|Members Present |
Judge Michael Sturdevant
Petra Mandigo Hulm
Justice Dale Sandstrom
|Members Absent |
Fritz Fremgen, Stutsman County State's Attorney
Chair Sturdevant called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (March 11, 2010) - minutes of the December 11, 2009, meeting. Mark Hanson suggested that the 2nd sentence in the 6th paragraph on page 7 should be deleted as it is an inapt expression of his approach with respect to advertising practices.
It was moved by Pat Ward, seconded by Petra Mandigo Hulm, and carried that the minutes, as corrected, be approved.
Responsibilities of a Prosecutor - ABA and State's Attorney Amendments to Model Rule 3.8
Chair Sturdevant drew attention to Attachment D (March 11, 2010) - proposed amendments to Rule 3.8 submitted by the State's Attorneys Association in response to the ABA Model Rule amendments and to address prosecutor contacts with an unrepresented defendant. He welcomed Fritz Fremgen for an explanation of the proposed amendments.
Mr. Fremgen said the ABA amendments to Model Rule 3.8 were distributed to state's attorneys for review and comment and a number of concerns were expressed with respect to the additional obligations that would be imposed on prosecutors by new paragraphs (g) and (h). He said there are also concerns, as he mentioned at the December 11, 2009, meeting, with current paragraph (c), which limits the kinds of contacts a prosecutor may have with an unrepresented defendant. He suggested the Committee should include review of paragraph (c) in its consideration of the ABA amendments. He said the State's Attorneys' proposed amendments include suggested changes to paragraph (c).
With respect to the ABA amendments to paragraphs (g) and (h), Mr. Fremgen said the amendments would require prosecutors to undertake what may be considered remarkable actions. He said the objective of remedying the situation of a wrongly convicted defendant is laudable, but there is concern that the responsibilities identified in the amendments are inappropriate. With respect to paragraph (g), he said there are concerns about which prosecutor in which jurisdiction has the responsibility of undertaking the required actions. And, he said, those actions are, in turn, governed by the nature of the evidence that the defendant was wrongly convicted. Additionally, he said, the requirement in paragraph (h) that the prosecutor "seek to remedy the conviction" appears to place the prosecutor in the position of advocating for the defendant.
Judge Sturdevant asked whether the obligation in paragraph (h) could not also be described as the prosecutor advocating for justice. Mr. Fremgen agreed but emphasized that the objective should be to enable the defendant to seek redress through available tools, such as post-conviction relief, petitions for habeas corpus, seeking commutation, or application for appointed counsel to facilitate seeking the remedy. These tools, he said, are described in the proposed additions to the Comment.
Jason Vendsel asked whether action taken by the prosecutor could be the filing of a simple one page statement that there is clear and convincing evidence that the defendant was convicted of an offense the defendant did not commit. Mr. Fremgen responded that such an approach is possible, but questioned why the prosecutor should be placed on the side of the defendant when public defenders are available.
In response to a question from Justice Sandstrom regarding whether the fundamental role of the prosecutor is doing justice or convicting someone, Mr. Fremgen acknowledged that seeking justice is paramount but he cautioned that prosecutors should not become involved in the tangle of problems that may arise when attempting to assist a defendant in seeking a particular remedy.
Jason Vendsel said the difference between paragraph (g) and paragraph (h) seems to be that paragraph (h) would not necessarily require initiating an adversarial process. He said paragraph (g), which would require the prosecutor to promptly disclose evidence to a court, may be more problematic from a prosecutorial perspective.
Dann Greenwood questioned why, if the defendant is innocent, the burden of seeking to remedy the wrongful conviction should be placed on the defendant.
Petra Mandigo Hulm noted those situations in which the defendant may not be currently incarcerated and asked whether the state's attorney would be required to locate the defendant.
Pat Ward drew attention to the requirement in paragraph (h) that the prosecutor must "seek to remedy the conviction." He said that seems to impose an obligation beyond simply notifying the court. Mr. Fremgen said the proposed Comment language attempts to explain the scope of the prosecutor's responsibilities under paragraph (h).
