Members Present
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Members Absent
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Staff
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Chair Williams called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (September 16, 2004) - Minutes of the August 6, 2004, meeting.
It was moved by Alice Senechal, seconded by Randy Lee, and carried unanimously that the minutes be approved.
Rule Reviews
Rule 1.8 - Conflict of Interest: Prohibited Transactions - "Clean-up"
Sandi Tabor drew attention to Attachment C (September 16, 2004) - an email detailing additional, minor changes to revised Rule 1.8 discovered by the group reviewing the Rule 1 Series comments. She said it appears that including a writing requirement in paragraph (f)(3) and paragraph (g) was overlooked. She said including such a requirement, i.e., "client consents in writing", would be consistent with the Committee's earlier revisions to paragraphs (a) and (b).
It was moved by Jean Hannig, seconded by Sandi Tabor, and carried unanimously that paragraphs (f)(3) and (g) be modified to include a requirement for client consent in writing.
With respect to paragraph (c)(3), Alice Senechal explained the need to modify the punctuation to clarify the meaning of the provision.
It was moved by Tim Priebe, seconded by Sandi Tabor, and carried unanimously that paragraph (c)(3) be modified as indicated in Attachment C.
With respect to paragraph (h), Alice Senechal suggested that the sequence of subparagraphs (1) and (2) be reversed, which would then track the model rule sequence.
It was moved by Elaine Fremling, seconded by Sandi Tabor, and carried unanimously that subparagraphs (1) and (2) of paragraph (h) be reversed in order.
Sandi Tabor noted the suggestion in Attachment C that paragraph (4) in the comment to Rule 1.10, which deals with nonlawyers in a firm, would be better placed in the comment to Rule 5.3. Committee members agreed and the revision will be considered when the Rule 5 Series comments are reviewed.
New Rule 4.5 - Review of Revised Draft
Committee members then reviewed Attachment D (September 16, 2004) - a revised draft of new Rule 4.5 governing inadvertent receipt of documents. Randy Lee said the revised draft restructures the proposal reviewed at the August 6 meeting. He said the remaining issue is whether anything should be included to address use of information inadvertently received by a lawyer.
Mike Williams noted that paragraph (d) would relieve the attorney of any liability under the rules if the attorney does not inform the client about the received information. Randy Lee agreed that is an appropriate approach but wondered if paragraph (d), which implicitly addresses the attorney's receipt and return of information and nondisclosure to the client, still leaves open the question concerning actual use of the information. On the other hand, he said including any reference to use in paragraph (d) would then invite more issues regarding use. Sandi Tabor said the issue of use will likely remain an open question, but the rule will provide guidance to attorneys regarding what is to be done when information is mistakenly received. Randy Lee observed that the rule could be read by a court or disciplinary body as identifying exclusively what can be done with the information, i.e., notify the sender and comply with the request to return, which would disallow any other "use". Or, he said, the provision could be interpreted as not addressing use at all, thereby leaving the issue entirely open. Mike Williams suggested addressing use in the comment in a manner similar to the ABA Comment, which outlines the general approaches to use of the information. Alice Senechal observed that what is done with the information likely depends on the nature of the case and the issues involved. By notifying and returning the information, she said, there is greater potential for placing those involved on equal footing to submit the matter to a court for resolution.
With respect to the rule's provisions, Alice Senechal asked whether the reference to "retrievable from word processor product" in the definition of "document" is clearly understandable. Randy Lee said the language is intended to mean the electronic image representing a document. Alice Senechal suggested modifying the language on lines 8-9 to read "retrievable from an electronic transmission." Elaine Fremling said the remaining language in line 9 could be deleted as surplus language. Committee members agreed with the suggested changes.
Elaine Fremling asked whether the definition of "document" in the rule would include information received by mail. Mike Williams observed that the "includes" construction in the definition indicates the definitional listing is not exclusive. Alice Senechal drew attention to Attachment F, the terminology section to be reviewed, and noted the definition of "writing" would encompass hard copy as well as electronic information. Committee members agreed "writings" should be included in the definition of "document" in proposed Rule 4.5.
With respect to paragraph (c), line 11, Elaine Fremling suggested "or" could be substituted for ",as well as when the sending ...". Committee members agreed.
In response to a question from Chair Williams regarding a title for the proposed rule, Bob Udland suggested "Inadvertent Transmission" as a tentative title. Committee members agreed.
It was moved by Jean Hannig, seconded by Randy Lee, and carried unanimously that revised Rule 4.5, with the agreed-to changes, be adopted and that a comment be drafted when the Rule 4 Series comments are reviewed.
