|Members Present |
Alice Senechal, Chair
Judge Karen Braaten
Dr. Richard Olafson
|Members Absent |
Chair Senechal called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (September 5, 2002) - minutes of the June 11, 2002, meeting.
It was moved by Randy Lee, seconded by Dr. Olafson, and carried unanimously that the minutes be approved.
Lawyer Assistance Program - Possible Funding and Support
Dr. Olafson provided a summary of information he had gathered concerning possible sources of funding and support for a lawyer assistance program. He said he had contact with the Northern Plains Ethics Institute and the Group Decision Center at NDSU about possible methods of facilitating a meeting of mutually interested groups. He said the Group Decision Center suggested the possibility of a symposium discussing ethics issues and sharing resources for assistance programs. He noted that Blue Cross Blue Shield has funding for community health oriented programs which might be a source of start-up funding for an assistance program. He said another organization, the Dakota Medical Foundation, may also be a possible source of assistance, although it is limited with respect to the geographic areas in which it can provide services. However, he said the Foundation could prove useful in providing grant writers to help develop grants for funding. He said a similar issue arose in all of his conversations with various groups, and that concerned the potential adversarial relationship between the organizations that may be collectively involved in providing assistance services. Confidentiality, he said, was a particular concern. In summary, he said it appears there are possible sources of funding and mechanisms for pursuing a collaborative effort with other organizations. But, he said, further discussion is needed to more clearly define the particular components of a lawyer assistance program.
Mike Williams agreed there is a need for more concrete ideas regarding the contours of an assistance program. Otherwise, he said, discussions with Blue Cross Blue Shield, the Dakota Medical Foundation, and others may prove futile. Dr. Olafson suggested assembling a basic written outline of a desired assistance program which addresses such issues as confidentiality. That, he said, could serve as a starting point for discussions with other organizations.
Alice Senechal said she would prepare a draft proposal based on the information provided and the Committee's previous discussions. The objective would be to present the proposal to the SBAND Board of Governors for further consideration.
Lawyer Advertising Rule Amendments
Mike Williams briefly summarized the Committee's previous submission to the Supreme Court of amendments to the Rule 7 series regarding lawyer advertising. He said following a hearing the Supreme Court referred the proposed amendments back to the Committee for consideration in light of the new ABA Model Rules. He drew Committee members' attention to Attachment D (September 5, 2002), which sets out a comparison of the Committee's proposed amendments to the new Model Rules and presents additional amendments to the Committee's previous proposals in recognition of some of the new Model Rule changes. He said the additional amendments were developed by a subcommittee consisting of himself, David Hogue, and Alice Senechal. He said the new Model Rules regarding lawyer advertising are not significantly different from the Committee's earlier proposals and that is due, in large part, to the proposals having been based on an earlier ABA White Paper that became the basis of the new rules. He said the fundamental difference between the proposed amendments and North Dakota's current rule is that the current rule permits active solicitation by attorneys. The ABA rule, he said, is more restrictive and the Committee's earlier conclusion was that there should be more restrictions placed on lawyer solicitation in North Dakota.
In response to a question from Chair Senechal, Mike Williams described some of the concerns regarding lawyer solicitation practices that are occurring in the state. He said clients have on numerous occasions described solicitation activity such as phones calls and visits to hospital rooms, visits to accident scenes, or the hiring of experts to go to accident scenes who then hand out lawyer business cards. He said there have been reports of lawyers visiting elderly nursing home patients for the purposes of soliciting estate planning or changes to wills. He said the recent chemical spill in Minot resulted in a number of complaints regarding lawyer solicitation. He said one person affected by the accident contacted a pastor to report that lawyers had visited a victim who was in the hospital and unconscious. He said there were reports of persistent phone calls, of attorneys going door to door in the affected neighborhoods. He noted that the ABA Model Rule has consistently placed severe limitations on lawyer solicitation for the purpose of protecting those who may be vulnerable and to prevent lawyer overreaching. He said the Committee had previously concluded that North Dakota's rule should be modified to serve similar purposes.
