Judge Ralph Erickson, Chair
Bill Herauf, Chair, Inquiry Committee West
Loralyn Hegland, Asst. Disciplinary Counsel
Chair Erickson called the meeting to order at 10:00 a.m. and welcomed the following new members to the Committee: Dave Hogue (Minot), Dr. Richard Olafson (Fargo), Murray Sagsveen (Bismarck), and Alice Senechal (Grand Forks). He then drew Committee members' attention to Attachment B (March 17, 2000) - Minutes of the November 19, 1999, meeting.
It was moved by Ben Hahn, seconded by Connie Sprynczynatyk, and carried unanimously that the minutes be approved.
Rule 8.4, Rules of Professional Conduct - Continued Consideration of Proposed Amendments
Chair Erickson drew Committee members' attention to Attachment C (March 17, 2000) - revised amendments to Rule 8.4, and Attachment D (March 17, 2000) - a draft letter for resubmission of the proposed amendments to the Supreme Court. Staff explained that the revised amendments would delete the reference "including bias and prejudice" from the amendments previously approved by the Committee, thereby creating a restricted list of biases subject to the rule. Staff said the draft resubmission letter summarizes at greater length the information reviewed by the Committee in developing the amendments, summarizes similar rules from other states, and briefly addresses the constitutional objections to the amendments identified in comments submitted previously to the Supreme Court [See, Attachment C (November 9, 1999)].
Chair Erickson then requested comments and discussion of the revised amendments and the draft resubmission letter.
Ben Hahn said the draft letter accurately reflects the Committee's discussion and emphasizes that the focus of the amendments is conduct more so than speech.
Jim Hill said there is little doubt that there will be challenges to the rule if it is adopted as proposed. He emphasized that issues of substantive and procedural due process are increasingly garnering more attention from the Supreme Court in lawyer disciplinary proceedings. He said his concerns, shared by many other lawyers, are that the proposed amendment is too imprecise and that it may be subject to significantly differing interpretations. He said the legal profession is premised on matters of conduct and speech and those who have raised First Amendment objections to the proposal should be considered sincere and taken seriously. He said there are sufficient tools already available to address the behavior at which the proposal is directed and he cautioned against adopting a rule that, because of its imprecision, is susceptible to misinterpretation in the future. The right of advocacy, he said, is paramount in the legal profession and the proposal risks indirectly comprising that right.
In response to a question from Connie Sprynczynatyk, Jim Hill said he would suggest simply deleting paragraph (d) from the proposed amendments. Judges, he said, are adequately able to control lawyer conduct in the courtroom.
In response to a question from Dave Hogue, Judge Erickson said the Commission on Gender Fairness in the Courts conducted surveys, the results of which indicated statistically the occurrence of incidences of gender bias in the court setting. Staff noted that a recent article appeared in The Gavel, authored by a member of the Gender Fairness Implementation Committee, which explained the ongoing work of the Committee in implementing the Commission's recommendations and solicited anecdotal information from lawyers about ongoing instances of bias. The article was to serve as the beginning of a periodic discussion of these issues and a method for obtaining information to be used in future education efforts.
At the request of Chair Erickson, Loralyn Hegland provided a summary of the disciplinary process and the various stages of involvement by the inquiry committees and disciplinary board. Dr. Olafson said the process seems to afford ample opportunity to raise concerns that the process or a particular rule is being manipulated.
Judge Erickson noted that several of the comments submitted to the Supreme Court suggested that there is no statistical evidence of the kinds of bias, other than gender bias, identified in the proposed amendments. This observation, he said, is related to the constitutional objection that a possible restriction on speech is impermissible when the aim is to "protect" a suspect class that has not been recognized by caselaw or against which bias has not been empirically, statistically shown. Staff noted that commentaries on rules like the proposal and caselaw discussion of related issues indicate that the protection of a suspect class is not the primary focus or the "compelling state interest", for purposes of constitutional analysis, that supports the restriction. Rather, the focus and compelling interests are the integrity of the judicial process and the fair administration of the judicial system.
Ron Reichert said one of the difficulties with what is perceived as bias or prejudice is that it is often in the eye of the beholder. He noted that the proposed amendments would extend to conduct in connection with an administrative proceeding, which involves participants, other than judges and lawyers, who are offended by aggressive defense or litigation tactics. He cautioned that identifying "bias" or "prejudice" as misconduct might give some free rein to initiate disciplinary complaints for little real reason, but the formal disciplinary process will, nevertheless, have been set in motion.
