Justice Mary Muehlen Maring
Judge Michael Sturdevant
Jim Fitzsimmons, Executive Director, Legal Services of North Dakota
Matthew Headley, Student Attorney, UND School of Law Clinical Education Program
Ass't Professor Margaret Moore Jackson, UND School of Law
Chair Tabor called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (March 23, 2007) - minutes of the November 17, 2006, meeting.
It was moved by Mark Hanson, seconded by Carol Johnson, and carried that the minutes be approved.
Temporary Licensure for Attorneys Applying for Admission - "Katrina" Rule: Update
Chair Tabor recalled the Committee's previous action in approving a proposed temporary licensure rule for submission to the Board of Governors for comment and then submission to the Supreme Court. She said the Board of Governors reviewed the proposed rule and had no comments or proposed changes. She said the proposed rule was then submitted to the Supreme Court for its consideration.
Chair Tabor noted the Committee's brief discussion at the November 17, 2006, of a draft "Katrina" rule circulated for comment by the ABA which concerned provision of legal services after a catastrophic event. The inquiry then, she said, was whether the rule should be adopted as a rule of court or a rule of professional conduct and she noted the Committee's conclusion that a rule of court would be more appropriate. She said the ABA has since approved the proposed rule as a model rule of court, with related cross-reference amendments to Comment  of Rule 5.5 of the Model Rules of Professional Conduct. She said there is a question concerning whether the Committee should take up the issue since the model rule is a rule of court, and the Joint Procedure Committee typically considers those kinds of rules. She suggested the issue be deferred for later discussion. Staff noted that other Court advisory committees have recommended amendments to procedural rules as part of larger projects and recommendations to the Supreme Court.
Pro Bono Services by Inactive or Retired Attorneys - Continued Discussion
Chair Tabor next drew attention to Attachment C (March 30, 2007) - ABA information regarding rules permitting inactive or retired attorneys to provide pro bono legal services (briefly reviewed at the November 17, 2006, meeting) and selected state rules. She noted that state rules typically require the retired attorney to be associated with or supervised by a non-profit legal services organization. She welcomed comments from Jim Fitzsimmons, Legal Services of North Dakota, concerning whether the approach might be workable in North Dakota.
As a general comment, Jim Fitzsimmons said many of the states that have adopted rules on the subject appear to be states that would seem attractive locations for retired attorneys or states that have large, well-financed legal aid programs. He said the legal aid program in North Dakota has 11 full-time attorneys and 3 part-time attorneys - a considerably more modest program. Additionally, he said there are about 70 attorneys in the state that handle cases under contract at $50 per hour. Typically, he said, the attorneys will handle about 100 cases per year in areas such as family law, landlord/tenant, and Medicaid - areas in which the legal services program has some expertise. Handling of these cases, he said, is generally monitored, but not specifically with respect to the quality of representation. He said his principal concern with the approaches taken in the particular states is the requirement of supervision by the legal services program. He noted that legal services provided by his program are limited to select areas, which may prove a problem if supervision is required of a retired attorney that becomes involved in different kinds of cases - real estate or probate for example. He emphasized that there is certainly a need for expanded pro bono legal services in the state, but the question is how to make those services most effectively available. He commended the Committee for considering the issue but cautioned that any proposal must take into account North Dakota's relatively small population and the small size of the legal aid program.
Sandi Tabor noted that some of the state rules require supervision only if the attorney is not licensed in the particular state.
In response to a question from Dan Ulmer concerning possible problems associated with the scope of supervision under a rule, Jim Fitzsimmons said it would be necessary to closely consider a supervision requirement and proceed with caution in light of limited personnel and the varying experience of lawyers participating in the program.
Brent Edison noted that, as a matter of lawyer discipline, a retired North Dakota lawyer would be subject to the rules governing lawyer discipline. However, he observed that the more important question may be with regard to malpractice insurance coverage for retired lawyers participating in the pro bono program, which may be the reason the various state rules require a sponsoring entity or a supervising attorney.
Jena Hannig noted that in Minnesota retired attorneys often work as volunteers in legal aid offices and wondered if a similar approach could be considered here. Jim Fitzsimmons said that approach would be an easier program to implement as the Minnesota legal aid program sets the parameters of attorney involvement and attorneys usually serve as volunteers on a particular day of each week, providing assistance to those who come to the legal aid office.
Chair Tabor then called on Jean Hannig and Bob Udland for an overview of the various state rules governing pro bono legal services by retired lawyers.
Jean Hannig said the tentative conclusion is to consider a draft rule that would reflect the following: no age requirement, a years-of-practice requirement (ten of the last 15 years), a reduced licensing fee, waiver of any CLE requirement, no requirement for supervision, no requirement for a North Dakota license to practice law, and some form of program certification (possibly a special SBAND program, enrollment in the SBAND pro bono program, or certification by Legal Services of ND).
