Chair Senechal called the meeting to order at 10:00 a.m. and noted the 2004 meeting dates reflected in the meeting material. She requested that Committee members mark their calendars accordingly. She next drew Committee members' attention to Attachment B (November 7, 2003) - minutes of the September 25, 2003, meeting. It was noted that Elaine Fremling was in attendance at the last meeting but is not reflected as present.
It was moved by Randy Lee, seconded by Sandi Tabor, and carried unanimously that the minutes as corrected be approved.
Lawyer Assistance Proposal - Update
Chair Senechal drew attention to Attachment C (November 7, 2003) - her letter submitting the Committee's lawyer diversion and assistance proposal to the Board of Governors. She advised Committee members that at its most recent meeting the Board had endorsed the proposal. She said the next step is to submit the proposal to the Supreme Court.
It was moved by Sandi Tabor, seconded by Judge Braaten, and carried unanimously that the proposal be submitted to the Supreme Court for its consideration.
Multijurisdictional Practice - Review of Revised Rule Amendments
At the request of Chair Senechal, staff then reviewed Attachment D (November 7, 2003)- revisions to Rule 3 of the Admission to Practice Rules. He said the revised amendments reflect changes made at the September 25 meeting. The first change, he said, is the deletion on p.1, line 14, of the reference to "court-sponsored" as a descriptor of the kinds of ADR proceedings that would be subject to the pro hac vice admission requirements. He asked whether, in light of that change, it is necessary to retain the corresponding reference to Rules 8.8 and 8.9 of the Rules of Court, which describe "court-sponsored" ADR options. He noted that the previously discussed Rule 5.5 Comment regarding paragraph (b)(5) of that rule does not contain a specific reference to the Rules of Court, and simply provides that an out-of-state lawyer representing a client in "an ADR proceeding in North Dakota" must obtain pro hac vice admission under Rule 3.
Staff noted the Committee's earlier concern about the possible impact on the staff of the Board of Law Examiners if pro hac vice admission requirements applied to all, rather than only "court-sponsored", ADR proceedings. He said he had discussed the issue with Penny Miller and she is unconcerned about the impact as the Board's only responsibility would be as a repository for a copy of the affidavit and motion to appear filed by the attorney.
With respect to the additional changes resulting from the September 25 meeting, staff said the reference to public would be deleted on p.2, line 19; the reference to "governmental entity" would be deleted on p.4, line 20; the registration requirements provisions on pp.4-5 were restructured; and the 4th paragraph of the Explanatory Note was modified to clarify when the motion for permission to appear must be filed.
With respect to the references to the Rules of Court in Section A, it was moved by Mike Williams, seconded by Randy Lee, and carried unanimously that the references to Rules 8.8 and 8.9 be deleted.
Alice Senechal drew attention to the requirement in Section B(1)(a)(2) that an attorney registering under the rule must include in the supporting affidavit whether the attorney is presently subject to a "public" disciplinary proceeding. She noted also the disparity between the pro hac vice admission requirement that the attorney indicate the number of North Dakota actions in which the attorney participated in the previous three years (p.3, line 6), and the registration requirement that the attorney indicate participation in North Dakota actions during the previous five years (p.5, line 13). She asked whether the reference to "public" should be deleted to correspond with the earlier deletion of a like reference, and whether the 3 and 5 year requirements should be made consistent.
It was moved by Randy Lee, seconded by Sandi Tabor, and carried unanimously that "public" be deleted from Section B(1)(a)(2) and that the five year requirement on page 5, line 13, be changed to three years.
Alice Senechal noted the somewhat repetitive reference in the opening paragraph of Section B to "a business whose lawful business consists of activities other than the practice of law ... ." She wondered whether reference should be modified to avoid the repetition.
It was moved by Judge Braaten, seconded by Dr. Post, and carried unanimously that the reference be modified to read: " a business whose lawful activities are other than the practice of law ... ."
Tim Priebe drew attention to the pro hac vice admission requirement that the attorney associated with the nonresident attorney must, unless excused, appear personally and remain in attendance with the nonresident attorney before a court or other tribunal (p.3, lines 14-18). He noted that Montana's pro hac vice rule requires the associate attorney to appear at depositions. He wondered whether the current proposed language would require the same. The consensus among Committee members was that it would not.
