|Members Present |
Alice Senechal, Chair
Judge Karen Braaten
Elaine Fremling(until 1:15 p.m.)
Dr. Richard Olafson
Sandi Tabor (10:45 a.m - 1:00 p.m. by telephone)
|Members Absent |
Chair Senechal called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (November 7, 2002) - minutes of the September 12, 2002, meeting. Staff noted incorrect spelling of Judge Braaten's name (page 4, 2nd full paragraph) and the reference on page 6, 5th paragraph, to instant "messengers" should be instead instant "messages". Chair Senechal asked that the 2nd full paragraph on page 2 be modified to reflect that Judge Braaten also volunteered to work on developing a draft lawyer assistance program proposal.
It was moved by Mike Williams, seconded by Dr. Olafson, and carried unanimously that the minutes, as corrected, be approved.
Multidisciplinary Practice Issues - Update
At the request of Chair Senechal, Dan Crothers provided an update concerning multidisciplinary practice (MDP) initiatives. He said an MDP proposal was submitted to the Minnesota Supreme Court, but was recently rejected by the Court. He said that with the Enron controversy interest and activity has declined with respect to MDP. He will keep the Committee apprised of any future developments. He noted, however, that there is significant continuing interest in multijurisdictional practice. In response to a question from Randy Lee, he said the association's MJP Taskforce will soon submit a report to the Supreme Court, which will then likely decide whether the report will be referred to the Committee for consideration.
Review of Draft Proposal
Chair Senechal drew Committee members' attention to Attachment C (November 7, 2002) - a draft memorandum and proposal to the SBAND Board of Governors concerning establishment of a lawyer assistance program. She explained that she and Judge Braaten, with the assistance of Jim Hill, developed the proposal in response to discussion at the Committee's last meeting. She noted the recently distributed email message suggesting the inclusion of paragraph 11 on page 4 of the proposal which would address the issue of lawyer assistance in relation to conditional admission to the bar. She distributed a copy of the email and revised pages 4 and 5 of the proposal, which incorporate the email suggestions. A copies of the email and the revised pages are attached as an Appendix. She suggested the Committee review the proposal with the objective of approving it, with changes if necessary, for submission to the Board of Governors at their November 16 meeting.
Judge Braaten then summarized the draft proposal. She said the draft is intended to be a starting point for establishing a program within the association, with the possibility of collaborative efforts in the future with other interested entities. She said the proposal contemplates minimal staff and financial commitments, but does rely heavily on volunteer participation.
In response to a question from Dr. Olafson, Judge Braaten said she would not favor micro-management of elements of the assistance program by the disciplinary system. But, she said, it would be important for an assistance plan for a particular lawyer to be approved by that part of the discipline system that is involved, e.g., the inquiry committee or disciplinary board.
Dan Crothers asked whether consideration had been given to issues such as maintaining confidentiality if a lawyer is diverted from the discipline process at the inquiry committee stage. He also suggested the need to review how the complainant would be involved in any decision to divert a lawyer from discipline. Judge Braaten said the proposal recommends that all relevant rules be reviewed to determine appropriate amendments for implementing an assistance/diversion program.
Ron Reichert observed that timely access to services is crucial to the success of an assistance program. He noted that the Minnesota lawyer assistance program ensures services are available once the need for assistance has been identified. North Dakota, he said, is very limited with respect to treatment options. Additionally, he said very few lawyers would likely agree to participate in a local or in-state treatment program. In light of that reluctance, he suggested the possibility of working with the Minnesota program to provide access to services for North Dakota lawyers. He said representatives of the Minnesota program indicated a willingness to consider such an approach. Judge Braaten noted that the possibility of working with the Minnesota program was discussed, particularly with regard to a hotline for referrals to treatment service providers.
Elaine Fremling and Dr. Olafson stressed the importance of pursuing wherever possible collaborative efforts with other groups with similar concerns.
