We Are Not Alone
By Martin Cole
When lawyers have an issue for which information
is needed, there are usually numerous sources to which the attorney
can turn. The substantive law or procedural rules may
be available to research, colleagues or mentors to consult. The internet now offers a plethora of sites
from which information also can be obtained—much of it accurate. If an ethical issue should arise, the Director’s
Office’s advisory opinion service may be contacted.
A
somewhat new and popular method of information exchange is the listserv
(or list-server or email group), a sort of email discussion group
on which questions, responses and comments can be posted by one member
of the group and then distributed to all others.
Responses usually can either be posted back to all members
through the listserv monitor or sent directly to the person posting
the inquiry. Postings on many listservs
run the gamut from serious research issues to quasi-gossip. Prompt, common-sense answers from experienced,
fellow practitioners may be the greatest benefit of such services.
The MSBA operates several listservs,1
such as one for solo and small-firm lawyers.
Our Own Little Niche
Lawyers
who practice extensively in the areas of professional responsibility,
lawyer discipline, or law client protection admittedly are laboring
in a niche area of the law. Those
of us in the Director’s Office, along with the attorneys who regularly
represent respondents in lawyer-discipline proceedings or otherwise
advise attorneys on professional responsibility issues, are a comparatively
small group. Like many substantive areas of law, professional
responsibility has become an increasingly difficult field for an attorney
to “dabble” in successfully.
There
is an ever-growing body of substantive law and literature for the
area of professional responsibility, but there are relatively few
sources of personal guidance for lawyers or for someone seeking to
gain information about the field.
To whom can attorneys who practice in the area turn for insight
and guidance?
Within
the field of professional responsibility and client protection there
are several organizations that exist in part to serve those types
of needs and to serve as a means of exchanging information with similarly
situated attorneys on a national and even international level.
The National Organization of Bar Counsel (NOBC) describes itself
as an organization of legal professionals who enforce ethics rules
that regulate the professional conduct of lawyers.
Essentially, NOBC’s members are the attorneys who work in state (and Canadian provincial) disciplinary
agencies. “Bar counsel” may
seem an odd or outdated term these days, but it traces its roots to
the fact that many states were mandatory-bar states in which the state
bar association handled the lawyer discipline function—hence the attorneys
representing the bar association were “bar counsel.”
Although many states have disciplinary agencies that are part
of the judicial branch under the authority of their state’s supreme
court, as Minnesota does, in some states bar associations are still
responsible for the lawyer-discipline function.
“Disciplinary counsel” may be a better generic term today.
Groups
similar to NOBC also exist for professionals in the lawyer ethics/regulation/client
protection area: the National
Client Protection Organization (NCPO) for client protection counsel
(the Director’s Office provides staff services to Minnesota’s Client
Security Board) and the Association of Professional Responsibility
Lawyers (APRL). APRL is an
organization open to all professionals in the field of professional
responsibility, including law professors, malpractice litigators,
and inhouse ethics counsel; it particularly
serves the needs of lawyers who represent attorneys in disciplinary
proceedings and who advise lawyers privately on such issues.
Each of these organizations has a listserv where disciplinary
counsel can seek information from fellow professionals. The American Bar Association Center for Professional
Responsibility administers listservs for
NOBC and the client protection field.
Counsel from Colleagues
In
the lawyer-discipline area, when assessing a particular set of facts
as to whether a rule violation has occurred, and if so what level
of discipline is appropriate, we look first of course to any Minnesota
decisions for guidance. The
Minnesota Supreme Court does the same.
But in some instances, there is no “precedent” on which to
rely. It can be an effective
research “short cut” to post a question on the listserv to other disciplinary
counsel, seeking input on whether they’ve faced such a situation,
how they proceeded, and whether there is any clear rule or case law
on the issue. Westlaw-type
research should find such cases too, but local disciplinary counsel
will be more familiar with their own decisions and can provide additional
insights as well, including practice pointers on the evidence needed
to prove such an allegation or the types of arguments that might be
used to counter such violations. I’m
sure that respondents’ counsel make similar use of APRL’s
listserv.
Groups
such as the NOBC fulfill other purposes for their members as well. Many publish newsletters to their members with
both news items about the organization and substantive articles submitted
by members. Bench & Bar of Minnesota is in fact just such a publication for
the MSBA. Several MSBA sections
publish their own newsletter/magazine for their members as well. Almost all such groups maintain websites nowadays. NOBC’s website, for
example, offers disciplinary case summaries from all jurisdictions
to its members in a searchable format, and includes links to many,
other related websites that deal with professional responsibility. The organization also sponsors two annual seminars
in conjunction with the ABA annual and mid-winter meetings. These meetings offer continuing legal education
programs as well as various committee reports and, of course, networking
with your fellow bar counsel. Personally,
I always find it reinvigorating to get together with other lawyers
who work in this area and care deeply about it. NOBC also recently sponsored a week-long NITA
(National Institute of Trial Advocacy) course designed specifically
for disciplinary counsel.
Outside
of the area of professional responsibility, membership in groups such
as the MSBA solo and small-firm group mentioned above can provide
more than just a listserv exchange of information.
It can also help substitute for the mentoring process that
often occurs in larger firms or among attorneys who office near each
other. Getting to know similarly situated attorneys
through such a group, or through one of the many MSBA sections that
serve lawyers in various areas of practice, can introduce lawyers—especially
young lawyers or solo practitioners—to more experienced individuals
upon whom they can call for advice about the practice of law and about
life. In most groups, members are remarkably willing
to share their experience if called upon.2
Perhaps
the critical element to this discussion is that no one needs to or
should completely “go it alone,” even if you are a solo practitioner
and even if you lack a formal mentoring arrangement with someone. Becoming a member of some organization related
to your practice, through the MSBA or some other entity, can only
enhance your practice and provide you access to helpful information
and colleagues. Even if all
you do is create some new “cyber friends,” it may be well-worth the
effort and cost.
Notes
1
The MSBA website contains the following description of its listserv
or email lists:
