This Month's Topic: Power, Sex, and Lawyer Discipline
1. The Griffith Case, Its Forerunners and Procedure
A. What to Make of This? A law professor sexually harasses a much younger student causing her to touch his privates. When she reports his conduct, he attempts to intimidate and cajole her into recantation. He is found guilty of indecent exposure. He does not offer evidence of recognition of misconduct, much less remorse. In re Griffith, 2013 WL 6033431 (Minn. Nov. 5, 2013). What attorney discipline should he suffer? Different answers have been given by reasonable people, including a dissenting Supreme Court justice. Locating Griffith with its predecessors helps answer the question. This history is also an interesting story of the development of Minnesota legal ethics. Last, but not least, examination of the procedures followed in Griffith shows Minnesota’s discipline system working hard to be fair, just and consistent. Copies of the main Griffith court filings are appended to this blog post and are available on the Lawyers Board website.
B. Findings of Fact. The facts are stated in the May 3, 2013 findings of fact of the Supreme Court’s Referee, Judge Paul A. Nelson. Griffith and the Office of Lawyers Professional Responsibility (OLPR) stipulated to the accuracy of the Findings. Griffith admitted causing the student to touch his penis. The young woman, “MD,” was Griffith’s law school student. Griffith suggested he could help students find positions in sports law, MD’s intended field. Griffith made several suggestive comments to MD. On January 24, 2012, MD and Griffith had a dinner meeting as part of an independent study course. Griffith engaged in unwelcome sexual communication and conduct. After dinner, on the sidewalk of a busy street, Griffith exposed his penis and forced MD to touch it. During the next two weeks, Griffith repeatedly tried to persuade MD to withdraw a complaint she made, using a combination of pleading, threats and cajolery. Griffith did not follow the law school’s instructions that he cease contact with MD.
2. Power and Sex – Miera, Peters and Adoption of Rule 8.4(g)
A. Before 1985-1990. Under the Code of Professional Responsibility, which was in effect until 1985, there were no express prohibitions on sexual harassment. The Code had a catchall prohibition against “conduct that adversely reflects on his fitness to practice law.” Minn. Code of Prof’l Resp. DR 1-102(A)(6). This prohibition was first applied to sexual harassment in two highly publicized cases that were decided in 1988 (but whose facts arose before the Code was superseded). In both cases, the court emphasized how the offenders had exploited the power of their employment positions to abuse subordinates.
B. Miera - Judge’s Advances to Court Reporter. While serving as a judge, Miera made unwelcome sexual advances to his court reporter, including an unwanted kiss. Miera was censured and suspended as a judge, and was also reprimanded as a lawyer. Speaking of Miera as a lawyer, the court observed, “Miera imposed himself on a vulnerable employee.” In re Miera, 426 N.W.2d 850, 859 (Minn. 1988).
C. Peters - The “Tactile” Law School Dean. While serving as a law school dean, Peters sexually harassed several employees, some of whom were also students. Peters “engaged in repeated unwelcome sexual touchings and verbal communications of a sexual nature against the four employees.” In re Peters, 428 N.W.2d 375, 378 (Minn. 1988). The touches were far less intimate than Griffith’s and did not violate a criminal law. Peters’ counsel’s characterization of him as a “tactile dean” did not persuade the court that the touching was harmless or the victims were oversensitive. The court cited a civil standard in explaining why Peters’s conduct was unprofessional, “An unlawful hostile environment exists when employment is conditioned, either explicitly or implicitly, on adapting to a workplace in which the employee is the target of repeated, unwelcome, sexually derogatory remarks or physical contact of a sexual nature; and the hostility of that environment must be judged from the perspective of the victim.” Peters conduct was illegal, though not criminal.
D. Rule 8.4(g) Adoption. Rule 8.4(g) provides, “It is professional misconduct for a lawyer to: ...(g) harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, or marital status in connection with a lawyer’s professional activities.” Rule 8.4(g) was adopted in 1989, in part because it would reflect poorly on the profession if the misconduct disciplined in Miera and Peters would no longer be subject to discipline. The Rules did not carry forward the Code’s catchall prohibition, because it was too broad. William J. Wernz, Amending the Rules, Bench & B. of Minn., Nov. 1989, at 20.
