Joint Committee on Attorney Standards
Supreme Court's Front Conference Room, Bismarck
March 4, 2011
Judge Michael Sturdevant
Petra Mandigo Hulm
Justice Dale Sandstrom
Fritz Fremgen, Stutsman County State's Attorney
Aaron Birst, Executive Director, State's Attorneys Association
Jacob Rodenbiker, Burleigh County Ass't State's Attorney
Chair Sturdevant called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (February 25, 2011) - minutes of the December 10, 2010, meeting.
It was moved by Dan Ulmer, seconded by Petra Mandigo Hulm, and carried that the minutes be approved.
Responsibilities of a Prosecutor - Amendments to Rule 3.8 - Cont'd Review
Chair Sturdevant briefly reviewed the Committee's ongoing discussion of proposed amendments to Rule 3.8 regarding special responsibilities of a prosecutor. He noted that representatives of the ND Association of Criminal Defense Lawyers had requested that the Committee defer action on the proposed rule at its December 10 meeting in anticipation of submission at this meeting of proposed revisions by the Association. He drew attention to Attachment C (February 25, 2011), which is an explanatory letter from Association President Mike Hoffman accompanied by suggested revisions to the Committee's proposed rule amendments. With respect to permissible communications with an unrepresented defendant, he said the Association's revisions would remove the distinction between situations involving misdemeanors and felonies and would require generally that any settlement offers by the prosecution to be in writing. He said the proposed revisions seem to center around issues related to written guilty pleas and waivers of appearance under Rule 43 of the Rules of Criminal Procedure. He said Association representatives had been invited to attend the meeting but conflicts and prior commitments prevented their participation in the meeting.
Chair Sturdevant then requested comments from state's attorney representatives regarding the Association's suggested revisions.
Fritz Fremgen observed that the Rule 43 process is usually used as a convenience of sorts to the defendant and to ensure the process moves forward in a timely manner. He said it is not unusual for Rule 43 guilty pleas and waivers of appearance to be used by defendants who are out of state and want to avoid the inconvenience of traveling back for a relatively minor offense. He said the defendant may contact the prosecutor to inquire whether there is a way to expeditiously address the case and the ability of prosecutor to speak to the defendant about options, without concern for possible ethical violations, would be useful. An additional concern, he said, is that a self-represented defendant often wishes to discuss matters with the prosecutor and current Rule 3.8( c) seems to place ethical restrictions on a prosecutor doing that.
With respect to proposed new paragraphs (g) and (h), which originated with amendments to the ABA Model Rule, Mr. Fremgen drew attention to N.D.C.C. 27-13-12, which defines as a misdemeanor criminal offense a prosecutor's later defense of a defendant in a case in which the prosecutor was previously involved as prosecutor. He said to the extent that new paragraphs (g) and (h) appear to involve the prosecutor in assisting a defendant in seeking a remedy for a wrongful conviction, there may be a question of whether that activity would run afoul of the statute's prohibition.
Aaron Birst observed that a prosecutor will not actively seek a waiver of important rights from the defendant. Practically, however, he said, there is an interest in the case moving forward and quite often the defendant wants the case handled quickly. He said anything that unnecessarily makes the prosecutor more hesitant to work with the defendant on resolving the case will create problems.
Fritz Fremgen noted that the criminal defense attorneys' suggested revisions seem to permit some level of communication by the prosecutor with the defendant but also would include a general writing requirement. He said the writing requirement for settlement offers, particularly in misdemeanor cases, would prove unreasonably burdensome. He said courts often encourage the prosecutor to meet with the defendant in misdemeanor cases to determine whether or how the case is going to proceed. In some areas of the state, he said, prosecutors receive pre-trial orders from the court directing the prosecutor to present recommendations to the defendant.
Pat Ward asked whether it would be more acceptable if the writing requirement were limited to felony cases. Mr. Fremgen said he had not heard many complaints associated with requiring a written settlement offer in those situations.
Pat Ward suggested that the Committee's current amendments to Rule 3.8( c), as reflected in Attachment D (February 25, 2011), could be retained with the addition in paragraph ( c)(2) regarding felony cases of language directing that settlement offers must be in writing.
Following discussion, it was moved by Pat Ward, seconded by Justice Sandstrom, and carried that proposed paragraph ( c)(2) as reflected in Attachment D be revised to include "make any settlement offer in writing" as new subdivision (iii).
Jacob Rodenbiker drew attention to paragraph ( c)(2)(i), which would require that the prosecutor not assist the defendant in the completion of forms for the entry of a guilty plea or the waiver of preliminary hearing or jury trial. He wondered which forms might be involved as there are typically no forms for waiver of a jury trial and the reference to a guilty plea would relate to Rule 43 situations involving misdemeanors, rather than felony situations addressed under paragraph ( c)(2).
Fritz Fremgen said forms for the waiver of a preliminary hearing are used is some parts of the state. However, he said the other forms references would be more applicable to misdemeanor situations.
It was moved by Pat Ward and seconded by Dann Greenwood that paragraph ( c)(2) as reflected in Attachment D be revised to remove the references to entry of a guilty plea and jury trial.
Justice Sandstrom requested a division of the question to separately address each reference.
Following discussion, the portion of the motion to delete "entry of a guilty plea" from paragraph ( c)(2) carried.
With respect to forms for the waiver of a jury trial, Jacob Rodenbiker said while a defendant may waive a preliminary hearing, waiver of a jury trial in a felony case will generally only occur when the defendant is entering a guilty plea. Bill Neumann observed that a defendant may waive the right to a jury trial in a felony case but the state has the right to pursue a jury trial.
