JOINT COMMITTEE ON ATTORNEY STANDARDS
Ramada Inn, Grand Forks
June 16, 1998
Dan Crothers, Chair
Dwight Kalash, Chair, Disciplinary Board
Maureen Holman, Disciplinary Board
Vivian Berg, Disciplinary Counsel
Chair Crothers called the meeting to order at 9:30 a.m. and called Committee members' attention to Attachment 2 (June 10, 1998) - Minutes of the May 1, 1998, meeting.
IT WAS MOVED BY BEN HAHN, SECONDED BY CURT CORNELIUS, AND CARRIED UNANIMOUSLY THAT THE MINUTES BE APPROVED AS MAILED.
Chair Crothers drew Committee members' attention to the first agenda item concerning possible amendments to Rule 8.4, Rules of Professional Conduct, to address gender-biased conduct. He called on Sandi Tabor to provide background information concerning findings and recommendations made by the Supreme Court's Commission on Gender Fairness in the Courts.
Sandi Tabor said the Commission conducted its study over a two-year period and gathered information through public meetings, focus groups, and surveys. The response rates to the survey, she said, were very high: 72% of judges, 63% of lawyers, and 87% of court personnel surveyed responded. Overall, she said, the vast majority of survey respondents believed that gender bias exists to some extent in the courts. The survey also indicated that a percentage of respondents thought that bias has existed for a long time, but has changed; the key being that it is now more subtle and difficult to detect.
In the area of Professional Conduct, Sandi Tabor said the Commission studied three areas: overall professionalism, which questioned the use of gender stereotypes in advocacy; interaction in the courts, which questioned the difference in perceptions of bias among attorneys, judges, and court personnel; and, judicial intervention. When reviewing issues concerning professional, she said, the Commission's survey asked whether it was unprofessional to use gender-biased conduct as a means to disadvantage a courtroom adversary. The overwhelming response, she said, was that it was unprofessional. However, she said, as questions became more focused on particular kinds of conduct, the percentage finding the conduct unprofessional declined. For example, she said, a third of the male and female attorneys responding said it would be acceptable to use the client's or attorney's gender if it worked to the client's advantage. This finding, she said, was one reason for the Commission's recommendation that an amendment to the Code of Professional Conduct be considered. In the area of courtroom interaction, she said, the Commission reviewed issues such as demeaning remarks, jokes, verbal and physical sexual harassment, and use of terms of endearment. She said two areas were of particular concern to the Commission. With respect to verbal sexual harassment, she said 39% of women lawyers said women lawyers are subject to verbal sexual harassment by other counsel, 13% of women lawyers responded that judges engaged in similar conduct, 3% of judges said that counsel subjected women attorneys to verbal sexual harassment, 32% of women attorneys witnessed such harassment of women witnesses by counsel, and 12% of women attorneys reported that judges had harassed women litigants. These last two statistics, she said, were particularly disturbing to the Commission. Also of concern, she said, was that 11% of women lawyers reported that women lawyers were subjected to physical sexual harassment by counsel, 3% reported that judges subjected women attorneys to such harassment, and 2% of judges said women attorneys were subject to such harassment. With respect to the use of terms of endearment or other less professional manners of addressing women lawyers or litigants, she said 57% of women attorneys said women attorneys were addressed by first names or terms of endearment by counsel when male attorneys were not. She said 37% of the respondents said women attorneys were addressed by first names or terms of endearment by judges. The Commission's concern, she said, was that such manners of address may create the appearance that women attorneys were considered less of a professional or that they were to be taken less seriously.
With respect to methods of responding to gender-biased conduct, she said the Commission included a recommendation for the establishment of a more informal disciplinary process to deal with complaints on gender-related issues. Such an approach, she said, would permit the offended party to pursue an alternative to the formal discipline process.
At the request of Chair Crothers, staff reviewed information gathered from Minnesota and New Mexico concerning those state discipline systems' experiences with rules prohibiting biased conduct. Staff said the Minnesota rule, included in Attachment 3B (June 10, 1998), is directed narrowly at harassment. As a result, he said, Minnesota discipline officials indicated that very few disciplinary complaints are received for violations of this rule because litigation involving the alleged harassment is generally involved. He said the New Mexico discipline system does not track gender-based complaints specifically. However, he said, disciplinary officials in New Mexico said very few such complaints have been received and most have been dismissed.
Randy Lee drew attention to the competing ABA approaches reflected in Attachment 3A (June 10, 1998), one of which suggests addressing the issue in the Comment to Rule 8.4. He observed, and Committee members agreed, that if the matter is to be addressed, it should be addressed in the body of the rule, rather than in the Comment.
Chair Crothers said Christine Hogan, who was unable to attend the meeting, is in favor of adopting a rule and favors the language included in the ABA Ethics Committee recommendation set out in Attachment 3A. Additionally, he said, she is not concerned with waiting for the ABA to take any kind of final action.
Staff drew attention to Attachment 3C (June 10, 1998), which sets out ethical obligations of judges regarding biased conduct under Canon 3B(5) and (6) of the Code of Judicial Conduct.
Randy Lee said any amendments to Rule 8.4 to address this issue should be careful to impose upon lawyers an obligation similar to that imposed upon judges with respect to controlling the conduct of lawyers.
