|Members Present||Members Absent|
|Judge Ralph Erickson, Chair||Fran Gronberg|
|Dan Crothers||Dave Hogue|
|Marilyn Foss||Dr. Richard Olafson|
|Ben Hahn||Ron Reichert|
|Randy Lee||Murray Sagsveen|
|Pat Maddock||Connie Sprynczynatyk|
Paul Jacobson, Disciplinary Counsel
Chair Erickson called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (September 7, 2000) - Minutes of the June 13, 2000, meeting. Alice Senechal noted that advertising in misspelled in the first paragraph. The minutes, with the noted correction, were approved.
Lawyer Advertising Proposal
Chair Erickson drew attention to Attachment C (September 7, 2000) - the revised proposal regarding lawyer advertising, which incorporates in italics revisions resulting from discussion at the June 13 meeting.
Dan Crothers noted that the proposal represents a substantial departure from the current, more liberal approach set out in the Rule of Professional Conduct.
Staff drew attention to proposed Rule 7.3 (b)(3) and the added language regarding disallowing solicitation if it imposes an economic cost on the prospective client to respond to the solicitation. He noted that language in the Comment to the rule (page 5, lines 21-26) indicates that the cost mentioned in paragraph (b)(3) encompasses more than costs associated with simply responding to the solicitation. In that respect, he said, the Comment language is somewhat at odds with the language in the rule. Judge Erickson observed that the June 13 minutes indicate the original language of the rule on this subject, which simply referred to "any" cost associated with receipt of the solicitation, was regarded as perhaps being too broad. The language now in the draft rule, he said, was directed at more specifically identifying the costs in question. The Comment language, he said, continues to reflect the broader scope of the original language. Randy Lee said with the current revision more clearly identifying the kinds of costs at issue, the Comment language is likely no longer necessary.
It was moved by Dan Crothers, seconded by Randy Lee, and carried unanimously that the Comment language noted by staff be deleted.
It was moved by Alice Senechal, seconded by Dan Crothers, and carried unanimously that the draft proposal be approved for submission to the Supreme Court for consideration.
Staff noted that the proposal would be reformatted to represent amendments and additions to the current Rules of Professional Conduct. Sandi Tabor said a general committee report encompassing all approved Committee proposals would be prepared for submission to the Court.
Client Files - Access and Copying
Randy Lee reviewed Attachment D (September 7, 2000) - a revised draft proposal for a new Rule 1.19 regarding access to and copying of client files. He said the draft is the latest in a series of proposals the Committee has reviewed with respect to this subject.
Alice Senechal noted paragraph (g) and the ostensible purpose of addressing the lawyer's retention of a copy over a client's objection. However, she questioned the provision which disallows charging the client for making those copies. If, she said, the lawyer did have the desire to retain copies, then the file as it existed could be given to the client and there would be no issue with respect to charging for copies. That, she said, raises a question concerning paragraph (d), which discusses when a client can, in fact, be charged for the cost of making copies. Additionally, she noted that paragraph (d) provides that a client may be charged the cost of copying only if the client has so agreed, in writing, before termination of the lawyer's services. She wondered whether this provision would be sufficient to permit charging the client for copying after termination, or if it would be necessary to have a specific agreement addressing post-termination copy charges.
Paul Jacobson recalled that the review of this issue began with an earlier analysis in response to an inquiry committee request which addressed issues concerning the return of client files after legal representation is concluded. He noted his earlier recommendation for an addition to the Rule 1.16 Comment to identify the kinds of client papers that are to be returned. The Committee's subsequent proposals, he said, extended beyond this immediate issue to questions concerning lawyer retaining liens. He said the draft set out in Attachment D addresses the early questions in defining what client papers and files are and he would, therefore, recommend approval of the proposal.
With respect to disallowing by rule the asserting of a lien, Dan Crothers wondered whether there is an issue concerning the adoption of a rule that is directly contrary to a statute. Judge Erickson observed that the Supreme Court is vested with the constitutional obligation to regulate lawyer conduct and, therefore, could likely prohibit, by rule, lawyers from asserting a lien that is otherwise provided for by statute. In response to a question from Dan Crothers concerning a possible property right, Judge Erickson agreed the property interest implicated in the right to assert a lien may be a possible issue. The tension, he said, is between the potential property right and the authority of the Court, pursuant to its constitutional responsibility concerning lawyer regulation, to disallow the assertion of liens by lawyers. Traditionally, he said, courts seem to have had little trouble in regarding the regulation of lawyer conduct as a public interest superior to possible lawyer property rights. Nevertheless, he said, there would be a tension between the rule and the statute if the statute were not repealed. In that light, he said the better course would be to seek repeal of the lien statute if the rule is adopted, which was the Committee's earlier recommendation to the Board of Governors.
