e-Advice
By
Martin A. Cole, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (July
2006)
It is a
constant challenge for any lawyer to keep up with the changing technologies
available today. Added to the concerns
of clients, courts, billing and even office politics, lawyers now must worry as
well about metadata, encryption, and electronic discovery. The Lawyers Professional Responsibility Board
(LPRB) and Office of Lawyers Professional Responsibility (OLPR) have sometimes
lagged behind the private bar in implementing new technologies. We have been catching up as rapidly as
possible, however, and now have a large amount of information available to
lawyers and the public through various electronic sources.
The most recent
addition to the OLPR-LPRB website (www.courts.state.mn.us/lprb)
is the capacity for Minnesota lawyers to submit requests for advisory opinions
electronically. Up until now, a licensed
Minnesota attorney has had to call the Director’s Office to request an advisory
opinion, and then, if the attorney assigned to handle advisory opinions on that
day is immediately available, discuss their question and, in most instances,
get an opinion. If the attorney is not
available, then the caller is called back as soon as possible, almost always on
the same day.
Now, an attorney can
submit a written inquiry electronically by completing a form on the OLPR
website as an alternative to calling. The
sender simply fills in the necessary factual information and the question on
which advice is sought. Certain
information is required, including an attorney’s registration identification
number, since the service remains available only to currently licensed
Minnesota attorneys. We have been
assured that the connection will be secure.
An attorney who feels
the need or desire for an opinion in the evening or on a weekend now can submit
the request immediately while the question is fresh in mind. Then it is waiting for the advisory attorney
first thing the next business day. The
advisory attorney has the advantage of knowing what the question is even before
returning the call and may have partially formulated a response or done some
advance research on the issue if necessary.
Note that the response to electronically submitted written advisory
opinion requests will be by phone, as with telephone inquiries, and not in
writing or by email. Additional factual
information may still prove necessary to formulate an advisory opinion, and
will be handled as before in the telephone conversation. Overall, it is our hope that adding this
option will make the service more convenient and save time for those requesting
an advisory opinion.
The same limitations
on the advice offered apply to both written and telephoned requests: opinions
are provided only as to the calling attorney’s prospective conduct (not as to
third party or past conduct) and can be based only upon the information
provided. If the facts are different
than provided, the opinion might not be valid.
A record of the request and information concerning the question and
answer is maintained in the OLPR’s advisory opinion database and is considered
confidential.
A further goal in our
development of the e-advice service will be to allow individuals to “build
their own advisory opinion” on the OLPR website through a series of links that
will connect the user to all applicable articles, rules and an FAQ section
dealing with a particular topic. The
process of upgrading the website to allow such advisory opinion building will
take some time yet, but once available, this technology will allow lawyers and
the public to readily access general professional responsibility information.
Ongoing
Process
The new e-advisory
opinion form is part of an ongoing process by the Lawyers Board and the
Director’s Office to make our website as useful as possible to lawyers and the
public. Considerable information already
is available. Obviously, the Rules of
Professional Conduct, Rules on Lawyers Professional Responsibility, and Lawyers
Board Opinions are available. All of the
articles written by the director and the director’s staff for publications such
as Bench & Bar of Minnesota and Minnesota Lawyer, plus some related
articles written by Board members or others, are available on the website. An index of those articles is also
available. Within the next year we plan
to revise this index in an effort to make it even more useful. The index and website are fully
searchable. Information on professional
firms filing, required trust account records, financial institutions approved
for IOLTA accounts, and cross-border practice rules are among the other
information available on the site.
Earlier this year,
another new feature was added to the OLPR website: a searchable attorney database which provides
access to an attorney’s complete public disciplinary history with links to
copies of the public discipline orders.
Also included are the lawyer’s full name, license number, year of admission,
city where the attorney is located, and whether the attorney is currently
authorized to practice.
Finally, another minor
technological initiative recently undertaken by the Director’s Office is to
issue press releases electronically.
Lawyers Board policy has long been to issue a press release upon the
filing of all contested public disciplinary petitions seeking disbarment or
suspension, unless such petition is accompanied by a stipulation simultaneously
authorizing an agreed upon discipline.
The Director’s Office again issues a press release upon the issuance by
the Supreme Court of all public discipline decisions. Previously, releases were issued by mail to
major local media and to local newspapers associated with a respondent’s
practice location. Upon inquiry, it was
determined that most media now prefer to receive press releases by email, which
makes them considerably more timely and the information more newsworthy. Whether this will immediately result in
greater coverage of disciplinary activities is not assured, but protection of
and notice to the public demands we attempt it.
Some electronic
advances are being considered, but may be a ways off before becoming
reality. For example, a recent study by
HALT, a self-proclaimed legal reform organization, praised and criticized the
Minnesota lawyer disciplinary system.
Minnesota appropriately received high marks for its extensive use of
nonlawyers throughout the disciplinary system.
Some of the study’s information, however, was faulty: it praised Minnesota inaccurately for using a
“preponderance of the evidence” standard, when in fact the standard for
imposing lawyer discipline has always been by “clear and convincing” evidence. Another issue upon which the study
incorrectly praised our system was the supposed ability of complainants to file
complaints online. In fact, complaints
at present must be received in writing, with only some limited exceptions made
to accommodate disabled individuals.
Since it has never been a requirement that complaints be signed and
notarized, electronically filed complaints may indeed be feasible. How soon such a change will be considered
would certainly depend upon the instruction of the Lawyers Board as a whole, or
upon whether an anticipated review commission recommends such a change.
It was only ten years
ago that OLPR staff attorneys worked with no desktop computers, no email,
limited computerized research, and no website.
We have made rapid technological progress. The Director’s Office will continue to look
for ways to improve our ability to better serve the public and the bar through
more modern technology.