Legal Ethics

[This article originally appeared in the November 11, 2021 edition of Minnesota Lawyer]

An Oct. 25, 2021, front-page Star Tribune article reports a crisis in the Minnesota lawyer professional responsibility system. The article reports the departures of 14 staff attorneys -- seven in about 11 months beginning in September 2020 -- from what many insiders called a toxic work environment caused by the alleged abrasiveness of the director of the Office of Lawyers Professional Responsibility, Susan Humiston.

The crisis had been brewing for the last two years. In January, 2020, the Lawyers Professional Responsibility Board, authorized to supervise the director, recommended to the Minnesota Supreme Court that the director not be reappointed. The court investigated and in April 2020 reappointed Humiston.

In early 2021, the court proposed amendments to the rules governing OLPR, including removing the board's supervisory authority over the director. The board and many commentators opposed the amendments. The court took substantial account of the comments opposing its proposals but still terminated the board's supervisory authority.

The Star Tribune shared its initial investigative findings with the court. On Oct. 5, 2021, Chief Justice Lorie Skjerven Gildea submitted a statement responding principally to the findings regarding events in and before April 2020. The statement reported that a study by the court's Legal Counsel Division in early 2020 found OLPR did not have a toxic environment. The statement suggested that the director's legitimate demands on attorneys for dealing with a case backlog produced whatever friction occurred. The statement criticized the board's procedures for making its recommendation. However, the statement did not address the most problematic development, namely the departure of seven (now eight) attorneys in 2020-21. Humiston denied OLPR had a toxic workplace. The Star Tribune reported the board's disagreement with the chief justice's statement.

After the Star Tribune article, the crisis continues. One of two managing attorneys gave notice of leaving OLPR. The board will soon make another recommendation as to Humiston's reappointment, but apparently has not been informed of the related procedures that the court considers correct.

The court regularly explains its discipline decisions and rule changes by invoking the fundamental need to promote public confidence in lawyers, in judges, and in the professional responsibility system. The Star Tribune article calls into question whether the public and the profession should be confident in the current professional responsibility system. Important questions must be addressed promptly and publicly, by the court's appointment of a review committee, including public members, who will study and publicly report on the matter. This article raises some of the questions the group should address.

First, however, some historical background should be addressed. With two exceptions, public confidence has been well justified throughout the 50-year history of OLPR and the Lawyers Professional Responsibility Board.

The 1980's crisis and its resolution

In the mid-1980s, the first crisis arose from a combination of staff turnover, file aging, and the perception of many lawyers that the OLPR director was unfair. A the 1984 MSBA convention, a line of attorneys extending to the door of the Duluth Convention Center spoke against a funding increase for OLPR. Their main complaint was that the director was unfair. I became an assistant director at OLPR in 1981 and, amidst the crisis, was appointed director in 1985.

The 1980s crisis was resolved by the Supreme Court, the Lawyers Board, OLPR, and the MSBA, working together. The court appointed a review committee, chaired by Nancy Dreher. The Dreher Committee included public members and the committee reported publicly. The committee and the board interviewed current and former OLPR employees.

With the endorsement of the board, the director, and the MSBA, the court amended rules to implement the committee's recommended changes. The amended rules expressly entrusted "supervision" of the director to the Board Executive Committee, composed of three lawyers and two public members.

In the mid-1990s and in 2007, the court again appointed committees to review the professional responsibility system. These committees were chaired by eminent attorneys (Robert Henson, Janet Dolan, Allen Saeks), included public members, and reported publicly. the rules as amended, the work of review committees, and harmonious working relationships among the court, the board, and several directors provided a sold and successful foundation for the professional responsibility system for 30-plus years.

The current crisis

The Star Tribune reports that numerous former OLPR employees and board members characterize the OLPR work environment as "toxic," or even "a toxic hell hole." Fifteen attorneys have left OLPR during Humiston's 5 1/2-year tenure, including eight between September 2020 and now. Humiston had hired six of the seven recently departed attorneys. The rate of attorney departures is unprecedented, as is a newspaper article reporting scathing criticisms of OLPR.

The article reports that in January 2020, by a near-unanimous vote, the board recommended that the court decline to reappoint the director. In April 2020, after a review by court attorneys,¹ the court reappointed Humiston. The chief justice's statement alleges that the board did not follow proper procedures in making its recommendation. the former board chair denies this allegation: "The liaison was fully informed about and advised the Board regarding its recommendation before, during and after its deliberations"

Numerous Star Tribune readers commended on the article. One of the "most liked" comments stated, "Two take-aways are hard to ignore: 1) the volume of departing staff (many of whom verify toxic environment); and 2) the Supreme Court stepping in to reverse the near unanimous decision of the oversight board, despite former Justice Lillehaug's presence at its meetings. Sounds like faulty leadership on several levels."

In 2021, the court gave further evidence of its dissatisfaction with the board. The court proposed rule changes that would have drastically reduced the board's role in the professional responsibility system. The proposed rules would have reduced the board's "supervisory authority" over OLPR to "advisory responsibility." And the board would no longer make recommendations to the court regarding the director's reappointment, but would instead merely "consult" with the court administrator, who would make the sole recommendation to the court. Reducing the board's authority would reduce the public's role because the board has public members and court administration does not. No statement of need accompanied the proposed rule changes, and the court order did not provide for a hearing.

