Members Present Sandi Tabor, Chair Mark Hanson Jean Hannig Carol Johnson Dianna Kindseth Ryn Pitts Justice Dale Sandstrom Judge Michael Sturdevant Pat Ward Bob Udland Dan Ulmer
Clare Carlson Petra Mandigo Hulm Tim Priebe
Chair Tabor called the meeting to order at 10:00 a.m. and drew Committee members'
attention to Attachment B (October 31, 2008) - minutes of the September 19, 2008, meeting. It was
noted that Jean Hannig was unable to attend the meeting but is reflected as both absent and present.
It was moved by Pat Ward, seconded by Petra Mandigo, and carried that the minutes,
as corrected, be approved.
Pro Bono Services by Retired or Otherwise Qualified Lawyers - Comments on Proposed Rule
Chair Tabor noted that the Board of Governors had reviewed the Committee's proposed rule
and Board members Dave Maring and Mike Williams had submitted comments, which were then
referred to the subcommittee (Jean Hannig, Bob Udland, and Mark Hanson) for review. The
proposed rule and the comments are reflected in Attachment E (October 31, 2008).
Chair Tabor then referred Committee members' attention to the Memorandum submitted by
Bob Udland, distributed earlier by email, which outlines the subcommittee's responses to the
comments. A copy of the Memorandum is attached as an Appendix. [Note: All following page and
line references are to the proposed rule included in Attachment E (October 31, 2008)].
Mike Williams Comments. Jean Hannig noted the concern (#1) about the requirement in the
proposed rule that an attorney must have been engaged in the active practice of law for five of the
last ten years preceding application [page 1, line 17-18]. She said the concern is that the requirement
may unnecessarily limit the number of lawyers who may be able to provide quality legal services
under the rule. She said the subcommittee is suggesting consideration of simply requiring that the
applying lawyer have an "active license". She recalled that the Committee had discussed the matter
at length during previous considerations of the draft rule and arrived at the conclusion that some
level of recent experience may be preferable. However, she said the earlier discussion may not have
fully considered circumstances in which an attorney may have an active license but is not actively
engaged in the practice of law.
Dianna Kindseth asked whether requiring only an active license would place a greater burden
on the organization that is responsible for supervision of the attorney providing legal services. Sandi
Tabor said there is the potential for an additional burden but wondered whether the organization
would have some form of internal standard, such as declining to sponsor the attorney unless the
attorney has actively practiced law. Dianna Kindseth agreed that approach could assist the
organization in managing the involvement of the attorney.
Dan Ulmer noted there is no such thing as a "limited" license to practice law. The basic
question, he said, then is whether the organization is willing to take on supervision of the attorney.
Judge Sturdevant agreed.
Bob Udland said there is some merit to the concern express in Mike Williams's comment.
He said if a person has an active license, has met CLE requirements, and paid membership dues, then
the person is able to sell legal services. He said it seems unduly limiting to impose the artificial
requirement that the attorney must have practiced for a certain period of time before being eligible
to apply under the rule.
After further discussion, it was moved by Jean Hannig and seconded by Dan Ulmer that
Section B(2)(a) of the proposed rule be modified on page 1, line 17, to replace "has been
engaged in the active practice of law" with "has been actively licensed".
Bill Neumann asked whether there was a specific meaning intended for "actively licensed".
Sandi Tabor noted there is an inactive status, which normally describes those who are at the
end of their career and who are not subject to normal CLE requirements. Bill Neumann observed that
those on inactive status are not actually licensed.
Mark Hanson suggested the possibility of modifying Section B(2)(a) to provide that the
attorney must have an active license "or" must have been engaged in the active practice of law for
at least five of the ten years before applying. That, he said, would permit application by an attorney
who, for example, has not had a license for the past three years but had practiced law for thirty years
before that. He said the active license requirement would preclude application by that attorney.
Sandi Tabor said the reference to "active" with respect to licensure should be reconsidered.
Bill Neumann agreed.
It was moved by Mark Hanson, seconded by Judge Sturdevant, and carried to amend
the motion to provide that Section B(2)(a) [page 1, line 17] be modified to read "is presently
licensed or has been engaged in the active practice of law for at least five of the ten years ....".
Bob Udland said the language represented in the motion would appear to address the first
concern expressed by Mike Williams. Committee members agreed.
After further discussion, the motion, as amended, carried.
Jean Hannig then drew attention to the second concern presented by Mike Williams that
Section F of the proposed rule seems to allow emeritus status to continue with the consent of the
organization without meeting CLE requirements or, perhaps, even licensure. She said Mike Williams
also suggests there should be some kind of periodic recertification process. She said the rule should
ensure that a license is maintained during the time legal services are being provided under the rule.