Judge Sturdevant said a relatively simple method of seeking a remedy may be the filing of a motion to vacate the judgment.
Mr. Fremgen agreed that a motion to vacate may be preferable remedy, but he said there are then related considerations, such as requests to expunge the court record and arrest information. He asked whether the prosecutor would be expected to assist the defendant in those efforts. With respect to paragraph (g), he said the state's attorneys propose that the prosecutor only be require to disclose "notice of the existence" of the evidence that the defendant did not commit the offense, rather than the ABA requirement that the prosecutor actually "promptly disclose," or give, the evidence to the court.
With respect to paragraph (h), Pat Ward agreed "seeking to remedy" the conviction is vague. He said perhaps notification to the defendant and the court of the evidence is a better alternative.
With respect to paragraph (g), Mr. Fremgen noted the requirement that the prosecutor, if the conviction occurred in the prosecutor's jurisdiction, must undertake further investigation to determine whether the defendant was convicted of an offense the defendant did not commit. He said the requirement does not take into account the organization of the law enforcement system in the state. For example, he said state's attorneys' offices do not employ nor supervise investigators. To require the prosecutor to undertake an investigation, he said, could result in substantial civil liability for the prosecutor. Additionally, he said, there may be reluctance on the part of law enforcement to initiate another investigation. It is for those general reasons, he said, that the state's attorneys' proposal recommends changing paragraph (g)(2)(B) to require that the prosecutor "make reasonable effort" to either undertake an investigation or to cause an investigation.
Jason Vendsel drew attention to the requirement in paragraph (g)(1) that the prosecutor must disclose to "an appropriate court or authority" evidence indicating the likelihood that the defendant did not commit the offense for which the defendant was convicted. He suggested disclosure to the court "and prosecuting" authority would be more appropriate. That, he said, would ensure that both the court and the relevant prosecutor would receive the information. Mr. Fremgen agreed that may be a useful change. He emphasized that an important consideration for a prosecutor is that once the prosecutor makes the decision that disclosure is warranted, the prosecutor must then ensure there is a very clear and thorough paper trail that the prosecutor did what was required.
Chair Sturdevant asked whether there were any suggested responses to the ABA amendments regarding paragraphs (g) and (h) and the state's attorneys' proposed changes.
Pat Ward suggested that the Committee work with the proposal submitted by the state's attorneys as the base document for consideration. Committee members agreed.
It was moved by Jason Vendsel and seconded by Pat Ward that paragraph (g) (1) be modified to replace "or authority" with "and prosecuting authority" and that paragraph (g), as modified and otherwise revised by the state's attorneys be approved.
Justice Sandstrom said the requirement that the prosecutor make "reasonable effort" may be interpreted in light of a recent court decision to require only a minimal effort. He suggested requiring more diligent actions by the prosecutor may be more appropriate. Petra Mandigo Hulm agreed and said that the nature of the evidence that would trigger the requirement (indicating a "reasonable likelihood" that the defendant did not commit the offense) would seem to support requiring a more rigorous effort by the prosecutor.
Judge Sturdevant suggested requiring a "reasonable good faith" effort may be an alternative.
Jason Vendsel said the question of whether a prosecutor's efforts were appropriate under the circumstances could be a matter of degree and should likely be left to the ethics committee to consider if the issue arises.
Mr. Fremgen said the objective is to have some defined standard that will ensure that the prosecutor's obligation to find and notify the defendant will be satisfied at some point.
It was moved by Justice Sandstrom and seconded by Pat Ward that the motion be amended to include deletion of "make reasonable effort to" and "notice of" from paragraph (g)(2)(A).
Jason Vendsel observed that the proposed language would be part of the black-letter rule. He cautioned that without some modifier for the requirement to "promptly" disclose, a prosecutor could undertake any number of actions to find and notify the defendant and if that is not considered to have occurred "promptly" then the prosecutor will likely be sued.