With respect to defined terms generally, Randy Lee asked whether such terms would be followed by an * indicating the term is defined in the terminology section. Such an approach, he said, is followed in the Code of Judicial Conduct. Committee members agreed a similar approach would be useful. Randy Lee observed that doing so would require reviewing all affected words in the rules to isolate those used as defined terms of art.
Rule 6.1 - Pro Bono Publico Service
Randy Lee agreed to review Model Rule and North Dakota Rule 6.1 for the next meeting.
Preamble
Tim Priebe then distributed and reviewed his report, attached as Appendix A, concerning the Model Rule and North Dakota Rule Preamble. He said his report, beginning on page 7, indicates the primary differences between the model rule Preamble and North Dakota's Preamble. The main difference, he said, is inclusion of the 3rd paragraph regarding third-party neutrals. The added language, he said, is consistent with the Committee's earlier changes to other rules. The remaining changes, he said, are not substantial departures from the current Preamble. Alice Senechal suggested references to "the Rules of Professional Conduct" be changed to "these Rules", which would be consistent with previous Committee actions. Committee members agreed.
It was moved by Tim Priebe, seconded by Jean Hannig, and carried unanimously that the Model Rule changes to the Preamble, with the noted substitution of "these Rules" as appropriate, be adopted.
Scope
Mike Williams reviewed Attachment E (September 16, 2004) - his report concerning the Scope sections of the Model and North Dakota Rules. After discussing the changes reflected in pages 1 and 2 of the report, he recommended the changes be adopted.
With respect to the underscored paragraph on page 3 (top) of the report, Mike Williams said the language appears to have been in the model rule before the more recent E2K amendments. The language, he said, particularly addresses the role and authority of government attorneys. Sandi Tabor suggested the noted language could be more usefully included in the comment to Rule 1.7, which would aid in providing guidance regarding conflicts to government attorneys. Committee members agreed the language should be deleted from the Scope section and considered for placement in Rule 1.7.
With respect to page 3, 2nd paragraph, of the report Mike Williams said the first underscored sentence adds language addressing the interplay between malpractice actions and violations of the rules. The purpose of the second sentence, he said, is not clear and he recommended that it not be included in any adopted changes. He recommended that the remaining deletion and additions in the paragraph be adopted because it is consistent with related caselaw. With respect to the change on page 4, he said the language, which is contained in North Dakota's Scope section, was deleted from the Scope section of the model rule. He recommended deletion of the language from North Dakota's provision.
Tim Priebe noted the references to the "Rules of Professional Conduct" and suggested substituting "these Rules", which would be consistent with previous Committee changes. Committee members agreed.
It was moved by Alice Senechal, seconded by Sandi Tabor, and carried unanimously that the recommended changes, with the additional substitution of "these Rules" where appropriate, be adopted.
Terminology
Alice Senechal then reviewed Attachment F (September 16, 2004) - her report concerning terminology sections in the North Dakota and Model Rules. She explained that the Model Rules include terminology in a new Rule 1.0. She said the initial question is whether to follow that approach.
It was moved by Alice Senechal, seconded by Sandi Tabor, and carried unanimously that a new Rule 1.0 be adopted to include terminology.
Alice Senechal explained that definitions under the category of "reasonably, believing, and knowing" are the same as under the current rule. With respect to definitions concerning belief and knowledge, she said the model rule differs in providing that belief and knowledge may be inferred from the circumstances, while North Dakota's definition provides they may be inferred from a person's conduct in the circumstances.
It was moved by Alice Senechal, seconded by Sandi Tabor, and carried unanimously that the current definitions of terms addressed in the "reasonably, believing, and knowing" section of the report be incorporated in new Rule 1.0.
It was moved by Alice Senechal, seconded by Jean Hannig, and carried unanimously that the model rule definition of "firm" or "law firm" be included in new Rule 1.0.
It was moved by Alice Senechal, seconded by Jean Hannig, and carried unanimously that the model rule definition of "partner" be included in new Rule 1.0.
It was moved by Alice Senechal, seconded by Tim Priebe, and carried unanimously that the current definition of "consult" and "consultation" be included in new Rule 1.0.
With respect to the model rule definition of "confirmed in writing", Alice Senechal noted the Committee has discussed the concept of "consent" in writing and asked whether a definition of "confirmed in writing" should be considered. Mike Williams asked whether it would be useful to include a definition regarding consent in writing. Alice Senechal said a definition would be helpful in describing that "consent" does not necessarily mean that the client must sign a document indicating consent. For example, she said, client consent in writing could include the lawyer promptly transmitting to the client confirmation of an oral consent. Sandi Tabor agreed it is important to preserve the concept of after-the-fact confirmation.
