Chair Williams called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (May 21, 2004) - the February 27, 2004, meeting minutes.
It was moved by Randy Lee, seconded by Sandi Tabor, and carried unanimously that the minutes be approved.
Chair Williams next mentioned the Committee's meeting scheduled for September 24 in Grand Forks. He noted that the date was selected when the schedule was first developed and was based on proposed dates for Homecoming activities at UND. He said the Homecoming dates have since been moved to early October. He asked whether the September date should be retained. Committee members agreed the September 24 date should be kept with the meeting to be held in Fargo.
Proposed Rule 6.5 - Board of Governors Response
Chair Williams then explained the Board of Governors' review of proposed Rule 6.5 regarding nonprofit and court-annexed limited legal services programs. He said the Board supports the proposed rule but had noted the reference to "informed consent" in the Comment's second paragraph. He said Board members were concerned that even though it appears explanatory of the need to ensure the client understands the limited scope of representation to be provided, there could be an inference that the more demanding requirements of the ABA's informed consent concept may be intended. Committee members agreed the reference should be changed.
It was moved by Alice Senechal, seconded by Elaine Fremling, and carried unanimously that "informed consent" be replaced with "consent after consultation" in the Comment.
It was moved by Jean Hannig, seconded by Randy Lee, and carried unanimously that proposed Rule 6.5, as modified, be submitted to the Supreme Court for consideration.
Rule 1.19 - Impact of In re George
Alice Senechal then reviewed Attachment E (May 21, 2004) - her assessment of Rule 1.19 (client files, papers, etc) in light of In re George, 28 S.W.3d 511 (Tex. 2000). The question, she said, is with respect to the situation in which a lawyer is disqualified from representation and the possibility that tainted information relating to representation of the former client is still in the file. The specific issue, she said, is whether the definition of property in Rule 1.19 would result in the tainted information being forwarded to the successor lawyer, thus raising the issue of potential disqualification of that lawyer. She said the Court's opinion in George does not turn on whether the information is defined as client property. Her conclusion, she said, is that there is no reason to change the black-letter rule but it may be worthwhile to include language in the Comment to Rule 1.9 or Rule 1.19, or both, to alert lawyers to the possible issue. She said the issue, although it is difficult to visualize how it might occur, would arguably be a violation of Rule 1.9 with respect to the information transferred to the second lawyer.
In response to a question from Chair Williams, members agreed if the issue is to be addressed, it should be done through language added to the Comments. Alice Senechal, Sandi Tabor, and Randy Lee, having agreed to review the comments for the Rule 1 series, will include the matter in their review.
Rule 1.16 - Rule 3.3 Redux
At the request of Chair Williams, Judge Braaten reviewed her report concerning revised Rule 1.16 in light of changes made to Rule 3.3(c), which is included in the June 1, 2004, mailing (second item). She explained that Rule 3.3 governs candor to the tribunal and Rule 1.16 governs declining or terminating representation. More particularly, she said Rule 1.16 provides that the lawyer must attempt to withdraw from representation if a client offers false testimony and refuses to disclose such testimony. Rule 1.16(d), she said, permits the lawyer to continue with the representation without disclosing the false testimony if the court does not allow the lawyer to withdraw. This provision, she said, conflicts with revisions to Rule 3.3 adopted at the April meeting, which essentially require the lawyer to take remedial measures to cure the offering of false testimony, including disclosure to the court. She noted particularly the concluding phrase to revised Rule 3.3(c), which provides that compliance with the disclosure requirement applies even if there is disclosure of information otherwise protected by Rule 1.6. She recommended that a client's false testimony should be treated differently from the testimony provided by other witnesses primarily because of the lawyer's need to maintain client confidences. To that end, she recommended that revised Rule 3.3(c) be modified to delete the 3rd sentence concerning the lawyer's refusal to offer evidence; to add to the 2nd sentence regarding remedial measures a provision that would not require disclosure if the false testimony was contained in a client's testimony; and to add language from current Rule 3.3(d) regarding the lawyer's efforts to convince the client to disclose, withdrawal if the client will not disclose, and the lawyer continuing the representation if withdrawal is not permitted by the court. She also recommended that the concluding phrase in revised Rule 3.3(c), as previously described, be deleted.
After further discussion, it was moved by Judge Braaten and seconded by Jean Hannig that revised Rule 3.3 be further modified in the manner described.
