Joint Committee on Attorney Standards Minutes (Unofficial until approved)
Ramada Hotel, Bismarck
December 6, 2013
Judge Michael Sturdevant, Chair Judge Dann Greenwood Kara Johnson Petra Mandigo Hulm Dianna Kindseth Michael McGinniss Nikki Schmaltz Dan Ulmer Jason Vendsel Pat Ward
George Ackre Alex Reichert Justice Dale Sandstrom
Jim Ganje Tony Weiler
Paul Myerchin, ND Association of Criminal
Defense Lawyers Al Austad, ND Association for Justice<
Chair Sturdevant called the meeting to order at 10:00 a.m. and drew Committee members’
attention to Attachment B (November 27, 2013) - minutes of the September 13, 2013, meeting.
It was moved by Petra Hulm, seconded by Dan Ulmer, and carried that the minutes be
Basic Rules for Court Conduct - Referral
Chair Sturdevant drew attention to Attachment C (November 27, 2013) - a brochure
developed by the Georgia Judicial Council which sets out, for general public use, basic rules or
expectations about conduct and decorum in court settings. He said the brochure had been referred
to the Committee by Chief Justice VandeWalle for an assessment of its possible utility in North
Dakota’s court system.
Tony Weiler noted that the SBAND Law-related Education Committee had developed several
brochures about court proceedings but none that particularly addressed rules for court conduct.
Following general discussion, Committee members agreed the brochure could provide useful,
basic information to the public about proper conduct in court proceedings and how to respond if
required to participate in a court hearing.
It was moved by Dan Ulmer and seconded by Pat Ward to recommend the brochure,
suitably adapted for use in the North Dakota judicial system, to the Supreme Court for
Alex Reichert drew attention to the section in the brochure regarding what a person should
do if the person cannot appear at a scheduled hearing. He said the section directs the person to
contact the clerk of court and outlines consequences for failing to appear. He said the section may
be misleading as written since courts around the state differ in how they respond if a party is unable
to attend a scheduled hearing.
It was moved by Alex Reichert, seconded by Pat Ward, and carried that the motion be
amended to include a recommendation that the noted section should be deleted from the
Following further discussion, the motion, as amended, carried.
Committee members noted the recent Citizen Access Coordinator position established within
the court system. It was agreed the Coordinator may be best able to pursue further revisions to and
implementation of the brochure if its use is approved.
Special Fee Agreements - Criminal Cases - Cont’d Discussion
Chair Sturdevant reviewed the Committee’s ongoing discussion of possible amendments to
Rule 1.5, Rules of Professional Conduct, to address nonrefundable retainers and other special fee
arrangements in criminal cases. He noted the Committee’s consideration of different amendments
to the rule and the request of the ND Association of Criminal Defense Lawyers to offer amending
language that may be acceptable in light of the Supreme Court’s recent opinion in Disciplinary
Board v. Hoffman. Chair Sturdevant then drew attention to Attachment D (November 27, 2013) - amendments
to Rule 1.5 proposed by the Association. The proposed amendments would create a new paragraph
(f) that would prohibit nonrefundable fees and retainers and which would also prohibit an agreement
that purports to restrict a client’s right to terminate representation or that unreasonably restricts the
client’s right to obtain a refund of unearned or unreasonable fees. The proposed amendments would
also create a new paragraph (g) that would permit a lawyer to charge a fixed or minimum fee with
services to be rendered in the future. The fee would become the lawyer’s property when paid and
could be deposited in the lawyer’s operating account.
Staff noted that George Ackre was unable to attend the meeting but had indicated by email
that he would support the Association’s proposed amendments.
Chair Sturdevant called on Paul Myerchin, ND Association of Criminal Defense Lawyers, for
comments regarding the Association’s proposal. Mr. Myerchin said the proposed amendments are
generally regarded as consistent with the analysis in Hoffmanand that the amendments, in conjunction
with the opinion, would offer useful guidance to lawyers regarding fee arrangements. He noted that
new paragraph (f) regarding nonrefundable retainers and client protections was taken from the
preliminary draft amendments previously reviewed by the Committee. He said new paragraph (g) is
intended to clarify that advance fees become the lawyer’s property when paid and that it is permissible
to deposit the fees in the lawyer’s operating account.