Staff noted that the Committee had previously discussed whether to require recertification
of some kind and had rejected the idea.
Mark Hanson said the Committee's earlier conclusion was that the rule process should not
be unduly burdensome and adding a recertification process would unnecessarily complicate the
process. He said Section F seems adequate in addressing the status of an attorney under the rule.
With respect to the CLE issue, he noted that the rule provides that an attorney providing services
under the rule is exempt from normal CLE requirements, but the organization can require the
attorney to fulfill certain legal education requirements.
Sandi Tabor observed that if some kind of recertification process is to be considered, a
provision would likely have to be added apart from Section F.
It was moved by Mark Hanson, seconded by Jean Hannig, and carried that no changes
be made to Section F.
Jean Hannig left the meeting to attend to previously scheduled court matters.
There were no suggested changes with respect to a recertification process.
Dave Maring Comments. Bob Udland said the first concern is that Section B(2)(b), in
requiring that the attorney have "no prior or pending proceedings for disbarment or suspension", may
be too harsh. He said Dave Maring's observation is that there may have been a disciplinary
proceeding long ago and the attorney has since been relicensed and is in good standing. He said the
attorney, even with the latter change of circumstance, would not be able to apply under the rule.
Additionally, he said there are situations in which disciplinary complaints are resolved with a lesser
sanction than suspension. He said the rule may be unintentionally harsh because of the focus on the
proceedings, rather than the outcome. He suggested possibly adding language that would allow
consideration of the totality of circumstances surrounding any past disciplinary proceeding.
Pat Ward wondered whether an alternative could be to simply require that there are
"currently" no pending proceedings of disbarment or suspension. Justice Sandstrom said the
language change would not address situations in which a person is currently disbarred or suspended.
Following further discussion, it was moved by Pat Ward, seconded by Mark Hanson, and
carried that Section B(2)(b) [page 1, lines 20-23] be modified to read: "has been a member in
good standing of the entity governing the practice of law of any other state, territory, or the
District of Columbia and is not disbarred or suspended or currently undergoing proceedings of
disbarment or suspension of the applicant's license to practice law in that jurisdiction."
Committee members agreed Section C(2) should also be modified to reflect the language
change concerning disbarment or suspension.
Bob Udland noted Dave Maring's second comment concerning adding "North Dakota" when
referring to the Rules of Professional Conduct or the Supreme Court. Staff said that construction
is generally not used in court rules. There were no suggested changes in response to the comment.
Bob Udland said Dave Maring's third comment identifies inconsistencies between Section
B(2), which defines a "Rule ____ attorney", and Section C, which describes the contents of the
application submitted by the attorney. He said some substantive requirements are reflected in
Section B(2) but not in Section C and some reflected in Section C but not in Section B(2). He said
the suggestion is that the two sections should reflect the same substantive requirements. Committee
members agreed. Staff will harmonize the two sections so they reflect consistent requirements.
Sandi Tabor drew attention to Section C(4)( c), which requires the applying attorney to
provide a sworn statement that the attorney has not been disciplined by the bar or courts during the
last eight years. She said the provision may require modification in light of the related change to
Mark Hanson suggested Section C(4)( c) should read the same as Section B(2)(b).
Staff noted that Section B(2)(b) and Section C(2) address issues of disbarment and
suspension while Section C(4)( c) simply addresses whether the attorney has been "disciplined",
which can be any form of sanction short of disbarment or suspension. Pat Ward said the distinction
may be a useful one and he would suggest leaving C(4)( c) as is.
Bob Udland asked whether the sworn statement that the attorney has not been disciplined is
intended to mean that the attorney cannot provide services under the rule regardless of the level of
any discipline that may have been imposed. He noted that an admonition, which is not public, is a
form of sanction under North Dakota rules and wondered whether such a sanction would preclude
an attorney from providing services under the rule. Pat Ward said the nature of the discipline should
be provided as information to consider. Bob Udland agreed. Mark Hanson said the fact that a private
admonition was imposed several years before should not be a bar to the attorney being able to submit
Staff noted the Committee's previous conclusion that the proposed rule generally does not
contemplate any action, such as the review of the circumstances or nature of imposed discipline, by
the Board of Law Examiners other than simple receipt of the application filed by the attorney.
