Kennedy v. L.D.

430 N.W.2d 833, 1988 Minn. LEXIS 256, 1988 WL 112526
CourtSupreme Court of Minnesota
DecidedOctober 28, 1988
DocketC8-87-2361, CX-87-2362 and C7-88-238
StatusPublished
Cited by8 cases

This text of 430 N.W.2d 833 (Kennedy v. L.D.) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kennedy v. L.D., 430 N.W.2d 833, 1988 Minn. LEXIS 256, 1988 WL 112526 (Mich. 1988).

Opinions

PER CURIAM.

On November 20 and 24, 1987 and January 14, 1988 three different panels of the Lawyers Professional Responsibility Board (Board) summarily dismissed complaints which had been filed by petitioner, William Kennedy, against attorneys employed by the Office of Lawyers Professional Responsibility (Director’s Office). Kennedy thereafter petitioned this court for review of the summary dismissals.1 In his petition, Kennedy asked that this court reverse the dismissals, declare the Board policy invalid and establish a different policy for handling complaints against members of the Board and staff of the Director’s Office. We find that the existing policy of the Board does not create an inherent conflict of interest and we affirm the summary dismissals made by panels of board members pursuant to the policy.

Rule 23 of the Rules of Lawyers Professional Responsibility gives the Board authority to “adopt rules and regulations * * * governing the conduct of business and performance of their duties.” The policy challenged by petitioner in this case is one which was adopted by the Board on April 26, 1985 and provides in pertinent part:

Complaints against the Director or his Assistants
Upon receipt of such complaint, the Director will forward the complaint to the Chairman of the Board. The Chairman will submit the complaint to a Lawyers Board Panel appointed in rotation, which will determine whether the matter can be summarily dismissed. If the complaint cannot be dismissed, the Panel will submit the complaint to the Supreme Court for assignment to special counsel for investigation. If special counsel determines the matter should be presented to a panel, it will be presented to a special panel as provided below.
Complaints against Board Members
The initial handling of complaints against Board Members will be handled within the normal channels of the discipline system. The Director will receive the complaint and determine whether it can be summarily dismissed. If it cannot, and it is of a routine nature and normally assigned to a District Ethics Committee for investigation, the Director will do so. If the District Ethics Committee recommends a dismissal and the Director agrees, he will do so. If the District Ethics Committee recommends further investigation or the District Ethics Committee recommends dismissal but the Director determines further investigation is necessary, the matter will be assigned to a special counsel for investigation, and if necessary, presentation of charges to a special panel.

Kennedy’s argument is that the Board and the Director’s Office are not separate entities and therefore, allowing Board members to initially review complaints against attorneys in the Director’s Office creates an impermissible conflict of interest. The United States Supreme Court has held in a due process context that to successfully claim bias in an administrative adjudication one must “overcome a presumption of honesty and integrity in those serving as adjudicators” and show that the combination of investigative and adjudicative powers in the same individuals poses “a risk of actual bias or prejudgment.” Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975). Thus, analysis of Kennedy’s argument requires examination of the structure and the operation of the lawyer disciplinary enforcement system in Minnesota and of possible bias on the part of individual Board [836]*836members who served on the reviewing panels.

The structure and operational policies of Minnesota’s system for lawyer discipline are similar to those in other jurisdictions and comply with the ABA Standards for Lawyers Discipline and Disability Proceedings (Standards) adopted in 1979. According to those standards, the state’s highest court has ultimate responsibility for the administration of the lawyers disciplinary system. Standards 2.1; In Re Integration of Nebraska State Bar Association, 133 Neb. 283, 275 N.W. 265 (1937). The ABA recommends that courts establish a single statewide disciplinary agency with clearly differentiated components for prosecution and adjudication. Standard 3.1. The agency should employ full-time disciplinary counsel to perform the prosecutorial functions and a Board made up of practicing attorneys and public members of the agency should handle adjudicative functions. Standard 3.2.

In Minnesota, the prosecutorial and adjudicative functions are separated even more clearly than is suggested by the ABA standards. The Board is divided into an Executive Committee, which has responsibility for the general supervision of the Director’s Office, and panels, which conduct hearings to determine whether probable cause exists to petition the Court for disciplinary action. Minn.R.Law.Prof. Resp. 4(c), (d), (e) & 9(i)(l). To ensure that Board members do not have responsibility for both supervision of the Director’s Office and adjudication of charges brought by the Director’s Office, members of the Executive Committee are not allowed to sit on panels during their tenure as executive committee members. Furthermore, the Director is appointed by the court, not the Board. The Board does not have ultimate authority over the Director. Minn.R.Law. Prof.Resp. 5(a). With these provisions, the structure of the system for lawyer disciplinary enforcement in Minnesota exceeds the structural standards set out by the ABA and avoids creating any personal, professional or pecuniary conflicts of interest.

The operational policy adopted by the Board for handling complaints against Board members and Director’s Office staff also complies with ABA standards. In fact, the Minnesota policy is nearly identical to Rule 17 .J of the ABA Model Rules for Lawyers Disciplinary Enforcement which provides that complaints against members of the board should be submitted directly to the court and complaints against disciplinary counsel should be submitted directly to the board.

Kennedy proposed that all complaints against staff of the Director’s Office or Board members be referred directly to this court or the court of appeals or a panel of district court judges. He represented to the court that such a policy “would be in accord with the policies established in other jurisdictions” and in support of such representation quoted portions of court rules from Pennsylvania, Rhode Island and Tennessee. However, the cited rules, when read in their entirety, are exactly the same as the existing policy which he challenged. Rule 209(b), Pennsylvania Rules on Disciplinary Enforcement provides:

Complaints against members of the Board involving alleged violations of the Disciplinary Rules shall be submitted directly to the Supreme Court. Complaints against Disciplinary Counsel involving alleged violations of the Disciplinary Rules shall be submitted directly to the Board and assigned to a reviewing member for disposition.

The Rhode Island Court Rules Annotated contain an almost identical provision except that they refer to the Code of Professional Responsibility rather than Disciplinary Rules and to “counsel” rather than “disciplinary counsel”. See Rule 42-7, Rhode Island Court Rules Annotated. Similarly, Rule 9, Section 9 Tennessee Supreme Court Rules on Disciplinary Enforcement provides:

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Bluebook (online)
430 N.W.2d 833, 1988 Minn. LEXIS 256, 1988 WL 112526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-ld-minn-1988.