by Jon Tynjala, Esq.
In 2022, at the request and invitation of the Minnesota Supreme Court, a team from the American Bar Association Standing Committee on Professional Regulation conducted a thorough review of the Minnesota Rules on Professional Responsibility (“Rules”) and issued its report to the Minnesota Supreme Court in September of that same year (“ABA Report”). The Report made several recommendations for changes to the Rules. The Court accepted some of those recommendations in whole or in part and rejected others as set forth in an Order dated August 23, 2023 (“Court Order”).
Of particular interest, the Supreme Court agreed with the ABA Report that Minnesota should adopt a “diversion program” for lawyers as an alternative to discipline in cases of “isolated” or “nonserious” misconduct. The Order established an Advisory Committee tasked with drafting and recommending specific language to implement the changes to the Rules as set forth in the Court Order. Because of the application of diversion to cases where mental health or substance use issues are present, on behalf of LCL, I applied for and was appointed to the Advisory Committee and as Chair of the Diversion Subcommittee. The Advisory Committee began its work in November of 2023 and is required to make its final recommendation to the Court at the end of June of 2024.
Many other states have already adopted some form of “diversion” as an alternative to discipline (typically in place of private probation or admonition). These programs do not usually apply where some form of public discipline would otherwise be warranted. An example of “nonserious” misconduct might include a minor violation of the trust account rules for lawyers that resulted from negligence (intentional misappropriation and similar acts would not typically be eligible for diversion). In such a case, and in lieu of “discipline,” a diversion program could mandate that the lawyer attend a class on the proper maintenance and administration of trust accounts.
While the typical case might involve nonserious misconduct like that described above, another category of more serious violations might nonetheless be eligible if the violation at issue is of an “isolated” nature and results from a mental health condition, including substance misuse. In such a case, the diversion agreement could require the lawyer to seek treatment, attend AA or other recovery meetings, attend therapy, or provide periodic drug or alcohol screenings. Each agreement would be tailored to the violation involved and the type and severity of the condition at issue. The rule would provide flexibility and discretion to the Director of the Office of Lawyer Professional Responsibility to craft a program that meets the needs of the Office, protection of the public, and the well-being of the lawyers involved.
The bottom line is that diversion is not discipline. Further, under the rule as currently drafted, a diversion agreement cannot include an admission of misconduct. Upon successful completion of a diversion agreement, the matter is considered closed. More importantly, during the pendency of the term of the agreement (and following successful completion), the lawyer is not “under investigation” for purposes of the Rules and is not subject to a disciplinary proceeding. This helps reduce the stigma around getting help. It allows the lawyer to get better in order to prevent future misconduct while preserving the lawyer’s dignity through the process.
The Supreme Court has requested that the Advisory Committee seek public input on the diversion rule. If you would like to provide your comments or thoughts on the diversion program under consideration, the link to the request for public input can be found here: https://www.mncourts.gov/About-The-Courts/NewsAndAnnouncements/ItemDetail.aspx?id=2345
The deadline for requesting to speak at the May 6th public input meeting is 5:00 p.m. on Monday, April 29th. Written comments can be submitted through the Public Input Form until 5:00 p.m. on Monday, June 3rd.
If you have any questions, feel free to reach out to me directly at [email protected] or call me at 651-646-5590.