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Supreme Court Advisory Committee Report At the request of the Lawyers
Professional Responsibility Board, in February 2007, the Minnesota
Supreme Court established an advisory committee to review the lawyer
discipline system in Minnesota. Minneapolis attorney Allen Saeks was
named to chair the committee, which consisted of 19 members: 16 lawyers
and three nonlawyers. The committee met 12 times over the next few
months, gathered a substantial amount of data, heard presentations
from numerous individuals, and has now issued its report.1 As
anticipated, or certainly as hoped, the report states that the lawyer
discipline system in Minnesota is healthy and working well. No major
areas were identified for complete overhaul. The advisory committee
found that some improvement could be made in respect to file aging
and in handling communication with district ethics committee (DEC)
members and complainants. Perhaps somewhat controversially, the advisory
committee recommended two changes: the expunction of private admonitions
after ten years without further discipline, and a change in the manner
in which the Lawyers Board panels make probable cause determinations. File Aging One
issue that appears to have concerned the committee is the length of
time required to resolve complaint files. Twenty-three years ago,
targets for the number of open files and year-old files in the disciplinary
system were established.2 Since then, those targets have remained
at 500 total open files and 100 open files older than one year.3 These
have always been intended only as guidelines, but they are not unreasonable
targets and very often have been met. Indeed, the Director’s Office
had exactly 500 open files at the end of calendar year 2007. Maintaining
the number of year-old files below 100 has proven more difficult,
and while there frequently are valid explanations for holding these
files open,4 the bottom line is that this statistic no doubt could
improve, as the advisory committee notes. How to “attack” these older
files is the issue. The committee recommends, inter
alia, stricter and earlier case management differentiation and
additional accountability. They also see a solution in restricting
the number of seminars at which the attorneys in the Director’s Office
make presentations or limiting the advisory opinion service in some
manner. The Lawyers Board believes that these services are highly
valued by the bar and the public, and that their reduction should
be considered only as a last resort. Adding additional staff in order
to maintain present services might be an alternative solution, if
necessary. When
making my initial presentation to the advisory committee, I indicated
that essentially all issues before the committee could be considered
to be allocation-of-resources decisions. This is a clear example.
Prompt resolution of complaint files is important to complainants,
respondents and the public, and the advisory committee fairly recommends
that it be given primary importance in the allocation decisions in
the Director’s Office. Reaching a correct result is also important;
the other services provided by the lawyer discipline system are also
valuable. Perhaps a reasonable period of time during which case resolution
receives an increased emphasis should be permitted before any decisions
concerning the reduction of other valuable services are made. Communication The
advisory committee found that while disciplinary authorities communicate
regularly with complainants and respondents during investigation of
a complaint, more could be done to provide substantive information.
Of course, prompt resolution of complaints would help in this regard
too, as fewer periods of inactivity should occur. The committee also
urged that clearer, simpler language be employed in explaining results
and appeal options to complainants. As
to district ethics committees, the committee urged that greater efforts
should be made to explain to volunteer investigators why the Director’s
Office occasionally departs from their recommendations in a matter.
This is especially appropriate when an investigator has recommended
discipline against one of their local peers, only to have the Director’s
Office ultimately dismiss the matter. While such necessary departures
are rare,5 relaying clear rationales could help to avoid any misunderstanding
between participants in the system. In
a related recommendation, the committee also urged greater outreach
to impaired attorneys. Routinely providing information about legal
assistance programs such as Lawyers Concerned for Lawyers (LCL) might
help some lawyers with substance or mental health problems to seek
assistance. Possible Rule Changes Two
recommendations that will generate discussion, and which would require
changes to the Rules on Lawyers Professional Responsibility (RLPR),
are expunction of private admonitions and elimination of some of the
current contested evidentiary hearings before Lawyers Board panels
that seek to determine if there is probable cause to pursue discipline.
The committee recommends that private admonitions be expunged6 if
the attorney has had no further discipline for ten years. The report
did not propose a specific rule setting out how to accomplish this
goal or whether any exceptions would be appropriate. If this recommendation
is adopted, implementation will take some serious thought and discussion. The
more controversial recommendation of the advisory committee, and the
only one to generate a minority report, is to limit the use of contested
evidentiary hearings to determine probable cause, as currently available
in all matters in which the director issues charges of unprofessional
conduct and seeks public discipline. The committee’s majority recommends
that most probable cause determinations be accomplished by a Lawyers
Board panel making a “paper” review of the matter, and that live testimony
be taken only in rare instances at the discretion of the panel, not
accorded by right to the respondent attorney in every matter. This
proposal was initially put forward in response to concern for how
long proceedings take, but ultimately all sides seemed to acknowledge
that such a change would be unlikely to result in substantial time
savings in most instances. The committee majority nevertheless determined
that other state’s disciplinary systems no longer use such a two-hearing
system, and found that “there did not exist a convincing rationale
for giving the respondent a right to two separate evidentiary hearings.”
The
Lawyers Board has considered these two proposals and to date has not
supported them. As to both proposals, the board seems to take an “it
ain’t broke …” approach—the system is working so even if our procedures
are unique, there is no compelling reason to change them. Thus, while
personally I find the probable cause proposal intriguing, its time
may not be here yet. No doubt this aspect of the report will generate
considerable discussion. Other
recommendations of the committee include proposed revisions to the
board’s Panel Manual and its publication on the board’s website, continued
use of probation as a disciplinary option, clarification of the terms
“isolated and nonserious” as the standard for issuing admonitions,
and regular periodic reviews of the discipline system. The
board initiated the call for the creation of this advisory committee
and truly appreciates the time and effort expended by the volunteers
who participated in the process. The report affirms that our disciplinary
system overall is working well and providing value to the bench and
bar of Minnesota and to the public. The discussion that likely will
result as to some of the recommendations should not be seen as a sign
of weakness or disharmony. Rather, it reflects the healthy interest
that exists in maintaining a fair lawyer discipline system in Minnesota.
Stay tuned! s Notes 2 These targets were established as part of an earlier
advisory committee report in 1985, commonly referred to as the Dreher
Report; the committee was chaired by [now Federal Bankruptcy Judge]
Nancy Dreher. 3 File-aging statistics in the lawyer discipline system
commence on the day a complaint is filed with the Director’s Office. 4 For example, contested public discipline matters routinely
require more than one year in order to complete the available hearing
processes. Another example is that files may remain open in which
the director is awaiting a determination in some related criminal
or civil action. 5 From 2004-07, the Director’s Office followed the DEC
recommendation approximately 92 percent of the time. 6 Currently, only dismissed complaints are expunged
after three years, pursuant to Rule 20(e), RLPR. Files resulting in
any level of discipline are not expunged. MARTIN
COLE is director of
the Office of Lawyers Professional Responsibility. An alumnus of the University of Minnesota and
of the University of Minnesota Law School, he has served the lawyer
disciplinary system for 21 years. |