Pat Ward noted that Rule 23 of the Rules of Criminal Procedure provides that if the defendant is entitled to a jury trial, the trial must be by jury unless the defendant waives the jury trial in writing, the prosecution consents, and the court approves.
Following further discussion, the portion of the motion to delete "or jury trial" from paragraph ( c)(2) failed.
Committee members agreed that in accordance with the earlier motion approving the Rule 3.8 amendments for submission, the proposed amendments, as further revised, would be submitted to the SBAND Board of Governors for review and comment.
Dann Greenwood recalled Fritz Fremgen's comment regarding the possible application of N.D.C.C. 27-13-12 in circumstances to which new paragraphs (g) and (h) may apply. He wondered whether the issue should be considered further.
Justice Sandstrom said the activities by prosecutors contemplated under paragraphs (g) and (h) likely would not be regarded as "representing" the defendant, which is the focus of the statute.
After discussion, Committee members agreed the issue could be noted as an informational point in the submission letter to the Board of Governors.
Model Rules for Client Trust Account Records
Chair Sturdevant next drew attention to Attachment E (February 25, 2011) - referral by the Supreme Court of review of the Model Rules for Client Trust Account Records, which were recently adopted by the ABA. He recalled the Committee's earlier review of issues related to the use of credit cards by attorneys for purposes of accepting payments or retainers, with the designation of a subcommittee consisting of Pat Ward, Dann Greenwood, and Petra Mandigo Hulm to consider possible approaches. However, he said, the Committee subsequently agreed to defer consideration of the issue with the anticipation that the Model Rules would be referred to the Committee at some point. He said the question is whether to proceed with a combined review by the subcommittee of the credit card issue and the Model Rules or whether to consider a different review process.
Committee members agreed the subcommittee should review the new Model Rules and the credit card issue and provide a preliminary report at the Committee's June meeting.
Jean Hannig agreed to join the subcommittee.
Expungement of Dismissed Disciplinary Complaints - Cont'd
Chair Sturdevant noted the Committee's initial discussion at the December 10 meeting of issues raised by Committee member Jason Vendsel regarding the expungement of dismissed complaints. He said Mr. Vendsel was unable to attend this meeting and asked that discussion of the issue be deferred until the June meeting.
Committee members agreed the matter would be discussed further in June.
Lawyer Mentoring Programs - Cont'd Discussion
Chair Sturdevant recalled the Committee's initial discussion at the December 10 meeting of lawyer mentoring programs, a matter referred to the Committee by Chief Justice VandeWalle. He said the Committee decided additional information should be reviewed to determine whether a mentoring program should be considered for North Dakota and how a program might best be established. He said he had reviewed a substantial amount of information regarding mentoring programs around the country which had been compiled by Samantha Miller with the SBAND's Young Lawyer Section. He noted that YLS has been discussing the mentoring program concept for some time. He said the background information suggests there is a broad spectrum of mentoring programs in operation. Some, he said, are established by Supreme Court rule, some are established within bar associations. He said some programs are very substantial, while others simply involve connecting young lawyers with older lawyers in the legal community. He said most programs appear to be voluntary, but there are some programs in which participation is a mandatory. He said the basic question is whether a mentoring program will be mandatory or voluntary. He said mandatory programs are generally linked to mandatory CLE programs and therefore consideration of such an approach would require the involvement, at least, of the CLE Commission. He said a voluntary program may require more investment by the bar association. He noted that law schools also have some level of involvement in mentoring programs.
Pat Ward said he would be opposed to a mandatory program. He said the initial concern is how to identify lawyers to serve as mentors and whether there are a sufficient number available to build a credible program. He said the law school may be better situated to pursue a mentoring project.
Bill Neumann said the Young Lawyer Section is very interested in the mentoring program concept but is waiting to see how the Committee may proceed.
Petra Mandigo Hulm said the general goal of YLS is to provide some resource or point of contact for advice to young lawyers. She said a complicated, resource-intensive program is likely not necessary.
In response to a question from Dianna Kindseth regarding situations in which a mentoring program would be most useful, Pat Ward said such a program is primarily useful to young lawyers just starting out in law practice but would also be useful to solo practitioners and lawyers in very small law firms. He said one approach could be for the bar association to develop a list of resource lawyers who could be contacted for guidance. But, he said, a more complex program may be problematic.
Petra Mandigo Hulm said one of the concerns is associated with possible disclosure of client confidences as part of a mentoring process. She said one recourse may be to limit discussions between a mentor and the person seeking advice to very general kinds of information, without reference to a specific case or client. She noted that some jurisdictions have required that participants in a mentoring process obtain specific malpractice insurance coverage in the event a liability issue arises.
Judge Sturdevant wondered whether malpractice insurance carrier may have some interest in supporting a mentoring program since it could be a method for curtailing law practice problems that may result in liability. Justice Sandstrom suggested an AALPS representative could be invited to discuss the issue with the Committee.
In response to a question from Chair Sturdevant about the general feasibility of a mentoring program, Committee members agreed a mandatory program likely is not feasible but the mentoring concept is a good one and should be pursued further. Committee members expressed concern that the Committee may not be the best positioned group to pursue the project, given the several entities that may be involved in developing a mentoring program - CLE Commission, Board of Law Examiners, the Law School, and others, and the investment necessary from the bar generally. There was also general agreement that the Young Lawyers Section should continue its review of mentoring programs and the kind of a program that would best suit the needs of the state's young lawyers.
Chair Sturdevant will forward the Committee's initial conclusions to Chief Justice VandeWalle.
There being no further discussion the meeting was adjourned at 11:35 a.m.