Sandi Tabor, Chair
Ronald McClean, Fargo attorney
It was moved by Pat Ward, seconded by Mark Hanson, and carried that the minutes be approved.
Codes of Pretrial and Trial Conduct
Chair Tabor welcomed Ron McLean for comments concerning the Codes of Pretrial and Trial
Conduct adopted by the American College of Trial Lawyers, which the Supreme Court had referred
to the Committee for review. See Attachment (October 12, 2007).
Ron McLean, who serves as the North Dakota State Chair of the American College of Trial Lawyers, explained that the College is increasingly concerned about professionalism and civil behavior within the legal profession. He said the increasing vulgarization of culture and tendencies towards lower behavior are being transferred to law practice. He noted that 1st year law students at the UND School of Law are required to attend a 2 hour program on professionalism, character, and reputation and during the 3rd year of law school a similar program is also required. He said there should be something beyond the "floor" of ethical requirements established by the Rules of Professional Conduct. He said the Codes of Pretrial and Trial Conduct are intended to supplement professional rules of conduct and provide a basis for additional guidance with respect to professional and ethical conduct. However, he noted that the Codes developed by the American College of Trial Lawyers are extensive and cover a wide range of conduct, some of which may be addressed formally by the Rules of Professional Conduct. As an alternative, he distributed copies of the "Professional Aspirations" approved by the Minnesota Supreme Court. The Professional Aspirations, he explained, resulted from the work of Bismarck attorney Dave Maring, who reviewed the two Codes and distilled the most compelling and useful features of the Codes into a shorter, clearer document that addresses all of the significant issues. He urged the Committee to consider the Professional Aspirations as a useful alternative to the longer Codes
In response to a question from Dan Ulmer, Ron McLean said the Professional Aspirations would not, as indicated in the 3rd paragraph of the Preamble, be used as a basis for lawyer discipline or sanctions. Dan Ulmer wondered what, then, would be the objective in adopting the Aspirations.
Ron McLean said the Professional Aspirations, as the name implies, are intended to be aspirational and motivate lawyers to maintain higher standards of professional conduct. He said the Aspirations would not supplant any of the Rules of Professional Conduct or other rules related to lawyer conduct or discipline. He emphasized that the Rules of Professional Conduct only establish the minimum expectation concerning lawyer conduct, while the Professional Aspirations would urge lawyers towards higher, more exemplary conduct.
With respect to the Codes of Pretrial and Trial Conduct, Sandi Tabor noted there are several provisions in the Codes that seem to work at cross-purposes to particular rules of professional conduct. That, she said, would prove problematic if the Codes were to be seriously considered. Pat Ward agreed there seem to be areas where the Codes and the professional rules overlap.
In response to a question from Carol Johnson, Ron McLean said the Professional Aspirations are published in the Minnesota rule book.
In response to a question from Chair Tabor about further action with respect to the Codes, Committee members generally agreed to review the Professional Aspirations instead of the Codes.
Pat Ward suggested something like the Aspirations should be taught in the first instance in a trial practice class in law school. Ron McLean said that he and Jane Voglewede have conducted such classes for the past few years at the law school.
After further discussion, Pat Ward and Carol Johnson agreed to review the Minnesota Professional Aspirations and similar provisions, if adopted, in other states and provide a report at the next meeting.
"Katrina Rule" - Legal Services following a Disaster
Chair Tabor next drew Committee members' attention to Attachment E (November 21, 2007) - the ABA Model Court Rule concerning the provision of legal services following a major disaster. She explained that the model rule had not been previously officially referred to the Committee, but the Committee had discussed the rule earlier as part of the ABA comment process and then following the ABA's adoption of the rule as a model rule of court. The Committee's earlier conclusion, she said, was that such a rule was likely not necessary at this time. She said the Supreme Court has now officially referred the ABA model court rule to the Committee for consideration and the question is whether the Committee is still in agreement with its earlier conclusion.
Pat Ward recalled as well the Committee's previous discussions and said there appears to be no reason to depart from the earlier conclusion.
Jean Hannig said the 1997 Grand Forks flood and the response of the legal community indicated that the legal needs of those affected by the flood and the needs of displaced lawyers could be addressed within the context of current rules. She said the model court rule is quite complex and appears more directed at jurisdictions that are significantly overwhelmed by an extraordinary natural disaster, such as Hurricane Katrina. She said the largely successful response to the Grand Forks flood suggests that the substantial rule structure represented by the model rule is not necessary at this time.
