Joint Committee on Attorney Standards June 12, 2007, Minutes

Joint Committee on Attorney Standards

Minutes
Alerus Center, Grand Forks June 10, 2008

Members Present Sandi Tabor, Chair Jean Hannig Carol Johnson Dianna Kindseth Petra Hedvig Mandigo Ryn Pitts Tim Priebe Justice Dale Sandstrom Judge Michael Sturdevant Pat Ward	Members Absent Clare Carlson Mark Hanson Dan Ulmer
Staff Jim Ganje Bill Neumann Others Present Penny Miller, Secretary-Treasurer, Board of Law Examiners

Chair Tabor called the meeting to order at 9:30 a.m. and drew Committee members' attention to Attachment B (March 7, 2008) - minutes of the November 30, 2007, meeting.

It was moved by Jean Hannig, seconded by Judge Sturdevant, and carried that the minutes be approved.

Chair Tabor then referred Committee members to the material distributed for the cancelled March 14 meeting, particularly the revised draft rule concerning pro bono services by qualified, retired, or otherwise inactive lawyers [Attachment C (March 7, 2008)] and background information regarding consideration of professional aspirations for lawyers (Attachment D, March 7, 2008).
Pro Bono Legal Services by Qualified, Retired, or Otherwise Inactive Lawyers

Staff briefly reviewed revisions to the draft rule previously developed by Mark Hanson, Jean Hannig, and Bob Udland. The main revisions, he said, are based on the Committee's discussion at the November 30, 2007, meeting, while additional revisions (indicated by shaded language) represent essentially style and technical changes with no substantive change intended.

Sandi Tabor drew attention to page 2, lines 4-5 and the suggestion that the reference in the draft to "volunteer lawyer program" be changed to avoid confusion with the SBAND Volunteer Lawyer Program. She suggested the reference be changed to "program established under this rule". Committee members agreed. She next drew attention to page 5, line 22, and the bracketed options of [withdrawn] and [rescinded]. She said the alternative references are intended to describe the status of a lawyer's authorization to practice law under the rule if the volunteer organization notifies the Board of Law Examiners that the lawyer is no longer supervised by the organization. Jean Hannig suggested "rescinded" would be the more accurate description. Committee members agreed.

Chair Tabor requested any further comments regarding the revisions to the draft rule.

Penny Miller noted Section C, beginning on page 3, which describes the submission of an application to the Board of Law Examiners. She asked whether it is intended that the Board only receive the application and related documents without any additional required action. Committee members agreed the rule envisions only submission to the Board and does not contemplate any further formal action by the Board in response to the application.

It was moved by Jean Hannig, seconded by Bob Udland, and carried that the revised draft rule, as further modified, be approved for submission to the Board of Governors for comment and, in the absence of any Board issues requiring Committee attention, for submission to the Supreme Court for its consideration.

Professional Aspirations

Chair Tabor next drew Committee members' attention to Attachment D (March 7, 2008), consisting of the Minnesota Professional Aspirations, a memorandum prepared by Carol Johnson's law clerk, a listing of professionalism codes prepared by the ABA, an email from Pat Ward including the Montana Standards and Commandments, and selected professionalism codes (Florida, Utah, Louisiana, Hawaii'i, Georgia, and Delaware). She briefly reviewed the Committee discussion at the November 30, 2007, meeting in response to a presentation by Ron McLean and the resulting conclusion to consider something similar to the Minnesota Professional Aspirations rather than the more complex codes of trial conduct recommended by the American College of Trial Lawyers. She said Carol Johnson and Pat Ward were asked to review background information in preparation for the next discussion of the issue.

Carol Johnson said the website for the ABA's Center for Professional Responsibility provided the listing of professionalism codes included in the material. She said nearly every state has adopted something like professional aspirations or professionalism codes. She said the codes vary in style, with some following a simpler "shall/shall not" approach, while others are lengthier and more complex. She said the Minnesota Professional Aspirations, by comparison with the other codes, seems clearly stated and directed and succinctly provides direction on most important points.
Pat Ward said a review of the various codes underscores the basic premise that simpler is better. He agreed Minnesota's Professional Aspirations are well done and noted that the Montana Standards look to be an even simpler version of the central points.

Sandi Tabor observed that issues concerning professionalism codes have been discussed in the past by the Board of Governors and a recurrent concern is that the codes, or aspirations, not serve as a springboard for, or enhancement of, disciplinary action. She noted that the Minnesota Professional Aspirations emphasizes, as do most of the other codes, that the codes are not to be used for litigation, lawyer discipline, or court sanctions.

