NEW RULES GALORE
By
Martin A. Cole, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (May/June
2009)
For
the most part, the various sets of rules that collectively may be thought of as
“the ethics rules” change slowly. The
major revision of a set of those rules, such as the multiyear process that
culminated in October 2005 with changes to the Minnesota Rules of Professional
Conduct (MRPC), is rare; more often one or two minor revisions occur, or such
minor revisions are held until a sufficient number of changes are proposed to
warrant drafting a petition to the supreme court.
Recently, the court
promulgated a “flurry” of changes to the Rules on Lawyers Professional
Responsibility (RLPR), the lawyer discipline system’s procedural rules, and to
both the Code of Judicial Conduct and the procedural Rules of the Board on
Judicial Standards. All of these changes
are the end result of study committees appointed by the court, usually with the
active involvement of the MSBA, to review those rules and make
recommendations. In each case, the new
rules will be effective on July 1, 2009.
RLPR
Amendments
The rule amendments
with the most direct impact on the lawyer discipline system are the changes to
the RLPR. The Lawyers Board petitioned
for several of the amendments which were adopted, while the MSBA and the
Supreme Court Advisory Committee to Review the Lawyer Discipline System, which
submitted its report last year, recommended other changes.Ftn
1
The most dramatic of
the revisions is to the probable cause hearing process (Rule 9, RLPR). Before the Director’s Office is permitted to
file a petition in the supreme court seeking public discipline of an attorney,
a Lawyers Board panel must make a finding of probable cause for public
discipline, unless the attorney stipulates to waive the necessity of such a
hearing.Ftn 2 Panel hearings historically have been
evidentiary hearings on the merits, with live testimony, affidavits and
documents submitted. Often there has
been little to distinguish the probable cause hearing from the subsequent
public hearing before a referee appointed by the supreme court. Since a panel hearing to establish probable
cause for discipline can instead require clear and convincing evidence to issue
a private admonition, hearings occasionally are quite extensive. Minnesota is believed to be the only
jurisdiction that conducts such hearings to establish probable cause for
discipline.
The supreme court
advisory committee recommended, and the court now has accepted, that the
process be changed to have most probable cause determinations made without a
live hearing, based upon written submissions.
Probable cause hearings now will only be held at the discretion of the
panel. Panels can still authorize an
admonition, which can be appealed by the lawyer to a different panel for a
hearing. Time limits also have been
established for the submission of information.
Whether this change
will prove to be as significant as it appears at first blush will depend
largely upon the number of times that a panel opts to conduct a hearing after
its preliminary review of the documentary record. This may hinge on whether they consider
credibility issues to be critical to a determination; in my own experience,
facts or issues can be determined without live testimony far more often than
may be assumed. In any event, the
advisory committee recommended change and the supreme court has ordered it, so
it seems incumbent on all participants to make the new system work effectively.
The new RLPR also
include notable changes to provisions concerning reinstatements and
confidentiality. A lawyer seeking
reinstatement from suspension or disbarment no longer need serve the petition
on the MSBA President. For some time
now, the reason for such a requirement was purely historical. The rules also require that a petitioner from
disbarment take and pass the full bar examination before being reinstated; that
requirement has been amended to establish that the lawyer must pass the exam
before filing a petition for reinstatement.
This conserves resources by deferring the costs of an investigation and
reinstatement hearing (and possible briefing and oral argument before the
supreme court) until it’s established that the applicant can pass the bar exam.
Amendments to the
rules regarding confidentiality now have added district ethics committee
members to the list of individuals who are not subject to deposition or
compelled testimony except upon a showing of extraordinary circumstances and
compelling need. Also, a new section
(Rule 20(f)) has been added stating that the files of the Director’s Office
relating to advisory opinions, trust account overdraft notifications, and
probations are confidential except in subsequent disciplinary proceedings or
upon the consent of the lawyer who received the advisory opinion or overdraft
notice, or who is the subject of probation.
This amendment simply codifies what has long been the office’s position
regarding these files.
