Minutes
| Members Present
Mike Williams, Chair Judge Karen Braaten Jean Hannig David Hogue Randy Lee Tim Priebe Alice Senechal Sandi Tabor |
Members Absent
|
Staff Jim Ganje Christine Hogan |
Others Present Brent Edison, Assistant Disciplinary Counsel Carrie Torgerson, SBAND Volunteer Lawyer Program |
MJP Hearing
Chair Williams briefly reviewed the recent hearing before the Supreme Court concerning the Committee's proposed rules on multijurisdictional practice. He said the hearing went well and the issue of including nonresident attorneys employed by a governmental entity in new Admission to Practice Rule 3 was presented and discussed. He said he explained to the Supreme Court that recent comments received from Paul Richard, chair of the SBAND Multijurisdictional Task Force, suggested the matter should be revisited. He said the Supreme Court appeared to be disinclined to make the suggested change but the possibility of temporary admission status for nonresident attorneys employed by a governmental entity was discussed.
Committee Work - Timing
Chair Williams noted that to be included in new rules books published in February each year, the Committee must complete its work in time for submission of rule amendments to the Supreme Court in early fall of 2005. That, he said, would afford adequate time for the comment and hearing process. He said it appears the Committee should be able to complete its work by August 2005. He extended his thanks to the Rule 1 Series comment review group (Alice Senechal, Randy Lee, and Sandi Tabor) for their extensive work on the comments.
Rule 7.3, Rules of Professional Conduct - Lawyer Advertising
Chair Williams next drew attention to Attachment B (November 12, 2004) - a record excerpt from the SBAND General Assembly proceedings concerning review of Rule 7.3. He said the current rule, which governs direct contact with prospective clients, resulted from rule amendments regarding lawyer advertising submitted by the Committee to the Supreme Court. He said concerns were raised in a dissent at the time the rule amendments were adopted and related concerns resulted in the resolution discussed by the General Assembly. The resolution, he said, requests a process of hearing and comment, before the Committee, to review Rule 7.3 and concerns about its limitations on solicitation. He said the question now is the method by which to receive comments concerning the rule. One alternative, he said, is to have hearings or meetings in Fargo and Bismarck, for example, preceded by email notification through SBAND, with a request for submission of comments.
Alice Senechal wondered whether time could be set aside during a regular Committee meeting during which those interested in submitting comments or testimony could appear.
Sandi Tabor suggested the possibility of short informal meetings with a small contingent of Committee members, at which comments would be received and a report submitted at the next full Committee meeting.
Chair Williams cautioned against consuming an inordinate amount of Committee time in implementing a hearing process. He said the Committee thoroughly reviewed Rule 7.3 during the lawyer advertising project and the current review of rules will continue to require substantial Committee time.
It was moved by Sandi Tabor, seconded by David Hogue, and carried unanimously that the Committee consider meetings in Fargo and Bismarck for purposes of receiving comments on Rule 7.3, with a report submitted at the next meeting of the full Committee.
Rule 1.7 (Conflict of Interest) and Standard 4.3 (Failure to Avoid Conflicts...) - Issue
Chair Williams next drew attention to Attachment C (November 12, 2004) - a letter submitted by attorney Vance Gillette regarding proposed changes to Rule 1.7, Rules of Professional Conduct, and Standard 4.3, Standards for Imposing Lawyer Sanctions. He said Mr. Gillette requests an amendment to Rule 1.7 regarding who may raise a conflict issue and an amendment to Standard 4.3 to include injury to a "third person" as a factor to be considered in imposing a sanction.
Randy Lee noted Rule 1.8(f), which addresses payment by a third person for an attorney and which by previous interpretations and caselaw applies to situations involving insureds and insurers. He observed that North Dakota law is not settled on the issue of duties owed by a lawyer hired by an insurance company. The status of the client, he said, and the duties owed to the insurer are unclear. Additionally, he noted that a person need not be a client to file a complaint regarding the conduct of an attorney. With respect to the requested amendment of Standard 4.3, he observed that amending the standard will not create a wrong that does not otherwise exist under the rules. Finally, he said Mr. Gillette appears to be requesting that a remedy be provided for anyone who is harmed. He said the lawyer discipline system is not designed to provide a remedy, rather its purpose is to control lawyer conduct as a means of protecting the public.
