Quandaries: Lawyer discipline system — Change has a cost

On Sept. 22, 2022, the Minnesota Supreme Court released the American Bar Association (ABA) Standing Committee on Profession Regulation’s Consultation Report. The report assesses and makes 25 recommendations for improving Minnesota’s lawyer discipline system.¹

On March 14, 2023, at 10 a.m., the Minnesota Supreme Court will hold a public hearing to address the Consultation Report.² The 90-minute hearing allocates 30 minutes for presentation of comments from each of the following: The chair of the Lawyers Professional Responsibility Board (LPRB); the director of the Office of Lawyers Professional Responsibility (OLPR); and Representatives from the Minnesota State Bar Association (PRC/MSBA).³ In addition to those presenting at the hearing, written comments were also provided by representatives of the Fourth, Sixth and Twenty-First District Ethics Committees (DECS), Jeff Shorba, State Court Administrator and Richard Jellinger.⁴

Systemic costs: Who will pay?

If you are you are not an ethics nerd, you may not have been digging in P-MACS (ADM10-8042) to read every comment submitted on ABA’s Consultation Report on Minnesota’s Disciplinary System. Many in my circle were eager to digest the organizational comments including those of the LPRB, MSBA, and OLPR’s comments. I, too, was interested in those, but the comments that I started with are those of State Court Administrator Jeff Shorba. Mr. Shorba comments that fully implementing the Consultation Report’s recommendations will require: (1) establishing at least four new permanent staff positions within the (OLPR); (2) contracting with vendors for several technological development projects; (3) dedicating staff resources for training, maintenance, and upkeep of these new/enhanced technologies and (4) undertaking a long-term project to develop new case processing metrics and guidelines for the OLPR.⁵ Here is the punchline: OLPR’s budget has no resources to fund this implementation, and any efforts need to be financed by legislative effort or by increased lawyer registration fees.⁶ Likewise, stakeholders offering comments rejected proposals to become more involved in various components of the disciplinary system, citing lack of resources or fiscal reasons.⁷ I start here, because as you digest the Consultation Report and its comments that my word count allows me to cover, ask yourself this: Is systemic change fiscally possible?

Consensus

The written comments reveal general areas of consensus, including one of great benefit to the bar and public — the adoption of a diversion rule.⁸ A diversion or alternative to discipline program would allow for alternatives to disciplines that involve a contract, monitoring and conditions/programming established based upon the nature of the misconduct. OLPR reported that the way private discipline is currently being handled is not having a deterrent effect.⁹ OLPR reported that 59% of lawyers admonished engage in repeat misconduct.¹⁰ The Consultation Report provided clear recommendations and suggested parameters for a diversion program and identified that the Court, the Bar and OLPR have significant roles to play in developing a diversion program.¹¹ In this regard, the MSBA Board commented that it does not have the resources to run a diversion program, but “the MSBA Board would be pleased to partner with the Court to determine how best the MSBA might support such an effort.”¹² MSBA also cited its potential to offer specialized CLE training, noting additional staffing requirements and registration fees that would differ for non-members.¹³ Likewise, OLPR was clear that resources are required to create and run a diversion program and cautioned that the breadth of necessary programs and referral partners need to be established and resources evaluated.¹⁴

Also, in the context of discipline, written comments reject the recommendation that the admonition appeal process be converted to a public appeal before a referee instead of the current private proceeding before a LPRB panel. Cited concerns with the admonition appeal procedural changes includes a chilling effect to the appeal process, consequently resulting in a loss of development of ethics precedent.¹⁵

Next, all who have submitted written comments addressing advisory opinions disagree with the ABA’s suggestion that OLPR’s advisory opinion service could be better performed by the Bar.¹⁶ OLPR currently staffs an ethics hotline providing free ethics advice to Minnesota lawyers, judges, and out-of-state lawyers seeking guidance about compliance with the Minnesota Rules of Professional Conduct. MSBA and its Professional Regulation Committee commented that providing such a function would be cost prohibitive and that it would take potentially years to develop OLPR’s level of competence in handling such matters.¹⁷ The LPRB likewise described OLPR’s advisory opinion service as one of the office’s most valuable services and opposed the ABA’s recommendation.¹⁸ Other areas of general consensus include defining probable cause and providing greater online access to disciplinary decisions.¹⁹ OLPR correctly notes that only Minnesota Supreme Court opinions are precedential, and other nonpublic disciplinary decisions, such as admonitions, provide guidance but do not establish precedent.²⁰