Jean Hannig said the recommended changes would essentially allow the lawyer to keep information confidential and would maintain the burden of trying to withdraw, but the requirement to disclose the information if the court does not permit withdrawal would be removed. Judge Braaten said her recommendation would basically maintain the current North Dakota rule with respect to this particular issue. Randy Lee observed that if the change is adopted it would essentially reinstate the Malloy approach, which would reject the revision adopted by the Committee at its last meeting.
Judge Braaten emphasized the importance, and difficulty, of finding the proper balance between candor to the tribunal and maintaining client confidences. She said her suggested changes acknowledge the high importance of candor but seek an appropriate balancing point for keeping confidences.
Alice Senechal noted the comment to Model Rule 3.3, which explains that disclosure of a client's false testimony can result in grave consequences for the client, including a sense of betrayal, loss of the case, or prosecution for perjury. The comment, she said, points out that the alternative is that the lawyer will be cooperating in deceiving the court, thereby subverting the truth-finding process that the adversary system is designed to implement. Additionally, she said, the comment describes the risk of the client essentially coercing the lawyer into being a party to fraud on the court. Judge Braaten questioned whether the lawyer would be party to a fraud if the various requirements set out in the rule are complied with.
Randy Lee said that, although initially reluctant to embrace the model rule and having long favored the North Dakota approach, he could not support stepping back so soon from the Committee's earlier decision to adopt Rule 3.3.
Judge Braaten observed that one factor that softens the model rule's requirement to disclose is the prohibition at the outset against a lawyer knowingly offering false evidence. Randy Lee said the 8th Circuit has made clear that a lawyer's effort to disclose a client's false testimony is tolerable only if the lawyer knows the testimony is false.
Sandi Tabor said the public perception is that the lawyer will, in fact, know of the falsity, which goes to the confidence and trust in the integrity of the process.
Judge Braaten said the model rule's "knowingly" requirement arguably puts the lawyer in the position of endlessly second-guessing - after the fact - what the lawyer "knew" about the client's testimony.
Ron Reichert said that dealing with these issues in criminal cases creates a very difficult circumstance. He said he prefers the existing North Dakota approach over the model rule.
In response to a question from Sandi Tabor, Randy Lee said he did not think it has ever been directly stated in the black-letter or in a comment that the lawyer cannot argue the false testimony to the court or jury. Jean Hannig said the comment to Rule 3.3 does provide that the lawyer cannot make a statement the lawyer knows to be false. Randy Lee noted the argument by the lawyer, for example, that "you heard my client testify that he was in the next town with someone else", which could be a true assertion of what the client had, in fact, testified.
Sandi Tabor suggested that language could be added to the current rule to provide that if a lawyer is required to continue representation of the client, the lawyer cannot argue or use the false testimony previously offered by the client. Mike Williams noted that the comment to the current rule provides that a legal argument based on a knowingly false representation of law constitutes dishonesty towards the tribunal. Ron Reichert said it is certain that a lawyer cannot offer testimony the lawyer knows to be false. The problematic issue, he said, is when the lawyer argues testimony that is later determined to have been false. Randy Lee observed that if a direction that the lawyer cannot argue the false testimony were to be included, it could be added at the end of the 3rd paragraph under "False Evidence" in the current rule's comment.
Alice Senechal said she is inclined to retain the Committee's previous action in adopting Model Rule 3.3. She said the model rule requires disclosure to the court and the comment explains that it is then within the court's discretion to determine the response and alternative courses of action are described.
Bob Udland noted the circumstance in which the lawyer is required to disclose a known falsity regarding a material fact, the privilege is waived, and the judge then reports the information to the prosecutor. He wondered whether the lawyer would then be required to testify. He cautioned against putting lawyers in that position.
Mike Williams said the issue returns then to the basic question of whether it is reasonable for a client to expect a lawyer to cover up false testimony or participate in a lie.
Judge Braaten said adding language to the comment, as previously described, would clarify and emphasize that a lawyer could not argue or present the false testimony
After further discussion, the motion carried (Randy Lee, Alice Senechal - no).
It was moved by Sandi Tabor, seconded by Judge Braaten, and carried unanimously that language be included in the comment to Revised Rule 3.3 that if a lawyer is required to continue in the representation, the lawyer cannot use or argue the false testimony in any way and that a reference to Rule 3.3 be included in the comment to Rule 1.16.
