Joint Committee on Attorney Standards
December 10, 2010
Judge Michael Sturdevant
Petra Mandigo Hulm Jean Hannig
Justice Dale Sandstrom
Chair Sturdevant called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (December 3, 2010) - minutes of the September 10, 2010, meeting.
It was moved by Jean Hannig, seconded by Petra Mandigo Hulm, and carried that the minutes be approved.
Responsibilities of a Prosecutor - Amendments to Rule 3.8 - Cont'd Review
At the request of Chair Sturdevant, staff provided background information regarding issues raised at the September meeting: application of Rule 3.8 to juvenile proceedings and the adoption in other jurisdictions of new paragraphs (g) and (h), which are now included in the ABA Model Rule. Staff said research did not disclose any ethics opinions or reported caselaw regarding application of Rule 3.8 in the context of juvenile proceedings. He noted that Rule 3.8, in the opening clause indicates that the rule is concerned with a prosecutor's activities in a "criminal case". He said Maine appears to be the only jurisdiction to date that has amended Rule 3.8 to extend the rule's application beyond criminal cases. He said Maine's rule applies also to juvenile and civil cases initiated by a prosecutor. He noted that Maine's Rule 3.8 differs in other areas from the Model Rule.
With respect to adoption or consideration in other jurisdictions of Model Rule paragraphs (g) and (h),staff said the ABA's Center for Professional Responsibility, through its Implementation Committee, tracks actions regarding ABA Model Rules. He said the Implementation Committee's summary of activities regarding paragraphs (g) and (h) indicates that of the approximately 42 jurisdictions that have reviewed the model rule five have adopted paragraphs (g) and (h) in some form. Some, he said, adopted the provisions nearly verbatim while others modified them to greater or lesser degree. He said some of the remaining thirty-seven jurisdictions have rejected adoption of the model rule provisions. It is unclear, he said, with respect to some of the jurisdictions whether the review process has been fully completed.
With respect to comments from the criminal defense bar regarding draft paragraph ( c), Chair Sturdevant noted that comments had been requested from the ND Association of Criminal Defense Lawyers, the Indigent Defense Commission, and Legal Services of North Dakota. He noted that initial comments were reviewed at the Committee's September meeting. He said a request was then made for specific amending language from those who provided comments to address their concerns about draft paragraph ( c). He said the comment from Jim Fitzsimmons, Legal Services of North Dakota, included as Attachment D (December 3, 2010) reiterates the earlier comment that the rule should not be extended to apply to juvenile proceedings. He noted that a letter from Michael Hoffman, President of the ND Association of Criminal Defense Lawyers, which was distributed by email, indicates the Association's last scheduled board meeting was cancelled and as a result the board was unable to consider any suggested amendments to the draft rule. He said Mr. Hoffman requested that the Committee allow the Association the opportunity to submit a proposal at the next Committee meeting.
Following contact with Mark Friese, a board member, Jason Vendsel said the Association board does not have a meeting scheduled at this point but will make one a priority if the Committee will defer consideration of the amendments until the Committee's March 4 meeting.
Dann Greenwood noted the Committee's initial discussion of the Association's comments regarding paragraph ( c) and the sense that there is a substantial difference in the Association's objectives and the purpose of paragraph ( c) as recommended by the state's attorneys. He said paragraph ( c), as amended in the draft, would identify exceptions to what is now a general prohibition against a prosecutor obtaining a waiver of rights from an unrepresented defendant. The Association's comments, he said, suggest numerous changes that, if taken seriously, call into question the worth of any amendments to paragraph ( c).
Jason Vendsel said the Committee has reviewed at length comments submitted by the state's attorneys and he would prefer to review the Association's proposed revisions before taking action on the final rule amendments.
Following further discussion, there was consensus agreement to defer consideration of the rule amendments until the March 4 meeting.
With respect to the comments submitted by Jim Fitzsimmons regarding juvenile proceedings, Judge Sturdevant said the concern could most easily be met by deleting the reference to "juvenile petition" from draft paragraph ( c)(1).
Jason Vendsel noted that there are differences between formal and informal proceedings in juvenile court which may have a bearing on whether the rule should apply to prosecutor conduct in juvenile proceedings. He said the state's attorneys' concerns may be with respect to any contact a prosecutor may have with a juvenile or the juvenile's parents during an informal proceeding.
Judge Sturdevant asked whether the reference to "juvenile petition" in draft paragraph ( c)(1) should be changed to "informal juvenile proceedings" or a similar phrase.
Staff noted the rule's opening phrase, which refers to "a criminal case" and the opening language of paragraph ( c) (1) regarding a unrepresented person being "charged with" a particular offense. He said there is a disconnect between the rule's general criminal context and a reference to juvenile proceedings, and with respect to the reference to "charged with" since in the informal context a "charge" may not be involved. As a result, he said, other changes to rule language may be necessary.