Staff drew attention to the Section A(2), p.3, lines 8-13, which provides that pro hac vice admission applies to a nonresident attorney who signs as counsel on a pleading, but is not required to first file a motion for permission to appear. He noted the opening paragraph of Section A provides that pro hac vice admission, with associated filing requirements, is required for all nonresident attorneys who engage in the practice of law by appearing, either in person or by signing, pleadings. He wondered if there is an intended difference between the two provisions with respect to whether filing is or is not required.
Alice Senechal suggested Section A(2) may be intended to address the timing of when the filing of the motion must occur; the last sentence being a requirement that the motion must be filed no later than 45 days after service of pleadings. Judge Braaten suggested the issue could be clarified if Section A(2) was modified to refer only to the timeframe for filing the motion requesting permission to appear. Bob Udland observed that the language in Section A(2) is essentially the same as the requirement in current Rule 11.1 governing pro hac vice admission [see Rule 11.1(a)(3)]. Staff noted that the opening paragraph of Rule 11.1 generally requires pro hac vice admission of a nonresident attorney who is permitted to "appear" as counsel; there is no explicit reference to appearing by "signing" a pleading as there is in proposed Rule 3A.
Judge Braaten suggested modifying Section A(2) to delete the first sentence, leaving only the last sentence, which identifies the timeframe within which the motion for permission to appear must be filed. Ron Reichert noted that Section A(2) also contains language regarding a nonresident attorney being "designated" as counsel, while the opening paragraph of Section A does not. He suggested the opening paragraph of Section A should also be modified to provide that a nonresident attorney may appear in person, by signing pleadings, or by being designated as counsel.
It was moved by Judge Braaten, seconded by Ron Reichert, and carried unanimously that Section A(2) and the opening paragraph of Section A be modified in the manner described.
With respect to the general requirements set out in Section A, Mike Williams said he agreed with admission requirements for attorneys involved in ADR proceedings. He said there is some uncertainty, however, how the requirements might apply to pre-litigation mediation, for example. He said the current proposed language seems to contemplate the filing of an action, i.e, the structure appears premised on there being a pending manner. He wondered how the admission requirements would work if an attorney is involved in mediation activities that occur before any suit has been initiated. He suggested there may be a need to address pre-litigation activities since the attorney is essentially providing the same kind of services and the possible harm to the client is potentially the same.
Randy Lee noted the filing requirements in Section A(1)(a) do not seem to be structured in a manner to address ADR activities, i.e., the requirements only apply to an "action" in a trial court or before an administrative agency or other tribunal. He suggested it may be necessary to either amend the filing requirements to address ADR or create a separate procedure for ADR pro hac vice admission.
Sandi Tabor said a related issue concerns who is involved in providing mediation or ADR services and whether there should be an attempt to regulate that activity or require some type of registration.
In response to a question from Chair Senechal, Mike Williams said he would contact Dan Crothers concerning the application of the proposed admission process to pre-litigation and other ADR activities.
Christine Hogan drew attention to Section D of the proposed amendments to Rule 3 which provides that 80% of the fees derived from attorney registrations and pro hac vice admissions under the rule must be forwarded to the state bar association and used "according to law." She distributed a suggested revision to Section D which is intended to clarify that the fees must be paid, in accordance with N.D.C.C. Section 27-12-04, for operation of the board of law examiners, operation of the lawyer discipline system, and operation of the state bar association. More particularly, she explained that Section 27-12-04 requires that the bar association receive $75 of each attorney license fee for operation of the lawyer discipline system, with 80% of the remaining license fee amount paid to the association for administration and operation of the association. There is some sentiment, she said, that Section 27-11-24, which governs the state bar fund, and into which license fee revenue is deposited, permits disbursement of funds to the association only for the purpose of operating the discipline system. She said the proposed revision of Section D, which was approved by the Lawyer Discipline Operations Committee and the Board of Governors, is intended to clarify that registration and admission fees under proposed Rule 3 would be treated the same as regular license fees and a portion of the fee revenue would, therefore, be available for administration and operation of the association. She emphasized that the association is in dire need of additional funding and virtually every other state treats pro hac vice admission fees like regular licensure fees, with the fee revenue made available to the bar association. A copy of the proposed revision to Section D is attached as an Appendix.
Staff said there is an additional consideration of which Committee members should be aware in the event the issue arises when the Rule 3 proposal is considered at a hearing before the Supreme Court. He explained that under current Rule 11.1 of the Rules of Court, which governs pro hac vice admission, fee revenue is disbursed to the state bar association for use in funding the lawyer discipline system. He said that early approach to fee disposition was apparently a reflection of the Court's concern about authority, absent statutory guidance, to direct fee revenue to be used in a manner unrelated to discipline. That concern, he said, was somewhat allayed because of the Court's constitutional responsibility for the supervision and discipline of attorneys. As a general matter, he said, public funds, including funds derived from statutory licensing schemes, can be expended only in accordance with an appropriation. Various statutes, he said, describe the kinds of fees the board can impose (e.g., an examination fee [N.D.C.C. 27-11-17}, an annual license fee for an attorney with an "unrevoked certificate of admission" [N.D.C.C. 27-11-22]). Attorney license fee revenue, he said, is made available to the board of law examiners by way of the state bar fund. Fee revenue in the fund, he said, is appropriated on a continuing basis under N.D.C.C. Section 54-44-12 to the board for use in the manner prescribed by state law. The board, he said, disburses money from the bar fund in the manner generally described under N.D.C.C. 27-11-24, which details the permitted expenditures from the bar fund, and more particularly described under N.D.C.C. 27-12-04. The general consequence of the various statutes, he said, is that the attorney license fee revenue is appropriated to the board of law examiners for expenditure. As a result, he said, there may be an issue regarding whether the Supreme Court would be comfortable directing, by rule, that fee revenue be disbursed directly to the state bar association for a purpose other than funding the discipline system.
Judge Braaten said the fee for registration and pro hac vice admission could likely be regarded as a license fee since the result is that the attorney will have a "license" to practice law in North Dakota. Staff noted that the statute providing for the annual license fee refers to a person "who has an unrevoked certificate of admission" to the state bar. He said a certificate of admission is issued following a report from the board of law examiners concerning results of the bar examination (N.D.C.C. 27-11-19). He wondered whether an attorney applying for registration or admission would be regarded as having an unrevoked certificate of admission.
Sandi Tabor agreed there may be an issue and suggested the possible approach of informing the Court, during the hearing on the proposal, of the potential issue. If the Court is uncomfortable with the proposal, she said, the Committee representative could perhaps suggest that, rather than modifying the proposal to limit the additional revenue to funding discipline, the Court could table the proposal until the relevant statutes are amended.
In response to a question from Judge Braaten, staff said Section D could be modified to read: "Fees collected by the State Board of Examiners under this rule must be distributed in the manner provided for distribution of license fees under N.D.C.C. Section 27-12-04."
It was moved by Judge Braaten and seconded by Dr. Post that Section D be modified in the manner described.
Sandi Tabor said she would support the motion, but the Committee should ensure that the issue is addressed by whomever presents the proposal during the hearing before the Court and that it be made clear that the association will pursue corrective legislation if necessary. Additionally, she suggested that, if the fee revenue were ultimately to be available only for discipline, the fee in proposed Rule 3 could remain at the current level for pro hac vice admission. She observed that the association likely does not need the additional revenue generated from the higher fee for funding the discipline system.
The motion carried unanimously.
Model Rule 6.5 - Review
At the request of Chair Senechal, Sandi Tabor reviewed her earlier recommendation that the Committee expedite consideration of Model Rule 6.5 regarding nonprofit and court annexed limited legal services programs.
Sandi Tabor said she had recently received an email letter from Linda Catalano and Larry Spears, both very involved in providing legal services to those who cannot afford legal representation, which underscores the need to adopt Rule 6.5. Doing so, she said, would allow reestablishing the Thursday Evening Legal Assistance Program (TELA) and similarly focused programs. She explained that before the TELA program was halted due to ethics concerns about potential conflicts for government and other attorneys, the program was providing assistance to approximately 700 clients. She said a large percentage of cases in the program addressed issues in family law and public benefits. In addition to providing actual assistance, she said, the program also provided a way to suggest to a client an appropriate source for further assistance. She noted that with reorganization and funding changes occurring with respect to Legal Assistance of North Dakota, there is a search underway to find additional avenues for providing volunteer legal assistance.
