Judge Ralph Erickson, Chair
Chair Erickson called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (November 9, 2000) - Minutes of the September 15, 2000, meeting.
It was moved by Ben Hahn, seconded by Mike Williams, and carried unanimously that the minutes be approved.
Lawyer Advertising Proposal - Board of Governors' Comments
Chair Erickson drew Committee members' attention to Attachment C (November 9, 2000) -a summary of comments from the Board of Governors concerning the lawyer advertising proposal- and discussed his presentation to the Board of the Committee's proposal. The proposal reviewed by the Board is included as Attachment D (November 9, 2000). He noted there was some expressed concern about involuntary or incidental costs associated with, for example, an e-mail solicitation. The concern, he said, is directed at the language in proposed Rule 7.3(b)(3), which disallows solicitation if receipt of the solicitation is uninvited and imposes economic costs on the prospective client to respond. The Board's suggestion, he said, is to insert "involuntary" after "any" on page 4, line 8, of the proposal. A similar change, he said, is suggested on page 5, line 22. in the Comment language. Sandi Tabor noted that the affected language on page 5 had been deleted by the Committee at its last meeting. She said the concern also possibly derives from the application of proposed Rule 7.2(a) to client newsletters and the concern that Rule 7.3's discussion of incurring costs might preclude advertising by newsletter. Judge Erickson said there was also discussion of whether there should be a clear definition of "solicitation", as there is uncertainty about the respective meaning of that term and "advertising." He noted that advisory opinions consistently draw a distinction between the two concepts. For example, he said he would consider a newsletter as being advertising rather than solicitation and, therefore, outside the application of Rule 7.3(b)(3) regarding imposing costs to respond.
Randy Lee noted the Committee's previous discussion concerning Rule 7.3(b)(3), which focused on the imposition of costs when a prospective client was contacted and which was thought to inappropriately include costs such as connectivity charges or other regular office overhead costs. To address that issue, he said, the language was added linking the imposition of costs to responding to the solicitation. He said if that change has created additional problems, it may be necessary to consider clarifying that the costs subject to the rule do not include such things as ordinary overhead or connectivity charges.
Dan Crothers said that if reference to costs incurred in responding is retained in Rule 7.3(b)(3), then he would support the Board's suggested change.
It was moved by Dan Crothers, seconded by Marilyn Foss, and carried unanimously that "involuntary" be inserted following "any" on page 4, line 8, and page 5, line 16, of the proposal.
Chair Erickson inquired whether the Committee should consider including a definition of "solicitation."
Marilyn Foss observed that what constitutes solicitation is fairly well-known in the legal community. Judge Erickson agreed there is a well-developed body of law regarding the differences between advertising and solicitation. Randy Lee noted, however, that attempting to reduce the caselaw understanding of solicitation to a workable rule may be nearly impossible given the interpretation set out by the U.S. Supreme Court in Shapero v. Kentucky Bar Ass'n, which discussed whether targeted mailing of a copy of something that could have been an advertisement transformed the communication into solicitation. Alice Senechal observed that Rule 7.3(a) offers a fairly clear and useful definition of direct contact, which should address some of the concerns.
Chair Erickson drew attention to the Board's comment regarding Rule 7.4 (communicating about fields of practice) and the question of whether the rule could exempt specialty certifications from states that do have certification programs. He noted Rule 7.4(c), which allows communicating the fact of specialty certification as long as there is a statement that there is no certification procedure in this jurisdiction. A related Board question, he said, is whether the immediately following overstruck language regarding not requiring the statement if the certifying organization has been accredited by the ABA (page 6, lines 31-34) should be retained.
Dan Crothers said the language on page 6 was deleted because of the initial conclusion that the Committee was not going to pursue a state certification process. However, in light of the Board's concern he said he would support retaining the overstruck language on page 6, lines 31-34, and the related overstruck Comment language on page 7, lines 18-33. Judge Erickson agreed and said the initial concern of the drafting subcommittee was the delegation of authority regarding appropriate certification to out-of-state entities.
It was moved by Dan Crothers, seconded by Dr. Olafson, and carried unanimously that the overstruck language on page 6, lines 31-34, and page 7, lines 18-33, be restored.
Judge Erickson wondered whether certification by other states should be addressed. For example, he said, Minnesota and Wisconsin certify civil and criminal trial lawyers. Dan Crothers agreed the issue of certification by other states should be discussed, because the restored language is specific only to certifying organizations accredited by the ABA.
Sandi Tabor suggested modifying the restored language on page 6, lines 31-34, to read: "The communication need not contain such a statement (a) if the named organization has been accredited by the American Bar Association, or (b) if the lawyer has successfully completed a certification program sponsored by a state bar association." Dan Crothers wondered whether there should be a requirement that the lawyer be admitted in the state of the sponsoring bar association.