In response to a question from Sandi Tabor, Carol Johnson said the Minnesota Professional Aspirations are printed in the rule book every year and Pat Ward noted the Montana Standards are included in the Montana lawyer's deskbook.

Jean Hannig said, whether the end result is called a code, aspirations, or standards, or some other title, it is sensible to provide additional guidance regarding lawyer conduct. She agreed that it should be made very clear that the code should not be used for purposes of discipline.

Ryn Pitts asked why there is hesitancy in linking a professionalism code or aspirations to discipline. Sandi Tabor said part of the challenge and concern is that there already are fairly extensive rules of professional conduct and adding an additional code would simply multiply the number of rules. She noted that when the issue was discussed some time ago there likely was not nearly the number of states in which professionalism codes had been adopted. As a result, she said, there may have been uncertainty, and the related concern, about how the codes would be interpreted and applied and whether they would have an impact on discipline.

Bob Udland said he supports adopting professional aspirations but asked whether they should be adopted by the bar association or by the Supreme Court. He noted that long ago professional conduct rules were separated into aspirational rules and disciplinary rules and adopting professional aspirations seems to be somewhat of a return to that approach.

Sandi Tabor agreed the Minnesota Professional Aspirations are simply stated and well constructed but asked why there would be a cross-reference in Minnesota's Rules of Professional Conduct to the aspirations. She wondered whether an alternative to adopting separate aspirations might be to include aspirational guidance in the comments to the Rules of Professional Conduct.

Penny Miller noted that North Dakota does have something approximating aspirational goals in the Attorney's Oath and Pledge included in the Directory of Lawyers and Judges. Additionally, she said the Preamble and Scope to the Rules of Professional Conduct identify the overarching purposes of the rules and various duties and responsibilities are also set out in state law.

Tim Priebe said it would be worthwhile to proceed with a serious consideration of some kind of professional aspiration mechanism. He agreed the aspirations should not be linked to the discipline rules and should be clearly aspirational in nature.

Petra Mandigo said the bar association would be the more appropriate vehicle to develop and adopt a professionalism code because of the involvement of a much wider audience in the process.
In response to a question from Chair Tabor, Bill Neumann said it would be appropriate for the Joint Committee to proceed with the study, since the matter was referred to it by the Supreme Court, and the Committee could perhaps then recommend adoption of the code to both the Board of Governors and the Supreme Court. He noted that in many states the bar associations are also the discipline authorities. He said it may be interesting to find out whether the states in which the professionalism codes have been adopted are also states in which the association serves as the disciplinary authority.

Judge Sturdevant said a proposed professionalism code may be better received if it comes from the association. Pat Ward wondered whether the Committee should inform the Board of Governors about the issues under consideration and seek the Board's opinion concerning whether the Committee should develop a proposal and submit it to the Board or whether the Board would consider proceeding on its own with a project.

In response to a question from Chair Tabor, there was a consensus among Committee members to proceed in some fashion with development of a professional aspiration proposal. Committee members agreed a short term approach may be to gather the background information and research and submit it to the Board of Governors with a request that the Board consider whether it would prefer to pursue the project through an existing bar committee or specially formed group. If the Board decision is to undertake the project then the request would be that the Committee be included in the discussion. If the Board decision is to not undertake the project, then the Committee would proceed with the review in response to the Supreme Court's referral.

In response to a request from Chair Tabor for formal approval of the consensus position, it was moved by Jean Hannig, seconded and carried that the Committee proceed in the manner discussed.

Dave Petersen said it is unlikely that the Board would decide to proceed with its own study. He said the Committee is a joint committee of the bench and bar, is already formed, and receives direction from both the Supreme Court and the Board of Governors. Chair Tabor said she did not disagree with the assessment but said there is some merit in observations about the general acceptance of the bar membership of a project that comes from within the association.

Carol Johnson agreed to assist in assembling the background information and preparing the submission to the Board of Governors.

Attorney Serving in Dual Status - Personal Representative and Legal Counsel

Committee members then turned to consideration of issues associated with an attorney serving as both personal representative and legal counsel for the same client - Attachment B (May 22, 2008) - a referral from the SBAND Board of Governors.

