Judge Michael Sturdevant, Chair George Ackre Dann Greenwood Jean Hannig Kara Johnson Petra Mandigo Hulm Dianna Kindseth Michael McGinniss Ryn Pitts Justice Dale Sandstrom Jason Vendsel Pat Ward
Sandra Keller Dan Ulmer
Jim Ganje Bill Neumann
Justice Daniel Crothers Fritz Fremgen, Stutsman County State’s
Attorney Nick Thornton, ND Association of Criminal
Defense Lawyers Tom Dickson, Attorney, Bismarck Paul Jacobson, Disciplinary Counsel Brent Edison, Ass’t Disciplinary Counsel
Chair Sturdevant called the meeting to order at 12:20 p.m. and welcomed Kara Johnson,
Attorney, Bismarck, and Prof. Michael McGinniss, UND School of Law, as new members appointed
to the Committee. He then drew Committee members’ attention to Attachment B (June 6, 2012) -
minutes of the December 9, 2011, meeting.
It was moved by Ryn Pitts, seconded by Jean Hannig, and carried that the minutes be
Rules for Client Trust Account Records - Board of Governors’ Response to Proposed Amendments
Chair Sturdevant then drew Committee members’ attention to Attachment C (June 6, 2012) -
the SBAND Board of Governors response to the Committee’s proposed amendments to Rule 1.15
to incorporate the Model Rules for Client Trust Account Records, and revisions to the proposed
amendments in response to the Board’s comments. He said the Board objected to inclusion of the
model rule’s extensive record-keeping requirements. The concern, he said, is that the rule may
transform an inadvertent failure to comply with a particular detail into an ethical violation. He said
the Board recommended that proposed paragraph (p), which is the central listing of records to be
maintained, should be relocated to an appendix to the rule which could then provide advisory
information to lawyers regarding record-keeping. He noted that he and Justice Crothers had
participated in Board of Governors’ meetings and provided information regarding the purpose of the
proposed rule changes.
At the request of Chair Sturdevant, staff then briefly reviewed the revisions to the
Committee’s proposed amendments which incorporate the Board’s suggestions. He said paragraph
(p) and the related model rule comments would be relocated to an Appendix. He said language in
the comments which reflected the “requirement” nature of paragraph (p) was revised to indicate the
guidance purpose of the Appendix.
Jean Hannig noted that paragraphs (a) and (h) of current Rule 1.15 would still generally
require a lawyer to maintain complete records.
Ryn Pitts asked what the consequence might be if a lawyer did not follow the guidance
provided in the suggested Appendix. Jean Hannig responded that a disciplinary authority would
likely review the kinds of records the lawyer has maintained and whether the records were adequate
to serve the fiduciary obligation owed to the client.
George Ackre expressed concern that a lawyer may have maintained what are considered
“adequate” records, but the disciplinary authority may focus on a particular, isolated record failure,
which could then lead to disciplinary sanction.
Petra Mandigo Hulm said she favored retaining the model rule provisions in the black-letter
rule as initially proposed. She said the rule would then provide direction regarding the kinds of
records a lawyer is required to maintain. She agreed the detail set out in paragraph (p) appears
extensive. But, she said, the concept is relatively simple - retain records that document where the
money has come from and where it is going. She questioned whether much will be accomplished by
“guidance” provided in an Appendix.
Jason Vendsel agreed with the Board’s concern that the detailed records identified in
paragraph (p) may trap the unwary lawyer who inadvertently fails to maintain a particular kind of
Justice Crothers noted the requirement under paragraph (p)(9) that a lawyer maintain copies
of monthly trial balances and quarterly reconciliations of client trust accounts. He said Board
members wondered whether, for example, a lawyer would be disciplined for not maintaining these
kinds of records. Jason Vendsel observed that while the disciplinary authority might not pursue
discipline in such a situation, the concern is that the authority could do so, given the detail of the
Jean Hannig, as a lawyer licensed in Minnesota, explained that the Minnesota rule requires
that lawyers maintain monthly trial balances and a lawyer can be disciplined for non-compliance.
She said it is unlikely that a lawyer would be disciplined for failing to maintain trial balances for a
couple of months, but the lawyer may be advised of the importance of maintaining the balances. She
emphasized that the purpose of the requirement is to assist lawyers in finding mistakes early, before
the mistakes can affect other clients.
In response to a question from Ryn Pitts, Dianna Kindseth said she was comfortable with the
initial proposal to include the requirements in the rule. She wondered whether guidance in an
Appendix would be sufficient protection for client funds.
With respect to the amendment revisions, Justice Sandstrom drew attention to language in
the opening paragraph of the Appendix which identifies the “kinds of records that may be retained”.
He wondered whether the reference should read “the kinds of records that should be retained”.
Dann Greenwood said it is difficult to find fault with the amendments the Committee initially
proposed which would incorporate the model rule requirements. Nevertheless, he said, there is an
approach that suggests that language in black-letter rules should be regarded as imposing an
obligation with which lawyers must comply. And that, he said, raises the issue identified by the
Board of Governors: the concern that the significant level of detail about required records in a black-letter rule may turn inadvertent errors into grounds for discipline. He said it may be easy to discuss
whether the rule might or might not be enforced, but it is important to keep in mind how the rule
would affect practicing lawyers.
Pat Ward agreed. He said the Board of Governors’ comments are very clear and he
questioned whether the initial proposed amendments would succeed if they were strongly opposed
by the bar association.
After further discussion, it was moved by Pat Ward and seconded by George Ackre that
the revisions to the proposed amendments reflected in Attachment C be approved and
submitted to the Supreme Court for consideration.
It was moved by Jean Hannig, seconded by Justice Sandstrom, and carried that the
motion be amended to modify the reference on page 12, line 24, to “records that may be
maintained” to read “records that should be maintained”.
It was moved by Michael McGinniss, seconded by Ryn Pitts, and carried that the
motion be further amended to modify the proposed language on page 1, lines 6-7, to read
“Guidance regarding what constitutes complete records is provided in the Appendix to this
In response to a question from Justice Sandstrom regarding adoption of the model rules in
other jurisdictions, Juste Crothers said the response has been mixed. He said the black-letter model
rules have been incorporated within black-letter rules in some jurisdictions, while other jurisdictions
have incorporated most or particular parts of the model rules in comments. He said there does not
seem to be a general pattern to how jurisdictions are responding to the model rules,
In response to a request for comment from Chair Sturdevant, Paul Jacobson said his office
does have occasion to review client trust account records maintained by a lawyer. He said the records
are typically sufficient to indicate the trust account has been properly managed. He noted that many
lawyers maintain very basic records and more specific guidance would be helpful in assisting
lawyers in managing adequate records.
Brent Edison noted that in the absence of guidance in our rule, the ABA Model Rules and
Minnesota’s rule are sometimes consulted when a records issue arises. Additionally, he observed that
the lack of guidance in the current rule affords some flexibility regarding what a lawyer is able to
show in terms of maintaining adequate records. But, he said, more guidance in the current rule would
be generally helpful.
After further discussion, the motion as amended carried. (Ryn Pitts - no).
Fee Agreements - Criminal Cases
Chair Sturdevant next drew attention to Attachment D (June 6, 2012) - referrals from the
Supreme Court and the Board of Governors of a request by the ND Association of Criminal Defense
Lawyers that the Committee study and consider rules regarding minimum fee agreements, non-refundable retainers, flat fee agreements, and fees earned upon receipt. He welcomed Nick Thornton,
Association President, and Tom Dickson, Bismarck attorney, for comments regarding the requested
Nick Thornton said the general issue came to the Associations’ attention as the result of an
on-going disciplinary action involving an Association member. However, he said there is general
interest in a discussion of whether current rules should be modified to address the kinds of fee
agreements that are commonly used and which generally focus on the value of services rather than
the time expended in a case. He said defense lawyer services must be based on the value of those
services to the client, for example, the value of not going to jail or the value of a charge being
dismissed. He said a flat fee is also beneficial to the client as the client can control costs and know
in advance what is agreed to and how the fee will be paid out. He drew attention to the Washington
rule attached to his letter in Attachment D which is an example of how one jurisdiction has
addressed fee agreements. He said there is little guidance in current Rule 1.5 of the Rules of
Professional Conduct regarding special fee arrangements.
Justice Sandstrom asked whether the issue is simply one of using a flat fee or if there is an
issue regarding whether the lawyer can use all the fees received upon payment. Tom Dickson said
both issues should be discussed.
With respect to the flat fee issue, Nick Thornton said flat fee arrangements are often simply
a matter of contract. He suggested that contracts in which the fee is payable upon receipt should be
in writing. With respect to whether the fee is earned upon receipt, he said the basic issue is one of
commingling of fees. That is, he said, there is a question regarding deposit of the fee, which is earned
upon receipt by the lawyer and is the lawyer’s property, in the trust account where it then becomes
commingled with client fees. Additionally, he said there is little guidance in the current rule
regarding the refunding of fees to a client depending on the disposition of the case. He noted that the
Washington rule, in paragraph (f)(2), provides that the client “may or may not” be entitled to a
refund if legal services have not been completed, which would depend on the amount of work and
the value of the work completed to that point.
Tom Dickson, appearing on behalf of Rob Ackre, ND Association for Justice, said flat fee
agreements are used by nearly every criminal defense lawyer and are considered the appropriate
standard of care. With respect to non-refundable fees, he said some lawyers use them and some do
not. He said the basic question with respect to such fees is whether they are deposited in the trust
account or in the lawyer’s operating account. He said if the fee is considered earned upon receipt,
then the fees should be deposited in the operating account. He explained that flat fee agreements are
determined by the kind of case involved and the time and expenses associated with the case. He
suggested there should be more detail in Rule 1.5 to guide an analysis of whether a particular flat fee
arrangement is reasonable. An additional issue, he said, concerns how much of the fee should be
refunded if the lawyer is discharged.
Paul Jacobson noted the sentence in the Criminal Defense Lawyers Association’s letter which
suggests the rule-making process on special fees would help “avoid the arbitrary nature of the
disciplinary process, which can arbitrarily and capriciously single out lawyers utilizing this common
business practice... .” He assured the Committee that in the present case which drew the
Association’s attention, the disciplinary process was neither arbitrary nor capricious. He said the
matter was referred by an Inquiry Committee to a Hearing Panel, which will then issue its order on
the issues. He said if the Committee is to undertake a review of the fee issues presented, it will likely
need to consider the interplay between Rules 1.5, 1.6, 1.15, and 1.16 of the Rules of Professional
Conduct. He emphasized that the primary purpose of the rules is the protection of the client’s rights
and interests, which include not only the client’s money but the client’s right to discharge the lawyer.
Brent Edison noted that Comment  to Rule 1.16 provides that “a client has the right to
discharge a lawyer at any time with or without cause” but is liable for payment for the lawyer’s
services. He said Comment  to Rule 1.5 provides that a lawyer may require advance payment of
a fee but must return any unearned portion of the fee. He said the Supreme Court discussed fee
arrangement issues most recently in Disciplinary Board v. Rozan, 2011 ND 71,which also discusses
prior cases on similar issues. He distributed a Gavel article he authored in 2005 which discusses the
ethics of non-refundable retainers. A copy of the article is attached as an Appendix.
After further discussion, Judge Sturdevant, Jason Vendsel, and Jean Hannig agreed to review
additional background information regarding rules adopted in other jurisdictions regarding special
fee arrangements. The general issue will be reviewed further at the next meeting.
