Mr. Allen I. Saeks, Chair
Advisory Committee to Review the Lawyer Discipline System
150 South Fifth Street, Suite 2300
Minneapolis, MN 55402

Dear Mr. Saeks:

HALT, a nonprofit public interest organization dedicated to improving accountability in the civil justice system, would like to commend Minnesota on demonstrating a commitment to client protection by implementing a review of the state's mechanism for disciplining unethical, incompetent and fraudulent attorneys.

We believe that there are three central problems facing Minnesota's system of attorney discipline - leniency, lack of transparency and delay - and we hope that the newly formed Advisory Committee to Review the Lawyer Discipline System will address these critical issues:

1) Leniency - The Office of Lawyers Professional Responsibility summarily dismissed 40 percent of disciplinary complaints in 2006, and 48 percent in both 2004 and 2005, a rejection rate greater than 24 other jurisdictions, according to the American Bar Association's 2006 Survey on Lawyer Discipline Systems. In many cases, complaints are thrown out because lay persons are not able to articulate specific violations of the Rules of Professional Conduct. The Minnesota Supreme Court should consider adopting the model set forth in Connecticut, in which a review panel affords complaints a secondary examination in the event that disciplinary counsel determines that a grievance "does not contain sufficient specific allegations on which to conduct an investigation" (Connecticut Practice Book § 2-32). Similarly, in Colorado all complaints are filed through a 20-minute phone conversation with trained support staff from the Office of Attorney Regulation Counsel, and then a follow-up conversation occurs between each complainant and an intake attorney. Written allegations by a lay person with little knowledge of attorney conduct standards may not initially seem to rise to the level of an ethical violation, and a phone conversation with experienced disciplinary counsel may elicit additional information which makes clear that misconduct has occurred.

Investigating a greater percentage of complaints will require the investment of substantial resources in the review process. To ensure that sufficient time and attention are devoted to each complaint, Minnesota should utilize professional staff in conducting all investigations, rather than the current system of voluntary District Ethics Committees. The American Bar Association has declared that "[volunteers] cannot devote the same time and attention to processing complaints as paid counsel, nor can they investigate complicated matters as thoroughly as one professionally trained to do so" (Model Rules for Lawyer Disciplinary Enforcement, Commentary to Rule 4). In addition, using professional staff investigators eliminates the conflicts of interest that inevitably arise when practicing private attorneys review disciplinary cases. More than 35 years ago, the ABA's pioneering Clark Commission noted that "decentralized disciplinary structures complicate the already difficult task of administering effective professional discipline. Neither the disciplinary agency member nor the judge who frequently works and meets socially with an attorney can judge him objectively." The fundamental purpose of consumer protection should outweigh any concerns about investigators being insulated from the realities of legal practice, concerns that ultimately emphasize the interest of lawyers accused of misconduct rather than the public interest.

2) Lack of Transparency - Nearly 70 percent of the disciplinary sanctions imposed on Minnesota attorneys in 2005 came in the form of private admonitions and probation. The next year saw a slight improvement, but still private sanctions made up more than one half of the dispositions resulting in discipline in 2006. These secret reprimands amount to little more than a slap on the wrist. When sanctions are handed down outside of the public view, clients are not able to take a history of misconduct into account when selecting representation. Private sanctions therefore hold no long-term professional consequences, and do not function as a meaningful deterrent of unethical conduct.

In relying heavily on private discipline for fraudulent or negligent attorneys, Minnesota fails to adequately protect legal consumers. A handful of states, including Connecticut, Florida and New Hampshire, have abolished such closed-door sanctions and now only impose discipline that is formal and public. Oregon provides access to attorneys' complete disciplinary histories, including all complaints of misconduct that have been filed regardless of the eventual disposition (Oregon State Bar Rules of Procedure, Rule 1.7 (b)). The Minnesota Supreme Court should consider following this pioneering model for empowering clients and building public confidence in the integrity of the legal profession.