IT WAS MOVED BY JUDGE ERICKSON, SECONDED BY MARILYN FOSS, AND CARRIED THAT DRAFT AMENDMENTS TO RULE 8.4 BE PREPARED BASED UPON CANON 3B(5) AND (6), WITH THE FOCUS ON CONDUCT OCCURRING IN CONNECTION WITH THE PRACTICE OF LAW.
Draft Legislation - Collection of Costs and Statutory Revision
At the request of Chair Crothers, staff summarized Attachment 4A (June 10, 1998), draft legislation regarding the collection of costs and other statutory revisions. Staff said the draft legislation would permit the Supreme Court to assign any costs assessed in discipline cases to the State Bar Association for purposes of collection. Any costs recovered by the Association, he said, would be used for operation of the lawyer discipline system. He said the repealer section of the draft legislation would repeal current sections of the Century Code which identify the State Bar Board as being responsible for lawyer discipline activities.
Marilyn Foss inquired whether the draft legislation would be consistent with the Supreme Court's recent decision in Billey v. North Dakota Stockmen's Association. Sandi Tabor said the application of the decision is uncertain, but should be reviewed.
IT WAS MOVED BY RANDY LEE, SECONDED BY JUDGE ERICKSON, AND CARRIED UNANIMOUSLY THAT THE DRAFT LEGISLATION, MODIFIED IF NECESSARY, BE APPROVED AND FORWARDED TO THE SUPREME COURT IF THE COMMITTEE CHAIR AND STAFF AGREE LEGISLATION IS WARRANTED.
Operations Committee Rule Amendments
At the request of Chair Crothers, staff reviewed Attachment 5 (June 10, 1998) - draft amendments to implement the establishment of an operations committee to oversee fiscal and personnel management of the lawyer discipline system. Staff drew attention to the draft amendment to Rule 4 of the Rules of the Judicial Conduct Commission, which would permit the Judicial Conduct Commission to either appoint disciplinary counsel or contract with the lawyer disciplinary board and the operations committee for disciplinary counsel services.
Sandi Tabor summarized a recent meeting involving Chief Justice VandeWalle, SBAND President-Elect Dann Greenwood, Vivian Berg, and Chair Crothers. As a result of that meeting, she said, it was suggested that a former or current member of the Judicial Conduct Commission be substituted for the Bar Board representative on the operations committee. With respect to the draft amendment to Rule 4 of the Rules of the Judicial Conduct Commission, she suggested that the rule refer to the Judicial Conduct Commission contracting only with the Operations Committee rather than with the Disciplinary Board and the Operations Committee.
Dwight Kalash said the issue has been well-examined and the disciplinary board does not intend to suggest any alternative proposal.
IT WAS MOVED BY RANDY LEE, SECONDED BY BEN HAHN, AND CARRIED THAT THE DRAFT AMENDMENTS BE MODIFIED TO SUBSTITUTE A CURRENT OR FORMER MEMBER OF THE COMMISSION FOR THE BAR BOARD REPRESENTATIVE AND TO DELETE IN RULE 4 THE REFERENCE TO CONTRACTING WITH THE DISCIPLINARY BOARD; AND THAT THE PROPOSED AMENDMENTS, AS MODIFIED, BE APPROVED AND RECOMMENDED TO THE SUPREME COURT.
Rule Amendments Regarding Hearing Body Recommendations
At the request of Chair Crothers, staff summarized Attachment 6 (June 10, 1998) - rule amendments providing for hearing body recommendations directly to the Supreme Court. Staff said the draft amendments would implement a process by which the hearing body would be authorized to make recommendations on public discipline directly to the Supreme Court. He noted as a further working-out of this approach the draft amendments to Rule 1.3, which would permit the hearing body, rather than the Board, to impose probation or a reprimand. He said that of the state disciplinary systems reviewed which provide for hearing body or panel recommendations directly to the Supreme Court (Delaware, Nevada, Kansas, Idaho, and West Virginia), all accept one permit the hearing panel or panel chair to impose a public discipline. He said the draft amendments also affect rules for which amendments had previously been approved by the Committee. If these amendments are approved, he said, they would be integrated with the previously approved amendments.
Karen Braaten suggested, and Committee Members agreed, that the reference on page 8, lines 24-25, to counsel filing the petition with the board, rather than the designated hearing body, be retained. Following the discussion, Committee members suggested that the proposed changes in Rule 3.5(I) be deleted.
Chair Crothers said the draft amendments would be held for further review at the Committee's next meeting. Staff noted the independent issue concerning when and how appeals may be taken from a board decision. At present, he said, the rules are not clear on how an appeal is taken from the board's dismissal or imposition of a public reprimand. In a recent discipline case, he said, the Supreme Court adapted a part of the procedure from the inquiry committee process [Rule 3.1D(a)] to establish a procedure for appealing a board decision. He said in states in which the hearing panel makes a recommendation directly to the Supreme Court, an appeal from the hearing panel's imposition of a sanction also goes directly to the Supreme Court.
Chair Crothers said the appeals issue would be held over for discussion at the Committee's next meeting.
No further business appearing, the meeting was adjourned at 11:50 a.m.