Randy Lee noted continued uncertainties regarding support by the Board of Governors for any kind of assistance proposal and recalled the Committee's own earlier reservations concerning lawyer diversion. He said the apparent ambivalence on this issue will have to be overcome before there is an attempt to look elsewhere for collaboration with other entities.
Jim Hill said that from a lawyer's viewpoint problems affecting lawyer conduct continue to evolve. Lawyers, he said, are hesitant to seek assistance because the disciplinary process is currently the only mechanism for addressing conduct-related issues. And that process, he said, cannot effectively address problems that could benefit from an assistance program. His view, he said, is that the present Board of Governors would like to address the issues and would support a structure that provides some level of lawyer assistance. He emphasized that disciplinary penalties are becoming more serious, cases are becoming more significant, and the practice of law is becoming increasingly more demanding. It is time, he said, for a process to be put in place to assist lawyers in addressing problems that seriously affect their ability to serve their clients.
In response to a question from Dan Crothers concerning the cost for an assistance program, Alice Senechal said the group had not attempted to refine a cost estimate. Judge Braaten said contracting for treatment services would likely be the greatest expense.
It was moved by Dr. Olafson and seconded by Ron Reichert that the draft proposal, as supplemented by the noted email change, be approved for submission to the Board of Governors for consideration.
Having joined the meeting by telephone, Sandi Tabor suggested, with respect to the recommended hotline, the possibility of using the Mental Health Association hotline. Additionally, she wondered why the Supreme Court would be involved in determining the membership of the assistance committee when the committee would be established within the bar association. Judge Braaten noted that the draft enabling rule to be discussed next would likely be a Supreme Court administrative rule and the Supreme Court therefore would likely want some level of input. Jim Hill observed that if diversion from the disciplinary process is contemplated, then the Supreme Court would likely want to be involved in some manner.
Tim Priebe asked whether there is the possibility that a complainant may view diversion as a form of lawyer protection. Bob Udland suggested the complainant/client would have to be informed if an inquiry committee, for example, recommended that a lawyer be diverted from the discipline process into an assistance program. Randy Lee said there are a number of rules that would require review to implement the assistance/diversion process. For example, he said, the lawyer discipline rules require that the complainant be notified of disposition of the complaint. A decision would have to be made, he said, regarding whether participation in an assistance program is a "disposition" and how much additional information would or should be provided to the complainant.
The motion carried unanimously.
Chair Senechal said the Committee would be informed of the Board's response to the proposal.
Draft Rule and Rule Amendments - Review
Chair Senechal next drew attention to Attachment D (November 7, 2002) - a revised draft rule establishing a lawyer assistance program and draft amendments to Rule 8.3, Rules of Professional Conduct, regarding the duty to report misconduct. Staff explained that the draft rule providing for the establishment of a lawyer assistance program contains revisions requested at the last meeting.
Judge Braaten noted the "Confidentiality" section, which contains new language permitting disclosure of information gained during participation in the program which would be required to be disclosed under Rule 1.6(a) of the Rules of Professional Conduct. She said Rule 1.6(a) pertains to the lawyer-client relationship and requires a lawyer to disclose information indicating the client may commit an act resulting in imminent death or imminent substantial bodily harm. In light of the rule's focus on the lawyer's relationship with the client, she said a direct cross-reference to the rule is likely inapposite in the context of a lawyer assistance program. She suggested simply including in the draft confidentiality section the relevant language from Rule 1.6(a) relating to imminent death or bodily harm.
Dan Crothers wondered whether the Committee should be addressing draft rules at this point since the position of the Board of Governors is still unknown. Bob Udland recommended moving forward with refining the rule provisions.
It was moved by Judge Braaten and seconded by Elaine Fremling that the confidentiality section in the draft rule be modified to include the relevant language from Rule 1.6(a), rather than explicitly link permissible disclosure under the section to that rule.
In response to a question from Dan Crothers, Alice Senechal said current Rule 1.6(a), rather than the new Model Rule, would serve as the basis for the included language.
