Sandi Tabor, Chair
It was moved by Pat Ward, seconded by Mark Hanson, and carried that the minutes
Pro Bono Legal Services by Certain Qualified Out-of-State Attorneys - Draft Rule
Chair Tabor drew Committee members' attention to Attachment C (June 5, 2007) - a draft rule concerning pro bono legal services provided by certain qualified out-of-state attorneys prepared by Mark Hanson, Bob Udland, and Jean Hannig. She then requested discussion of the draft rule.
By way of explanation, Mark Hanson said the draft rule is based primarily on conclusions reached in earlier discussions of the Committee. Those discussions, he said, highlighted concerns about the supervision role of a legal services organization such as Legal Services of ND and concerns about malpractice insurance coverage for an attorney providing services under the rule. He said the draft rule does not include an age requirement but does include a requirement that the attorney must have been admitted to practice law in another state or jurisdiction for at least 5 years. He said the draft rule does not provide for a reduced licensure fee as the fee is prescribed by statute. The draft rule, he said, provides a waiver of the general CLE requirement. He said the draft rule would require only that the attorney work with an approved legal services organization rather than be directly supervised by the organization. This last approach, he said, is in response to concerns voiced by Jim Fitzsimmons about the ability of Legal Services of ND to effectively provide supervision over attorneys providing pro bono legal services under the rule. He said the draft rule does not require certification by a particular entity, such as an approved legal services organization, as other state rules do but does require that the attorney provide certain certificates and statements outlined in Section C. Finally, he said, the draft rule does not require that an attorney providing legal services under the rule must be licensed to practice law in North Dakota. He then generally reviewed the various sections of the draft rule.
With respect to the years of practice requirement rather than an age requirement, Jean Hannig noted that some individuals become licensed to practice later in life and, therefore, the drafters concluded 5 years of practice would be a better criterion than a greater number of years. She noted the requirement in Section B(3)(f) that the approved legal services organization must explain, as part of a petition to the Supreme Court to be an approved organization, the existence and extent of malpractice insurance that would cover an attorney providing legal services under the rule. She said the assumption is that the organization would have some kind of malpractice insurance that would or could apply in these circumstances. She explained as well that the draft rule contemplates the attorney's association with the approved organization and not direct supervision by the organization of the attorney's work.
With respect to the issue of malpractice coverage, Mark Hanson reiterated that the draft is based on an assumption that malpractice coverage carried by an approved legal services organization would be sufficient to cover a retired attorney working with or under the auspices of the organization. He said he is unsure whether there may be some unanticipated problems in this area. Additionally, he emphasized the importance of finding ways to provide legal services for those who cannot otherwise afford them but wondered whether the approach reflected in the rule is entirely necessary. He said it is laudable to consider a mechanism for allowing retired attorneys to provide needed legal services. But he cautioned that the unresolved malpractice insurance issues and possible problems for the client protection fund in the absence of malpractice coverage suggest a careful review of how best to proceed.
Chair Tabor then requested general Committee discussion of the draft rule. She noted with respect to the 5-year practice requirement that other state rules have practice requirements ranging from 5 to 15 years. She asked whether the 5-year requirement seems sufficient.
Dianna Kindseth observed that in the public accounting field someone may have 5 years of experience but then become inactive for a long period of time, and perhaps retire. She wondered whether the draft rule's application process would weed out similar situations in which an attorney may have had 5 years of continuous practice but then may have been inactive many years before applying under the rule. Mark Hanson said the draft rule would arguably allow someone who practiced law for 5 years but then was inactive for a long time to apply and be permitted to provide legal services under the rule. He said it is unclear whether the application process would necessarily prevent someone who has been inactive for a long time immediately before applying from being admitted under the rule.
Sandi Tabor wondered whether the language in Section B(2)(a) [". . . engaged in the active practice of law for at least five years before applying . . . "] clearly indicates that the 5-year requirement pertains to the time immediately before applying under the rule.
With respect to years of practice, Mark Hanson said it may be the better course to follow the approach taken in some other states and require, for example, 8 or 10 years of active practice out of the last 10 or 15 years.
With respect to malpractice insurance coverage, Ryn Pitts wondered whether an attorney could obtain the coverage if there is no continuing legal education requirement.
Sandi Tabor said the related question is what a malpractice insurance carrier's response might be if the application for insurance by, for example, Legal Services of North Dakota were to include a retired attorney admitted under the rule.
Bill Neumann noted that several states do not have mandatory CLE requirements and attorneys in those states obtain malpractice insurance coverage in some manner.
Pat Ward wondered whether the discussion should be redirected to consider whether there is, at this point, a demonstrated need in North Dakota for implementing the draft rule under discussion.
Justice Maring suggested Legal Services of North Dakota and the Volunteer Lawyer Program should be asked whether there is a large number of people in North Dakota that are being under-served or unserved with respect to legal services. She said if there is an appreciable number of people who are unable to obtain needed legal services, then even a few retired attorneys admitted under the rule would be a positive result.
Sandi Tabor noted that Jim Fitzsimmons indicated at the Committee's last meeting that there is a clear need for some method of providing legal services and he welcomed the Committee's discussion of the issue. She said his concerns were whether Legal Services of ND could effectively monitor a retired attorney's work and there were the noted concerns about malpractice insurance.
