Joint Committee on Attorney Standards Minutes

Joint Committee on Attorney Standards

MinutesRamkota Hotel, Bismarck June 15, 2010

Members Present Judge Michael Sturdevant Clare Carlson Dann Greenwood Jean Hannig Carol Johnson Petra Mandigo Hulm Ryn Pitts Justice Dale Sandstrom Jason Vendsel Pat Ward (joined the meeting at 1:00 p.m.)	Members Absent George Ackre Mark Hanson Dianna Kindseth Dan Ulmer
Staff Jim Ganje Bill Neumann Others Present Fritz Fremgen, Stutsman County State's Attorney

Chair Sturdevant called the meeting to order at 12:40 p.m. and drew Committee members' attention to Attachment B (March 11, 2010) - minutes of the March 19, 2010, meeting. It was noted that the attendance listing should reflect participation by Penny Miller, Secretary-Treasurer for the Board of Law Examiners.

It was moved by Petra Mandigo Hulm, seconded by Clare Carlson, and carried that the minutes, as corrected, be approved.

Responsibilities of a Prosecutor - Draft Amendments to Rule 3.8

At the request of Chair Sturdevant, staff reviewed the draft amendments to Rule 3.8 resulting from the March 19 meeting discussion and subsequent work regarding paragraph © by the Chair and Fritz Fremgen. The revisions to paragraph ( c), he said, reflect a slightly different version of the suggested amendments presented by the state's attorneys and would specify the situations in which a prosecutor could, or could not, communicate with an unrepresented defendant. The revisions to paragraphs (g) and (h), he said, reflect the changes made at the March 19 meeting. The draft amendments are included as Attachment B (June 8, 2010).

It was moved by Dann Greenwood and seconded by Clare Carlson that the draft amendments relating to paragraphs (g) and (h) be approved.

With respect to paragraph (g)(2)(ii), Justice Sandstrom asked whether there is a discernible meaning for "make reasonable effort". He said the phrase seems unnecessarily vague and noted that a similar reference was deleted from paragraph (g)(2)(i). Additionally, he observed that the obligation to serve the "interests of justice" would suggest prosecutors should undertake an effort to remedy situations in which a defendant is convicted of an offense the defendant did not commit.

With respect to the meaning of "reasonable effort", Fritz Fremgen said proposed Comment [7] is intended to clarify the meaning and application of the what constitutes a "reasonable effort" by the prosecutor to cause an investigation to determine whether a defendant was convicted of an offense the defendant did not commit. He reiterated his concern voiced at the March 19 meeting regarding the prosecutor being placed in the position of essentially becoming an advocate for the defendant.

Justice Sandstrom observed that if Comment [7] is intended to provide substantive direction, then the direction should be included in the rule itself. He asked whether paragraph (g)(2)(ii) should simply require the prosecutor to "undertake" further investigation or cause an investigation to occur. Fritz Fremgen said that state's attorneys typically do not have independent investigative staff that could do the investigatory work.

Petra Mandigo Hulm said paragraph (g)(2)(ii) appears to impose on the prosecutor the burden of conducting an investigation, while Comment [7] suggests that the prosecutor's obligation is limited to disclosing the existence of evidence indicating the defendant may have been wrongfully convicted. She said the rule should be modified if the Comment is accurate in describing the prosecutor's responsibility.

Following further discussion, it was moved by Dann Greenwood, seconded by Pat Ward, and carried that the motion be amended to include the deletion of "make reasonable effort to either" from paragraph (g)(2)(ii).

The main motion, as amended, carried.

Committee members next reviewed draft Comment [7] related to paragraphs (g) and (h).

Jason Vendsel noted that language in the Comment related to "reasonable effort" should be reviewed as the reference has been removed from the rule.

Justice Sandstrom suggested there may be no need for Comment [7] since the reasonable effort requirement is no longer in the rule.

It was moved by Pat Ward, seconded by Justice Sandstrom, and carried that draft Comment [7] be deleted.

Committee members then reviewed draft revisions to paragraph ( c). The draft amendments would delete the current rule language prohibiting a prosecutor from obtaining from an unrepresented accused a waiver of pretrial rights and then include new language describing the kinds of permissible communications with an unrepresented person.

It was moved by Pat Ward and seconded by Petra Mandigo Hulm that draft paragraph ( c) be approved.

In response to a question from Chair Sturdevant, Fritz Fremgen said the draft amendments to paragraph ( c) and the related amendments to Comment [2] would provide helpful direction to prosecutors.

Jason Vendsel said the draft rule language appears unobjectionable. However, he suggested that, since the Committee does not have sufficient representation of lawyers involved in criminal defense, the Committee should solicit comments regarding the draft language from the criminal defense bar.

After further discussion, the motion carried.

In response to a question from Chair Sturdevant, Committee members agreed the draft amendments should be circulated to the criminal defense bar, including the Indigent Defense Commission, with a request for comment. Pat Ward suggested Legal Services of North Dakota should be included in the request for comment because of their involvement in juvenile cases. Committee members agreed.

Committee members then reviewed draft amendments to Comment [2] relating to the amendments to paragraph ( c).

Justice Sandstrom observed that a plea of guilty may result, in certain circumstances, in the defendant's deportation. He said the draft Comment language [pg. 4, lines 2-7] indicates the prosecutor has no duty to alert the defendant of that consequence. Fritz Fremgen noted that there are several collateral consequences to a guilty plea about which the defendant is not required to be notified before acceptance of a guilty plea.

