This blog discusses selected issues in knowledge management in the field of legal ethics. The main reason for choosing this topic is that the primary current objective of the Lawyers Board (LPRB) and the Office of Lawyers Professional Responsibility (OLPR) is to develop a strategic plan. A formal report describing the plan is scheduled to be presented to the Board at its April 27 meeting. The meeting is open to the public. The plan includes knowledge management. This blog offers some observations and suggestions.
Another reason for this topic is that it is the season for annual updates to my two ethics EBooks. Dealing With and Defending Complaints addresses procedural issues in professional responsibility matters. My much larger EBook treatise, Minnesota Legal Ethics, is a commentary on the Rules of Professional Conduct as applied in Minnesota and a summary of Minnesota law on related subjects, such as the attorney-client relationship, the history of Minnesota legal ethics, etc. The updating process brings to mind my experiences from over thirty-five years of knowledge management in legal ethics.
Vignettes From Thirty-Seven Years of Experience. Three vignettes from my experience show the importance of knowledge management in legal ethics.
- In 1981 I became an OLPR Assistant Director and started my legal ethics career. At my first hearing before a Lawyers Board panel, the respondent attorney (Nelson) took new positions to explain his conduct. The new positions involved new rule violations. I moved to amend the charges to include the new violations. The panel chair, Greer Lockhart, denied the motion, explaining that he believed there was a U.S. Supreme Court case prohibiting such amendments.
Lockhart was thinking of a case that is foundational for due process in ethics proceedings—In re Ruffalo, 390 U.S. 544 (1968). The case was unknown to me, a rookie ethics lawyer. A less savvy panel chair might have granted my motion, and—to my everlasting chagrin—Nelson’s due process rights would have been violated, and the Minnesota Supreme Court would have dismissed the add-on charge.
- In 1992, I began my twenty year tenure as ethics partner at Dorsey & Whitney. My job included answering ethics questions, some of a complexity that I had not encountered at OLPR. I also did work for attorney-clients outside the firm. When I completed considerable research, analysis, and response on an issue, I wondered how to preserve work product. I wanted to be efficient and consistent, and also to provide precedents for my eventual successor.
I began to create outlines on each of the Rules of Professional Conduct. The outlines had subheadings for important words or phrases. After the outlines achieved a certain critical mass, I posted them on an intranet site, so that Dorsey lawyers could answer questions for themselves. These outlines became the framework for Minnesota Legal Ethics. The treatise would never have come to exist if I had not been a bit obsessive about ethics knowledge management.
- My third vignette comes from experience in composing my EBooks. When my legal ethics career began, the main research problem was that there was a dearth of substantial, reliable treatises or other resources. The ABA/BNA Manual Lawyers’ Manual on Professional Conduct was the largest resource by far, but its coverage and quality were uneven. Today the problem is there are too many ethics resources for anyone to cover and digest. Also, judgment is required to know in what ways the sources are useful. There are 479 Formal Opinions of the ABA. No one knows them all; some are very important, others are unimportant or outdated. The Restatement of the Law Governing Lawyers is a magisterial resource, but it was compiled in the late 1990s and no thorough update has been published. The Law of Lawyering, by Hazard, Hodes & Jarvis, is an excellent commentary on the rules, but it cites few Minnesota cases. Professional Responsibility was once an academic backwater, but now many professors publish in the area.
One might think that the 1,365 pages of Minnesota Legal Ethics would provide a comprehensive treatment, but the treatise does not deal with some important topics. It does not deal with procedural issues – that topic is covered, but not comprehensively, by Dealing With and Defending Complaints. The treatise covers appropriate discipline issues only in select cases. The treatise punts to OLPR in addressing how to maintain trust accounts.
Questions and Suggestions. These vignettes raise some questions.
Many rookies come to OLPR and LPRB. How will they be saved from the kind of mistake I made in Nelson? The OLPR/LPRB website provides a host of ethics resources, but there are important gaps. OLPR reports that it is addressing the “onboarding” issue - bringing newcomers up to speed.
I suggest that, so far as possible, onboarding and other resources be publicly posted on the OLPR/LPRB website. My Dorsey materials were created for my own use, but later posted on a Dorsey intranet site. Some years later, the materials were expanded and posted for everyone who was interested on the MSBA website, as a treatise, Minnesota Legal Ethics. The Lawyers Board adopted its Panel Manual for its own uses, but also to “enable pro se respondent lawyers, and lawyers who represent respondents only infrequently, to achieve more effective representation before a Panel.” Manual at 1.
Who will take responsibility for ethics knowledge management? Happily for Dorsey & Whitney, Ken Jorgensen has taken over my responsibilities. Who will update my treatises after my time has passed? I don’t know. Someone who cares about knowledge management and who has enough experience to spot the most significant developments is needed, whether for my treatises or at OLPR.
I suggest that someone at OLPR and someone at LPRB be specifically tasked with responsibility for knowledge management. My experience is that someone has to own the task for it to be successfully undertaken.