Sandi Tabor explained that Model Rule 6.5 essentially provides that if a lawyer is participating in the provision of short-term limited legal services, then conflict of interest rules apply only if the lawyer knows that the representation involves a conflict. Further, she said, disqualification under Rule 1.10 would apply only if the lawyer knows that another attorney in the same firm has a conflict. She noted that the TELA program was ended when an ethics opinion concluded that lawyers, before providing any assistance, must conduct a conflict check. Functionally, she said, that resulted in an end to the lawyer's involvement. She said Model Rule 6.5 seeks to protect the client in these programs by requiring that the scope of representation be limited, i.e., making clear that the lawyer is involved on a very short-term basis. She noted the explanation in the Comment that a client in these situations must give "informed" consent to the limited scope of representation. She said this requirement likely would not create a problem with any prior rule amendments concerning writing requirements. She said she would envision a process by which, at the time of client intake, the lawyer would check a box indicating that the lawyer has informed the client that the lawyer is providing advice on a very narrow issue and that representation does not continue beyond that point. That, she said, would likely satisfy the informed consent requirement discussed in the Comment. An additional protection for the client, she said, is that if the lawyer, in fact, knows there is a conflict, then the lawyer cannot participate. She said the rule is clear that there is no continuing lawyer-client relationship, and is also clear that all relevant rules apply if representation exceeds the permissible scope.
It was moved by Sandi Tabor and seconded by Mike Williams that Model Rule 6.5 and its Comment be adopted.
Randy Lee noted the reference in the model rule to Rule 1.9(a) and explained that the equivalent North Dakota rule splits into (a) and (b) what is addressed in Model Rule 1.9(a). Consequently, he said, the reference in paragraph (a) to 1.9(a) should be changed to 1.9(a) or (b) in the blackletter rule. Additionally, he asked, since Model Rule 6.5 seems not to operate in a way that makes clear the lawyer-client relationship is not established, how can the rule ensure that lawyers do not draw the conclusion that a lawyer is excused in the future if someone to whom the lawyer has provided services as part of a "help" program becomes the lawyer's client. These earlier "clients", he said, would properly belong on the lawyer's conflict list.
Sandi Tabor said the ABA conclusion appears to be that the lawyer-client relationship does not continue after the temporary legal service is provided. Randy Lee agreed Rule 1.9 would not apply to the advice provided at a Saturday morning legal services program, but it would not seem to prevent the Saturday morning client from being considered a "former" client for purposes of future conflicts.
Bob Udland said the rule serves a worthy purpose and is needed. He noted that if he participates in a legal services program at the mall, for example, and a client later contacts him, he will know there is a conflict. The more difficult situation, he said, is if he does not keep a list of those he assisted and one of those clients later contacts another lawyer in the same firm. He said typically that person will not be reflected in the firm's conflict list. Mike Williams observed that he does not take names when he participates in the mall legal services program.
Randy Lee said a significant burden would be placed on lawyers if the rule does not define those to whom legal services are provided as not being clients. The only real solution, he said, is to provide explicitly that those assisted in these programs are not former clients for purposes of Rule 1.9. He said Model Rule 6.5(a)(1) does not confront the issue because it addresses the situation in which the lawyer has a conflict as of the moment the person requests assistance from a lawyer at a help program. It does not, he said, address the issue of future conflicts.
In response to a question from Sandi Tabor, Randy Lee said one solution might be to modify Rule 1.9 to provide that a person provided assistance under Rule 6.5 does not constitute a former client, or in some way define the "helping event" as one that does not create the status of former client. Either way, he said, the general approach is questionable.
Bob Udland questioned the wisdom of providing by rule that a person who receives limited legal services is not a former client and, therefore, a conflict situation would not exist.