Pat Ward observed that after having discussed the issue with several other lawyers it appears
that the proposed amendments are the better approach. He said most criminal defense lawyers seem
to be currently following the general practice described in the amendments.
Mike McGinniss said proposed paragraph (f) would be a welcome addition to the rule,
particularly because of the concern that a “nonrefundable” fee arrangement is generally regarded as
having the potential to chill a client’s right to terminate representation. With respect to proposed
paragraph (g) and the deposit of advance fees in the lawyer’s operating account, he drew attention to
Wisconsin provisions governing advance fees, including flat fees. He said particular written
disclosures to the client are required if the advance fees will be deposited into a lawyer’s operating
account. Those disclosures include the amount of the advanced payment, the basis for the fee,
expenses for which the client is responsible, the obligation of the lawyer to refund any unearned fee
when representation is terminated, the required submission of a fee dispute to binding arbitration, and
the ability of the client to file a claim with the client protection fund if the lawyer does not refund
unearned fees. He said requiring similar written disclosures may be a useful addition to consider. He
noted also that if new paragraph (g) is included in the rule, then an amendment to Rule 1.15( c) is
likely necessary to reflect an exception to that rule’s general requirement that advance fees must be
deposited in the trust account.
Pat Ward observed that Rule 1.15( c) addresses advance fees deposited in the trust account
and withdrawn as earned or expenses incurred. That, he said, is arguably different from the lawyer
receiving a flat fee, as new paragraph (g) would permit, that is agreed upon and collected in advance
and then deposited in the operating account. With respect to requiring written disclosures, he said
Rule 1.15 and other rules reflect that agreements or communications with clients should “preferably”
be in writing. He recounted the extensive discussion during earlier rule amendment projects about
whether to require a writing in particular circumstances and the decision to follow the “preferable”
route. He expressed concern about imposing a written notice requirement as part of the rule.
Alex Reichert said that criminal defense lawyers have chosen to use written agreements in
almost all cases. He said agreement structures may change somewhat in response to the Hoffman
opinion, but he also would have concerns about imposing a writing requirement by rule.
With respect to a writing requirement, Petra Hulm agreed that attempting to impose such a
requirement would likely be unsuccessful. She said the early fear regarding a writing requirement was
that it would create a quick, almost automatic route to discipline if the lawyer were unable to produce
a written document. With respect to the Association’s proposed amendments, she said they appear
generally agreeable. However, she said she would not support the amendments unless they include
an explicit requirement that the lawyer must charge a “reasonable” fixed or minimum fee.
Pat Ward said Rule 1.5(a) currently prohibits an “unreasonable” fee. He said a “reasonable”
fee requirement could be included in the proposed language but the reasonableness standard is already
a part of the rule.
Mike McGinniss said a written notice similar to the Wisconsin disclosures need not be signed
by the lawyer; it could simply be a notice provided by the lawyer to the client. He said if there is no
“written” notice at all, then an alternative may be that the lawyer must at least inform the client that
the fee is not being placed in the trust account. The hazard, he said, is that if a fee amount is not
placed in the trust account, any unearned fee to be refunded to the client if termination of
representation occurs may not be initially available, either having been spent or otherwise used by the
Judge Sturdevant explained that he had received a call from Tom Dickson, who had
participated in earlier discussions of this issue, during which the Association’s proposed amendments
were discussed. He said Mr. Dickson supports the proposed amendments and had submitted a copy
of a letter he provides to clients which confirms the details of a fee agreement.
