The seventh edition of Minnesota Legal Ethics will be posted next month. This month’s blog reproduces a new section in the treatise chapter titled, “What Minnesota Legal Ethics is All About.” While most of the treatise is intended to be used, for research, rather than read for interest, I encourage you to read this chapter. I think you will find it interesting, including the new section below. Note that on June 6, 2017 several small changes were made in the text below, for clarification, completeness and correction. The amended blog text will appear in the treatise.
PROMPT, FAIR AND JUST INVESTIGATIONS AND DISPOSITIONS
“It is of primary importance to the public and to the members of the Bar that cases of lawyer’ alleged disability or unprofessional conduct be promptly investigated and disposed of with fairness and justice, having in mind the public, the lawyer complained of and the professional as a whole, . . ..” Minn. R. Lawyers Prof. Resp. 2.
Fair and Just. In my experience in representing and advising respondent attorneys, and in observing the attorney discipline system, I would say that the system is exceptionally fair. I say this in relation both to the attorney discipline systems of many other states and in relation to some of the other Minnesota licensing boards with which I am familiar.
One dimension of fairness is what might be called procedural justice. Several examples will illustrate the exceptional fairness of the Minnesota system. The Rules on Lawyers Professional Responsibility, as adopted by the Court and administered by OLPR, provide respondent attorneys with far more than due process requires. There are no secret investigation files. The respondent and attorney and the complainant receive the same Notice of Investigation, so that both know what is at issue and how the investigation will proceed. Many investigations are undertaken by District Ethics Committee volunteers. They are well-suited, from experience in the practice of law in their locales, to a fundamental determination in discipline matters – what is “reasonable,” i.e. what is “the conduct of a reasonably prudent and competent lawyer.” Rule 1.0(i).
An important procedural issue is when OLPR is authorized to file a public petition for discipline. The rules identify several situations in which authority is readily granted, e.g. when the lawyer waives the probable cause proceeding, when the lawyer has been convicted of a crime, and when the lawyer has admitted serious misconduct. Minn. R. Lawyers Prof. Resp. 10. In closer cases, the probable cause system balances two important considerations: (1) the public’s interest in prompt public notice of serious allegations of unprofessional conduct by an attorney; and (2) the attorney’s interest in professional reputation and livelihood. Even a private admonition, issued for “isolated and nonserious” misconduct may be appealed both to a Lawyers Board Panel and to the Court. Minn. R. Lawyers Prof. Resp. 9.
In all Lawyers Board Panel hearing procedures, the Panels seek consistency, as a form of fairness. A Lawyers Board Panel Manual is found on the Board’s website. The Manual assists Panels in following consistent procedures and achieving consistent results. The Manual also assists respondent attorneys in understanding how the Panel hearing system works. Examples of the diligence and fairness of Panel proceedings may be found in the Panel findings after hearings on petitions for reinstatement in In re Griffith, 883 N.W.2d 798, 802 (Minn. 2016) and In re Severson, 889 N.W.2d 291 (Mem) (Minn. 2016).
To achieve substantive justice, the Minnesota Supreme Court devotes extraordinary resources to careful consideration of discipline cases. The Court strives both to achieve consistency and to do justice to unique facts in many cases. In re Panel File No. 39302, 884 N.W.2d 661, 669 (Minn. 2016). The Court has often required OLPR and respondent attorneys to file memoranda, explaining why a proposed disposition is appropriate. Dissents are not rare in discipline opinions, with vigorous, even heated debate among the justices. The Court has encouraged OLPR to exceed legal requirements of fairness: “Although we believe the Director did not violate Respondent’s right to due process of law, we caution the Director’s Office in the future to draft its charges with specificity.” In re Keate, 488 N.W.2d 229, 233 (Minn. 1992).
Fairness Exemplified – Four Vignettes. The greatest examples of fairness are found in the day-to-day work of the District Ethics Committees, the Office of Lawyers Professional Responsibility, the Lawyers Board, and the Minnesota Supreme Court. Whatever the disagreements on particular cases, and occasional shortcomings, in my experience fairness is the rule.
