Judge Ralph Erickson
Chair Erickson called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (November 9, 1999) - Minutes of the September 16, 1999, meeting.
IT WAS MOVED BY RANDY LEE, SECONDED BY BEN HAHN, AND CARRIED UNANIMOUSLY THAT THE MINUTES BE APPROVED.
Client Access to Files
Randy Lee distributed and summarized draft language to consider for addition to the commentary under Rule 1.4, Rules of Professional Conduct. A copy of the draft language is attached as Appendix A. He recalled the Committee's earlier action in adopting proposed amendments to Rule 1.16 to include an advisory regarding application of attorney lien statutes to matters involving return of client papers [ September 16, 1999, Meeting Minutes, pp 2-3]. Those amendments, he said, did not address issues raised by Paul Jacobson. Those issues, he said, concern the situation in which a lawyer is faced with a demand for return of client papers but wants to retain a copy of the papers and seeks to charge for making the copy. It is generally recognized, he said, that a lawyer is not permitted to charge the client for the cost of making the copy. The draft language for amendments to the Rule 1.4 commentary, he said, is directed at this particular issue. He said Mike Wagner has suggested a different approach to the issue.
Mike Wagner described a situation in which a lawyer receives various letters, copies of which are then sent to the client. The client then expresses unhappiness with the lawyer's work and demands the file. In that situation, he said, the lawyer will likely make a copy of everything in the file to ensure a complete record is retained concerning what occurred with respect to that particular client. He distributed draft amendments to Rule 1.16 which Paul Jacobson had previously provided to the Committee. A copy is attached as Appendix B. He said while he earlier had reservations about adding the proposed language to the Rule 1.16 comment, as the draft suggests, after further consideration it would seem appropriate to make that change. The proposed language, he said, would provide clear guidance to lawyers about how to respond to requests for files and what is permissible with respect to copying files. Particularly, he said, the language addresses the situation previously described in which a lawyer has been discharged from representation, the client has previously been provided with copies, and the lawyer seeks to charge the former client for making a copy of the file.
In response to a question from Karen Braaten, Randy Lee said there is no definition of "papers belonging to the client". He said part of the problem relates to the statutory lien and the status of things retained by the lawyer when the lawyer does not have a duty to return the property because the lien has been lawfully exercised. Karen Braaten said the persistent question is whether the client "owns" the file, particularly if copies of papers have been provided to the client throughout the representation. She said she has never considered her file as being the client's property, although the file may contain things given to her by the client, which do belong to the client.
Judge Erickson said there is a division of opinion regarding what the lawyer is and is not permitted to keep. The safest option, he said, may be for the lawyer to consider the file as belonging to the client.
Karen Braaten said she has never had a problem with giving files to a client, but if the client has already received copies of documents then she would charge the client to provide additional copies.
Randy Lee noted that Paul Jacobson's proposed addition to Rule 1.16 (Appendix B) would only apply in the context of declining or terminating representation, but the issue of client access to files may also arise during representation. If that situation is to be addressed, he said, then a reference to the provision in some other comment or rule would likely be necessary. Judge Erickson suggested a reference might be included in the comment to Rule 1.15 regarding safekeeping of property. Randy Lee noted that his proposed language (Appendix A) includes a reference to Rules 1.15 and 1.16. He said the new Rule 1.16 language could, as an alternative, be incorporated in the comment to Rule 1.4 regarding communications to clients. Then, he said, the approach might be to add to the comments for both Rules 1.15 and 1.16 a sentence like "With regard to cost of copying papers requested by the client, see the comment to Rule 1.4."
Mike Williams noted the practical concerns that arise when a client discharges a lawyer and, in an already tense environment, disputes develop about what has and has not been provided to the client. A more philosophical question, he said, concerns the lawyer having already been paid by the client to generate the letters, papers, and work that is in the file. The copies sent to a client, he said, are also typically billed out. The troublesome issue, he said, is that when the client leaves with the file, which the client has paid for, the lawyer is essentially seeking to make copies for the lawyer's benefit or protection.