Following further discussion, it was moved by Dan Ulmer, seconded by Pat Ward, and
carried that the proposed amendments to Rule 1.5 - new paragraphs (f) and (g) - submitted by
the Association of Criminal Defense Lawyers, together with an amendment to Rule 1.15(c)
recognizing an exception for operating account deposits under paragraph (g), 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
ABA Commission on Ethics 20/20 - Cont’d Review of Amendments to Model Rules of Professional
Chair Sturdevant next drew attention to Attachment D (November 27, 2013) - a memorandum
suggesting the sequence for review of Ethics 20/20 model rule amendments and related North Dakota
rules. The background for the review consists of separately distributed material assembling the model
rule amendments, proposed model rules, ABA background reports, and the relevant North Dakota
Rule 4.4 - Respect for Rights of Third Persons. Staff explained that Model Rule 4.4 was
adopted, in large part, in North Dakota as Rule 4.5, titled “Inadvertent Transmission”. The principal
difference, he said, is that Rule 4.5 does not include paragraph (a) of the model rule, which requires
that the lawyer not use means that have no substantial purpose other than to embarrass, delay, or
burden a third person. He said the model rule amendments pertain to paragraph (b) regarding
inadvertent receipt by the lawyer of a document or electronically stored information related to the
representation of the lawyer’s client, and to the associated model rule comment . The North Dakota
counterparts to the model rule provisions related to inadvertent transmission are Rule 4.5(a) and
Comments  and . The model rule amendments, he said, essentially update the rule and comment
to reflect the advent of electronically stored information and the comment amendments, particularly,
offer an explanation of how electronically stored information might be inadvertently received.
It was moved by Mike McGinniss, seconded by Kara Johnson, and carried that the
model rule amendments related to North Dakota Rule 4.5(a) and Comments  and  be
Rule 1.17 - Sale of Law Practice. Staff explained that the model rule amendments consist of
relatively minor amendments to Comment , the North Dakota counterpart of which is
Comment. He said the amendments include a cross-reference to Rule 1.6(b)(7), which was added
to Model Rule 1.6 and approved by the Committee for inclusion in North Dakota Rule. 1.6.
It was moved by Alex Reichert, seconded by Mike McGinniss, and carried that
amendments to North Dakota Rule 1.17, Comment , to reflect the model rule comment
amendments be approved.
Rule 1.18 - Duties to Prospective Client. Staff explained that North Dakota Rule 1.18 is titled
“Duties to Potential Client”, reflecting the conclusion during the Ethics 2000-related revisions that
“potential client” is better used in Rule 1.18 to avoid confusion with “prospective client” as used in
Rule 7.3. He said the amendments to the black-letter model rule are relatively minor, but the
amendments to model rule Comment  are more substantial and are directed at issues related
specifically to lawyer advertising.
Alex Reichert noted the reference to advertising that “invites the submission of information”
in the amendments to Comment . He wondered if there was a clear understanding of what that kind
of advertising might be.
Following discussion, Committee members agreed consideration of Rule 1.18 amendments
should be delayed until the Rule 7 series amendments regarding lawyer advertising are reviewed.
Rule 5.5 - Unauthorized Practice of Law; Multijurisdictional Practice. Staff explained current
North Dakota Rule 5.5 reflects several amendments resulting from the earlier work of the SBAND
Task Force on Multi-jurisdictional Practice (MJP). He said the amendment proposals of the Task
Force were reviewed by the Committee and somewhat modified. The result, he said, is that North
Dakota Rule 5.5 differs in many respects from Model Rule 5.5. He said the amendments to Model
Rule 5.5 are relatively limited, but to consider the amendments the Committee may have to consider
whether North Dakota’s rule should be further amended to more closely follow the model rule.
Mike McGinniss then reviewed his report (distributed November 14, 2013) reviewing current
North Dakota Rule 5.5 and Model Rule 5.5 and the Ethics 20/20 amendments to the model rule. He
said there are essentially three substantial differences between North Dakota Rule 5.5 and Model
1. ND Rule 5.5(b)(2) allows a non-admitted lawyer to provide legal services
in the state on a temporary basis when the matter “arises out of” the lawyer’s
representation of a client located where the lawyer is licensed. Model Rule
5.5(c)(4) allows temporary practice if the legal services “arise out of or are
reasonably related to” the lawyer’s practice in the jurisdiction where the
lawyer is admitted.
2. ND Rule 5.5(b)(4) requires that a North Dakota-admitted lawyer actively
participate in the representation of a client to whom a non-admitted lawyer
provides legal services in “matters, transactions or proceedings pending in or substantially related to North Dakota and for which pro hac vice
admission is not available”. Model Rule 5.5( c) does not require the active
participation of a North Dakota-admitted lawyer.
3.ND Rule 5.5(d) requires written disclosure to the client that the lawyer is
not admitted in the state if the lawyer provides services on a temporary basis
or by establishing an office or presence that is other than temporary. Model
Rule 5.5 does not contain a disclosure requirement.