Mike Williams said the objective is a worthy one, but there is a risk of creating something akin to second-class clients, i.e., providing assistance to them but not providing the full scope of protections applicable to other, "real", clients. Sandi Tabor said the model rule seeks to balance the limited scope of assistance provided in the program against the potential risk there may be for those who receive the services.
Randy Lee said one approach is to accept the proposition that the lawyer who provides limited legal services simply has a conflict as to the client served and in that way protect the rest of the firm. That, he said, could be accomplished by adding a new paragraph (c) to Rule 6.5 to provide that a client who receives services under paragraph (a) is a former client under Rule 1.9, but the lawyer's disqualification is not imputed, for purposes of Rule 1.10, to lawyers associated with the lawyer providing the services. He said language would also be added to Rule 1.10 to provide that disqualification of lawyers associated in a firm with a lawyer who has served in a program under Rule 6.5 is governed by Rule 6.5.
In response to a question from Bob Udland, Randy Lee said the changes would include changing the reference to Rule 1.9(a) to Rule 1.9 (a) or (b).
It was moved by Randy Lee to amend Rule 6.5 in the manner described. The motion was accepted as a friendly amendment by the original movant and second. The original motion, as amended, carried unanimously.
Rule 1.8 - Residual Issues
Chair Senechal drew attention to two unresolved issues concerning previously considered Rule 1.8: 1) Rule 1.8(g) regarding a lawyer representing two or more clients making an aggregate settlement and its application in criminal cases, and 2) imputation of Rule 1.8 prohibitions under Model Rule 1.8(k).
With respect to Rule 1.8(g), Ron Reichert said the core issue is a lawyer's representation of more than one person in the same case. He said he would suggest adding language in the Comment to underscore that lawyers must be very careful when representing joint defendants and in most cases should not do so. He said to the extent Rule 18(g) seems to imply that the practice is acceptable, it should be discouraged.
Chair Senechal said the suggested modification to the Comment would be retained for consideration when the Comment is reviewed.
With respect to imputation under Rule 1.8(k), Randy Lee wondered why it would necessary to include the language in light of Model Rule 1.10(a), which imputes conflicts unless the prohibition is based on the personal interest of the prohibited lawyer - and Rule 1.8(a) is a list of personal interests of the lawyer.
Committee members agreed consideration of Rule 1.8(k) would be deferred pending consideration of Rule 1.10.
Rule 1.9 - Conflict of Interest: Former Client
At the request of Chair Senechal, Bob Udland reviewed Attachment F (November 7, 2003) – his report comparing Model and North Dakota Rules 1.9. He said the primary focus of the model rule is providing consent in writing for situations in which a lawyer has represented a client in the same or substantially related matter. He said North Dakota Rule 1.9(a) addresses situations involving representation in the same matter, and Rule 1.9(b) addresses representation in substantially related matters. The Model Rule, he said, combines the two provisions. He said he would recommend retaining paragraph (a) in its current form. He recommended that paragraph (b) be modified to add that client consent must be obtained in writing. Paragraph (c) of current rule, he said, should be retained in its present form. With respect to Model Rule 1.9(c), he noted the model rule includes an exception allowing a lawyer to use information relating to a prior representation to the disadvantage of the former client if the information has become generally known. He recalled that the Committee had previously concluded that North Dakota's equivalent provision, Rule 1.6(h), should be deleted.
It was moved by Bob Udland and seconded by Ron Reichert that North Dakota Rule 1.9 be modified in the manner recommended in his report.
Randy Lee noted that even though the Committee has declined adoption of the informed consent approach, it will remain necessary for the North Dakota lawyer to obtain consent because of Rule 1.4. That rule, he said, requires providing sufficient information to the client to permit the client to make a reasoned judgment about whether to consent.
In response to a question from Randy Lee, Bob Udland said he would not favor restoring Rule 1.6(h). He said allowing a lawyer to comment on information concerning representation of a previous client because the information has become generally known would put the lawyer in the position of commenting on confidential information with no known boundaries concerning the limits of the disclosures. Randy Lee observed that the ABA model rule does not permit the lawyer to reveal the information; it only permits the lawyer to “use” the information to the disadvantage of the client if the information has become generally known. He said it is unclear what distinction the ABA sees in the difference. Additionally, he observed that upon learning of the Committee’s earlier decision to delete Rule 1.6(h), Mark Hanson, Chair of the SBAND Ethics Committee, offered the comment that doing so would substantially affect the Committee’s work because the provision has been very useful to the Committee in preparing opinions. He suggested contacting Mr. Hanson for an explanation concerning the significance of Rule 1.6(h) to the work of the Ethics Committee.