Dan Crothers reiterated his objection made at a previous meeting to addressing in a comment issues that should be addressed by rule. For example, he noted the prohibition in the proposed addition to the Rule 1.16 comment that a lawyer may not condition return of the client's property on payment of copying costs. That, he said, is not accurate since a retaining lien does, in fact, condition the return of the client's property. Additionally, he said, comments typically have an interpretive function, but the proposed addition to Rule 1.16 does not interpret or explain application of the rule. The matter, he said, is a substantive issue that should be addressed in the rule proper, not the comment.
Mike Wagner said one alternative is to develop a rule defining client property and include language similar to the concluding paragraph in the proposed addition to the Rule 1.16 comment.
Sandi Tabor noted the constitutional provision that vests authority to regulate lawyer conduct in the Supreme Court. She said a rule on this issue, if adopted by the Supreme Court, would likely supersede the statutory lien provisions.
Randy Lee recalled the Committee's earlier action in requesting that the Board of Governors pursue legislation repealing the lien statutes. In that light, he said, a rule could be devised which defines client property and addresses the return of the property.
IT WAS MOVED BY RANDY LEE, SECONDED BY DAN CROTHERS, AND CARRIED UNANIMOUSLY THAT THE COMMITTEE RECONSIDER ITS PREVIOUS ACTION APPROVING PROPOSED AMENDMENTS TO THE RULE 1.16 COMMENT.
Chair Erickson requested that the subcommittee prepare the proposed rule as discussed for review at the next meeting.
Dan Crothers distributed and summarized draft amendments to ABA Model Rules 7.1 (communications about lawyer services), 7.2 (advertising), 7.3 (direct contact with prospective clients), 7.4 (communications about fields of practice), and 7.5 (firm names and letterhead). A copy is attached as Appendix C. He said the redrafts are directed at updating the Rule 7 series to address electronic distribution of information and a 1998 ABA White Paper was used as the foundation for the draft amendments. He said those items denoted by single underline would generally be inserted from the current North Dakota rule, those items overstruck would be deleted from the current rule, and those items denoted by double underline would be entirely new language. He said the amendments to Rule 7.1 slightly expand the rule and its application to false and misleading statements. The amendments to Rule 7.2, he said, identify the various methods of providing advertising - electronic, including the Internet, and print. He said amendments to Rule 7.3 incorporate language concerning the prohibition against direct in-person advertising. He said draft Rules 7.4 and 7.5 reflect, for the most part, the existing ABA Model Rules, with the addition to Rule 7.5 of language from the current North Dakota rule regarding identifying legal assistants on firm letterhead. He said the first two questions regarding the draft amendments are whether they are clear enough regarding electronic advertising and electronic dissemination of information and whether there should be a change to bar in-person direct advertising.
Mike Williams noted that some of the White Paper rule suggestions are cumbersome, particularly with respect to Rule 7.3(a). With respect to the draft language in Rule 7.5 regarding legal assistants, he inquired of the precise use of terminology relating to legal assistants, as there is a difference, for example, between paralegals and paralegal assistants. Dan Crothers noted that "legal assistant" is defined in the Terms section of the Rules. Mike Williams explained that there has been discussion within the North Dakota legal assistant organization, reflecting discussion at the national level, about "paralegal' becoming the preferred term to use.
Chair Erickson said the draft amendments would be held over for further discussion at the next meeting. He asked whether Committee members had specific comments or changes for the subcommittee to consider.
With respect to the draft amendments regarding solicitation, Randy Lee noted that North Dakota's current Rule 7.1(b)(3) prohibits soliciting someone the lawyer knows or reasonably should know has a physical or mental condition that makes it unlikely the person can exercise reasonable and considered judgment. That provision, he said, does not appear to be in the draft amendments. Dan Crothers said that part of the rule was deleted through oversight and would be included in the next draft.
With respect to draft Rule 7.4(c) concerning certification of a lawyer as a specialist in a field of law by a named organization, Randy Lee suggested including a requirement that the organization be identified. Additionally, he suggested that the certification should be current at the time of the communication. There was general agreement with the suggested changes.
