JOINT COMMITTEE ON ATTORNEY STANDARDS
Radisson Inn, Bismarck
June 10, 1997
Dan Crothers, Chair
Penny Miller, Clerk of the Supreme Court
Paul Jacobson, Assistant Disciplinary Counsel
Chair Crothers called the meeting to order at 9:30 a.m. and drew Committee members' attention to Attachment 2 (June 3, 1997) - Minutes of the March 21, 1997, meeting.
IT WAS MOVED BY RANDY LEE, SECONDED BY JUDGE ERICKSON, AND CARRIED UNANIMOUSLY, THAT THE MINUTES BE APPROVED AS MAILED.
Lawyer Discipline Rule Amendments
Rule 4.5 - Draft Amendments
At the request of Chair Crothers, staff summarized Attachment 3 (June 3, 1997) - Draft amendments to Rule 4.5 regarding reinstatement.
Mike Wagner suggested including in the draft amendments to Section F a reference to service in accord with Rule 4, NDRCivP, to cover service on the complainant where the complainant's whereabouts may be unknown. Marilyn Foss agreed a different method of service should be identified in Section F.
IT WAS MOVED BY MARILYN FOSS, SECONDED BY KAREN BRAATEN, AND CARRIED UNANIMOUSLY THAT "SERVED ON" IN THE SECTION F AMENDMENTS BE REPLACED WITH "MAILED TO THE LAST KNOWN ADDRESS OF".
Marilyn Foss asked whether the current character and fitness investigation makes a judgment on the conduct for which the petitioning lawyer was disbarred. Penny Miller responded that the recently received reinstatement petition is the first one ever considered. Consequently, the parameters of the investigation are uncertain.
Randy Lee said if the investigation follows the typical pattern, then it will consider everything pertaining to the lawyer's conduct. He noted that Admission to Practice Rule 1A(2) sets out guidelines for assessing conduct and its context. He said in Rule 4.5 reinstatement situations only conduct occurring at least five years previous would be at issue. And, one of the factors to be considered by the Bar Board, he said, is how long ago the conduct occurred. Consequently, he said the Bar Board may consider the conduct for which the petitioning lawyer was disbarred, but may, perhaps, consider it in the context of how long ago the conduct occurred and whether the intervening time has passed without further incident.
With respect to draft amendments in Section F regarding publication in major regional newspapers, Karen Braaten said the language does not identify what exactly are "major regional" newspapers. Randy Lee suggested publication in all daily newspapers and any other newspaper in the county in which the lawyer maintained an office to practice law, i.e., newspapers identified in Rule 6.2B.
IT WAS MOVED BY RANDY LEE, SECONDED BY MIKE WAGNER, AND CARRIED THAT THE SECTION F AMENDMENTS BE FURTHER MODIFIED AS DESCRIBED.
Dave Bossart asked whether the complainant has standing to object to reinstatement and, if so, what information the complainant has access to. Dan Crothers responded that the complainant would likely have to rely on representation through disciplinary counsel or by appearing in person before the Bar Board. With respect to available information, he said the complainant would likely have access to the public file regarding the matter, but probably nothing more.
With respect to the draft amendments in the concluding paragraph of Section F, Karen Braaten said the addition of "report" in the second line of the paragraph may imply that the board must develop a report of its own in addition to its findings and recommendations. Currently, she said, the board's report consists of the findings and recommendations.
IT WAS MOVED BY KAREN BRAATEN, SECONDED BY CHRISTINE HOGAN, AND CARRIED UNANIMOUSLY THAT THE SECTION F AMENDMENTS BE FURTHER MODIFIED BY INSERTING "CONTAINING" AFTER "REPORT" IN THE SECOND SENTENCE OF THE CONCLUDING PARAGRAPH OF SECTION F.
With respect to the Section F amendments regarding publishing notice in newspapers, Connie Sprynczynatyk inquired what would be the purpose of such a public notice. Karen Braaten observed that the notice probably is not all that helpful without more specifics concerning the opportunity or mechanism for public comment.
IT WAS MOVED BY CONNIE SPRYNCZYNATYK, SECONDED BY MARILYN FOSS, AND CARRIED THAT THE SECTION F AMENDMENTS BE FURTHER MODIFIED TO INCLUDE AN INVITATION FOR COMMENTS IN THE PUBLISHED NOTICE.