Mike Williams observed that resistance to the proposed amendments falls into three groups. First, he said, are those who suggested there is no problem that justifies the rule. But there is, he said, data that indicates there is in fact a problem. Second, he said, are those who suggested there are existing rules to address the problem. If that is so, he said, it is difficult to understand the resistance to the proposed rule. Last, he said, are those who assert it is difficult to define what conduct is prohibited by the rule and because of the difficulty no attempt to address the issue should be made. However, he said, if there is an identifiable problem it seems incumbent on the Committee to make a good faith effort to address the problem despite its difficulty. He asked Jim Hill for his comments on these assessments.
Jim Hill responded that initially, if the questionable conduct is occurring in the courtroom, the court has the inherent authority to control decorum in the courtroom. Equally important, he said, is that as a lawyer for a client in the courtroom, he is biased, prejudiced in favor of that client. The nature of advocacy, he said, is to aggressively assert the interests of the client. Additionally, he said, there are state statutes that protect comments made in a courtroom from allegations of libel and defamation. He wondered if a violation of the rule is alleged, whether he, in representing a lawyer in the disciplinary process, will be able to inquire what constitutes the alleged biased conduct or what would be considered as outside the legitimate advocacy exception. Someone, he said, will have to serve as the "advocacy police" and there will be the risk of different standards applying in different circumstances or courtrooms.
Mike Williams said improving public trust in the legal system should always be a goal, but under the guise of litigation tactics or "zealous advocacy" lawyers have been allowed to engage in rude, browbeating tactics that are a disservice to the profession. He said calling biased or prejudiced conduct a litigation tactic does not make it acceptable. Additionally, he said the potential of differing standards from court to court is better addressed by having a rule, rather than having no rule at all.
Connie Sprynczynatyk recalled earlier Committee discussions about lawyers creeds and civility codes directed at questionable conduct and the criticism then that there was no effective way of enforcing such an approach. She agreed with Mike Williams that because the issue is difficult is not sufficient reason to refuse an attempt to address it.
Murray Sagsveen said he has observed biased conduct used as a litigation tactic, sometimes with great success. He said he has confidence that members of the inquiry committees and disciplinary board will reasonably apply the rule if adopted and the rule will, on balance, solve more problems than it might create. Ron Reichert said he shared many of the concerns expressed by Jim Hill. However, he said, bias and prejudice, and the awareness of it, is a living, changing thing and a rule and process to address it should be likewise. He emphasized the importance of the process being fair and reasonably applied.
It was moved by Ron Reichert, seconded by Connie Sprynczynatyk, and carried that the revised amendments to Rule 8.4 be approved for submission to the Supreme Court. Dave Hogue voted "no".
It was moved by Fran Gronberg, seconded by Randy Lee, and carried that the draft letter for resubmission of the amendments to the Supreme Court be approved as to substance, subject to the Chair's final review. Dave Hogue voted "no".
Chair Erickson drew attention to the previous draft proposal regarding lawyer advertising. He suggested that in light of Dan Crothers' absence the Committee should take the matter up at greater length at the next meeting.
Randy Lee suggested the Committee should thoroughly review the change regarding solicitation. Current rules, he said, permit, but regulate, in-person solicitation, while the draft would prohibit such activity with certain exceptions.
Sandi Tabor said the changes regarding specialization seem to require a separate regulatory entity. That, she said, may pose a significant problem for the Association's limited resources.
With respect to the proposed changes in the draft to Rule 7.3, Dave Hogue wondered how it would affect Minnesota lawyers who practice across the river in Fargo, Grand Forks, or elsewhere.
Chair Erickson said the draft proposal will be on the next meeting agenda for review.
Client Access to Files
Randy Lee distributed a draft proposal regarding access to client files, paper, and property which was prepared by Mike Wagner before his departure from the Committee. [Staff note - the draft is included as Attachment D in the material for the June 14, 2000, meeting]. The draft, he said, is the result of the Committee's earlier consideration, and rejection, of different ways of addressing the issue of how and under what circumstances a client should have access to, or copies of, papers in the possession of the lawyer. The draft, he said, more closely resembles the approach suggested by Paul Jacobson, Disciplinary Counsel, at a previous meeting. However, it differs in providing a definition of what is and is not "client files, papers, and property." The preliminary question, he said, is that of where the new provision should be located: Rule 1.15, Rule 1.16, or, his preference, Rule 1.4. He said Rules 1.15 and 1.16 are candidates because each discusses the return of client property. Rule 1.4, he said, is more neutral because a provision could be included in the Rule's comment. He said there is also a question concerning whether to eliminate both the charging lien and retaining lien, or just the retaining lien. Only the retaining lien, he said, is pertinent to the Committee's earlier discussions of this issue.