Following further discussion, it was moved by Jean Hannig, seconded by Judge
Sturdevant, and carried that the Committee take no further action concerning the model court
rule and recommend to the Supreme Court, for the reasons stated, that the rule not be
considered further at this time.
Pro Bono Legal Services by Certain Qualified Out-of-State Attorneys - Cont'd Discussion
Chair Tabor next directed Committee members' attention to Attachment C (November 21, 2007) and continued discussion of the draft concerning pro bono legal services by retired and other qualified lawyers. Included in Attachment C: the draft rule initially reviewed at the June 12 meeting and information assembled by the ABA Commission on Law and Aging (Overview of Emeritus Pro Bono Participation Programs, Checklist for Creating an Emeritus Pro Bono Participation Program, December 2006 Survey Result Concerning Programs, and Highlights of Recently Enacted Emeritus Rules). She recalled also issues from the June 12 meeting reserved for further discussion and additional information: 1) comments from Jim Fitzsimmons on the draft rule and malpractice issues for Legal Services of ND as a possible "approved legal services organization" under the draft rule; 2) rules adopted in other states; 3) legal needs assessment; and 4) discussion of the years of practice requirement. She drew attention also to Attachment D (November 21, 2007) - the legal needs assessment for general and elderly populations conducted by the Legal Aid Clinic in conjunction with SBAND and Legal Services of ND.
With respect to the issue of malpractice insurance coverage, Mark Hanson said there were two interrelated concerns: the amount of supervision required under the draft rule for an organization such as Legal Services of ND and the impact on the organization's malpractice insurance of participation in the program. He explained that the draft rule would require an "approved legal services organization" to file a petition explaining, among other things, "the existence and extent of malpractice insurance that will cover the Rule ____ attorney" participating in the pro bono program. The particular concern, he said, was whether LSND, for example, would have adequate insurance coverage for an attorney offering services under the draft. He said his conversations with Jim Fitzimmons and AALPS representatives indicate that an attorney providing services under the draft proposal would be covered by the organization's malpractice policy with some exceptions. One exception, he said, is that the malpractice coverage would not extend to providing pro bono services for case types that are not considered covered work under the organization's policy. Consequently, he said, malpractice coverage should not, as a general matter, pose a problem with respect to implementing the draft rule.
Jim Fitzsimmons explained that LSND is able to obtain malpractice insurance coverage through the National Legal Aid and Defender Association, which covers LSND staff attorneys and reduced-fee panel attorneys. He said a provision in the policy covers LSND volunteers and those who work under LSND auspices. He said the application for malpractice coverage asks for extensive information, including levels of supervision, how often reports are received, what kinds of cases volunteers will handle, whether the cases are within the realm of what LSND normally does, and the particular expertise of managers in the program. Consequently, he said if retired lawyers are associated with LSND under the draft rule and provide services of the kinds LSND normally provides, then malpractice coverage and rates would not be affected. He said if the kinds of cases handled by lawyers under the rule were expanded beyond what LSND normally handles, then issues would arise for the malpractice carrier.
In response to a question from Dan Ulmer about whether there are particular limits in the malpractice policy, Jim Fitzsimmons said the policy is not limited as such because the policy is based on the application submitted by LSND which identifies the kinds of cases LSND will handle. He said it is possible that sometime in the future LSND may decide to take on a different category of cases. In response to a question from Sandi Tabor, he said that a conscious decision would have to be made concerning cases in a new area and then contacts made with the malpractice carrier to determine the effect upon the policy premium.
Following further discussion, there was general agreement that malpractice insurance coverage would appear to be available for lawyers providing services under the draft rule, particularly if LSND is identified as an approved legal services organization under the rule.
Bill Neumann noted that SBAND's pro bono and volunteer lawyer programs also obtains malpractice insurance coverage from the National Legal Aid and Defender Association. It is possible, he said, if the draft rule were ultimately adopted that the Board of Governors might be willing to serve as an organization responsible for retired lawyers providing services under the rule.
Sandi Tabor emphasized that before consideration of the draft is done there must be some conclusions about how the program will be structured and, more importantly, how the program will be administered and by whom.