Judge Erickson suggested placing a notice form in the rule itself. Following further discussion concerning contents of the notice, Chair Crothers requested that Committee members submit any suggestions concerning notice formats to staff. He said the draft amendments to Rule 4.5, as modified, would be held over for further review.
Rule 3.1D(8) - Draft Amendments
At the request of Chair Crothers, staff summarized Attachment 4 (June 3, 1997) - Draft amendments to Rule 3.1D(8) regarding availability of the investigator's report and specific reasons for inquiry committee decisions. He said the draft amendments present in more formal fashion the amendments previously submitted by Jim Hill.
IT WAS MOVED BY MARILYN FOSS THAT THE DRAFT AMENDMENTS NOT BE ADOPTED. THE MOTION DIED FOR LACK OF A SECOND.
IT WAS MOVED BY KAREN BRAATEN AND SECONDED BY CHRISTINE HOGAN THAT THE DRAFT AMENDMENTS BE ADOPTED.
Marilyn Foss said the changes would make the process at the inquiry committee level more difficult and may unnecessarily increase points that may be challenged. She said the proposal will create more problems than it solves.
In response to a question from Dave Bossart, Paul Jacobson said the proposed change, if adopted, would require that the complainant and lawyer receive all the opinions, discussions, and assessments offered by the investigator. That, he said, may lead to an unwillingness of the investigator to discuss issues candidly in the report.
Randy Lee recalled the Disciplinary Board Review Committee Memorandum, reviewed by the Committee at its December, 1996, meeting. He said paragraph 5 of that memorandum suggested rethinking the current Board position regarding not releasing the investigative report. He asked whether the Disciplinary Board had acted on this issue. Paul Jacobson said the Board had not.
Randy Lee observed and others agreed that the investigator's report should, out of fairness, be provided to the lawyer and complainant. Christine Hogan recalled the apparent agreement at the previous Committee meeting concerning the worth of requiring specific reasons for the inquiry committee's decision and making the report available. She emphasized that the approach suggested in the amendments would provide procedural elements to ensure that the system operates fairly for all participants.
Judge Erickson observed that the inquiry committee process is roughly approximate to the preliminary hearing stage in the criminal process. Consequently, he said, the standard of proof is relatively low and the inquiry committee should be concerned with making findings only with regard to probable cause. Marilyn Foss said it is precisely because the standard of proof is so low that she finds troublesome a requirement for increased detail or "specifics" in the inquiry committee report.
Dan Crothers suggested keeping in mind two different scenarios that exist. In the one, he said, the inquiry committee finding of probable cause that misconduct has occurred sets the stage for formal charges. In the other, he said, the inquiry committee may impose informal discipline, which may be appealed by the lawyer to the Disciplinary Board. The standard of proof for imposing discipline, he said, is that the evidence be clear and convincing, a higher standard than that normally applied in finding probable cause that misconduct occurred. Consequently, he said, the two circumstances may give rise to different considerations regarding the availability of the investigator's report or providing specific reasons for an inquiry committee decision. For example, he said, if a lawyer appeals an admonition imposed by an inquiry committee, it may be advisable to provide the lawyer with the information relied on by the committee in making its decision. However, he said, at the point where the inquiry committee is a screening devise, i.e., determining probable cause to go forward, and where the supreme court has said only minimal due process need be provided, it is worth considering whether it is beneficial to open the investigator's files completely.
Sandi Tabor said another facet of the issue concerns complaints heard during recently legislative hearings that the public has no idea why a particular decision was made, whether regarding dismissal of a complaint or imposition of an admonition.
Dave Bossart said the issue is one of balancing the competing interests. The key, he said, is accountability. He said those involved in the disciplinary process should be held more accountable and the proposed amendments may aid in that regard.
Marilyn Foss said her objections are that on the one hand making the investigator's report available will likely result in narrower, less useful reports, and on the other that requiring "specific" reasons for inquiry committee decisions will, because its meaning and scope is unclear, result in nothing noteworthy except increasing the burden on inquiry committees.
IT WAS MOVED BY MARILYN FOSS, SECONDED BY KAREN BRAATEN, AND CARRIED THAT THE MOTION TO ADOPT BE AMENDED TO DELETE THE REQUIREMENT FOR "SPECIFIC" REASONS FROM THE DRAFT AMENDMENTS.