Rule 3.6 - Trial Publicity
Judge Braaten then discussed her review and comparison of Model Rule and North Dakota Rule 3.6 - included in the June 1, 2004, mailing (first item). She said paragraph (a) of the model rule is similar to North Dakota's current rule and sets out a general prohibition against statements made to the media which the lawyer knows or reasonably should know will have a prejudicial effect on the proceeding. She said there are no counterparts in the North Dakota rule to paragraphs (b), (c), and (d) of the model rule. She recommended that the model rule be adopted with the exception of paragraph (b), which appears to set out a non-exclusive list of the kinds of statements a lawyer may make to the media and which could be better addressed in the comment.
Randy Lee said another difference between the two rules is that the North Dakota rule creates an obligation not to make extrajudicial statements if the lawyer knows or reasonably should know the statement will create a "serious and imminent" threat of materially prejudicing the proceeding. The model rule, he said, establishes a lower threshold in prohibiting statements that will have a "substantial likelihood" of materially prejudicing the proceeding. He noted that in 1985 this Committee's predecessor intentionally adopted the higher standard.
With respect to paragraph (b) in the model rule, Ron Reichert said he preferred the clearer, more defining listing of the kinds of permissible statements and would not favor addressing the subject matter in the comment.
Following further discussion, it was moved by Judge Braaten and seconded by Sandi Tabor that the model rule be adopted with the recommended changes. The motion failed.
It was moved by Ron Reichert and seconded by Jean Hannig that Model Rule 3.6 be adopted in its entirety.
Sandi Tabor asked whether Committee members are comfortable with the lower standard set out in the model rule. Randy Lee said he favored the current, higher threshold but the minutes of the 1985 discussion of the issue do not provide a clear indication of why the different threshold was adopted. He said there was some discussion of 1st Amendment issues, but the question would likely have arisen by now if there was a constitutional issue with respect to the language.
Alice Senechal said there is an apparent difference with respect to the current rule's reference to "imminent" threat. But, she said, the difference is not so evident with respect to "serious" threat of prejudice (North Dakota rule) and "substantial likelihood" of prejudice (Model Rule). The difference, she said, hinges on whether the material prejudice must occur more immediately or at some more distant time. Randy Lee wondered whether the difference would be greater if a jury case was involved. The notion, he said, is that in a bench trial the judge would be able to disregard the effect of the statement, while in a jury trial the jury may not.
Jean Hannig said she supports the model rule because 1) "substantial likelihood" is likely a higher standard than the current language; 2) the listing of permissible kinds of statements in paragraph (b) would be helpful to lawyers; and 3) there is an advantage in having a degree of uniformity by adopting the model rule.
With respect to addressing the permissible kinds of statements in the rule as opposed to the comment, Bob Udland said that when issues arise before inquiry committees, committee members obviously look to the rule, which is the basis of the alleged violation, and comment language is not often considered.
Elaine Fremling agreed there is greater protection and direction for the lawyer in having the question of permissible statements addressed clearly in the rule.
After further discussion, the motion carried.
Rule 3.7 - Lawyer as Witness
Mike Williams then reviewed Attachment F (May 21, 2004) - his comparison of Model Rule and North Dakota Rule 3.7. He said paragraph (a) of the two rules differs in a minor way: use of "unless" in the model rule and "except where" in the North Dakota rule. He recommended using the model rule reference. He noted the important difference in paragraph (a)(3) regarding hardship caused by disqualification in which the North Dakota rule relates the hardship to the distinctive value of the lawyer or lawyer's firm as counsel. With respect to paragraph (b), he noted that the model rule includes specific rule reference regarding conflicts while the North Dakota rule refers generally to " a conflict of interest." He said the comment to North Dakota's rule also refers to Rule 1.8 when discussing the conflicts of interest while the model rule does not.
With respect to the references regarding conflicts of interest, Jean Hannig said she preferred the general reference in the current rule in light of there being three different rules addressing conflicts of interest.
With respect to the differences in paragraph (a)(3), Randy Lee said the qualifying language was added to North Dakota's rule because the model rule provision was considered as making no sense as disqualification would always be a hardship. The exception, he said, would risk consuming the general prohibition.
It was moved by Mike Williams and seconded by Randy Lee that Model Rule 3.7 be adopted with the exception of retaining the current rule's general reference to "conflict of interest" in paragraph (b).