With respect to the level of supervision exercised by an approved legal services organization, Mark Hanson said the issue is more related to oversight of the volunteer lawyer's activity and some level of control over who is approved for participation in the program. He said the draft rule is unclear about whether the organization would be able to offer any feedback on the lawyers who may be approved for participation based on the application. An additional "supervision" issue, he said, is the ability to ensure that the volunteer lawyer provides services only in those kinds of cases for which the organization provides legal services. He said the draft may need to be modified to clearly address that issue. He said the organization should have some level of control concerning lawyers that are approved for participation in the program and who may become associated with the organization.
In response to a question from Jean Hannig, Bill Neumann said there are restrictions by policy on the kinds of cases that can be handled through SBAND's Volunteer Lawyer Program. Sandi Tabor said the Program attempts to provide services that complement those provided by LSND and in areas in which LSND has limited resources, such as family law cases. Jim Fitzsimmons said LSND in recent years has handled more family law cases but there are still many of those cases the organization cannot handle. He noted that LSND does not handle bankruptcy cases, while the Volunteer Lawyer Program does.
Chair Tabor then requested general comments from Jim Fitzsimmons concerning the draft rule and the concept of a retired lawyer pro bono program.
Jim Fitzsimmons said the concept is a sound one and the draft, with one exception, seems adequate to establish a program. He suggested the process could be essentially a two-pronged approach: one that would provide a means by which a retired lawyer could become certified to participate in the program, whether by the Supreme Court, the Board of Law Examiners, or the State bar Association, and the other that would enable a variety of organizations to qualify as "approved" organizations for purposes of the program. He said the process could be one in which a retired attorney approaches an organization and indicates a desire to provide volunteer services and the organization then decides whether to be associated with the particular lawyer. With respect to a possible problem area for LSND, he noted the provision in the draft rule that would permit the volunteer lawyer to receive legal fees as long as the fees are donated to a qualified legal services program. He said LSND attorneys cannot request fees because of federal law restrictions and, as a result, the draft provision would be troublesome. He urged that the program or rule not be structured in such a way as to limit the number of organizations that could be approved for participation in the program.
In response to a question from Chair Tabor concerning the Needs Assessment included as Attachment D (November 21, 2007), Jim Fitzsimmons said the assessment survey was developed by SBAND, LSND, and the Legal Aid Clinic to determine the adequacy of access to legal services for the population generally and for the elderly particularly. He noted one survey question in particular concerning how often a legal services organization was able to provide services in response to a request. He said survey respondents indicated organizations were able to provide services 50.6% of the time, which tracks results in a national survey. In other words, he said, 1 in every 2 requests from a poor person for legal services in North Dakota goes unanswered. He said there is clearly a need for an additional method of delivering legal services in the state. It is uncertain, he said, whether the draft proposal will substantially help, but it will provide a positive message to retired attorneys about the importance of and need for volunteer legal services.
Chair Tabor next drew attention to the issue reserved for discussion from the last meeting concerning the requirement under the rule for particular years of practice. The question, she said, is whether 5 years, as indicated in the draft, is sufficient or whether more, or fewer, years of practice should be required.
Jean Hannig said the requirement was set at 5 years in the draft out of a concern that the rule's requirements not be so restrictive as to shrink the pool of possible lawyers who could participate in the program. She noted the general suggestion in the ABA resource material that rule requirements should require some level of experience but should make it easier rather than more difficult for lawyers to participate in the program.
Sandi Tabor noted that the draft rule would permit any lawyer to participate in the program, not just a retired lawyer.
In response to a question from Jean Hannig concerning an acceptable level of experience, Jim Fitzsimmons said a requirement for 5 years of experience would probably be generally sufficient.
With respect to when the years of experience must have occurred, Jean Hannig said the draft contemplates that the lawyer must have had 5 years of experience at some point before applying for participation in the program. It does not require, she said, that the years of experience be immediately before applying.
Sandi Tabor noted that some jurisdictions require, for example, 5 years out of the last 10 years and asked whether that is an option to consider. Jim Fitzsimmons said 5 years out of the 10 years preceding application is a good alternative.
Judge Sturdevant noted that volunteer services would likely be needed in areas of law that are developing rapidly and therefore some level of recent experience would be desirable. Carol Johnson agreed particularly in light of the fact that family law cases are a substantial share of the cases in which services are needed.
With respect to the years of practice requirement, Jean Hannig suggested, and Committee members agreed, the requirement in the draft should be changed to 5 years out of the 10 years immediately preceding the date of the application.
Sandi Tabor drew attention to the exemption from a CLE requirement in the draft rule and said such an exemption may be an area of concern.