Mike Williams noted that Rule 1.6(a) requires disclosure of information involving imminent death or bodily harm. But, he said, Rule 1.6(d) permits disclosure by the lawyer of information if believed necessary to prevent the client from committing a criminal or fraudulent act that may result in non-imminent death or bodily harm or harm to the financial interests of another. He wondered whether the confidentiality section of the draft rule should also allow disclosure under these circumstances.
Randy Lee suggested that the lawyer assistance committee could, if it believes there is a danger to an existing client, refer the matter back to the discipline system to address that particular issue. The approach being discussed, he said, would not permit the committee to disclose any of that information.
Mike Williams offered the example of a lawyer participating in an assistance program who expresses the intent to inappropriately use money from a client's trust account. He said including language from Rule 1.6(a), which focuses only on information concerning the possibility of imminent death or bodily harm, would not permit the assistance committee to disclose information concerning the intended conversion of client trust account funds.
Christine Hogan observed that the primary role of the assistance committee is to ensure that the lawyer receives appropriate treatment services. Judge Braaten noted that it may be difficult to convince lawyers to participate in an assistance program if confidentiality protections are too limited. The question, she said, is where to draw the line with respect to information that should be disclosed while ensuring the program is effective.
The motion carried unanimously.
Elaine Fremling observed that the reference in the 'Immunity" section to "a participant" is confusing in that it is unclear whether the reference is to the lawyer participating in the program or to staff and committee members. Dan Crothers said the opening language of the section concerning a "person who participates" is similarly confusing.
It was moved by Elaine Fremling, seconded by Dan Crothers, and carried unanimously that line 17 of the Immunity section be modified to delete "Any person who participates" and that lines 19-20 be modified to delete " as a participant in the program".
It was moved by Randy Lee, seconded by Sandi Tabor, and carried unanimously that the draft lawyer assistance rule be modified to delete references to "established by the State Bar Association" wherever they occur.
It was moved by Sandi Tabor, seconded by Judge Braaten, and carried unanimously that the draft lawyer assistance rule and the draft amendments to Rule 8.3, Rule of Professional Conduct, be modified to delete references to "board member".
It was moved by Randy Lee, seconded by Dan Crothers, and carried unanimously that the draft amendments to Rule 8.3 be modified to substitute "established under Rule ____" for "established by the state bar association".
Chair Senechal said revised drafts would be reviewed at the Committee's next meeting.
At the request of Chair Senechal, staff reviewed Attachment F (November 7, 2002) - revised amendments to the Rule 7 series regarding lawyer advertising. Staff said the amendments are essentially the same as those reviewed at the Committee's September 12, 2002, meeting - with the additional changes agreed to at that meeting.
Randy Lee explained the import in his view of the proposed changes. Under the contemplated change, he said, a lawyer in particular situations could no longer approach a person who might be a client. As an example, he outlined the following scenario: a lawyer happens to be in the courthouse and notices a person, apparently quite distressed, entering and leaving different offices in the courthouse. The lawyer surmises that the person has some kind of problem and is unable to deal with it. Under the current North Dakota rule, he said, the lawyer could approach the person and offer, as a lawyer, to help. Such, he said, would not be permitted under either the current ABA Model Rule or draft Rule 7.3 currently under consideration by the Committee. He said lawyers should be able to approach people in apparent legal distress and offer assistance without fear of violating a rule of conduct. He wondered whether, even in light of the well-placed concerns about lawyers soliciting in catastrophic injury situations, there should be some way of saving the "good", in-person contact for a fee.
Mike Williams said the subcommittee struggled with that issue, but could not devise language that would bar "bad" contacts while allowing "good" contacts or solicitation. He said the subcommittee concluded generally that the lawyer should be able to approach a person without actively soliciting business, but the person should be the one to make the request for assistance.
Alice Senechal drew attention to Rule 7.2(b) and the reference on line 16-17 to retaining a "record of the telephone number called." She said it may be more appropriate to refer to a record of telephone "numbers" called. Randy Lee suggested referring simply to "any telephone number called." Committee members agreed.