Dr. Olafson inquired whether there is discussion of a national independent board to establish criteria for certification in specialty fields. Sandi Tabor responded that the ABA has encouraged sections within the association to develop specialty certifications, but not all have done so.
It was moved by Alice Senechal and seconded by Fran Gronberg that the restored language on page 6, lines 31-34 be modified as suggested.
Ron Reichert wondered whether the language would encompass certifications for practice in tribal courts. Sandi Tabor said she is unaware of any education programs that offer certification in tribal court practice, as opposed to testing requirements for admission to practice in a particular tribal court.
The motion carried unanimously.
With respect to the restored Comment language on page 7, lines 18-27, Dan Crothers asked whether it should, in fact, be retained in light of the modification to the page 6 language just approved, which includes reference to state certification procedures. Additionally, he said, the language on page 7, lines 29-33 should perhaps be modified to reflect the addition on page 6 regarding state certification. Sandi Tabor noted that lines 29-33, even if modified, simply restate what is in the rule provision itself.
It was moved by Dan Crothers, seconded by Dr. Olafson, and carried unanimously that the previously restored Comment language on page 7, lines 18-33, be deleted.
Returning to the proposed amendments to Rule 7.1, Alice Senechal said the reference on page 2, line 6, to how "other media" can be changed quickly is misplaced since it is information conveyed by media that can be changed. She suggested the language be changed to refer to "information conveyed via other media." Additionally, she suggested the language on page 2, line 9, may be more felicitously phrased as "Technology may allow" use of information not readily apparent.
It was moved by Alice Senechal, seconded by Fran Gronberg, and carried unanimously that the referred-to language be modified as suggested.
Alice Senechal drew attention to page 3, lines 8-10, and the reference to facilitating "the enforcement of impermissible content." She wondered whether there is a better, more applicable concept than "enforcement". Committee members agreed the last sentence on lines 8-10 appears to be less than clear or coherent.
It was moved by Ben Hahn, seconded by Ron Reichert, and carried unanimously that the last full sentence on page 3, lines 8-10, be deleted.
It was moved by Mike Williams, seconded by Randy Lee, and carried unanimously that the proposed lawyer advertising rules and amendments, as further modified, be approved and recommended to the Supreme Court.
Client Access to Files and Copying of Files
Chair Erickson drew attention to Attachment E (November 9, 2000) - proposed Rule 1.19 concerning client files, papers, and property, and conforming amendments to Rules 1.6 and 1.16 of the Rules of Professional Conduct. He noted that the proposal was vigorously discussed by the Board of Governors and the central concern is reflected in Attachment C (November 9, 2000).
It was moved by Dan Crothers and seconded by Marilyn Foss that the Committee take no further action on the proposal.
In response to a question from Ben Hahn regarding the Board's concern, Judge Erickson said the primary objection is that lawyers routinely provide copies of documents to clients and the notion of having to pay for the cost of copying a file is not well received.
Dan Crothers said that in the course of representation, a client is normally provided at least once with a copy of pertinent documents. The proposal, he said, would institute a requirement that a lawyer provide a second copy at the lawyer's expense.
Mike Williams said the underlying question is whether the file belongs to the client or the lawyer. If, he said, the file is the client's property, then there should be no copying charge if the lawyer is copying the file for the lawyer's own convenience or for a malpractice carrier. However, he said many lawyers regard the file as belonging to the lawyer and if copies are provided to the client it is considered appropriate to charge the client for the copying costs.
Alice Senechal said she would oppose the motion because there is value in defining client files, papers, and property, which has application both in situations where representation has been terminated and in situations where lawyers are considering what to do with closed files. She said language could be added to the rule to address the concern about having previously provided copies to a client.
Randy Lee wondered whether the concerns of the Board of Governors are limited to those identified in Attachment C. Sandi Tabor said one board member expressed the concern that a small practitioner should not incur additional costs when copies have been routinely provided to the client, but the client wants a copy of the file when terminating the lawyer's services. Judge Erickson said there was also concern about the definitions of what are and are not client files, papers, and property. Alice Senechal noted there was no opposition to that part of the proposal disallowing the asserting of a retaining lien.
The motion failed. (4 yes, 8 no)
It was moved by Randy Lee and seconded by Alice Senechal that paragraph (d) of proposed rule be modified as follows:
"Unless copies have earlier been provided to the client by the lawyer, a lawyer who has withdrawn from a representation or has been discharged from a representation may only charge the former client the cost of copying for the client, or electronically retrieving for the client, the client's files, papers, and property
only if when the client has, prior to termination of the lawyer's services, agreed in writing to reimburse the lawyer for copying and retrieval expense. Any such charge must be reasonable in amount."
