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CRISIS IN THE PROFESSIONAL RESPONSIBILITY SYSTEM (2020 - ?)

By William Wernz posted 04-18-2022 15:44

  

 AUTHOR’S NOTE - “What Minnesota Legal Ethics is all About” is the title of one chapter of my treatise, Minnesota Legal Ethics.  The chapter is not a complete chronicle, but it includes several sections that discuss ethics issues of the day.  Some of the issues involve interpreting, updating, and applying the law to difficult circumstances.  Others involve the challenges faced by the professional responsibility system, beginning with the case of Supreme Court justice who cheated on his bar exam, continuing with the “bombs and bullets” episode, and culminating in 2020-21 with the tumult in the law arising from the murder of George Floyd, the attempts to overturn the presidential election, and the numerous challenges to practicing law in a time of pandemic.  Having added a chapter on tumult last year, I did not expect so soon to be writing about another crisis, this one in the professional responsibility system itself.  We can all hope that 2022-3 will mark a return to normality and a resolution of the current crisis. I have been active in Minnesota professional responsibility for over forty years and can report that, on the whole, we have weathered every storm and, so far, emerged stronger.

A challenge to reporting confidently will be that, as described below, one important report on the crisis, has already been filed with the Minnesota Supreme Court but is not available to anyone else, and another important report will soon be filed confidentially with the Court.  Confidence of the public and the legal community in the Minnesota professional responsibility system has been based in important part on the system’s openness.  If secrecy comes to be an important feature of the system, confidence will be correspondingly impaired.    Bill Wernz

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In early 2020, a crisis in the Minnesota professional responsibility system began to emerge.  The crisis centered on the Director of the Office of Lawyers Professional Responsibility (OLPR), but came to involve the Lawyers Professional Responsibility Board, the Minnesota Supreme Court, and the Minnesota professional responsibility community.  In January 2020, the Board recommended to the Court that it not re-appoint the Director, Susan Humiston, to another two-year term as Director.  In January 2022, the Board again recommended against the Director’s re-appointment.  The Court re-appointed Ms. Humiston to two-year terms in 2020 and again in 2022.  Minn. S. Ct. File No. ADM 10-8042, March 31, 2022.

The Board’s recommendations were among the subjects of five articles about the crisis in the professional responsibility system published in the Star Tribune on October 25, 2021, December 11, 2021, December 16, 2021, February 2, 2022, and April 7, 2022.  Important, sometimes confidential, documents were linked with the online versions of the articles.  The main subjects of the articles were the rampant turnover among OLPR attorneys and the accusations of current and former OLPR employees that OLPR was a “toxic” workplace, due to the Director’s allegedly abrasive and demeaning conduct toward employees.  The Director denied the accusations.  The Star Tribune reported the departure of 14 (later 15) OLPR attorneys during the Director’s tenure, including 7 in about 11 months beginning in September 2020.

 In early 2021, after the Board’s first recommendation not to re-appoint the Director, the Court proposed amendments to the Rules on Lawyers Professional Responsibility that would have greatly reduced the Board’s role. One proposal - to assign oversight responsibility to Court administration for individual employee issues – was not controversial, because it codified a longstanding practice.  However, the timing and nature of other proposals created the appearance that the Court was retaliating against the Board. The proposed amendments and the problems they would have created are discussed in William J. Wernz, Quandaries & Quagmires: Diminishing the Public’s Rule in Professional Oversight, Minn. Law., Apr. 6, 2021. Two examples illustrate the problems.

First, under proposed Rule 5(a), the State Court Administrator would “consult” with the Board as to the Director’s performance and the Administrator – but not the Board - would recommend to the Court as to retention.  Unlike the Board, the Administrator has no direct knowledge of the Director’s performance regarding the Director’s most important function – dealing with ethics complaints.  The Board – the group with greatest knowledge of the Director’s performance – would not communicate to the Court regarding the Director’s re-appointment.  Second, the Court’s proposal would have reduced the Board’s relationship with the Director from “supervisory” to “advisory.” 