With respect to page 6, line 4, of the draft, Alice Senechal noted the reference to "low and moderate income" clients and suggested it could be deleted in keeping with the Committee's earlier decision to delete a similar reference on line 8.
It was moved by Tim Priebe, seconded by Judge Braaten, and carried unanimously to delete "low and moderate income" from line 4, page 6.
Alice Senechal recalled the Committee's previous discussion of Rule 7.5 and the suggested inclusion, and meaning, of a reference in paragraph (b) to "other professional designation". She distributed the Ethics 2000 Reporter's Explanation of Changes and noted that including "other professional designation" was intended to clarify that the rule applies to website addresses and other ways of identifying law firms in connection with use of electronic media. Randy Lee noted that questions have not arisen concerning the same reference currently included in paragraph (a) of the rule, and there likely will not be questions regarding its inclusion in paragraph (b).
It was moved by Judge Braaten, seconded by Dr. Olafson, and carried unanimously that the proposed amendments to Rules 7.1 through 7.5 be submitted to the Board of Governors for review and comment.
Chair Senechal drew attention to Attachment G (November 7, 2002) - a letter from Norm Veasey, Chair of the Ethics 2000 Commission, to Chief Justice VandeWalle encouraging states to follow the model rule format and Attachment H (November 7, 2002) - an email form ABA staff indicating availability to assist in any review of the Ethics 2000 rule changes.
Committee members then turned to a review of Attachment I (November 7, 2002) - a comparison of a portion of the new Model Rules of Professional Conduct and North Dakota's Rules.
In response to a question from Chair Senechal concerning the method of review, Randy Lee suggested first identifying where E2K made a change to the Model Rules and then determine whether the E2K changes affect North Dakota's rules.
Dan Crothers suggested beginning the review with Rule 1.2 regarding scope of representation. Committee members agreed.
With respect to Rule 1.2, Randy Lee said he opposes the concept of "informed consent", contained in paragraph ( c), because compliance in the practice of law would be extremely difficult. He said if the North Dakota Supreme Court were to interpret "informed consent" as it has in medical malpractice situations, there would be too many independent variables to reasonably anticipate and there would be resulting informed consent documentation so lengthy and complex that the client simply would not read it. For example, he asked how a lawyer could explain to a client the alternatives to the action the lawyer proposes in a way that includes all the information the client might want.
Judge Braaten agreed with Randy Lee and said she would prefer retaining the "consents after consultation" provision currently contained in the old Model Rule and in North Dakota's rule.
Randy Lee noted that informed consent is central to the changes that E2K makes to the Model Rules. Nevertheless, he said, Iowa has already decided not to adopt the informed consent approach. Alice Senechal noted that, according to the Reporter's Explanation of Changes, the change to informed consent was not intended to make any changes in the substance of the rules. Randy Lee questioned whether that could be true in light of the varying notions of what constitutes informed consent.
In response to a question from Chair Senechal regarding whether to accept the changes to Rule 1.2, Judge Braaten said that, with the exception of informed consent, the amendments appear generally acceptable. However, she wondered what is contemplated in requiring under paragraph (c) that a lawyer's limitation of the "scope", rather than "objectives", of representation must be "reasonable under the circumstances." Randy Lee said historically the "objectives" reference was intended to address situations in which a client may have some objectives, but not others, that the lawyer was willing to assist in achieving. Permitting limitation of the objectives of representation, he said, afforded the client the opportunity to agree that the lawyer would represent the client with respect to certain of the objectives but not others. The new changes, he said, retain that approach, but insert a "reasonableness" test.
Dan Crothers observed that the change from "objectives" to "scope" of representation appears to be a substantive difference in approach. He said the change may be appropriate to the extent that it appears to change the focus of the rule from the goal of the client to the lawyer's function, as the Reporter's Explanation appears to indicate.