Bill Neumann noted that requiring 45 hours of CLE every 3 years is considered burdensome by lawyers who are on inactive status. With respect to lawyers participating in the program under the proposal, he said an alternative may be to require 5 hours of CLE each year in areas relevant to the kinds of services the lawyer would be providing.
Jean Hannig said there is an issue of cost associated with CLE requirements, particularly with regard to lawyers who are providing legal services for free.
In response to a question from Sandi Tabor, Jim Fitzsimmons explained that LSND offers free CLE programs for anyone who provides pro bono legal services. Bill Neumann said SBAND may also be able to offer a free CLE program for lawyers participating in the program.
Sandi Tabor drew attention to Section B(2) of the draft rule which provides a definition and qualifications for an attorney participating in the program. She suggested an additional qualification could be added indicating that the attorney is "under the direct supervision of an approved legal services organization." She said the added language may address the issues associated with malpractice insurance coverage and also address the question concerning who is in charge. Pat Ward drew attention to language in Section A of the draft (lines 7-10) which provides that an attorney may be admitted to practice for the limited purpose of providing assistance as an unpaid volunteer in association the a legal services organization. He wondered whether that language is sufficient to address the issues. Sandi Tabor said adding the suggested language to Section B(2) would make clear that in order to be qualified to provide services under the rule, the attorney must be under the supervision of the legal services organization. Following further discussion, it was agreed the Preamble language should be modified to reflect supervision by rather than association with the legal services organization.
With respect to kinds of supervision, Jim Fitzsimmons said LSND conducts quality control measures at the outset when cases are assigned.
Sandi Tabor drew attention to the ABA Checklist included in Attachment C (November 21, 2007) and said the Committee should consider those Checklist items most pertinent to the draft rule. With respect to registration requirements, she said the Checklist recommends consideration of the frequency of registration. She said since, under the draft rule, the legal services organization would be able to discontinue a relationship with the attorney and is required then notify the Board of Law Examiners, there may be no reason to require more than the initial registration. Committee members agreed. Committee members also agreed there should be no fee for registration.
Jean Hannig drew attention to Section F of the draft rule which requires that the legal services organization notify the Board of Law Examiners if the attorney is no longer associated with the organization. She asked whether language should be included clearly indicating that in the event of such notification the attorney's certification under the rule must be withdrawn or revoked. Committee members agreed the described language should be added to Section F.
Staff noted the apparent tension between the role of the Board of Law Examiners and the withdrawal of certification and concluding language in Section B which provides that an attorney cannot practice law under the rule unless authorized by Supreme Court order. He said if an attorney is permitted to practice law under the rule by order of the Court, then withdrawal of the certification may be insufficient to remove the attorney from the program. Committee members agreed the language in Section B should be deleted.
Committee members next considered the ABA Checklist item concerning legal services organization registration requirements. Committee members agreed an organization should be required to file its petition only once.
Committee members then reviewed the ABA Checklist item regarding attorney orientation and training. Sandi Tabor said it appears that legal education programs would be available to attorneys participating in the program. With respect to orientation or training specific to a legal services organization, she said that would likely be handled in the manner determined by each organization and need not be addressed particularly in the rule. Committee members agreed. She drew attention to Section D of the draft rule which provides that attorneys are exempt from general CLE requirements and said the provision should be modified to indicate a certain, minimal level of CLE should be required. Jim Fitzsimmons noted that LSND provides 12 hours of free CLE each year, two programs of 6 hours each. Mark Hanson said the exemption was included in the draft as a way of minimizing barriers to participation in the program. He said if the attorney is supervised by the legal services organization, it may be possible to enable the organization to dictate the CLE hours to be obtained by the attorney. He cautioned that a mandatory CLE requirement may discourage attorneys from considering participation in the program. Pat Ward agreed it may be preferable to allow the organization to impose CLE requirements for program attorneys associated with the organization. Sandi Tabor said that may be a workable approach but there may be a conflict then with the language in Section D which exempts the attorney generally from any CLE requirement. Following further discussion, Pat Ward suggested and Committee members agreed Section D should be modified to provide that the attorney must complete CLE as may be required by the approved legal services organization."