Bill Neumann explained that the Board of Governors had appointed a task force to study the nature of attorney misappropriations and methods of responding. He said a problem area that was identified in the course of the study concerned attorneys who serve as both legal counsel and personal representative. He noted that some theft cases have arisen in these situations. He said some have suggested a rule should be adopted that would simply provide that such dual representation is unethical. Others, he said, including the General Counsel for AALPS, have suggested that would be an unsatisfactory response, particularly since some clients request that an attorney serve in both capacities. He said a possible alternative may be a rule that establishing some kind of reporting requirement, with a possibility of auditing attorney accounts and records if there is cause for concern. He said that approach is generally described in the Board's referral to the Committee.

Jean Hannig agreed there have been problems in this area. She noted that guardianships and conservatorships are generally court-supervised so there is already some level of court involvement, although the level of supervision varies. She said a conflict of interest likely exists in those situations in which an attorney serves as both personal representative and legal counsel for a client.

Sandi Tabor wondered whether the issue has been addressed in any other jurisdictions. She said there is an issue of what the rules currently do and what could be accomplished additionally, which suggests considerations of resources and costs.

Ryn Pitts asked whether it is possible to assess how often dual representation occurs and whether courts or the lawyer discipline system would have the resources and ability to take on additional accounting responsibilities.

Judge Sturdevant expressed some concern about the self-reporting aspect discussed in the Board's referral letter. He agreed dual representation poses problems but observed that if an attorney is inclined to take on that representation, it is likely the attorney would be reluctant to self-report.

Sandi Tabor said the lawyer discipline system works well and tries hard to address bad conduct. The dilemma, she said, is that the difficulty in determining exactly who is engaged in dual representation greatly complicates the ability of any prophylactic measure to succeed.

Ryn Pitts emphasized that the average citizen trusts professional institutions to have safeguards in place to prevent abuses and the expectation is that those institutions will work to establish those safeguards.

Dave Petersen noted that, with respect to estates, reporting to the court is not required. He said there is an accounting to the heirs but there really is no way, as a practical matter, for the court to become involved.

Bill Neumann reiterated that, while dual representation is not a desirable situation, there are many instances, particularly in rural areas, in which a testator or family wants the attorney to serve in both capacities. In many cases, he said, misappropriation does not occur but the situation is fraught with temptation. He said the Board of Governors is seeking to find some way to deal with what is admittedly a complicated and hard-to-assess problem. He said he hoped the Committee would pursue the study and consider all the possible ways of dealing with the issue.

Tim Priebe said dual representation is a common occurrence in the southwestern part of the state. He said the concern is that if the attorney is the trustee or personal representative and also the attorney, then in most situations there is no legal representation for the heir's beneficiaries. Consequently, he said, unless the beneficiaries obtain separate legal counsel there is no mechanism to advise them regarding court procedures or required reporting. He said he liked the concept of compelling, in some manner, the attorney to disclose the dual status and enabling at least a cursory review to be conducted to determine if any wrong-doing is occurring.

Following further discussion, it was moved by Tim Priebe, seconded by Ryn Pitts, and carried that the Committee proceed with a review of the Board's referral. Judge Sturdevant, Jean Hannig, Dianna Kindseth, and Tim Priebe agreed to serve as a subcommittee to review the issues and report at the next meeting.

Overdrafts of Lawyer Trust Account - Notification

Chair Tabor next drew Committee members' attention to Attachment C (May 22, 2008) - the Supreme Court's referral to the Committee of issues concerning the development of a notification process when overdrafts of a lawyer's trust account occurs.

Penny Miller explained that a recent situation involving reciprocal discipline highlighted problems in the area of lawyer overdrafts and the lack of a notification process. She noted imposition of discipline in Minnesota in a recent case in which a North Dakota attorney was found to have committed several violations of Minnesota rules, including overdrafts on a trust account that was located in North Dakota. She drew attention to the Minnesota rule attached to the referral which requires that a bank in which a trust account is held must notify the Minnesota lawyer disciplinary entity when an overdraft occurs. North Dakota, she said, does not have a similar requirement.

Jean Hannig observed that there are North Dakota lawyers who have trust accounts in Minnesota banks. She said a Minnesota bank that has a branch in North Dakota will report overdrafts to the Minnesota lawyer discipline office even if the lawyer involved is not licensed in Minnesota.

Dianna Kindseth asked if there is any reason why an overdraft would occur other than theft or some other impropriety. Sandi Tabor noted that overdrafts can sometimes occur as a result of clerical errors. Carol Johnson said Inquiry Committee Northeast had dealt with a situation in which an overdraft occurred as a result of clerical error, but the lawyer in that case self-reported the error.

Dave Petersen said one question may be the extent to which banks can be directed to undertake reporting. Sandi Tabor observed that the Minnesota rule provides that an lawyer can only use banks for trust account activity which have agreed to report.