Mr. Fremgen suggested language could be added to the Comment that explains the kinds of actions that would satisfy the disclosure requirement.
After further discussion, the motion to amend carried (George Ackre, Jason Vendsel - no).
Dann Greenwood drew attention to the reference in paragraph (g)(2)(A) to "appropriate court" and suggested "appropriate tribunal" may be a better, more general reference. The suggestion was accepted as a friendly amendment and paragraph (g)(2)(A) will be further revised as suggested.
The motion, as amended, carried.
Chair Sturdevant then drew attention to paragraph (h) in the state's attorneys' proposal, which describes prosecutor responsibilities if the prosecutor receives clear and convincing evidence that the defendant did not commit the offense for which the defendant was convicted. He then requested further discussion or responses to paragraph (h) as revised in the state's attorneys' proposal.
It was moved by Pat Ward and seconded by George Ackre that paragraph (h) be modified to replace "notify the defendant" with "notify the appropriate tribunal and prosecuting authority and defendant."
Dann Greenwood drew attention to the state's attorneys' suggested language which requires the prosecutor to provide information about courses of action the defendant "may pursue in seeking" to remedy the conviction. He noted that the language reverses the ABA amendment which requires the prosecutor to seek to remedy the conviction. He said that, in addition to it probably being more appropriate for the burden to be placed on the prosecutor, the reference to "seeking to remedy" the conviction is too vague. Jason Vendsel agreed the ABA version of paragraph (h) is preferable.
It was moved by Justice Sandstrom and seconded by Petra Mandigo Hulm that the motion be amended to substitute the ABA version of paragraph (h).
Pat Ward said he opposed approving rule language that includes a vague requirement to "seek to remedy" a conviction.
Following further discussion, the motion to amend carried.
It was moved Dann Greenwood and seconded by Justice Sandstrom that the motion, as amended, be further amended to modify paragraph (h) by replacing "seek to remedy" with "seek to undo."
Pat Ward suggested language could be included in the Comment explaining actions that could satisfy the requirement.
The motion, as amended and further amended, carried.
Chair Sturdevant said review of the proposed Comment language related to paragraphs (g) and (h) would be deferred to the June meeting.
Mr. Fremgen then summarized the state's attorneys' proposed amendments to paragraph (c). He said the amendments, which are based in part on a Wisconsin rule, seek to clarify the kinds of contacts and communications a prosecutor is ethically permitted to have with an unrepresented defendant. He said there is a distinction drawn in the amendments between felony cases and misdemeanor, infraction, traffic offense, and juvenile cases. If a defendant is charged with a felony, he said, the prosecutor is not allowed to provide certain kinds of legal advice or assist the defendant in completion of certain forms unless the defendant has waived the right to counsel or has been determined by the court to be self-represented. In cases other than felony cases, he said, the prosecutor would be permitted to discuss the matter with the defendant, provide settlement information, and negotiate a resolution that could include the waiver of statutory and constitutional rights. He said the related proposed Comment language provides guidance regarding allowable and prohibited activities. He noted that some jurisdictions have not adopted paragraph (c) as currently included in ND Rule 3.8, which prohibits a prosecutor from seeking to obtain from an unrepresented defendant a "waiver of important pretrial rights."
In response to a question from Pat Ward regarding whether judges always inform a defendant of rights, Judge Sturdevant said in misdemeanor cases in which a Rule 43 waiver of appearance is used, the judge does not see the defendant and therefore a verbal notice of rights is not given in person. However, he said, there is a recitation of rights in the Rule 43 form that the defendant signs and submits to the court.
Justice Sandstrom wondered whether the proposed language, in allowing the prosecutor to provide information to the defendant and take certain actions, risks putting the prosecutor in the position of being a legal advisor for the defendant. He said the Wisconsin rule provision [ p.8 of Attachment D (March 11, 2010) ], without the state's attorneys' revisions, seems to be a workable approach. He suggested, however, that the reference to a municipal prosecutor should be deleted and he wondered why a prosecutor should not be allowed to assist a defendant in the preparation of certain forms.