Four former directors, four former board chairs, the Lawyers Board, the MSBA Professional Rules Committee, and other filed comments. All opposed the proposed rule changes. Such broad opposition between the court and the professional responsibility community on matters of fundamental importance is unprecedented. 

On July 14, 2021, the court amended the rules.² The court gave considerable weight to the comments. Under the amended rules, the board is responsible for "establishing policies" that govern the system. The board provides "recommendations and guidance to the director." The board is responsible for administering rules. The board and the court administrator both make recommendations directly to the court regarding the director's reappointment. The amended rules are clearly superior to the proposed rules in retaining important roles for the board and its public members.

The amendments do not transfer the board's overall responsibility for supervision of the director to anyone. Who was responsible for interviewing the attorneys who departed in the last year or so? The responsibility is not the board's. Did court administration interview the attorneys? Although the reasons for the departures of these attorneys are central to the question of whether OLPR has a toxic environment, the chief justice's statement does not address these departures at all. 

The chief justice's Oct. 5 statement

The court's July 14 order stated, "at a later date, [we will] implement a review of the attorney discipline and disability system in Minnesota." The chief justice's statement reports that since July the court has been "evaluating options for the review." The statement reports that the review "will be conducted by an external entity, and include input from the OLPR, the Lawyers Professional Responsibility Board, attorneys, and other stakeholders." This formulation has at least the appearance of relegating the public to unnamed "other stakeholder" in the professional responsibility system.

The chief justice's statement explains friction between the director and assistant directors as the product of Humiston's changing "longstanding practices that allowed complaints and cases to languish without resolution must be undone." The statement asserts, "It is against this backdrop that allegations regarding the director's performance were made." The statement concludes, "Susan Humiston has instituted changes in policies, procedures, and performance expectations to efficiently and effectively manage cases consistent with the Supreme Court's mission and directive."

Do key statistics support the statement's explanation for attorney departures?

To evaluate the chief justice's statement, we must consider the OLPR's key, standard file statistics. Humiston was appointed director in March 2016. Three key statistics help evaluate the statement's claims that the combination of Humiston's "efficient and effective" drive to reduce case backlog and some attorneys' resistance to change explain the numerous attorney departures. These statistics track: (1) annual complaints (which show the rate of additions to workload); (2) total open files (one "backlog" to which the Chief Justice's statement refers); and (3) files at least one year old.³

Annual Complaints

• 2016: 1,216
• 2017: 1,110
• 2018: 1,107
• 2019: 1,003
• 2020: 930
• 2021 (annualized): 969

Total Open Files

• 3/30/16: 494
• 2017: 517
• 2018: 509
• 2019: 482
• 2020: 442
• 9/30/21: 475

Files At Least One Year Old

• 3/30/16: 145
• 2017: 149
• 2018: 145
• 2019: 119
• 2020: 125
• 9/30/21: 118

The most striking trend in these tables is the dramatic decrease in new files from 2016 to 2021. These decreases mean less overall work for OLPR and more time to reduce the case backlog. From these decreases, a dramatic decrease in total open files would reasonably be expected.

Another striking trend is the persistence of the overall backlog. The total open files have decreased over 5 1/2 years only from 494 to 475, a total of 19 files. The files at least 1 year old have decreased by 27 in five-plus years and by exactly one since 2019. OLPR has 13 attorney positions, but OLPR currently employ only 11, one of whom is leaving.

Humiston stated to the Star Tribune that while she believes in goals set by the court, "I do not manage to the numbers." However, in her first column as director, Humiston responded to widespread concerns about backlogs by giving assurance that "the number one priority of the office" would be to reduce "the number of matters pending more than a year, and the length of time it has taken in certain instances to bring a matter to conclusion."⁴

The chief justice's statement reports these achievements to be consistent with the court's "directive" to reduce backlogs. The statement explains attorney departures as a result of a director who cracks the whip to produce "efficient and effective" change in the backlog of cases. How persuasive are these claims? When new cases dramatically decrease, total cases on hand decrease only marginally, and the pace of attorney departures accelerates greatly, it is not persuasive to characterize departed attorneys as resistant to change. These statistics leave the very important, but unanswered question, "Why has there been an unprecedented, mass exodus of attorneys from OLPR?"

'These numbers represent people'

In emphasizing OLPR's need to deal with a backlog of cases, the chief justice's statement rightly points out, "These numbers [of cases] represent people." Individual people are also represented by the 14 attorneys leaving OLPR and by the board's 23 members.

The Star Tribune reports, "One current employee has missed more than a year of work because of ongoing health problems the employee blamed on office stress. A former attorney said she still suffers from work-related nightmares in which Humiston is shouting at her." A former employee reportedly said, "Every one of us were terrified of walking in and approaching her. That is the reason I retired early ... It was a toxic hellhole." Others made similar statements.

