Rule 1.0—Terminology
I. OVERVIEW, LIMITED SCOPE
A. Great Importance
The terminology rule and comments are very important for defining several key terms: "informed consent," "knowingly," "reasonable," and "reasonably should know." Rule 1.0(f)-(g), (i), (k). Whatever the ordinary usages of these terms, their definitions are crucial for applying rules to many situations. For example, a lawyer who "knows" that a client has given false testimony has remediation obligations that often require disclosure of confidential information. Rule 3.3(a)(3). On the other hand, the lawyer who reasonably, and strongly, disbelieves a client—but does not have actual knowledge of false evidence—and makes remediation disclosures, violates the confidentiality Rule. Rule 1.6. It is very important for lawyers to know what they know.
B. 2005 Expansion
The 2005 Rules amendments approximately tripled the length of the Terminology section. In addition, with the amendments, lengthy comments were added. Before 2005, there were no comments to the Terminology section. The comments address at considerable length the terms "firm," "informed consent," and "screened." Rule 1.0 cmts. 2-4, 6-10.
C. Limited Scope
Because some "terminology" definitions are largely self-explanatory, they receive only brief attention here. For example, the association of "tribunal" with a variety of adjudicators, not just courts, is not surprising. Rule 1.0(n). No comment, or commentary, is needed to explain the term further.
D. Other Definitions
The definitions in Rule 1.0 apply throughout the Rules. Other individual rules may have their own definitions, especially the numerous definitions in the trust account rule. Rule 1.15(o). Case law sometimes defines terms that are used in various rules. For example, the common term, "matter," is defined, for litigated cases, as the "case," e.g. a defamation case. In re Panel File No. 41755, 912 N.W.2d 224 (Minn. 2018). "Matter" therefore does not mean, on the one hand, a mere issue within the case; and, on the other hand, "matter" does not include litigation collateral to the case, e.g. a follow-on case with different parties.
II. KNOWLEDGE AND BELIEF—RULES 1.0 (a), (g), (j), AND (k)
A. Epistemology
The branch of philosophy that is concerned with the nature and scope of knowledge is epistemology. The Rules suppose that lawyers are epistemologists. The Rules use several distinct concepts to identify the states of mind that are elements of various rules. The Rules presuppose that lawyers, and those who sit in judgment on lawyers, are able to differentiate these states of mind. Commentaries and case law are, however, remarkably diverse when it comes to concluding, for example, that a lawyer actually knew evidence was false, as opposed to merely having a strong belief the evidence was false.
B. Two Federal Cases—Unambiguous Meaning
The United States Supreme Court gave considerable attention to the meaning of "actual knowledge" under ERISA in Intel Corp. Inv. Policy Comm. v. Sulyma, 206 L. Ed. 2d 103 *; 2020 U.S. LEXIS 1367 **; ___ S.Ct. ___; 2020 WL 908881. ERISA does not define "actual knowledge." The Court held that "actual knowledge" must be given its plain and unambiguous meaning—the person in question must actually be "aware" of the fact in question. However, the Court also acknowledged that actual knowledge could be inferred from circumstantial evidence and proof of willful blindness could support a finding of actual knowledge.
Applying Minnesota law, a court found error in giving a jury instruction on the meaning of "knowingly false representation," because the term was found to be unambiguous. Vaidyanathan v. Seagate US LLC, 691 F.3d 972, 976-78 (8th Cir. 2012). The lower court had instructed the jury that a person made such a representation if "the person represented that he knew about the facts when he did not know if the facts were true or false." Id. at 976.
C. "Know" is Actual Knowledge
"Knowingly" and related terms appear frequently in the Rules. A lawyer who suspects, but does not know a certain fact will frequently not be subject to the rule in question. "Knowingly" and its cognates are defined as "actual knowledge of the fact in question." Rule 1.0(g).
D. "Know" is Not "Should Know"
The chapter of this treatise on Rule 3.3 discusses a case in which the Minnesota Supreme Court erred in imposing discipline on the basis that the lawyer "knew or should have known" his statement was false. In re Ulanowski, 800 N.W.2d 785, 789, 794 (Minn. 2011). Rule 3.3 applies only to "knowingly" false statements. "Actual knowledge does not include unknown information, even if a reasonable lawyer would have discovered it through inquiry." RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 120 cmt. 6 (2000).
E. Another "Know" or "Should Know" Confusion
A fundamental principle is that a lawyer may not assist a client "in conduct that the lawyer knows is criminal or fraudulent." Rule 1.2(d). This principle has its limits - "A lawyer ordinarily has no duty to initiate investigation of a client's affairs." Rule 2.1 cmt. 5. However, another comment purports to modify Rule 1.2(d) materially, by adding "or reasonably should know" to the Rule's state-of-mind provision. Rule 1.2 cmt. 13. A comment cannot add to the obligations prescribed by rule. "The comments are intended as guides to interpretation, but the text of each rule is authoritative." Minn. R. Prof'l Conduct Scope ¶ 21.
F. Inferring Actual Knowledge—"Obvious" Falsehoods
A lawyer's actual knowledge "may be inferred from circumstances." Rule 1.0(g).
Comments allow an inference of actual knowledge when a lawyer "ignore[s] an obvious falsehood," or evades a prohibition "by closing eyes to the obvious," or ignores the obvious. Rules 3.3 cmt. 8, 4.2 cmt. 8, 1.13 cmt. 3.
In some circumstances, what is "obvious" may not be entirely obvious. Proof may require expert testimony or other evidence. For example, see the discussion below, under Rule 3.4(c), of evidence of whether a lawyer "knowingly" violated a discovery rule.
In other cases, the obvious may be clear. A discipline case held that direct evidence of an attorney's "uncooperative state of mind" is not necessary to meet the clear and convincing evidence standard. In re Erickson, 653 N.W.2d 184, 190 (Minn. 2002). Another case rejected a respondent lawyer's claim that "willfulness" was required to violate a rule that included "knowingly" as an element. In re Anderson, 759 N.W.2d 892, 897 (Minn. 2009).
In criminal law, the "blind eye" doctrine also allows actual knowledge to be inferred. An Eighth Circuit Court of Appeals pattern jury instruction is similar: "Knowledge may be inferred if the defendant [(name)] deliberately closed [his] [her] eyes to what would otherwise have been obvious to [him] [her]." MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS FOR THE DIST. COURTS OF THE EIGHT CIRCUIT Standard 7.04 (2013). Alternatively, a criminal defendant may be deemed to have "willful blindness," with the same consequences as actual knowledge, "if the defendant was aware of facts that put him on notice that criminal activity was probably afoot and deliberately failed to make further inquiries, intending to remain ignorant." United States v. Hansen, 791 F.3d 863, 868 (8th Cir. 2015). Actual knowledge or willful blindness may not be found where defendant was, "merely negligent, careless, or mistaken." See United States v. Haire, 806 F.3d 991, 998 (8th Cir. 2015).
G. Inferring Knowledge From Circumstance
In a discipline opinion, the Court rejected the Director's position that the actual knowledge requirement of Rule 8.1(b) could be dispensed with in certain circumstances. However, the Court...