What use can be made of existing resources? Here I have a vested interested, though it is solely one of pride of authorship.
I hope that my two EBooks and related blogs will provide substantial help to Minnesota attorneys with ethics knowledge management. Beyond my treatises, OLPR and LPRB have their own special needs and their own mission to help educate Minnesota lawyers in legal ethics. Their website goes a long way toward fulfilling the need and the mission.
The LPRB/OLPR Website I offer a few observations and suggestions regarding the LPRB/OLPR website. These are far from a comprehensive review. The LPRB/OLPR website is at http://lprb.mncourts.gov/Pages/Default.aspx.
The website offers a great many resources and much information. It has been an ongoing effort that has regularly provided a great deal to many different types of users. I use it regularly in updating my books and for other purposes.
A good thumbnail sketch of the considerable resources of the website has been provided by the OLPR Director.
The OLPR maintains a website, lprb.mncourts.gov, which contains a wealth of information. On the site, you can find the current rules (both the Minnesota Rules of Professional Conduct and the Rules on Lawyers Professional Responsibility), secondary sources such as historical Bench & Bar and Minnesota Lawyer articles (organized by rule and subject), a suspended and disbarred attorneys list, attorney search capabilities containing all public discipline, trust account information and resources, professional firm filing requirements, cross-border (multijurisdictional practice) information, Lawyers Board Formal Opinions, annual reports, complaint forms, and information about the complaint process.
Susan Humiston, The Unseen Work of the OLPR, Bench & B. of Minn., July 2016.
The website’s resources relating to trust accounts are truly excellent. Minnesota’s trust account requirements far exceed those of the ABA Model Rules. OLPR provides guides that are commensurate with the rules’ complexity. Any lawyer who will take the time can learn how to keep books and records by following these guides.
The 2017 Annual Report notes that the website is nearly ten years old “and needs to be updated,” a project expected to begin in 2018. Updating knowledge and communication of knowledge are ongoing challenges.
Updating – A Perennial Knowledge Management Challenge. A Case in Point - The Lawyers Board Panel Manual
The first LPRB venture in ethics knowledge management was the Lawyers Board Panel Manual, adopted in 1989 and later posted on the Board’s website. The Manual states its main purpose as achieving consistency among six different hearing panels. The Manual states other goals, including enabling respondents to have more effective representation. The Manual has been an important, working resource.
The Manual was never intended to be a scholarly work that cited all cases of any interest. It was intended, however, to keep users abreast of important developments affecting panel proceedings. Unfortunately, it does not currently fulfill that purpose, because it is outdated.
Although the Panel Manual is one of the Board’s important accomplishments, the Manual’s current state shows one of the challenges endemic to knowledge management – updating. OLPR recognizes this need. In January 2018 the OLPR Director, Susan Humiston, reported to the Board, “Revisions to the Panel Manual remain in process” and OLPR “is working on improving the Panel Manual.”
The Manual’s description of its intended uses implies that the Manual will be up-to-date.
Statements in the Manual are, for the most part, generally statements of how things have been done and how things ought be done. The Manual is meant to be a working resource for Board members. Board members should bring their Manuals to Panel hearings. Panel Chairpersons should consult the Manual in connection with motions and other Panel matters.
Likewise, website descriptions also indicate the Manual is current. The 2017 LPRB/OLPR Annual Report states, “The OLPR website continues to be updated regularly to ensure it remains current.” At 11. “Revised: January 1, 2017” appears at the top of every page of the Manual.
“Revised: 2017” refers, however, solely to an appendix. The 2017 revision was to the text of Rules 18 (Reinstatement) and 20 (Confidentiality; Expunction) of the procedural Rules on Lawyers Professional Responsibility that are appended to the Manual. The Manual itself was not updated in 2017. The Manual does not cite any cases more recent than 2007.
Two cases show how important it is for the Manual to be up-to-date. In reinstatement cases central issues include whether the petitioner understands the misconduct that led to discipline, is remorseful for it, and can demonstrate that further misconduct is unlikely. In evaluating these issues, a panel must often decide whether the petitioner is explaining or excusing his prior misconduct. In In re Dedofo, 781 N.W.2d 1 (Minn. 2010), the Court found that a panel clearly erred in finding that Dedofo was trying to excuse his misconduct rather than explain it. The Court gave guidance to future panels on how the distinction between explaining and excusing should be made. Against the panel’s recommendation, Dedofo was reinstated.
In late 2015, after hearing, a Board panel recommended denial of the reinstatement petition of Louis Stockman. The Stockman panel considered issues and made findings similar to the excuse findings in Dedofo. Dedofo was not cited in the Manual in 2015 and is not cited in the Manual now. Dedofo is, however, central to the Minnesota Supreme Court’s rejection of the Stockman panel’s findings and recommendation. In re Stockman, 896 N.W.2d 851 (Minn. 2017).
In Stockman (also not in the Manual), the Court repeatedly noted that Dedofo addressed very similar issues.