E. Peters – Other “Insubstantial” Contacts. The Peters procedural history reveals difficulties in evaluating the conduct. OLPR originally dismissed the complaint against Peters. The Code provision under which Peters was disciplined had been repealed (though not retroactively to the time of Peters’ conduct), and new Rule 8.4(g) did not become effective until after Peters’ conduct. However, OLPR was directed to proceed, after complainants’ appeal and a Lawyers Board Panel determination. After trial and argument, the Supreme Court reprimanded Peters. Justice Popovich concurred in the discipline, but wrote separately, to explain why this was a close case in his judgment, “Claims that Peters put his arm around a woman or leaned against her while the two reviewed materials are insubstantial. Not every touch is sexual, and incidents like these are far too ambiguous to form a basis for discipline. Such conduct is commonplace, perhaps inevitable, in working relationships.” Id. at 383.
F. Peters and Griffith. Griffith argued that his misconduct was less serious than Peters’, because Griffith had only one victim and Peters had several. Judge Nelson observed aptly, both that Griffith’s conduct was criminal and “the current awareness of the nature of sexual harassment has changed in the 24 years since [Peters] was decided.”
G. Miera – The Shirt Pocket Touch and the Banana Joke. As in Peters, so in Miera, the court concluded some conduct was “out of place” and “ill-conceived,” but not deserving of discipline. Perhaps, 24 years later, a different conclusion might well be reached. “Judge Miera approached a female court employee during recess in proceedings and, in offering coins to pay for coffee, ‘reached over, flipped one of the flaps open [on her shirt pocket] and touched the shirt.’ At another time, . . . Judge Miera began eating a banana offered by a female court employee and asked, ‘Do you people eat bananas for the vitamins or for the phallic symbol?’ We agree with the Board that such conduct is embarrassing and inappropriate for a judge. At the same time, we cannot say the incidents were willfully offensive or represented a sexual advance of some kind. Rather, both incidents seem intended as slightly risqué humor, though out of place and ill-conceived.... In our view, though, the ‘shirt incident’ and ‘banana remark’ were not so patently offensive that, standing alone, they rise to the level of judicial misconduct. Moreover, this behavior showed less potential for abuse of authority, as it involved personnel with whom Judge Miera had no direct supervisory power and only casual contact. Nor, from the record, were these acts ever repeated. By themselves, the incidents would not warrant discipline.” Id. at 856.
3. Sex with Clients – Rule 1.8(j)
A. History. Griffith’s student was not his client, but the history of the Rule forbidding sex with clients is part of the broader story here. Before 1994, when Rule 1.8(j) (originally Rule 1.8(k)) was adopted, OLPR issued a small number of private disciplines to lawyers whose sexual relations with clients impaired the professional work or attorney-client relationship. The disciplines found violations of the conflict of interest rules. “The roles of lover and lawyer are potentially conflicting ones as the emotional involvement that is fostered by a sexual relationship has the potential to undercut the objective detachment that is often demanded for adequate representation.” ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 364 (1992).
B. Exploitation. In addition to conflicts, sexual relations of lawyer and client can involve a lawyer exploiting a position of power vis a vis a client whose legal situation may make her especially vulnerable. In Minnesota, all of the attorneys reportedly disciplined for sexual relations with a client and for sexual harassment have been male, usually in family law representations. A respondent’s counsel (a male) once remarked, “Sometimes it’s embarrassing to be a member of our gender.” In one case, a family law client, with young children, cleaned the office of a lawyer, Boyce. For compensation, she received credits against Boyce’s professional bills. She and Boyce had sex several times during the office cleaning. In re Boyce, File A06-989 (Minn., June 14, 2006).
C. Much Stronger Enforcement. After Rule 1.8(j) was first adopted, private disciplines continued to be issued. Beginning in about 1997-98, a striking change occurred in enforcement of Rule 1.8(j). Suspensions from practice became the norm – a considerable increase from private discipline. The cases constituting this trend are discussed in the chapter of Minnesota Legal Ethics on Rule 1.8(j).
