In re Order Regarding the Report & Recommendations of the Am. Bar Ass'n Standing Comm. on Prof'l Regulation on the Minn. Lawyer Discipline Sys.
| Docket Number | ADM10-8042,ADM10-8043 |
| Decision Date | 23 August 2023 |
| Parties | ORDER REGARDING THE REPORT AND RECOMMENDATIONS OF THE AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON PROFESSIONAL REGULATION ON THE MINNESOTA LAWYER DISCIPLINE SYSTEM |
| Court | Minnesota Supreme Court |
1
ORDER REGARDING THE REPORT AND RECOMMENDATIONS OF THE AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON PROFESSIONAL REGULATION ON THE MINNESOTA LAWYER DISCIPLINE SYSTEM
Nos. ADM10-8042, ADM10-8043
Supreme Court of Minnesota
August 23, 2023
LORIE S. GILDEA CHIEF JUSTICE
We are responsible for regulating lawyer discipline proceedings and the rules that govern those proceedings. See Minn. Stat. § 480.05 (2022); In re Riehm, 883 N.W.2d 223, 231-32 (Minn. 2016). In 2022, we asked the Standing Committee on Professional Regulation of the American Bar Association (the ABA), which evaluates a state's lawyer discipline system, to review and evaluate Minnesota's lawyer discipline system and provide recommendations. The ABA provided its report and recommendations to us in September 2022. We opened a public comment period. Written comments were filed by the Office of Lawyers Professional Responsibility (OLPR), the Lawyers Professional Responsibility Board (the Board), the Minnesota State Bar Association (MSBA), the State Court Administrator, the chairs of three district ethics committees, and attorney Richard Jellinger. We held a public hearing on March 14, 2023, at which the Director of the OLPR, the Chair of the Board, and representatives of the MSBA presented remarks.
The ABA's review was thorough. The evaluation team met with OLPR staff, Board members, district ethics committee members, other participants in the lawyer discipline system (referees, complainants, respondents, and lawyers who represent respondents in
disciplinary matters), and members of our court. The ABA team also reviewed an expansive list of documents and materials in reaching its conclusions and recommendations.
As the ABA reported, there are many strengths to Minnesota's lawyer discipline system, perhaps most importantly the "[e]ngagement by and commitment of the system's dedicated volunteers" including lawyers and public members. Minn. Rep. on the Law. Discipline Sys. at 8 (Sept. 2022) ("ABA Rep."). We fully endorse this conclusion: Minnesota's lawyer discipline system benefits from the dedicated service and talents of many, including the lawyers who serve on the Board and on district ethics committees, the lawyers and staff of the OLPR, and the considerable, beneficial contributions from members of the public, who serve on the Board and on district ethics committees. These participants are engaged, committed, and take their responsibilities and work seriously.
We have viewed the ABA's recommended changes in light of our responsibility to protect the public and administer justice, see In re Udeani, 945 N.W.2d 389, 396 (Minn. 2020), and also with an eye on preserving the strengths of Minnesota's discipline system, see Rule 2, Rules on Lawyers Professional Responsibility (RLPR) (stating that "[i]t is of primary importance to the public and to the members of the Bar" for cases of alleged misconduct to "be promptly investigated and disposed of with fairness and justice"). We fully expect that the changes we adopt here will support important goals in our lawyer discipline system, including fairness, public confidence in the discipline proceedings, and transparency.
As explained in the accompanying memorandum, we adopt some of the ABA's recommendations, adopt modified versions of other recommendations, refer some recommendations to the Director, the Board, or elsewhere for further consideration, and decline to implement other recommendations. In reaching these decisions, we have carefully considered the concerns and positions expressed in the written comments and made at the public hearing.
The decisions made here will require amendments to the Rules on Lawyers Professional Responsibility. Although the Board is responsible for administering the rules, Rule 4(c), RLPR, we conclude that the amendments needed to implement the adopted recommendations will benefit from the broader input, public process, and collaboration that can be achieved in a committee process. Thus, in a separate order filed today, we have appointed an Advisory Committee to develop recommendations for rule amendments to implement the decisions we have made here.
We are grateful for the thorough and robust work by the ABA Standing Committee on Professional Regulation. We also appreciate the cooperation extended by the OLPR, the Board, the MSBA, and many others during the ABA evaluation process. Finally, the thoughtful and incisive comments submitted in the public phase of these proceedings were helpful in the result reached here.
