Joint Procedure Committee - January 28-29, 1999 Minutes

Joint Procedure Committee

MINUTES OF MEETING
Joint Procedure Committee
January 28-29, 1999

TABLE OF CONTENTS

Amendments Effective March 1, 1999... 3
Expedited Hearing of Proposed N.D.R.Ct. 8.6 and 8.7... 3
Predeliberation Discussion... 4
Alternative Dispute Resolution... 7
Rule 4, N.D.R.Civ.P. - Service Upon a Governmental Entity... 12
Rule 11, N.D.R.Ct. - Nonresident Attorneys... 13

CALL TO ORDER

The meeting was called to order at approximately 1:00 p.m., January 28, 1999, by Justice Dale V. Sandstrom, Chair.

ATTENDANCE

Present:
Justice Dale V. Sandstrom
Honorable Donovan Foughty
Honorable Richard M. Geiger
Honorable Gail Hagerty
Honorable Ronald L. Hilden
Honorable Lawrence A. Leclerc
Honorable David W. Nelson
Honorable Mikal Simonson
Honorable Kirk Smith
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Professor Larry Kraft
Mr. Daniel S. Kuntz
Mr. Ronald H. McLean

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Ms. Patrician R. Monson
Ms. Sherry Mills Moore
Mr. James T. Odegard

Absent:
Honorable Maurice R. Hunke
Mr. Lynn Boughey
Ms. Cathy Howe Schmitz

Staff:
Mr. Gerhard Raedeke

PRELIMINARY MATTERS

The Committee welcomed Judge Nelson as its newest member. Judge Berning has retired. The Committee was informed meetings are scheduled for May 6-7, 1999; September 23-24, 1999; January 27-28, 2000; and April 27-28, 2000.

APPROVAL OF MINUTES (PAGES 1-19 OF THE AGENDA MATERIAL)

Judge Leclerc MOVED to adopt the minutes from the September 24-25, 1998 meeting as submitted. Ms. Monson seconded. The motion CARRIED.

The Committee considered whether staff should record the name of a person casting a dissenting vote. The standing rule of the Committee is not to record the name of a person casting a dissenting vote. People are responsible for remembering how they voted and for being honest about how they voted.

Judge Leclerc MOVED to amend the standing rule of the Committee by allowing a dissenting voter to be identified in the minutes upon request. Judge Foughty seconded. The motion is not intended to allow someone else to request that the name of the dissenter be recorded. The dissenter must make the request. The motion CARRIED.

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AMENDMENTS EFFECTIVE MARCH 1, 1999 (PAGES 18-50 OF THE AGENDA MATERIAL)

The Committee reviewed the changes made by the Supreme Court to the Committee's 1998 annual rules package.

EXPEDITED HEARING OF PROPOSED N.D.R.Ct. 8.6 AND 8.7 (PAGES 52-64 OF THE AGENDA MATERIAL)

Staff explained Sandy Tabor, Executive Director of the State Bar Association, has asked for expedited hearing and adoption of proposed N.D.R.Ct. 8.6 and 8.7. The proposals were approved by the Committee at its last meeting and are awaiting submission to the Supreme Court in the Committee's annual rules package.

Committee members stated, expedited hearing and adoption of the proposals would be helpful. The effective date should still, however, be March 1, 2000. Having a time lag between the date of adoption and the effective date would allow people time to meet the criteria of the rules before they become effective.

Committee members questioned whether the proposals could be submitted to the Court on an expedited basis without specifying an effective date. The court could then decide for itself when the proposals should become effective. Mr. Kuntz MOVED to file an expedited petition with the court to adopt Rule 8.6 and 8.7 without specifying when the rules should take effect. Mr. Odegard seconded.

Judge Leclerc MOVED to amend the motion by asking for a March 1, 2000, effective date in the petition for adoption of Rules 8.6 and 8.7. Ms. Monson seconded. Rule amendments should only become effective once a year absent an emergency. Amendments should only be processed once a year: 1) for organizational purposes; 2) to avoid duplicative processing work; 3) to make it easier for practitioners to stay informed and current by avoiding adoption of unpublished piecemeal amendments; and 4) to coincide with the annual publication of the North Dakota Court Rules in February.

