MINUTES Chair Maring called the meeting to order at 9:00 a.m. and drew Committee members' attention to Attachment B (March 9, 2000) - Minutes of the November 29, 1999, meeting. It was moved by Jim Fitzsimmons, seconded by Marcia O'Kelly, and carried unanimously that the minutes be approved. Informal Complaint Procedure - Revised Draft At the request of Chair Maring, staff reviewed Attachment C (March 9, 2000) - the revised informal complaint procedure. Staff said the revisions resulting from the Committee's last review of the procedure are indicated by underscore for additions and Justice Maring drew attention to the Implementation Resources Directory developed by The Gender Fairness Strategies Project, one part of which is a listing of informal complaint procedures adopted in other jurisdictions (previously distributed as an Appendix to the January 29, 1999, meeting minutes [Attachment B (6/2/99)]. Specifically, she said, the California rule described in that material sets out certain minimum components for a complaint procedure. She suggested the revised procedure be reviewed in light of those minimum components. A copy of the California rule provisions is attached as Appendix A. She noted that the first component suggests the procedure should contain a statement that the intent of the procedure is to educate rather than discipline the person who is the subject of the complaint. She said adding such a provision might assist in promoting the purposes of the procedure. After discussion, Committee members agreed that "and educational" should be inserted on page 1, line 1, after "non-confrontational". Justice Maring noted that the revised procedure refers generally to "the person complained against", while the California components refer to "the person who is the subject of the complaint", which seems to be a less adversarial approach. She suggested, and Committee members agreed, the latter expression should be used in the revised procedure. She said another component from the California rule suggests a procedure should focus on incidents that do not warrant discipline but that should be corrected. The revised procedure, she said, does not contain language identifying such a focus and in not doing so may imply that the procedure is available even for those instances of conduct that might clearly warrant discipline. Marcia O'Kelly wondered whether the last part of the introductory paragraph indirectly addresses the question by noting the procedure is intended to resolve issues before they rise to the level of a formal disciplinary complaint. Justice Maring noted that if the informal procedure becomes the preferred mechanism for addressing questionable conduct, then the general public education of lawyers and judges which comes from reported, formal discipline cases might be lost. Jim Fitzsimmons inquired how the Committee, in implementing the informal procedure, would effectively screen complaints that could possibly involve conduct that might warrant discipline. After discussion, Committee members agreed the issue could be addressed in the future if trends in the types of complaints received indicate further action is necessary. Justice Maring drew attention to a component in the California procedure which permits collection of data on types of complaints or anecdotes that might be useful in educational programs. She noted that the revised procedure, in section 7, simply provides that the Committee shall not retain any records regarding complaints. Committee members agreed language similar to the California component should be included in section 7 of the revised procedure. Jim Fitzsimmons recalled earlier discussion concerning the possible ethical obligation of a lawyer or judge member of the Committee to report ethical violations that are disclosed as part of the informal complaint procedure. He emphasized that confidentiality under the procedure should be certain and that if there is a duty to report misconduct, then that confidentiality will be compromised. He said it is important that those who seek to use the informal procedure are assured that information they disclose will not at some future time be revealed as part of a formal disciplinary process. Committee members agreed the impact of the duty to report misconduct on the confidentiality of the informal procedure should be considered. It was agreed the informal procedure could be approved for submission to the Supreme Court pending development by staff of information regarding the scope of the duty to report. Chair Maring said a short conference call would be scheduled if the information indicates that further changes to the procedure might be required. It was moved by Judge Kleven, seconded by Marcia O'Kelly, and carried unanimously that the revised informal procedure, as further modified, be approved for submission to the Supreme Court pending development of any additional information concerning the duty to report. Education Update Chair Maring next provided an update concerning an educational program regarding sex offender issues which is scheduled for the October 2000 Bench & Bar Seminar. She said plans are underway for a program on stranger and non-stranger sexual assault issues which will touch on psychological profiles of sexual offenders and substantive law areas such as evidence and procedure. She said there are also plans to have panels consisting of prosecutors, defense attorneys, and judges discussing issues in this area. Written Computations in Determining Child Support Chair Maring drew attention to Recommendation C3 in the Committee's October 1999 Progress Report, which is included as Appendix B to the November 29, 1999, meeting minutes. The recommendation discusses the need for a written computation of child support in domestic cases. She asked that staff provide an update of information gathered with respect to this recommendation. Staff said a brief survey of judges was conducted with the assistance of district administrative staff to determine whether local procedures are in place which require lawyers to provide a written computation of child support. He said practices vary among the judicial districts, ranging from no procedure to informal understandings to notice to lawyers that written computations are required. For example, he said, two judges in the Northwest judicial district notified area lawyers that in stipulated divorce cases written child support computations must be provided as an affidavit of proof. He said most responses indicated that lawyers are fairly routinely providing written computations during the proceeding. He noted that the Department of Human Services has developed several forms to be used to compute child support amounts and lawyers in some areas are using the forms to provide that information to the court. He said the department has provided an educational program to lawyers on the use of the forms and a similar program was provided to judges at the November 1999 Judicial Conference. He noted that, notwithstanding the apparent general practice of providing or obtaining written computations, a procedure or requirement has not been formally adopted in any judicial district. Committee Objectives Chair Maring noted that, aside from recommendations pertaining to possible education programs, the Committee has addressed most of the recommendations identified in the Final Report of the Commission on Gender Fairness in the Courts. However, she said, there may be other issues related to bias in the courts that may require attention and discussion. She said one area of activity in other jurisdictions has been law firm self-evaluations. The evaluation, she said, consists of a review of the internal law firm operations and practices that may reflect bias based on gender or other factors. She said the Minnesota Bar Association recently instituted a law firm self audit on gender equity issues. A copy of the most recent self audit survey report is attached as Appendix B. She said consideration of a similar initiative or of other bias-related matters may be possible areas of discussion. She said the initial question is whether the Committee should, where appropriate, move beyond the Commission' final recommendations. An amendment to the order governing the committee, she said, would likely be necessary to allow the Committee to consider additional issues. Marcia O'Kelly observed that unless the Committee considers some of these issues, they likely will not be reviewed. Jim Fitzsimmons agreed that law firm practices should be reviewed in some manner. He suggested the issue could possibly be raised with new bar leadership to be selected at the bar's annual meeting in June. He said the Committee could perhaps serve as a catalyst for discussion in this area. It was moved by Jim Fitzsimmons, seconded by Marcia O'Kelly, and carried unanimously that the Committee submit to the Supreme Court proposed amendments to Administrative Order 7 which would permit the Committee to consider bias-related issues not identified in the Commission's Final Report. Chair Maring said Committee members would be notified as promptly as possible if a conference call is necessary to consider additional changes to the proposed informal complaint procedure. There being no further business, the meeting was adjourned at 11:05 a.m. ______________________________
March 16, 2000 Members Present
Justice Mary Muehlen Maring, Chair
Jim Fitzsimmons
Judge Debbie Kleven
Marcia O'KellyMembers Absent
Pat Durick
Judith Howard
Judge Tom Schneideroverstrike for deletions. Particularly, he said, the revisions clarify the procedure's application to lawyers and judicial officers and judicial system employees and provide a new section 3 governing disclosure of identities.
Jim Ganje, Staff