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| What Works Well and
Why Ken Jorgensen recently left
the Lawyers Board after 23 years, stepping down as director to accept
an appointment to the Washington County District Court bench.
This is a milestone event, since Ken has been with the Board
for his entire professional career, having begun work for the Board
as a law clerk while in law school.
His tenure spans a large part of the history of the Board.
These have been good years for Ken1 and for lawyer discipline
in Minnesota. His departure is an occasion for reflection
on what works well and why. The Rules In 1971, when the first Lawyers Board and director were
appointed, Minnesota lawyers’ conduct was governed by the canons and
ethical considerations contained in the Code of Professional Responsibility. These rules were replaced in 1985 by the Rules
of Professional Conduct, which were recently substantially amended
effective October 2005. The
rules have progressed from broadly stated principles of ethical conduct
to a regulatory framework that codifies case law, bar opinion, and
treatises on lawyer ethics.2 In some respects, lawyers are now held to stricter
and more detailed standards of practice and behavior. However, the rules offer clearer guidance to
lawyers and clearer standards for enforcement. The Board The LPRB
consisted initially of a chair and 18 members, three of whom were
not lawyers. The Board has since been expanded to a chair
and 22 members, including nine nonlawyer members. The supervisory and adjudicative functions of
the Board have been divided: an
executive committee supervises the office, while other members hear
complainant appeals from dismissals, and serve on panels that determine
probable cause for public discipline and hear admonition appeals and
reinstatement petitions. The contributions of nonlawyer members are worthy
of particular note; they offer unique and valuable perspectives. The Director and Staff The first director, R.B. Reavill, took office January
4, 1971. A secretary was hired
in February, and an assistant director was hired in May.
In 1982, when Ken was hired, the office employed five lawyers. The office now employs nine lawyers and 15 paralegals
and other support staff. One of the remarkable features of the staff is its longevity
and continuity. Nine employees,
including Ken, First Assistant Director Marty Cole, Senior Assistant
Director Betty Shaw, and Administrator Joanne Daubenspeck have more
than 20 years of service. District Ethics Committees District ethics committees continue to perform an important
role in investigating complaints and recommending discipline or dismissal. Minnesota is in a diminishing minority of jurisdictions
that continue to utilize volunteer committees in the discipline process.
Many states have accepted aba recommendations to assign all investigative
functions to professional staff. Minnesota’s
experience with district committees continues to be positive.
More than 327 lawyers and nonlawyers currently serve as committee
members, and they contribute valuable time in investigating complaints.
Their recommendations are informed by experience and familiarity
with local practices, and their participation lends credibility to
the discipline system. Board members are often drawn from the ranks
of district committee members. Oversight The Supreme Court adopts the disciplinary rules, appoints
the director and members of the Board, and administers all public
discipline. For many years the Court has appointed one of
its justices as a liaison to the Board.
The Court has supported the work of the Board, provided needed
resources, and given appropriate recognition to the contributions
of staff and volunteers. Prosecutions The Board and staff continue to devote a majority of their
time and energy to prosecuting violations of the Rules.
The volume of complaints rose until the late 1990s, when the
volume leveled off and declined as a percentage of the number of licensed
lawyers. Common complaints continue to involve failures
of diligence and communication. A
disturbing recent trend is the increase in the most serious infractions
— defalcations, deceit, and other criminal acts. Many infractions involve complex financial transactions
that absorb staff time and resources. Vigorous and timely prosecution is important
to protect the integrity of the profession, and in some cases reduces
the losses to be absorbed by the Client Security Fund. The Board and staff endeavor to be firm but fair in prosecuting
violations. The Minnesota bar
seems to believe that they are. The
organized bar has been supportive, and relations with bar leaders
have been cordial. Minnesota has not seen the antagonism observed
in many jurisdictions between disciplinary authorities and the practicing
bar. Advisory and Educational Functions One of the striking changes during Ken’s tenure with the
Board is the increasing emphasis on advisory and educational functions. The Board issues opinions interpreting the Rules
and stating its enforcement positions.
The staff has prepared and disseminated a computer program
for trust account management. The
director and other staff lawyers write monthly columns on professional
responsibility in Bench & Bar and other publications.
Staff lawyers are frequent lecturers at continuing legal education
programs. Ken has managed the Board’s advisory opinion service for
almost 20 years, and during that time it has grown and become a vital
and successful part of the Board’s work.
Advisory opinions are issued by the staff to answer lawyers’
questions on ethical issues. A
total of 2,042 such opinions were issued last year.3
As the advisory service has developed, the volume of complaints
has dropped, and several informed observers believe there is a direct
cause and effect relationship. Website A striking change during Ken’s tenure — largely his personal
effort — is the Lawyers Board web page.
A tremendous resource for lawyers interested in legal ethics
issues, the Board’s web page contains full searchable text versions
of the rules and all the ethics articles ever written for Bench
& Bar and Minnesota
Lawyer going back to the mid-1970s.
Lawyers who practice regularly in this field regard the Board
web page to be one of the best resources of its kind.
Client Security Ken also served as director of the Minnesota Client Security
Board (“CSB”), which
repays the victims of lawyer theft.
The CSB has been a remarkable success. Since its establishment in 1987, the CSB has paid all allowed claims, while
the claim limit has been increased to $150,000 (one of the highest
in the U.S.), the annual assessment has been reduced to the current
$12 per lawyer, and the fund balance has grown to the current $2.3
million. Ken took pride in publicizing the CSB’s activities, for example making sure
the press was aware that, even before criminal proceedings against
a recently disbarred lawyer were completed, the CSB
had repaid all of the lawyer’s victims in full (over $840,000 — a
record amount). Conclusion Since the creation of the Lawyers Professional Responsibility
Board, the Court has twice appointed blue ribbon committees to review
the functioning of the discipline system and recommend changes.4 It is expected that another such committee will
be appointed in the near future. The
committee should find the discipline system to be functioning well,
thanks in large measure to the service of Ken and other dedicated
and talented staff and volunteers. c NOTES 2. See Kenneth
L. Jorgensen and William J. Wernz, “New Directions in Professional
Conduct,” Bench & Bar of Minnesota 62:11 (September 2005)
p. 14. 3. A total of 2,177 opinion requests were submitted;
135 requests were declined for various reasons. 4. Report of the Supreme
Court Advisory Committee on Lawyer Discipline, April
15, 1985, chaired by Nancy Dreher, commonly referred to as the “Dreher
Report”; Report of the Advisory Committee to Review Lawyer Discipline
in Minnesota and Evaluate the Recommendations of the American Bar
Association, October 13, 1993, cochaired by Robert F.
Henson and Janet M. Dolan, commonly referred to as the “Henson-Dolan
Report.” CHARLES E. LUNDBERG is a partner in the Minneapolis
trial law firm of Bassford Remele, where he practices in the areas
of legal malpractice defense, legal ethics, and appeals. He chaired
the Lawyers Board from 1998 to 2004. KENT GERNANDER is a general practice and trial lawyer in the Winona firm of Streater & Murphy, P.A. He is the chair of the Lawyers Professional Responsibility Board and a former president of the Minnesota State Bar Association. |
