Hello, Goodbye
By
Martin A. Cole, Director
Minnesota Office of Lawyers Professional Responsibility
“You say goodbye and I say hello. I
don’t know why you say goodbye, I say hello.”
— Lennon & McCartney
Most of the popular songs I
grew up with in the late 1960s probably had hidden meanings that I didn’t
completely understand, maybe even the lyrics above penned by Paul McCartney. In my youthful naiveté I considered this to be
generally a simple optimistic song about looking forward rather than backwards.
Music historians seem to prefer that it
be considered simply as utter nonsense. As
another of my icons of the era, Kurt Vonnegut Jr., said, “so it goes.”Ftn1
That’s the extent of my
nostalgia trip for the days of long ago. Rather, I intend to look forward to a good
2008 and maintain my optimism. Still, a
quick look back to review the prior year’s activities can be helpful, and the
lawyer disciplinary system is no different in that regard. An equally quick look ahead should follow.
Goodbye 2007:
The Year in Review
In calendar year 2007, the
total number of attorneys publicly disciplined was lower than the previous
year. Only five attorneys were
disbarred: Sergio Andrade, Francis Giberson,
Mark Pitzele, Bradley Rhodes, and Michael Swensen.Ftn 2 As in other years, there was not just one path
to disbarment. Andrade was disbarred
after being criminally convicted of theft by swindle; Giberson failed to pay
child support and was convicted of a crime; Pitzele misappropriated funds from
his trust account; Rhodes failed to cooperate with a prior probation and
neglected several more files; and Swensen participated in a fraudulent real
estate scheme. Giberson and Rhodes
previously had been publicly disciplined, which aggravated their more current
misconduct; the others had not. Giberson
was admitted to practice in 1976 and Rhodes in 1984, while Swensen, Pitzele and
Andrade were more recent admittees from 1991, 1993 and 1995. Their practice areas also were diverse.
In addition, 21 lawyers were
suspended this past year, and five lawyers were publicly reprimanded and either
placed on probation or had their existing probation extended. Supreme Court decisions of note included
lengthy suspensions for misappropriation or other trust-account-related
misconduct, and shorter suspensions for patterns of multiple acts of
misconduct; these last featured in particular misrepresentations to clients,
courts or the disciplinary authority. There
were also five reinstatement proceedings this year, with three of the attorneys
being reinstated to probation while the other two attorneys’ petitions were
denied. All of the attorneys involved
this past year were seeking reinstatement from suspension; there were no
petitions seeking reinstatement from disbarment as in recent years.
Twenty public matters were
pending at the end of the calendar year, as were ten additional petitions for
reinstatement, one of which is from disbarment.Ftn 3 Six of the 20 matters were already set for
oral argument before the Supreme Court as part of their January and February
calendars. Another eight sets of charges
of unprofessional conduct are pending before panels of the Lawyers Board to
determine whether probable cause for filing a public petition exists. The total number of public discipline matters
in 2008 seems headed towards exceeding that of 2007.
It had been feared that the
number of complaints received by the Director’s Office was headed for another
sizeable jump this past year. Ultimately
that didn’t occur. A November-December
stagnation in the number of complaints filed meant that the total for the year
was 1,226, only one more than in 2006. That
2006 total was an increase from the approximately 1,150 per year that had been
fairly constant for several previous years. There’s always the fear that a “New Year’s
Resolution” influx of complaints in January will make up for the
lower-than-normal November-December total.
That end-of-year lull in
complaints received allowed our office to close more files than were opened
during this final period of 2007, such that the overall number of files open at
the end of 2007 was 500, exactly the target guideline for open files
established by the Lawyers Board. With a
full complement of staff attorneys again in place, it should be possible to
continue to meet this goal. More
difficult, however, is maintaining the office’s other target guideline of
having no more than 100 open files that are more than one year old (from date
of opening the investigation file). When
an experienced attorney departs, to be replaced by a less experienced attorney,
the new attorney usually can help keep up with the new complaints and less
serious matters, even while gaining expertise. Already pending cases are more difficult to
reassign and resolve, and often age to beyond the one-year goal. These target numbers matter because the
Director’s Office is funded by a portion of the annual lawyer registration fee;
if additional resources or staff prove necessary to handle the office’s
workload, all Minnesota lawyers can be affected.
Finally, although various
proposals for changes to either the Rules of Professional Conduct or Rules on
Lawyers Professional Responsibility have been put forward, and are being
studied by the Lawyers Board or MSBA’s Rules of Professional Conduct Committee,
no amendments to the rules were adopted this past year by the Court.
Hello 2008:
The Year Ahead
The Supreme Court Committee to
Review the Lawyer Disciplinary System, chaired by Minneapolis attorney Allen Saeks,
met several times in the latter portion of 2007 and now is nearing the end of
their preliminary review. Their report
is scheduled for completion and submission to the Supreme Court in April 2008. Any suggestions for change made by that
committee likely will be topics of discussion and action during this coming
year. In the past, several positive
changes emerged following these reviews. To date, issues such as the procedures used by
District Ethics committees to conduct their preliminary investigations of
complaints, revision of the Lawyers Board Panel Manual, and the file aging
noted above have been discussed by the review committee.
One technology development of
the new year already is noteworthy. As
many of you already are aware, all of these columns are posted on the website
maintained by the Director’s Office and the Lawyers Board,Ftn 4
along with articles written by staff attorneys that appear in other
periodicals. They are word-searchable
and there is a subject index with links to the articles. It has long been a goal to revise this index
to more closely match researchers’ needs. That revision recently has been completed and
should be available online by the time this column is published. The index now has both a completely new
subject matter/topic index and also an index by Rule of Professional Conduct. As before, all articles that discuss a
particular topic or rule are listed and linked. This has been a major undertaking, but a
worthwhile one. We hope the change will
constitute a significant improvement, and urge interested individuals to try
the new indexes and let us know your views.
The Director’s Office staff
continues to balance its educational function, presenting at Continuing Legal
Education seminars and providing advisory opinions, with its prosecutorial
obligation. We look forward in 2008 to
protecting the public while also serving the bar.
Notes
1 Vonnegut first used what became his catch phrase in Slaughterhouse Five.
2 Citations to the Supreme Court decisions discussed in this
article are not provided. Copies of all
lawyer disciplinary decisions can be found on the Lawyers Board website using
the lawyer public discipline search function. Copies of the petition for the case and any
stipulation for discipline also are included. www.mncourts.gov/lprb/SearchLawyer.aspx.
3 Not all petitions for reinstatement result in Court
decisions. Some petitions are withdrawn
during the investigation stage in response to concerns raised by the Director’s
Office.
4 The MSBA also archives past issues of Bench & Bar of Minnesota at http://www2.mnbar.org/benchandbar/perms/archive_index.htm.