In response to a question from Sandi Tabor regarding no supervision and no license, Jean Hannig said the tentative conclusion is that a years-of practice requirement might address issues contemplated by a supervision/license requirement.
In response to a question from Pat Ward, Jean Hannig said there would be something like a registration process as part of the program certification. She agreed an annual reporting process could also be established, as well as a notice process when attorneys in the program accepted cases.
Mark Hanson said the issue of malpractice insurance coverage for retired lawyers participating in a pro bono program is a serious concern. He noted that SBAND administers the client protection fund and wondered whether the fund may be adversely affected if, for example, a retired lawyer becomes involved in a complicated family law case and the case goes bad. He said he is uncertain about the need for a new program and the liability issue may be the most significant problem.
With respect to the role of a sponsoring program, Bob Udland said the various state rules require the program to meet certain qualifications, which may prove onerous in a small state such as North Dakota. He agreed the issue of malpractice insurance coverage must be addressed as retired lawyers likely would be reluctant to participate without some level of protection.
In response to a question from Chair Tabor, Committee members agreed the Committee should proceed with review of a draft rule.
It was moved by Pat Ward, seconded by Clare Carlson, and carried that a subcommittee be appointed to prepare a draft rule for review at the next meeting.
Jean Hannig, Bob Udland, and Mark Hanson agreed to serve as subcommittee members.
Rule on Limited Practice of Law by Law Students - Proposed Amendments
Chair Tabor next drew attention to Attachment D (March 23, 2007) - a letter referring proposed amendments to the rule governing the limited practice of law by law students. She welcomed Matthew Headley, Student Attorney with the UND School of Law Clinical Education Program, who had submitted the proposed amendments, and Assistant Professor Margaret Moore Jackson, Program Advisor, for comments concerning the proposal.
Matthew Headley said the proposed amendments are patterned after rule provisions in other jurisdictions and would permit a law student to practice under the limited practice rule if the student is enrolled in the Clinical Education Program and has completed 3 semesters in law school. The current rule, he said, requires the student to have completed 4 semesters of studies. He said the proposed amendments would facilitate services provided by the Program and would provide more opportunities for courtroom work by students.
In response to a question from Dianna Kindseth regarding the operation of the clinical program, Mr. Headley said students apply for enrollment in the program and, if accepted, practice under the supervision of 2 licensed attorneys.
Pat Ward observed that 3 semesters of law school studies provides the core knowledge necessary to participate in the clinical program. He said the clinical program has consistently provided important legal services to those of limited resources.
Petra Mandigo asked whether the amending language should be modified to allow limited practice by students enrolled in a clinical program operated under the auspices of any law school certified by the American Bar Association.
Following further discussion, Committee members generally agreed that the clinical program provides an important opportunity for limited practice by law students and that the proposed amendments, if adopted, would enhance the capabilities of the program.
It was moved by Jean Hannig, seconded by Pat Ward, and carried that the proposed amendments, with any necessary technical changes, be approved for submission to the Board of Governors for comment and, in the absence of any Board issues requiring Committee attention, for submission to the Supreme Court for its consideration.
Administrative 34 (Domestic Violence Advocates) - Proposed Amendment or Repeal
Chair Tabor drew attention to Attachment E (March 23, 2007) - a petition for amendment or repeal of Administrative Rule 34 governing domestic violence advocates submitted to the Supreme Court by Mitchell Holbach. She said the petition had been referred to the Committee by the Supreme Court for review and recommendation.
At the request of Chair Tabor, Jim Fitzsimmons provided a brief overview of the development and adoption of Administrative Rule 34. He noted that the rule specifically describes in Section 5 permissible activities by advocates when assisting petitioners during hearings. He said advocates operating under the rule have proven very helpful in the disposition of protection order hearings.
Staff noted that similar citizen complaints were considered several years ago by the Court
Services Administration Committee, which concluded the complaints were too general and non-factual to warrant any recommended changes to the rule. He said Mr. Holbach's complaints have
also been referred to that same Committee and will be reviewed at an upcoming April 13 meeting.
The particular concern for the Joint Committee, he said, is likely the assertion that advocates and the Council on Abused Women's Services are engaged in questionable activities, perhaps the unauthorized practice of law, when they assist in preparing petitions and appear or testify at hearings. He noted Section 7 of the rule, which provides that when advocates are engaged in activities authorized by the rule they are not engaged in the unauthorized practice of law.
Sandi Tabor noted that the Supreme Court has broad authority to define what is and is not the authorized practice of law.
