The Life Cycle of a ComplaintJennifer Bovitz

Senior Assistant Director, OLPRJennifer.Bovitz@courts.state.mn.us; 651-296-3952

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How Does a Complaint Get Filed?

Mail

Fax

Online (includes options for the following languages: Hmong, Russian, Somali and Spanish)

In-person (ADA compliant office)

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A Complaint Has Been Filed -Now What?

Initial Review by Duty Attorney

Does the complaint provide a basis for a reasonable belief that misconduct may have occurred?

If NO - complaint dismissed w/o investigation (Summary Dismissal)

If YES - a Notice of Investigation is prepared and the complaint is investigated by a DEC or the Director’s Office

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The Rules & “The Test”

The RLPR are the procedural rules that govern the disciplinary process

Rule 8 – (a) Initiating Investigation. At any time, with or without a complaint or a District Committee’s report, and upon a reasonable belief that professional misconduct may have occurred, the Director may make such investigation as the Director deems appropriate as to the conduct of any lawyer or lawyers.

Assuming the facts as stated, does the alleged conduct constitute a violation of the Rules of Professional Conduct?

The Director has the discretion not to investigate - “may”

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Who Investigates (generally)?

OLPR Respondent already on a

caseload Trust account audits Matters that involve sensitive

topics County Attorney complaints Out-of-state respondents Prisoner complaints Complex or solely legal issue

complaints Judge initiated complaints

DEC All others

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Notice of Investigation (NOI)

NOI requires lawyer to respond in 14 days to the complaint

Rule 8.1, MRPC, & Rule 25, RLPR, require cooperation

Quickest way to go to public discipline – fail to respond to NOI

If the complainant is a client of respondent, must also provide copy of response to client, Rule 20(a)(5), RLPR

Complainants including those who are not clients, have the right to respond to the lawyer’s response. Rule 6(d), RLPR.

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Privileged Information in Response to Complaint

Rule 20(a)(5), RLPR – Response to complaint that “involves information as to which another client has a privilege” may be deleted from the response prior to providing complainant with a copy.

Similarly, when providing a complainant with a copy of respondent’s response pursuant to Rule 6(d), RLPR, investigators will be sensitive to issues of privilege, but only if they are aware.

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DEC Recommendations *** DEC recommendations are not binding on the Director ***

In re Nwaneri, 896 N.W.2d 518, 523-524 (Minn. 2017).See also Rule 8, RLPRDEC investigation and report should be received within 90 days of DEC receiving the complaint, unless good cause is shown. Rule 7(c), RLPR.

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Options for DECs at Conclusion of Investigation Discipline Not Warranted (DNW)

Insufficient clear and convincing evidence of a rule violation.

Private Admonition

Rule violation has been established by clear and convincing evidence but the violation is “isolated and non-serious.”

Public Discipline (Referral to Panel of Board/a/k/a Charges)

Rule violation has been established by clear and convincing evidence and it cannot be said that the violation was isolated and non-serious.

Investigate the Matter Further

Committee is split on determination; cooperation of one or more parties has been less than complete; matter complained about does not show violation but another issue has arisen that should be looked at, etc.

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Process When Recommendation Returned to OLPR

If DNW

Randomly assigned to Senior Assistant Director to review.

Senior Assistant Director will either agree and sign off on DNW or disagreeand state reason.

If disagree with DNW, the file then gets sent to the Director for in-house assignment.

Some reasons for not signing off on a DNW include:

Some possible violations (issue spotting) missed (e.g., retainer agreement language clear violation but not part of complaint).

Complainant never had a chance to respond to the lawyer’s response(or was never contacted).

Assistant Director does not agree with the analysis.

All allegations of violations have not been addressed or investigated.

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Discipline Not Warranted (DNW)

Respondent & complainant receive a copy of determination which explains the basis

If the complainant is unhappy with the Director’s determination, the complainant may appeal that determination

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Process Cont.

If Admonition, Further Investigation, or Public Discipline Recommended Director assigns to an attorney in-house for review. Attorney reviews the recommendation and determines if follow-up is

needed, if the recommendation is consistent, and may seek additional information from parties if necessary.

Typically sends DEC report and recommendation to respondent for review and response before taking further action.

Generally, if DEC recommends admonition or public discipline and the Director issues a DNW, we contact investigator to let them know why.

No official standard of review or deference provided to DEC determinations, but we take seriously and rely upon the work of the DECs.