Alice Senechal noted that in the proposed amendments to Rule 1.7 currently under review, the provisions referred to by Mr. Gillette would be deleted from the comment and similar language has been deleted from the ABA model rule's comment. She said the ABA explanation for the deletion is that the language addressed an issue that is outside the purview of the professional conduct rules.
After further discussion, Committee members agreed the Chair should briefly respond to Mr. Gillette noting that the relevant language in Rule 1.7 has been deleted from the ABA model rule, that the Committee is following a similar course, and that his comments will assist the Committee in its ongoing review of the rules.
Rule Reviews
Rule 6.1 - Pro Bono Publico Service
Sandi Tabor suggested the Committee should seek direction from the Board of Governors before seriously considering changing the aspirational nature of the rule or suggesting any minimum number of hours that would satisfy a pro bono requirement.
Christine Hogan said mandatory hours should not be pursued, but using the rule to somehow support and invigorate the volunteer lawyers program would be helpful.
Sandi Tabor noted that the greatest need for volunteer lawyer services is in the area of family law. She said that while it is beneficial to have more lawyers willing to take cases, the most compelling need is for lawyers who will take cases in the greatest area of need.
Christine Hogan said a possible approach recently submitted to the Board of Governors by the volunteer lawyer committee suggested providing for an intern from the law school who would be mentored by lawyers who handle family law cases and who would become familiar with the ethics of pro bono service. Another helpful measure, she said, would be permitting the legal aid clinic at the law school to handle more family law cases. She said the Board of Governors has also recently supported a recommended change to the CLE rules which would award 1 hour of CLE credit for 5 hours of pro bono service approved by the volunteer lawyer program. She said a maximum of 3 hours of CLE credit would be awarded during a three year reporting period.
In response to a question from Mike Williams, Randy Lee said his report suggests a mandatory requirement because without it there is generally little effort directed at providing pro bono services.
Sandi Tabor said she would not support a mandatory requirement because family law cases comprise most of the cases in which pro bono services are needed and requiring a lawyer unfamiliar with family law to handle such cases would not be beneficial.
Jean Hannig wondered how a mandatory requirement would affect attorneys who are prevented from taking private cases, such as state's attorneys or attorneys in the Attorney General's office. Sandi Tabor said the issue is most often addressed through a buy-out provision or through something like recently adopted Rule 6.5, which authorizes participation is programs like the earlier Thursday Evening Legal Assistance (TELA) program.
Brent Edison noted that if a rule is aspirational in nature, there is little that can be done by way of enforcement.
Carrie Torgerson suggested the possibility of a buy-out provision, with the revenue received from the buy-outs being placed in a fund to assist in hiring attorneys for cases or to support a summer internship program. Sandi Tabor said there would likely be very little support for a buy-out provision in the context of a mandatory requirement.
Chair Williams asked whether the Committee should submit the policy questions identified in Randy Lee's report to the Board of Governors, with perhaps an indication of the Committee's initial conclusions about possible changes to the rule.
David Hogue said he would support simply submitting the questions without any indication of whether the Committee is considering one course of action or another.
In response to a question from Brent Edison, Randy Lee said most states have not adopted the recent changes to the ABA model rule and have rules that are similar to our own. He said the change to the model rule as part of the Ethics 2000 review was to establish the obligation to provide pro bono services, even though the hour requirement is aspirational.
After further discussion, it was moved by Alice Senechal, seconded by Sandi Tabor, and carried unanimously that the Committee seek comments from the Board of Governors on the following issues: whether Rule 6.1 should be amended to require some level of pro bono service; whether, if there should be no such requirement, the rule should identify a specific number of hours of pro bono service lawyers should aspire to provide; whether a buy-out provision should be included if a number of hours is identified as a requirement or as aspirational; and whether there should be a hierarchy of services similar to that identified in the ABA model rule.