Elaine Fremling observed that in the insurance field each letter seeking new business must be approved by a branch manager. She said the practice is highly regulated and the letters must conform to a preapproved format. She asked whether there was a limit concerning how soon after an accident a lawyer can contact a victim. Randy Lee said there are such provisions in other states, one of which has been upheld by the U.S. Supreme Court.
In response to a question from Dan Crothers concerning the format of the rule amendments presented in Attachment D (September 5, 2002), staff said the proposal consists of two sets of amendments to current North Dakota rules. The first set of amendments, he said, consist of basic underscoring for additions and overstrike for deletions and represent the Committee's earlier amendments to North Dakota's rules submitted to the Supreme Court. He said the second set of amendments represent the Subcommittee's recommended changes. He said language that is italicized and overstruck is language from the earlier proposal which the Subcommittee suggests be deleted. He said language that is double underscored is language the Subcommittee suggests be added to the earlier proposal.
The Committee then turned to a review of the Subcommittee's suggested changes to the Rule 7 series amendments previously submitted to the Supreme Court. Alice Senechal explained that the comparison tables preceding the rule amendments in Attachment D address the differences between the new Model Rules and the amendments previously submitted to the Supreme Court.
Alice Senechal then summarized the differences between the Committee's earlier amendments regarding Rule 7.1 and the new Model Rule 7.1. Those differences are reflected in the table set out in Attachment D. In response to a question from Tim Priebe, she said the reference to persons "professionally associated" with a lawyer, which is contained in the Committee's 7.1 proposal but not in the Model Rule, is not defined in the present rules. She said the primary difference between the Committee's pending Rule 7.1 proposal and the Model Rule is that the pending proposal would add paragraphs b and c, which further define what would constitute a "false and misleading"communication. She said the that language is not included in the Model Rule itself, but is included in the Model Rule comment. The Subcommittee, she said, concluded the language should be retained in the rule. She said the Subcommittee's only recommended additional changes to pending Rule 7.1 amendments are with respect to the Comment. She said the Subcommittee recommends deletion of language in the first paragraph concerning statements that may create unjustified expectations and the addition of Model Rule language that addresses that subject as well as comparison of lawyer services.
Dan Crothers noted the language regarding unjustified expectations which the Subcommittee recommends be deleted seemed to broadly discourage what could be termed comparative advertising. He said the new proposed language, with the inclusion of the last line concerning an "appropriate disclaimer" (e.g. something like "results may vary"), seems to encourage such advertising. The requirement of a disclaimer, he said, may be an insufficient protection for the public. He said that while he generally favors following Model Rule provisions for the sake of uniformity in application and interpretation, this proposed language from the Model Rule seems too inviting of questionable comparison advertising practices. Mike Williams explained that there were notable differences between the ABA White Paper, which formed the basis for the Committee's pending proposal, and what was ultimately adopted as this particular Model Rule, particularly with respect to communications that may create unjustified expectations. Those differences, he said, resulted in a Model Rule provision that is less restrictive than what the Committee had previously proposed.
Judge Braaten agreed with Dan Crother's concern about the new language. She said the recommended new paragraph (page 2, lines 28-34) appears satisfactory except for the last line regarding a disclaimer. Mike Williams agreed the last line may qualify the main paragraph too much. He suggested the last line could simply be deleted. Judge Bratten agreed.
Bob Udland asked what might be considered a form of comparison advertising. Elaine Fremling said such advertising in the banking industry occurs frequently and typically names different banks and different services and invites the public to compare. Dan Crothers said similar advertising by lawyers has not occurred often, but he would not want to encourage it by suggesting a disclaimer will modify a finding that an advertisement created unjustified expectations.
It was moved by Dan Crothers, seconded by Judge Braaten, and carried unanimously that the last line of the double underscored paragraph on page 2 of rule amendments be deleted.
