Gender Fairness Implementation Committee May 9, 2000 Minutes

Gender Fairness Implementation Committee

MINUTES
GENDER FAIRNESS IMPLEMENTATION COMMITTEE
Supreme Court Conference Room
May 9, 2000
Members Present
Justice Mary Muehlen Maring, Chair
Pat Durick
Jim Fitzsimmons
Judge Debbie Kleven
Marcia O'Kelly Members Absent
Judith Howard
Judge Tom Schneider

Chair Maring called the meeting to order at 8:30 a.m. She noted the Committee's decision at its March 16 meeting to tentatively approve the proposed informal complaint procedure for submission to the Supreme Court. That decision, she said, was dependent on the development of additional information concerning the ethical obligation of lawyers and judges to report misconduct and the potential impact of that obligation upon the confidentiality provided in the informal procedure. She then called on staff for a summary of information included in Attachment B (May 3, 2000) - Issues and Options.

Staff said the Rules of Professional Conduct and the Code of Judicial Conduct are clear in establishing a duty to report, although the standards triggering the duty differ. Additionally, he said, literature and reported caselaw provide many examples of lawyers who have been subjected to discipline for failing to report misconduct as required by the rules. It would appear necessary, he said, to address in some manner the duty to report as it relates to lawyer and judge involvement in the informal complaint procedure. He said the Options set out in Attachment B illustrate possible methods of addressing the issue. He noted that Judith Howard, who was unable to attend due to a conflict, indicated her support for Option 2, which would essentially negate the duty to report and recognize the primary importance of the confidentiality provided for in the informal procedure. He said Ms. Howard regarded shielding Committee members from the reporting requirement as ensuring the process is useful. Additionally, she had observed that limiting the confidentiality of the procedure could result in complaints not coming forward or in a complainant feeling betrayed if it was later determined that the substance of the complaint had to be reported.

Jim Fitzsimmons observed that Option 2 appears more consistent with respecting the wishes of the complainant in electing to have the matter addressed through the informal process. Pat Durick agreed and said Option 2 would establish a process similar to peer review.

Justice Maring observed that the discussion accompanying Option 2 suggests it would entail a policy decision and inquired of the nature of that decision. Staff said there is something akin to a policy decision for the Committee in deciding whether the procedure's confidentiality should take precedence over the duty to report. The next policy decision, he said, would be that made by the Supreme Court in determining whether to adopt the proposal as a judicial system approach.

It was moved by Pat Durick, seconded by Judge Kleven, and carried unanimously that the proposed informal procedure be further modified to include language implementing Option 2 and that the procedure, as modified, be submitted to the Supreme Court for consideration.

Chair Maring noted that because the proposed informal procedure would address complaints of biased conduct other than that based on gender, there is some discussion that the entity implementing the procedure should have membership in addition to that of the Implementation Committee. Consequently, she said, there may be additional modifications to the proposal in that area.

There being no further business, the meeting was adjourned at 9:10 a.m.

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Jim Ganje, Staff