Rule 3.8 (Special Responsibilities of a Prosecutor) - Referral Back to Committee of Proposed
Chair Sturdevant next drew attention to Attachment E (June 6, 2012) - proposed amendments
to Rule 3.8 of the Rules of Professional Conduct which were recommended to the Supreme Court
but referred back to the Committee in light of concerns expressed during the hearing process. Staff
briefly reviewed the amendments, which proposed a new paragraph ( c) to govern permissible
communications by a prosecutor with an unrepresented person in felony and lesser cases. He said
during the hearing process on the rule amendments concerns were raised about 1) whether the
proposed language would preclude any communication by the prosecutor even if the communication
is initiated by the unrepresented person, and 2) whether there was a conflict between the direction
that the prosecutor avoid any discussions with the defendant about decisions and the requirement that
any settlement offer be in writing. He said it was also noted that language in paragraph ( c)(2)
concerning the defendant being “permitted by the court” to self-represent was at odds with the
defendant’s constitutional right to self-represent.
With respect to the pro se (self-represented) issue, Judge Sturdevant observed that it is
sometimes unclear whether the defendant will self-represent or when that decision will be made.
Nevertheless, he said, the language in proposed paragraph ( c)(2) regarding permitting the defendant
to self-represent is inaccurate and should be modified.
With regard to the language concerning the defendant having been permitted to self-represent, staff noted that the proposed rule amendments initially submitted by the state’s attorneys
to the Committee in March 2010 referred to the defendant having waived the right to counsel on the
record as a precondition to certain communications with the defendant by the prosecutor.
With respect to concern about the language relating to avoiding any discussions with the
defendant, Michael McGinniss suggested “avoid providing advice to the defendant” as an alternative.
Fritz Fremgen said the suggested change would likely be more workable, but it is still unclear
whether the prosecutor can initiate the communication.
Nick Thornton said the Association’s concern is that a defendant, who oftentimes is at a
lower education level and is fearful of the process, may agree to a disposition that has significant
collateral consequences. He said it is problematic for the prosecutor to provide any information
orally. At a minimum, he said, information should be provided in writing.
In response to a question from Judge Sturdevant regarding the importance of a writing
requirement, Nick Thornton said a writing requirement would at least slow down the process and
afford more time for the defendant to consider options. It would also, he said, give the defendant an
opportunity to have a lawyer review the prosecutor’s offer.
After further discussion, Chair Sturdevant requested discussion regarding possible changes
to the amendments represented in paragraph ( c). He noted that language regarding the waiver of the
right to counsel may be more appropriate in paragraph ( c)(2), rather than the current reference to the
defendant being permitted by the court to self-represent.
It was moved by Dann Greenwood and seconded by Jean Hannig that the qualifying
clause in paragraph ( c)(2) be modified to read: “unless the defendant has on the record
waived the right to counsel”.
Petra Mandigo Hulm asked whether the change would permit the prosecutor to talk with the
defendant. Fritz Fremgen said he would likely provide the defendant with a form, which advises the
defendant of certain items that would be part of any discussion and advises of particular rights. He
said the defendant would sign and return the form if the defendant wishes to continue
communication with his office. He said the form does not, however, address or identify possible
The motion carried. (Pat Ward - no).
Chair Sturdevant requested any additional changes to the amendments.
It was moved by Michael McGinniss, seconded by Ryn Pitts, and carried that the
phrase “avoid any discussions with the defendant regarding decisions” in paragraph ( c)(2)(i)
be modified to read: “avoid providing advice to the defendant”.
Justice Sandstrom asked how the concern about knowledge of collateral consequences could
be addressed. He wondered whether the Indigent Defense Commission has considered preparing a
general advisement on collateral consequences that could be provided to defendants.
Nick Thornton said he could not speak for the Commission but that he has tried to compile
a workable list of collateral consequences, about thirty, which is much fewer than the numerous
consequences that could follow from a conviction. He noted that there is a “Faretta form”, following
from the U.S. Supreme Court’s opinion in Faretta v. California, which enables a defendant to
provide a knowing and intelligent waiver of the right to counsel and then self-represent. He said
through such a waiver the defendant assumes the risks associated with a conviction or guilty plea.