Jean Hannig suggested using the model rule definition of "confirmed" in writing for the definition of "consent" in writing. Alice Senechal said the second sentence of the model rule definition likely would not be necessary because it implies there may be some circumstances in which it would not be feasible for the lawyer to transmit a confirmation of consent.
It was moved by Jean Hannig, seconded by Randy Lee, and carried unanimously that a definition of "consent in writing", as described, be included in new Rule 1.0.
With respect to the definition of "fraud" or "fraudulent", Alice Senechal reviewed the E2K amendments, which would represent changes to North Dakota's definition as the current definition was the same as the previous model rule. She said the model rule definition refers to conduct that is fraudulent under "the substantive or procedural" law of the applicable jurisdiction. She asked whether "applicable jurisdiction" or "this jurisdiction" should be used, or whether there should simply be a determination of what constitutes fraud under North Dakota law.
Sandi Tabor noted that fraud is addressed in North Dakota rules only by reference to statutory provisions. She said if the model rule changes to Rule 8.4 regarding misconduct are adopted, then there would be an explicit reference within the rule to fraud.
It was moved by Alice Senechal, seconded by Elaine Fremling, and carried unanimously that the current definition of "fraud" or "fraudulent" be included in new Rule 1.0.
With respect to the definition of "screened", Alice Senechal explained that if proposed amendments to Rule 1.11 are adopted, reference to screening will be included. It would be helpful, she said, to include the model rule definition.
It was moved by Alice Senechal and seconded by Sandi Tabor that the model rule definition of "screened" be included in new Rule 1.0.
Sandi Tabor asked whether there is language in the rules that would define a state's attorney's office, for example, as a "firm". She said the definition of "screened" refers to "within a firm" and in Rule 1.11, for example, part of the screening requirement does not apply to government agencies. Alice Senechal noted that the definition of "firm" under new Rule 1.0 would include governmental entities.
With respect to phrasing, Elaine Fremling suggested the reference in the definition to "procedures within a firm" could be more clearly stated as "a firm's procedures". The recommendation was accepted as a friendly amendment.
After further discussion, the motion, as amended, carried unanimously.
With respect to the definition of "firm", Alice Senechal asked whether the definition should, in fact, include governmental entities. Sandi Tabor wondered whether doing so would create any problems with respect to Rule 1.10. Tim Priebe noted that the ABA comment to Rule 1.0 indicates that governmental entities are included. Sandi Tabor observed that the Attorney General's office considers itself to be a "law firm" for purposes of applying the rules.
In response to a question from Chair Williams, there was general agreement that no additional changes to the definition of "firm" were necessary.
With respect to the definition of "substantial" as reviewed in Attachment F, it was moved by Alice Senechal, seconded by Bob Udland, and carried unanimously that the model rule definition be included in new Rule 1.0.
It was moved by Alice Senchal and seconded by Jean Hannig that the current definition of "legal assistant" be included in new Rule 1.0 without change.
Mike Williams observed that "legal assistant" and "paralegal" have separate meanings and the credentials for each are quite different. He said the two terms should not be used interchangeably as they are in the current rule.
Sandi Tabor recalled that the definition was part of an extensive discussion and subsequent rules regarding legal assistants and she would not support a change unless all relevant parties were brought in to discuss any changes. Alice Senechal agreed and said the issue is larger than a simple matter of definitions, but it may be a future issue for review.
The motion carried unanimously.
With respect to the definition of "matter" set out in Attachment F, Alice Senechal explained that the term is not defined in the current North Dakota Terms section and is not included in Model Rule 1.0. However, she said, the term is defined in the proposed comment to Rule 1.7. She recommended the definition be moved from the Rule 1.7 Comment to new Rule 1.0.
It was moved by Alice Senechal, seconded by Sandi Tabor, and carried unanimously that the definition of "matter" be included in new Rule 1.0.
With respect to the definition of "tribunal", it was moved by Alice Senechal, seconded by Randy Lee, and carried unanimously that the model rule definition be included in new Rule 1.0.
With respect to the definition of "writing", it was moved by Alice Senechal, seconded by Sandi Tabor, and carried unanimously that the definition be included in new Rule 1.0.
Model Rule 7.6 - Political Contributions .....