Jean Hannig noted that banks already agree to comply with various IOLTA rule requirements.
Following further discussion, it was moved by Tim Priebe, seconded by Petra Mandigo, and carried that the Committee proceed with review of the issues and rule development. Justice Sandstrom, Petra Mandigo, and Ryn Pitts agreed to serve as a subcommittee and report at the next meeting.

Admission to Practice Rules - Amendments Proposed by Board of Law Examiners

Committee members next considered the Supreme Court's referral of proposed amendments to the Admission to Practice Rules submitted to the Court by the Board of Law Examiners - Attachment D (May 22, 2008) [following page and line references are to the proposed amendments in Attachment D]. At the request of Chair Tabor, Penny Miller reviewed the various proposed amendments, a summary of which is included in the referral, and responded to Committee member questions.

In response to a question from Ryn Pitts concerning the proposed Rule 2 amendment about assessing an applicant's emotional health (page 4, line 109), Penny Miller said the application contains questions concerning any diagnoses related to mental illness and relies on the applicant's self-reporting of relevant information. Sandi Tabor noted that the membership of the Character and Fitness Committee usually includes a psychologist or someone with credentials who can assist in reviewing the application. Penny Miller explained additionally that there may be a further requirement for an independent medical evaluation depending on information disclosed in the application. She noted that some applicants have resisted obtaining an independent medical evaluation, most often for reasons of cost. As a result, she said, the Board has proposed a rule amendment (page 6, lines 156-157) that would make the Board responsible for bearing the cost of the evaluation. Noting that law school graduates are often encumbered by substantial debt, Sandi Tabor complemented the Board for its willingness to take on the evaluation costs.

With respect to the proposed amendment concerning membership of the Character and Fitness Committee, which would remove from the current rule the provision for a listing of nominees from the State Bar Association, Sandi Tabor asked Committee members whether there is any concern about the proposed change. Penny Miller explained that, by state law, the Board of Law Examiners is selected from a list of nominees submitted by the State Bar Association, and the Character and Fitness Committee is appointed by the Board. She said requiring a separate list of nominees for the Committee seemed unnecessary in that light. In response to a question from Dave Petersen concerning how prospective Committee members would be identified under the proposed change, Penny Miller said it is likely contacts would be made with individuals with useful backgrounds or a Web announcement would be published.

In response to a question from Ryn Pitts, Penny Miller further explained the proposed amendment on page 25, line 719, which would remove language providing that the fact of a conditional admission is a public record. She said while the fact of conditional admission is public under the current rule, all other related information is confidential. Consequently, she said, unless someone asks the specific question concerning whether a lawyer is conditionally admitted, that particular information cannot be provided. She said there is a substantial debate on the national level about whether conditional admissions should be private or public. One reason for the reluctance to disclose information, she said, is that conditional admissions may involve treatment issues. Additionally, she said there is concern that making the information public may hinder employment opportunities. She noted that the Board has had very little experience with conditional admissions.

Due to a previous commitment, Pat Ward left the meeting at 11:50 a.m.

Ryn Pitts said providing confidentiality for conditional admission status affects the transparency of the process. Sandi Tabor observed that the public arguably has some right to know of the status and it is somewhat troublesome that the information would be made confidential.

Dave Petersen said the fact that the Board of Law Examiners has agreed to conditionally admit an attorney indicates a conclusion that risk of harm to the public is not significant.

Petra Mandigo observed that informal discipline is not public and a lawyer's involvement in the lawyer assistance program is confidential. She asked whether it is really that inappropriate for the conditional admission status to be confidential. Penny Miller said it is not necessarily inappropriate but said it may be somewhat controversial.

In response to a question from Chair Tabor, there were no further questions from Committee members concerning the proposed amendments.

By way of summary, Penny Miller said the proposed amendments that may be considered most noteworthy are those with respect to the proposed eligibility requirements [Rule 2], changing the MBE waive-in score [Rule 7B(1)(b)], and the change concerning the public nature of conditional admissions [Rule 9F].

Chair Tabor thanked Ms. Miller for her thorough review and explanation of the proposed amendments.

It was moved by Jean Hannig, seconded by Carol Johnson, and carried that the proposed amendments to the Admission to Practice Rules be approved for submission to the Board of Governors for comment and, in the absence of any Board issues requiring Committee attention, for submission to the Supreme Court for its consideration.

Next Meeting

Chair Tabor said Committee members would be contacted concerning a possible September meeting date. There being no further discussion the meeting was adjourned at 12:05 p.m.