The motion to amend unanimously CARRIED. The motion as amended CARRIED with 1 dissenting vote.

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PREDELIBERATION DISCUSSION (PAGES 65-127 OF THE AGENDA MATERIAL)

At its April 1998 meeting, the Committee approved an amendment to N.D.R.Civ.P. 51 allowing predeliberation discussion. Because the proposal did not carry by a two-thirds vote at its first hearing, the proposal requires further consideration according to the Committee's standing rule. The proposal was not considered at the Committee's September meeting to wait for a study of the Arizona experience to be completed by the National Center for State Courts.

The study is now complete. The Committee reviewed the findings from the National Center for State Courts study. Staff gave an overview of the arguments for and against predeliberation discussion by jurors.

Mr. McLean MOVED to adopt the proposed amendment to Rule 51 as set forth on pages 124-127. Ms. Monson seconded. Committee members argued, predeliberation discussion should be allowed to follow the educational model of learning. Jurors are not empty blank slates capable of detached information processing. Allowing predeliberation discussion by rule would give structure to juror discussions which in actuality are already occurring. The proposal would prevent the bad citizen juror from having undue influence. Furthermore, the study indicates jurors take a long time to makeup their minds, and predeliberation discussion does not cause premature discussion making. Finally, jurors like predeliberation discussion.

Committee members noted without preliminary instructions, jurors would not know what they are going to be deliberating. If predeliberation discussion is allowed, preliminary instructions are going to be more important.

Committee members questioned whether alternate jurors would be allowed to discuss the evidence with the other jurors. Alternate jurors do not know they are alternates until they are told to leave. Committee members concluded, alternate jurors would have to be part of the discussion group. Everyone must be involved.

All jurors are required to be present in the jury room, because the parties are entitled to trial by jury. All jurors need to be present in the room to seal the discussions from the public and to insure an open form involving all jurors.

Committee members argued, our system of trial by jury is so fundamental and too entrenched in history to be changed without substantial evidence of a need for change. Committee members expressed scepticism as to the adequacy of the scientific basis for the

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Arizona research. More than one study in one state is needed. Furthermore, the findings of the study are not strong enough to justify a change.

Other Committee members questioned what the foundation or basis is for what we do now. Still others stated if the old ways are best, let's go there. New England, New Zealand, and Australia have allowed predeliberation discussions for years.

Committee members argued, allowing predeliberation discussion will unfairly benefit plaintiffs. Furthermore, judges should not have the option of allowing predeliberation discussion. The administration of justice should be consistent from courtroom to courtroom.

Committee members questioned how often predeliberation discussion would really occur. Predeliberation discussion would not be useful in short jury trials. The only time the jury would have time for discussion would be when the final instructions are being decided upon. The fifteen minute break in the morning and afternoon will not provide adequate time for discussion. The Committee noted, jurors will really be disappointed if they are told they can discuss the evidence and there is not adequate time for discussion.

Committee members stated, allowing predeliberation discussion makes sense for lengthy trials. In complex cases, where time is spent with the attorneys regarding motions, there would be time for jurors to discuss the evidence. Having the jurors discuss the case is better than just having the jurors sit and do nothing. Furthermore, lengthy and complex trials are the trials where the procedure will help jurors comprehend the evidence.

Judge Leclerc MOVED to amend lines 11-16 on page 124 as follows:

"The court may give a jury instruction allowing the jurors to discuss the evidence among themselves ~~in the jury room during recess from trial when all the jurors are present~~, as long as the jurors reserve judgment about the outcome of the case until deliberations commence."

The motion FAILED for a lack of a second.

