MINUTES Chair Maring called the meeting to order at 9:00 a.m. She noted that efforts are underway to select a successor for Marcia O'Kelly, who recently retired from the faculty of UND School of Law. She then drew Committee members' attention to Attachment B (November 8, 2000) - Minutes of the March 16, 2000, and May 9, 2000, meetings. It was moved by Judge Kleven, seconded by Jim Fitzsimmons, and carried unanimously that the minutes be approved. Administrative Order 7 - Review of Changes Chair Maring briefly reviewed amendments adopted by the Supreme Court to Administrative Order 7, which governs the Committee and its activities. First, she noted that the amended rule, in Section A, now provides for membership terms. That will require, she said, that membership terms be selected at this meeting. The following terms were drawn by lot: Chair Maring - 3 years; Pat Durick - 2 years; Jim Fitzsimmons - 2 years; Judith Howard - 3 years; Judge Kleven - 1 year; Judge Schneider - 1 year; Marcia O'Kelly's successor - 3 years. Members will be eligible for reappointment and will serve three year terms if reappointed after their initial terms. Chair Maring then noted that Section C of Administrative Order 7 was amended to expand the Committee's study responsibilities. Specifically, she said, Section C(4) now provides that the Committee may review information and make recommendations on bias-related issues not identified in the Commissions' Final Report but which may be related to or have an effect upon the courts or the judicial process. The Committee, she said, should give thought to potential areas of inquiry over the course of future meetings. One possible area of study, she said, concerns initiatives in other states to conduct law firm self-audits, which are most often done under the auspices of a state bar association. She drew attention to Appendix B of the March 16, 2000, minutes, which describes a law firm self-audit effort initiated by the Minnesota State Bar Association. She asked whether a similar effort should be considered in North Dakota and, if so, what the role of the Committee might be. She noted the possibility of gathering preliminary information concerning the number of women in North Dakota law firms and then, perhaps, contacting the bar association to determine the level of interest. Jim Fitzsimmons said the issue is worth at least a preliminary review. But, he said, the first task should be to define what constitutes a "law firm" for purposes of gathering information. Judge Kleven noted that in Grand Forks there are no large law firms left and developing a useful survey of law firm composition and a self-audit effort may entail a substantial commitment of time for what may be only a few law firms affected. Jim Fitzsimmons suggested focusing on law firms with 5 to 8 lawyers and law firms with 9 or more lawyers. After discussion, Committee members agreed this would be a useful initial focus for surveying law firm memberships. Pat Durick cautioned against simply relying on raw numbers concerning men and women in law firms. To do so, he said, may not provide an accurate assessment of whether or how gender issues may affect the number of women in North Dakota firms. He suggested it may be helpful to consider other possible factors, such as the rate at which women are being hired in the state, job offer numbers, and class ranking. Judith Howard said gathering initial information concerning the number of women in law firms will aid the Committee in deciding whether any further review is worthwhile. Pat Durick said it may be useful to at some point survey graduating classes to determine how graduates fare in obtaining law firm positions and at what comparative rate women are hired into law firms. Justice Maring noted that law firm self-audit surveys, such as that conducted in Minnesota, not only identify the number of women in law firms, but also may serve a purpose in educating about law firm internal practices that may initially inhibit hiring women or afterwards inhibit women from advancing within the firm. After discussion, it was agreed the Committee should assemble preliminary information concerning the number of women in North Dakota law firms - specifically law firms with 5 or more lawyers. Justice Maring noted that the following issue, that of law firm self-audit surveys, is more complicated in that a relatively sophisticated survey instrument is needed, as well as the resources to distribute and analyze the survey results. That issue, she said, can perhaps be discussed with the bar association if the Committee concludes such an effort may be worthwhile. October 2000 Progress Report - Review Chair Maring next drew attention to Attachment D (November 8, 2000) - the Committee's October Progress Report. She noted that nearly all recommendations made in the Commission's Final Report have been addressed. Some, she said, require some additional attention. She said the law firm survey and self-audit may assist in additionally addressing Recommendation A5, which concerns a bench and bar effort to facilitate a dialogue on gender fairness issues in the practice of law. She noted that some recommendations regarding gender issues in jury service and juror orientation were referred to the Jury Standards Committee (A8, B4). Staff said the Jury Standards Committee recently completed work on a couple of projects. At a future meeting, he said, the Committee will continue an earlier discussion about developing a juror orientation program or video - which may include a bias component. Chair Maring observed that several recommendations involve education initiatives and education of the bench and bar on bias issues will continue to be a focus of attention in future programs. She said the recent Bench and Bar program offered a segment on sexual assault and DNA evidence, as well as ethical issues. She noted the possibility of a program on sexual harassment, the last having been some time ago, and a program on Rule 8.4 of the Rules of Professional Conduct, which was recently amended to identify manifestations of bias as a form of lawyer misconduct. She asked for any further suggestions about future education programs. Judge Kleven suggested a judicial education program on discrimination issues in employment, particularly in light of the number of clerk employees that will become state employees in April 2001. She said clerk personnel should be aware of issues in this area. With respect to a program on Rule 8.4, Justice Maring noted that she had recently attended a Minnesota bar program on Minnesota's bias as misconduct rule. She said the program discussed the constitutionality of such rules and presented vignettes regarding appropriate and inappropriate courtroom conduct. It was agreed that a similar kind of program should be considered regarding North Dakota's rule. Justice Maring said efforts are also underway to include a bias component in the 2001 Judicial Institute education program. Informal Complaint Procedure - Status Chair Maring drew attention to Attachment E (November 8, 2000) - the informal complaint procedure as modified by the Supreme Court and distributed for comment. She said the Court has received several comments on the proposed procedure. She said the Joint Committee on Attorney Standards suggested that if the procedure is adopted, it should not apply to lawyers. She said the Joint Committee indicated it is currently reviewing a proposal to establish a lawyer diversion program, which is viewed as a vehicle to address many of the same conduct issues. She said comments from the chair of the Disciplinary Board were generally positive, but there was concern about eliminating the obligation to report misconduct (Section 3, "Application of Other Provisions"). She said comments from the chair of the Judicial Conduct Commission suggested the informal procedure should be a part of the judicial discipline process and that the Commission's rules should be amended to accomplish that end. She said several comments were received from lawyers, most of which questioned the establishment of the informal procedure. Next Meeting Following discussion, it was agreed the Committee's next meeting should be in early April 2001 if possible. There being no further business, the meeting was adjourned at 10:20 a.m. ____________________________________ Jim Ganje, Staff
November 14, 2000 Members Present
Justice Mary Muehlen Maring, Chair
Pat Durick
Jim Fitzsimmons
Judith Howard
Judge Debbie KlevenMembers Absent
Judge Tom Schneider