Dave Hogue said he would oppose the motion because the rule should set out a bright line regarding when copies may be provided and charged for to facilitate those situations in which the client wishes to terminate representation and move on to another lawyer. He said the rule should not create distinctions that would involve the lawyer and client debating whether copies have or have not been provided for particular documents. Ron Reichert agreed the rule should be narrowly drawn to reduce opportunity for disputes.
The motion carried.
With respect to paragraph (a) prohibiting the asserting of a lien against a client, Dan Crothers reiterated his earlier concern that the lien is not properly asserted against the client, but rather is asserted against the client's files, papers, or property.
It was moved by Dan Crothers, seconded by Alice Senechal, and carried unanimously that paragraph (a) should be modified to prohibit asserting a lien against a client's files, papers, or property.
Dan Crothers noted the reference in paragraph (b)(1) to property provided other than as payment for "an earned or agreed fee." He said North Dakota law has not resolved the issue of whether there can be an agreed upon fee for services. Including such language in the rule, he said, may inadvertently be suggesting approval of such a fee. Randy Lee agreed there is division within the bar concerning whether there is or should be an agreed fee. Dan Crothers suggested the reference to agreed fee be deleted. Randy Lee suggested paragraph (b)(1) could be modified to simply refer to all papers and property provided by the client to the lawyer other than as payment.
It was moved by Dan Crothers, seconded by Fran Gronberg, and carried unanimously that paragraph (b)(1) be modified as suggested by Randy Lee.
It was moved by Dan Crothers, seconded by Alice Senechal, and carried unanimously that the second line of paragraph (b)(4) be modified to refer to "costs or expenses" rather than "costs and expenses."
Dan Crothers drew attention to paragraph (f), which provides that a lawyer may withhold documents not considered client files, papers, or property until an outstanding fee is paid unless the client's interests are prejudiced. He wondered why this provision could not be seen as providing for a retaining lien, which would be inconsistent with the prohibition in paragraph (a) against such liens. Dave Hogue said the provision defeats the purpose of trying to expeditiously sever a lawyer-client relationship if the lawyer then becomes involved in attempting to identify the parts of the client file against which the lawyer may assert a claim. Marilyn Foss observed that the provision could apply to property that is not the client's. Judge Erickson wondered whether paragraph (f) adds anything of practical significance to the rule.
It was moved by Mike Williams, seconded by Ron Reichert, and carried unanimously that paragraph (f) and the corresponding paragraph in the Comment be deleted.
Alice Senechal suggested, and Committee members agreed, that the reference to "Rule 1.16" in the Comment's third paragraph should be changed to "Rule 1.6."
It was moved by Dave Hogue and seconded by Ron Reichert that paragraphs (b) and (e) be deleted from proposed Rule 1.19.
Dave Hogue said the distinctions created in paragraphs (b) and (e) concerning what are and are not client files, papers, and property are troublesome and would lead to continuing dispute about whether particular files, etc., have been provided. The client, he said, is entitled to receive the file without qualification. Dan Crothers said the motion ignores that everything in the lawyer's file may not, in fact, belong to the client. The change, he said, may adversely affect property rights that a lawyer may have to something in the file. He said it also does not achieve the early objective with which the Committee began its review of these issues, which was to provide guidance concerning what could be considered client files, papers, and property.
The motion failed.
It was moved by Alice Senechal, seconded by Fran Gronberg, and carried unanimously that the conforming amendments to the Comment to Rule 1.6 be modified in the second sentence to provide that a lawyer may charge a client for copying only if allowed by Rule 1.19.
It was moved by Dave Hogue and seconded by Marilyn Foss that the Committee reconsider its action whereby the motion to take no further action on the proposal failed.
Marilyn Foss said the proposal will create more problems than it is intended to solve. Ron Reichert observed that the current Restatement of the Law Governing Lawyers is at odds with the approach taken in the proposal. He suggested the Restatement should be reviewed before final action is taken on the proposal.
The motion failed.
It was moved by Ben Hahn, seconded by Ron Reichert, and carried that proposed Rule 1.19 and the conforming amendments to Rules 1.6 and 1.16, as modified, be approved and recommended to the Supreme Court.
Lawyer Diversion Program - Draft Proposal
At the request of Chair Erickson, Sandi Tabor reviewed Attachment G (November 9, 2000) - a draft proposal for establishment of a lawyer diversion program. She said the draft is based in part on an Arizona rule, but modified to reflect local resources and North Dakota's disciplinary process. She noted that the Arizona rule provides guidelines regarding operation of its diversion program. There is, she said, more detail concerning, for example, the written agreement between the lawyer and the entity recommending the diversion, and the conditions under which diversion is appropriate.