At this time no
changes have been made to the Minnesota Rules of Professional Conduct (MRPC),
the substantive rules that are enforced through the RLPR. The ABA has adopted amendments to the Model
Rules of Professional Conduct but Minnesota thus far has chosen not to adopt
these proposals. Model Rule 1.10
(Imputation of Conflicts of Interest) was amended by the ABA to allow screening
of lateral hires by law firms in almost all situations where the hiring firm is
adverse to clients of the lateral hire or her former firm, without regard to
the extent that individual participated in the prior representation of those
clients.Ftn 3 Model Rule 3.8 (Special Responsibilities of a
Prosecutor) now contains a requirement that prosecutors who come to know of
clear evidence that a convicted defendant was not in fact guilty shall take
steps to remedy the conviction.Ftn 4 These
proposals may be revisited in Minnesota, but likely only if a significant
number of other jurisdictions adopt the proposals.
Judicial Rules
The other area in
which rules have been extensively amended is judicial conduct. The Code of Judicial Conduct was amended last
December but the changes are not effective until July 1 of this year. Although there were some substantive changes,
the most noticeable amendments involve reorganization and reordering of the
canons. Particularly interesting is that
the prohibitions on judicial candidates accepting endorsements and personally
soliciting funds both remain part of the Code.
These sections are the subject of a constitutional challenge in federal
court, presently on appeal to the 8th Circuit Court of Appeals.Ftn 5
This spring the
Minnesota Supreme Court completely overhauled the Rules of the Board on
Judicial Standards (BJS), the counterpart to the RLPR in the lawyer discipline
system. The guidelines for investigation
and disposition of complaints against judges have been substantially amended,
and now bear a stronger resemblance to the lawyer discipline procedures. One of the changes most sought by judges is
the ability to challenge a private admonition without having to do so
publicly. In addition, the board no
longer may substitute its own findings for those of a hearing panel. Also, a mechanism was added to expedite
certain complaints against candidates during a judicial election. These recommendations also arose out of a
supreme court review committee.
Wait and See
As indicated earlier,
it is rare for so many sets of professional rules to be amended so extensively
at the same time. Nevertheless, periodic
review and revision of substantive and procedural rules is a necessary process
to ensure fairness to all participants in the systems for discipline of lawyers
and judges. Determining how well the
latest round of amendments meet that standard likely will take a while, maybe
even a few years, so it may be too early to judge them. Nevertheless, for those who are interested,
copies of all of these new rules can be found on the web at http://www.mncourts.gov/lprb/index.asp and www.bjs.state.mn.us.
Notes
1 See Cole, “Supreme Court Advisory
Committee Report,” Bench & Bar of Minnesota (July 2008), http://www2.mnbar.org/benchandbar/2008/jul08/prof_response.htm or http://www.mncourts.gov/lprb/08bbarts/bb0708.html.
2 In limited situations, the director may
make a motion to the panel chair or board chair for probable cause. Criminal convictions or flagrant
noncooperation (such as failing to attend the mandatory prehearing meeting) are
examples of when such a motion is permitted.
Rules 10(c) and (d), RLPR.
3 See Cole, “Law Firm Hiring and
Screening,” Bench & Bar of Minnesota (October 2008), http://www2.mnbar.org/benchandbar/2008/oct08/prof_response.html or http://www.mncourts.gov/lprb/08bbarts/bb1008.html for a discussion of this issue after it previously
had been rejected.
4 The full ABA Model Rule 3.8 sections read:
(g) When a prosecutor
knows of new, credible and material evidence creating a reasonable likelihood
that a convicted defendant did not commit an offense of which the defendant was
convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate
court or authority, and
(2) if the conviction was obtained in the prosecutor’s
jurisdiction,
(i) promptly disclose that evidence to the defendant
unless a court authorizes delay, and
(ii) undertake further investigation, or make
reasonable efforts to cause an investigation, to determine whether the
defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor
knows of clear and convincing evidence establishing that a defendant in the
prosecutor’s jurisdiction was convicted of an offense that the defendant did
not commit, the prosecutor shall seek to remedy the conviction.
5 Wersal v. Sexton, et al., Civ. No.
08-CV-613 (D. Minn. 02/04/09). Judge
Montgomery ruled that the challenged sections are not unconstitutional and
granted summary judgment in favor of the Board on Judicial Standards and the
Lawyers Professional Responsibility Board (whose members are the named
defendants in their official capacity).