On the broader issue of whether the rule is appropriate, Dan Crothers reiterated his earlier concerns that the rule is an overreaction and is, therefore, a questionable proposal. Marilyn Foss agreed. Dan Crothers additionally cautioned that the attempt to define files and papers to which the client is entitled runs the inevitable risk of not adequately identifying all property to which the client is entitled. He said clients are better protected under current provisions, notwithstanding the lack of particular detail.
Alice Senechal agreed the proposal does not answer all questions, but does address several issues that have arisen and, therefore, she would support the proposal.
Mike Williams noted the tension between paragraphs (d) and (g) with respect to the issue of charging for copies and paragraph (c), which prohibits the lawyer from conditioning the return of papers and files upon the payment of copying costs. Judge Erickson suggested the tension between paragraphs (d) and (g) arises only if considered in isolation from the rest of the rule. He said paragraph (d) seems clear in addressing those situations in which copies are made for the benefit of the client. However, he said, if the lawyer's purpose in copying files is self-protection against future malpractice claims, for example, then the lawyer should not be able to charge the client.
Randy Lee observed that the question is one of specificity in the rule, so that enforcement is easier and cleaner in most cases and answers are provided in most cases, as opposed to generality in approach, which may provide a starting point for lawyers in determining appropriate conduct but may not provide clear guidance for ethics advisory groups or disciplinary enforcement. On the issue of failing to adequately identify all papers and files to which the client may be entitled, he noted paragraph (e)(3), which essentially provides that if something is not specifically identified as client papers, files, etc., under paragraph (b), then it cannot be considered as being client papers, files, or property.
Randy Lee observed that if the proposal is not approved, an issue will remain concerning whether the retaining lien statute should be repealed. Committee members agreed that the earlier decision to seek the repeal should be pursued. Randy Lee said that if the repeal occurs, then some minor rule amendments would be necessary to conform to that action.
In response to a question from Sandi Tabor, Committee members agreed that most lawyers routinely provide copies of documents to clients. She wondered whether, in light of that practice, a lawyer should be required to provide copies again if the client terminates representation. There is the question, she said, of whether the lawyer should incur more costs in providing copies of documents the client has previously received. Dan Crothers observed that many lawyers do not charge clients for copies of every document sent to the client. Marilyn Foss agreed and said sometimes a client will be charged for providing a copy of a lengthy document.
Randy Lee drew attention to the last line of the first paragraph of the Comment regarding not asserting liens. He said the language likely should be modified to note the specific kinds of retaining liens that are affected and to delete any implication as to effect upon charging liens.
Judge Erickson wondered whether there are any common law possessory liens that would not be retaining liens and that a lawyer could assert. Randy Lee noted that all possessory liens are considered retaining liens. He said he is uncertain whether, in the absence of the retaining lien statute, there may still be common law possessory liens of some kind.
With respect to the Comment and paragraph (a) language concerning asserting a lien "against a client", Dan Crothers wondered whether it is accurate to speak in terms of a lien against the client.
He said what is at issue is essentially a possessory lien with respect to a document, for example, and referring to a lien "against a client" may give rise to some notion of a personal lien. However, he said, deleting the reference may imply that some form of possessory lien is being foreclosed to lawyers.
It was moved by Dan Crothers, seconded by Alice Senechal, and carried unanimously that the Comment language be modified to read: "This rule also makes it improper for a lawyer to assert against a client a retaining lien of any kind (common law, statutory, or contractual)."
It was moved by Dan Crothers, seconded by Randy Lee, and carried unanimously that paragraph (a) be modified to insert "against a client" after "assert".
With respect to Alice Senechal's earlier concern regarding paragraph (d) and whether a separate agreement would be needed with respect to copying charges after termination, Randy Lee said while he would not support the change, one approach may be to modify the latter part of the first sentence to refer to reimbursing "the lawyer for post-termination copying and retrieval expense." Alice Senechal observed that, in light of the general discussion, such a modification likely is not necessary.
