Quandaries & Quagmires: Diminishing the public’s role in professional oversight

The essential roles of the public in the Minnesota professional responsibility system have long been familiar. The purposes of the system are to protect the public and to foster public confidence in the legal profession. The system is among the most open to public scrutiny. Public members comprise about forty percent of the members of the Lawyers Board and its Executive Committee. The Board and its Executive Committee supervise the Director of the Office of Lawyers Professional Responsibility (OLPR). Every decade or so, the Minnesota Supreme Court appoints an outside review committee, including public members, to review the system and report to the public. These public features have been a great strength of a system that is among the best in the United States.

Two current developments would, however, diminish the public’s role. One development involves rule changes and the other involves outside review committees. No reason has been given for these developments.

On Feb. 16, 2021, the Minnesota Supreme Court issued an order for comments, to be filed by April 19, on amendments the Court proposed to Rules 4 and 5, R. Law. Prof. Resp. (Order Establishing Comment Period on Amendments to the Rules on Lawyers Professional responsibility, File ADM10-8042, Minn. Feb. 16, 2021) The amendments shift oversight of the Director and the Office of Lawyers Professional Responsibility (OLPR) from the Board and its Executive Committee to the Court and its Administrator. By greatly reducing the responsibilities of the Board and its Executive Committee, the amendments would diminish the role of the public.

The first oversight amendment would shift from the Board to the Court general oversight of personnel matters within OLPR. This amendment is apparently in line with national trends and appears to be noncontroversial. If, for example, an OLPR Assistant Director would be subject to internal discipline, or would complain of working conditions, Court Administration can better address the matters than the Board’s volunteer members.

The second oversight amendment is controversial. It would shift from the Board and its Executive Committee oversight over the Director and OLPR with respect to their handling of discipline matters and general performance. The MSBA Professional Regulations Committee has filed comments with the Court explaining why the Committee thinks these changes are unwise. The Lawyers Board is considering whether to file comments.

Current Rule 4(d), RLPR, assigns to the Executive Committee responsibility “for the general supervision” of OLPR. Amended Rule 4(d) would assign to the Executive Committee only “general advisory responsibility” over OLPR. Under the amended rule, the Executive Committee could inform the Director, “We believe OLPR has a serious problem with delays in file dispositions and we advise that it should be corrected promptly.” The Director could respond, “While I appreciate your advice, I believe file age reduction is not a great priority.”

Two additional amendments further diminish the roles of the Board and the public. Under current Rule 5(a), the Board reviews the Director’s performance every two years and recommends to the Court regarding retention. Under amended Rule 5(a), the State Court Administrator would “consult” with the Board as to the Director’s performance and the Administrator would recommend to the Court as to retention. The Administrator has no direct knowledge of the Director’s performance regarding the Director’s most important function – dealing with ethics complaints.

Under current Rule 5(b), the Director is “responsible and accountable directly to the Board,” and through the Board to the Court. Under amended Rule 5(b), the Director would be “responsible” (but not “accountable”) to the Board, and “responsible and accountable” to the Court. Because the Executive Committee would have only “advisory responsibility” vis a vis the Director, it appears the Director’s “responsibility” would be only to give due weight to the Board’s advice.

The MSBA Committee comments object to shifting oversight of the Director and of OLPR’s handling of discipline complaints from the Board and its Executive Committee to the Court and its Administrator. One basis for this objection is that the shift would diminish the role of the public.

A second MSBA Committee comment is that the Board and its Executive Committee are far better placed to observe the performance of OLPR and its Director than the Court. About eighty to ninety percent of all case dispositions are private, and unknown to the Court. A related comment is that the Court cannot very well be both umpire and coach as to discipline cases.

The Board has for many years played a far greater role vis a vis the Director than the “advisory” role that the amendments would provide. For example, in 1986 the Board issued “Summary Dismissal Guidelines” for OLPR, identifying classes of cases in which the presumptive disposition would be dismissal. These guidelines have been used for decades, promoting fairness and efficiency. At the few times since the system’s creation in 1970 when the Director’s performance has been problematic, the Board and its Executive Committee have been much better placed than the Court to take note.

If a Director were to be insufficiently zealous in handling complaints, the Board and Executive Committee would be far more likely to notice than the Court. One of the first Directors, Walt Bachman, once recalled that the Chief Justice told him to err on the side of charging violations, because the Court could act as a check on such cases, but could not act as to cases that OLPR never filed.

The order does not provide for a public hearing. No statement of need or other explanation accompanies the order for comments. Court administration apparently drafted the amendments. Whether the Court considered the effects of the amendments on public participation in the discipline system is unknown.

A second development that has already reduced the role of the public in the professional responsibility system is that the Court has not appointed a committee to review the status and performance of OLPR and the Board in 14 years. Since 1985, the Court has appointed such committees approximately every ten years, most recently in 2007. In addition, the Court appointed a similar committee to review the performance of the Board on Judicial Standards. The committees not only have had public members, they submitted public reports, thereby enhancing the accountability of the professional responsibility system to the public.

Review committees have contributed many important improvements in the lawyer and judicial discipline system. The Dreher Committee in 1986 recommended changes that became fundamental to the Minnesota professional responsibility system, including the Summary Dismissal Guidelines, streamlining the probable cause determination system, and creating the Executive Committee to oversee the Director. The Saeks Committee reported in 2008 that OLPR had a serious problem with file aging. Unfortunately, systematic action was not taken to rectify the problem and indeed it became much worse. The committee that studied the judicial discipline system made recommendations that greatly enhanced the system’s fairness, openness, and effectiveness.

Since the 1930s, the Court has claimed exclusive jurisdiction to regulate the legal profession. The Legislature has from time to time enacted statutes that implied that the Legislature shared such authority with the Court. Respect for the Court’s claim implies a correlative duty for the professional responsibility system to be accountable to the public.

It may be said that a review committee is not needed when there are no evident serious problems to address. One reply to this view is that a committee report to the effect that the system is operating at an excellent level is an important assurance to the public, rather than a waste of time. Another reply is that there are now some important questions that deserve answers.

Are respondents’ counsel justified in complaining that too many files are inactive for long periods and are too old at disposition? What features of the system have caused serious file aging problems? Why have there been so many employment turnovers among Assistant Directors recently? Has the greatly increased number of OLPR attorneys been matched with productivity? What goals and plans does OLPR have for knowledge management and how is implementation proceeding? Why has the Lawyers Board Panel Manual not been updated since 2007, when it purports to provide “guidelines” for how Panel matters should be handled in 2021?

The Committee could also consider how responsibility and accountability should be structured as among the Board, the Director, and the Court. In 1985-6, a committee provided answers that stood the test of time for more than 35 years. If the system is to be restructured — and especially if the restructuring reduces the public’s role — a statement of need, a public hearing, and consultation with public representatives are essential.

For more than 50 years, the Minnesota Supreme Court has succeeded admirably in creating and maintaining an excellent professional responsibility system. Public participation and accountability have been essential system components. Success has also been based on periodic review committee reports and recommendations for improvement, made to the Court and to the public. Continuing success will be fostered by retaining important functions for public members of the Board and its Executive Committee and by continuing regular appointments of review committees to study and report on the current effectiveness of the Minnesota professional responsibility system.

William J. Wernz is the 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.