Clare Carlson asked what legal services are not being provided. Bill Neumann said there is, at this time, no definitive answer about the kinds of services that are needed and not provided because of a lack of resources. He noted that the UND Legal Aid Clinic is conducting a legal needs assessment and when that effort is completed the assessment will help in describing particular areas of need.
Judge Sturdevant said he sees no harm in having a rule similar to the one under discussion as long as it is adapted to the particular needs in North Dakota. He agreed with the concerns expressed about the availability of malpractice insurance.
Mark Hanson said it is undisputed that the goal should be to promote pro bono legal services. The question, he said, is whether the draft rule represents a worthwhile method to assist in achieving that goal. He said there are many questions to be answered before the Committee can decide whether to approve a proposed rule.
It was moved by Mark Hanson and seconded by Pat Ward that consideration of the draft rule be tabled pending development and review of additional information on the issues discussed.
Mark Hanson said Jim Fitzsimmons should be asked for his comments concerning the draft rule and additional information should be gathered concerning the malpractice issues. He said more consideration should also be given to the years of practice requirement.
Ryn Pitts suggested that information be gathered concerning experience in other jurisdictions with similar rules.
After further discussion, Committee members agreed the following information should be obtained and reviewed: 1) comments from Jim Fitzimmons on the draft rule and malpractice insurance issues as they pertain to the status of Legal Services of ND as a possible "approved legal services organization" under the rule; 2) information concerning rules adopted in other states; 3) information from the legal needs assessment being conducted by the Legal Aid Clinic; and 4) additional discussion of the years of practice requirement.
Bill Neumann said he would contact the ABA and his counterparts in other state bar associations for additional information.
Mark Hanson said he would contact AALPS for information concerning possible malpractice insurance issues.
The motion carried.
Rules for Lawyer Discipline - Amendments to Rule 3.1F(1) and (2)
Chair Tabor drew attention to the request submitted by Nick Hall, Chair of the Disciplinary Board, that the Committee consider possible amendments to Rule 3.1(F) of the Rules for Lawyer Discipline to address issues concerning the timeframe for hearing panel submission of conclusions and recommendations following a hearing. Nick Hall's letter and an attached memorandum from David Maring more fully explaining the issue are attached as an Appendix to the March 30 meeting minutes. Chair Tabor then called on Petra Mandigo for a report concerning the issue and proposed amendments.
Petra Mandigo said she had visited with Dave Maring about the potential problems posed by the timeframes imposed under the rule. Essentially, she said, the issue is that 60-day timeframe often proves problematic in light of time committed to hearings, attorney briefing schedules, and the time required to produce transcripts. She said the suggestion is that Rules 3.1F(1) and (2) be amended to provide that the 60-day time period begins to run from the "close of the hearing record", rather than from the close of the hearing. She said the proposed changes would address the problems encountered by the hearing panels and she would support them.
It was moved by Petra Mandigo, seconded by Pat Ward, and carried that the proposed amendments to Rule 3.1F(1) and (2) be approved for submission to the Board of Governors for comment and, in the absence of any Board issues requiring Committee attention, for submission to the Supreme Court for its consideration.
"Katrina Rule" - Legal Services following a Disaster
Chair Tabor drew attention to the Committee's earlier preliminary discussion of the ABA's model "Katrina" rule, which permits the temporary practice of law by lawyers outside the state following determination of a major disaster. She noted that the ABA had adopted the model rule as a rule of court rather than a rule of professional conduct. The Committee had earlier discussed whether the model rule, if it is to be considered, should be reviewed by this Committee or by the Joint Procedure Committee, which has responsibility for considering procedural rules and rules of court. She explained that the model rule had not been referred to the Committee, but the Committee had previously briefly discussed the model rule proposal as part of a request for comment from the ABA. The question for discussion, she said, is whether the Committee should now consider the model rule or defer consideration to the Joint Procedure Committee. She said that even though the model rule is a rule of court, the subject matter (temporary practice of law, discipline, and registration) is something the Committee has typically considered.
Mark Hanson recalled the earlier responses to the 1997 Grand Forks flood from Supreme Court and the general legal community, which seemed to address problems as effectively as could have been expected. He wondered whether there is a need to consider the rule simply because it is an initiative adopted by the ABA.
Pat Ward asked whether there is an immediate need to adopt the rule or whether consideration of the model rule can be deferred to a later time.
Petra Mandigo asked whether anything in the model rule would have added to what was done within the state in response to the Grand Forks flood. She questioned whether it is necessary to enable out-of-state attorneys to offer services in such a circumstance when the local legal community seemed to perform very well.
Jean Hannig said there does not appear to be a need to adopt the rule at this time.
Following further discussion, it was moved by Jean Hannig, seconded by Pat Ward, and carried that the Committee take no further action concerning the model rule.
Codes of Pretrial and Trial Conduct - Referral
Chair Tabor informed Committee members that the Supreme Court had recently referred to
the Committee for review the Codes of Pretrial and Trial Conduct developed by the American
College of Trial Lawyers. She said the Codes would be distributed to Committee members for
review in advance of the next meeting.
There being no further discussion the meeting was adjourned at 11:15 a.m.