It is a different matter, he said, if the defendant has not signed waiver and there is no source from
which to obtain information about collateral consequences. He said a list or pamphlet could be
devised, but the question would be how the defendant would obtain the information.
Dann Greenwood said there is considerable risk associated with attempting to identify all the
relevant consequences as part of rule-making. He said an alternative may be that the prosecutor
simply should not make a settlement offer unless the prosecutor advises that there are or may be
significant collateral consequences as a result of pleading guilty.
Justice Sandstrom said it is a legitimate expectation that a defendant be informed of possible
collateral consequences. The question, he said, is the best or preferable method by which that
information to be provided.
Kara Johnson suggested that while “collateral consequences” is a concept known to the
courts and lawyers, it may be of limited use to a defendant. She suggested it may be better to simply
inform the defendant that there may be consequences other than those imposed by the court if the
defendant pleads guilty.
Petra Mandigo Hulm suggested adding a new subparagraph to paragraph ( c) which would
require the prosecutor to inform the defendant that any plea of guilty or conviction may result in
Fritz Fremgen said there is little practical effect in advising the average defendant that there
are other consequences that follow from a guilty plea. Pat Ward wondered who would provide the
information if the defendant were to ask about possible consequences.
In response to a question from Justice Sandstrom, Fritz Fremgen said he would have no
significant concern about informing the defendant in a settlement offer that there may be
consequences other than what the court may impose.
Staff noted that the structure of the rule amendments, as modified, is such that the written
settlement offer requirement would not apply to situations in which the defendant has waived
counsel on the record.
Following further discussion, there was general agreement that the requirement that the
prosecutor make any settlement offer in writing should include an advisement to the defendant that
significant consequences other than those the court may impose may follow from a guilty plea.
Chair Sturdevant asked that staff review the rule amendments and provide draft changes,
including the previously agreed-to modifications, for consideration at the next meeting.
Admission to Practice Rules - Supreme Court Referral of Amendments Proposed by the Board of
Chair Sturdevant next drew attention to Attachment G (June 6, 2012) - proposed amendments
to the Admission to Practice Rules submitted by the Board of Law Examiners and referred to the
Committee for review. Staff noted that the draft amendments related to pro hac vice admission
included in Attachment F (June 6, 2012), which were also referred by the Supreme Court to the
Committee, are included in the Board’s proposed amendments.
At the request of Chair Sturdevant, Penny Miller, Secretary-Treasurer, Board of Law
Examiners, generally reviewed the proposed amendments. She drew attention to the following
Page 32, new Section G: an applicant who fails six bar examinations may take additional
examinations only with the Board’s permission. Judge Sturdevant noted that the Board’s
decision is final and cannot be appealed (p.33, lines 716-718). Ms. Miller noted that
application for a writ of mandamus is still available to an applicant.
Page 36, lines 782,784: the deletion of the qualifier “full-time” regarding instructor status
and performance of legal work in a legal capacity as criteria for admission by motion. Ms.
Miller said the requirement was considered unnecessary as the Board will still consider
whether the applicant has been actively engaged in the activity to demonstrate competency
in the practice of law [Rule 7A(1)( c); p. 35-36, lines 776-778].
Page 40, lines 868-869: a requirement that a lawyer on inactive status seeking licensure must
certify that any client protection funds paid on the lawyer’s behalf have been reimbursed by
the lawyer. Ms. Miller said a companion amendment to the applicable Rule for Lawyer
Discipline should also be considered.
Page 49, new Section G: permitting release of bar examination score information to the law
school from which the applicant received a law degree.
Chair Sturdevant then requested any Committee discussion of the proposed amendments.