Generally DECs do an excellent job and we agree most of the time; periodically, we disagree.

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Admonition (Private)

“In any matter, with or without a complaint, if the Director concludes that a lawyer’s conduct was unprofessional but of an isolated and non-serious nature, the Director may issue an admonition.”

Rule 8(d)(2), RLPR

What is Isolated and Non-Serious? Not something the Court has imposed public discipline for

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Private Probation

In any matter, with or without a complaint, if the Director concludes that a lawyer’s conduct was unprofessional and that a private probation is appropriate, and the Board Chair or Vice-Chair approves, the Director and the lawyer may agree that the lawyer will be subject to private probation for a specified period up to two years, provided the lawyer throughout the period complies with specified reasonable conditions.

Rule 8(3)(i), RLPR

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Private Probation (cont.)

Attorney must agree

Conduct is of a kind that is amendable to supervision

Usually used in cases that are close calls for public discipline

For a specified period, up to two years (subject to an additional two years)

Ability to file a petition for disciplinary action for failure to comply with the terms of the probation or further misconduct

Specified reasonable conditions (related to the underlying misconduct)

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Appeals of Private Discipline

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Complainant Appeal of DNW, Admonition, Stipulated Probation-Rule 8(e), RLPR

The reviewing Board member may:

(1) approve the Director’s disposition; or

(2) direct that further investigation be undertaken; or(3) if a district ethics committee recommended discipline, but the Director determined that discipline is not warranted, the Board member may instruct the Director to issue an admonition; or

(4) in any case that has been investigated, if the Board member concludes that public discipline is warranted, the Board member may instruct the Director to issue charges of unprofessional conduct for submission to a Panel other than the Board member’s own.

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Complainant Appeal of DNW, Admonition, Stipulated Probation-Rule 8(e), RLPR

Complainant appeals for private discipline are assigned to a Board member on a rotation basis

No further review options for complainant if Director’s determination affirmed

The reviewing Board member shall set forth an explanation of the Board member’s action.

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Admonition –Appeal by Lawyer

The lawyer may appeal the admonition “by notifying the Director in writing within fourteen days . . . that the Director so present the charges to a Panel which shall consider the matter de novo or instruct the Director to file a Petition for Disciplinary Action in this Court.”

Rule 8(d)(2)(iii), RLPR

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Public Discipline

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Charges First step in seeking public discipline

Director has determined that unprofessional conduct is neither isolated nor non-serious

Director issues charges of unprofessional conduct

Respondent has the right to have the question of probable cause considered by a Panel of the Lawyers Professional Responsibility Board or may waive probable cause process

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Burden of Proof

Clear and Convincing

When a party has the burden of proving any claim or defense by clear and convincing evidence, it means that the party must present evidence that leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true. This is a higher standard of proof than proof by a preponderance of the evidence, but it does not require proof beyond a reasonable doubt.

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Panel Outcomes from Charges Presentation

Finding of Probable Cause If Panel finds p/c instructs Director to file petition for

disciplinary action. Rule 9(j)(1)(ii), RLPR. Case becomes public

Admonition Respondent attorney has appeal rights which vary

depending on whether a full hearing was conducted. Rule 9(j)(1)(iii), RLPR.

No discipline

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Petition for Public Discipline

If the Panel finds probable cause, the Director is instructed to file a petition for disciplinary action

Supreme Court appoints a referee to conduct a hearing, making findings of fact and a recommendation for discipline

Unless the Court directs otherwise, the hearing is conducted in accordance with the rules of civil procedure

The referee has the powers of district court judge

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Referee Hearings - Rule 14, RLPR After hearing, referee issues findings of fact, conclusions of law and

recommendation for discipline

Findings and conclusions are conclusive unless either party orders a transcript within 10 days & notifies the Court; final discipline is always reserved to the Court

Minnesota Supreme Court shall within 30 days of referee’s findings, conclusions & recommendation set a time for hearing

Briefing schedule & oral arguments

Final determination

From petition to final determination usually at least a year

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Stipulations

At any point in the process, respondent and OLPR can stipulate to a particular disposition

Stipulation is not binding on the Court, but some deference is given

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Supreme Court DispositionUpon conclusion of the proceedings, the Court may:

Disbar the lawyer,

Suspend the lawyer indefinitely or for a stated period, Place the lawyer on probationary status, Reprimand the lawyer, “Make such other disposition as this Court deems

appropriate.” Rule 15, RLPR

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Closing Questions?

Thank You!

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