|Members Present |
Dan Crothers, Chair
Judge Ralph Erickson
|Members Absent |
Chair Crothers called the meeting to order at 11:00 a.m. and drew Committee members' attention to Attachment B (October 7, 1998) - Minutes of the June 16, 1998, meeting.
IT WAS MOVED BY RANDY LEE, SECONDED BY BEN HAHN, AND CARRIED UNANIMOUSLY THAT THE MINUTES BE APPROVED.
Lawyer Discipline Process Amendments
At the request of Chair Crothers, staff briefly summarized Attachment C (October 7, 1998) - draft rule amendments providing for hearing body recommendations directly to the Supreme Court. Chair Crothers then called for Committee discussion of the draft amendments.
Randy Lee suggested and Committee members agreed, that the reference to the "Board" in Rule 3.3C should be changed to chair of the "hearing body" and, as a consequence, lines 31-32 in Rule 3.3C concerning extensions being granted by the chair of the hearing body would be unnecessary. Additionally, he noted that Rule 3.5, lines 16-18, retain a reference to the Board as authorizing stays. He inquired whether the reference to the Board should be changed to hearing body, or perhaps to the Board and hearing body. Marilyn Foss suggested the Disciplinary Board should retain authority to grant stays, which is a different authority from the authority of a hearing body chair to grant an extension of time.
With respect to the draft amendments to Rule 2.2, Judge Erickson observed that when a hearing body comes into existence ought to be reviewed. He said the current rule and amendments are not clear concerning whether the hearing body is a standing, appointed entity or whether it is appointed from time to time by the chair of the Disciplinary Board. He said a standing hearing body may not be such a good idea because such a status sometimes leads to rigidity or polarization.
IT WAS MOVED BY JUDGE ERICKSON, SECONDED BY CHRISTINE HOGAN, AND CARRIED UNANIMOUSLY THAT THE DRAFT AMENDMENTS TO RULE 2.2A BE FURTHER MODIFIED TO PROVIDE THAT A HEARING BODY IS APPOINTED "UPON THE FILING OF A PETITION".
Dan Crothers said the question of when a hearing body comes into existence also is a question under Rule 4.2 concerning the tendering of a conditional admission. For example, he said, there is the possibility of an "immediate" tender of a conditional admission. Under that circumstance, he said, whether and when a hearing body is established becomes important. Marilyn Foss observed that the Disciplinary Board likely will not have a factual basis upon which to consider the tender of a conditional admission if one is made immediately or at least very early in the process. Randy Lee said if a hearing body is to consider the tendered admission, then Rule 4.2 must be clarified because the "at any stage" language may invite submission of the tendered admission too early in the process.
IT WAS MOVED BY MARILYN FOSS, SECONDED BY RANDY LEE, AND CARRIED UNANIMOUSLY THAT "AT ANY STAGE" BE DELETED FROM RULE 4.2A, LINE 2.
With respect to Rule 4.2, Christine Hogan recalled that Jim Hill had earlier raised a question concerning circumstances in which a lawyer has tendered a conditional admission, which was then rejected, but at the conclusion of the proceeding the discipline imposed was consistent with or less than that offered in the conditional admission. She said in those circumstances it would seem appropriate that no costs should be imposed. Randy Lee said the suggestion offers a fair procedure, although the limitation on costs should apply only to those costs arising after rejection of the tendered admission.
Judge Erickson noted that Rule 1.3D affords the court or the Board some latitude in imposing costs. He suggested that rule could be modified to address the issue.
IT WAS MOVED BY CHRISTINE HOGAN, SECONDED BY MARILYN FOSS, AND CARRIED UNANIMOUSLY THAT RULE 1.3D BE MODIFIED TO PROVIDE THAT IN ASSESSING COSTS THE COURT OR HEARING BODY MAY CONSIDER A LAWYER'S TENDER OF A CONDITIONAL ADMISSION UNDER RULE 4.2 AS A MITIGATING FACTOR.
Sandi Tabor observed that the draft amendments to Rule 6.1, which would replace references to the "Board" with references to the "hearing body" should probably be modified to reflect the Committee's earlier decision to require the filing of a petition with the Board. Committee members agreed.