Christine Hogan said limiting the scope of representation is a normal thing for lawyers to do. For example, she said a lawyer might inform a client that a particular issue touches on patent issues, but since the lawyer is not a patent attorney a different lawyer would have to be involved to handle the issue.
Randy Lee wondered why, if scope of representation is as described, it would be necessary to include in the rule a test which would provide the opportunity, in hindsight, to evaluate the lawyer's decision.
It was moved by Dan Crothers, seconded by Ron Reichert, and carried unanimously that the Committee accept the change in Rule 1.2( c) from "objectives" of representation to
"scope" of representation.
Judge Braaten drew attention to the amendment to Rule 1.2(a) which provides that the lawyer may take such action on behalf of the client as is impliedly authorized to carry out representation. She said the new language would be a useful clarification of the lawyer's authority. Dan Crothers agreed. Additionally, he said the amendment with respect to paragraph (e) is acceptable.
It was moved by Randy Lee, seconded by Dan Crothers, and carried unanimously to accept the E2K amendments to paragraphs (a) and (e) of Rule 1.2.
It was moved by Randy Lee, seconded by Mike Williams, and carried unanimously to accept the E2K amendments to the Rule 1.2 title.
In response to a question from Chair Senechal regarding review of Comment changes, Randy Lee suggested the Committee should work through its review of the black-letter rules first and then return to consider related changes to the affected Comments. Committee members agreed.
There was no discussion concerning Rule 1.3 as Ethics 2000 did not recommend amendments to the black letter rule. Review of the Comment is reserved.
Committee members then reviewed the E2K amendments to Rule 1.4 (Communication). It was noted that paragraph (e), which was deleted from Rule 1.2, is resurrected as paragraph (a)(5) of Rule 1.4.
Randy Lee noted that North Dakota's Rule 1.4(a) has never completely followed the ABA Model Rule, particularly the requirement that the lawyer keep the client reasonably informed about the status of the case. The reason for that, he said, was the early conclusion that no matter what the lawyer does, there is no guarantee that the client will be "reasonably informed." Consequently, he said, North Dakota's black letter rule emphasizes that the lawyer will make reasonable efforts to keep the client reasonably informed. He recommended retaining the current North Dakota provision.
Alice Senechal suggested North Dakota's rule should follow the Model Rule format; the emphasis on reasonable efforts could then be added to paragraph (a)(3) of the Model Rule
Judge Braaten noted that, in light of the concern regarding informed consent, paragraph (a)(1) would have to be modified to delete the informed consent reference.
It was moved by Randy Lee, seconded by Mike Williams, and carried unanimously that the initial amendment to paragraph (a) be accepted and that "informed" and "as defined in Rule 1.0(e)" not be included in paragraph (a)(1).
Randy Lee noted that paragraph (a)(2) simply repeats a requirement found in Model Rule 1.2(a), although the requirement is not currently included in North Dakota Rule 1.4.
It was moved by Randy Lee, seconded by Mike Williams, and carried unanimously that the addition of paragraph (a)(2) be accepted.
It was moved by Tim Priebe, seconded by Judge Braaten, and carried unanimously that paragraph (a)(3) of the Model Rule, with the addition of the North Dakota reference to making reasonable efforts, be accepted.
Tim Priebe suggested modifying paragraph (a)(4) of the Model Rule to include a reference to "a client's" request for information.
It was moved by Judge Braaten, seconded by Randy Lee, and carried unanimously that paragraph (a)(4), with the modification suggested by Tim Priebe, be accepted.
It was moved by Judge Braaten, seconded by Randy Lee, and carried unanimously that paragraph (a)(5) be accepted for inclusion in Rule 1.4.
It was moved by Dan Crothers, seconded by Tim Priebe, and carried unanimously that paragraph (b) of the Model Rule be accepted.
Committee members then reviewed North Dakota Rule 1.5 and the E2K changes to Model Rule 1.5.