Judge Leclerc MOVED to eliminate lines 16-22 on page 124 as follows:

"Alternatively, the court may instruct the jury not to discuss the evidence until the case is submitted for deliberation. The jurors must be instructed not to decide the case or to form a conclusive opinion until all the evidence has been

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~~presented, nor to converse with non-jurors about the case until after a verdict is rendered.~~"

Mr. Kapsner seconded. Committee members stated, the language is inconsistent with N.D.C.C. § 28-14-16. Others stated, the rule as proposed makes current practice the alternative. The rule should be written the other way around with predeliberation discussion as the alternative. Ms. Monson MOVED to substitute the following amendment for Judge Leclerc's motion:

"~~Alternatively~~ In those cases, in which jurors are not permitted to discuss the case predeliberation, the court may instruct the jury not to discuss the evidence until the case is submitted for deliberation."

Ms. Monson's motion to substitute CARRIED by a vote of 8 to 5.

By unanimous consent, the Committee agreed to amend the motion as follows:

"In those cases, in which the jurors are not permitted to discuss the case predeliberation, the court ~~may~~ must instruct the jury not to discuss the evidence until the case is submitted for deliberation."

The motion CARRIED by a vote of 10 to 3.

Committee members expressed concern about superseding N.D.C.C. § 28-14-16. They questioned whether the following language is contained elsewhere: "The jurors sworn to try a civil action may be kept in charge of proper officers during each recess of the court pending the trial." Mr. McLean MOVED to amend the Explanatory Note on page 127 as follows: "SUPERSEDED: . . . Sections 28-14-16 to the extent it conflicts with Rule 51, 29-21-28, NDCC." Judge Nelson seconded. The motion CARRIED by a vote of 10 to 3. By unanimous agreement, the Committee decided to delete the reference to N.D.C.C. § 29-21-28 because that statute applies to criminal cases and should not be superseded in the Explanatory Note to Rule 51.

Committee members stated, the proposal makes the admonition contained in N.D.C.C. § 28-14-16 an instruction rather than an admonition. They stated an admonition is different than an instruction. Members stated, problems and confusion will result if the statute requires an admonition and the rule provides for an instruction. Committee members again stated lines 16-22, on page 124 should be deleted.

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The Committee noted a procedural statute is again causing problems with drafting a procedural rule. Procedure should not be in the statutes.

Committee members suggested a rule governing predeliberation discussion should not be incorporated into Rule 51, which is the general rule on jury instructions. It was suggested the proposal should be in the North Dakota Rules of Court.

Judge Hagerty MOVED to refer the proposal on pages 124-127 back to staff. The proposal should be put into one or more rules of court and N.D.C.C. § 28-14-16 should also be incorporated into a rule of court. Judge Foughty seconded. The motion CARRIED by a vote of 14 to 1.

ALTERNATIVE DISPUTE RESOLUTION (PAGES 128-182 OF THE AGENDA MATERIAL)

The Committee reviewed the final report from the Joint Dispute Resolution Study Committee. The study committee is recommending changes to N.D.R.Civ.P. 16 and adoption of two new North Dakota Rules of Court to promote and facilitate the use of ADR processes. The proposals implement case management technics to encourage consideration of ADR in the early stages of litigation and to encourage attorneys and judges to educate the parties about ADR. The proposals also establish qualifications for neutrals and provide for a court maintained roster of neutrals. A neutral would be someone providing an ADR process.

The Committee reviewed the minutes from its April 28-29, 1994 meeting. At that meeting, the Committee rejected amending N.D.R.Civ.P. 16 to require a scheduling order. The Committee said, a scheduling order is not needed in most cases, and attorneys can request a mandatory scheduling conference for those cases where case management is needed under N.D.R.Civ.P. 16(a). Previously, the Committee also rejected adopting case management rules patterned after Minnesota's General Rules of Practice. The Committee thought Minnesota's procedures create more hoops and unnecessary work. The Committee also thought Minnesota is better staffed to handle such procedures.

The Committee reviewed the proposed amendment to N.D.R.Civ.P. 16, the proposed case management rule, and the proposed alterative dispute resolution rule.