Chair Senechal said she would send a letter requesting any comments Mark Hanson may have on the issue.
Following further discussion, the motion carried unanimously.
Chair Senechal recalled the Committee’s changes to Model Rule 6.5 and asked whether it was necessary to review those changes in light of the action concerning Rule 1.9. Committee members agreed the approved modifications to Rule 1.9 would not affect previous action concerning Rule 6.5. Committee members also agreed that proposed Rule 6.5 could be submitted to the Supreme Court apart from the other revisions to the Rules of Professional Conduct, perhaps in conjunction with the submission of the MJP proposals.
Rule 1.10 – Imputed Disqualification: General Rule
Tim Priebe agreed to review Model Rule and North Dakota Rules 1.10 in light of Dan Crothers' earlier assessment and the Committee’s action concerning Rule 6.5. His report will be presented at the next meeting.
Rule 1.11 – Successive Government and Private Employment
At the request of Chair Senechal, Sandi Tabor reviewed Attachment H (November 7, 2003) – her comparison of Model Rule and North Dakota Rule 1.11. She noted that with a few exceptions the North Dakota rule and the new Model Rule are essentially similar. She said the Model Rule deletes the reference to “private” client now found in North Dakota Rule 1.11(a) and incorporates the informed consent requirement. She said the Model Rule and North Dakota’s rule are basically the same with respect to conflicts when a government attorney makes the transition to private practice.
With respect to paragraph (a), Sandi Tabor said the Model Rule differs in providing a definition of “screened” and in including a requirement that the lawyer be “timely” isolated from participation in the affected matter. The Model Rule, she said, clarifies that a former government lawyer is subject to Rule 1.9(c) regarding confidentiality of information relating to the former representation of a government client, while the North Dakota Rule has no such clarification. She explained that inclusion of the reference to Rule 1.9(c) was a compromise reached essentially between the Ethics 2000 Commission and the ABA Government and Public Attorney Division. She said Ethics 2000 had initially sought to move language concerning application of Rules 1.7 and 1.9 from the Comment into the blackletter rule. The Division objected that doing so, particularly with respect to Rule 1.9, would make it significantly more difficult, if not impossible, for public attorneys to transition to private sector law practice. The compromise, she said, was the inclusion in the blackletter of only the reference to Rule 1.9(c). She suggested the Committee should consider whether to retain the reference to Rule 1.9(c ). She said if the Committee concludes the reference to Rule 1.9(c) should be included in the rule, then reference to Rule 1.9 in the Comment should be deleted when the Comment is reviewed.
It was moved by Sandi Tabor, seconded by Judge Braaten, and carried unanimously that paragraph (a) of Model Rule 1.11 be adopted with the exception of substituting consent in writing for the informed consent requirement and with the future action regarding deletion of Rule 1.9 from the Comment.
It was moved by Sandi Tabor, seconded by Randy Lee, and carried unanimously that paragraph (b) of Model Rule 1.11 be adopted.
Sandi Tabor next reviewed paragraph (c) and said the Model Rule and North Dakota’s Rule are essentially the same with the exception of the Model Rule’s addition of a requirement that the disqualified lawyer be “timely” screened from any participation in the matter.
It was moved by Sandi Tabor, seconded by Mike Williams, and carried unanimously that paragraph (c) of Model Rule 1.11 be adopted.
