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Order Regarding Proposed Amendments to Minnesota Rules of Professional Conduct

Supreme Court of Minnesota

May 3, 2019

ORDER REGARDING PROPOSED AMENDMENTS TO THE MINNESOTA RULES OF PROFESSIONAL CONDUCT

          Lorie S. Gildea Chief Justice

         The Minnesota State Bar Association (MSBA) filed a petition proposing amendments to Rules 1.6 and 5.5 of the Minnesota Rules of Professional Conduct and the comments to those rules. We opened a public comment period and held a public hearing on the proposed amendments on January 15, 2019.

         After thorough consideration of the proposed amendments and the public comments, and for the reasons explained below, we grant the petition in part and deny the petition in part. Specifically, we agree that limited amendments to Rule 5.5 are appropriate to ensure that Minnesota lawyers are not disadvantaged in the practice of law; we therefore grant the petition to the extent that it requests amendments to certain provisions of that rule. We also make additional amendments to Rule 5.5 that were not proposed in the MSBA's petition. We deny the petition with respect to the proposed amendments to Rule 1.6, and with respect to any other proposed amendments to Rule 5.5.

         Because we have adopted only some of the proposed changes and made other amendments to Rule 5.5 that were not reflected in the petition, the MSBA's proposed amendments to the comments to the rules do not reflect the changes to the rules made in this order. Those proposed comments are therefore not part of this order. If the MSBA or the Lawyers Professional Responsibility Board believe that the comments to Rule 5.5 should be amended in light of the amendments we have adopted, they may jointly submit such proposed comments on or before June 14, 2019. As with other rule amendments, comments are included with the rules for convenience and will not reflect court approval or adoption.

         IT IS HEREBY ORDERED THAT:

         1. The petition of the Minnesota State Bar Association to amend Rules 1.6 and 5.5 of the Minnesota Rules of Professional Conduct is granted in part and denied in part. The rules are amended effective as of July 1, 2019.

         2. By June 14, 2019, the Minnesota State Bar Association and the Lawyers Professional Responsibility Board may jointly file with the Clerk of the Appellate Courts proposed comments to the rules as amended by this order.

         MEMORANDUM

          PER CURIAM

         The Minnesota State Bar Association (MSBA) filed a petition proposing amendments to Rules 1.6(b) and 5.5 of the Minnesota Rules of Professional Conduct. The MSBA's petition asks that we amend Rule 1.6(b) to clarify when lawyers may respond to public accusations of alleged wrongdoing made by a client or former client by revealing confidential client information. With respect to Rule 5.5, the MSBA's petition asks us to expand the rule to better reflect the practice areas that are "reasonably related" to a lawyer's field of practice and the current realities of the interstate practice of law.

         We opened a public comment period on the MSBA's proposed amendments. Several comments were received, and representatives of the MSBA, the Office of Lawyers Professional Responsibility, and the Lawyers Professional Responsibility Board spoke at the public hearing on the MSBA's petition. After careful consideration of the proposed amendments and the public comments, we decline to make any amendments to Rule 1.6 of the Minnesota Rules of Professional Conduct. With respect to Rule 5.5, we adopt some, though not all, of the proposed amendments, and adopt additional amendments not proposed in the MSBA's petition. We take these steps for the following reasons.

         First, Rule 1.6 prohibits a lawyer from "knowingly reveal[ing] information relating to the representation of a client" other than in the circumstances defined in the Rule. Minn. R. Prof. Conduct 1.6(a). Rule 1.6(b) identifies those circumstances. As relevant here, the rule permits a lawyer to disclose information relating to the client "to establish [the lawyer's] claim or defense ... in an actual or potential controversy between the lawyer and the client," 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." Minn. R. Prof. Conduct 1.6(b)(8). The MSBA's proposed amendment would expand these circumstances by authorizing a lawyer to disclose confidential client information in response to a client's specific, serious allegation of the lawyer's misconduct made outside of a legal proceeding. The proposed amendment, the MSBA explains, will clarify existing ambiguity in the rule regarding when an "actual or potential controversy" between the lawyer and a client might arise that would allow the lawyer to disclose confidential client information. The MSBA asserts that these changes are needed because of the prevalence of online rating services for lawyers and social media comments by former clients.

         The Lawyers Professional Responsibility Board (LPRB)[1] agrees that eliminating the phrase "actual or potential controversy" would clarify that the fundamental principle of confidentiality in the lawyer-client relationship limits authorized disclosures to two possibilities: actual or potential litigation, and disciplinary proceedings. Apart from this clarification opportunity, however, the LPRB opposes the proposed amendment, asserting that the disclosure that would be permitted is overly broad and unnecessary.

         We recognize that a "controversy" could be read broadly to encompass any sort of dispute. But, recognizing that confidentiality is a fundamental tenet of the lawyer-client relationship, we have recognized that the disclosure of client confidences is appropriate in only "narrow circumstances." See, e.g., Kidwell v. Sybaritic, Inc.,784 N.W.2d 220, 232-33 (Minn. 2010) (Magnuson, C.J., concurring) (describing the "relationship of trust and confidence" between a lawyer and client). As it stands now, Rule 1.6(b) authorizes a lawyer's disclosure of client confidences in the context of certain controversies or proceedings. We are sympathetic to the possibility that underlies this proposed amendment: a lawyer may need to defend the lawyer's professional reputation from false accusations, made on social ...


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