Justice Sandstrom noted that there is a difference between an affirmative duty to notify a defendant as opposed to providing the information in response to a question. He said the draft language seems to indicate that the prosecutor would not be obligated to provide the information even if the question is asked. Fritz Fremgen said the language is not intended to be applied in that way. He said the language is intended to simply indicate that a prosecutor is not required at the outset to provide the notification, but is not prohibited from providing the information if asked.

Following further discussion, it was moved by Pat Ward and seconded by Clare Carlson that the draft amendments to Comment [2] be approved.

In response to a question from Petra Mandigo Hulm, Fritz Fremgen said the changes to Comment [2] relate specifically to new paragraph (c)(1), which addresses communications when the person is charged with a misdemeanor, infraction, traffic offense, or juvenile petition. He said paragraph (c)(2) generally prohibits communications with defendants in felony cases and consequently there is no related comment language.

Justice Sandstrom suggested that the last full sentence on page 4, lines 13-17, of the "clean" version, which indicates that the prosecutor is not required to advise the defendant of possible favorable dispositions or collateral consequences, should be deleted. He said his concern is that the language could be interpreted as foreclosing the prosecutor from providing information even if asked by the defendant. He said earlier language in the comment clarifying that the prosecutor does not act as a defendant's legal adviser when providing information to the defendant should address whether the prosecutor has any affirmative duty to provide information.

It was moved by Justice Sandstrom, seconded by Pat Ward, and carried that the motion be amended to include deletion of the noted language.

The motion, as amended, carried.

Committee members next reviewed draft amendments to Comment [1] [pg. 3, lines 6-10], which reflect ABA amendments related to paragraph (h).

It was moved by Pat Ward and seconded by Petra Mandigo Hulm that the draft amendments be approved.

Dann Greenwood drew attention to the language on page 3, lines 7-10, which explain that the kinds of remedial actions taken by a prosecutor may differ among jurisdictions. He wondered whether there is any significance in what other jurisdictions may require. Justice Sandstrom agreed and said the language likely does not add anything to the Comment.

It was moved by Justice Sandstrom, seconded by Pat Ward, and carried that the motion be amended to include deletion of the last two sentences on lines 7-10.

The motion, as amended, carried.

It was moved by Petra Mandigo Hulm, seconded by Pat Ward, and carried that the proposed amendments to Rule 3.8 and related Comments be approved for circulation to the Association of Criminal Defense Lawyers, the Indigent Defense Commission, and Legal Services of North Dakota for comment and, in the absence of comment requiring Committee review, be approved for submission to the Board of Governors for review and, in the absence of any Board comment requiring Committee action, be approved for submission to the Supreme Court for its consideration.

Rule 7.1 - Proposed Amendments Relating to "Super Lawyer" Issue and Board Review

Chair Sturdevant noted that the Committee had approved proposed amendments to Rule 7.1 for submission to the Board of Governors for comment and had approved the amendments for submission to the Supreme Court if the Board had no comments requiring Committee consideration.

Petra Mandigo Hulm explained that the Board of Governors initially reviewed the proposes amendments and concerns were voiced by certain Board members. She said Committee minutes and background material were subsequently provided to Board members and following review there were no specific concerns with the proposed amendments. She said the Board will complete discussion of the proposed amendments at its June 15 evening meeting.

Chair Sturdevant said if there are no further concerns expressed by the Board, in accordance with the Committee's previous motion, the proposed amendments will be submitted to the Supreme Court.

Acceptance of Credit Card Payments for Lawyer Fees, Costs, and Advance Retainers - Further Discussion

At the request of Chair Sturdevant, staff summarized the result of research regarding whether rules have been adopted in other jurisdictions to address the acceptance of credit cards for lawyer services. He said the primary vehicle for addressing the issue appears to be through ethics opinions and related guidance for lawyers. He said it appears that only Arizona has adopted rule amendments to explicitly address acceptance of credit card payments [See, Attachment E (June 8, 2010)]. He said the SBAND Ethics Opinion on the issue reviewed the Arizona rules and seemed to consider them unduly burdensome and complicated.

Dann Greenwood observed that the SBAND Ethics Opinion essentially concluded that acceptance of credit card payments in the manner described in the opinion involved a fleeting violation of the black-letter rule. He said Arizona appears to have also recognized there was a technical violation of the rule and then changed the rule to impose a particular procedure. He said the Committee may decide to pursue a rule amendment to more specifically address the issue but should not follow the Arizona example, which arguably creates more problems than are solved. He said a better rule approach would be to follow the direction provided in the opinion, which essentially concludes that commingling of fees may occur within the general account but then require that the payments be transferred to the trust account within a very short time, perhaps three days after receipt.

Pat Ward agreed that the current opinion provides useful guidance to North Dakota lawyers, but suggested that the Committee consider a simple black-letter rule change based on the opinion's framework.

Following further discussion, Dann Greenwood, Petra Mandigo Hulm, and Pat Ward agreed to develop draft rule amendments for consideration at a future meeting.

Other Business

Staff noted that the Judiciary Standards Committee had earlier in the morning completed its review of the Code of Judicial Conduct based on recent amendments by the ABA to the Model Code of Judicial Conduct. He said an issue raised by ABA amendments regarding application of the code concerned whether the code should apply to administrative law judges. He said Committee members were uncertain whether the Code of Judicial Conduct could be extended to apply to ALJs, which are essentially part of the executive branch. He said there was a suggestion that this Committee consider the feasibility of an amendment to the Rules of Professional Conduct to provide that lawyers who serve as ALJs must also comply with the Code of Judicial Conduct. He said a somewhat similar approach is taken under Rule 8.2(b) with respect to a lawyer who is a candidate for judicial office.

Following discussion, Committee members agreed to await a formal referral from the Judiciary Standards Committee.

There being no further discussion the meeting was adjourned at 2:25 p.m.