata Advising Clients on Medical Marijuana Confidentiality of Information In Re American Bar Association Formal Opinion 502 Regarding Communication With A Represented Person By A Pro Se Lawyer Lawyer Confidentiality Obligations When Communicating On Listservs Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. PROFESSIONAL RULES 148 MINNESOTA COURT RULES TEXT OF OPINIONS OPINION NO. 1 The Legal Force and Effect of Opinions Issued by the State Board of Professional Responsibility It is the policy of the State Board of Professional Responsibility to issue, from time to time, advisory opinions as to the professional conduct of lawyers, whether as a result of a specific request or its own initiative, on matters deemed important by the Board. The Board and the Supreme Court consider these opinions as rule interpretations that guide attorneys' professional conduct even though they are not binding on the Court. See, In re Admonition Issued in Panel File No. 99-42, 621 N.W.2d 240 (Minn. 2001). Opinions issued by the Board will be subject to change from time to time as deemed necessary by the Board, or as required by decisions of the Minnesota Supreme Court. Adopted: October 27, 1972. Amended: December 4, 1987; January 26, 2006. Adopted: October 27, 1972. Repealed: January 26, 2006. OPINION NO. 2 OPINION NO. 3 Adopted: November 20, 1972. Repealed: October 25, 2002. Comment Opinion No. 3 was adopted in 1972 and prohibited part-time judges from practicing law in the court in which the part-time judge serves. The opinion also extended the disqualification to the part-time judge's law partners and associates. Over the past decade, amendments to the Code of Judicial Conduct codified and clarified the application of the part-time judge disqualification. See e.g., Section C of the Application of the Code of Judicial Conduct and its related comment. In addition, Rule 1.10 of the Rules of Professional Conduct delineates the types of conflicts that are imputed to other members of a law firm. With the evolution of substantive ethics rules that more comprehensively address the issue, Opinion No. 3 became obsolete, thus necessitating its repeal. OPINION NO. 4 Adopted: October 12, 1973. Amended: December 4, 1987. Repealed: October 25, 2002. Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. 149 PROFESSIONAL RULES MINNESOTA COURT RULES Comment Adopted in 1973, Opinion No. 4 addressed a lawyer's withdrawal from representation for nonpayment of fees. The opinion contained res ipsa loquitur or switching burden of proof provision that placed higher burden of proof upon lawyers who failed to enter into written fee agreements with clients. Specifically, the opinion required lawyers without written fee agreements to justify their withdrawal for nonpayment of fees by proving the client's noncompliance with the oral fee arrangement by a standard of clear and convincing evidence. The switching burden of proof provision, although laudable for its encouragement to use written fee agreements, has little, if any basis in the Rules of Professional Conduct. Without a sufficient nexus to the substantive ethics rules, this requirement appeared to be a regulation that went beyond that authorized by the Supreme Court, especially in light of the Panel File No. 99-42 decision. OPINION NO. 5 Adopted: April 19, 1974. Amended: December 4, 1987. Repealed: January 26, 2006. OPINION NO. 6 Adopted: June 26, 1974. Repealed: January 26, 2006. OPINION NO. 7 Payment of Compensation for Services Adopted: June 26, 1974. Amended: October 26, 1979. Repealed: January 7, 1983. OPINION NO. 8 Attorneys' Guidelines for Law Office Services by Non-lawyers Except to the extent permitted by the Supreme Court of the State of Minnesota, (e.g., Student Practice Rules) neither law students nor any other person not duly admitted to the practice of law shall be named on pleadings under any identification. Legal assistants, or other paralegal employees, may be listed on professional cards, professional announcement cards, office signs, letterheads, telephone directory listings, law lists, legal directory listings, or similar professional notices or devices, so long as the paralegals are clearly identified as such, and so long as no false, fraudulent, misleading, or deceptive statements or claims are made concerning said paralegals, their legal status and authority, or their relationships to the firms by which they are employed. Paralegals may use business cards so identifying themselves, which cards carry the law firm's name and address. Such a paralegal, so identified, may sign correspondence on behalf of the law firm, provided he or she does so by direction of an attorney-employer. Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. PROFESSIONAL RULES 150 MINNESOTA COURT RULES Non-lawyers must be supervised by an attorney who is responsible for their work. See, Rules 5.3 and 5.5 and Comments, Minnesota Rules of Professional Conduct. Adopted: June 26, 1974. Amended: June 18, 1980; December 4, 1987; January 26, 2006. Adopted: September 10, 1976. OPINION NO. 9 Amended: June 22, 1977, June 23, 1983, December 4, 1987, September 15, 1989, September 18,1998, August 1, 1999, and January 27, 2005. Repealed: January 26, 2006. 