Justice Sandstrom noted that several questions had been posed to him regarding the proposed
amendments. First, he said, there are references in the amendments to particular matters being
“deemed accepted by the Supreme Court”. As an example, he noted p. 32, line 710, which provides
that unless a petition for review is filed, the Board’s recommendation regarding admission of an
applicant is “deemed accepted by the Supreme Court”. There is a similar reference, he said, on p.38,
line 834, with respect to admission on motion. Ms. Miller said the amendments are proposed since,
in practice, the Board’s recommendations are accepted and the Supreme Court typically does not
then review all the applications. Justice Sandstrom observed that, under the present rules, the
Supreme Court could review a recommendation if it was considered necessary in a given instance.
The proposed amendments, he said, would seem to preclude that review.
Justice Sandstrom next drew attention to the proposed amendment on p. 35, lines 766-767,
which provides that the Board will notify the Disciplinary Board if the Board revokes a temporary
license based on conduct that may have violated the North Dakota Rules of Professional Conduct.
He wondered whether the reference to possible violation of this state’s rules may be too narrow. For
example, he said, disciplinary action for a rule violation may have occurred in another state. Judge
Sturdevant suggested deleting the reference to a violation and simply require notification if the Board
revokes a temporary license. Michael McGinnis said if the focus is on violation of a professional
conduct rule, perhaps a reference to revocation of the temporary license “based on professional
misconduct in this or another jurisdiction” may be an alternative. Ms. Miller noted Section F(5)
provides that the Board must revoke a temporary license if formal disciplinary proceedings are
instituted against the applicant.
Justice Sandstrom next noted the proposed amendment on p. 40, line 862, which requires
completion of three hours of ethics course work “during the three calendar years immediately
preceding” application by a lawyer who is not licensed due to noncompliance with CLE
requirements. He wondered whether the reference to “calendar year” may be too restrictive in the
timing of what is to occur. Ms. Miller said the intent of proposed language is to be more forgiving.
Judge Sturdevant wondered whether a reference to the “current and immediately preceding calendar
year” may be more helpful.
Following further discussion, Chair Sturdevant asked that Ms. Miller review the identified
issues. He asked that Committee members submit any other suggestions or questions to Ms. Miller
He said further discussion of the proposed amendments and any revisions would be deferred until
the next meeting.
Pro Hac Vice Admission - Amendments
Chair Sturdevant noted that the suggested change to the pro hac vice admission rule included
in Attachment F (June 6, 2016), which was referred to the Committee, is also include in the Board’s
proposed amendments. Since further consideration of the Board’s proposals will be deferred until
the next meeting, he suggested the Committee consider the change recommended in Attachment F.
He said the change was submitted initially by Judge Steven McCullough and would simply require
that a nonresident lawyer provide, in the affidavit in support of a motion for admission, a statement
that the lawyer has paid the required fee to the Board.
It was moved by Jean Hannig, seconded by Petra Mandigo Hulm, and carriedthat the
proposed amendment to Rule 3 of the Admission to Practice Rules 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.
ABA Model Rules for Fee Arbitration
Chair Sturdevant then drew attention to Attachment H (June 6, 2012) - the ABA Model Rules
for Fee Arbitration with recent ABA amendments, which have been referred to the Committee by
the Supreme Court for review. He noted that the state bar association has rules governing fee
arbitration and that panels are used when a fee issue arises. He said the arbitration process appears
to be very rarely used, approximately six times over the past several years.
In response to a question from Kara Johnson, Judge Sturdevant said he is uncertain of the
kinds of issues that were involved in the six instances in which the arbitration process has been used.
Jean Hannig said there may be some benefit to considering parts of the model rules. She said
the rules could provide guidance for anyone who serves on a fee arbitration panel and could serve
as a vehicle by which information could be provided to the public by the bar association. She said
it is likely that very few members of the public know that arbitration panels exist.
In response to a question from Kara Johnson, Judge Sturdevant said there is no indication that
the bar association’s consumer protection committee has reviewed the model rules.
Following further discussion, Chair Sturdevant said the model rules and additional related
information will be discussed further at the next meeting.
There being no further discussion, the meeting was adjourned at 3:50 p.m.