Randy Lee suggested that participation in a diversion program should not only accomplish the goals of the program, as Section A provides on lines 12 and 13, but also accomplish the goals of the disciplinary process as well. Additionally, he said, since North Dakota's Rules for Lawyer Discipline do not list forms of discipline in a hierarchical fashion, Section B(1) should not refer to forms of discipline "greater than" a reprimand. Rather, he said, the provision should perhaps simply refer to forms of discipline "other than" reprimand or admonition. There is also a need, he said, to discuss the role of complainant consent with respect to diversion. He suggested as a beginning premise that if the complaining person is a client, the matter may not be diverted without that person's consent. With respect to the confidentiality provided for in Section I, he noted that the Committee had earlier decided in another context that such a provision for an exception to the general requirement to report misconduct would be inappropriate.
In response to a question from Marilyn Foss concerning available resources, Sandi Tabor said the Board of Governors has committed resources to develop a diversion program. She said there has also been consideration of working with area hospitals to develop initiatives through Employee Assistance Programs. In response to an additional question from Marilyn Foss, she said there is no general statistical information concerning lawyers who might have been eligible for participation in a diversion program, but disciplinary counsel may have information about incidents involving alcohol or chemical dependency. Marilyn Foss suggested a lawyer should be able to apply for participation in the diversion program without that participation having first been offered by an inquiry committee, a hearing panel, or the court.
Marilyn Foss drew attention to Section B, which identifies kinds of conduct which would generally not be eligible for diversion. She noted paragraph (4) regarding misconduct involving family violence and wondered why it should not simply apply to misconduct involving violence generally. Judge Erickson suggested possibly deleting paragraph (4) and relying on the serious crimes provision.
Dan Crothers noted Section B(9), which identifies misconduct that is part of a pattern of similar misconduct as a situation in which diversion would not generally be available. He said the provision is troubling for lack of specificity. Additionally, he said his estimation of diversion is that it is intended for those kinds of conduct that are of concern but which do not rise to the level of misconduct possibly warranting discipline. Marilyn Foss said that the number of complaints should not matter, if each individual complaint would not rise to the level of misconduct. If, she said, the lawyer would not be subject to discipline, then the lawyer should not be subject to diversion.
With respect to Section B(9), Judge Erickson said generally ruling out a pattern of misconduct as a basis for diversion may create problems, for example, in the situation where a lawyer experiences a period of emotion instability which results in habitual neglect of the lawyer's practice. That, he said, could constitute a "pattern of misconduct" that perhaps should not be foreclosed from the diversion program. Ron Reicher noted, however, that the provision may leave an opening for aggressive disciplinary enforcement based on a "suspicion" that a pattern of misconduct could be discovered.
Sandi Tabor said she would contact Arizona bar officials for information about the operation of the Arizona program generally and in situations similar to the ones described.
Dr. Olafson said a diversion program is in essence an attempt at a proactive approach to assist an individual in maintaining their status within the professional legal community. Mike Williams agreed and said that from the standpoint of public trust and confidence in the profession, diversion could serve as an antidote to suspicions that lawyers are escaping responsibility for their actions. He also agreed with Randy Lee that the subject of client consent should be reviewed. Sandi Tabor said she would gather information on the role of client consent.
Alice Senechal asked whether or how other state programs address situations in which new complaints arise during a lawyer's participation in a diversion program. Sandi Tabor said generally if the complaint is of a similar kind, it will be included as a basis for diversion.
Sandi Tabor noted that elements not included in the draft, but which are significant in the Arizona rule, are provisions related to due process protections. That approach was taken, she said, because under the draft, diversion is not a form of discipline, while in Arizona it is. Dan Crothers suggested it should be clear in the rule that if the lawyer breaches the diversion agreement, the matter proceeds to the disciplinary process. In that way, he said, procedural safeguards are ensured. Marilyn Foss suggested it should also be clear that failure to successfully complete diversion has no adverse consequence with respect to a future disciplinary action.
Chair Erickson said a modified draft proposal would be provided for review at the next meeting. He asked that Committee members review Section I concerning confidentiality and its relationship to the obligation to report misconduct. Sandi Tabor said the second draft would not contain Sections B(4) and (9). She said the Arizona guidelines would also be provided for Committee review.
Changing of the Guard
It was noted that this was the last meeting for Judge Erickson, Ben Hahn, Fran Gronberg, and Connie Sprynczynatyk. Chair Erickson stressed the importance of lay member participation in the Commitee's work and thanked Ben, Fran, and Connie for their commitment of time and effort to the Committee. Committee members extended their appreciation to Chair Erickson for his service as Chair.
There being no further business, the meeting was adjourned at 1:35 p.m.