Reprinted from Bench & Bar of Minnesota – July 2026
By an order dated May 14, 2026, the Minnesota Supreme Court has amended the Minnesota Rules of Professional Conduct (MRPC). The ethics rules do not change that often, so it is important to note when changes are made to the black letter text of the rules.
Humanitarian assistance to litigation clients
Rule 1.8, MRPC, addresses specific conflicts of interest with current clients. In May, Rule 1.8(e), MRPC, was amended, effective immediately, to allow an additional instance where it is permissible to provide financial assistance to a client in connection with pending or anticipated litigation, an issue that came up a fair amount during Operation Metro Surge. The text of the new Rule 1.8(e)(4) provides:
a lawyer representing an indigent client pro bono, a lawyer representing an indigent client pro bono through a nonprofit legal services or public interest organization, and a lawyer representing an indigent client pro bono through a law school clinical or pro bono program may provide modest gifts to the client for food, rent, transportation, medicine, and other basic living expenses. The lawyer: (i) may not promise, assure, or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention; and (ii) may not seek or accept reimbursement from the client, a relative of the client, or anyone affiliated with the client.
Financial assistance to clients in connection with pending or contemplated litigation is generally prohibited except in specific, enumerated instances. The rationale is that lawyers should not be subsidizing litigation, such as making loans for living expenses, because doing so may encourage pursuit of nonmeritorious claims, and because lawyers should not have too great a financial stake in the litigation.
The enumerated exceptions, which remain in effect, include (1) advancing court costs and expenses, the repayment of which may be contingent on the outcome of the matter (Rule 1.8(e)(1); (2) paying court costs and expenses of litigation for an indigent client (Rule 1.8(e)(2); and (3) guaranteeing a loan to a client to withstand litigation delay, provided the client is liable for the loan without regard for the result of the litigation and provided no promise was made of the possibility of such a loan prior to employment of the lawyer (Rule 1.8(e)(3)). Beyond these three instances, it was unethical for a lawyer to provide financial assistance to a client in connection with litigation, such as advancing funds to the client while waiting for settlement funds to be disbursed (still unethical under the new rule) or providing funds to your litigation client to cover the costs of groceries while they are not working (now okay if your client is indigent and you are working pro bono).
New Rule 1.8(e)(4) makes it permissible—provided you are assisting an indigent client on a pro bono basis, you made no promises about gifts prior to retention, and you do not seek reimbursement—to gift modest funds for “food, rent, transportation, medicine, and other basic living expenses” without doing so being considered impermissible financial assistance. Since these are gifts for necessary living expenses, not loans, there is little room for abuse or creation of a conflict between lawyer and client, and the rule revision allows a caring lawyer to address, in a modest, humane way, the struggles their indigent client is encountering. Because these are conflict rules, they are narrow and counsel considering gifts to litigation clients should review the rules. Lawyers representing clients in transactional matters have more flexibility regarding gifts but remember that if you are entering into a financial transaction with a client (that is, one in which you obtain something in return), be sure to review and comply with the requirements of Rule 1.8(a), MRPC (business transactions with clients). You can lend your client money, but you must comply with Rule 1.8(a) to do so, whether in a transactional or litigation context.
The Lawyers Professional Responsibility Board took up this issue at the request of Hennepin County’s Adult Representation Services organization. Thank you to the dedicated public interest lawyers at ARS for raising this important issue.
Duties of a prosecutor
The Court’s May 2026 order also makes three changes to Rule 3.8, MRPC, entitled “Special Responsibilities of a Prosecutor,” that are effective July 1, 2026. First, Rule 3.8(d) regarding disclosure requirements was amended. The new language (underlined) states:
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that a prosecutor is required to disclose under applicable law and procedural rules that a prosecutor knows or reasonably should know tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.
The underlined text is new and did not replace any text. The intent of the addition is to underscore the fact that a prosecutor’s ethical disclosure obligation (both as to timing and content) is co-extensive with their legal obligations.
The most notable changes to Rule 3.8, MRPC, include two new provisions, (g) and (h), regarding post-conviction obligations. The new text states:
(g) when a prosecutor knows of new, credible, and material evidence creating a
reasonable belief that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority; and, (2) if the conviction was obtained in the prosecutor’s current jurisdiction, i. promptly disclose that evidence to the defense unless the court authorizes delay; and ii. make reasonable efforts to cause an investigation to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) when a prosecutor knows of clear and convincing evidence establishing that a
defendant in the prosecutor’s current jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
These new provisions relating to post-conviction obligations largely follow the American Bar Association’s model rules adopted in 2008, which for reasons unknown to me were not adopted by Minnesota previously. Comments submitted to the Court during the comment period showed support by prosecutors within the state (and no detractors), and the Lawyers Board, which studied this rule, also sought feedback from prosecutors and defense attorneys while forming its position. Notwithstanding the support in Minnesota, it is worth noting that several states have still not added post-conviction obligations to their own Rule 3.8. The Great Northern Innocence Project requested the Lawyers Board consider adoption of Rules 3.8(g) and (h). Thank you to the Innocence Project for raising this important topic.
Other news
Recently, the American Bar Association made substantial revisions to Model Rule 1.14 (currently entitled in Minnesota, “Client with Diminished Capacity”). The Lawyers Board is reviewing those amendments this year, as are several sections of the state bar. This rule is one of guidance, so it provides information about how to competently work with clients with decision-making limitations. In August at its annual convention, the ABA is also proposing several additional changes to various model rules to incorporate key ethics opinions issued over the last decade into the text of the rules. Accordingly, we expect more discussion of rule amendments over the next year. Watch this space for updates.
Conclusion
The Minnesota Rules of Professional Conduct do not change often but they are not stagnant, and depending on when you graduated from law school, chances are very good that they have changed in some way that is likely to have an impact on your practice. For example, in 2011, Minnesota adopted Rule 1.5(b)(3), which makes it unethical to describe a fee as nonrefundable or earned upon receipt, and yet, every year, despite the passage of time, we discipline lawyers for using this precise language in their fee agreements. Please stop! You are expected to be current in your knowledge of the ethics rules, just as you are expected to know the laws and rules applicable to your practice. Thank you for reading this column and for paying attention to changes in legal ethics. If you have questions, do not forget you can call us every day to obtain free ethics advice at 651-296-3952.