Inclusivity

Currently the Rules on Lawyers Professional Responsibility provide for six of the 13 lawyer members to be nominated by MSBA.²¹ The Consultation Report recommends eliminating designated appointments by the MSBA.²² OLPR and LPRB support the recommendation that the Court should amend the Rules to eliminate “Bar Association” designated appointees to the LPRB.²³ Authors of the LPRB comments, who acknowledge they are MSBA appointees, point out that only 40% of Minnesota’s lawyers belong to MSBA, and that dues may financially deter membership and thus exclude Board participation.²⁴ Also compelling is the fact that affinity group participation does not qualify those lawyers for an MSBA appointment and again excludes appointment.²⁵ OLPR adds that no other voluntary bar state reserves such a large proportion of appointments.²⁶ Not surprisingly the MSBA Board opposes the elimination of MSBA designees and emphasizes steps its Elections and Appointments committee has taken to ensure screening and interviewing is more inclusive.²⁷

The case for district ethics committees

There are 21 District Ethics Committees (DEC), composed of 225 volunteers, 49 of whom are public members and all play a significant role in Minnesota’s lawyer discipline system.²⁸ The Consultation Report suggested a potential sunsetting of the DEC system.²⁹ Minnesota is one of the rare jurisdictions that maintain the use of volunteers in lieu of professional disciplinary staff to conduct investigations.³⁰ According to a survey cited by OLPR, DEC volunteers reflects the work of 4.0 FTEs.³¹ DEC representatives who submitted written comments were clear about the benefits of their contributions to the disciplinary system and the profession as a whole. DEC commenters identified their practical experience, connections within their committees to a variety of practice areas, their ability to disseminate ethical standards based on their work on the committee and the cost savings they bring to the system.³² DEC representatives also expressed support for ongoing training and supported the Director’s Office reviewing their recommendations.³³

Reinstatement proceedings

Several recommendations were made to amend Rules 14 and 18, RLPR to streamline reinstatement proceedings.³⁴ The first recommendation was to amend Rule 14, RLPR to remove reinstatement hearings from LPRB panels and have reinstatement hearings heard by a referee.³⁵ Both the LPRB and PRC oppose this recommendation, citing in part the elimination of public member participation, consistency with Model Rules and increased costs.³⁶ OLPR acknowledged the importance of public member participation and deferred to the Court.³⁷ The ABA also recommended requiring a reinstatement hearing at six months instead of 90 days as currently required in Minnesota.³⁸ Specifically the ABA recommends that attorneys suspended for six months or less should not have to apply for reinstatement and should be automatically reinstated at the end of the suspension by filing with the Court and serving on the OLPR an affidavit attesting to compliance with the order of suspension.³⁹ In 2020, the average time from receipt of the Petition for Reinstatement to the completion of the Director’s investigation report was 335 days; in 2021 it was 294 days.⁴⁰ Research reveals only five states require reinstatement hearings for suspensions of 90 days or less.⁴¹ Allowing for reinstatement by petition for suspensions of six months or less would reduce delay in reinstatements for those lawyers, a recommendation OLPR supports and with which the PRC disagrees but states there constructive alternatives.⁴²

Structural/procedural recommendations

The structure of the Minnesota discipline system has been changing. On July 14, 2021, the Minnesota Supreme Court amended Rules 4 and 5, Rules on Lawyers Professional Responsibility.⁴³ There was controversy and debate surrounding these rule changes as they relate to the relationship between and oversight between the LPRB and the Director. In fact, it was the July 14, 2021, order that initiated the ABA review of Minnesota’s attorney discipline system.⁴⁴ The Consultation Report made significant recommendations modifying the structure of the LPRB.⁴⁵ The LPRB opposes many of the structural recommendations, including recommendations that it argues reduces public participation. The LPRB specifically opposes the elimination of its executive committee and the creation of an Administrative Oversight Committee (AOC) and instead proposes to reduce the size of its executive committee.⁴⁶ The LPRB does support all recommendations that administratively separate it from OLPR, and it fully supports being provided Judicial Branch administrative assistance as long as it is not OLPR staff.⁴⁷ The MSBA’s Professional Regulation Committee also opposed the elimination of the executive committee and creation of the AOC, while OLPR supported the recommendation.⁴⁸

Despite controversy surrounding the Director’s reappointment, only OLPR commented on the recommendation to eliminate the Director’s two-year renewal term as provided for in Rule 5(a), RLPR.⁴⁹ The basis for the ABA’s recommendation was conformity with national practice and ABA policy.⁵⁰ OLPR supports the recommendation.⁵¹

Streamlining and efficiency were another area addressed by the ABA consultation report and having served as a managing attorney at OLPR and additionally as private professional liability and ethics counsel, efficiency is an issue I along with many readers appreciate. For private attorneys representing clients facing ethics issues, there is nothing worse than having to explain the potential length, expense and serial nature of an OLPR investigation. As a former OLPR attorney it is challenging to read ABA recommendations that suggest dispositions should be briefer, more general and in letter format.⁵² The challenge is that the current system does not allow for this. The LPRB appellate review process would not tolerate summary dispositions as recommended by the ABA.