He then summarized the Ethics 20/20 amendments to Model Rule 5.5, which fall into
basically two categories. The first category of changes, he said, include a clarification in Model
Rule5.5(d) that in-house or other authorized legal services may be provided “through an office or
other systematic and continuous presence” in the non-admitted jurisdiction. North Dakota Rule
5.5(c), he said, uses “other than temporary” rather than “other systematic and continuous practice”.
He said Ethics 20/20 amendments in this category also add a reference to “or rule” in Model Rule
5.5(d)(2) as a basis for authorized non-temporary legal services. He said the North Dakota
counterpart, Rule 5.5(c)(2), already includes reference to “court rule”. The second category of
changes, he said, include various Ethics 20/20 amendments to Model Rule 5.5(d) to include non-admitted lawyers who are admitted “in a foreign jurisdiction”, i.e., outside the United States, among
the lawyers who are able to provide legal services in the state. He said a new paragraph (e) is added
to the Model Rule to specify requirements related to the membership of lawyers in the foreign
jurisdiction in which admitted. He noted that North Dakota Rule 4 of the Admission to Practice Rules
addresses licensing and practice of foreign legal consultants but does not address in-house counsel
status. The latter status, he said, is the focus of North Dakota Rule 3B of the Admission to Practice
Rules, but the rule does not authorize foreign lawyers to serve as in-house counsel in the state.
In response to a question from Judge Sturdevant regarding any additional suggestions for
possible amendments, Mike McGinniss outlined three areas for consideration set out in his report
-Consider the model rule provisions related to practice by foreign
lawyers for addition to North Dakota Rule 3B, Admission to
Practice Rules, and North Dakota Rule 5.5( c)
-Consider restricting eligibility for multijurisdictional practice to
lawyers who are not disbarred or suspended in any jurisdiction.
-Consider adopting the model rule’s reference to “systematic and
continuous presence” rather than the current North Dakota criteria
of “other than temporary” or, alternatively, consider other related
amendments to North Dakota Rule 5.5( c) and Comment .
Judge Sturdevant observed that the earlier work by the SBAND Task Force and the
Committee seems to have been ahead of the later ABA amendments. With respect to one difference,
he said he preferred the current rule’s emphasis on matters that “arise out of” the non-admitted
lawyer’s representation of a client in the jurisdiction in which the lawyer is admitted. He said adding
the model rule’s additional language regarding matters “reasonably related to” the representation may
be too expansive.
In response to a question from Alex Reichert regarding other suggested amendments to North
Dakota Rule 5.5( c), Mike McGinniss reviewed draft amendments reflected at Tab 4 of his report:
“( c)A lawyer admitted to practice in another United States jurisdiction but not in
this jurisdiction,or in a foreign jurisdiction and not disbarred or suspended from
practice in any jurisdiction or the equivalent thereof who establishes an office or
whose presence for performing legal services is other than temporary in this
jurisdiction does not engage in the unauthorized practice of law in this jurisdiction
Relatedly, he said he would suggest an amendment to North Dakota Comment  to replace
the comment’s reference to “other permanent” with “other than temporary for performing legal
services” regarding the lawyer’s presence in the jurisdiction:
“ There are occasions when out-of state lawyers perform services in this state on
a temporary basis under circumstances that do not create a significant risk of harm
to clients, the courts, or the public. Paragraph (b) identifies five situations in which
the out-of-state lawyer may perform services in this state without fear of violating
this Rule. By creating these five specific "safe harbors" for multijurisdictional
practice, this Rule does not address the question of whether other conduct constitutes
the unauthorized practice of law. The fact that conduct is not specifically included
or described in this Rule is not intended to imply that such conduct is the
unauthorized practice of law. Nothing in this Rule is intended to authorize a lawyer
to establish an office or other permanent presence other than temporary for
performing legal services in this jurisdiction without being admitted to practice here.
In addition, nothing in this Rule is intended to authorize an out-of-state lawyer to
solicit clients in this jurisdiction.”
