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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Reflections of a volunteer in the disciplinary process

As the end of my term1 as chair of the Lawyers Professional Responsibility Board (LPRB) nears, I’m frequently asked whether I am relieved to complete my term and what I’ll do with the “extra” time I’ll have. This last Professional Responsibility column is a good time to address both.

Let me first say that I’ve been honored to serve as LPRB chair. I’m grateful to have had the opportunity to be involved in our disciplinary system. It has been a meaningful experience and a tremendous opportunity to learn and work alongside great lawyers who help the bar regulate itself in the public interest.2 I will certainly miss working with my fellow LPRB members, Director Marty Cole, and the staff of the Office of Lawyers Professional Responsibility (OLPR). And rather than relief in the transition, I’m more likely to feel a void.

Former Court of Appeals Judge Jack Davies’ maxim, “the world is run by those who show up,”3 describes the legal profession. The future of the legal profession in Minnesota is in the hands of those who show up. And show up they do. Lawyers are involved as members and leaders in the MSBA and local and affinity bars, on legal services boards, and Minnesota Supreme Court committees, commissions, and boards. They provide pro bono legal services, supervise lawyers on disciplinary probation, and offer peer support through Lawyers Concerned for Lawyers, our lawyer assistance program. By volunteering, lawyers honor their responsibility to improve the law, ensure access to the legal system, steward the administration of justice, and keep the quality of service rendered by the profession high.4

That lawyers are consummate volunteers isn’t too surprising. Most lawyers are drawn to the law to serve others, and are called to render pro bono service.5 Yet, as MSBA President Mike Unger points out, the work we do as lawyers can be stressful.6 While the significant responsibility, billable hours, and ever-increasing workloads would seem to militate against committing volunteer time to the profession, we can nonetheless count on lawyers to dedicate their time and their skills to serving the legal profession. Indeed, Benjamin Franklin may have been referring to lawyers when he said, “If you want something done, ask a busy person.”7 Lawyers are particularly good at time and project management, which may lighten the burden, but there is also some benefit in adding volunteering to one’s full plate. I think service to the profession can actually provide the balance necessary to a lawyer’s well-being, and is certainly a way to avoid the isolation that can cause the trouble for lawyers that Mike Unger describes.8

Mike Unger is a perfect role model for finding balance and meaning in public service. He is a busy and successful solo practitioner, a committed family man, and an adjunct professor. As MSBA president, he has the most time-consuming volunteer position in the bar—and he doesn’t seem to be stressing. His key to balance appears to be his dedicated service to clients, family, community, and the legal profession throughout his career. Given his substantial commitment and obligations as bar president, he would have good reason to feel relieved at the end of his term, but I doubt that he will.

The other reason I’m not feeling a need for “relief” is that our disciplinary system in Minnesota functions extremely well and is a model of professionalism and volunteer involvement. Each aspect of the process involves lawyers and judges who have an interest in running and improving the system:

District Ethics Committees (DEC) members. Volunteers staff DECs in all 21 judicial districts in the state. Eighty percent of them are lawyers. 9 They investigate the majority of complaints made against lawyers and make disciplinary recommendations to the OLPR, which are upheld nearly 90 percent of the time.

Lawyers Professional Responsibility Board (LPRB) members. Thirteen of the 21 board members are lawyers. They are appointed by the Supreme Court either from applications submitted directly to the Court or from nominations submitted by the MSBA. Most LPRB members have significant volunteer experience, and typically have served on—and many times have been chair of—a DEC. They review appeals from decisions where discipline has been determined to not be warranted by the OLPR, serve on three-member panels that determine probable cause, hear admonition appeals, and decide reinstatements. They serve on standing committees to review proposed rule changes, opinions, and conduct DEC recruitment and training. The chair and three lawyers serve on the Executive Committee along with two non-lawyers. The Executive Committee oversees the disciplinary process and the OLPR, and reviews the director’s performance, the aging of cases, policies and procedures, and all other matters that come before the LPRB.

Office of Lawyers Professional Responsibility (OLPR) lawyers. The OLPR (also called the Director’s Office) has been under the excellent leadership of Director Marty Cole and First Assistant Director Pat Burns, the longest-serving lawyers in the office. Together with a staff of 10 lawyers and 18 non-lawyers, they handle nearly 1,300 complaints a year. The OLPR’s lawyers process, investigate, resolve, and prosecute disciplinary complaints. They also monitor lawyers on probation, act as liaisons to the DECs, give more than 2000 advisory opinions each year, present Continuing Legal Education programs, write articles for the benefit of the lawyers of Minnesota, and participate in bar committees and activities related to discipline and professionalism.