Randy Lee observed that, with respect to paragraph (b), both rules appear equally unclear regarding the exact nature of the kinds of conflicts that may be involved. He said the general language in the motion at least includes all conflicts, while the model rule references may imply that there are some conflict rules that can be ignored.
The motion carried unanimously.
Rule 3.8 - Special Responsibilities of a Prosecutor
Ron Reichert the discussed Attachment G (May 21, 2004) - his review and comparison of Model Rule and North Dakota Rule 3.8. He recommended adopting the model rule although preferring a longer listing of prohibited actions by prosecutors than contained in paragraph (e).
Randy Lee drew attention to paragraph (d) in both rules which defines the obligation to disclose information beneficial to the defense. He said he prefers the North Dakota requirement to disclose the information "at the earliest practical time", rather than the model rule's direction to make "timely" disclosure. In response to his question, Ron Reichert agreed the North Dakota language should be retained.
It was moved by Ron Reichert, seconded by Jean Hannig, and carried unanimously that Model Rule 3.8 be adopted with noted change to paragraph (d).
Rule 3.9 - Advocate in Nonadjudicative Proceedings
Jean Hannig then reviewed Attachment H (May 21, 2004) - her assessment of Model Rule and North Dakota Rule 3.9. She noted the rules are essentially similar with the exception of the added language in the North Dakota rule regarding a lawyer's communications with a legislative body, the reasons for which are outlined in the report. She noted the model rule's references to legislative "body" and administrative "agency", which seem more appropriate references.
It was moved by Jean Hannig, seconded by Elaine Fremling, and carried unanimously that North Dakota Rule 3.9 be modified to refer to legislative "body" and administrative "agency" and the cross-reference to Rule 3.3 be modified to reflect the changed sequence in the revised rule.
Rule 4.1- Truthfulness in Statements to Others
Randy Lee then reviewed Attachment I (April 8, 2004) - his analysis of Model Rule and North Dakota Rule 4.1. For reasons outlined in the report, it was moved by Randy Lee, seconded by Sandi Tabor, and carried unanimously that no changes be made to the black-letter North Dakota Rule.
Randy Lee observed, and Committee members agreed, revisions to the Comment will be the substantive points of discussion.
Rule 4.2 - Communication with Person Represented by Counsel
Alice Senechal next reviewed Attachment J (May 21, 2004) - her comparison of Model Rule and North Dakota Rule 4.2. She said the differences are minor, with the model rule having changed the location of "to do so" and included the alternative of a court order as a kind of authorization permitting communication. She said the greater discussion will be with respect to changes in the Comment.
It was moved by Alice Senechal, seconded by Sandi Tabor, and carried unanimously that current Rule 4.2 be modified to include the changes in the model rule.
Rule 4.3 - Dealing with Unrepresented Persons
Tim Priebe reviewed Attachment K (May 21, 2004) - his comparison of Model Rule and North Dakota Rule 4.3. He said the current rule and the first two sentences of the model rule are the same. The model rule, he said, adds the last sentence clarifying the prohibition against giving legal advice to an unrepresented person if the lawyer knows or reasonably should know there is a possibility of there being a conflict between the client and the unrepresented person. The added language, he said, was previously in the Comment to the model rule and somewhat similar language is contained in the Comment to the current North Dakota rule. He said the comment should not contain a substantive provision, which is more appropriate for the black-letter rule, and the North Dakota Comment does seem to prohibit activity that the rule does not. He recommended following the model rule in placing the prohibition in the black-letter rule.
It was moved by Jean Hannig, seconded by Tim Priebe, and carried unanimously that Model Rule 4.3 be adopted.
Committee members agreed the model rule comment would replace the current comment.
Rule 4.4 - Respect for Rights of Third Persons
Randy Lee then reviewed Attachment L (May 21, 2004) - his assessment of Model Rule and North Dakota Rule 4.4. He explained that paragraph (a) in both rules are the same except for the added reference to "delay" in the model rule. He recommended adding the reference as it was long ago deleted in error. He said the rules differ in the addition, in the model rule, of paragraph (b), which describes what a lawyer must do upon receiving a document relating to representation of the client which the lawyer knows to have been inadvertently sent. He said he is uncertain whether or how to address that issue. He noted that ABA Ethics Opinion 92-368 was the first ABA opinion regarding what a lawyer must do upon receiving information the lawyer knows was sent in error. The direction in the opinion was to 1) refrain from examining the information; 2) notify the sending party that the information had been sent to the lawyer in error, and 3) follow the sending party's instructions. However, he said there have been directives from court opinions and otherwise to do the opposite. For example, he said, a 1993 California appeals court decision overturned sanctions imposed on a lawyer and found the lawyer to be an innocent recipient, free to use the information on the client's behalf. He said a 1995 Kentucky opinion agreed with the ABA approach but went on to say that lawyers who did not follow that approach would not be disciplined. He said, given the fractured nature of guidance on the issue and notwithstanding the difficulty in deciding what an innocent recipient lawyer should do and what appropriate discipline should be, lawyers would benefit from direction on the issue.