3) Delay - In 2006, completion of attorney discipline cases resulting in Minnesota Supreme Court suspension and disbarment took on average 23 and an outrageous 59 months, respectively; for the lesser punishment of Supreme Court reprimand and probation, discipline was handed out an average of 14 months after the original ethics complaints. Even the year prior, cases ending in disbarment took on average 15 months to reach completion. Several states have found it possible to handle disciplinary matters quickly, according to the most recent statistics available from the American Bar Association. On average, Connecticut, Delaware, Nevada, North Dakota and Wyoming all file formal charges within 120 days of receiving a complaint of attorney misconduct; Mississippi, North Dakota and Wyoming impose public sanctions within 6 months of the initial complaint. This swift disposition ensures that unethical attorneys are not able to take on new clients while disciplinary agencies sluggishly review and address allegations of misconduct.

An obvious way to correct the delays that plague Minnesota's attorney discipline system is to establish, and enforce, real deadlines. Currently, the Rules on Lawyers Professional Responsibility provide only two hard and fast deadlines specifically for the agents of the disciplinary process; the District Ethics Committees have 90 days to file investigative reports, and the Court has 10 days to set a time for a hearing on a petition for disciplinary action following the Referee's findings. Timelines should be established for at least six distinct steps in the disciplinary process: the initiation of the investigation, the filing of formal charges, the convention of a Lawyers Professional Responsibility Board hearing panel, the filing of a public petition for discipline, the convention of the Referee trial, and the final disciplinary decision by the Supreme Court.

The state trial court case processing time standards adopted by the Minnesota Conference of Chief Judges require that 90 percent of civil cases and 99 percent of felony criminal cases be resolved within one year, according to the National Center for State Courts (www.ncsconline.org/WC/Publications/KIS_CasManCPTSPub.pdf). In addition, last year the average civil complaint in Minnesota federal district court resulted in a disposition within only 14 months and the average criminal complaint resolved in just over 9 months, according to the 2007 U.S. District Court Judicial Caseload Profile (www.uscourts.gov/cgi-bin/cmsd2007.pl). In the context of attorney discipline, there is no reason why a final decision should not be rendered within a year from the date on which a complaint is filed.

To achieve this one-year goal, we believe that timelines should be developed for six distinct steps in the disciplinary process, and suggest the following deadlines:

(1)	within 30 days of receipt of a complaint (unless dismissed), an investigation shall be initiated;
(2)	within 60 days of the initiation an investigation, charges shall be filed (i.e. the decision of whether the complaint merits a hearing because it marks a violation of a rule of professional conduct);
(3)	within 60 days of the filing of charges, a hearing shall be convened;
(4)	within 60 days of the completion of a hearing, a hearing committee shall dismiss charges or recommend discipline;
(5)	within 60 days of a hearing committee's recommendation, the Office of Lawyers Professional Responsibility shall dismiss the case or recommend discipline to the Supreme Court; and
(6)	within 90 days of the Office of Lawyers Professional Responsibility's recommendation, the Minnesota Supreme Court shall render a final decision.

Imposing real deadlines like these would be a giant step toward cutting red tape and creating a system that actually brings justice to victims of misconduct.

In many ways Minnesota has an innovative attorney discipline system. The state hosts the only disciplinary Web site that allows consumers to fill out and submit complaints of misconduct online, and the Lawyers Professional Responsibility Board site also offers a function for searching public discipline records of state attorneys. Minnesota is one of only 13 jurisdictions that applies the fair "preponderance of the evidence" standard in proving misconduct, and 40 percent of the members of hearing bodies are nonlawyers - percent higher than in the average state. However, these good practices intended to empower legal consumers are far less meaningful when Minnesota fails to provide essentials of the disciplinary process such as thorough investigation of complaints, consequential public sanctions and timely resolutions.

We look forward to the response of the Advisory Committee to Review the Attorney Discipline System to these important challenges. Should you need further assistance from our organization as you consider these critical issues, please feel free to contact me at (202) 887-8255. Thank you for your consideration.

Sincerely, Suzanne M. Blonder Senior Counsel