After further discussion, Chair Sturdevant said the Committee would continue discussion of the proposed amendments regarding paragraph (c) at the June meeting. With the agreement of the Committee, he will review the proposal further with Mr. Fremgen for any additional revisions. Mr. Fremgen is invited to attend the next meeting to provide additional comments and information.
Admission to Practice Rules - Proposed Amendments Related to Uniform Bar Examination
Chair Sturdevant drew attention to Attachment F (March 11, 2010) - proposed amendments to the Admission to Practice Rules submitted by the Board of Law Examiners to the Supreme Court and referred to the Committee for review. The proposed amendments would allow use of the Uniform Bar Examination (UBE) in North Dakota. Chair Sturdevant then welcomed Penny Miller, Secretary-Treasurer for the Board of Law Examiners, for a review of the proposed amendments.
By way of background, Ms. Miller explained that in 1997 the Board of Law Examiners, for a variety of reasons, obtained the Multi-state Essay Test and Multi-state Performance Test from the National Conference of Bar Examiners. She said these tests, along with the Multi-state Bar Examination, have been used in North Dakota since that time. Many other states, she said, also administer all of the multi-state tests, which are considered good products with respect to validity and reliability. She said with more states using multi-state tests and more attorney practices extending globally, there was an emerging discussion regarding the practicality of allowing test scores to be carried from one jurisdiction to another. These discussions, she said, lead to consideration of the UBE, which, for example, would provide law students at UND more portability with respect to test scores. The proposed amendments, she said, are relatively simply and would allow the Board to administer the UBE.
Ms. Miller said rule amendments allowing use of the UBE have been adopted in Missouri and Montana is considering the issue. She said as one of the early states using the UBE, North Dakota would have the advantage of being involved in developing criteria and standards for administration of the test.
In response to a question from Petra Mandigo Hulm, Ms. Miller said there are about 2,000 North Dakota licensed attorneys but only about 1,400 live in the state. She said a recent survey of the attorney population in the state indicated that there are only 342 attorneys under the age of 40.
After further discussion, it was moved by Pat Ward, seconded by Ryn Pitts, and carried that the proposed amendments be approved for submission to the Board of Governors for review and, in the absence of any Board comment requiring Committee action, for submission to the Supreme Court for its consideration.
Rule 7.1, Rules of Professional Conduct - Draft Amendments Regarding Use of "Super Lawyer"
Chair Sturdevant next drew attention to Attachment C (March 11, 2010) - draft alternative amendments to Rule 7.1 regarding use of the "Super Lawyer" designation and similar designations in lawyer communications. Staff explained that the three alternatives are based on the New Jersey rule amendments discussed at the Committee's December 11, 2009, meeting. Alternative 1, he said, simply incorporates the New Jersey rule amendments in the black-letter rule and comment. Alternative 2, he said, incorporates the New Jersey rule and comment language directly into the current black-letter rule. And Alternative 3, he said, would retain current paragraph (c) of Rule 7.1 to address lawyer comparisons on some basis other than receiving an accolade or honor and would then create new paragraph (d) to incorporate the New Jersey language into the rule.
With respect generally to the draft amendments, Jason Vendsel said a rule is not necessary to address the issue and he would oppose changes to Rule 7.1.
Mark Hanson said he generally preferred Alternative 1. However, he questioned whether the disclaimer set out in paragraph (c)(3) ["No aspect of this advertisement has been approved by the North Dakota Supreme Court] is necessary. He said the disclaimer may inadvertently suggest that there are some other kinds of advertisements that are or could be approved by the Supreme Court. He suggested that subparagraph (3) should be deleted. He noted criteria (3) in the draft Comment  language, which provides that a communication (advertisement) must either include, for purposes of inspection, a description of the standard or methodology upon which the honor or accolade is based or must provide reference to a publicly available source for the description. He wondered whether a reference to the "Super Lawyer" website, for example, must actually be included in the advertisement or whether the lawyer must have the information otherwise available if there is an inquiry.