Randy Lee drew attention to the Subcommittee's comparison in Attachment D (September 5, 2002) of the Rule 7.1 Comment and the Model Rule 7.1 Comment. Particularly, he noted the Subcommittee did not recommend including in the Comment a reference to Model Rule 8.4(e), a cross-reference which is included in the Model Rule Comment. He noted that North Dakota's equivalent to Model Rule 8.4(e) is contained in paragraph c of Rule 8.4. He wondered whether the Rule 7.1 Comment should be modified to include the cross-reference.
It was moved by Dan Crothers, seconded by Tim Priebe, and carried unanimously that the Comment be further modified in the manner described.
Alice Senechal then reviewed the Subcommittee's comparison of Rule 7.2 as previously recommended by the Committee and Model Rule 7.2. Mike Williams said the most notable difference, and the change recommended by the Subcommittee, is that the Model Rule does not contain the requirement that copies of advertisements and recordings be retained for two years. He said the Subcommittee recommends the retaining requirement (page 5, lines 8-13 of rule amendments) be deleted and that the related Comment language (page 6, lines 15-18) be deleted as well. He said the Subcommittee concluded that, in light of the Supreme Court's initial response to the advertising amendments, any additional burden on advertising would not be well received. He said the notice requirement contained in the Model Rule, and recommended by the Subcommittee (page 5, lines 14-15 of rule amendments), would be less burdensome.
Dan Crothers cautioned against too great a concern for the possible burden on lawyers while doing too little for the protection of the public. Randy Lee agreed and noted there may be a future issue that would counsel against deleting the retaining requirement. He explained that the U.S. Supreme Court had recently rendered an opinion, Republican Party of Minnesota v. White, which invalidated Minnesota judicial conduct restrictions concerning the ability of a judicial candidate to announce positions on political issues or controversies. He said the thought is that one way of responding to the impact of the decision is to strengthen the disqualification provisions regarding judges so that a party could seek the recusal of a judge who had taken a position on an issue in which the party may be involved. At some point, he said, it may be considered useful to require judicial candidates to retain campaign advertisements or statements so that a person could have that information in the event there is a need to consider whether the judge should be recused as a result of statements made during an election campaign. He said if the retaining requirement regarding lawyer advertising is deleted from Rule 7.2, it may make it more difficult to institute such a requirement with respect to judges.
Mike Williams said the Subcommittee's only concern was that the Supreme Court would find the retaining requirement too burdensome. Randy Lee said the Supreme Court may take a different view if an issue arises concerning whether a similar requirement should be adopted to address judicial campaign practices and their impact, post-White, on disqualification. He suggested it may be possible to keep both the retaining requirement and the notice requirement.
It was moved by Dan Crothers, seconded by Randy Lee, and carried unanimously that the retaining requirement (page 5, lines 8-13) in the rule amendments and the related Comment language (page 6, lines16-18) be restored.
Alice Senechal noted that the Subcommittee also recommends including new Comment language on page 6, lines 3-11, of the rule amendments which addresses television advertising and use of electronic media such as the Internet and electronic mail. Elaine Fremling noted the reference on page 6, line 4, to television being a medium for providing information to "persons of low and moderate income." She wondered whether such a reference is necessary. Randy Lee said some of the original rationale for permitting lawyer advertising was that it would provide an avenue for people who do not ordinarily deal with lawyers to obtain useful information about lawyer services. Elaine Fremling said the reference does not enhance the rule and is too general in its classification to be useful.
It was moved by Mike Williams, seconded by Dan Crothers, and carried unanimously that the reference be deleted.
With respect to Rule 7.3, Mike Williams said the new Model Rule and the Committee's previous proposed amendments were very similar. Consequently, he said, the Subcommittee recommends only minor changes to the previous amendments. He said the Committee had earlier concluded that Rule 7.3's restrictions on direct contact with prospective clients should apply to the lawyer and the lawyer's representative and the Subcommittee would recommend that approach be retained. He said the Subcommittee's recommends restructuring paragraphs (a) and (b) to more closely follow the Model Rule.
Dan Crothers noted the reference to "real-time electronic contact" and asked whether the term was defined in the rules. Mike Williams said there is no definition of the term, but it would include such things as Internet chat rooms, instant messengers, and other Internet mechanisms that allow people to communicate on-line. Elaine Fremling observed that the qualifier "real-time" may exclude other kinds of contact. Dan Crothers said the addition of "electronic"communication in paragraph (b) may address other forms of contact.
