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What
We Don’t Do There are other programs
and ideas that Minnesota has chosen not to have as part of our disciplinary
system. Each of these programs
is in use in some other state or states, or is recommended by the
American Bar Association Model Rules for Disciplinary Enforcement. What are some of them and why don’t we have
them? Random
Audits Several states have
a random audit program by which attorney trust accounts are selected
and audited by professional staff to determine whether the attorney
is maintaining proper records and that the account is properly in
trust. States that maintain such a program seem convinced
that it, much like the overdraft notification program, both detects
misconduct and helps educate attorneys on their recordkeeping duties. Iowa is Several committees in
Minnesota have studied the possibility of instituting a random audit
program and consistently recommended against it, usually based on
the considerable expense of hiring professional auditors to conduct
such a program as compared to the anticipated benefits.
In addition, major attorney misappropriation often occurs outside
of a trust account. Thus, the
actual number of lawyer-thieves detected may not be significant.
Another perceived limitation on the effectiveness of a random
audit is that it is in fact “random,” unlike the overdraft notification
program, which is triggered only upon an actual “for cause” basis.
Insurance Check Notification A second program or
rule intended to detect misappropriation is what is known as an insurance
check notification or insurance payee notification program, which
was first used in New York and now exists in a small number of states. Whenever an insurance company issues a settlement
check to an attorney, principally in personal injury matters, the
insurer must copy the attorney’s client on the letter transmitting
the payment. This puts the client on notice that their attorney
is receiving funds so that the client can monitor the distribution
of the funds by their lawyer. This
requirement was established in response to several instances of lawyers
forging client endorsements on settlement checks and misappropriating
the funds, sometimes without the client ever knowing that their case
had even been settled. While an insurance notification
rule may have caught a small number of Minnesota’s lawyer thieves,
there have been concerns about and opposition to such a program in
many states. First, it appears
to single out a particular group of lawyers and one industry for additional
regulation. In most states, it also would require action
beyond a court rule to implement, such as legislative action or new
insurance regulations. Liability
concerns for insurers have also been raised should a payee be missed.
Central
Intake A group of programs
that several states have in some combination involve what are known
as central intake offices, diversion programs, and ethics schools. Central intake is an idea that grew out of ABA
proposals in the 1990s. The
idea is that all complaints are submitted to a central intake office,
a sort of clearinghouse, which reviews a complaint and determines
to whom or to what agency it should be referred.
In the ABA model, there would be lawyer discipline, fee arbitration,
attorney-client mediation, and other separate entities each with their
own function to which the matter may be referred for handling.
The central intake office itself also may act in an ombudsman
capacity and handle some “minor” misconduct allegations such as noncommunication
by simply contacting the lawyer and requesting they contact their
client. Some offices accept complaints by telephone. The supporters of such
a program believe it is especially consumer-friendly and, as part
of an overall program that includes the alternative methods of resolution
mentioned above, better meets the real concerns of most client-consumers
and complainants than treating all matters as disciplinary complaints. Wisconsin adopted such a program in 2001.
In Minnesota, without all of the mandatory entities to which
a matter could be referred, central intake would be a needless extra
step. Further, the Director’s
Office already refers simple fee disputes to voluntary fee arbitration. Ethics
Schools Along with central intake,
diversion and ethics schools also are becoming more common as a means
of dealing with “minor” misconduct.
California is an example of a state employing diversion to
an ethics school, which is somewhat akin to criminal diversion programs. An attorney who has had a complaint filed against
her, particularly one involving “minor” neglect or noncommunication,
is offered the opportunity to attend classes on professional responsibility
or take other law office management-type classes; if the attorney
takes up this offer, the complaint does not result in a disciplinary
decision or record. As long as the attorney then has no further
complaints for some period of time, no permanent record is maintained. In addition to concern
for the logistical challenges of creating and running such a “school,”
an argument raised in Minnesota against such a program is that Minnesota
has always treated violations of rules involving diligence and communication
as disciplinary matters; just like the violation of any other rule
of professional conduct, they are not considered “minor” matters. In addition, the mandatory ethics CLE requirement
has helped fulfill some of the same goals in Minnesota. Advertising Regulations One area of conduct
that some other states regulate to a far greater degree than does
Minnesota is lawyer advertising. In
particular, several states, including Florida and Missouri, require
preapproval of advertisements by an agency of the disciplinary system. To accomplish this purpose, Florida employs
an office roughly the size of the entire Director’s Office in Minnesota. Perhaps these states have experienced egregious
examples of improper lawyer advertising that established the need
for such an entity; fortunately that has never been the case in Minnesota. Very few instances of false or misleading advertisements
are brought to the Director’s attention, and just as few that, even
while not in violation of any disciplinary rule, exhibit particularly
poor taste. Some states also attempt
to regulate advertising content in a manner unlikely to be duplicated
in Minnesota. For example,
a New Jersey ethics opinion recently prohibited New Jersey lawyers
from advertising that they have been named a “Super Lawyer” by a publication
because it was considered inherently misleading.3
The opinion went on to further prohibit lawyers from participating
in any survey or poll that produces the basis for such designations. The opinion has been stayed and is under consideration
by the New Jersey Supreme Court as this is written. Even if that court upholds the opinion, the
Lawyers Board and Director’s Office have no intention of taking a
similar position in Minnesota. Lawyers
may continue to truthfully advertise their designation as a “Super
Lawyer” if it is factually true and the publication is identified.
Mandatory Malpractice Finally, one state,
Oregon, and several Canadian provinces require lawyers to maintain
malpractice insurance. Minnesota,
like almost all states, has not followed suit, and it does not appear
likely that mandatory malpractice insurance is on the horizon in the
foreseeable future. Minnesota has joined
a growing number of states in adopting one malpractice program, however. The idea of a malpractice disclosure requirement
has existed for several years, but was slow to catch on. It was tabled by the ABA initially and rejected
by most states. Slowly the
national trend has shifted, however, and such a requirement is now
in force in several states, including Minnesota.
Since October 1, 2006, Minnesota lawyers who represent private
clients must indicate whether they maintain malpractice insurance,
with what company, and whether they intend to continue to maintain
insurance in the upcoming year.4 The information will be available to the public
through the Attorney Registration Office. Again, insurance is not required; merely disclosure
of whether there is insurance is mandated. One possible aspect
of such a rule was not adopted. South
Dakota’s malpractice disclosure rule creates an affirmative duty on
attorneys to inform clients at the commencement of representation
whether or not they maintain insurance.
Such an obligation was not included in Minnesota’s new rule.
There is no perfect
set of programs that every state disciplinary system must or should
follow. Variation between states
is healthy in allowing new programs to be tested to determine their
value. Some programs, such as random audits, will resonate
and work in some states, but not in others. The Director’s Office, the Lawyers Board, and
the Client Security Board regularly review the alternatives that are
available, and will recommend any of them if it appears that protection
of the public can be significantly increased. For
some other programs, they’ll remain something that we don’t do. MARTIN
COLE is director of the
Office of Lawyers Professional Responsibility.
An alumnus of the University of Minnesota and of the University
of Minnesota Law School, he has served the lawyer disciplinary system
for 21 years. |