Dan Ulmer asked whether the point of Section C(4)( c) is simply to ask for the disciplinary
record of the applying attorney. Sandi Tabor said an attorney that may apply are under the rule
presumably may never have been licensed in North Dakota and there is a simple need to know who
the attorney is and what the attorney's background is. Dan Ulmer suggested a more worthwhile
approach may be to simply ask the attorney to list any disciplinary actions in which the attorney has
been involved. Justice Sandstrom said the pro hac vice rule requires the attorney to provide similar
Bob Udland noted the particular provisions of the pro hac vice rule which require an out-of-state attorney to provide certain information pertaining to discipline when requesting to appear in
court on a matter. He suggested similar language could be incorporated in Section C(4). [See Rule
3A(1)(b), Admission to Practice Rules: whether the attorney is presently subject to a disciplinary
proceeding in any jurisdiction, whether the attorney is under any restriction or probation in the
practice of law, whether the attorney is now or has ever been suspended or disbarred].
Committee members agreed language similar to that included in the pro hac vice rule should
be incorporated in Section C(4) for review.
Justice Sandstrom drew attention to Section B(2)(b) and the reference to the attorney having
been an attorney in good standing in any "other" state. He suggested "other" be deleted as it seems
to imply that the attorney must be a member of the bar in good standing in a state other than North
Dakota. Committee members agreed the sentence should be modified to deleted "other".
Additionally, Justice Sandstrom noted the recent change to Section B(2)(a) which included
"presently licensed" as a qualifying requirement of the "Rule ____ attorney". He said Section D
provides that a "Rule ____ attorney" is generally exempt from CLE requirements, which, taken
together with the change to Section B(2)(a), would seem to provide that a "presently licensed"
attorney authorized to provide legal services under the rule would be exempt from CLE
requirements. That, he said, is likely not what is intended. Committee members agreed.
After further discussion, Committee members agreed the first line of Section D after the
heading [page 4, line 3] should be modified to read "Except for an attorney presently licensed in this
state, a Rule _____ attorney is exempt from the requirements of the .... ."
Chair Tabor said the proposed rule would be revised and distributed for Committee review.
Attorney Serving in Dual Status - PR and Legal Counsel
Chair Tabor noted that a comment on the issue had been requested from the Real Property,
Probate, and Trust Law Section, but no comment has been received as of the meeting date. She drew
attention to the background information on dual representation provided by the ABA [included in
Attachment C (October 31, 2008)] and said the information does not provide a clear conclusion
about how the issue could be resolved.
With respect to the ABA material, Judge Sturdevant said the collective conclusion seems to
be "neutral". He noted that New Hampshire concluded an attorney can act as the fiduciary and legal
counsel but who constitutes the "client" is viewed differently than in North Dakota. He said
Pennsylvania arrived at what he would consider the correct conclusion, which is that the attorney
cannot serve in both capacities. He said the ABA formal opinion concludes that an attorney can
serve in both capacities but should be careful in doing so.
Chair Tabor suggested the Committee could proceed with consideration of a draft rule and
then submit the draft to the Real Property, Probate, and Trust Law Section. That, she said, may elicit
Bill Neumann said that if the Committee prepares a proposed rule and submits it to the Board
of Governors for comment, the Board will likely send the proposal to the Section for review.
Chair Tabor requested that the subcommittee (Judge Sturdevant, Jean Hannig, and Tim
Priebe) prepare a draft rule proposal for Committee review.
Notification of Trust Account Overdrafts- Comments
Chair Tabor said the various bank associations were contacted for comments concerning the
Committee's proposed rule. She drew attention to Attachment D (October 31, 2008), which includes
a letter from Marilyn Foss, General Counsel for the ND Bankers Association, which points out that
North Dakota law on the privacy of bank information prohibits the sharing of customer information
unless disclosure is permitted by one of several exceptions. The letter indicates that none of the
present exceptions would allow disclosure for purposes of trust account overdraft notification.
Chair Tabor said she would contact Marilyn Foss for assistance in preparing proposed
legislation to include an exception allowing disclosure for overdraft notification in the relevant
Rule 1.15, Rules of Professional Conduct - General Consideration
Chair Tabor recalled the Committee's earlier conclusion concerning the possible need to
generally review Rule 1.15, which governs safekeeping of client property and trust accounts. She
suggested the Committee continue with work on the dual representation issue and keep review of
Rule 1.15 on the agenda for discussion at a future meeting. Committee members agreed.
Chair Tabor noted that she, Bob Udland, and Tim Priebe will be completing their last terms
on the Committee at the end of the year. She thanked Bob and Tim for their commitment and
dedicated service to the Committee. She expressed appreciation to Committee members for their
diligence and exceptional work on what are often difficult issues.
Committee members agreed a meeting would be scheduled for the first week of December
to review issues discussed at this meeting. Committee members will be contacted concerning a
There being no further discussion the meeting was adjourned at 11:20 p.m.