With respect to the relationship of paragraphs (d) and (g), Randy Lee said he is uncertain of the source of apparent confusion or perceived overlap of the two provisions. He said paragraph (g) addresses copying for the lawyer's purposes, while paragraph (d) focuses on copying for the client. Marilyn Foss said the distinction is a subtle one and perhaps the relationship of the two paragraphs could be clarified in the Comment.
It was moved by Marilyn Foss, seconded by Alice Senechal, and carried unanimously that language be inserted in the Comment clarifying that paragraph (d) pertains to copies made for or at the request of the client and paragraph (g) pertains to copies made and retained by the lawyer.
It was moved by Randy Lee, seconded by Ben Hahn, and carried that the proposed rule, as modified, be approved. (Dan Crothers and Marilyn Foss vote "no").
Randy Lee noted that conforming amendments to Rules 1.6 and 1.16 would be necessary to complete the proposal.
Lawyer Diversion/Consumer Assistance Program
Sandi Tabor reviewed Attachment E (September 7, 2000) - background information regarding lawyer diversion and consumer assistance programs. She said initial consideration of information in this area centered on lawyer diversion programs, but it appears that a true diversion program may be more extensive than perhaps is necessary or can be adequately handled in North Dakota. For example, she said, many diversion programs have sophisticated substance abuse programs or law office economics and management programs coupled with on-site analysis. In light of the complexity of diversion programs, she said, information was assembled with respect to various consumer assistance programs (CAP) that have been instituted by bar associations in other jurisdictions. The primary focus of these programs, she said, is addressing minor forms of misconduct that would otherwise be summarily dismissed if brought to the disciplinary system. For example, she said some programs provide telephone hotlines for attorneys and clients as a mechanism for addressing or raising low-level issues. She noted that the Board of Governors is interested in committing resources to an assistance program and the question for the Committee is whether there are professional conduct or lawyer discipline issues that should be addressed. Additionally, she said there is a more basic question concerning whether the bar association should institute such a program on its own accord, or whether the program should be established as part of the lawyer discipline process. She said the rule amendments included in Attachment E may not be necessary, but the possibility of such an approach is noted for discussion purposes.
Marilyn Foss wondered whether there is an element of compulsion in lawyers participating in such a program. Dan Crothers observed that the compulsion takes the form of the matter being referred to an inquiry committee if it cannot be resolved through the assistance program. Marilyn Foss said if the conduct does not constitute a disciplinary violation, then it is questionable why the matter should be retained at the inquiry committee level. If the conduct does not constitute a violation of the rules, she said, the matter should be dismissed as the rules provide.
Dan Crothers observed that the basic premise of summary dismissal is that the conduct complained of, even if true, does not rise to the level of a violation of the rules. Those kinds of complaints, he said, are not a significant problem. The more compelling issue, he said, concerns those complaints that are dismissed because there is not enough evidence amassed to go forward and impose discipline.
In response to a question from Paul Jacobson, Sandi Tabor said the assistance program may address issues relating to an ongoing lawyer-client relationship or issues that arise after the fact.
With respect to whether rule amendments are necessary, Dan Crothers said the program, to be meaningful, should be formalized so it is given sufficient effect and aids in reducing the caseload of inquiry committees. Additionally, he wondered who would determine whether a complaint is more appropriate for the assistance program.
Randy Lee said the difficulties associated with what kind of conduct would qualify a lawyer for participation in the assistance program indicates that it is likely better to simply develop a true diversion program. In such a program, he said, discretion could be vested with disciplinary counsel or the inquiry committee, for example, to review the conduct at issue, determine whether diversion would be appropriate, and then inform the complainant of the availability of the diversion program as an alternative to the normal disciplinary process.
Dan Crothers suggested the Committee should review the possibility of establishing a true diversion program and the mechanisms necessary to implement such a program. In response to a question from Randy Lee, Sandi Tabor said the bar association likely could establish an assistance program on its own. However, she said, if the program could be incorporated within the disciplinary process, it may be an aid to implementation.
It was moved by Dan Crothers, seconded by Randy Lee, and carried unanimously that the Committee focus on development of a true diversion program to be included as a component within the disciplinary rules.