Committee members stated, additional case management rules are not needed. Divorce cases are the only cases needing case management by rule. New N.D.R.Ct. 8.3

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already provides case management for divorce cases. Committee members also noted in North Dakota there is not a backlog of cases. Most cases are disposed of in a timely manner.

Committee members stated pro-active case management is unnecessary and should not be part of a proposal for ADR. Not one member of the Committee spoke in favor of adopting intensive case management procedures as a method of promoting ADR. Detailed procedures and specifications for ADR are also not needed.

Under the proposal on page 179 for a roster of neutrals, the Committee did not think it was necessary for the clerk of court to provide information about ADR processes whenever a complaint and answer are filed. The information does not need to be furnished that often. The roster will not change that often. The Committee thought it would be more appropriate for the roster to be furnished upon request.

On pages 180-181, the Committee did not think it was necessary to have a family law arbitrator neutral roster or a family law evaluator neutral roster. North Dakota is not a populated state with a need for ADR process to be that departmentalized. In addition, proposed new N.D.R.Ct. 8.6 and 8.7 decrease the need for a family law evaluator to the extent a case deals with the issue of custody.

Committee members stated, parties may opt for ADR now. All that is really needed is a roster of neutrals to make neutrals more available to the parties. There is a shortage of really good neutrals and ADR helps settle cases. A list of qualified neutrals would be helpful.

The Committee recessed at approximately 4:00 p.m.

January 29, 1999 - Friday

The Committee reconvened at approximately 9:00 a.m.

Staff passed out an alternative ADR proposal numbered as N.D.R.Ct. 3.3, for the Committee's consideration. The proposal provides for a simplified roster of neutrals.

The Committee reviewed case load statistics for North Dakota. In North Dakota, there are over 33,000 civil filings per year. Yet, there are only about 85 jury trials per year in the state. In addition, there are numerous actions which are commenced but not filed.

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Cases are already being processed and disposed of without going through formal judicial proceedings.

The Committee reviewed Rule 16 on page 167. Mr. McLean MOVED to adopt Rule 16 as set forth in subdivision (a), to reject the rest of the proposed amendments to Rule 16, and to adopt proposed Rule 3.3 as shown in the handout distributed by staff. In addition, the Explanatory Note to Rule 16 should provide as follows: "Rule 16 was amended, effective ____________________, to add a new subdivision (a) (6) providing for alternative dispute resolution as set forth in Rule 3.3, N.D.R.Ct." The rest of the Explanatory Note should be adopted as shown on pages 171-172. Mr. Odegard seconded.

Committee members stated proposed Rule 3.3 does not set forth an ADR process. By unanimous consent, the Committee changed the Explanatory Note to Rule 16 to provide as follows:

"Rule 16 was amended, effective ______________________, to add a new subdivision (a)(6) relating to ADR. See N.D.R.Ct. 3.3."

The Committee reviewed the alternative proposal, N.D.R.Ct. 3.3, distributed by staff. Members noted Rule 3.3 does not identify with specificity the training required to serve as a neutral.

By unanimous agreement, the Committee agreed to change the word "list" on lines 2 and 3 to the word "roster" for the purpose of achieving consistent terminology throughout the rule.

By unanimous agreement, the Committee agreed to amend lines 17-20 as follows: "A neutral providing civil non-family mediation or facilitation shall have a minimum of 30 hours classroom training ~~with an emphasis on experiment learning~~." The intent of the Committee is to increase the number of neutrals. The Committee did not want to create technical roadblocks.

By unanimous agreement, the Committee agreed to change the word "abuse" to the word "violence" on line 27.

Judge Leclerc MOVED to substitute lines 2-11 of proposed Rule 3.3, with lines 9-14 on page 179 and to re-designate the subdivisions accordingly, so that subdivision (a) will provide as follows:

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"(a) Rosters of Neutrals. The State Court Administrator shall maintain and monitor one roster of neutrals for civil matters and one roster for family law matters. Each roster must be updated and published on an annual basis and must be available for inspection by counsel and parties in the clerk of the district court's office. The State Court Administrator may establish a reasonable fee for placement on the roster."