Randy Lee inquired whether the meaning of "real-time contact" in draft Rule 7.3 is clear. Judge Erickson said the generally intended meaning is contact by telephone, Internet, walk-in contact, and the like. It was agreed a definition would be helpful.
Amendments to Rule 8.4, Rules of Professional Conduct - Referral back to Committee
Chair Erickson drew Committee members' attention to Attachment C (November 9, 1999) - Letter from Penny Miller regarding the Supreme Court's referral back to the Committee of the proposed amendments to Rule 8.4, which would identify manifestations of bias as a form of lawyer misconduct. Comments on the proposed amendments received by the Supreme Court were also included in the Attachment.
Judge Erickson said it appears the Supreme Court would like additional consideration of the proposed amendments in light of the comments. He noted that the extent and nature of the comments are surprising in light of the considerable number of notices that the Committee was considering the proposal - none of which elicited any comments to the Committee. The comments to the Supreme Court, he said, basically argue that the proposal is a rule in search of a problem and, more seriously, that the proposal is an unconstitutional violation of free speech. With respect to the latter, he said, there is the issue of what is being prohibited - speech or conduct. If it is conduct, he said, any reasonable time, manner, or place restriction that has a substantial basis is legitimate. If, he said, the proposed rule constitutes a prior restraint on speech, then the rule must be a narrowly tailored, least-restrictive method for achieving a compelling state interest. Additionally, he said, there may be an issue with respect to the classes the rule seeks to protect. The Final Report of the Commission on Gender Fairness in the Courts, he said, demonstrated the statistical basis for matters concerning gender bias. There is also, he said, generally recognized principles supporting efforts directed at bias based on race, creed, or national origin, which are protected classes under existing constitutional doctrine. However, he said, age, sexual orientation, and disability, which are addressed in the proposed rule, are not similarly protected classes. That, he said, may pose a problem with respect to whether the rule can prohibit bias manifested against members of those classes.
Dan Crothers noted that Canon 3B(6) of the Code of Judicial Conduct provides that a judge must require that lawyers in proceedings before the judge refrain from manifesting bias based on race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status - the same kinds of biases identified in the proposed rule with the exception of socioeconomic status. A similar provision is contained in Canon 3B(5), which prohibits manifestation of bias or prejudice by judges. Presumably, he said, the Supreme Court considered whether such a provision violated the free speech rights of judges. If, he said, the issue is one driven more by politics than substance, then he is reluctant to invest much more time in addressing the proposal.
Karen Braaten noted one of the comments questioning the scope of the reference to bias or prejudice "including" bias or prejudice based on the mentioned classifications. That open-ended reference, she said, implies there might be forms of bias other than those set out in the proposed language, which lends uncertainty to the rule. Dan Crothers noted that similar language is included in Canon 3B(5) governing judicial conduct.
Randy Lee said it should be made clear that the Committee began its discussion of the proposed rule amendments with a review of the Code of Judicial Conduct provisions and with the initial concern that judges are ethically bound to prevent biased lawyer conduct but there is no concomitant requirement that lawyers not exhibit biased conduct. Additionally, he said, the politics of the reaction to the proposal are somewhat understandable. But, he said, the notion that the proposal has been sent back to Committee for the production of something like a "Brandeis brief" is offensive.
Ben Hahn recalled the Committee's earlier discussions concerning civility and likened the proposed rule to other efforts to address civility issues. He noted that of those submitting comments, most of the women supported the proposed amendments, while most of the men opposed them.
Mike Williams suggested the Supreme Court may simply be asking for more of the Committee's discussion to be revealed, which may provide ammunition with which to respond to the comments. If, he said, the Committee considers the proposal as having merit, then the work should be done to develop the comprehensive report requested by the Court. Christine Hogan agreed, but suggested something less than an extensive report might be sufficient - a letter, perhaps, that describes the Committee's review of the Code of Judicial Conduct provisions, the ABA activities, the Report of the Commission on Gender Fairness of the Courts, and other state provisions. Staff noted that the Chair's submission letter to the Supreme Court summarized that very information.