4. Griffith – Procedure
A. Stipulated Facts. The hearing before Judge Nelson was unusual in that it involved submission on stipulated facts, without testimony. No doubt one reason for this procedure was to spare MD the ordeal of testimony and cross-examination.
B. Recommended Discipline. OLPR sought a six month suspension. Griffith sought private discipline. Judge Nelson recommended a 90 day suspension, without any reinstatement hearing. OLPR and Griffith then joined in a stipulation recommending the Supreme Court follow Judge Nelson’s recommendation.
C. Recusals. The two female justices of the Minnesota Supreme Court “took no part in the consideration or decision of this case.”
D. Supreme Court Orders Briefing. Instead of following the stipulated recommendation, the Supreme Court ordered briefs, “showing cause, if any there be, why respondent should not be subject to more severe discipline.” The court was particularly concerned that the recommended discipline was less severe than in a case in which the attorney had committed fifth-degree sexual conduct. The court acknowledged that Griffith had been adjudicated guilty only of a lesser crime, indecent exposure, but said that it had authority to impose discipline based on violation of a statute, even though there was no conviction.
E. Supreme Court Orders Suspension and a Reinstatement Hearing. After the parties’ briefs, the court adopted the parties’ stipulation for a 90 day suspension, but with one significant difference – it ordered a hearing before reinstatement. In the author’s view, two referee findings make a reinstatement hearing especially appropriate. First, “the entire record does not allow a finding on remorse one way or the other.” Referee Findings at 9. Second, “There is some evidence that the Respondent understands the nature of his misconduct.” Id. In these connections, it may be noted that Griffith’s Answer to OLPR’s Petition claimed MD’s consent to his conduct. If Griffith does not clearly understand even the nature of his misconduct, both as exploitation and as sexual misconduct, and it is unknown whether Griffith is remorseful, how could the court re-certify Griffith as having the character to handle important professional matters?
F. Reinstatement Hearing Issues. Requiring Griffith to have a hearing before a Lawyers Board Panel before reinstatement is both appropriate and important. Griffith will have to demonstrate, by clear and convincing evidence, criteria that are essential for reinstatement, viz. (1) that he understands the nature of his sexual misconduct and his abuses of power; (2) that he is remorseful; and (3) that he has undergone a moral change. The record to date does not indicate whether he is likely to meet these criteria. Griffith entered an Alford plea to the criminal charge. The discipline hearing did not include any testimony. Griffith’s brief to the Supreme Court cited texts to MD which “voiced regret,” but other messages voiced quite different messages. Griffith’s brief also cited “the defense of consent” to his misconduct. Id. at 3. If Griffith seeks reinstatement, it will be challenging for him to combine a “defense of consent” with proof recognition of misconduct, demonstration of remorse, and proof of moral change.
G. Reinstatement Timing. Griffith has “no right to petition for reinstatement for a minimum of 90 days” after the court’s suspension order. After a reinstatement petition is filed, “The Director shall investigate and report the Director’s conclusions to a [Lawyers Board] Panel.” Rule 18(b)(2), R. Law. Prof. Resp. The investigation and report are followed by a hearing, normally before the Panel. The Panel’s recommendation is normally made to the Court. If contested, the Court orders briefing and oral argument. A 90 day suspension can very easily become a year-long suspension. Whether Griffith will seek reinstatement and whether, if he does, MD will be called as a witness, are unknown.
H. Justice Lillehaug’s Dissent. Justice Lillehaug dissented, at length, to explain why he agreed with OLPR’s original petition for an indefinite suspension, with no right to petition for reinstatement for at least six months. The dissent provides the valuable service of detailing the facts, which the majority’s opinion summarizes in sometimes vague terms, e.g. “unwelcome physical contact of a sexual nature.” The dissent also notes well that the facts include a “combination of threats and inducements,” by a law professor with power over a student.
5. Filings in Griffith