Two related vignettes will illustrate truly exceptional examples of fairness by OLPR. In two cases in 2006 I represented respondent attorneys in probable cause proceedings before Lawyers Board panels. In both cases, the lawyers representing OLPR (Martin Cole and Kevin Slator) disclosed to me and to the panels cases that had been decided by the Minnesota Supreme Court, but were not available through ordinary means of finding cases. (It is very unusual for the Court not to file its discipline decisions in the ordinary, public way. In these cases, the Court thought that public discipline was excessive, and sought to make discipline less than fully public.) Both cases were strong authority for finding, as the panels did in the 2006 cases, that there was not probable cause to believe public discipline was warranted. If OLPR had sought solely to prevail, rather than to see justice done, it would not have disclosed the cases.
Two more vignettes will recount personal memories when I was on the prosecution side. When I was OLPR Director, I once dismissed Charges of Unprofessional Conduct against a prominent attorney in the middle of a hearing, when a witness gave testimony that was inconsistent with prior statements. I no longer believed that public discipline was warranted.
In another case, a respondent attorney was charged with violating a district court gag rule. His defense was that he had not violated the rule. He waived the probable cause hearing. At the hearing before the Court’s referee (Russell Anderson, a future Chief Justice), respondent offered a new defense. He called an expert witness (Eric Magnuson, another future Chief Justice), who testified that the gag order violated the First Amendment. Although the testimony was probably subject to objection as being on the law, I did not object. After the hearing, my research persuaded me that the expert was correct. On my motion, the Court dismissed the petition.
Fairness Compromised, Redress Follows. Inevitably, the high standards of fairness have not always been met, but failures have been followed by corrections. The following cases are illustrative.
- In re Olson. OLPR did not interview respondent or any of her witnesses before seeking public discipline. However, the Supreme Court’s referee carefully listened to the testimony of respondent and her witnesses. The case was dismissed. Minnesota Legal Ethics Blog, Dec. 2016 http://my.mnbar.org/blogs/william-wernz/2016/12/14/in-re-olson-and-state-v-whitcup-a-prosecutors-travails-and-vindication?CommunityKey=06b06e45-74ca-4cf9-ae84-fede75b8e1b5&Tab=. To its credit, OLPR recognized its shortcoming in this case, and adopted an internal procedure by which charges of unprofessional conduct are not to be issued without first interviewing the respondent attorney, at least in normal circumstances.
- In re Terrazas. OLPR reviewed a juvenile’s file, on file with the Clerk of Appellate Courts, to confirm reports that a lawyer, Terrazas, had committed misconduct in a child custody matter. OLPR charged Terrazas with misconduct in the custody matter and other matters. However, OLPR failed to follow statutory procedures for access to the file. The Court stated, “The Director is charged with investigating attorney misconduct and unethical behavior. Necessarily included in such responsibility is a high standard of conduct, including strictly complying with statutes regulating the inspection of privileged court documents. The Director acted directly contrary to [Minn. Stat.] section 257.70 when it inspected not only the appellate file, but also the child custody trial court file, without obtaining the consent of the court or of both interested parties. As the referee concluded, the ‘legislature has seen fit to protect the privacy of paternity files from intrusion and to provide safeguards’ relating to inspection. Therefore, the referee’s conclusion that the Board violated the statute is not clearly erroneous and the charge of misconduct involving the civil litigation matter was properly dismissed.” In re Terrazas, 581 N.W.2d 841, 844–45 (Minn. 1998).
- In re Q.F.C. In another case, in reviewing a complainant appeal, a Board member violated a rule, by not giving an explanation for her decision that public discipline should be sought. Minn. R. Lawyers Prof’l Resp. 8(e). On the basis that this error produced fundamental unfairness, the Court reinstated a private probation that preceded the appeal, and vacated public proceedings. In re Q.F.C., 728 N.W.2d 72 (Minn. 2007).