Mr. Kapsner seconded. The motion CARRIED.

Committee members stated only three rosters are needed. One for civil arbitrators, one for civil mediators, and one for family law mediators.

The Committee did not seem to think a specific license should be required for someone to serve as a neutral. The rule should not be limited to attorneys or particular professions. Sometimes unlicensed people with expertise in particular areas such as construction or insurance make excellent neutrals.

The Committee noted, lines 28-30 of the proposal allow the parties to select whomever they want as a neutral even if the person is not listed on the roster. Committee members suggested if the roster is to act as a yellow page service, maybe there should not be qualifications listed at all. The roster could simply serve as a starting point. It would be up to the parties to look further into the neutral's qualifications and types of services offered.

Other Committee members questioned whether the list will act as an endorsement of the neutral. Members stated if the list is a court published list, it may be perceived as an endorsement signifying a degree of quality. Others stated they liked the idea of a yellow pages list with a provision disclaiming any court approval of the mediator's qualifications.

The Committee considered a number of other options. One option would be to simply require minimal qualifications in terms of training hours. The parties would still have to determine who is appropriate to select as a neutral for their case based on the neutral's experience and particular expertise. A second option would be to simply have a list and allow neutrals to furnish the court administrator with their qualifications for distribution to people upon request. A third option would be to establish a roster of neutrals which indicates their qualifications.

Committee members stated, there already is a yellow pages in the yellow pages. To set detailed standards would really put a burden on the court administrator's office. The American Arbitration Association also maintains a list. There are lists out there.

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The Committee reviewed the requirements for placement on the civil mediator neutral roster. Committee members stated the required 30 hours of mediation training means taking a week off work, going to the Twin Cities, and a tuition cost of approximately $1,200. Mr. McLean MOVED to amend lines 19-20 as follows: "A neutral providing civil non-family mediation or facilitation shall have a minimum of 30 6 hours classroom mediation training." Mr. Kapsner seconded. The motion CARRIED.

The Committee questioned the requirement for 6 hours of arbitration training to be listed on the civil arbitrator roster. Committee members stated they had never heard of arbitration school. The Committee questioned where people would go to get the necessary training.

Mr. McLean MOVED to amend lines 21-23 as follows: "Civil Arbitrator ~~Neutral~~ Roster. ~~A neutral~~ An arbitrator providing arbitration, adjudication, or evaluation shall provide in writing the arbitrator's qualifications ~~have a minimum of six hours of classroom training~~." Judge Smith seconded. The motion CARRIED.

The Committee questioned whether the court administrator would be overwhelmed with papers containing the qualifications of arbitrators. Others stated, there will not be that many arbitrators on the list in North Dakota. Committee members suggested, the court administrator should list the qualifications of the neutral and let the parties decide who they want. Others suggested, the court administrator should furnish the parties with copies of the qualifications of the arbitrator. The Committee thought adoption of this proposal would provide information for eventually fine tuning the rule.

Mr. Kuntz MOVED to amend lines 28-30 as follows: "The parties may select ~~whomever they want for~~ a neutral regardless of whether the ~~person~~ neutral is listed on the State Court Administrator's roster." Mr. Kapsner seconded.

The Committee reviewed Administrative Rule 28 which provides for a list of qualified mediators appointed under N.D.C.C. ch. 14-09.1. Section 14-09.1-02 allows the court to order mediation when the custody of a child or visitation is contested.

Committee members stated, the requirements of Administrative Rule 28 are too difficult to meet. People cannot meet the requirements for listing as a mediator, and the presiding judges are not maintaining the lists as required by Administrative Rule 28.

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Members stated, a roster of neutrals should be maintained by a central administrative authority, and Administrative Rule 28 should be consolidated into the proposal. Maybe, the State Bar Association should maintain the roster.