Judge Erickson suggested, and Committee members agreed, that references throughout the rules to "hearing body" should be changed to "hearing panel". He also suggested, and Committee members agreed, that the reference in Rule 2.2A (lines 8-9) to "sitting or retired state-court judges" should be changed to "district or surrogate judges". Mike Wagner drew attention to Rule 3.5G concerning abatement and suggested the section should be redrafted for clarification as the clauses and relationship between clauses in the section is unclear. Chair Crothers said changes to Rule 3.5G and Rule 6.1, as suggested by Sandi Tabor, will be made as part of the technical revisions to the amendments.
At the request of Chair Crothers, staff reviewed Attachment D (October 7, 1998) - draft amendments to Rule 3.1F regarding review of board decisions. He said the objective of the amendments is to provide clarity in the rules regarding how an appeal can be taken regarding disposition of a formal proceeding.
Marilyn Foss wondered whether the standard of review should be "clearly erroneous" or "arbitrary and capricious". Judge Erickson said the arbitrary and capricious standard should remain as a judge's decision can be clearly erroneous without being arbitrary and capricious.
Staff noted language in Rule 3.1D(8) which adopts arbitrary, capricious, or unreasonable as the standard for review of the Disciplinary Board's affirmation of an inquiry committee decision.
IT WAS MOVED BY JUDGE ERICKSON, SECONDED BY RANDY LEE, AND CARRIED UNANIMOUSLY THAT THE STANDARD FOR REVIEW IN THE DRAFT AMENDMENTS TO RULE RULE 3.1F BE MODIFIED TO FOLLOW THE STANDARD PROVIDED IN RULE 3.1D(8).
IT WAS MOVED BY CONNIE SPRYNCZYNATYK, SECONDED BY FRAN GRONBERG, AND CARRIED UNANIMOUSLY THAT THE PROPOSED AMENDMENTS CONTAINED IN ATTACHMENT D, AS FURTHER MODIFIED, BE APPROVED AND, ALONG WITH RULE AMENDMENTS PREVIOUSLY APPROVED BY THE COMMITTEE, SUBMITTED TO THE SUPREME COURT FOR CONSIDERATION.
Rule 8.4, Rules of Professional Conduct - Draft Amendments Regarding Biased Conduct
At the request of Chair Crothers, staff reviewed Attachment E (October 7, 1998) - draft amendments to Rule 8.4, Rules of Professional Conduct, regarding manifestations of bias as lawyer misconduct. Staff noted that the draft language generally follows language now contained in Canon 3B(5) of the Code of Judicial Conduct. He said there is also language added to the Comment providing what has been termed the "legitimate advocacy" exception. Chair Crothers then drew attention to a memorandum prepared by Christine Hogan, which outlines the ABA's position and concerns with respect to dealing with biased conduct. A copy of the memorandum is attached as Appendix A.
Randy Lee noted that the recently adopted amendments to Canon 3B(5) of the Code of Judicial Conduct included examples of gender bias. He wondered whether the draft amendments to Rule 8.4 should also include such examples. However, he cautioned that the Code of Judicial Conduct language may pose a problem in that it addresses "making assumptions" based on gender stereotypes. He said it is difficult to understand how that may be applied unless it is construed closely as applying only to "acting" on the assumptions. He then distributed alternative draft amendments for Committee consideration. A copy of the draft amendments is attached as Appendix B.
Chair Crothers inquired whether the Committee should review the draft amendments distributed as Attachment E or the draft amendments distributed by Randy Lee.
IT WAS MOVED BY RON REICHERT, SECONDED BY RANDY LEE, AND CARRIED UNANIMOUSLY THAT THE COMMITTEE FOCUS ITS DISCUSSION ON THE LEE AMENDMENTS.
Mike Wagner said he is uncertain about what the proposed amendments will accomplish as there are rules currently in place to address misconduct. He noted that the initial impetus for the amendments was a concern about gender bias; however, the proposed rule amendments now attempt to address many kinds of potential bias.
Ron Reichert suggested the reference to words or conduct "in connection with the practice of law" should be changed to words or conduct "in connection with a judicial proceeding". Randy Lee said he would support such as modification in that it would generally keep faith with the study findings of the Commission on Gender Fairness in the Courts.