Multidisciplinary Practice - Initiatives in Other Jurisdictions
Sandi Tabor reviewed Attachment F (September 7, 2000) - information concerning multidisciplinary practice (MDP) initiatives in Minnesota and Colorado. She noted that the Board of Governors has discussed MDP issues in the past and there is concern that if the Minnesota proposal is adopted, there may be implications for law practices in North Dakota. The Colorado recommendations, she said, have been submitted to the Supreme Court there.
Chair Erickson said that, consistent with the Committee's earlier discussion of this issue, the Committee will continue to monitor developments in this area.
Informal Complaint Procedure
Staff reviewed Attachment G (September 7, 2000) - a proposed informal complaint procedure regarding bias or other forms of misconduct which was submitted to the Supreme Court by the Gender Fairness Implementation Committee. The procedure, he said, would apply to conduct by judicial officers, judicial system employees, and lawyers and is intended to provide a process for informally and confidentially addressing complaints of inappropriate conduct. He said the procedure would be entirely separate from and not influenced by the disciplinary process. However, he said, a person would continue to have the option of initiating a disciplinary proceeding instead of participating in the informal procedure.
Judge Erickson noted the provision in Section 3 which would shield lawyers or judges participating in the informal procedure from the obligation to report misconduct imposed by the Rules of Professional Conduct and the Code of Judicial Conduct. He questioned the exemption in light of the importance of reporting misconduct that calls into question a lawyer's fitness, for example, to practice law. Staff said the Implementation Committee concluded that the confidentiality provided in the proposal ought to be of primary importance to ensure that a complainant's confidence is not betrayed and to ensure that a person who participates is secure that any information disclosed will not become known in any subsequent proceeding. For that reason, he said, the Implementation Committee included the exemption from the duty to report misconduct.
Randy Lee said there is little to suggest the Committee should regard the informal procedure as being any different from the consumer assistance program just discussed. He said the Committee concluded that program is better situated as a component within the formal disciplinary process. The proposed informal procedure, he said, likely will not solve the problems associated with errant conduct and could make them worse. Additionally, he said, by listing the kinds of misconduct that can be handled informally, the procedure in essence demotes that class of complaints.
Dan Crothers observed that a separate procedure should not be established to address these kinds of conduct. He said there should be a single, unified program for addressing complaints of minor misconduct and the informal procedure, to the extent that it addresses lawyer conduct, is unnecessarily duplicative of the lawyer discipline process.
Sandi Tabor noted that the informal procedure does not appear to address instances in which there are multiple complaints against a single judge or lawyer regarding potentially serious misconduct. Judge Erickson said there is the additional issue in the employment context of whether the conduct is contributing to a hostile work environment, which the procedure, due to its confidential nature, would be unable to address.
Pat Maddock said he is concerned that there is no consequence in the proposal for complainants who file unfounded complaints.
Marilyn Foss suggested the Committee inform the Supreme Court that the Committee is currently reviewing a proposal to establish a lawyer diversion/consumer assistance program to address minor misconduct and that the bar association intends to establish such a program in the near future.
Following further discussion, Committee members agreed the Chair should submit a comment to the Supreme Court outlining the Committee's concerns. Additionally, it was agreed the comment should indicate that if the proposal is adopted, its application should be limited to judicial officers and judicial system employees.
Rule 8.4, Rules of Professional Conduct - Amendments Adopted
Chair Erickson drew attention to Attachment H (September 7, 2000) - the Supreme Court's Order of Adoption concerning amendments to Rule 8.4 of the Rules of Professional Conduct. It was noted that the Supreme Court had modified the proposed Rule 8.4 amendments submitted to it by the Committee.
Randy Lee noted that the rule now defines professional misconduct as conduct "prejudicial to the administration of justice", which includes the knowing manifestation of bias or prejudice. It is now conceivable, he said, that there may be an instance of biased conduct that would not be subject to discipline because it is not ultimately considered as being prejudicial to the administration of justice. He recalled that the Committee rejected that concept early in its consideration of amendments to Rule 8.4.
Staff noted that the rule's proscriptions now also apply to manifestations of bias "in the course of representing a client", which is broader in scope than the Committee's recommended amendments.
There being no further business, the meeting was adjourned at 1:55 p.m.