• June 19, 2015
Photo by Gerry Thomasen

Photo by Gerry Thomasen

The Minnesota Supreme Court recently issued a split decision on the discipline of Duane Kennedy, a Minnesota lawyer, with the majority of the Court finding that Duane Kennedy’s zealous advocacy for his client crossed the ethical boundaries that circumscribed the separate ethical obligations he owed to the legal system.

In the abstract, it is not difficult to see how or why our legal system imposes duties on lawyers not only with respect to their clients but also more broadly to the integrity of the legal system. In many instances, it would be in the best interests of the client for her lawyer to lie to the court, to lie to opposing counsel, to help clients commit criminal acts or cover up criminal acts etc. etc. This would complicate if not destroy our legal system.

On the other hand, focusing more closely on more subtle circumstances, things get murky quickly.

Two cloudy areas immediately come to mind:

First, in settlement negotiations, do lawyers really have to tell the other side the truth all the time? Can a lawyer say, “There is no way my client will ever pay your client a penny,” if she knows that is untrue? Lawyers’ ethical rules specifically allow this kind of lying. (We make up a different word for it: “puffing.” So we don’t have to come right out and say that, in certain circumstances, it is ok for lawyers to lie. Lawyers do not lie. They puff though.)

Second (and related), can lawyers leverage their clients’ knowledge of an adversary’s criminal wrong-doing (or, for that matter, the adversary’s innocence when she has been accused of wrong-doing)? Here, again, the ethical question is complicated but, since 1992, the American Bar Association has had the opinion that:

The Model Rules do not prohibit a lawyer from using the possibility of presenting criminal charges against the opposing party in a private civil matter to gain relief for a client, provided that the criminal matter is related to the client’s civil claim, the lawyer has a well-founded belief that both the civil claim and the criminal charges are warranted by the law and the facts, and the lawyer does not attempt to exert or suggest improper influence over the criminal process.


The Model Rules do not prohibit a lawyer from agreeing, or having the lawyer’s client agree, in return for satisfaction of the client’s civil claim, to refrain from presenting criminal charges against the opposing party as part of a settlement agreement, provided that such agreement does not violate applicable law.

But is that not interfering with the operation of our criminal justice system? I suppose answering that question depends on what we mean by “interfering.” But a lawyer’s arranging a trade of silence about criminal conduct in exchange for a payment of money surely cannot be characterized as facilitating the administration of criminal justice.

The situation for Duane Kennedy was slightly different but related to both settlement and the suggestion of “improper influence over the criminal process.”

Mr. Kennedy seemed to suggest that his client might have some positive impact on the criminal prosecution of his adversary and that his client might be more helpful if his adversary would settle his civil claim.

Justices Lillehaug and Page dissented from the decision against Mr. Kennedy. I agree with the dissent and it seems to me that the Court’s majority might have been swayed by background facts (that is, that Mr. Kennedy has a disciplinary history and was actually on probation at the time of this latest ethics incident). Regardless of which side is right, we all need to appreciate that the ethical lines that lawyers need to stay within are “fuzzed” at times, as Justice Lillihaug’s dissent put it.



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