Following further discussion, it was moved by Jason Vendsel and seconded for discussion by Dan Ulmer that the reference to "juvenile petition" be deleted from paragraph ( c)(1).
Dan Ulmer said his previous experience with the Police Youth Bureau was that a prosecutor was not often involved in an informal process. Jason Vendsel noted that in the Northwest the practice is uneven but it is not unusual for a prosecutor to participate if juvenile court personnel conclude there are uncertain legal issues involved.
Dann Greenwood wondered whether comment language should make clear that the rule does not apply to juvenile proceedings. Bill Neumann observed juvenile proceedings are not criminal in nature and, as a consequence, the rule's opening reference to "criminal case" should make clear that juvenile proceedings are not included.
Following further discussion, the motion carried.
Expungement of Dismissed Disciplinary Complaints
Jason Vendsel summarized a situation, outlined in Attachment E (December 3, 2010), in which a self-represented litigant filed disciplinary complaints against all members of his law firm and the firm's business manager. He said the complaints had been summarily dismissed by the Inquiry Committee but there was concern about accessibility to the information and a question concerning whether the dismissed complaint information could be expunged. He noted that current Rule 6.1C of the Rules for Lawyer Discipline provides that all records regarding a dismissed complaint must generally be destroyed three years after dismissal. Nevertheless, he said when he requested information concerning his disciplinary record, the information indicated the records are noted as "expunged". As an initial issue, he suggested that record information should be expunged earlier than three years, perhaps one year, after dismissal. Additionally, he said, the normal understanding of "expunged" is that all information pertaining to a record is destroyed so that there is no indication the record ever existed. He said a notation that a record has been "expunged" defeats that objective since it clearly discloses to those with access to the information that a record once existed. He said some, such as his insurance company, would likely be interested in what that record might be.
Petra Mandigo Hulm observed that the record information could not be disclosed to the insurance company unless the attorney authorized disclosure. Jason Vendsel responded that insurance applications normally provide no option other than to disclose existence of the pertinent record. Additionally, he said if an attorney were to apply for admission to the bar of another jurisdiction, the information would likely have to be disclosed, with failure to disclose being a basis for denying admission.
In response to a question from Jason Vendsel regarding the purpose for retaining dismissed complaint information, Dan Ulmer said, as a former Disciplinary Board and Inquiry Committee member, that the information assists the Board and Committees in disposing of future complaints.
Jason Vendsel said it is problematic that record information concerning dismissed complaints could serve some purpose in determining whether a subsequent complaint should be pursued. Dan Ulmer said the concern is understandable and wondered whether the record information could be retained in some more limited fashion.
Petra Mandigo Hulm said Penny Miller, Secretary for the Disciplinary Board, indicated simple docket entries are all the record information that is retained after three years with respect to dismissed complaints. In response to a question from Jason Vendsel regarding why docket entries are retained, Ms. Hulm said it may be that there is no simple way of deleting the information from the system.
In response to a question from Chair Sturdevant regarding how to proceed, Jason Vendsel said he would work on a proposal for the Committee's review which would likely limit enhanced expungement to summary dismissals and use a one-year time frame. Justice Sandstrom suggested contact with Disciplinary Counsel for a review of how the expungement process might work. Dan Ulmer said it may be helpful to consider how to retain Inquiry Committee confidentiality but allow access to information if there are repeated complaints about the same attorney and a subsequent complaint arises above the inquiry committee level.
Lawyer Mentoring Programs
Chair Sturdevant next drew attention to Attachment G (December 3, 2010) - information regarding a Georgia State Bar lawyer mentoring program which had been referred by the Chief Justice to the Committee for review. He said the program appears to be part of a general Continuing Legal Education requirement for new lawyers and is intended to provide access to an experienced lawyer for practical skills advice and other guidance. He said it is somewhat unclear whether the Committee would be the starting point for a recommendation regarding establishment of such a program.
Bill Neumann said there is increasing interest in mentoring programs and programs of various kinds have been established in a number of states, generally by bar associations. How the program is structured, he said, depends largely on the complexity of the objectives and services provided through the program. He suggested consideration of establishing such a program would likely involve discussions with the Board of Law Examiners and the CLE Commission particularly since amendments to the Commission's rules would probably be necessary.
Petra Mandigo Hulm said that as a matter of practicality the project may not be one for the Committee unless consideration is given to making participation a mandatory requirement. She said the project may be better pursued directly by the bar association.
Bill Neumann said while the referral pertains to the Georgia program it may be useful to review other programs to determine whether a different approach may be workable.
Dann Greenwood said more difficult issues may be developing criteria for those approved as mentor attorneys and then determining whether there are attorneys available to serve in that capacity.
Judge Sturdevant said he would review additional information concerning mentor programs and report to the Committee.
There being no further discussion the meeting was adjourned at 11:10 a.m.