Committee members then turned to a review of Attachment E (November 12, 2004) -
revisions to the Rule 1 Series comments submitted by Alice Senechal, Randy Lee, and Sandi Tabor. Alice Senechal said the revision process involved reviewing the current comments and
comparing them to the model rule comments in light of changes the Committee has made to the
black-letter rules. Sandi Tabor requested that Committee members notify her by email if any
grammatical errors are located in the revisions. With respect to overall format for the comments, Jean Hannig suggested numbered
paragraphs, such as set out in the Rule 1 revisions, should be adopted. Committee members agreed.
Alice Senechal said additional subheadings, as used in the ABA comments, would be generally
helpful. It was moved by Alice Senechal, seconded by Sandi Tabor, and carried unanimously
that the described format be implemented throughout the revised comments. Chair Williams emphasized the need to ensure that comment language is simply explanatory
of the black-letter rule and does not include substantive rule requirements. Rule 1.1 - Comment Revisions Sandi Tabor explained that there were no changes to the black-letter rule. She said the
revisions to the comment reflect the current rule with changes, most of which are minor, from the
model rule comment. She said a slightly more notable revision is the added language on page 2,
lines 15-17, which emphasizes the importance of maintaining knowledge and skills and complying
with CLE requirements. Additionally, she noted the new language on page 2, lines 26-28, which
explains the import of agreements regarding scope of representation. She said the language seems
sensible and useful. Tim Priebe drew attention to language on page 2, lines 7-9, regarding providing
representation during emergencies. He noted that the revision provides that such representation does
not, rather than may not, limit the lawyer's liability. Alice Senechal said the revision reflects the
Committee's earlier revision to Rule 1.8(h). It was moved by Sandi Tabor, seconded by Judge Braaten and carried unanimously
that the revisions to the Rule 1.1 comment be adopted. Rule 1.2 - Comment Revisions Sandi Tabor next reviewed the recommended revisions to the Rule 1.2 comment. As a
related matter, she noted that the black-letter rule should be further revised to provide in
paragraph (c) that the client consents "in writing". She said that revision should be included in light
of the Committee's previous actions regarding consent in writing. It was moved by Jean Hannig, seconded by Alice Senechal, and carried unanimously
that paragraph (c) of the black-letter rule be further amended as described. With respect to the comment revisions, Sandi Tabor said they incorporate changes based on
the ABA rule comment and reflect earlier changes to Rule 1.2 based on the model rule. Jean Hannig drew attention to paragraph [4] on page 2, which includes a reference to a client
suffering "limited capacity". She suggested that the reference, and any similar references, be
modified to read that the client appears to have limited capacity or a close variation thereof.
Committee members agreed. Mike Williams noted language on page 2, lines 8-9, which provides that the Rule "does not
prescribe" the manner in which disagreements between a lawyer and client are to be resolved. He
said the language is unhelpful and there should at least be some reference to where the lawyer and
client could look for guidance on how to resolve disputes, such as caselaw or other resources. Sandi
Tabor said it may be difficult to identify relevant resources since the circumstances of disputes could
differ greatly from situation to situation. Sandi Tabor said the Reporter's Explanation concerning the language added to the ABA
comment indicates it was included simply to alert the lawyer to the possibility that there may be
disagreements with a client which the rules cannot address and the lawyer should be prepared to
consult other sources for possible methods of resolving the dispute. Randy Lee wondered where in the black-letter rule issues concerning disagreements with a
client are addressed. Perhaps, he said, it is linked to the Rule 1.2(a) requirement that the lawyer
"consult" with, rather than take direction from, the client. There may be, he said, disagreement, for
example, about the means for producing a desired objective. He said if the kinds of disagreement
are known, then the comment could possibly direct the lawyer to some source for assistance. He said
the ABA language indicates there is, in fact, some kind of resource, when there likely is not. Judge Braaten said the language is unclear and unhelpful and suggested deleting the language
on page 2, lines 6-10 beginning with "Because of ..." and ending with "consulted by the lawyer."