1998 Committee Comments In the nine years since the Lawyers Professional Responsibility Board last revised this Opinion, there have been significant changes in the ways attorneys may maintain their trust account books and records, most notably the rise of the personal computer and bookkeeping software as essential office equipment. Moreover, the Director's Office has reviewed hundreds of lawyers' trust accounts since 1990 through the administration of the overdraft notification program. This experience has given the Director insight into the most common record-keeping pitfalls and confirmed the types of records that lawyers must maintain to satisfy their ethical obligations to protect client funds. The revised Opinion eliminates the requirement of separate cash receipts and disbursements journals, in favor of a more detailed chronological check register that records all trust account transactions, including the identity of the client and the purpose of the transaction. This simplifies manual record-keeping and comports with most software packages that allow input of all relevant information into one computer screen. Routine monthly printing of hard copies of electronic records is required to allow reconstruction of trust account records in the event of a hardware failure. Attorneys should implement electronic backup procedures depending on the volume of activity in the trust account. For moderate to high volume trust accounts, weekly or even daily backups to floppy disks or mirrored network servers may be appropriate. Wire transfers may be used for large denomination transactions provided that the lawyer or law firm creates the proper written authorization. The Board does not recommend that attorneys use wire transfers for transactions under $10,000; checks signed by an attorney remain the primary means of properly disbursing funds from a trust account. OPINION NO. 10 Debt Collection Procedures Adopted: June 22, 1977. Amended: December 4, 1987. Repealed: October 25, 2002. Comment The comprehensive set of guidelines contained in Opinion No. 10 was intended to keep a clear demarcation between the activities of law firm and nonlayer debt collection agencies. The opinion Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. 151 PROFESSIONAL RULES MINNESOTA COURT RULES was premised upon the notion that blurring the distinction between law firms and collection agencies could lead to abuse of debtors and adversely reflect upon the legal profession. Since the opinion was adopted in 1977, federal and state consumer protection laws, including most notably the Fair Debt Collection Practices Act (FDCPA), have encompassed and far exceeded the regulation of collection activities proscribed by the Lawyers Board opinion. Within the past several years, federal court rulings have made it clear that the FDCPA applies not only to collection agencies, but also lawyers. Like Opinion No. 3, this opinion became obsolete due to the evolution of more comprehensive substantive law regulations. OPINION NO. 11 Adopted: October 26, 1979. Repealed: January 26, 2006. OPINION NO. 12 Adopted: May 6, 1983. Repealed: January 26, 2006. OPINION NO. 13 Copying Costs of Client Files, Papers and Property Client files, papers and property, whether printed or electronically stored, shall include: 1. All papers and property provided by the client to the lawyer. 2. All pleadings, motions, discovery, memorandums, and other litigation materials which have been executed and served or filed regardless of whether the client has paid the lawyer for drafting and serving and/or filing the document(s). 3. All correspondence regardless of whether the client has paid the lawyer for drafting or sending the correspondence. 4. All items for which the lawyer has advanced costs and expenses regardless of whether the client has reimbursed the lawyer for the costs and expenses including depositions, expert opinions and statements, business records, witness statements, and other materials which may have evidentiary value. Client files, papers and property, whether printed or electronically stored, shall not include: 1. Pleadings, discovery, motion papers, memoranda and correspondence which have been drafted, but not sent or served if the client has not paid for legal services in drafting or creating the documents. 2. In nonlitigation settings, client files, papers and property shall not include drafted but unexecuted estate plans, title opinions, articles of incorporation, contracts, partnership agreements, or any other unexecuted document which does not otherwise have legal effect, where the client has not paid the lawyer for the services in drafting the document(s). A lawyer who has withdrawn from representation or has been discharged from representation, may charge a former client for the costs of copying or electronically retrieving the client's files, papers and property only if the client has, prior to termination of the lawyer's services, agreed in writing Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. PROFESSIONAL RULES 152 MINNESOTA COURT RULES to such a charge. Such copying charges must be reasonable. Copying charges which substantially exceed the charges of a commercial copy service are normally unreasonable. A lawyer may not condition the return of client files, papers and property on payment of copying costs. Nor may the lawyer condition return of client files, papers or property upon payment of the lawyer's fee. See Rule 1.16(g), Minnesota Rules of Professional