The Board, several former Board Chairs, several former Directors, and the MSBA Professional Regulations Committee filed comments in opposition to the Court’s proposals.  The general thrust of the comments was that the Court’s proposals were not just ill-advised, but would be disastrous. There was no precedent for such broad and uniform opposition to Court proposals from the professional responsibility community.  In July 2021, the Court largely heeded the opposition and adopted amendments to the RLPR that retained most of the Board’s essential functions.  However, the Court removed the Board’s general supervisory authority over the Director.

The tension between the Court and the Board was further revealed in the October 5, 2021 Statement from Minnesota Supreme Court Chief Justice Lorie S. Gildea on the Office of Lawyers Professional Responsibility.  The Statement was a response to a draft of the first Star Tribune article.  The Star Tribune later characterized the Statement as a public “rebuke” of the Board.  The Board’s alleged offense was not following proper procedures in formulating the Board’s 2020 recommendation against the Director’s re-appointment.  Board members were both bewildered and offended by the rebuke, because they understood the process now criticized by the Chief Justice was the one recommended by the Court’s then Liaison Justice, David Lillehaug. 

The Chief Justice’s October 5 statement claimed that a Court Administrator’s study reported that the OLPR work environment was not toxic.  However, the study was completed in April 2020 – before departures became rampant – and some departed attorneys claimed that the Court Administrator did not even attempt to interview them.  A February 2, 2022 Star Tribune article reported, “Despite the court’s promise to interview former staff members, at least two attorneys who  left in the past year told the Star Tribune they have yet to speak to investigators. Two other former attorneys said they spent just five minutes on the phone discussing their departures with a court official, describing the conversations as perfunctory and superficial.”

 The Chief Justice’s October 5 Statement also asserted that the Director had “efficiently and effectively manage[d] cases.”  Case statistics, however, provide an objective and different view into what OLPR had achieved and failed to achieve from March 2016 to late 2021.  For example, the statistics showed that from 2016 to 2021 annual new complaints decreased from over 1,200, to fewer than 1,000.  From this decrease in workload, substantial decreases would be expected in the numbers of old files and of total files on hand.  However, there were no substantial decreases since the current Director was first appointed.  The Chief Justice’s Statement did not acknowledge, let alone attempt to explain, the productivity problem that the statistics strongly indicate.  Further analysis of the Chief Justice’s Statement and of the relevant statistics appears in William J. Wernz, The Need to Restore Confidence in State’s Lawyer Professional Responsibility System, MINNESOTA LEGAL ETHICS BLOG, Nov. 2021, https://my.mnbar.org/blogs/william-wernz/2021/11/12/commentary-the-need-to-restore-confidence-in-state.  As discussed below, a March 31, 2022, letter from the Court’s Liaison Justice has now acknowledged what the Chief Justice’s Statement denied - that OLPR has had both case management and morale problems.

The headline of a Star Tribune’s December 11, 2021 article was, “More Leave Minnesota’s Lawyer Disciplinary Office Amid Morale Concerns.”  The article reported a former OLPR Managing Attorney calling the Office “dysfunctional” and a Board member calling the attorney turnover a “crisis.”  The article reported that Lisa Spencer, the Hennepin County District Ethics Committee Chair, had resigned.  Spencer cited OLPR turnover and friction with OLPR lawyers in explaining her departure. The article reported the Director stating that the Office was on “the right track toward sustainably meeting all measures of success set by the Court.”

 A December 16, 2021 Star Tribune article reported the Chief Justice’s apology for having rebuked the Board.  Minnesota chief justice apologizes for strain with board overseeing state's legal-industry watchdog - StarTribune.com  The Chief Justice acknowledged that she had, "made public comments that some on the board felt were overly critical. Worse, I understand that some members of the board felt personally attacked by my comments. For that I apologize."