With respect to paragraph (d) of Model Rule 1.11, Sandi Tabor said the rule addresses situations when a private attorney moves to government employment. Specifically, she said, the rule provides that a lawyer serving as a current public officer or employee is subject to Rules 1.7 and 1.9, which means that a private lawyer moving to government practice brings along the general conflict and former client rules. She noted that paragraph (c) of North Dakota’s Rule is contained in paragraph (d)(2)(ii) of the Model Rule, which governs negotiating for private employment while involved in government matter. She said the primary differences are found in paragraph (d)(2)(i) of the Model Rule as compared to paragraph (d) of the North Dakota Rule. The Model Rule, she said, incorporates the informed consent requirement. Additionally, she said, the Model Rule does not now, but once did, contain the language in the North Dakota Rule allowing a lawyer serving as a public officer or employee to participate in a matter if no one is authorized to act in the lawyer’s stead in the matter and all parties involved in the former representation consent. If those conditions cannot be met, she said, the lawyer must resign public office. She questioned, however, how consent could have been obtained from the client or government when the lawyer is a public officer. She said the Model Rule likely does not contain similar language because it incorporates Rules 1.7 and 1.9.
Following further discussion, it was moved by Randy Lee, seconded by Ron Reichert, and carried unanimously that paragraph (d) of Model Rule 1.11 be adopted with the exception of deleting the reference to informed consent.
Sandi Tabor explained that there was no difference between paragraph (e) of the Model Rule and the North Dakota Rule, other than structure.
It was moved by Sandi Tabor, seconded by Mike Williams, and carried unanimously that paragraph (e) of Model Rule 1.11 be adopted.
It was noted that the definition of confidential government information provided in paragraph (f) of the North Dakota Rule is included in paragraph (c) of the Model Rule.
Rule 1.12 – Former Judge, Arbitrator, Adjudicative Officer and Law Clerks
At the request of Chair Senechal, Mike Williams reviewed Attachment I (November 7, 2003) – his report comparing Model Rule 1.12 and North Dakota Rule 1.12. He explained that the North Dakota Rule is similar to the Model Rule except that the North Dakota Rule is narrower in scope with respect to whom it applies, i.e., only a judge, arbitrator, adjudicative officer, or law clerk. He noted that the Model Rule title does not reflect all those identified in the rule as subject to its provisions. He recommended that the title of the North Dakota Rule be modified to refer to former judge, arbitrator, mediator, adjudicative officer, third party neutral, and law clerk.
It was moved by Mike Williams, seconded by Randy Lee, and carried unanimously that the North Dakota Rule title be modified as described.
With respect to paragraph (a) of the two rules, Mike Williams said the provisions are similar except the model rule is broader in its application, as reflected in the previously mentioned title components.
It was moved by Mike Williams, seconded by Randy Lee, and carried unanimously that paragraph (a) of the North Dakota Rule be modified to reflect the broader application of the Model Rule.
With respect to waiver or consent to a conflict, Mike Williams said Model Rule 1.12(a) requires informed consent in writing, while North Dakota Rule 1.12(a) simply requires consent.
It was moved by Mike Williams, seconded by Sandi Tabor, and carried unanimously that North Dakota Rule 1.12(a) be modified to require consent in writing as with previous rule changes.
With respect to Rule 1.12(b) regarding employment and notice with respect to a lawyer, it was moved by Mike Williams, seconded by Randy Lee, and carried unanimously that Rule 1.12(b) be modified to apply to those previously identified in the title and paragraph (a).
Mike Williams said paragraph (b) also describes notice obligations of a lawyer serving as a law clerk with respect to negotiating for employment. The Model Rule requires notice to be given to the judge or other adjudicative officer, while the North Dakota Rule requires notice to the judge, adjudicative officer, or arbitrator. He said those to whom notice should be given should track those previously identified in paragraph (a) and the first part of paragraph (b).
It was moved by Mike Williams, seconded by Randy lee, and carried unanimously that paragraph (b) be further modified as described.
With respect to paragraph (c), which governs imputed disqualification and screening, it was moved by Mike Williams, seconded by Sandi Tabor, and carried that paragraph (c) be modified to require “timely” screening as was required in Rule 1.11.
Mike Williams said if there is an imputed disqualification under the rule, paragraph (c) of the Model Rule requires notice to any appropriate tribunal and the parties, while the North Dakota Rule requires notice only to the appropriate tribunal.
It was moved by Mike Williams, seconded by Randy Lee, and carried unanimously that paragraph (c) of the North Dakota Rule be modified to include notice to parties.