It was moved by Mike Williams and seconded by Judge Braaten that the changes to paragraph (a) of Rule 1.5 be accepted.
Christine Hogan observed that most caselaw on the issue of fees is premised on the concept of "reasonable" fees. She said the change in paragraph (a) to a prohibition against an "unreasonable" fee may create some uncertainty. Mike Williams said the change is an apparent shift in the burden with respect to the nature of the fee. He said the requirement that a fee be "reasonable" seems to place the burden on the lawyer to prove reasonableness, while focus on "unreasonableness" places the burden elsewhere. Tim Priebe observed that the new language to paragraph (a) seems to establish three points at which a violation could occur with respect to an unreasonable fee: when the agreement for the fee is made, when the fee is charged, and when the fee is collected. Judge Braaten said the level of specificity in the new changes is preferable to the generality of the present rule.
The motion carried. (Dan Crothers - no)
With respect to paragraph (b), Alice Senechal noted that the North Dakota rule is essentially similar to the old model rule, except for the requirement that the amount and basis for the lawyer's fee must be communicated to the client "preferably in writing." She said the E2K changes add a reference to scope of representation, identify expenses for which the client is responsible, and provide an exception to the writing requirement.
Dan Crothers questioned the need to make any changes to the current North Dakota rule.
Judge Braaten suggested paragraph (b) would be more acceptable if the overstruck first clause were retained, the reference to scope of representation deleted, and the new exception to the writing requirement also deleted. She said the model rule "preferably in writing" requirement, which is not in the current North Dakota rule, would be retained.
It was moved by Judge Braaten and seconded by Bob Udland that paragraph (b) be accepted with the described changes.
Dan Crothers said he would oppose including the writing requirement, even if it is only "preferable", because it may elevate the standard of care and create a pitfall for lawyers.
The motion carried. (5 - yes, 4 - no)
With respect to the E2K changes to paragraph ( c), Judge Braaten said the only improvements over North Dakota's current rule are the added requirements that the client sign the contingent fee agreement and that the agreement must notify the client of any expenses for which the client is liable. Randy Lee suggested it may be better to only require the agreement to "identify" the expenses for which the client is liable.
It was moved by Judge Braaten, seconded by Tim Priebe, and carried unanimously that the North Dakota's paragraph ( c) be modified to include the requirement that the client sign a contingent fee agreement and the requirement that expenses for which the client is liable be identified.
It was moved by Ron Reichert and seconded by Bob Udland that the phrase "including itemization of expenses" be included at the end of paragraph ( c).
Ron Reichert said the lawyer should document the expenses as well as simply identify them. Judge Braaten expressed concern at the level of detail that might result form such a requirement. Mike Williams observed that the current practice standard is to itemize expenses. He said the requirement is not in the current North Dakota rule nor the Model Rule, but he would not oppose including the requirement at this point. Ron Reichert emphasized that lawyers should be on notice about the need to adequately track information and to provide the client with sufficient information. Dan Crothers wondered whether the expectation that lawyers should itemize expenses could be more appropriately addressed in the Comment.
The motion carried.
With respect to the Model Rule changes to paragraph (e)(1), it was noted that the changes appear to move the requirement that there be a written agreement with the client regarding a division of fees between lawyers from paragraph (e)(1) to paragraph (e)(2).
It was moved by Randy Lee, seconded by Judge Braaten, and carried that current North Dakota Rule 1.5 (e) remain unchanged. (Dan Crothers - no)
In response to a question from Chair Senechal, Committee members agreed paragraphs (f) and (g) of the current North Dakota rule should be retained.
Christine Hogan suggested it may be beneficial for Committee members to review and compare the old Model Rules, the E2K changes, and North Dakota rules and then present a report. Committee members agreed. The following assignments were agreed to: 1.6- Randy Lee; 1.7 - Christine Hogan; 1.8 - Tim Priebe; 1.9- Bob Udland; and 1.10 - Dan Crothers.
There being no further business, the meeting was adjourned at 2:15 p.m.