Other Committee members suggested a rule is not needed. A list of neutrals should simply be compiled and made available via the internet. The qualifications in the proposed rule are not meaningful.

It was suggested the State Court Administrator should be asked how he would like the list maintained. For instance, how often should it be updated and what kind of disclaimer should the list have.

Judge Geiger MOVED to postpone the matter until the next meeting. Staff is to follow up on the issues raised during the meeting and consolidate Administrative Rule 28 into the proposal. Judge Hunke seconded. The motion CARRIED.

RULE 4, N.D.R.Civ.P. - SERVICE UPON A GOVERNMENTAL ENTITY (PAGES 183-208 OF THE AGENDA MATERIAL)

The Committee reviewed Justice Meschke's dissent in Gessner v. City of Minot, 1998 157, ¶¶ 24-25, 583 N.W.2d 90. In his dissent, Justice Meschke advocated expanding the category of persons upon whom service may be made for service upon a governmental entity. Currently, for service upon a governmental entity under N.D.R.Civ.P. 4, service must be made upon a member of the governmental entity's governing board. In Gessner, the plaintiff attempted to commence an action against the city of Minot by serving the city manager. The Supreme Court said, the city manager is not a member of the city's governing board and therefore is not a proper person for making service.

The Committee reviewed provisions from other jurisdictions for service upon a governmental entity. The Committee reviewed the different types of governmental entities in North Dakota and potential persons for achieving service upon a governmental entity. The Committee noted for a business entity a broad category of persons is allowed to be served.

For discussion purposes, Ms. Moore MOVED to adopt the proposed amendment to Rule 4, on page 202. The proposed amendment allows service upon a governmental entity by serving the "chief executive or chief administrative officer or any member of its governing board;". Judge Leclerc seconded.

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Committee members questioned whether the identity of the chief executive or chief administrative officer will be clear. For instance, if no one is designated as the city manager, may an auditor accept service as the chief administrative officer. Committee members stated with a lot of governmental entities, it is not clear who is the chief administrative officer. Is it the person who has a computer on their desk?

Committee members stated the rule is clear as it currently exists. The motion FAILED by a vote of 11 to 6.

RULE 11.1, N.D.R.Ct. - NONRESIDENT ATTORNEYS (PAGE 209-225 OF THE AGENDA MATERIAL)

The Committee considered a request from the State Bar Board to amend N.D.R.Ct. 11.1. The State Bar Board wants Rule 11.1 amended to provide a motion procedure which must be followed for a non-admitted nonresident attorney to appear in a North Dakota court proceeding. The proposal requires a nonresident attorney to file a motion and affidavit to appear in a North Dakota court proceeding and a $100 fee to be remitted to fund the attorney disciplinary system.

The Committee reviewed provisions from Minnesota, South Dakota, and Montana governing an appearance by a non-admitted nonresident attorney. The Committee noted, South Dakota and Montana require a $100 filing fee for each case. Members said in South Dakota, a tax must also be paid.

The Committee noted, Minnesota does not have a filing fee requirement or a formal motion procedure. Furthermore, Minnesota conditions an appearance by a nonresident attorney upon the nonresident attorney's home state likewise granting permission to members of the State Bar of Minnesota under the same terms. See M.S.A. § 481.0. Committee members expressed concern, Minnesota might enactment more stringent provisions if Rule 11.1 is amended.

Committee members stated, in the Red River valley, most attorneys are licensed to practice in North Dakota. Many Minneapolis lawyers are practicing in North Dakota who are not licenced in North Dakota. They should have to pay a $100 filing fee. North Dakota attorneys have to pay admittance and license fees.

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Committee members questioned what constitutes an "appearance?" Is it only when the attorney is present in a courtroom? For instance, does an out-of-state corporate counsel appear in a North Dakota court proceeding when the out-of-state counsel signs the pleadings? Does a court proceeding include taking a deposition?

Committee members stated, just taking a deposition in North Dakota should not constitute an appearance requiring a $100 fee. The Committee further noted the proposal does not address practicing law in North Dakota, rather it addresses appearing in a North Dakota state trial court proceeding.