It was moved by Mike Williams, seconded by Sandi Tabor, and carried unanimously that paragraph (d) of the North Dakota Rule, which is the same as the Model Rule, be retained without change.
Rule 1.13 – Organization as Client, and 1.6 – Confidentiality of Information
At the request of Chair Senechal, Randy Lee reviewed Attachment J (November 7, 2003) – changes to Rule1.13 and Rule 1.6 recently adopted by the ABA. He said Model Rule 1.13 now reflects federal requirements under Sarbanes/Oxley. The consequent related changes to Rule 1.6, he said, brought the Model Rule to a point very similar to current North Dakota Rule 1.6 He said North Dakota Rule 1.13 is very similar to the previous Model Rule 1.13.
It was moved by Ron Reichert, seconded by Sandi Tabor, and carried unanimously that consideration of Rules 1.13 and 1.6 be tabled pending further review of the recent ABA changes.
Rule 1.14 – Client under a Disability
At the request of Chair Senechal, Ron Reichert reviewed Attachment K (November 7, 2003) – Model Rule and North Dakota Rule 1.14. He said the Model Rule is substantially different in its application to clients with “diminished capacity”, which in North Dakota has only been thoroughly defined through caselaw regarding criminal cases. He said he would recommend adoption of the Model Rule, but Rule 1.6 may limit the extent to which a lawyer representing a client with diminished capacity is able to discuss the client’s condition with others.
Randy Lee noted that paragraph (c) of the Model Rule acknowledges that the lawyer is impliedly authorized by Rule 1.6 to reveal information about the client to the extent reasonably necessary to protect the client’s interests.
Ron Reichert recommended that Model Rule 1.14 should be adopted as a substitute for North Dakota Rule 1.14.
Mike Williams expressed concern with the change in the title and rule from client under a disability to client with diminished capacity. He said in North Dakota “diminished capacity” is a term of art with specific meaning in caselaw that does not appear to be contemplated by the Model Rule. He said an expression such as “client with limited capacity” might be preferable. The focus of consideration, he said, is that the client has a limitation because of a disability that burdens the person’s ability to make responsible decisions about person or property. As such, he said, it is more like a guardianship-type situation rather than one informed by criminal caselaw analysis.
In light of the expressed concern, Chair Senechal requested that Mike Williams consider possible alternatives to the “diminished capacity” approach in the Model Rule.
Rule 1.15 – Safekeeping Property
Alice Senechal next reviewed Attachment L (November 7, 2003) – her comparison of Model Rule and North Dakota Rule 1.15. She said paragraph (a) of the two rules is similar except that the North Dakota Rule identifies more specific methods of deposit for funds, and the last sentence of the Model Rule is more detailed regarding how records are maintained. She said Model Rule paragraph (d) is comparable to the North Dakota provision except the latter includes a descriptive reference concerning funds received “in connection with a representation”. She said North Dakota paragraph (c) is the same as the previous Model Rule. Paragraph (b) of the Model Rule, she said, adds language indicating it is acceptable for a lawyer to deposit the lawyer’s own funds in a trust account if the purpose is to avoid bank service charges. She said Model Rule paragraph (c) requires that retainers not yet earned be placed in a trust account. Paragraph (e) of the Model Rule, she said, clarifies that conflicting claims to funds in a trust account may involve third parties and also provides that funds not in dispute may not be held while the dispute is resolved. She recommended that paragraphs (b), (c), and (e) of the Model Rule be incorporated into North Dakota Rule 1.15.
It was moved by Tim Priebe, seconded by Randy Lee, and carried unanimously that North Dakota Rule 1.15 be modified in the manner recommended.
In response to a question from Chair Senechal, the following rule reports were identified for the February 27, 2004, meeting:
-Rule 1.10 and related comments concerning Rule 6.5: Tim Priebe
-Rule 1.13 and Rule 1.6: Randy Lee
-Rule 1.16: Judge Braaten
-Rule 1.18: Sandi Tabor
-Rules 2.1, 2.2,and 2.4: Mike Williams
-Rule 2.3: Bob Udland
There being no further business, the meeting was adjourned at 2:05 p.m