 On January 31, 2022, the Board sent a letter to the Court recommending against the Director’s re-appointment and citing numerous specific reasons for the recommendation.  A copy of the letter was published with the fourth Star Tribune article, on February 2 (online).  The Board’s letter concluded, “Board members believe that effective leadership requires personal accountability, organization, timely discharge of responsibilities and the ability to delegate, all areas in which they find the Director’s performance to be deficient. In sum, the Board believes the OLPR is being poorly managed, and believes that the Director’s poor management is hindering the office’s important work. Accordingly, after careful consideration and thorough deliberation, the LPRB recommends that Director Humiston not be reappointed.”  The Star Tribune article reported the Director’s response to the Board letter:  “I continue to lead the office with integrity.  I’m proud of what the office continues to accomplish under my leadership, and remain focused on supporting our hardworking team as we work to protect the public and strengthen the legal profession.”

In early 2022, the Court requested that the ABA Professional Regulation Committee review the Minnesota professional responsibility system.  However, the Court restricted both the Board and the ABA Committee from considering a central issue – attorney turnover and whether the OLPR has been a toxic workplace.  The ABA sends a team of individuals experienced in the field of lawyer regulation to examine the structure, operations, and procedures of a host jurisdiction’s lawyer discipline system. The team includes one or more Committee members, an experienced disciplinary counsel from another jurisdiction, a respondents’ counsel, and an ABA staff member.  The interviews that are part of the review take place in Minnesota in April 2022.  The ABA report will be made in confidence to the Court.  Whether the Court will publicly share the report, or any of it, is unknown and is to be decided by the Court.

The April 7 Star Tribune article reported the Court’s re-appointment of Ms. Humiston. The article reported that one Board member said that it made no sense for the Court to re-appoint the Director without waiting for the results of the ABA review.  Chief Justice Gildea and the Director declined interviews.  The Director released a statement, including, “I value the court's ongoing commitment to and investment in our office, and share their commitment to ensure we have a quality environment and high team morale.

The April 6, 2022, Star Tribune online article included a link to a March 31, 2022 letter from Justice Natalie Hudson, the Court’s Liaison Justice to the Board, to the Board Chair.  The letter provided the Court’s explanation to the Board for re-appointing the Director.  The letter acknowledged problems in the Director’s performance but concluded they did not warrant a termination. 

The Liaison Justice’s letter acknowledged that, “the OLPR has not made significant progress in improving case-processing times” and stated, “The Court has stressed the importance of significant improvement in the timeliness of case processing with the Director over the next two-year period.”  These candid acknowledgments invite comparison with the Chief Justice’s October Statement that the Director has “efficiently and effectively manage[d] cases.”   

The Liaison Justice’s letter acknowledged, “There is no question there are morale issues in the OLPR.”  The letter also asserted that a comprehensive Court review showed that a majority of those leaving OLPR in the last two years did not do so because of the Director’s leadership or management style.  The letter did not report the size of the minority who apparently left OLPR due to their perception of a toxic workplace, nor the number who found the workplace toxic but left for other reasons.  The letter did not squarely address the basic issues of why a startling number of attorneys left OLPR in a short time and whether a significant number of employees found the workplace toxic due to the Director. The morale issue cannot be put to rest without directly and persuasively addressing these issues.  Moreover, the April 7 Star Tribune article reports that several former OLPR attorneys allege that the Court’s review was not “comprehensive,” but was instead “perfunctory and superficial,” involving “five minutes on the phone,” and lost or inaccessible records of prior interviews.  

The Liaison Justice’s letter gave as one reason for OLPR’s morale problems actions by individual Board members “that appear designed to undermine the Director’s leadership of the Office.”  This allegation is further evidence of the ongoing tensions between the Board and the Director, and between the Court and the Board.  The availability to the Star Tribune of letters from and to the Board that traditionally had been regarded as confidential also appears to indicate at least the possibility of further tension between the Court and one or more Board members.

