Dan Crothers, Acting Chair
Judge Ralph Erickson
Acting Chair Crothers called the meeting to order at 9:35 a.m. and said Judge Erickson was unable to attend and had requested that he serve as chair. He then drew Committee members' attention to Attachment B (June 6, 2000) - Minutes of the March 23, 2000, meeting.
It was moved by Randy Lee, seconded by Dr. Olafson, and carried unanimously that the minutes be approved as mailed.
Dan Crothers reviewed Attachment C (June 6, 2000) - Revised draft rule amendments regarding lawyer advertizing. By way of summary, he said he, Judge Erickson, and Mike Williams had reviewed North Dakota's rules relating to lawyer advertizing and concluded they were lacking in several areas, including with respect to electronic advertizing. He said they used the ABA Model Rules and 1998 White Paper as a starting point and grafted existing North Dakota Rules into those rules where appropriate. He said they then edited from the Model Rules those (
overstruck) provisions considered inappropriate or inapplicable for North Dakota. He said the underscored language denotes additions to the Model Rules. He then requested comments on suggested changes to the individual rules.
With respect to Rule 7.1 (Communications Concerning the Services of a Lawyer ...), Dave Hogue wondered why the modifier "professionally" is used in the new language prohibiting false or misleading communications about a person "professionally" associated with the lawyer. (See e.g. Attachment C, p.1, lines 13, 27, 29). He said he interpreted the language as aimed at prohibiting a lawyer from doing indirectly what cannot be done directly, i.e., making false or misleading communications. But, he asked whether the language would allow him to hire a friend, someone not "professionally" associated, to solicit a client. Dan Crothers responded that the underscored language is taken from current Rule 7.1(a) of the North Dakota rules and is suggested as an addition to the Model Rule. Marilyn Foss said the rule provision is aimed at prohibiting the lawyer from making false and misleading communications about the services or qualifications of the lawyer or members of the lawyer's staff (investigators, paralegals, etc.). Randy Lee agreed and said Dave Hogue's concern about the use of third parties to do what the lawyer cannot do is addressed in Rule 8.4(a) of the North Dakota rules.
Dave Hogue noted that when practicing in tribal courts, lawyers often associate with tribal advocates, which need not be law-trained to participate in tribal court proceedings. He said some lawyers use tribal advocates and hold themselves out as having tribal advocates of certain levels of competence and expertise. In that context, he said, "professionally" associated may seem unnecessarily limiting. Marilyn Foss said it may simply be a question of what it means to be "associated " with someone.
With respect to the Comment to Rule 7.1, Alice Senechal drew attention to the concluding sentence providing that "[a] lawyer must avoid the use of any information which is not seen if that information would be inappropriate" under the rules. (Attachment C, p.2, lines 9-10). She asked what the language is intended to mean. Dan Crothers said the language is directed at the use of a "meta-tag", which is an unseen, computer-coded piece of information that enables search engines to index a site. The language, he said, is purposefully vague because to be too specific may run the risk of being outpaced by rapid changes in computer and Internet technology. Randy Lee suggested it might be helpful to add language noting met-tags as an example of the unseen information referred to in the proposed language.
It was moved by Randy Lee, seconded by Alice Senechal, and carried unanimously that language identifying meta-tags as an example be added to the last line of the Comment to Rule 7.1.
With respect to Rule 7.2 (Advertising), Randy Lee noted that the new language [paragraph (a)] addresses text-based communications, including correspondence and e-mail, as a medium for advertising. (Attachment C, p.2, lines 18-19). He wondered whether in paragraph (b), which deals with preserving the paper trail for enforcement purposes, it would be wise to require lawyers to keep a list of targeted direct mail and e-mail addressees. Dr. Olafson noted that advertisement could also be done by telephone. Randy Lee agreed and said maintaining a list of telephone numbers called could also be required.
It was moved by Randy Lee, seconded by Dr. Olafson, and carried unanimously that Rule 7.2(b) be modified to include after the period: "For written correspondence and e-mail, lawyers shall retain for two years from the date of sending a list of addressees. When a lawyer uses recorded voice communications and transmits that communication by telephone call, the lawyer shall retain for two years from the date of the call a record of the telephone numbers called."
With respect to Rule 7.3 (Direct Contact with Prospective Clients), Randy Lee noted the overstruck paragraph (c), and particularly the stricken language regarding the branding of envelopes in which advertising material is sent and notices at the beginning and end of any recorded communication. (Attachment C, p.4, lines 2-4). He said striking out the language appears to follow the purpose of Rule 7.3 as redrafted, which is less concerned with written and non-live telephone contacts. Those methods of contact, he said, now appear to be addressed in Rule 7.2(a). But, he said, the requirement that an envelope be marked "Advertising Material" did not reappear in the redrafted Rule 7.2. That requirement, he said, should be preserved. Dan Crothers said the subcommittee reached no firm conclusion about the need to stamp envelopes, but did not view it as an important requirement.
