No resolution presented herein reflects the policy of the Minnesota State Bar Association until
approved by the Assembly. Informational reports, comments, and supporting data are not
approved by their acceptance for filing and do not become part of the policy of the Minnesota
State Bar Association unless specifically approved by the Assembly.
Report and Recommendation to the MSBA to Support Proposed Changes to the Rules on
Lawyers Professional Responsibility
MSBA Rules of Professional Conduct Committee
June 8, 2016
RESOLVED: That the MSBA advise the Court that it supports the proposed changes to the Rules on
Lawyers Professional Responsibility put forward by the Lawyers Professional Responsibility Board.
REPORT
Members of the Rules of Professional Conduct Committee conducted an electronic meeting for
purposes of voting on proposed changes to the Rules on Lawyers Professional Responsibility.
The changes are proposed by the Lawyers Professional Responsibility Board and were posted by
the court for comment on May 20. Comments are due July 19. The Rules of Professional
Conduct Committee acted quickly on this matter so the Judiciary Committee could consider their
recommendation when they met June 6, and allow the Assembly to address the matter at their
June meeting.
A majority of the Rules of Professional Conduct Committee members voted to support the
proposed changes. One member did not vote, but shared draft comments he is considering
submitting to the court, indicating his objection to establishment of a ten-day window for
ordering a transcript in reinstatement cases and arguing for a 30-day window (see Addendum 1,
Cooperstein Letter). Mr. Cooperstein noted that he may decide to edit, supplement, or change his
comments before submitting them to the court. Another member voted no for the reasons stated
in Mr. Cooperstein’s letter. No members indicated they were specifically opposed to the
suggestion that the ten-day period be lengthened. The final vote tally was ten in favor of the
proposed changes and one opposed.
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Addendum 1
Law Office of
ERIC T. COOPERSTEIN,
PLLC
2600 U.S. Bancorp Center
800 Nicollet Mall, Suite 2600
Minneapolis, MN 55402
612-436-2299 (W)
952-261-2843 (C)
etc@ethicsmaven.com
June
10, 2016
DRAFT – FOR DISCUSSION
Clerk of Appellate Courts
25 Rev. Dr. Martin Luther King Jr. Blvd.
Minnesota Judicial Center
St. Paul Minnesota 55155
Re:
Dear Name:
I am writing to comment on the Director’s proposed amendments to Rule 18, Rules on Lawyers
Professional Responsibility (RLPR), regarding the procedures following a panel determination and
recommendation on a lawyer’s petition for reinstatement.
I agree generally that the lack of a provision corresponding to those of Rule 14(e), RLPR for disciplinary
proceedings would help clarify the reinstatement process following a hearing by a LPRB Panel. However,
there is a difference in the procedures between discipline proceedings and reinstatement proceedings
that makes a ten-day deadline to order a transcript potentially burdensome and unworkable for both
sides, but more so for the Petitioning attorney.
In a disciplinary proceeding, the Court appoints a judge to serve as the Court’s referee and sets a
deadline, commonly referred to as the “return date,” for the referee to file his findings, conclusions, and
recommendation with the Court. Although the ten-day deadline specified in Rule 14(e) for the parties to
request a transcript is extraordinarily short, the parties at least have a good idea of when the referee’s
findings will be filed (usually on or a few days before the return date). The Respondent and his or her
counsel (and the Director’s Office internally) can anticipate the timing necessary to discuss the findings
and determine whether it will be necessary to order a transcript and make the appropriate financial
arrangements.
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This is not the case in the reinstatement process. In a reinstatement, the LPRB panel has no particular
deadline for rendering its decision following a hearing. The Panel may take the matter under advisement
and it may take the Panel several weeks or longer to render a written decision. In one case I handled,
the Panel did not issue its decision for nearly two months. A ten-day window, which may include only
five or six business days, is too short to review the Panel’s findings, discuss them with the client, and
make financial arrangements to order the transcript, especially given that either the attorney or the
client could be unavailable due to other commitments, illness, or vacation.
Although the ten days to order a transcript following a referee’s discipline findings is short –shorter than
the appeal periods for all but the most rare legal matters—one can at least make a public policy
argument that discipline findings should be acted upon quickly to protect the public. This is no so in
reinstatement hearings, in which the lawyer is seeking the return of his license.
If the Court is going to amend rule 18(c), an appropriate amount of time to order a transcript would be
30 days, similar to the periods to file an appeal and order a transcript in other matters. If the Court is
seeking to coordinate the two deadlines, it would be better to extend the deadline for ordering a
transcript following the filing of a referee’s findings rather than to make both deadlines unnecessarily
short.
Please contact me if you need further information.
Sincerely,
Eric T. Cooperstein
Enc.
C:
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