In response to a question from Bill Neumann, Mark Hanson said the New Jersey rule amendments had prompted concerns about whether lawyers would be expected to abide by similar requirements and the SBAND Ethics Committee subsequently issued the opinion addressing the question. With the earlier SBAND Ethics Opinion having been withdrawn, he said, lawyers are likely free to advertise as a "Super Lawyer", for example, as long as they otherwise comply with Rule 7.1. He said that is an acceptable approach. But, he said, legitimate concerns about the practice have been raised and Alternative 1, if adopted, would represent a fair compromise in response to the issue and would provide useful guidance to lawyers.
Following discussion, it was moved by Pat Ward and seconded by Dann Greenwood that the Alternative 1 draft amendments to paragraph (c) of Rule 7.1, with the exception of subparagraph (3), be approved.
In response to a question from Judge Sturdevant, Dann Greenwood recounted the difficulty for the SBAND Ethics Committee in responding to the earlier inquiry, particularly in light of U.S. Supreme Court opinions regarding lawyer advertising. He said from his personal perspective the rule amendments could provide some useful guidance.
Mark Hanson drew attention to the requirement in current paragraph (c) that a comparison of lawyer services must be "factually substantiated", which would be deleted by the amendments. He said new subparagraphs (1) and (2) in the amendments would require that the name of the comparing organization be provided and that the basis for the comparison must be substantiated. Together, he said, the requirements may provide somewhat more guidance with respect to substantiation of a comparison. He said the added language would remind lawyers of the need for due diligence in determining whether to accept a particular designation.
Justice Sandstrom said the current language regarding comparison of a lawyer's services with other lawyers' services suggests situations in which comparisons were made on some basis other than an evaluation by some outside entity. Dann Greenwood agreed and suggested that the focus should not be only on designations such as "Super Lawyer" as there are many other kinds of organizations that bestow particular honors or designations.
Jason Vendsel cautioned that limitations on lawyer advertising invite constitutional questions. He said there is little need to create a rule when the marketplace will likely determine whether a lawyer is a "super lawyer".
With respect to proposed subparagraph (1) [name of the comparing organization is stated], Justice Sandstrom said the provision presumes there is an organization making the comparison, which may not always be the case. Additionally, he said with respect to current paragraph (c) and the reference to comparing lawyer "services", some comparisons may not be with respect to services. For example, he said, an advertisement may claim that a law firm is the "oldest" law firm in the area.
Pat Ward said one avenue for addressing the different ways services can be compared may be to retain current paragraph (c) and add a new paragraph (d) to address honors and accolades.
Dan Ulmer asked whether there is any real purpose in changing the rule to delete the requirement for factual substantiation and whether the rule, as is, is inadequate to address the issue.
Petra Mandigo Hulm responded that at least part of the issue relates to public awareness and information. For example, she said, if a lawyer advertises as being designated a "Super Lawyer", members of the public generally have no idea what that means.
Dianna Kindseth, as a lay member of the Committee, said she works with many people who are in need of legal services and they most often use the Internet to gain information. She said statements about legal services are encountered on the Internet and people are often unable to determine whether what is posted is accurate or can be substantiated.
Following discussion, it was moved by Justice Sandstrom, seconded by Pat Ward, and carried that the motion be amended to retain current paragraph (c) and to add a new paragraph (d) consisting of the opening clause of paragraph (d) in Alternative 3 and subparagraphs (1) and (2) in Alternative 1. (Mark Hanson, Jason Vendsel - no).
Dann Greenwood noted the concern about comparison of "services" when there may be many other ways in which comparisons can be made. He asked whether the reference to "services" should be retained in paragraph (c).
Following discussion, it was moved by Dann Greenwood, seconded by Pat Ward, and carried that the amended motion be further amended to modify paragraph (c) to read: "compares the lawyer with other lawyers, unless the comparison can be factually substantiated". (Mark Hanson, Jason Vendsel - no).