Judge Erickson said the difficulty is that the Committee presumed the Supreme Court regarded its own ethical rule as constitutional and, therefore, used it as a model. Apparently, he said, the Court now doubts the constitutionality of that rule and is requesting that the Committee essentially demonstrate whether it is constitutional. The question, he said, is how the Committee should proceed. One alternative, he said, is to simply return the proposed rule to the Supreme Court while noting that it is a parallel provision to the Code of Judicial Conduct canon, which is presumed to be constitutional as adopted by the Supreme Court. Another alternative, he said, is to address some of the alleged constitutional issues and modify the proposal if necessary. The consequence of that, he said, is there may then be an obligation for lawyers different from the obligation for judges with respect to biased conduct. That, he said, would not solve the problem the Committee discussed early on. Additionally, he said in his estimation the proposed rule primarily regulates conduct, not speech, in that its focus is the reaction of witnesses, jurors, and parties to litigation. The prohibited activity, he said, is verbal conduct intended to manipulate the judicial process such that jurors, witnesses, or parties to litigation are motivated to act in a way other than they would if the process were fair. Nevertheless, he said, to meet objections the proposed rule could be crafted more narrowly to apply only to conduct in the courtroom or administrative hearings or depositions and references to kinds of bias other than those based on race, sex, religion, and national origin could be deleted.
Karen Braaten reiterated her concern with the reference to "including" in the proposed language. Judge Erickson observed the language could be deleted, which would result in language exactly matching Canon 3B(6), with the exception of the reference in the canon to socioeconomic status.
IT WAS MOVED BY DAN CROTHERS, SECONDED BY KAREN BRAATEN, AND CARRIED UNANIMOUSLY THAT THE REFERENCE TO "INCLUDING" BE DELETED FROM THE PROPOSED RULE AND THAT A DRAFT LETTER EXPLAINING MORE FULLY THE INFORMATION REVIEWED BY THE COMMITTEE BE PREPARED FOR REVIEW.
Judge Erickson suggested the draft letter should clearly reflect the importance of imposing a concomitant obligation on lawyers and judges with respect to disallowing biased conduct. A lawyer's duty to refrain from biased conduct, he said, should match the judge's obligation to prevent biased conduct by lawyers.
Staff noted that bias-related rules have been adopted in 18 states and the District of Columbia, some of those rules having been reviewed earlier by the Committee. Interestingly, he said, rules in some jurisdictions extend the reach of the prohibition against bias much farther than that in the proposed rule and apply to lawyer conduct while acting "in a professional capacity" or while "representing a client". Some rules, he said, have a state of mind requirement, that is, that the lawyer engaged in biased conduct "knowingly" or "intentionally." Some rules, he said, have the legitimate advocacy exception, as does the proposed rule, while others do not. And some rules, he said, categorize biased conduct as being prejudicial to the administration of justice. Research, he said, did not disclose that any of the rules had been challenged on constitutional grounds.
Judge Erickson noted that in light of the caselaw a persuasive argument can be made that the administration of justice serves a compelling state interest because it provides a fair, efficient, and impartial method of resolving disputes. Randy Lee recalled earlier Committee discussion concerning the apparent conclusion of the Commission on Gender Fairness in the Courts, at least with respect to gender, that bias, by its very nature, is prejudicial to the administration of justice. To include "prejudicial to the administration of justice" in a bias rule, he said, is to imply that there are certain kinds of bias that are not prejudicial, thereby undercutting the Commission's findings.
Randy Lee noted that among all of the comments submitted to the Supreme Court, the comment submitted by Mike Mullen stands out for its positive and thorough assessment of the issues. Mr. Mullen, he said, should be commended for his careful review of the proposed rule.
Chair Erickson said the revised rule proposal and draft letter would be provided for review at the Committee's next meeting.
There being no further business, the meeting was adjourned at 11:55 a.m.