Stockman argues that this was an attempt to explain, not minimize his misconduct, and that his testimony established that he “reexamine[d] his prior actions” and understood how they occurred.
We previously addressed a similar issue in another attorney reinstatement case. In Dedefo, a panel cited the attorney’s “continuing resort to cultural concerns to explain and defend his actions” as a reason to deny reinstatement. 781 N.W.2d at 10 (internal quotation marks omitted). We disagreed, concluding that the explanation was not an attempt to “minimize his wrongdoing,” but that instead Dedefo “explained elements of his culture in order to show his understanding of how and why the misconduct occurred in the past and how he now perceives and rejects the wrongfulness of his previous conduct.” Id. (citation omitted) (internal quotation marks omitted).
As in Dedefo, Stockman’s discussion of the circumstances of this incident reveals that he has reflected on his misconduct and understands how and why the misconduct occurred. Stockman testified that, “[a]lthough the result, I think, was actually a nice result, I failed her, and it was my job as her attorney.” Instead of minimizing, this explanation reveals that Stockman understood and acknowledged the misconduct that he had committed. And as we concluded in Dedefo, we are convinced that Stockman’s testimony demonstrates that he now considers this conduct inappropriate. Stockman testified: “I think one of the main jobs of an attorney no matter what type of legal stuff they’re doing is about communication. I did not communicate well enough with her, explain it well enough to her so she understood what she was facing under the law.” He further stated that, “[i]t was my job to break it down for her so she . . . plainly understood it.” We therefore conclude that the panel’s second finding of minimization is unsupported by the record and was therefore clearly erroneous.
Id. at 858 (emphases added).
One crucial function of an up-to-date Manual would be to apprise panels, respondents and their counsel of determinations by the Court that previous panels had or had not erred in certain procedures or determinations. Having such information would aid everyone both in avoiding errors and in giving confidence in procedures found not to be erroneous.
Dedofo has other important holdings. For example, Dedofo found that a panel clearly erred because, “although our past cases make clear that restitution, apologies, and other methods of making amends to the victims of wrongdoing are probative of a suspended attorney’s moral change, we have never held a failure to apologize to a victim against a reinstatement petitioner.” 781 N.W.2d at 10. Without knowing of this holding, a future panel might well hold a failure to apologize against a petitioner.
In addition to Stockman and Dedofo, an updated Manual chapter on reinstatement would cite In re Lieber, 834 N.W.2d 200 (Minn. 2013), in which the Court ordered a supplementary hearing before a referee, because the panel’s findings were inadequate. If the Manual is not updated for important cases – especially cases in which error on a panel’s part was found – panels are more likely to repeat errors.
The fact that the Panel Manual has not been updated for ten years suggests another knowledge management issue. Should some knowledgeable person be tasked with a periodic audit and spot-checking duty, to ensure updating has been done? If not, the reliability of an assurance in annual reports - “The OLPR website continues to be updated regularly to ensure it remains current” – could be unknown.
“Lawyer FAQ’s” - A Robust Resource or a Handful of Trust Account Q&A’s?
Under “Lawyer Resources,” the LPRB/OLPR website has a promising title, “Lawyer FAQ’s.” There are about 2,000 advisory opinion requests to OLPR each year. How many of these questions might have been answered by the inquiring lawyers themselves by consulting the “Lawyer FAQ’s” source?
Very few. There are only sixteen questions and answers under “Lawyer FAQ’s,” and they all relate to trust accounts. However, Annual Reports indicate that conflicts of interest are the subjects of about 20% of advisory opinions, and two other topics - “Withdrawal From Representation,” and “Confidentiality” - together comprise another 20%. The questions that are in fact most frequently asked and answered are not among the website FAQs.
Surely there are repetitive questions on conflicts, confidentiality, withdrawal, trust accounts, and other common subjects that could be distilled into website FAQ’s. The FAQ answers could be linked to rules, to cases, and to OLPR articles on these subjects. Lawyers could then answer many of their own questions, freeing OLPR time for other work. New OLPR lawyers could instruct themselves and quickly achieve consistency when they serve Advisory Opinion duty. CLE presentations could include frequent FAQs. In short, there would be a multitude of useful purposes served by a robust “Lawyer FAQ’s” website source.
Conclusion. There is an ever-greater need for knowledge management in legal ethics as in other fields. The pace of change has quickened and the volume of knowledge has mushroomed. In recent years, the Minnesota Supreme Court has much more frequently demanded demonstrations of consistency from OLPR. Several veteran attorneys have left OLPR in recent years, taking with them a good deal of the office’s collective memory of precedents and other resources. There is regular turnover in Lawyers Board membership. Print and online resources help in addressing questions, but the volume of resources creates its own challenges.
LPRB and OLPR are addressing knowledge management in their comprehensive planning process. Two areas for improvement are updating the Panel Manual and making the FAQ resource robust. More general issues to consider include making as many knowledge resources as possible public, assigning knowledge management responsibilities to the right people, and adopting procedures to ensure updating.