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Proposals aim to conform to federal rules

The first Monday in October is the start of the U.S. Supreme Court term, but the Minnesota high court also issued some clear back-to-work instructions in the form of a crop of proposed new rules. If enacted, they would change the way time periods are counted, change the standard for disqualification of judges and expand the reach of the Alternative Dispute Resolution Ethics Board.

Comments to the rule changes are due on Nov. 28 and hearings have been scheduled for Dec. 19 on the Minnesota Rules of Civil Procedure and Rule 114 of the General Rules of Practice, which covers alternative dispute resolution.

Minnesota Rules of Civil Procedure

Get your calendars out—the methods of calculating time limits in the rules may soon change. This is a change in the rules that was first recommended to the court by the Supreme Court Advisory Committee on the Rules of Civil Procedure in 2009. Its purpose is to promote uniformity with the federal rules.

Proposed changes to the civil procedure rules would amend the timing provisions of the rules to count all days, including weekends and holidays, in calculating time periods, and make appropriate adjustments to time periods to accommodate that change. It is also proposed that any other sets of rules be examined so that there can be the greatest uniformity possible across practice areas.

Other rule changes regarding a waiver of service, discovery, summary judgment and third-party practice would also conform to the federal rules.

The proposed Rule 26.02 (b) defines the scope of discovery as follows: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.”

Proposed changes to Rule 37 would redefine the sanctions available for the failure to preserve electronically stored information.

The amendments to Rule 56 on summary judgments would conform to the federal rule but are not intended to change substantially practice under the rule. They very carefully preserve the familiar test of ‘no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law’ in Rule 56.01,” the proposed comment states.

The committee recommended that the court reject the request of the Minnesota State Bar Association to amend Rule 23 to require unclaimed funds in class-action settlements be dedicated to fund legal aid providers. “The mandatory and rigid application of a cy pres distribution rule that would require distribution of the class’s funds to a predetermined charity, untethered to the nature of the class action or the interests of class members, is inconsistent with cy pres law,” the committee states.

Rule 63, MRCP

The advisory committee further recommends that the court should amend Rule 63 to incorporate the standard established in the Code of Judicial Conduct as the standard for disqualification or recusal of judges.

This amended rule adopts a standard for disqualification or recusal of a judge that is clearer and readily accessible to judges and litigants, the committee reports. Although close questions may properly be resolved in favor of disqualification, the Code of Judicial Conduct also recognizes that a judicial officer has an affirmative duty to hear matters properly assigned where disqualification is not required by the Code, the proposed comment states.

The complete text of the amendments and the committee’s report is available on the court’s web site at ADM04-800 I – Rules Report – Proposed Amendments to the Rules of Civil Procedure and on the Minnesota Lawyer web site.

Alternative Dispute Resolution

An increasing number of complaints against alternative dispute resolution neutrals and the changing world of ADR have prompted a years-long project to amend Rule 114 of the General Rules of Practice for the District Courts, reports the Supreme Court Alternative Dispute Resolution Ethics Board.

Since 2008, there has been an average of 20 complaints submitted per year over the last eight years.

The board recommends a number of substantive changes that expand the scope of Rule 114; broaden the definitions of ADR processes; enhance training requirements; clarify and expand requirements of neutrals; and alter the review process.

Before issuing this report the board sent proposed rules changes to attorneys, neutrals and other members of the ADR community.

The main format change includes incorporating the Rule 114 Appendix Code of Ethics and the Rule 114 Code of Ethics Enforcement Procedure Appendix into the rule itself. The technical changes include capitalizing titles, such as Neutral and Qualified Neutral.

The proposed rule expands the jurisdiction of the ADR Ethics Board to include all neutrals providing ADR in civil and family court cases, not just qualified neutrals or court appointed neutrals. This is intended to hold all neutrals accountable for the ethical practices defined by the rule.

The new rules would distinguish between civil and family ADR processes and provide more detailed definition of the various processes, which it is hoped will reduce complaints due to inconsistent expectations of the neutral’s role in family ADR.

They would also require written agreements for all ADR services, not just for mediations and arbitrations. The agreements would cover the services provided and the fees charged.

A number of complaints reviewed by the board concern the parenting time expeditor’s scope of authority. “The Board’s position and best practices supports, that a ‘parenting time order’ refers only to the parenting time provisions in the order and does not include all issues within the order. Parties should not be able to agree, nor should the court grant more authority to a PTE that requires a PTE to decide matters related to custody or requiring a parent to attend therapy, or any other matter that is not a ‘parenting time matter.’”

The board is also recommending that it have the ability to provide any needed rehabilitation for the neutral without labeling it a “sanction” that has collateral consequences including increased malpractice rates.

The complete proposed rule is available on the court’s web site as ADM09-8009, Rules Petition filed on behalf of the Minnesota Supreme Court Alternative Dispute Resolution Ethics Board and on the Minnesota Lawyer web site.

Minnesota Rules on Lawyer Registration

The Minnesota State Board of Continuing Legal Education has recommended amendments to the Rules of the Supreme Court on Lawyer Registration, with additional minor amendments proposed to the Minnesota Rules of Professional Conduct and the Rules of the State Board of Continuing Legal Education.

The lawyer registration rules currently consist of nine rules, which the board proposes to rewrite into 24 discrete rules that contain clear topical titles, focused subsections, a fee allocation chart and create a user-friendly experience in navigating the rules, its petition states.

The proposed new rules eliminate a condition on the fee-exempt retired inactive status that a senior lawyer has no gainful employment. Instead, a lawyer may choose retired status if the lawyer is not engaged in the practice of law. The board also proposes that eligibility for retired inactive status be raised from 62 to 28, to offset the decrease in revenue from the “gainful employment” rule change.

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