IT IS HEREBY ORDERED that the recommendations made by the ABA Standing Committee on Professional Regulation that are adopted, in full or in part, or are modified in part and adopted, are referred to the Advisory Committee as explained in the accompanying
memorandum for consideration of amendments to the Rules on Lawyers Professional Responsibility to implement these decisions.
IT IS FURTHER ORDERED that unless adopted and subject to the preceding paragraph, or unless rejected as explained in the accompanying memorandum, recommendations made by the ABA Standing Committee on Professional Regulation are referred to the Director of the Office of Lawyers Professional Responsibility, the Lawyers Professional Responsibility Board, or State Court Administration, as explained in the accompanying memorandum, for further consideration.
IT IS FURTHER ORDERED that unless governed by one of the two preceding paragraphs, no action is being taken at this time on the recommendations made by the ABA Standing Committee on Professional Regulation.
MEMORANDUM
Minnesota's lawyer discipline system, through the Office of Lawyers Professional Responsibility (the Office) and the Lawyers Board of Professional Responsibility (the Board), has operated for over 50 years with a commitment to fairness and transparency in lawyer discipline. We announced in July 2021 that a "review of Minnesota's attorney discipline and disability system" would be undertaken, Order Promulgating Amends. to the Rules on Laws. Pro. Resp., No. ADM10-8042, at 4 (Minn. filed July 14, 2021), because past reviews have been beneficial in shaping the successful system of lawyer discipline in Minnesota. Id. By 2021, it had been over 10 years since the last review of our discipline system. See Rep. of the Sup. Ct. Advisory Comm. to Review the Law. Discipline Sys., No. ADM07-8001 (filed May 19, 2008). Further, the components of Minnesota's discipline system-the Office, the Board, the district ethics committees, and the procedures governing those entities-had been largely the same for almost 50 years. We concluded that it was appropriate to consider updating our lawyer discipline procedures with a goal of adopting the best practices for efficient administration, sanctions, and education.
The comprehensive report that the ABA delivered[1] on the lawyer discipline system in Minnesota identified several strengths that support that system and inefficiencies that
needed attention. We received written comments from the Office, the Board, the Minnesota State Bar Association (MSBA), the chairs of three separate district ethics committees, the State Court Administrator, and Minnesota lawyer Richard Jellinger. The Director of the Office, the chair of the Board, and representatives of the MSBA provided additional comments at the public hearing held on March 14, 2023. We have carefully and thoroughly considered each of the ABA's recommendations.
In this memorandum, we explain whether the recommendation is adopted, in full, in part, or as modified; rejected; referred to the Director, the Board, or the State Court Administrator for further consideration; or, due to some specific factor or circumstance, whether no action will be taken. Many of the decisions that we make today will require amendments to the Rules on Lawyers Professional Responsibility (RLPR). In general, we have not identified specific amendments in this memorandum. Instead, given the nature of some of the changes required by our order, broad input from the practicing bar, the Office, the Board, and others will be useful in ultimately deciding how best to implement some of these changes. Thus, in a separate order filed today, we have appointed an Advisory
Committee that will recommend amendments to the rules and, importantly as to one particular recommendation, will propose a structure for a diversion program.[2]
Finally, a word on organization is useful here. The ABA's report includes 25 recommendations with multiple sub-recommendations, some of which refer to or depend on decisions made on other recommendations. We have addressed the ABA's recommendations below by category-e.g., structure, probable cause, see Rule 9, RLPR, reinstatement, see Rule 18, RLPR-rather than proceeding numerically through each individual recommendation in the ABA's report. To aid in comparing our decisions to a specific ABA recommendation, the table attached to this memorandum provides a succinct summary of the disposition of each ABA recommendation.
I. The Structure of the Board, Office Responsibilities and Procedures, and Advisory Opinion Practices (ABA Rec. Nos. 1-2, pp. 27-41).
The ABA proposed multiple changes to the structure, responsibilities, and procedures of the Board and the Office. ABA Rep. at 27-41.
The first recommendation focused primarily on the structure of the Board. The ABA recommends eliminating the Executive Committee of the Board, see Rule 4(d), RLPR, and replacing it with a separately appointed Administrative Oversight Committee
that would function apart from the Board, ABA Rep. at 27-32. In this recommended structure, administrative functions are performed by the Administrative Oversight Committee, and adjudicative functions are performed by the Board. The ABA also recommended reducing the size of the Board and eliminating the seats on the Board that are currently...
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