Mike Williams drew attention to language in the Comment (page 8, lines 12-13) concerning direct communication with someone who has invited the communication. He said there is a suggestion that this reference is inconsistent with paragraph (a) of the rule, which permits contact with a lawyer or someone who has a family, close personal, or prior professional relationship with the lawyer. Absent from the rule, he said, is any reference to a person who has invited the contact or communication. He said there may be a distinction in that if someone has invited the communication, then there is no solicitation that has occurred. Randy Lee said the distinction may be appropriate except that the activities listed on page 8, lines 10-14, appear to identify solicitation activities. Dan Crothers agreed the reference appears to be introducing a concept that is not otherwise addressed in the rule.
It was moved by Dan Crothers, seconded by Dr. Olafson, and carried unanimously that the reference on page 8, lines 10-14, to someone who has invited the communication be deleted.
Alice Senechal next drew Committee members' attention to Rule 7.4 and the Subcommittee's related recommendations. She summarized the differences between the Model Rule and Rule 7.4 as previously amended by the Committee and as set out in the comparison tables contained in Attachment D (September 5, 2002). She said the Subcommittee does not recommend any additional changes in the substantive rule, but does recommend including in the Comment a paragraph from the Model Rule concerning certifications and certifying organizations (page 9, lines 29-33, and page 10, lines 1-2, of the rule amendments).
Randy Lee noted that paragraph c of Rule 7.4 provides that a lawyer may communicate the fact that the lawyer has been certified as a specialist "by a named organization." He wondered whether the provision is sufficient to address the situation in which a lawyer may simply say that the lawyer has been certified by a "named organization", i.e., technical compliance with the rule, but does not actually name the organization.
It was moved by Judge Braaten, seconded by Randy Lee, and carried unanimously that paragraph c be modified to require that the communication clearly state the name of the certifying organization.
With respect to renumbered Rule 7.5 (pages 10-11 of the rule amendments), Alice Senechal said the Subcommittee recommends inclusion in paragraph (b) of a reference to "other professional designation" and the inclusion in the Comment of language regarding designation by a distinctive website address or comparable professional designation. Both provisions, she said, are included in Model Rule 7.5
Dan Crothers asked what "other professional designation" might mean. Randy Lee noted the reference is already included in existing paragraph (a).
Elaine Fremling observed that as a consumer she would consider "professional designation" as possibly including such things as "CPA" or "JD" or other kinds of professional licenses.
Dan Crothers wondered whether not including a reference to letterhead in paragraph (b) could mean that the same firm letterhead could not be used in more than one jurisdiction. Additionally, he suggested the Committee should obtain background information, if available, on what "professional designation" might have been intended to mean. Committee members agreed. Randy Lee said he would attempt to locate any information that might be available from ABA sources.
Alice Senechal noted that Model Rule 7.5 does not contain paragraph (e) addressing identification of legal assistants on letterhead, which is a provision in the current North Dakota rule. Additionally, she said the Model Rules contain Rule 7.6 , which prohibits political contributions to obtain government legal engagements or appointments by judges ("pay to play"). That rule, she said, is not included in the current rule amendment proposals.
Chair Senechal said the rule amendments would be revised to reflect the directed changes and presented at the next meeting.
Lawyer Assistance Program - Draft Rules
At the request of Chair Senechal, staff reviewed Attachment C (September 5, 2002) - a draft enabling rule for a lawyer assistance program (LAP), and draft amendments to Rule 8.3, Rules of Professional Conduct, regarding an exception from the duty to report information gained while participating in a lawyer assistance program. With respect to the LAP rule, staff said the draft simply provides authority for the state bar association to establish an assistance program, provides for confidentiality of the process, and provides immunity from civil liability for program officials. He said the draft is based in part on the Washington rule described at a previous Committee meeting and the immunity provisions are based in part on those found in Rule 6.5 of the Rules for Lawyer Discipline. He said minor changes were made to the Rule 8.3 amendments based on discussion at the Committee's last meeting.
