THE VALUE OF PRIVATE DISCIPLINE
By
Martin A. Cole, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (November
2008)
The
Minnesota Rules on Lawyers Professional Responsibility authorize two types of
non-public, or private, discipline: an
admonition and a stipulated private probation.Ftn 1 In the past
few months, the value and vitality of private discipline has been a source of
considerable discussion, both within the Lawyers Board and as part of the
Supreme Court Advisory Committee to Review the Lawyer Discipline System.Ftn 2
In Minnesota,
admonitions may be issued for unprofessional conduct (i.e., a violation
of a Rule of Professional Conduct) that is “isolated and non-serious.” Private probations may be agreed to by the
Director and the lawyer for a period of up to two years, subject to approval by
the Lawyers Board Chair or Vice-Chair. All
private disciplinary dispositions are subject to appeal by complainants.Ftn 3
Advisory
Committee Report
Among the issues relating to private discipline that
the Supreme Court Advisory Committee considered is whether private disciplinary
options should be eliminated altogether, and whether private discipline was
issued in too many instances in which public discipline was in fact warranted. While in the end the Advisory Committee did
not make specific recommendations for change, the inquiry itself is evidence
that even knowledgeable people within the lawyer disciplinary community
question whether private discipline fulfills its purposes.
The justification most
often put forward in support of issuing private discipline in appropriate
instances is that many attorneys who commit one truly isolated act of misconduct,
and who receive an admonition, are never disciplined again. The private discipline thus serves an
educational function without the attorney’s reputation being affected by one
lapse. If there was no private
discipline option available, the argument runs, many of these matters would be
dismissed instead, since public discipline could seem unduly harsh for a truly
minor infraction. Thus, fairness and
rehabilitation are furthered through private discipline, and presumably the
complainant is more satisfied with some discipline being imposed than none at
all.
Probation is most
often used in instances where the violation was partly caused by poor office
procedures or record-keeping, such that guidance from a more experienced
practitioner or the Director’s Office could resolve the problem, again without
publicly announcing the attorney’s failings.
Attorneys with chemical dependency or mental health issues who did not
commit serious or repeated misconduct also may benefit from a period of
probation in which to deal with their problems.
Anecdotal evidence reveals that several lawyers’ careers were “saved” in
this manner, and that they returned to productive and ethical careers.
After reviewing the
use and history of private discipline in Minnesota, the Advisory Committee
determined that “private disciplinary options serve a valid purpose in the
circumstances for which they were intended.”Ftn 4 The more
difficult question for the Advisory Committee, as it long has been for the
Board and Director’s Office, is whether “the circumstances for which [private
discipline was] intended” includes the issuance of multiple private disciplines
to an attorney over time, rather than issuing charges of unprofessional conduct
and seeking public discipline after one or two admonitions. Defining what conduct fits under the
definition of “isolated and non-serious” has bedeviled the system for as long
as I’ve been involved in it.Ftn 5
Define Isolated
Should a second
admonition still be considered isolated?
Should a third? A fourth? Does it matter whether the complaints involve
violations of totally distinct types of rules (neglect, a conflict of interest,
an advertising issue)? How long a period
between private disciplines seriously diminishes their relevancy? If an attorney has been publicly disciplined,
maybe even suspended and reinstated, must a truly minor violation committed
after reinstatement require further public discipline? There are far more tough questions than clear
answers. Following the receipt of the
Advisory Committee report, the Lawyers Board expressed its willingness to again
review this issue and establish guidelines to better facilitate consistency
within the system and to assist the bar and the public in better understanding
the operation of the disciplinary system.
Who makes the decision
whether misconduct is isolated and non-serious or whether private probation is
a viable option? If the Director agrees
to issue an admonition to an attorney who has prior private discipline, then
obviously the Director is making the decision (subject to appeal). If private probation is approved for an
attorney with similar prior misconduct, then the Board Chair or Vice-chair has
played a role. If a Lawyers Board panel
issues an admonition when the Director has issued charges of unprofessional
conduct (seeking public discipline), then the Board’s judgment that the matter
remain private has been imposed. In
addition to affirming or reversing challenged admonitions, in rare instances
the Supreme Court has issued a private disciplinary decision.
It is a difficult act
to balance at what point fairness and protection of the public requires the
public to know about allegations against an attorney, and with it gain
knowledge of the attorney’s private discipline history. Reasonable minds may differ on this issue,
but once it is determined that the educational value of private discipline has
failed, then public protection and a right to know should allow the complete
picture of the attorney to become available.
At that point, fairness should tip towards the public.
Forever?
Another aspect of
private discipline debated by the Advisory Committee dealt with the possible
expunction of private discipline. Currently,
dismissed complaints are completely expunged after three years.Ftn 6 The Director’s Office cannot even keep a
docket entry log of expunged complaints.
Private discipline,
however, is retained permanently. Prior
discipline of course may be cited in subsequent disciplinary proceedings for
several purposes.Ftn 7 Private discipline also may be disclosed upon
the authorization of the affected attorney.
Seeking admission to another state or an application for a judgeship are
examples of where such disclosure is most often made.
The Advisory Committee
recommended a rule change to extend expunction to admonitions that are more
than 10 years old if the attorney has had no subsequent discipline. The Lawyers Board opposed the change,
believing that the case had not been made that such a change is necessary or
would benefit the public. The proposed
rule is under advisement by the Supreme Court as this column is written.
Conclusion
Private discipline in
Minnesota will remain a viable option for the foreseeable future. It often is the proper balance of public
protection, complainant satisfaction, deterrence, and lawyer education. When lawyers who receive private discipline
learn from it and are never the subject of further proceedings, it certainly
has fulfilled a valid purpose for which it was intended.
Notes
2 The
Advisory Committee submitted its report to the Supreme Court earlier this year. Proposals for changes to the RLPR were heard
by the Court in September, and remain under advisement at the time of writing
this column. Most of the more
administrative recommendations of the Advisory Committee have been implemented
by the Board and Director’s Office. A
copy of the Advisory Committee report may be found at http://www.mncourts.gov/lprb/AdvisoryReport.pdf.