Jean Hannig wondered whether notifying the sender and following the sender's directions would be sufficient to address the issue. Randy Lee said it may be sufficient if the sender were assumed to be reasonable.
Ron Reichert wondered at the need for discussion since the right and appropriate course of action is clear: notify the sender that the information was erroneously received. Additionally, he said the model rule reference in paragraph (b) to "document" is too limiting. Elaine Fremling agreed and said there are numerous forms in which information could be sent and received.
Randy Lee said the complicating factor is if a client later learns that the lawyer received the information but did not use it.
Jean Hannig agreed the receiving lawyer should at least take reasonable steps to notify the sender and the sender would then decide what must be done. Judge Braaten suggested the receiving lawyer should be required to go a step further and delete the information if received by email or return the document if received through the mail.
Randy Lee observed, and Committee members agreed, that the objective is to protect the innocent lawyer who has received information in error and has done nothing wrong.
Judge Braaten suggested adding language to paragraph (b) to require the recipient lawyer to destroy, delete, or return the communication to the sender without retaining a copy. Ron Reichert wondered what would happen if a client wanted the lawyer to use the returned information and whether the lawyer would, in that situation, be required to testify about the document and what happened to it. Sandi Tabor said the basic question is whether the innocent recipient should, in fact, be able to use the document.
Judge Braaten noted that the Rule 4 series deals with transactions with persons other than clients. She wondered whether this is an issue that should be addressed in a separate rule. Ron Reichert suggested perhaps a new Rule 4.5 governing "inadvertent communications."
Chair Williams drew attention to paragraph (a) and inquired whether there are any suggested changes in light of the discussion.
It was moved by Randy lee, seconded by Judge Braaten, and carried unanimously that paragraph (a) be revised to read: " In representing a client, a lawyer shall not use means that have no substantial purpose other than to delay or to embarrass or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person."
Chair Williams then requested any suggested changes with respect to paragraph (b) of the model rule.
It was moved by Randy Lee and seconded by Sandi Tabor that paragraph (b) be adopted as new Rule 4.5 after being revised to read as follows: "A lawyer who receives a document information relating to the representation of the lawyer's client and knows or reasonably should know that the document information was inadvertently sent communicated shall promptly notify the sender."
Alice Senechal noted that "document" is defined fairly broadly in the model rule comment. Judge Braaten wondered whether "information" is too imprecise in meaning. Committee members generally discussed the merits of using "document" vs. "information" vs. "communication."
Following additional discussion, the motion was withdrawn.
Model Rule for Expanded Legal Assistance for Military Personnel
Committee members agreed review of the model rule should be tabled.
Rule 7.3 - SBAND Resolution
Sandi Tabor noted Resolution 3, which will be considered by the General Assembly during the SBAND annual meeting. The resolution requests consultation with this Committee concerning the advisability of Rule 7.3 having been adopted. She questioned why the Committee should become involved again in considering the rule after having studied it at length and made the recommendation.
In response to a question from Chair Williams regarding any position on the resolution, Committee members agreed the Committee should simply explain the history of its consideration of the rule and take no position as such on the resolution.
Rule Review Assignments
The following rule review assignments for the August 6 meeting were made: Rule 4.5 - Randy Lee; Rule 5.1 - Alice Senechal; Rule 5.2 - Sandi Tabor; Rule 5.3 - Judge Braaten; Rule 5.4 - Bob Udland; Rule 5.6 - Jean Hannig; Rule 5.7 - Tim Priebe; Rule 6.1 - Ron Reichert; Rule 6.2 - Mike Williams; Rule 6.3 - Sandi Tabor; and Rule 6.4 - Alice Senechal.There being no further business, the meeting was adjourned at 2:35 p.m