Since the filing of its September 1996 Report, the Joint Committee on Attorney Standards has considered a number of issues concerning lawyer discipline, professional conduct, and admissions. As a result of that consideration, the Joint Committee recommends a series of amendments relating to the operation of the lawyer discipline system, clarification of certain rules governing professional conduct, and provisions regarding pro hac vice practice in North Dakota courts. The proposed amendments are summarized in turn below.
Lawyer Discipline System Operation and Structure
Following the close of the 1997 legislative session, the Joint Committee initiated a thorough review of the operation and structure of North Dakota's lawyer discipline system. The objective of the review was to determine if changes should be made in response to legislative action affecting the funding of the system and to determine if further changes should be made to ensure an efficient, expeditious, and fair handling of complaints. During its study, the Joint Committee gathered and reviewed statistical and fiscal information about the operation of the system, reviewed rules and flowchart comparisons for the operation of lawyer discipline systems in approximately 12 other similarly situated jurisdictions, and reviewed rules governing North Dakota's lawyer discipline system which previously provided for hearing body recommendations directly to the Supreme Court with respect to formal discipline. Following review of this information and after extended discussion, the Joint Committee voted unanimously to submit a series of rule amendments to further alter and refine the operation of the lawyer discipline system.
The Joint Committee recommends amendments to the Rules for Lawyer Discipline to provide for consideration by hearing "panels", rather than the disciplinary board, of formal petitions alleging lawyer misconduct, with recommendations on formal discipline made directly from the panel to the Supreme Court.. See Attachment A. These changes are reflected in the proposed amendments to Rule 2.1H concerning the powers and duties of the disciplinary board, Rule 2.3 concerning the appointment and powers and duties of hearing panels, and Rule 3.1E describing the procedure for initiating formal proceedings. There are a series of minor amendments throughout the rules reflecting the change from hearing "body" to hearing "panel". The hearing panel, rather than the disciplinary board, would have the authority to impose a reprimand or probation as a public discipline. This change is reflected in amendments to Rule 1.3 and is considered consistent with the authority conferred on the hearing panel to consider and make recommendations to the Supreme Court with respect to formal petitions. The general goal of these proposed changes is to provide a more streamlined, expeditious method of handling complaints, in contrast to the present process in which a petition is filed with the disciplinary board, the board assigns the matter to a hearing body, the hearing body conducts an investigation and hearing, the hearing body makes a recommendation to the board, and the board then imposes discipline or makes a recommendation to the Supreme Court.
The Joint Committee also recommends amendments creating a new Rule 3.1F governing reviews by the Supreme Court. While the new rule retains much of the language in current Rule 3.1G, new language is added to specify how court review of a hearing panel decision to dismiss a complaint or impose discipline may be obtained.
The Joint Committee recommends an amendment to Rule 1.3D to permit consideration of the lawyer's having tendered a conditional admission as a mitigating factor in the assessment of costs in a disciplinary proceeding. The Joint Committee discussed situations in which a lawyer may have tendered a conditional admission, which was then rejected, but at the conclusion of the proceeding the discipline ultimately imposed was consistent with or less than that offered in the conditional admission. In such circumstances, the Joint Committee considered it appropriate that the offering of a conditional admission should be available as a mitigating factor in determining the amount of costs to be assessed.
The Joint Committee recommends amendments to Rule 2.4 to establish a third disciplinary district. This change is intended to provide a method of assisting in ensuring an equitable distribution of workload among the district inquiry committees. A related amendment to Rule 2.1D is recommended to permit the secretary of the disciplinary board to assign complaints to another inquiry committee in an effort to equalize caseload.
The Joint Committee also recommends amendments to Rule 4.5D governing reinstatement to clarify the relationship between review by the disciplinary board, through a hearing panel, of an application for reinstatement and the state bar board's response to the application. Proposed amendments to Rule 4.5F would establish specific notice requirements for reinstatement proceedings. These proposed changes are in response to a letter received by the Joint Committee from Penny Miller, Clerk of the Supreme Court, through which the Supreme Court requested review of issues regarding the application of Rule 4.5. Those issues included whether there should be statewide notice of the pendency of the application for reinstatement with an opportunity for written comment and whether the applicant must undergo a character and fitness investigation conducted by the bar board as well as successfully complete the bar examination. The Joint Committee concluded that statewide notice would be burdensome to implement and that notice to the complainant in the proceeding leading to the lawyer's disbarment or suspension would be sufficient. The Joint Committee also concluded that, given the scope of factors to be considered by the hearing panel under Rule 4.5F, an additional character and fitness examination by the bar board would be unnecessarily duplicative. Additional amendments to Rule 4.5F would establish clear procedures to be followed once the hearing panel report on the application for reinstatement is submitted to the Supreme Court.
Rules of Professional Conduct
The Joint Committee reviewed amendments to ABA Model Rule 4.2 which were recently adopted by the ABA. Rule 4.2 of the North Dakota Rules of Professional Conduct, in its caption, refers to communications with persons represented by counsel. However, the body of the rule prohibits a lawyer from communicating about the subject of representation with a party the lawyer knows to be represented by another lawyer in the matter. Amendments to ABA Model Rule 4.2 substituted "person" for "party" in the body of the rule and amended the Comment to further explain application of the rule. The ABA report accompanying the proposed amendments made clear that the amendments were not intended to effect a substantive change in the application of the rule, but, rather, were intended to clarify the original intent of the rule and eliminate ambiguities associated with the use of "party" rather than "person" in the rule.
The Joint Committee recommends proposed amendments to Rule 4.2 of the Rules of Professional Conduct to conform the rule and its comment to ABA Rule 4.2 and its comment. See Attachment B.
Admission to Practice Rules
The Joint Committee received a letter from Penny Miller, Secretary-Treasurer of the State Bar Board, through which the bar board requested review of North Dakota's pro hac vice rules, specifically Rule 3 of the Admission to Practice Rules and Rule 11.1 of the Rules of Court. There was concern about the apparent inconsistency between the rules in that Rule 11.1 permits foreign attorneys to appear in North Dakota courts, while Rule 3 does not. Additionally, there was a question whether the reporting requirement in Rule 3 was necessary or whether it should be more vigorously enforced. Through a subcommittee, the Joint Committee conducted a review of the applicable rules, current reporting practices and judicial responses to foreign attorneys appearing in court, and practices in neighboring states. Committee members concluded that any problems in this area are likely not significant and that the reporting requirement contained in Rule 3 is probably unnecessary. There was also concern that adopting more stringent requirements may create difficulties for lawyers who practice in neighboring states such as Minnesota.
The Joint Committee recommends proposed amendments to Rule 3 of the Admission to Practice Rules to delete the reporting requirement set out in Section B of the rule. See Attachment C.