Quandaries & Quagmires: Assessing the new lawyer discipline assessment

Since the 1980s, the lawyer discipline system in Minnesota has undergone a public assessment each decade to evaluate its structure, operation, and procedures. These reviews have been led by committees composed of prominent members of the bar and public, who were appointed by the Minnesota Supreme Court.

Each committee issued a report and recommendations for improvements to the professional responsibility system. After a period of public review and comment, the court has traditionally adopted many of the recommendations. Public assessment is integral to ensuring fairness, public trust, and transparency in a self-regulated legal profession.

During the past year and a half, the bar and public have witnessed unprecedented turmoil in Minnesota’s lawyer discipline system, which has also prompted intense media scrutiny.¹ Amidst this backdrop, the Supreme Court initiated the process for another public assessment of Minnesota’s lawyer discipline system, which has not occurred since 2007-2008.

The results are in! On Sept. 22, 2022, the court released “The Minnesota Report on Lawyer Discipline”— a hefty, 94-page report containing 25 recommendations. Unlike the last two assessments, this time the process was conducted by the American Bar Association (ABA) Standing Committee on Professional Regulation. This committee operates a consultation program that has been used by states to evaluate their lawyer and judicial discipline systems as well state court systems. To date it has completed 67 reviews per the report.

The ABA process involves sending a team experienced in lawyer regulation to conduct a four-day on-site review. The consultation team interviews key stakeholders and reviews documents. The ABA process has the advantage of offering an outside, expert perspective. The main disadvantage is that it lacks in-depth participation by members with experience specific to Minnesota’s system. When the ABA process is utilized, there is an enhanced need for members of Minnesota’s bar and public to submit comments on the recommendations.

On Sept. 28, 2022, the court issued an order calling for a public comment period followed by a public hearing to occur on March 14, 2023.² The court is seeking specific comments from the Office of Lawyers Professional Responsibility (OLPR), Lawyers Professional Responsibility Board (LPRB), and the Minnesota State Bar Association (MSBA). The order notes that any person or organization may submit comments by filing them with the clerk of appellate courts by Dec. 28, 2022. On Nov. 7, the court extended the MSBA’s deadline to respond to Feb. 1 while maintaining the Dec. 28 deadline for everyone else.

The author will try to recap the most impactful recommendations the bar and public should be considering. Generally, the report’s recommendations can be divided into (1) structural changes to the LPRB and its responsibilities, (2) procedural changes to the rules governing lawyer discipline proceedings, (3) changes to types of discipline, and (4) shifting responsibilities traditionally performed by the OLPR to the MSBA.

First, the report recommends structural changes to the LPRB and removal of long-held responsibilities. The LPRB is composed of lawyers and members of the public who are appointed by the court to three-year terms. The LPRB also has an Executive Committee responsible for oversight.

The biggest structural change is Recommendation 1(A), which provides for elimination of the Executive Committee and creation of a new Administrative Oversight Committee (AOC). The AOC would be wholly separate from the LPRB and responsible for general administrative oversight of the LPRB. Responsibility for supervising (review and reappointment) of the director stays with the State Court Administrator. See Rule 5(a), RLPR.

The report cites an “enhanced” need for separation between the LPRB and OLPR as the main reason for dissolving the Executive Committee. This recommendation comes on the heels of the LPRB twice recommending against reappointment of the current director and the court’s July 2021 procedural changes that eliminated the Executive Committee’s duty to generally supervise the director.³ These changes were not supported by the MSBA, several former directors of the OLPR, and several LPRB board chairs.⁴

Recommendation 1(A) is likely to spark similar concerns over further diminishing the traditional role of the LPRB. Report Recommendation 1(A)(2) also eliminates Executive Committee responsibility for approving disciplinary investigations initiated by the director. Currently, most investigations are initiated by a complainant filing an ethics complaint. The director can self-initiate investigations with approval by the Executive Committee. The AOC would not possess approval authority. The report states the historical reasons for the practice no longer exist and other sufficient safeguards are in place through the probable cause process. The report does not identify the historical reasons for why this check on the director’s prosecutorial autonomy was created nor specify what has changed to make it no longer necessary. Recommendation 1(A)(2) should be scrutinized due to basic lack of context.

The LPRB also plays an adjudicative role. Non-Executive Committee members of the LPRB serve on “panels” composed of two lawyers and one public member. Panels make probable cause determinations for public discipline, conduct hearings on admonition appeals, conduct reinstatement hearings for suspended/disbarred attorneys, and review appeals of the director’s summary dismissal of an ethics complaint.

The report recommends removing several adjudicative roles for the LPRB in order to make the lawyer discipline process more efficient. Report Recommendation 1(B)(2) provides for the elimination of probable cause hearings before a panel. LPRB members will still make probable cause decisions but under a streamlined process without a hearing. Report Recommendation 21 eliminates LPRB review of a lawyer’s appeal of a privately issued admonition, which involves an evidentiary hearing where the lawyer and complainant may testify. Report Recommendation 13 eliminates LPRB involvement in reinstatement hearings, which should instead be heard by referees (retired judges).

Elimination of the probable cause hearing is likely uncontroversial. Currently it is within a panel’s discretion to hold a hearing, and most panel proceedings occur through paper review. Regardless, these combined recommendations raise at least one serious concern — whether the diminished role of the LPRB’s public members is out of step with Minnesota’s long tradition of substantial public member involvement in protecting the public.