Judicial referees and the Supreme Court. Retired judges serve as hearing officers in public discipline cases. The Supreme Court hires and reappoints the director and appoints the chair and other members of the LPRD and the DEC. It appoints a commission to review the disciplinary system approximately every 10 years. It appoints one of its members as liaison to the OLPR and LPRB—currently Justice David Stras, and before him, Justice Alan Page.

Respondent’s counsel. Minnesota has knowledgeable and zealous lawyers who represent respondents in disciplinary cases, nearly all of whom are bar leaders and work to educate the bar on ethics and professional responsibility matters.

Other volunteers. These include lawyers who supervise lawyer disciplinary probations and the members of the MSBA Rules of Professional Conduct committee and other bar committees that address ethics and professionalism. Additionally, they also consist of bar members who suggest issues that an LPRB opinion might address and of the many lawyers who work behind the scenes and support lawyers, even when they’ve been disciplined.

The result is that there has been plenty of work to do and ideas and concerns to address in addition to the challenge of continually improving the strong disciplinary process we have in place.

Which brings me to what I might do with the “extra” time I’ll have at the end of my term. I don’t think I’ll have a difficult time finding something meaningful to do as a volunteer. Helping lawyers and law students through Minnesota Lawyers Concerned for Lawyers is a priority. I’d like to be a probation supervisor in the disciplinary process. And I’d like to continue to work within our disciplinary system and legal profession to implement change that encourages lawyers and law students to address chemical and mental health concerns.

As Director Cole notes in his recent article on the probation process,10 probation may be an option for non-serious misconduct for lawyers whose chemical or mental health concerns interfere with their ability to be ethical lawyers. This requires that the lawyer acknowledge the problem. Strangely enough, some lawyers would rather be viewed as unethical rather than ill because of the stigma that continues to attach in our profession to mental illness and addiction. Lawyers who have engaged in serious misconduct have even less incentive to acknowledge mental illness or addiction. Our disciplinary system does not have a diversion program or mitigation approach that effectively addresses serious misconduct resulting from mental illness or addiction, or that allows for rehabilitation. So there’s always more to do.

Thank you to all who have supported, encouraged, and inspired me as LPRB chair.11 It’s been a great ride.


Judith M. “Judie” Rush chairs the Lawyers Professional Responsibility Board. Formerly an attorney in private practice, she is the director of mentor externship at the University of St. Thomas School of Law. She has served twelve years as a member of the Lawyers Board and served six years on the Ramsey County District Ethics Committee.


 

Notes

1 My second three-year term, which would have ended on January 31, 2016, has been extended to April 30, 2016 by Supreme Court Order. http://lprb.mncourts.gov/Pages/Rush%20Ext%20Order.pdf

2 Preamble to the Minnesota Rules of Professional Conduct [6].

3 Davies has shared this useful adage which he coined in the mid-60s with his law students and readers of his excellent Nutshell: Legislative Law and Process in a Nutshell (3d Ed) at XI. I share Davies’ fondest hope that it be included in Bartlett’s Famous Quotations. See Democratic-Farmer-Labor Party of Minnesota Hall of Distinguished Service 2013 at http://www.dfl.org/wp-content/uploads/2013/05/2013-History-Committee-Report.pdf

4 Preamble to the Minnesota Rules of Professional Conduct, [6].

5 Minnesota Rules of Professional Conduct 6.1.

6 Michael W. Unger, “Minding the Balance” Vol. LXXII (XI) Minn. Bench & Bar (December 2015) at 7.

7 Benjamin Franklin (1706-1790) izquotes.com

8 Unger, supra note 6.

9 The other 20 percent are non-lawyers who contribute to the integrity of the disciplinary system. All but three DECs have 20 percent or more non-lawyer participation.

10 Martin Cole, “Private Probation: Saving a Career?” Vol. LXXII (XI) Minn. Bench & Bar (December 2015) at 14.

11 Way too many to name, but including Marty Cole, Pat Burns, former LPRB chairs Kent Gernander and Chuck Lundberg, Justices Allen Page and David Stras, Dean Lisa Brabbit, and many other friends and colleagues who’ve helped me along the way.

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