Dr. Olafson said there should not be a requirement that envelopes be stamped, indicating the contents are advertising material. He said there is no way to effectively regulate mail advertising by out-of-state law firms and to impose such a requirement would only burden North Dakota firms. Dan Crothers said there is also often a fine line between advertising and providing information.
Randy Lee observed that the first line of Rule 7.3(a) should be redrafted to make it clearer and less cumbersome. Particularly, he said, the dependent clause "through the lawyer's representative" is awkwardly placed.
It was moved by Alice Senechal, seconded by Randy Lee, and carried unanimously that the first line of Rule 7.3(a) be modified in part as follows: "The lawyer, or the lawyer's representative, shall not by in-person, live telephone contact, or ....... ".
With respect to out-of-state lawyers, Dave Hogue asked how the Model Rules and North Dakota rules regulate in-state contacts by, for example, Minnesota lawyers not licensed in North Dakota. As an example, he said, a North Dakota resident involved in an accident of some kind will be solicited by a number of out-of-state firms that profess to have some level of expertise in the particular area of law involved in the accident. Or, he said, the out-of-state firm will be hired by a representative of the person, such as a union. If direct mail solicitation is limited or prohibited for North Dakota attorneys, he said, then issues arise concerning how those limitations can, or will, apply to solicitations from out-of-state lawyers. Dan Crothers responded that Rule 8.5(b) subjects out-of-state lawyers to North Dakota's disciplinary jurisdiction.
Dan Crothers noted that the larger, impending issue for disciplinary agencies is what, exactly, constitutes the "practice of law." Sandi Tabor noted that the ABA is currently debating the concept of "multi-jurisdictional practice", which essentially contemplates that if a person has a law license from any jurisdiction, that person can practice law in any other jurisdiction.
With respect to Dave Hogue's question, Randy Lee said the lawyer's action may simply be that of soliciting a client from outside of the state. If, he said, the only mechanism used to do that involves interstate commerce, then North Dakota may have difficulty regulating that activity. However, he said, if the lawyer actually engages in the practice of law in North Dakota, then there is the previously referred-to disciplinary jurisdiction. If there is a need, he said, it may be possible to address some of these issues through an amendment to Rule 8.5(b).
Sandi Tabor suggested the need to review recent U.S. Supreme Court opinions regarding constitutional limitations involving matters affecting interstate commerce. Chair Crothers requested staff research appropriate caselaw and report to the Committee regarding a possible constitutional vehicle for regulating solicitation activities by out-of-state lawyers.
Randy Lee drew attention to Rule 7.3(b), which disallows soliciting employment from a client, even if permitted by Rule 7.3(a), if certain conditions are present. The draft, he said, proposes adding a new paragraph (3), which would disallow solicitation if receipt of the solicitation is uninvited and imposes an economic cost on the prospective client. (See Attachment C, p.3, lines 40-41). He observed that there is an economic cost to nearly everything and wondered if paragraph (3) is an indirect way of simply disallowing targeted direct mail solicitation.
It was moved by Murray Sagsveen and seconded by Fran Gronberg that proposed Rule 7.3(b)(3) be modified to read: "the receipt of the solicitation is uninvited and imposes any economic cost on the prospective client to respond to the solicitation."
Dan Crothers wondered whether the added language would exclude some kinds of costs other than those that might be associated with responding.
The motion carried unanimously.
With respect to Rule 7.4 (Communication of Fields of Practice), Dan Crothers said there is inconsistent language between the rule and comment. Particularly, he said, paragraph (c) of the rule suggests the establishment of a specialty certification process. (Attachment C, p.6, lines 5-8). He said that was not intended and resulted from a drafting oversight. He suggested that lines 4-8, currently without overstrike, be deleted and that overstruck lines 17-21 be retained. He said the overstrike on bracketed language set out on lines 3-4 and 16-17 should be retained. In response to a question from Randy Lee, he said the overstrike over the last sentence of the rule, beginning on line 21 and ending on line 24, would be retained.
It was moved by Dr. Olafson, seconded by Randy Lee, and carried unanimously that the Rule 7.4 amendments be modified in the manner described.
Randy Lee observed that, with these changes to the rule, those portions of the comment pertaining to a certification process should also be deleted.
It was moved by Randy Lee, seconded by Dr. Olafson, and carried unanimously that the draft Comment to Rule 7.4 be modified to delete lines 40-43 on page 6 and lines 1-6 on page 7.