Committee members then reviewed Attachment G (September 16, 2004) - David Hogue's report concerning Model Rule 7.6, which addresses political contributions to obtain government legal engagements or appointments by judges. Mike Williams noted that the recommendation is that Model Rule 7.6 not be adopted.
It was moved by Randy Lee, seconded by Sandi Tabor, and carried unanimously that the model rule not be adopted.
Rule 8.1 - Bar Admission and Disciplinary Matters
Jean Hannig then reviewed Attachment H (September 16, 2004) - her report regarding Model Rule and North Dakota Rule 8.1. She explained that the model rule and current rule are the same and she recommended no change to the current rule.
It was moved by Jean Hannig, seconded by Sandi Tabor, and carried unanimously that no changes be made to Rule 8.1.
Rule 8.2 - Judicial and Legal Officers
With respect to Rule 8.2, Sandi Tabor noted that no substantial changes were made to the model rule and the current rule differs only slightly in structure.
It was moved by Sandi Tabor, seconded by Jean Hannig, and carried unanimously that no changes by made to Rule 8.2.
Rule 8.3 - Reporting Professional Misconduct
Bob Udland reviewed Attachment I (September 16, 2004)- his report regarding Model Rule and North Dakota Rule 8.3. He noted that paragraph (b) of the model rule requires an attorney to "inform" the appropriate authority if the attorney knows a judge has violated applicable rules. He said North Dakota's rule provides that the attorney "shall initiate proceedings" in such situations. He said there likely is little difference in effect or meaning between the two provisions. Committee members agreed the current language should be retained. Bob Udland reviewed the model rule reference to "who knows" in paragraphs (a) and (b), as opposed to the current reference to "having knowledge". He recommended the model rule language.
It was moved by Bob Udland, seconded by Alice Senechal, and carried unanimously that "who knows" be substituted for "having knowledge" in paragraphs (a) and (b) of the current rule.
Rule 8.4 - Misconduct
Sandi Tabor distributed and reviewed her report, attached as Appendix B, regarding Model Rule and North Dakota Rule 8.4. She noted that the ABA rule includes manifestation of bias in the comment, whereas it is included as a form of misconduct in paragraph (d) of the current rule. She recommended that the current provision be retained. She explained that the ABA rule contains specific language regarding criminal acts and fraudulent, dishonest, or deceitful conduct, while the current rule lists specific statutes in the comment. There is, she said, only passing reference in the current rule regarding deceit and no comment regarding criminal activity. She said if the purpose is to aid in defining professional misconduct, then the two paragraphs from the model rule [paragraphs (f) and (g)] should be included in the current rule. She then explained the change to ABA Model Rule 7.1 regarding false and misleading communications, and the related change to Model Rule 8.4(e). To achieve a similar result, she said language could be added to paragraph (c) of the current rule to identify, as misconduct, stating or implying the ability to achieve results by means that would violate the rules.
Tim Priebe suggested the paragraphs as modified in the report could be reordered to more closely follow the mode rule sequence.
After discussion, it was moved by Sandi Tabor, seconded by Jean Hannig, and carried unanimously that North Dakota Rule 8.4 be modified to include the recommended changes, that "these Rules" be substituted for "the Rules of Professional Conduct" in paragraph (c), and that the sequence be reordered as follows: paragraph (c) to become paragraph (d) and paragraphs (f) and (g) to become paragraphs (b) and (c) respectively, and the remaining paragraphs to be redesignated accordingly.
Rule 8.5 - Jurisdiction
Randy Lee reviewed Attachment J (September 16, 2004) - his report concerning Model Rule and North Dakota Rule 8.5. He noted amendments to Rule 8.5 are now before the Supreme Court as part of the multijurisdictional practice proposals and the ABA changes to the model rule are not well-taken. For reasons outlined in his report, he recommended no action with respect to Rule 8.5.
It was moved by Randy Lee, seconded by Sandi Tabor, and carried unanimously that no changes be recommended with respect to Rule 8.5 as now before the Supreme Court.
Comment Review and Rule Assignments
Rule 1 Series - there will be a report for the next meeting by the group reviewing the Rule 1 series comments (Alice Senechal, Randy Lee, Sandi Tabor). The following additional comment review assignments were made: Rule 2 Series Comments - Mike Williams, Tim Priebe; Rule 3 Series Comments - Jean Hannig, Bob Udland; Rule 4 Series Comments - Judge Braaten, David Hogue. Randy Lee will also provide a report regarding Rule 6.1 at the November meeting.
There being no further business, the meeting was adjourned at 1:30 p.m.