Randy Lee suggested deleting "also" from line 10 and replacing "the disagreement" with "any
disagreement" on line 11. It was moved by Alice Senechal, seconded by Randy Lee, and carried unanimously that
the revisions to the Rule 1.2 comment be adopted with the suggested revisions, including
changes to phrases referencing limited capacity. Rule 1.3 - Comment Revisions Alice Senechal then reviewed revisions to the Rule 1.3 comment. She explained that the
Committee recommended no changes to the black-letter rule and the revisions reflect model rule
changes to the comment. It was moved by Alice Senechal and seconded by Jean Hannig that the revisions to the
Rule 1.3 comment be adopted. David Hogue noted the new language in paragraph [1], lines 11-13, which discusses the
lawyer's duty to act with reasonable diligence but without use of offensive tactics. He wondered
about the connection between zealous representation and the concepts of diligence and offensive
tactics. Alice Senechal said the language is contained in the ABA comment and is designed to
underscore that the duty to be diligent does not mean the lawyer must engage in objectionable,
offensive tactics even if demanded by a client. The motion carried unanimously. Rule 1.4 - Comment Revisions Alice Senechal next reviewed revisions to the Rule 1.4 comment. She said the only change
is the replacement of "mental disability" with "limited capacity". She said the reference could be
further modified, in keeping with the Committee's previous conclusion regarding references to
"limited capacity", to refer to a "person with limited capacity". It was moved by Alice Senechal, seconded by Sandi Tabor, and carried unanimously
that the revisions to the Rule 1.4 comment, further modified in the suggested manner, be
adopted. Rule 1.5 - Comment Revisions Randy Lee then reviewed the revisions to the Rule 1.5 comment. He explained that changes
to the black-letter rule followed the ABA model rule in prohibiting unreasonable fees, as opposed
to the current rule's requirement that the lawyer's fee must be reasonable, and in referring to
expenses. He said the comment revisions reflect these changes. He said the new language in
paragraph [2], lines 24-29, reflect the change to the black-letter rule with respect to the preference
for an agreement in writing. With respect to paragraphs [10] and [12], page 4, Sandi Tabor said the revisions attempt to
clarify the fee process when legal assistants are involved. She said the case citation in
paragraph [10] was deleted because cases have not been cited elsewhere in the rules. Brent Edison said the emphasis on written fee agreements is a positive development. He said
a problematic issue concerns flat-rate fees or non-refundable fees and the general sentiment that
clients should be able to terminate representation and receive a refund of fees. Randy Lee said the
status in North Dakota of non-refundable fees, or "availability retainers", is somewhat unclear. He
said earlier caselaw contains language that might be viewed as a basis for asserting that there are no
non-refundable fees in North Dakota. Brent Edison noted that in Disciplinary Board v. Madlom, a
2004 case, there was a stipulation and consent to discipline concerning circumstances involving a
non-refundable fee, but there is a lack of clarity on the exact status of non-refundable fees. Mike Williams noted the reference in paragraph [2], line 25, to fee "arrangements" and
wondered whether the reference should be "agreements". Randy Lee said the reference in the
revisions was adopted from the model rule comment. Judge Braaten drew attention to language in paragraph [10], lines 13-16, regarding court
decisions about the appropriateness of including a charge for legal assistant services in the fees
charged by the lawyer. She said she is uncomfortable with including language about court holdings
in comment language and would favor deleting the language. Jean Hannig suggested the specific reference to "Courts have held that" be deleted and the
remainder of the sentence modified to read: "It may be appropriate to value such services at "market
rate" rather than "actual costs" to the lawyer." She noted that the second sentence of the paragraph
already indicates a lawyer may include in fees separate charges for work performed by legal
assistants. It was moved by Jean Hannig and seconded by Alice Senechal that the comment
revision be further modified as described. Judge Braaten suggested the comment language should explain that there are a number of
ways to determine the value of work performed by legal assistants, rather than link the determination
to "market rates" considered appropriate under the now deleted court holding reference. After further discussion, the motion carried. It was moved by Sandi Tabor, seconded by Jean Hannig, and carried unanimously that