Sandi Tabor asked whether it can be assumed, if the rule were ultimately adopted, that the State Bar Association, Legal Services of ND, Migrant Legal Services, the Law School and any others that may be legal services organization will commit to efforts to promote and implement the program and aid in recruiting attorneys for participation in the program. Bill Neumann said that if organizations believe in the worth of the program then they should be willing to support it and work to enable its success. Jim Fitzsimmons said LSND would help promote the program and would be willing to commit funds if possible. He said the Joint Committee on Civil Legal Services for the Poor and the Volunteer Lawyer Program may also be possible sources of support and promotion activities.
Committee members then discussed the ABA Checklist item concerning program evaluation and outcomes. Sandi Tabor asked Jim Fitzsimmons and Bill Neumann for comments concerning how performance of the program might be evaluated. Bill Neumann said the first and most significant evaluation of the program's performance would be the simple number of attorneys that agree to participate in the program. Jim Fitzsimmons said that as part of funding received from the Legal Services Corporation, LSND is subject to periodic monitoring and evaluation of all aspects of the program, including the reduced-fee program. He said an evaluation of attorney participation with LSND under the rule could be included in that review process.
Jean Hannig recalled Jim Fitzsimmons' earlier concern about language in Section E of the draft rule which permits an attorney in the program to receive legal fees as long as the fees are donated to a qualified legal services program. She suggested, and Committee members agreed, that the relevant sentence in Section E (lines 12-14) should be deleted.
Chair Tabor said the draft rule would be revised to reflect Committee discussion and would be reviewed at a specially scheduled meeting if possible.
Lawyer Assistance Program - Update on Operation
Chair Tabor explained that the SBAND Board of Governors had provided additional funding for the Lawyer Assistance Program. She said discussions at a recent Board meeting indicated there may be a need for more communication among the Disciplinary Board, the Lawyer Assistance Program, and perhaps this Committee in light of its development of the LAP rule. She said a greater level of coordination between the discipline process and LAP may require changes or additions to current rules, which would be an area of attention for the Committee.
Chair Tabor then welcomed Leslie Bakken-Oliver and Maureen Holman, Chair and Vice-Chair respectively, of the Lawyer Assistance Program Committee for an update on the program's operation and prospects for future changes. Leslie Bakken-Oliver distributed and reviewed information concerning the Program's components and operation. A copy is attached as an Appendix.
Leslie Bakken-Oliver said the program is proceeding nicely and initially started with a primary focus on diversion. She said consideration is being given to pursuing concurrent discipline. She said the Committee is also considering establishing a prevention program, which is generally considered the second piece of a lawyer assistance program. She said there may be a need for more guidance for cases that are appropriate for diversion and concurrent discipline, which may require changes to existing rules.
Maureen Holman said a particularly problematic issues concerns an attorney's self-referral to the program after disciplinary proceedings have been started. She said disciplinary counsel does not consider these self-referrals to be diversion for purposes of the program. She emphasized that disciplinary counsel must be on board with respect to the appropriateness of diversion in the particular case.
Leslie Bakken-Oliver said particular areas for further discussion, as indicated on page 8 of the PowerPoint presentation handout, include the relationship between LAP and the Disciplinary Board, Inquiry Committees, the Board of Law Examiners, and the Supreme Court; general communication; confidentiality issues; integration and coordination of services; and cooperation. She said recent discussions have been productive and there is particular interest in ensuring that lawyer assistance plan requirements with respect to each participating attorney are communicated among disciplinary counsel, the Disciplinary Board, and LAP. She said the governing rules allow the Disciplinary Board to have input into an attorney's participation in lawyer assistance if it is related to discipline in any manner. She said that particular involvement has developed over time.
In response to a question from Chair Tabor concerning possible items for the Committee to consider, Leslie Bakken-Oliver said there are no particular rule issues that require immediate attention. She said as the program evolves there may be a need for standards with respect to concurrent discipline.
Sandi Tabor said the recent decision by the Board of Governors to provide funding for a member assistance program was an important development. Bill Neumann noted that negotiations are underway with St. Alexius to handle the assistance program on a contract basis. He said the objective is to have the program established and functioning by January 2008.
Jean Hannig said there may be insufficient information about the lawyer assistance program available to those who would or could make third-party referrals to the program. Sandi Tabor said the availability of the member assistance program may lead to more third-party referrals as its focus is prevention. She suggested that an informational session about the lawyer and member assistance programs at a future Judicial Institute or Judicial Conference may be beneficial.
Chair Tabor thanked Leslie Bakken-Oliver and Maureen Holman for taking the time to
present information to the Committee.
There being no further discussion the meeting was adjourned at 1:05 p.m.