Dan Ulmer asked whether there are others that are given standing to participate in court hearings without being licensed to practice law. Staff noted that guardians ad litem are authorized by statute and rule to participate in court hearings and submit reports. Dan Ulmer noted that there appears to be an inequality of services available for those involved in protection order hearings. Staff said a study resolution was recently approved during the legislative session that proposes a study of institutional resources available to those involved in the protection order process. It is uncertain, he said, whether the study will be selected to go forward during the interim study process.
Jim Fitzsimmons noted the irony that the rule was initially developed in response to situations in which respondents regularly appeared in court with an attorney while petitioners had no assistance.
Pat Ward said Section 5 of the rule authorizes only limited activities by advocates during court hearings. He said advocates are quite helpful to the court in assisting petitioners who, because of fear, intimidation, or other factors, cannot effectively participate in hearings on their own. He said he would recommend the Committee not take any action on the issues presented.
Following further discussion, it was moved by Pat Ward, seconded by Dan Ulmer, and carried that, in light of the Committee's specific areas of responsibility under Administrative Rule 38, the Committee advise the Supreme Court of the conclusion to take no action in response to the request for repeal or amendment of Administrative Rule 34.
Report on Pro Se Litigation in North Dakota - "Unbundling" of Legal Services
Chair Tabor next drew attention to Attachment F (March 23, 2007) - referral of the Report on Pro Se Litigation in North Dakota, North Dakota and ABA Rules 1.2 of the Rules of Professional Conduct, ABA information and articles concerning unbundling of legal services, and selected state rules concerning unbundling. She said the specific issue from the Report for the Committee is whether current Rule 1.2 is sufficient to authorized the unbundling of legal services in North Dakota.
By way of background, she explained that when the Rules of Professional Conduct, and Rule 1.2 specifically, were reviewed and revised, the Joint Committee did not focus directly on Rule 1.2 as a means of unbundling legal services. The focus of discussion, she said, was on the client's and lawyer's ability to agree regarding the scope of legal representation. She said an issue of particular concern regarding unbundling legal services is whether, once a lawyer has become involved in a limited fashion in a case, a family law case for example, the court will permit the lawyer to end the representation. In that regard, she said, new rules or rule amendments may be necessary in the Rules of Civil Procedure or the Rules of Court. She said the principal questions for the Committee are whether the current rule is adequate with respect to authorizing the unbundling of legal services and whether other rule provisions are necessary to adequately describe a lawyer's responsibilities in an unbundling situation.
Jean Hannig observed that under Rule 1.2 a lawyer can limit the scope of representation. She said it is not unusual for a person to ask a lawyer to review a particular document without wanting to retain the lawyer for the full representation. She said she provides a letter to be signed by the person that acknowledges that her activity is limited to reviewing the document and that the person is not represented by counsel.
Pat Ward agreed the current rule provides a basis for "unbundling" in that it permits the lawyer, and the client, to limit representation or legal services to specific areas. With respect to whether the court will allow a lawyer to end representation, he said situations in which the court will not allow the lawyer to end representation are likely situations in which there is no writing setting out the lawyer/client agreement regarding the limited scope of representation. He said it is very important that the lawyer make clear at the outset exactly what constitutes the scope of representation.
Staff noted that on page 10 of the Report on Pro Se Litigation there is the conclusion that "while the state team concluded that unbundled legal services can occur in North Dakota, there are details that should be addressed in the .... Rules of Civil Procedure and/or Rules of Court to clarify that a lawyer engaged for limited purposes would not need to go through any formal withdrawal process with the court... ."
Sandi Tabor said there is also guidance in Comment  of Rule 1.2 that underscores the importance of obtaining the client's consent in writing concerning the scope of representation.
Following further discussion, it was moved by Jean Hannig, seconded by Dan Ulmer, and carried that the Supreme Court be advised that current Rule 1.2 is considered adequate to support limited representation as contemplated in the unbundling concept; that additional guidance concerning the importance of obtaining client consent in writing is set out in the Comment to the rule; and that amendments to the Rules of Civil Procedure, the Rules of Court, and other procedural rules may be necessary to clarify the responsibilities of lawyers in limited representation situations.
Chair Tabor distributed a letter and accompanying memorandum received from Nick Hall, Chair of the Disciplinary Board, which outlines concerns about the timeframe for hearing panel submission of conclusions and recommendations under Rule 3.1(F)(1),(2) of the Rules for Lawyer Discipline. She said the letter suggests the timeframe (within 60 days of a formal hearing) often does not allow sufficient time. She said the recommendation is that the rule be amended to provide for the submission of hearing panel recommendations "within 60 days of the close of the hearing record". She requested that a Committee member review the letter and memorandum and report at the next meeting concerning whether an amendment to the rule should be considered. Petra Mandigo agreed to review the material and provide a report. A copy of the letter and memorandum is attached as an Appendix.
There being no further discussion the meeting was adjourned at 11:45 a.m.