Alex Reichert asked whether the suggested amendments would fill gaps in the current rule that
require attention or address problem areas encountered by disciplinary counsel. He said rule
amendments may be worth considering if there are problem areas to be addressed. But he said would
be concerned about proposing rule amendments simply to follow the ABA’s amendments to the
Kara Johnson observed that the disciplinary counsel’s office is seeing an increasing number
of cases involving lawyers from other jurisdictions who may be exceeding authority to practice on
a temporary basis. She said a related issue may be difficulties in getting a practice properly
Following further discussion, it was moved by Alex Reichert and seconded by Jason
Vendsel that the Committee not approve amendments to North Dakota Rule 5.5.
In response to a question from Judge Greenwood regarding the purpose of the motion, Alex
Reichert said it is unclear that the model rule amendments would add anything appreciable to North
Judge Greenwood observed that if amendments would provide consistency in application and
practice across jurisdictions there would be a positive benefit.
Pat Ward wondered how rule amendments related to practice by lawyers from a foreign
jurisdiction would apply with respect to tribal courts. Additionally, he said, there may be concerns
regarding the standards for admission in a foreign jurisdiction.
Mike McGinnis noted that North Dakota has a current rule regarding authorized practice by
foreign legal consultants. He said the model rule amendments would close a current gap in the rules
by addressing practice by foreign lawyers as in-house counsel.
Petra Hulm observed that the Ethics 20/20 rule amendments are focused on the future of law
practice and changes in how legal services are being provided. She said since the current rule allows
practice by foreign legal consultants, it may be sensible to add the related rule amendments regarding
Following further discussion, the motion failed for lack of a majority (5 yes, 5 no).
As an alternative amendment, Mike McGinnis suggested adding “for performing legal
services” as a qualifier of “presence” in Rule 5.5( c). That, he said, would clarify that more than
simple presence in the state is needed to authorize provision of legal services. Additionally, he
suggested amending current Comment  in the manner previously described.
Following further discussion, it was moved by Mike McGinnis, seconded by Pat Ward,
and carried that ND Rule 5.5( c) and Comment  be amended as described.
Pat Ward emphasized the need for a thorough discussion of elements of the unauthorized
practice of law. Alex Reichert suggested receiving a presentation from Disciplinary Counsel on
unauthorized practice issues. Committee members generally agreed with the suggestions.
Rule 8.5 - Jurisdiction. Staff explained that the Model Rule is titled “Disciplinary Authority;
Choice of Law” and paragraph (a) of the model rule is essentially similar to North Dakota Rule 8.5(a).
He said the significant difference is paragraph (b) of the model rule and related comments, which add
a choice of law provision regarding which professional conduct rules will apply in certain situations.
Mike McGinniss explained that the principal benefit of a choice of law provision is that it
provides clarity with respect to which rules apply with respect to conduct within the jurisdiction by
an out-of-state lawyer. Alex Reichert noted that the North Dakota rule is clear in providing that North
Dakota rules of professional conduct always apply.
After discussion, Committee members agreed further consideration of the model rule
provision would be deferred until the next meeting.
Emeritus Status for Lawyers - Referral of Minnesota Rule
Chair Sturdevant drew Committee members’ attention to Attachment G (November 27,2013) -
amendments to Minnesota rule regarding emeritus status and North Dakota Admission to Practice
Rule 3.1 regarding volunteer services by lawyers affiliated with a legal services organization. He said
consideration of the Minnesota rule amendments had been referred to the Committee for
consideration of possible amendments to Rule 3.1. He said the referral included the issue of a
mentoring program in conjunction with the rule. He noted the Committee has considered the
Minnesota rule amendments and Rule 3.1 at previous meetings.
In response to a question from Chair Sturdevant, Kara Johnson said the SBAND Mentoring
Taskforce has a planned meeting with the CLE Commission to discuss CLE alternatives for those
who participate in a mentoring process. She said a mentoring program will be more fully developed
once a conclusion is reached on CLE issues. She said the objective is to have a mentoring process in
place for lawyers admitted to practice following the February 2014 bar examination.
With respect Rule 3.1, Judge Sturdevant said there apparently is only one retired lawyer who
has been admitted under the rule to provide pro bono legal services under the auspices of an approved
legal services organization.
After discussion regarding the Minnesota rule amendments and Rule 3.1, it was moved by
Alex Reichert, seconded by Pat Ward, and carried that amendments to Rule 3.1 are
unnecessary at this time.
There being no further discussion, the meeting was adjourned at 1:00 p.m.