Second, the report makes procedural changes to the rules governing lawyer discipline proceedings. The report recommends a major change to the appeal rights of lawyers when an admonition (private reprimand) is issued. Currently, a lawyer who appeals an admonition receives a hearing in front of a panel. The lawyer may also appeal panel affirmance of an admonition to the court. The lawyer’s identity and the OLPR file is confidential throughout both processes.

Recommendation 21 would require a lawyer to request the admonition proceed to a petition for disciplinary action in order to appeal. This is a public process requiring the lawyer be named in the petition and the OLPR file would be public. Interestingly in 2009, the court amended panel proceeding for appeals of admonitions issued to judges to include private versus public hearings to align the process more closely with that of the OLPR.5

Recommendation 21 would set up a different system for lawyers versus judges. It could also have a chilling effect on lawyers’ willingness to exercise appeal rights if the record becomes public. Recommendation 21 should be considered in the context of the report’s recommendation that most admonition level violations would be managed through a diversion program. However, if diversion is not adopted, Recommendation 21 should be of significant concern to the bar. Per the report in 2021, the OLPR issued 88 admonitions and that number remains fairly consistent year over year. Another major procedural change of concern is that lawyers would no longer be subject to reinstatement hearings if suspended for six months or less per Report Recommendation 13. Currently, lawyers suspended for 90 days or less are eligible to file for reinstatement by affidavit.

The report’s concern over delay in reinstatement proceedings is valid, but it is not clear this is the right solution. Upping the range to include six-month suspensions potentially excludes lawyers who have committed serious misconduct such as dishonesty and sexual misconduct from a reinstatement hearing. Recently, the director raised eyebrows by stipulating to a six-month suspension that waived the reinstatement hearing requirement for lawyer Clayton Halunen, who admitted to a pattern of sexual harassment of law firm employees.⁶

Third, the report recommends changes to available kinds of discipline. Recommendation 19 supports adoption of a diversion program. Diversion offers lawyers whose wellness issues or practice management issues have resulted in minor misconduct with an alternative to discipline. Diversion programs traditionally require lawyers to remedy the issues that led to the misconduct such as attending a trust account school to correct bookkeeping errors. Successful completion of the program results in expungement of the record. The report notes more than 30 states have adopted diversion programs. This recommendation should enjoy widespread support among stakeholders and is currently part of the OLPR’s five-year Strategic Plan.

One thing to consider, the report is not particularly clear about responsibility for developing the necessary structures to support diversion. For example, Recommendation 19 provides that the MSBA should verify successful completion if a lawyer was referred to complete required terms. Does this anticipate the MSBA would have responsibility for creating programs suitable for a diversion program? For example, requiring a lawyer to attend a trust account school is a frequent term of diversion. Currently, neither the OLPR nor MSBA operates such a program.

Involving MSBA in the diversion program may be impractical for Minnesota, which is not a unified bar state requiring membership in the state bar association. The MSBA is a voluntary bar association and involvement in a diversion program may be a substantial financial cost. It may make more sense for Minnesota to look to other non-unified bar states like Colorado whose Office of Attorney Regulation Counsel was an early proponent of diversion and runs a widely respected program.

In addition to recommending that the MSBA take on the responsibilities of a diversion program, Recommendation 2(B) also suggests that Minnesota consider shifting the OLPR Advisory Opinion service to the MSBA. The OLPR runs a hotline where lawyers can speak with an OLPR staff member about ethics dilemmas. This is an extremely popular service, and the report notes over 2,000 requests were answered by the director in 2021. The report also notes the service is time-consuming for OLPR staff, but it is not clear how the MSBA would staff such a hotline. There are also liability and cost concerns with the MSBA operating a hotline. Finally, lawyers may prefer to hear guidance from the OLPR as the regulatory authority.

In the coming months, the OLPR, LPRB, and the MSBA will submit comments to the court, which will afford a clearer picture of whether there is widespread support and agreement among the various stakeholders. All lawyers are encouraged to participate in the process and offer their comments as these issues impact the profession as a whole. Stay tuned for further developments.

Cassie Hanson is a legal ethics lawyer with substantial experience in the field of ethics and professional responsibility. As conflicts and ethics counsel at Fredrikson & Byron, P.A., Hanson is focused on legal ethics, conflict prevention and resolution, legal malpractice/loss prevention and trust account compliance.  Additionally, she worked for 20 years as a senior litigator and advisor at the Office of Lawyers Professional Responsibility. Hanson investigated and prosecuted high-level attorney discipline cases. She is an experienced trial attorney and appellate advocate who regularly argued complex attorney discipline cases in front of the Minnesota Supreme Court. She has advised various government agencies, law firms and other stakeholders on legal ethics and professional responsibility. Hanson is a frequent public speaker on ethics and lawyer wellbeing.

End notes

1. Bill Wernz, “Commentary: The Need to Restore Confidence in State’s Lawyer Professional Responsibility System,” Minnesota Lawyer, Nov. 11, 2021.
2. Minnesota Supreme Court Administrative-Orders (Sept. 28, 2022; Nov. 7, 2022). Available on the public access site for the Minnesota Appellate Courts, P-MACS, under ADM10-8042.
3. Bill Wernz, “Commentary: The Need to Restore Confidence in State’s Lawyer Professional Responsibility System,” Minnesota Lawyer, Nov. 11, 2021.
4. Id.
5. William Wernz, “Minnesota Judicial Ethics Outline,” paragraphs 5.2 and 65.5. Publicly available on the Minnesota Board of Judicial Standards website.
6. Barbara L. Jones “Sex Harassment Results in Lawyer Discipline,” Minnesota Lawyer (Oct. 11, 2022).