IT WAS MOVED BY MARILYN FOSS, SECONDED BY CONNIE SPRYNCZYNATYK, AND CARRIED UNANIMOUSLY THAT "IN CONNECTION WITH THE PRACTICE OF LAW" BE REPLACED WITH "IN CONNECTION WITH A JUDICIAL OR ADMINISTRATIVE PROCEEDING" IN THE PROPOSED AMENDMENTS CREATING RULE 8.4(d).
Ron Reichert said he is also concerned with the breadth and uncertain meaning of "socioeconomic status" as a form of bias.
Judge Erickson said some kinds of conduct that should be prohibited by the Rule would, for example, include statements about a litigant's wealth or social status, or lack of it, and suggestions that the merits of the case should be affected by that status.
IT WAS MOVED BY RON REICHERT AND SECONDED BY MIKE WAGNER THAT "SOCIOECONOMIC STATUS" BE REMOVED AS A KIND OF BIAS IDENTIFIED UNDER THE PROPOSED AMENDMENTS.
Marilyn Foss wondered whether it would be appropriate to comment on the deletion of the reference to socioeconomic status in the rule's Comment. The purpose of the Comment language, she said, would be to clarify that deletion of "socioeconomic status" would not imply that such bias does not exist, but rather that concerns regarding client screening and advocacy raised substantial questions about including it.
Ben Hahn said the reference to socioeconomic status should be retained because many have the impression that those less well off are not treated fairly by the legal system. On the other hand, Ron Reichert said there may be times when a lawyer may want to argue that a client is "poor" or "disadvantaged" for tactical reasons.
THE MOTION CARRIED. (Ben Hahn, Randy Lee, and Judge Erickson - No.)
Christine Hogan wondered whether the previously adopted language concerning "in connection with a judicial or administrative proceed" would be broad enough to address conduct during depositions. Committee members agreed that it would.
Christine Hogan then drew attention to amendments considered by the ABA that included certain safeguards, among those being a requirement that the lawyer had "knowingly" committed the misconduct and that the conduct was considered prejudicial to the administration of justice. With respect to the latter, she said a rule that does not incorporate the standard concerning prejudicial to the administration of justice may be vulnerable to constitutional challenge on vagueness grounds.
Randy Lee observed that language requiring a showing of prejudice to the administration of justice would likely be a mistake. His understanding of the report of the Commission on Gender Fairness in the courts was that gender bias is, in itself, prejudicial to the administration of justice. Consequently, he said the amendments should not put forward a concept that some kinds of gender bias may not be prejudicial.
IT WAS MOVED BY CHRISTINE HOGAN AND SECONDED BY MIKE WAGNER THAT THE PROPOSED AMENDMENTS TO RULE 8.4 BE MODIFIED TO INSERT "WHEN SUCH ACTIONS ARE PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE" AT THE END OF THE PROPOSED SECTION (d).
Judge Erickson cautioned that such an amendment would in essence swallow the rule. He said the result would likely be that in every complaint proceeding, the focus of argument would be on whether the conduct affected the outcome of the case or proceeding. If it did not affect the outcome, he said, then the conduct will be considered de minimis. But, he said, the conduct will not have been de minimis because the process will have been marred, people will have been demeaned or treated unfairly, and an impression will have been left that the system does not work. He said the Commission's report documents the problems to be remedied and, as a consequence, the rule would likely be considered remedial in nature. As such, he said, a court would likely find there was a rational basis for the rule and its application.
The motion was withdrawn with the consent of the second.
Randy Lee inquired whether the language in the Comment concerning the "legitimate advocacy" exception should be included in the black letter rule.
IT WAS MOVED BY RON REICHERT, SECONDED BY RANDY LEE, AND CARRIED THAT THE LEGITIMATE ADVOCACY EXCEPTION BE INCLUDED IN THE PROPOSED BLACK LETTER AMENDMENTS.
IT WAS MOVED BY MARILYN FOSS, SECONDED BY RON REICHERT, AND CARRIED UNANIMOUSLY THAT NO FURTHER AMENDMENTS BE MADE TO THE COMMENT TO RULE 8.4.
Chair Crothers said the revised draft amendments to Rule 8.4 would be considered at the Committee's next meeting.
No further business appearing, the meeting was adjourned at 1:55 p.m.