The ABA made 25 recommendations to improve Minnesota’s lawyer discipline system. This article has highlighted several areas of the recommendations and associated comments. Readers are encouraged to digest the full report and written comments at their leisure. Several of the recommendations appear to have widespread support. While not all the recommended changes may be needed or appropriate, our disciplinary system requires change. The Court faces a challenge prioritizing the recommendations and allocating resources.

Jennifer Bovitz is a senior claim attorney at Minnesota Lawyers Mutual. Jennifer is an experienced trial and appellate lawyer who has served as a managing attorney at the Minnesota Office of Lawyers Professional Responsibility and has worked in private practice defending professional liability matters and representing professionals before regulatory boards and dedicated many years to serving the public as a prosecutor.

Endnotes

1. Minnesota-Consultation-Report-SCPR.pdf (mncourts.gov); (“Consultation Report”) Available under ADM10-8042.
2. Minnesota Supreme Court Administrative-Orders (February 10, 2023). Available on the public access site for the Minnesota Appellate Courts, P-MACS, under ADM10-8042.
3. Id.
4. Written comments available on the public access site for the Minnesota Appellate Courts, P-MACS, under ADM10-8042.
5. Shorba Comments at 1 (Jan. 19, 2023)
6. Id. at 2.
7. Comments of the Standing Committee on Professional Regulation at 20-21,24-25 (Jan. 31, 2023) (“PRC Comments”).
8. Id.
9. Comments of the Office of Lawyers Professional Responsibility (“OLPR comments”) at 45.
10. Id.
11. Consultation Report at 74.
12. PRC Comments at 20 (Jan. 31, 2023) (“PRC Comments”)
13. Id. at 21.
14. OLPR comments at 46.
15. PRC comments at 23; OLPR comments at 16-17; LPRB comments at 34.
16. Consultation Report at 41; Written comments available on the public access site for the Minnesota Appellate Courts, P-MACS, under ADM10-8042.
17. PRC Comments at 7-8 (Jan. 31, 2023).
18. LPRB Comments at 35 (Feb. 1, 2023).
19. OLPR comments at 30-31; PRC comments at 9-10,40; LPRB comments at 35.
20. OLPR comments at 30.
21. See Rule 4(a)(2), Rules on Lawyers Professional Responsibility (RLPR).
22. Consultation Report at 29.
23. LPRB Comments at 29-31 (Feb. 1, 2023); OLPR Comments at 8-9 (Feb. 1, 2023); Consultation Report at 29.
24. LPRB Comments at 29-30 (Feb. 1, 2023)
25. Id. at 30.
26. OLPR Comments at 8 (Feb. 1, 2023).
27. PRC Comments at 5 (Jan. 31, 2023).
28. OLPR comments at 12,25
29. Consultation Report at 42.
30. Id.
31. OLPR Comments at 25, Ex. D.
    32.Comments of Renee Rubish, Chair Sixth DEC (Dec. 29, 2022); Nancy Norman Sommer, 21^st DEC Chair (Dec. 23, 2022); Corinne Ivanca, Chair Fourth DEC, et al. Fourth DEC (Dec. 28, 2022).

33. Id.
34. Consultation Report at 38, 64-65.
35. Consultation Report at 38.
36. LPRB comments at 23-26; PRC comments at 16.
37. OLPR comments at 41.
38. Consultation Report at 63.
39. Id.
40. Id.
41. OLPR comments at 35, Ex. E.
42. OLPR comments at 35; PRC comments at 15-16.
43. Minnesota Supreme Court Administrative Order (ADM10-1042) (July 14, 2021); Bill Wernz, “The Need to Restore Confidence in State’s Lawyer Professional Responsibility System,” Minnesota Lawyer November 11, 2021.
44. Id.
45. Consultation Report at 27-36.
46. LPRB comments at 2,4-12.
47. LPRB comments at 3, 13-19.
48. PRC comments at 7; OLPR comments at 3-8.
49. OLPR comments at 20-21, Consultation Report at 37.
50. Consultation Report at 37.
51. OLPR Comments at 20.
52. Consultation Report at 39-40.