Judge Erickson suggested the creation of a separate rule, for example, a new Rule 1.19. That approach, he said, may make it easier to find and come to the attention of lawyers. Alice Senechal said her initial reaction was also to create a separate rule, rather than include the provision as part of another rule.
Dave Hogue inquired whether a lawyer could make a copy of the file over a client's objection or contrary to a client's direction not to make a copy. He noted that the Comment to the draft includes a reference to the lawyer making copies "if no obligation would be violated." Such an obligation, he said, might be the client's opposition to the making of the copy. Pat Maddock said a lawyer should always keep a copy of the file at least to protect against any future allegation of malpractice.
Dr. Olafson noted that in the medical record context patient authorization is required for release of a record. The hospital or physician office, he said, is considered the custodian of the record and while the patient owns the record in one respect, it is also recognized that the record is held and owned by the entity that created it.
Randy Lee said there is likely an implicit allowance in the self-defense portion of Rule 1.6 [Rule 1.6(e)] for a lawyer to copy a file and thereby create a record from which the lawyer can garner a defense in a later dispute with a client.
In response to a question from Dr. Olafson, Judge Erickson said there is no general standard or policy that governs the retention of files by lawyers.
Chair Erickson said this issue will be included for further discussion at the next meeting. Alice Senechal agreed to serve on the subcommittee with Randy Lee and Pat Maddock to develop a proposal.
Pro Se Action Plan
Chair Erickson drew Committee members' attention to Attachment E (March 17, 2000) - Penny Miller letter and attached Action Plan to Assist Pro Se litigants, which has been referred to the Committee for review and possible recommendations.
Sandi Tabor said that the initial draft plan posed some concerns for the Association's Board of Governors in that it seemed to commit the Association to certain kinds of activities. The current draft, she said, is less specifically focused. She noted that pro se litigation is a growing phenomenon across the country and various jurisdictions have adopted different approaches in addressing the issues. Some, she said, have focused on providing uniform court forms and kiosks for information and self-help, while others have developed more elaborate self-help centers for those choosing to represent themselves.
Connie Sprynczynatyk wondered why consideration of the Plan could not be assigned to the group implementing the recommendations of the Committee on Public Trust and Confidence. Sandi Tabor said that is a possibility and Legal Assistance of North Dakota is also pursuing an initiative in this area. Staff noted that the Action Plan has also been referred to the Court Services Administration Committee, another of the Supreme Court's advisory committees.
Judge Erickson said any discussion of how to address the problems associated with pro se litigation should preliminarily consider the extent and nature of the problem itself. He noted that the Action Plan in some respects contemplates practices much different than those currently in place.
Randy Lee noted that Item 2 in the Action Plan seems to contemplate establishing a different standard for self-represented litigants. That, he said, would represent a significant departure from current practice. Judge Erickson agreed and said anything that results in a different standard for pro se litigants will result in discriminating against those who are represented by attorneys.
Randy Lee suggested there may be a difference with respect to the impact of pro se litigation depending on whether it occurs at the appellate level or trial court level. He said it would be helpful to know the level of pro se activity at each level.
Murray Sagsveen suggested that the Internet could be used as a source of information. Additionally, he noted that the administrative rule governing the committee's operation (AR 38) would seem to indicate that consideration of this issue might not be within the committee's jurisdiction as described in the rule.
Randy Lee noted that the Joint Committee on Civil Legal Services for the Poor may also have something to contribute to the consideration of the issue.
Judge Erickson said there are several committees or entities that appear to be working on this issue or considering topics related to it. He suggested that such a fractured approach may result in several competing proposals.
Mike Williams said the Committee in responding to the referral should at least emphasize the concern about the possible establishment of separate standards - one for pro se litigants and one for those with attorney representation.
It was moved by Murray Sagsveen, seconded by Alice Senechal, and carried that the Chair submit a letter to the Supreme Court outlining the Committee's concerns as discussed.
Chair Erickson said the letter would be distributed in draft form for review and comment by Committee members.
New and Unfinished Business
Sandi Tabor said she and Association President Paul Richard have been conducting area meetings with lawyers on the issue of multi-disciplinary practice - an issue discussed a previous committee meetings. She said a report will be submitted to the Board of Governors in May with the objective of possibly preparing a resolution for consideration by members at the Association's annual meeting in June.
No further business appearing, the meeting was adjourned at 1:45 p.m.