Chair Crothers then drew attention to draft Rule 7.5 (Firm Names and Letterheads). Randy Lee noted the proposed addition of paragraph (e), which would permit the lawyer to identify legal assistants on letterhead and business cards. He asked whether it is sufficient to require, as the draft does, that the "status" of the legal assistant be clearly identified. He wondered whether the public would understand what a legal assistant is and is not permitted to do; primarily, that they are not licensed to practice law. Dan Crothers noted that the draft language is currently included in North Dakota Rule 7.2(e). Most people, he said, likely understand what legal assistants do as employees of a lawyer or law firm.
After further discussion, Chair Crothers said the approved changes would be incorporated in the draft proposal for final review by the Committee. He suggested the possibility of putting the draft proposal on the SBAND web-site for purposes of review and soliciting comments from members of the bar. Sandi Tabor said a short article about the proposal could also be included in an upcoming issue of the Gavel. Randy Lee suggested notifying the trial lawyers' association and other associations about the proposal in the event they have comments.
Client Access to Files
Staff distributed a revised draft Rule 1.19 prepared by Randy Lee which is to be reviewed in lieu of Attachment D (June 6, 2000). A copy of the revised draft is attached as an Appendix.
Randy Lee said the revised draft is his attempt to modify Attachment D based on previous Committee discussions. He said the substance of the proposal remains the same and is based on the Minnesota material previously presented to the Committee and discussed by Paul Jacobson, Disciplinary Counsel, at previous Committee meetings. But, he said, there are additions to be discussed. Specifically, he said, paragraph (a) addresses, and disallows, the asserting of the retaining lien provided for under state statute. He said the provision may not, however, extend far enough in that the lien is not only statutory; it is also a common law lien. He suggested that paragraph (a) should be further refined to also address asserting of the common law lien. Also new, he said, is paragraph (e), which provides a definition of things not considered "client files, papers, or property." He said paragraph (e)(3) focuses on those things that do not clearly fall under the definition of what is and is not client files, paper, or property as set out in paragraphs (b) and (e)(1)(2). Paragraph (e)(3), he said, would treat any lawyer work product not defined as client files under paragraph (b) as not being client files, papers, or property. He said paragraph (g) responds to a question posed by Dave Hogue at the last meeting regarding a lawyer's defensive copying of a file. He said the previous draft appeared to disallow the copying of files by the lawyer if the client had expressly instructed the lawyer not to make copies. Paragraph (g), he said, would permit the lawyer to make copies for retention by the lawyer, but would not allow charging the client for making the copies.
With respect to paragraph (g), Alice Senechal asked what reason there would be for copying files if not for retention by the lawyer.
Chair Crothers noted this issue has been discussed at several meetings without conclusion. He suggested that, before further discussion of the draft, there should be a formal decision by the Committee regarding whether the matter should continue as a focus of study and discussion.
It was moved by Randy Lee, seconded by Alice Senechal, and carried unanimously that the Committee approve the distributed redraft, with a modification to paragraph (a) to address common law liens, for further review and that Disciplinary Counsel be contacted for comments on the draft.
Service under Rule 3.1D(4), Rules for Lawyer Discipline
Chair Crothers drew Committee members' attention to Attachment E (June 6, 2000) - Letter and attachment from Al Boucher, Inquiry Committee Northeast Chair, regarding service under Rule 3.1D(4). The letter, he said, describes the standard practice of advising a lawyer who is the subject of a complaint that the lawyer must serve a copy of the lawyer's response on the complainant. The letter notes, he said, that there is no requirement under Rule 3.1D(4) about such service, rather the rule simply provides that a copy of the response must be provided to the complainant.
Murray Sagsveen suggested that Rule 3.1D(4) should be amended in the manner described on page 2 of the Boucher letter. Randy Lee noted that if the proposed language is adopted, it would be the responding attorney's responsibility to provide a copy of the response to the complainant. Until it is shown that that has happened, he said, a hearing could not be held. He questioned whether the responding attorney should have the ability, by not serving a copy of the response, to delay a hearing. Dan Crothers noted that the proposed amendments would delete from Rule 3.1D(4) the requirement that the response be provided to the complainant "before consideration by the district inquiry committee."
In response to a question from Sandi Tabor, Dan Crothers said it is an added burden and expense for the inquiry committee to be required to provide a copy of the lawyer's response to the complainant.
In response to a question from Alice Senechal regarding when the lawyer should be required to serve a copy on the complainant, Murray Sagsveen suggested the lawyer serve the response concurrent with when the response is submitted to the committee under Rule 3.1D(3).
It was moved by Murray Sagsveen, seconded by Dave Hogue, and carried unanimously that Rule 3.1D(4) be amended as recommended in the Boucher letter, with the added requirement that the lawyer's response be served on the complainant concurrent with submitting the response under Rule 3.1D(3), and that the rule, as amended, be approved for submission to the Supreme Court.
