|Members Present |
Alice Senechal, Chair
Judge Karen Braaten
Dr. Richard Olafson
|Members Absent |
Chair Senechal called the meeting to order at 12:30 p.m. and welcomed Annetta Sutton, a new member recently appointed by Chief Justice VandeWalle. She then drew attention to the 2001 Meeting Schedule, distributed previously as Attachment B (March 7, 2001). Committee members agreed the dates and locations for the remaining meetings were satisfactory. Chair Senechal next drew Committee members' attention to Attachment C (March 7, 2001) - Minutes of the Committee's November 17, 2000, meeting.
It was moved by Marilyn Foss, seconded by Dan Crothers, and carried unanimously that the minutes be approved.
At the request of Chair Senechal, Christine Hogan summarized the results of a meeting with the director of the Employee Assistance Program for St. Alexius Hospital. She said the program provides employee assistance services throughout the state and for numerous groups of employees. The focus of the discussion, she said, was what might be considered the treatment and counseling segment of a lawyer diversion program. She said it may be necessary, if a diversion program is established, to arrange for these kinds of services to be handled by an outside provider, such as St. Alexius, on a contract basis. She said the St. Alexius program provides employee assistance services both to those who seek them on a voluntary basis and to those referred directly to a program by an employer or insurance carrier. She said the program director indicated a willingness to work with the bar association in developing a program to provide counseling and assistance services as part of a general lawyer diversion program. She asked whether this component of a lawyer diversion program should be pursued further.
Marilyn Foss asked whether there is any information concerning how often such a program might be used if established; for example, the number of disciplinary complaints over the past two years that might have been considered appropriate for diversion. Christine Hogan responded that there is no assembled data on this issue. She noted, however, that a program like employee assistance conceivably would be available to provide services to a particular lawyer before the lawyer is involved in the disciplinary process.
Dan Crothers wondered how an employee assistance-type program would fit with the diversion program. For example, he asked whether diversion from the discipline process into an employee assistance-type program would occur at some point after a complaint is filed, but before the inquiry committee has begun its investigative work.
Annetta Sutton said that as a pastoral counselor she has worked with several lawyers and lawyers' families over the years. She noted that, because of their professional status, she has often referred lawyers out of state for treatment services.
Dan Crothers expressed concern about the cost involved in establishing an assistance program, which is compounded by the possible low level of usage. Additionally, he said there is uncertainty concerning whether the diversion or assistance program will operate differently from consent probation. Consent probation, he said, is available only if it is concluded that there is merit in the complaint; that is, that there has been a violation of a rule of professional conduct. He wondered whether it is appropriate to divert a lawyer into some kind of program before such a conclusion has been reached.
Mike Williams said two major details of a proposed diversion program that require attention are the confidentiality of the process and the assessment of costs against the lawyer. With respect to confidentiality, he said the public often expects to see a lawyer publicly disciplined and lawyers are averse to a secret process that imposes some form of discipline or, in this case diversion, upon lawyers. Additionally, he said lawyers support some level of confidentiality because complaints are often demonstrated to be unsubstantiated and without merit, but the public airing of such complaints can harm reputations. Drawing attention to the information concerning the Minnesota diversion program [Attachments C1-4 (June 5, 2001)], he wondered how the Minnesota program deals with the competing interests regarding confidentiality. With respect to assessing costs, he said that while he favors diversion, there is concern that passing the costs of the process along to the lawyer may impose significant burdens. For example, he said there may be high costs associated with what is a relatively minor offense. It would be helpful, he said, to see a proposed budget for the program that identifies which costs would be absorbed by the Bar Association and service provider, and which costs might be passed along to the lawyer.
Christine Hogan said the St. Alexius program director indicated one approach would be to include a small assessment in each license fee, which would cover initial, short-term counseling services. She said long-term treatment and follow-up would be assessed as an individual cost, either to the State Bar Association or the lawyer.
Dr. Olafson noted that the North Dakota Medical Association assists with monitoring a physician's involvement with peer assistance groups. He said the association has negotiated with an independent group to conduct spot checks on physicians participating in the assistance programs. He said the association's Impaired Physicians Committee monitors compliance with assistance programs. He suggested that, in light of the state's relatively small lawyer population, it may be worthwhile to consider a possible joint program with the medical association to address lawyer assistance issues. Dan Crothers said he would favor that suggested approach, rather than assembling more information on, for example, the Minnesota program. Additionally, he said the Association's program may contain processes and structure that could be adopted to the needs of the Bar Association.
It was moved by Dr. Olafson, seconded by Judge Braaten, and carried unanimously that staff contact the executive director of the Medical Association for information concerning the operation of the physicians assistance program.