Humiston denies these allegations, and the chief justice reports that a study by court attorneys concluded the OLPR was not a toxic workplace. However, the study was apparently completed in or about April 2020, several months before the most dramatic exodus. It appears that little or no investigation has been made by anyone as to the reasons for departures of seven (now eight) attorneys in 2020-2021. If the court's study did not consider the most disturbing facts, and the study's conclusions have at least the appearance of being contradicted by the least evidence, the study cannot put any issues to rest.

for 2018-2023, OLPR and the Lawyers Board adopted a Strategic Plan. One element of the plan is to "promote a healthy, collegial and productive work environment." Another element is for OLPR to "be a leader for attorney 'Well-Being.'" The evidence that OLPR might well not be meeting these goals is clearly strong enough to require an independent public investigation.

The chief justice's statement portrays the board as "having failed" procedurally (and substantively), and as having acted hastily, in recommending against the director's reappointment. The Star Tribune reports the court having given the board an "unusual rebuke." The board members are hard-working volunteers who, if memory serves, have not been rebuked previously in the board's 50-year history. The Star Tribune also reports that a number of board members dispute the chief justice's claims. The board chair states that the board foll0wed the liaison justice's procedural recommendations.

Important questions

These developments raise important questions.

1. Why did the court not appoint an outside review committee in or about 2018 on something like its regular review schedule? Could such a review have prevented the current crisis?
   
   
2. If, as the court determined in early 2020, the OLPR work environment was not "toxic," why have so many former employees and board members describe it as toxic? When -- after the court's determination -- seven more attorneys left OLPR in quick succession, did court personnel interview them? If not, why not?
   
   
3. Most former directors were able to manage file aging and quantity well without attorney turnover. Why should friction and turnover in recent years be described as the price paid for management by high standards, especially when six of the seven recently departed attorneys were hired by the current director?
   
   
4. Can cases be "efficiently and effectively manage[d]" when turnover in the case managers is extraordinarily frequent? When files must be reassigned repeatedly, why would we expect them to be efficiently and effectively handled? Does extraordinary turnover itself belie the claim of efficient and effective management? Does constant turnover itself impair office morale?
   
   
5. Is the conclusion of the chief justice's statement persuasive that the director has succeeded in her mission to "reduce the substantial case backlog that had persisted in the Office" when the backlogs have been reduced only marginally during a 5 1/2-year period and during that period the number of new complaints has declined dramatically?
   
   
6. The board and the court have openly disputed (a) whether the board followed proper procedures in its recommendation as to the director's reappointment; (b) whether the court's proposed rule amendments were advisable; and (c) whether the director should be reappointed. The director and the board have been at odds. How is harmony to be restored?
   
   
7. What procedures should the board and the court administrator follow when evaluating the director's performance and making recommendations as to the retention every two years?

What needs to be done

The Minnesota Supreme Court has authority over the Minnesota professional responsibility system. The court may adopt rule amendments as it sees fit. The court may appoint and reappoint a director even when, with near unanimity, the board has recommended against reappointment. The court may choose to interview departing attorneys or not. the court, if it chooses, may discontinue its tradition of appoint outside review committees with public members.

With the court's authority go great responsibilities, preeminently to ensure public confidence in the professional responsibility system. At this writing, the court has been evaluating options for outside review of the professional responsibility system since at least July 14, 2021. 

The board and its public members no longer supervise the director. The chief justice's statement reports a review of the director's performance -- without any public input -- that the court approved over the recommendation of the board and its public members.

The confidence of the public and the profession in the professional responsibility system is essential. The cornerstones that have given such confidence for over three decades have been public review committees and rules that give the board and its executive committee great responsibility for overseeing the director's performance. The last review committee was appointed in February 2007, nearly 15 years ago. For the public to be confident in the professional responsibility system many important questions must be answered. It is time to appoint another committee, with public members, to report publicly on the answers to these questions.

End notes

1. The statement identifies the reviewing attorneys as from "the Minnestoa Judicial Branch's Legal Counsel Division." 
   
   
2. Order Amending the Rules on Lawyers Professional Responsibility, File ADM10-8042. The Court's proposed rules and related comments are in the same file.
   
   
3. The Board has long had benchmarks of no more than 500 open files and 100 year-od files. Most of the key statistics are found in the July 2021 Annual Report of the Board and OLPR, at A.5. http://lprb.mncourts.gov/AboutUs/Documents/2021%20Annual%20Report.pdf  The statistics for March 2016 and September 2021 are found in the attachments to agendas for Board meetings for April 1, 2016 and for October 29, 2021. http://lprb.mncourts.gov/Pages/2021-10-29%20Meeting%20Materials%20-%20Justice%20Hudson%20-%20Public.pdf.
   
   
4. Susan Humiston, "That's a terrible job. How this lawyer ended up director," Bench & B. of Minn., April 2016.

William J. Wernz is author of the online treatise, "Minnesota Legal Ethics." He has been a member of the Board on Judicial Standards, and he has served as Dorsey & Whitney's ethics partner and as Director of the Office of Lawyers Professional Responsibility.