Chair Sturdevant then called for a vote on the final motion.
The motion, as amended and further amended, carried. (Mark Hanson, Petra Mandigo Hulm, Dan Ulmer, Jason Vendsel - no).
Dan Ulmer then left the meeting to attend to a prior commitment.
It was moved by Pat Ward, seconded by Justice Sandstrom, and carried that the draft Comment language set out in Alternative 1, page 2, lines 5-11, be approved. (Mark Hanson - no).
It was moved by Pat Ward, seconded by George Ackre, and carried that the proposed amendments to Rule 7.1 and the Comment be approved for submission to the Board of Governors for review and, in the absence of any Board comment requiring Committee action, for submission to the Supreme Court for its consideration. (Jason Vendsel - no).
Electronic Storage of Client Files
Chair Sturdevant explained that at the conclusion of the Committee's December 11, 2009, discussion of issues related to electronic storage of client files it was agreed a letter would be submitted to the Board of Governors requesting any additional comments the Board may have. He drew attention to Attachment E (March 11, 2010), a letter from Jane Dynes, SBAND President, indicating the Board had no additional issues to bring to the Committee's attention.
Jason Vendsel and Pat Ward said they had reviewed ethics opinions and other background information regarding the issue. They said there is a general consensus that electronic storage of client files is a permissible practice.
Pat Ward said current Rule 1.19 of the Rules of Professional Conduct seems adequate to address issues that may arise. He noted that there is general agreement that certain kinds of original documents, generally those with some kind of permanent value, should be retained if they are scanned and stored electronically. He said the background information and ethics opinion outline some basic considerations: maintaining the ability to retrieve electronically-stored files and periodic updating of storage software. He said ethics opinions also conclude that client files stored in an electronic format should be provided in that format to the client if requested. He said it is also generally agreed that the lawyer should obtain client consent to store files electronically and offer to return the paper files to the client.
Following further discussion, Committee members agreed consideration of amendments to Rule 1.19 was unnecessary at this time.
Acceptance of Credit Card Payments for Lawyer Fees, Costs, and Advance Retainers
Chair Sturdevant next drew attention to Attachment G (March 11, 2010) - a recent SBAND Ethics Opinion regarding acceptance of credit card payments for fees, costs, and retainers. Attachment G also includes an email from attorney David Chapman outlining concerns raised by the Opinion and concerns generally about the acceptance of credit card payments. The email was followed by a letter from Mr. Chapman which was distributed to Committee members by email.
Bill Neumann noted that Mr. Chapman's principle concern seems to be the fleeting commingling of funds that may occur until funds received by credit card are transferred to the lawyer's trust account. He said the purpose of the ethics opinion was to shear off from trust account funds the risks of a charge back that might affect other clients' trust account funds.
Dann Greenwood said Mr. Chapman's letter was circulated to Ethics Committee members and the Committee concluded there was no need to modify the opinion in response to the letter. He noted that the Rules of Professional Conduct are described in the Scope Section as "rules of reason." He said credit card use is a fact of life and it would arguably defeat the rule of reason approach ascribed to the rules if a fleeting commingling of funds, albeit a technical rule violation, would be considered a serious ethical lapse requiring discipline. He said the Ethics Committee analyzed the current rules and concluded that previous amendments to Rule 1.15 recommended by this Committee, and adopted, arguably implied that acceptance of credit card payments is acceptable.
Pat Ward wondered whether establishing a separate account for credit card payments for retainers should be considered.
Bill Neumann noted that the SBAND ethics opinion does offer a safe harbor for lawyers with regard to acceptable use of credit card payments.
Judge Sturdevant asked whether the Committee should consider a rule or amendments to existing rules to incorporate the practical solution to the various issues as set out in the SBAND opinion.
Bill Neumann suggested the Committee could review additional background information, if any, regarding whether rules have been adopted in other jurisdictions to address credit card use.
Committee members agreed to review additional information at the June meeting.
There being no further discussion the meeting was adjourned at 1:25 p.m.