The Liaison Justice’s letter stated, “The Court will work with the Director and assign the Director a mentor to address morale issues and management style and to improve the quality of the workplace for the staff of the OLPR.”  Again, the Liaison Justice’s letter and the Chief Justice’s October 5, 2021 Statement appear inconsistent.  The Statement reported that the Director had been working with a mentor, apparently for some time: “A mentor was assigned to Susan Humiston to enhance her communication and management skills, and she has made good use of this opportunity.”  How the Director could have “made good use” of a mentor before October 2021 when the mentor “will” be assigned after March 2022 is, to say the least, unclear.

In the more than fifty year history of the Minnesota professional responsibility system, the events described above represent by far the system’s worst crisis. The greatest problem in this crisis is the discord and loss of confidence among the major players in the system. The Director’s Office has never before had such rampant turnover among assistant directors, nor public allegations by staff that the Director has created a toxic workplace.  The Court has never before received virtually unanimous objections to its proposed rule amendments from numerous and diverse members of the professional responsibility community.  No Board has ever before twice recommended against re-appointment of a Director.  No Chief Justice has ever before publicly rebuked the Board or publicly apologized for her rebuke.  No Liaison Justice has ever before communicated to the Board acknowledgments and statements that strongly appear to contradict the Chief Justice’s Statement. There has never before been negative media reporting on the professional responsibility system, let alone five articles in the state’s largest newspaper.

In the mid-1980’s a crisis at OLPR arose, involving staff turnover, file-aging problems, and loss of confidence in the Director in the legal community.  The 1980’s crisis was potentially very serious, but proved manageable for one overarching reason - the Board, the Bar Association, the Court, and other members of the professional responsibility community dealt with and solved the problems.  They did so publicly, collegially, and harmoniously, with leadership from the Board and from a Court-appointed committee of leading lawyers and members of the public.  The system emerged from the 1980’s crisis much stronger than it had been.  Harmonious working relationships within the professional responsibility institutions and community continued for the next thirty years.  At the present time, it is far from clear whether and how this traditional strength, openness, and harmony will be restored in the Minnesota professional responsibility community.

The mission of the professional responsibility system is to protect the public.  One of the system’s central strengths has been assigning public members great responsibilities in the system.  Another great strength has been publicly dealing with problems as they arise and publicly reporting reviews of the system.  Many Court opinions have invoked public confidence in the system as a policy reason for rule adoptions and disciplinary impositions. 

Questions have arisen since at least 2020 as to whether the public, the bench, and the bar should continue to have confidence in Minnesota’s professional responsibility system.  In contrast to traditions established over thirty years, those whom the Court has appointed to review problems – the Court Administrator and the ABA Committee – do not include members of the public and their reports will not be publicly filed.  A Board with public members no longer has general supervisory authority over the Director.  The Chief Justice has publicly rebuked the Board and the Liaison Justice has rebuked unidentified individual Board members.  The Court, which of course has no public members, has twice declined to follow the recommendation of a Board with public members regarding a Director’s re-appointment.

The evidence available to the public indicates that the working relationships of the Director and the Board, and of the Court and the Board, have been marred by loss of confidence, rebuke, and discord.  Basic questions remain unanswered:  Why did so many attorneys leave OLPR in such a short time?  Why has the dramatic decline in new complaints not been matched by substantial declines in total cases and old cases on hand?  How many employees found the OLPR workplace atmosphere toxic?  After six years on the job, why does the Director need a mentor to deal with such basic issues as workplace morale and management style?

The Court has ultimate authority for appointing Directors and Board members, for adopting rules, and for the operation of the professional responsibility system.  Correlatively, the Court has ultimate responsibility for maintaining a system that operates efficiently, effectively, harmoniously, and, above all, that inspires confidence in the public, as well as in the legal community.  The main subject of the next chapter in the history of What Minnesota Legal Ethics is All About will be whether the Court, the Board, the Director, the bar, and others in the professional responsibility community will work together to restore the confidence that has been impaired for over two years.

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04-27-2022 16:09

I appreciate the analysis.  With the backlog of case processing and some matters taking years to go through the process, perhaps the entire procedure of how things are processed should be reviewed as well.  In reviewing the procedures, efficiency is not part of the process.