IT WAS MOVED BY KAREN BRAATEN, SECONDED BY RANDY LEE, AND CARRIED UNANIMOUSLY THAT THE MOTION TO ADOPT THE DRAFT AMENDMENTS BE FURTHER AMENDED TO INCLUDE AVAILABILITY OF THE INVESTIGATOR'S REPORT UPON AN APPEAL.
Paul Jacobson said that most appeals from inquiry committee decisions are by complainants. He cautioned that providing the investigator's report on an appeal may result in the complainant having a report that provides opinions of the investigator, which may not necessarily reflect the reasoning of the inquiry committee in arriving at a disposition.
Chair Crothers called for Committee action on the motion to adopt the draft amendments.
In response to a question, Chair Crothers said Mike Thomas, Inquiry Committee East Chair, had objected to the requirement of "specific" reasons for inquiry committee decisions. He said the concern was that it may result in inquiry committee chairs drafting lengthy findings and conclusions, which would only add greater burdens to a role that is already time consuming for volunteers. He said Mike Thomas also expressed concern for the loss of candor that may result if the investigator's report were required to be made available.
THE MOTION, AS AMENDED, CARRIED. (Marilyn Foss - No.)
Rule 3.1E - Draft Amendments
At the request of Chair Crothers, staff summarized Attachment 5 (June 3, 1997) - Draft amendments concerning the initiation of formal proceedings. Staff said the amendments are aimed at clarifying when formal proceedings must be started and would require that a formal petition be filed within 90 days of a probable cause determination.
Karen Braaten wondered when the "determination" of probable cause is made by the inquiry committee - is it at a particular meeting or is it when the minutes are prepared or filed? Judge Erickson observed that a "determination" is always subject to review and revision until something is signed and filed in writing. For example, he said, a judge's decision in open court is not final and appealable until an order is signed. Similarly, he said, a vote or "determination" on probable cause by an inquiry committee is not final until someone, the inquiry committee chair, signs the document setting out that determination.
Karen Braaten stressed the need for clarity about when actions occur so that it is clear when time requirements must be met. Christine Hogan noted that attempts to set specific time standards have often been met with various objections that the particular timeframe will not work. Nevertheless, she said, the need for clarity and precision in timeframes and procedures is apparent. Dan Crothers wondered whether the 90 day standard has ever been a problem. He emphasized the need to review timelines for the entire process, rather than focus on a time requirement at a specific point in the process, which may complicate the system's operation. For example, he said, his understanding is that the formal process begins when inquiry committee minutes are filed with the Board's secretary. He said if formal proceedings must be started within 90 days of a probable cause determination, that likely means the inquiry committee must complete and file its minutes within 90 days and disciplinary counsel must initiate the formal petition within the same 90 day period.
Karen Braaten suggested that language similar to that used in draft amendments to Rule 3.1D(8), i.e., upon "referral", should be used in Rule 3.1E(1). Then, she said, the time within which formal proceedings must be commenced would begin at the point the matter is referred to the Disciplinary Board, rather than at the point a determination is made by the inquiry committee. Wally Goulet suggested 60 days rather than 90 days as a more appropriate timeframe.
IT WAS MOVED BY KAREN BRAATEN, SECONDED BY MARILYN FOSS, AND CARRIED UNANIMOUSLY THAT THE DRAFT AMENDMENTS TO RULE 3.1E(1) BE REVISED AS DESCRIBED.
IT WAS MOVED BY BEN HAHN, SECONDED BY DAVE BOSSART, AND FAILED THAT THE DRAFT AMENDMENTS BE REVISED AND HELD FOR CONSIDERATION AT THE NEXT MEETING.
IT WAS MOVED BY CHRISTINE HOGAN, SECONDED BY KAREN BRAATEN, AND CARRIED THAT THE DRAFT AMENDMENTS, AS MODIFIED, BE ADOPTED. (Ben Hahn - No.)