Prompt. In the years that I have been involved in the Minnesota discipline system, beginning in 1981, promptness has sometimes been given the primacy required by rule and has sometimes been the system’s most important failure. The best measure of promptness has been one of the file-aging benchmarks adopted by the Lawyers Board in the early 1980s – there should be no more than 100 files that are more than a year old.
In the period 1981-85, there were well more than 200 year old files at many times. When I started as an Assistant Director in 1981, there was a “file bank.” Files consigned to the file bank were intended to be inactive for extended periods. The rationale was that if all files were assigned to Assistant Directors, morale would suffer from excessive caseloads. When I started, in addition to the Director, there was an experienced First Assistant, three Assistants with experience in the practice of law but no ethics experience, and one Assistant who was about to receive his attorney license. We were short-staffed.
The effect of old files on the professional responsibility system is profound. Allegations that respondents have been dilatory are difficult to prosecute when the prosecutor’s own timeliness is problematic at best. Complainants lose confidence in the professional responsibility system. Attorneys who should be suspended or disbarred continue their misconduct. The purpose of professional discipline is future-oriented and preventative. When discipline routinely relates to long-past misconduct, the system is broken.
In 1984-85, the first of the Supreme Court’s outside committees (the “Dreher Committee”) was appointed to review the operations of OLPR, the procedural rules, etc. The Lawyers Board joined in the effort of review and reform. Staff was added to OLPR and management techniques were changed. Within a fairly sort time the average number of year old files fell well below 100 and remained there for some years.
In 2008, another Court review committee (the “Saeks Committee”) reported a total of 152 year old files, a number the committee found unacceptably high. Unfortunately, thereafter the number of year old files continued to grow. The 2015 LPRB/OLPR Annual Report reported 221 year old files, far above the mandated ceiling. A concerted effort was then made to deal with this problem. By the end of 2015 there were 161 year-old files and by April 2017 there were only 108 year-old files. These and other statistics can be found on an ongoing basis on the Lawyers Board / OLPR website, in Annual Reports and in attachments to Board meeting agendas.
As explained more fully in Section X. of the chapter of this treatise, “The Rules and Other Authorities,” in the early twentieth century the Court recognized a two-year statute of limitations on prosecution of discipline offenses. However, the Court effectively extended the statutory period by adopting a “continuing offenses” doctrine, by which, for example, a misappropriation that began in 1919 could be prosecuted in 1925 if the attorney had not made restitution. As the Court asserted its general inherent authority to regulate the practice of law more strongly, in the 1930s, it ceased to recognize the statute of limitations on discipline prosecutions. The Court adopted a position that delay, without prejudice, is not a basis for dismissing a disciplinary case. In re N.P., 361 N.W.2d 386, 392–93 (Minn. 1985).
In one case, the Court took account of apparently undue delay, calling it a procedural irregularity. “Finally, it is also worth noting the procedural irregularities in this discipline matter. Grigsby was suspended for 60 days on April 16, 2009. Grigsby's single instance of misconduct resulting in this disciplinary proceeding took place sometime during April and May 2009, and the Assistant County Attorney informed the Director of it on June 3, 2009. The facts of this case are simple and undisputed, Grigsby's violations are obvious, and Grigsby complied with the Director's investigation. The Director did not file a petition for disciplinary action until May 31, 2011, 727 days after notice of the misconduct. Because Grigsby, understandably, did not seek readmission while under investigation for practicing law while suspended, see Rule 18(f), RLPR, he has effectively been suspended from the practice of law since April 16, 2009, or for over 3 years. The purpose of any disciplinary proceeding, as noted earlier, is to protect the public; the delay here tends to weaken the Director's argument that protection of the public requires a reinstatement hearing and we decline to do so notwithstanding the legitimate concerns discussed earlier.” In re Grigsby, 815 N.W.2d 836, 847 (Minn. 2012).
That the Court took account of delay in Grigsby was unusual. The Court has generally relied on OLPR and the Lawyers Board to deal with problems of systemic delay. Where systemic delay has persisted the Court has appointed a review committee to recommend solutions, or otherwise encouraged OLPR to resolve the problem.