Conduct. A lawyer may withhold documents not constituting client files, papers and property until the outstanding fee is paid unless the client's interests will be substantially prejudiced without the documents. Such circumstances shall include, but not necessarily be limited to, expiration of a statute of limitations or some other litigation imposed deadline. A lawyer who withholds documents not constituting client files, papers or property for nonpayment of fees may not assert a claim against the client for the fees incurred in preparing or creating the withheld document(s). Adopted: June 15, 1989. Amended: January 22, 2010. OPINION NO. 14 Attorney Liens on Client Homesteads Adopted: June 15, 1990. Repealed: April 4, 2003. Comment Opinion No. 14 was adopted in 1990 and governed the assertion of a statutory attorney lien against a client's homestead. The opinion was repealed due to statutory changes in the homestead exemption amount (Minnesota Statutes, section 510.02, limiting the exemption to $200,000), uncertainty in the law about waiver of homestead exemptions (Peterson v. Hinz, 605 N.W.2d 743 (Minn. Ct. App. 1986)) and amendments in 2002 to the Minnesota Attorney Lien Statute (Minnesota Statutes 2002, section 481.13). Lawyers who see the need to file attorney liens against real property should carefully review the recently amended attorney lien statute (Minnesota Statutes 2002, section 481.13). Recent changes include time limits for filing attorney liens, a notice to the property owner requirement, and the automatic expiration of attorney liens that are not pursued within one year of filing. OPINION NO. 15 Adopted: September 13, 1991. Amended: August 1, 1999. Repealed: January 26, 2006. OPINION NO. 16 Interest and Late Charges on Attorneys Fees Adopted: March 26, 1993. Repealed: October 25, 2002. Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. 153 PROFESSIONAL RULES MINNESOTA COURT RULES Comment Opinion No. 16 created a safe harbor from lawyer discipline prosecution for de minimis violations of Truth-in-Lending (TIL) violations associated with interest assessed by lawyers on past due legal fees. In short, lawyers who charged six percent or less without disclosure in a written fee agreement, or eight percent or less disclosed in a written fee agreement, were exempt from lawyer discipline for noncompliance with TIL disclosure requirements under the opinion. Attorneys who charged interest outside of the opinion's guidelines remained subject to lawyer discipline prosecution for TIL disclosure violations. Opinion No. 16's connection to the Rules of Professional Conduct was the reasonable fee requirements of Rule 1.5(a). The opinion postulated that the fee charged was unreasonable if the interest charged was usurious or in violation of TIL because required disclosures were not made. However, the opinion's safe harbor provision, which used the rate of interest charged to draw the line between de minimis and significant TIL violations, was based upon prosecutorial discretion standards and did not originate from any authority in the Rules of Professional Conduct. OPINION NO. 17 Accepting Gratuities from Court Reporting Services and Other Similar Services A lawyer ought not to accept, or to permit any nonlawyer employee to accept, a gratuity offered by a court reporting service or other similar service for which a client is expected to pay unless the client consents after consultation. However, a lawyer may accept nominal gifts, such as pens, coffee mugs, and other similar advertising-type gifts without consent of the client. See Rules 1.4, 1.5(a), 1.8(f)(1) and 5.3, Minnesota Rules of Professional Conduct (MRPC). See also Rule 1.0(c), MRPC. Adopted: June 18, 1993. Amended: January 26, 2006. OPINION NO. 18 Secret Recordings of Conversations Adopted: September 20, 1996. Repealed: April 18, 2002. Comment At its April 18, 2002 meeting the Lawyers Professional Responsibility Board repealed Opinion No. 18 which made it unethical for lawyers to secretly record conversations with others. The repeal of Opinion No. 18 followed the lead of the American Bar Association in changing its longstanding position condemning the surreptitious, but legal, recording of conversations by lawyers. In June 2001, the ABA issued Formal Ethics Opinion 01-422, which withdrew its previous opinion (Formal Opinion 337) that had been in effect since 1974 prohibiting secret recording. Minnesota Lawyers Board Opinions for the most part constitute interpretations or clarifications of the Minnesota Rules of Professional Conduct. Opinion No. 18 was premised upon the belief that secret recording of conversations by lawyers was inherently deceitful, and therefore unethical except in the limited circumstances enumerated in the Opinion. The Comment to Opinion No. 18 relied principally upon the ABA opinion from 1977 for the proposition that secret recording was inherently deceitful and therefore violated the ethical standards. Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. PROFESSIONAL RULES 154 MINNESOTA COURT RULES The Minnesota Rules of Professional Conduct generally prohibit lawyers from engaging in conduct that involves deceit. See Rule 8.4(c). A number of states, like Minnesota, have since 1974, issued ethics opinions concluding that secret recording was deceitful and therefore unethical. However, given the ABA's recent change of heart, and its rationale, the Minnesota Lawyers Board was doubtful about whether secret recording by itself continued to fall clearly within the deceit proscription of Rule 8.4(c). It was this doubt that led the Board to withdraw or repeal Opinion No. 18. In repealing the Opinion, the Board and its Opinion Committee echoed the concerns expressed by the ABA. Lawyers should be aware that secret recording is illegal in some states and therefore prohibited by Rule 4.4. Moreover, lawyers who falsely deny recording conversations will be subject to discipline under Rules 4.1 and 8.4(c). And finally, although it may not be unethical to record client conversations, except in very limited circumstances (e.g., client is making criminal threats to the lawyer) it is certainly inadvisable to do so without disclosure. OPINION NO. 19 Using Technology to Communicate Confidential Information to Clients A lawyer may use technological means such as electronic mail (e-mail) and cordless and cellular telephones to communicate confidential client information without violating Rule 1.6, Minnesota Rules of Professional Conduct (MRPC). Such use is subject to the following conditions: 1. E-mail without encryption may be used to transmit and receive confidential client information; 2. Digital cordless and cellular telephones may be used by a lawyer to transmit and receive confidential client information when used within a digital service area; 3. When the lawyer knows, or reasonably should know, that a client or other person is using an insecure means to communicate with the lawyer about confidential client information, the lawyer shall consult with the client about the confidentiality risks associated with inadvertent interception and obtain the client's consent. Adopted: January 22, 1999. Amended: January 22, 2010. Comment (2010) A lawyer may not knowingly reveal a confidence or secret of a client. Rule 1.6(a)(1). A lawyer should exercise care to prevent unintended disclosure. See Comment to Rule 1.6. For example, the lawyer should avoid professional discussions in the company of persons to whom the attorney-client privilege does not extend. Id. Similarly, a lawyer should take reasonable steps to prevent interception or unintended disclosure of confidential communications. All communication carries with it some such risk, for example by eavesdropping, wiretapping, or theft of mail. The precautions to be taken by a lawyer depend on the circumstances, including the sensitivity of the information, the manner of communication, the apparent risks of interception or unintended disclosure, and the client's wishes. The purpose of this opinion is to address concerns that certain devices or methods may not be used by lawyers to communicate client confidences or secrets because they do not guarantee security. The committee believes absolute security is not required, and that the use of new technology is subject to the same analysis as the use of more traditional methods of communication. Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. 155 PROFESSIONAL RULES MINNESOTA COURT RULES This opinion reflects the prevalent view of other states and technology experts, that communications by facsimile, e-mail, and digital cordless or cellular phones, like those by mail and conventional corded telephone, generally are considered secure; their interception involves intent, expertise, and violation of federal law. Some states have required client consent or encryption for the use of e-mail, but the majority of recent state ethics opinions sanction the use of e-mail without such requirements. The committee finds the reasoning of the latter opinions persuasive. The opinion intentionally omits facsimile machines, which typically transmit data over conventional telephone lines. With facsimile machines, the concerns are less with interception than with unintended dissemination of the communication at its destination, where the communication may be received in a common area of the workplace or home and may be read by persons other than the intended recipient. The Director has received client complaints involving such situations and cautions lawyers to take reasonable precautions to prevent unintended dissemination. Similar concerns may be raised by voice-mail and answering machine messages. OPINION NO. 20 Use of the Word "Associates" in a Law Firm Name The use of the word "Associates" or the phrase "& Associates" in a law firm name, letterhead, or other professional designation is false and misleading if the use conveys the impression the law firm has more attorneys practicing law in the firm than is actually the case. Adopted: June 18, 2009. Comment Subject to qualifications below, the use of the word "Associates" in a law firm name, letterhead, or other professional designation -- such as "Doe Associates" -- is false and misleading if there are not at least two licensed attorneys practicing law with the firm. Similarly, the use of the phrase "& Associates" in a firm name, letterhead, or other professional designation -- such as "Doe & Associates" -- is false and misleading if there are not at least three licensed attorneys practicing law with the firm. Rule 7.5(a), Minnesota Rules of Professional Conduct ("MRPC"), states: A lawyer shall not use a firm name, letterhead, or other professional designation that violates