Chair Senechal inquired whether the Committee should consider other options for addressing this issue. Annetta Sutton noted that Employee Assistance Programs typically have an educational component, many times involving informational circulars mailed to those for whom the program is available. Marilyn Foss suggested the possibility of ethics CLE programs dedicated to discussing impaired lawyer issues. Judge Braaten said a mentoring program for lawyers may be helpful, particularly in addressing issues pertaining to law office management. Dan Crothers noted that there are a host of complications associated with establishing a mentor program, including availability of lawyers to serve as mentors and questions of liability. He suggested the possibility of using technology resources, such as Internet listserves that permit lawyers to join in discussion groups to discuss problems. Chair Senechal said the general topic would be discussed further at the next meeting.
Supreme Court Action on Committee Submissions
Chair Senechal drew Committee members' attention to Attachments D, E, and F (June 5, 2001) - a letter from Penny Miller, Clerk of the Supreme Court, and various attachments regarding the Supreme Court's response to the Committee's earlier submission of proposed rules and rule amendments. She explained that the Supreme Court has referred back to the Committee its proposed Rule 1.19, which addressed copying of client files and papers and retaining liens. She noted that 2001 legislation had repealed three statutes pertaining to lawyer retaining liens and proposed Rule 1.19, among other things, disallowed the assertion of a retaining lien against a client's files, papers, or property. However, she said the Supreme Court has requested that the Committee review the proposal in light of the continued existence of NDCC Section 35-20-08(1), which appears to allow a retaining lien.
Staff noted that at the time proposed Rule 1.19 and the repeal of the retaining lien statutes was discussed, there was uncertainty concerning the precise effect of Section 35-20-08. Consequently, he said, that particular statute was not included in the repeal legislation.
It was moved by Dan Crothers, seconded by Mike Williams, and carried unanimously that the Committee recommend that the Board of Governors pursue legislation amending Section 35-20-08 to delete the language regarding liens on client papers and that proposed Rule 1.19 be resubmitted to the Supreme Court along with notice of the Committee's recommendation to the Board of Governors.
Chair Senechal then drew attention to that part of Ms. Miller's letter concerning the Supreme Court's referral to the Committee of proposed amendments to Rule 3.1D(2) and (3) of the Rules for Lawyer Discipline which were submitted by the SBAND Board of Governors. The proposed amendments are included in Attachment D (June 5, 2001).
With respect to the proposed amendments to Rule 3.1D(2), Marilyn Foss said she agreed a copy of the complaint should be "served" on the lawyer, but the investigator should not be the one identified as responsible for service, as the amendments propose. Dan Crothers questioned the need to include a reference to the "written" complaint, since Rule 3.1A already requires that complaints be in writing.
It was moved by Marilyn Foss and seconded by Dan Crothers that Rule 3.1D(2) be amended to provide that a copy of complaint must be served on the lawyer, and that any subsequent written reply by the complainant also be served on the lawyer.
Marilyn Foss said leaving unidentified who must serve would provide more flexibility at the inquiry committee level.
The motion carried unanimously.
It was moved by Marilyn Foss, seconded by Dan Crothers, and carried unanimously that Rule 3.1D(3) be amended to provide that within 20 days of "service", rather than receipt, of the complaint, the lawyer shall "serve", rather than submit, a written response "upon the assigned investigator".
It was moved by Dan Crothers, seconded by Marilyn Foss, and carried unanimously that the draft amendments be distributed to the disciplinary board and inquiry committee chairs and to disciplinary counsel and that the amendments, together with any comments, be reviewed at the Committee's next meeting.
Ethics 2000 - Status
Dan Crothers explained that the Ethics 2000 Report, which proposes several amendments to the ABA Model Rules of Professional Conduct, will be presented to the ABA House of Delegates at the ABA's August 2001 meeting. Particularly, he said, the Report recommends significant changes to current Rules 5.5 and 8.5 to address issues concerning multijurisdictional practice. He said these issues are being discussed by virtually every bar association in the country and there will be a resolution before members of this state's bar association which will recommend a taskforce be established to do likewise. He suggested that the Committee not consider any changes to these particular rules until the taskforce has completed its work. Additionally, he said the Committee likely should not begin work on the Ethics 2000 Report itself until the ABA has taken formal action on the various recommendations. He said if an issue arises in the meantime pertaining to the Rules of Professional Conduct, the Committee could perhaps look to the Ethics 2000 Report for some guidance.
It was moved by Mike Williams, seconded by Judge Braaten, and carried unanimously that the Committee await formal action by the ABA before considering the Ethics 2000 recommendations.
There being no further business, the meeting was adjourned at 2:40 p.m.