It was moved by Dr. Olafson and seconded by Elaine Fremling that the draft enabling rule be accepted.
With respect to Section 2 of the draft rule, Elaine Fremling wondered whether a reference to "accident" should be included as a kind of occurrence that may influence a lawyer's performance. Additionally, she suggested the section could refer to "mental" as well as emotional problems.
Following discussion, Committee members agreed it would be preferable to simply remove the examples of particular kinds of problems included in Section 2. The modification to the original motion was accepted.
Christine Hogan observed that Ron Reichert, who was unable to attend the meeting, favors a broadly focused lawyer assistance program, one that extends to such problem areas as law office management.
Randy Lee recalled discussion regarding immunity at the previous meeting and whether the immunity provided for in Section 4 would extend to immunity for discipline regarding the conduct at issue in the assistance program. He said if the immunity in Section 4 as to lawyers were to extend to disciplinary proceedings related to their participation in the program, the additional language will be needed in Section 4. The question, he said, is whether such an extension of immunity is necessary.
Dan Crothers noted the immunity provision presently contained in Rule 6.5 of the Rules for Lawyer Discipline and wondered whether the immunity provision in the LAP rule should parallel that provision. Bob Udland said LAP members should have at least the same immunity as members of the inquiry committees and disciplinary board or people will not be willing to serve.
In response to a question from Judge Braaten, Randy Lee said the qualified immunity from disciplinary complaints included in Rule 6.5 generally would mean that a member would be immune unless malice could be shown.
It was moved by Randy Lee and seconded by Dan Crothers that Section 4 be modified to include qualified immunity from disciplinary complaints for lawyer participants in the assistance program. The modification to the original motion was accepted.
Judge Braaten noted the reference in Section 4 concerning a person's participation in an assistance program being "privileged". She said that reference in Rule 6.5 of the Rules of Lawyer Discipline pertains to communications and is unnecessary in Section 4, which does not address communications.
Tim Priebe drew attention to that part of Section 3 of the draft rule which provides confidentiality for communications made to or information received by a "member" of an assistance program. He wondered whether, rather than "member", the section should refer to committee members, board members, etc., as identified in Section 4. Additionally, he suggested the reference to "party" in the last line might more accurately refer to "lawyer" as the lawyer participating in the assistance program would be the one to consent to disclosure of otherwise confidential information. Dan Crothers said the language poses an interesting issue concerning whether there ought to be some form of mutual confidentiality for lawyers participating in the program, i.e., confidentiality not only with respect to disclosures by the lawyer requiring assistance but also with respect to disclosures by a lawyer who may be assisting that lawyer. That, he said, may be problematic in most instances.
It was moved by Tim Priebe and seconded by Randy Lee that the reference to "member" be modified to include participant references similar to those in Section 4. The modification to the original motion was accepted.
Bob Udland suggested there should be an exception to confidentiality for threats of imminent death or serious bodily injury, as currently provided in Rule 1.6(a) of the Rules of Professional Conduct. The suggested modification to the original motion was accepted.
Following discussion, the motion to accept the draft enabling rule, with the subsequently agreed-to modifications, carried unanimously.
Discussion then turned to the draft amendments to Rule 8.3 of the Rules of Professional Conduct included in Attachment C (September 5, 2002). Dan Crothers drew attention to the added language that would not require disclosure of information gained by a lawyer or judge while "participating" in a lawyer assistance program. He wondered whether the language is clear enough with respect to the role in which a lawyer or judge may be participating in the program. He said the current language may be too broad. He suggested the language be modified to define participation as that of a committee member, board member, peer counselor, etc., similar to that provided in Section 4 of the draft LAP rule. Committee members agreed.
Chair Senechal said the revised draft LAP rule and revised Rule 8.3 amendments would be presented for review at the Committee's next meeting.
After discussion, Committee members agreed the Committee's November meeting should be held in Grand Forks.
There being no further business, the meeting was adjourned at 2:25 p.m.