"Pay to Play" - ABA Model Rule 7.6
At the request of Chair Crothers, Sandi Tabor reviewed Attachment F (June 6, 2000) - Information regarding Model Rule 7.6, ABA Model Rules of Professional Conduct. She said Model Rule 7.6 is directed at a practice commonly referred to as "pay to play", in which lawyers or law firms are considered for or awarded government legal business, or appointments by a judge, in return for having made or solicited campaign contributions for officials in a position to make the award or appointment. She said the fundamental issue is the potential appearance of impropriety. She said Rule 7.6 was approved by the ABA House of Delegates and it is before the Committee for discussion about whether there is an issue in North Dakota that requires formal review of the rule.
Murray Sagsveen wondered whether it is an issue in North Dakota since the Code of Judicial Conduct requires that a judicial candidate not be informed of the identity of campaign contributors. Additionally, he said, the Rule 7.6 provision disallowing a lawyer from making a contribution "for the purpose of obtaining or being considered" for a legal engagement or appointment is so subjective that enforcement would be questionable.
It was moved by Marilyn Foss, seconded by Murray Sagsveen, and carried unanimously that further consideration of Model Rule 7.6 be tabled.
Washington Legal Foundation Petition
Chair Crothers drew attention to Attachment G (June 6, 2000) - a Washington Legal Foundation petition urging rule amendments on the issue of public access to attorney discipline and reinstatement proceedings. Sandi Tabor said the petition essentially recommends two kinds of amendments. First, she said, the petition recommends amendments to require that a complaint is public when filed or, alternatively, is public when the inquiry committee determines that the complaint should be investigated. The petition, she said, summarizes the approach in a number of states - Oregon, Florida, and West Virginia - in which the process is considered more open. Second, she said, the petition recommends that notice of a petition for reinstatement be published in the state bar journal and a general circulation newspaper in the county in which the lawyer maintained a practice. Additionally, she said, the lawyer would be required to notify the complainant of the right to object to or support the petition.
Randy Lee observed that the Joint Commission on Lawyer Discipline and Admissions discussed at length the point at which the disciplinary process should be public. He said his position at the time was similar to the approach recommended in the petition, but the Joint Commission concluded otherwise. He said the Commission's recommendations, embodied in current rules, provide for the process becoming public at an earlier point than under previous rules. Those changes, he said, were considered by the Commission an appropriate method of balancing the lawyer's concern for the impact of frivolous complaints and the public's access to information about lawyer discipline. He suggested it is too early to revisit the issue. With respect to reinstatement petitions and notice, he said current Rule 4.5F provides for required notice by the lawyer to the complainant, as well as to any other ascertainable victim of the lawyer's misconduct and any known family member of a deceased complainant or other victim. That notice provision, he said, resulted from recent recommendations made by the Committee and is sufficient.
It was moved by Randy Lee, seconded by Marilyn Foss, and carried unanimously that the Disciplinary Board be notified that the Committee recommends no action on the petition for the following reasons: the issue of public access has been recently and thoroughly reviewed, with appropriate rule amendments recommended and adopted; and, notice regarding reinstatement has been recently addressed with rule amendments providing enhanced notice requirements.
Sandi Tabor said information regarding diversion is being assembled for Committee review at the September meeting. With respect to multidisciplinary practice (MDP), she said a resolution is before the bar membership which will urge North Dakota's ABA delegate to oppose MDP and will request the Board of Governors to monitor MDP activities through this Committee or other entities. She noted that the New York Bar Association has issued a 430 page report, subsequently adopted by the New York bar, that outlines a middle of the road approach to the issue. Essentially, she said, the New York approach allows lawyers and non-lawyers to create multidisciplinary practices, but the lawyer must control the practice and all participants must adhere to lawyer professional conduct rules. Notwithstanding that the issue might die at the ABA level, she said, a number of other states - South Carolina, Oregon, and Minnesota - have moved forward in adopting rules governing MDP.
Randy Lee observed the issue is one that it may be wise to attend to by rule to avert a potential solution by court decision based on a claim of unauthorized practice of law. Marilyn Foss noted that the North Dakota Board of Accountancy recently changed its professional rules to accommodate what might be termed multidisciplinary practice. Randy Lee noted that rules were recommended by the Attorney Standards Committee in 1985-86, although they were not ultimately adopted, which would have permitted the sharing of fees between lawyers and non-lawyers.
Dan Crothers suggested the Committee should begin accumulating information related to the unauthorized practice of law. He said that issue and multidisciplinary practice are closely related and will require some level of attention in the future. He noted that both topics are ethics issues to be discussed by the Inns of Court over the coming year.
No further business appearing, the meeting was adjourned at 11:45 a.m.