Rule 3.1D(5) - Instituting Formal Proceedings
At the request of Chair Crothers, staff summarized amendments regarding Rule 3.1D(5) considered at the March, 1997, meeting. Staff said the amendments, proposed by Jim Hill, would require that within 60 days of initiation of the disciplinary process the investigator must file a report. The present rule, he said, requires filing the report within 60 days of assignment of the complaint for investigation. Chair Crothers said the underlying question has been, and continues to be, whether it is possible to construct a clear timeline that defines how and when a complaint moves through the system. He suggested this discussion topic be held over pending contact with inquiry committee chairs about this matter generally and about the associated issue, previously discussed, regarding notice practice with respect to granting extensions.
Appeals of Board Decisions - How and By Whom
Chair Crothers said this issue was held over for discussion from the last meeting.
Staff noted the concluding language in Rule 3.1D(8), which is not entirely clear regarding the method of appealing a Board decision. For example, he said, there is a lack of clarity regarding whether a complainant may appeal that decision. He said the specific issue of whether a complainant may appeal the Board's dismissal of a complaint was raised at the recent legislative hearings.
Sandi Tabor noted the language regarding the complainant needing to show that the Board acted arbitrarily, capriciously, or unreasonably in order to be granted leave to appeal a Board decision is unclear as to meaning and application.
Paul Jacobson said that in the Toth case recently decided by the supreme court, the court explained that the language requires the lawyer to show that the Board acted arbitrarily, capriciously, or unreasonably in reaching its decision. Then, he said, the burden shifts to disciplinary counsel to show that clear and convincing evidence supports the Board's decision.
IT WAS MOVED BY MARILYN FOSS, SECONDED FRAN GRONBERG, AND CARRIED UNANIMOUSLY THAT THE DRAFT AMENDMENTS TO RULE 3.1D(8) BE FURTHER MODIFIED TO REPLACE "COMPLAINANT" IN THE NEXT TO THE LAST LINE WITH "PERSON SEEKING LEAVE TO APPEAL".
Disciplinary System Operation - Recent Legislative Action
Sandi Tabor summarized recent legislative action resulting in the imposition of a mandatory disciplinary fee to fund the disciplinary system. She said in light of the extensive debate during the legislative session concerning the efficacy of the disciplinary process, the board of governors and the supreme court have expressed the desire to have the disciplinary system's operation reviewed and evaluated. The suggestion, she said, is for the entire system to be studied and a determination made concerning whether there are any changes that can be made to ensure cost-efficient operation. She emphasized that there are no pre-ordained conclusions that such changes are possible. She said the aim is to undertake a review that may identify different operational methods that may also have the benefit of being more cost-efficient. She suggested as an initial starting point that the Committee may wish to review information concerning the operation of the current system and also review the procedures of disciplinary systems in other states to determine whether there are possible alternatives to consider.
Dave Bossart suggested that the Committee review information regarding the fiscal operation of the current system.
Christine Hogan emphasized that any alternatives, from whatever source, that are being considered should be presented to the Committee.
Sandi Tabor said the Jackson Hole group had encouraged the Committee to enlist the chairs of the Disciplinary Board and inquiry committees to participate in the Committee's review as special advisors.
Chair Crothers requested that staff assemble information regarding the procedural and fiscal operation of the current disciplinary system and assemble like information with respect to disciplinary systems in other states. He said the information would be reviewed at the September meeting. He also requested that Committee members consider whether there are any possible, fundamental alternatives to the present system that can be considered.
Model Rule 1.14 - Rules of Professional Conduct
Chair Crothers drew attention to Attachment 6 (June 3, 1997) - ABA amendments to the Comment to Rule 1.14, Model Rules of Professional Conduct.
Randy Lee said the ABA adoption of changes to the Comment language was not without objection. He said there is a problem to be solved, but the amendment did a poor job solving it. He distributed his letter to Chair Crothers, with attachments, regarding this issue. See Appendix A.
IT WAS MOVED BY JUDGE ERICKSON, SECONDED BY DAVE BOSSART, AND CARRIED UNANIMOUSLY THAT THE COMMITTEE REVIEW THE PROPOSED CHANGES REGARDING RULE 1.14 AND THE INFORMATION SUBMITTED BY RANDY LEE.
Randy Lee distributed the following information, attached as Appendix B, for future consideration by the Committee:
- Commission on Gender Fairness in the Courts recommendation regarding amendments to the Rules of Professional Conduct to prohibit gender-biased conduct in the courtroom.
- Information regarding ABA project to completely review the Model Rules of Professional Conduct.
No further business appearing, the meeting was adjourned at 12:00 noon.