The Committee considered putting a cap on the fee an out-of-state lawyer may have to pay. The cap should be equivalent to the amount a North Dakota attorney pays to practice law. Others said, that would create too much of a burden upon those attorneys who only appear several times a year in North Dakota.

Mr. McLean MOVED to amend lines 27-28 as follows:

"(D) ~~remits a $100 filing fee to the State Bar Board;~~ either remits a $100 fee to the State Bar Board or certifies the attorney has paid a $100 fee to the State Bar Board during that calendar year; and".

Judge Simonson seconded.

Judge Smith MOVED to amend the amendment by adding the phrase "for that purpose" at the end of the sentence. Judge Leclerc seconded. Committee members did not think the addition provided clarification. The motion FAILED.

The Committee wanted to be sensitive to border attorneys who may only appear four or five times a year. Requiring them to pay $100 for each case creates an unreasonable expense. The Committee did not want Minnesota attorneys to end up paying excessive fees or Minnesota may retaliate. Members stated, in essence the amendment creates an annual $100 fee no matter how many cases the attorney appears in North Dakota. Also, an attorney would only have to pay a $100 fee even if the case lasted several years.

Committee members said $100 is sufficient because the fee is only dealing with disciplinary standards. Admittance and license fees cover additional items.

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Others said the more often an attorney appears, the more likely it is the attorney will be disciplined and therefore should pay more. Other Committee members stated, North Dakota attorneys are not charged according to how often they appear.

The Committee voted whether to adopt Mr. McLean's motion. The amendment CARRIED by a vote of 12 to 4.

By unanimous consent, the Committee changed the word "case" on lines 51, 58 and 66 to the word "action."

Committee members expressed concerns about lines 33-34. Those lines require a nonresident attorney to state in an affidavit that the attorney is not presently the subject of a public disciplinary proceeding. Members stated, the language limits someone from practicing in North Dakota no matter how frivolous or silly the complaint. In some states, all complaints may be considered public from day one. The rule should have a provision simply requiring the attorney to describe the complaint, rather than requiring the attorney to swear that the attorney is not the subject of a public disciplinary proceeding.

By unanimous agreement, the Committee changed the language on lines 33 and 34 as follows: "(A) whether the attorney is ~~not~~ presently ~~the~~ subject of to a public disciplinary proceeding;".

Committee members stated occasionally an attorney will receive an admonition and probation for a minor violation. The proposal would prohibit an attorney from appearing in North Dakota even if their violation is minor. By unanimous agreement, the Committee agreed to change the language on lines 35-37 as follows:

"(B) whether the attorney is ~~not~~ under any restriction or probation in the practice of law in any jurisdiction which the attorney is licenced; and".

It will be up to the judge to consider the particulars of the violation in deciding whether to allow the nonresident attorney to appear. The judge may want to monitor the attorney's activities more closely.

Committee members expressed dissatisfaction with lines 38-39. By unanimous agreement, the Committee changed the language as follows:

"(C) whether the attorney is now or has ~~not~~ ever been suspended or disbarred from a court in any jurisdiction."

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The change was made to allow an attorney who was once suspended and who is now in good standing to appear in a North Dakota court proceeding.

Committee members stated paragraph (C) is needed in addition to paragraph (B), because paragraph (B) is only addressing jurisdictions where the attorney is licensed. Paragraph (C) addresses whether an attorney has ever been suspended or disbarred. The court should know whether someone has been suspended or disbarred even if they are currently licensed in another jurisdiction.

On line 46, the Committee unanimously agreed to eliminate the word "filing."

The Committee voted on whether to recommend Rule 11.1 to the North Dakota Supreme Court for adoption. The motion CARRIED with 2 dissenting votes.

Committee members asked for Rule 11.1 to come back to the Committee with an amendment to the explanatory note defining what constitutes an appearance.

The meeting adjourned at approximately 12:00 noon.

_____________________________
Gerhard Raedeke