the revisions to the Rule 1.5 comment, as further modified, be adopted. Rule 1.6 Comment Revisions Randy Lee next reviewed revisions to the Rule 1.6 comment. He explained that the earlier
amendments to the black-letter rule substituted the ABA's "post-Enron" rule except as to paragraph
(b), which retains the mandatory disclosure by the lawyer of information relating to the
representation of a client under certain circumstances. He said paragraph [9] of the revised
comments reflects the earlier adoption of paragraph (c)(3) of the rule, which permits the lawyer to
reveal information when seeking legal advice about compliance with the rules. For the most part,
he said, the revisions are simply a substitution of ABA comment language for current language
except for paragraph [6], which reflects the mandatory disclosure provision retained in the rule. Sandi Tabor suggested that paragraph (a) of the black-letter rule be further modified to
include at the end of the paragraph: "The duty of confidentiality continues after the client-lawyer
relationship has terminated." She said that language is currently contained in paragraph [18] of the
comment but the review group concluded it would be more appropriately placed in paragraph (a) of
the black-letter rule. It was moved by Sandi Tabor, seconded by Randy Lee, and carried unanimously that the black-letter rule and the revised comment be modified as described. In response to a question from Christine Hogan, Randy Lee said that while the reference to
"imminent death" in paragraph (b) of the rule was changed to "reasonably certain" death, the
reference to the imminence concept is included in paragraph [6] of the revised comment as a means
of explaining what may constitute "reasonably certain" death. Sandi Tabor drew attention to the first sentence of paragraph [12], page 6, and wondered
whether the language could be deleted because the second sentence seems to address the issue of
disclosure of information to the client. Committee members agreed the language should be deleted. Tim Priebe suggested the remainder of paragraph [18] should be deleted and that a reference
to Rule 1.9 be included at the end of paragraph [20], which addresses use of confidential
information. Randy Lee suggested "or former client" should be inserted in paragraph [20] after
"client". Committee members agreed with both suggested changes. It was moved by Jean Hannig, seconded by Sandi Tabor, and carried unanimously that
the revised Rule 1.6 comment, with the additional modifications to paragraphs [12], [18], and
[20], be adopted. Rule 1.7 Comment Revisions Review of revisions to the Rule 1.7 comment was deferred until the next meeting. Rule 1.8 Comment Revisions Alice Senechal then reviewed revisions to the Rule 1.8 comment. She said several
paragraphs are added to the comment from the ABA model rule comment, e.g., paragraphs [1] - [5].
She said new paragraph [8] addresses lawyers who are named as executors of an estate or another
potentially lucrative fiduciary position. She said paragraphs [11] and [12] discuss situations in which
someone other than the client is paying for a lawyer's legal services. She said the ABA language
provides useful guidance to lawyers. She said paragraphs [14] and [15] reflect the deletions in the
black-letter rule of provisions concerning agreements limiting liability for services provided in
emergency situations. It was moved by Alice Senechal, seconded by Sandi Tabor, and carried unanimously
that the revisions to the Rule 1.8 comment be adopted. Rule 1.9 Comment Revisions With respect to the black-letter rule, Sandi Tabor suggested paragraph (b) be further modified
to place "in writing" after "consents". That change, she said, would be consistent with similar
changes in other rules. It was moved by Sandi Tabor, seconded by Alice Senechal, and carried unanimously
that Rule 1.9(b) be further modified as described. Sandi Tabor then reviewed the revisions to the Rule 1.9 comment. She said the current rule
is quite similar to the ABA model rule and as a consequence revisions to the comment track the
ABA comment. It was moved by Alice Senechal, seconded by Sandi Tabor, and carried unanimously
that the revisions to the Rule 1.9 comment be adopted. Rule 1.10 Comment Revisions Randy Lee then reviewed revisions to the Rule 1.10 comment. He explained that the
Committee had previously revised paragraph (a) of the black-letter rule to address disqualifications
based on personal interest and had included a definition of "personal interest". He said paragraph [7]
of the revised comment addresses those changes. He said paragraph [1] of the revised comment
includes a definition of "firm". He noted that the earlier correction of the minutes of the September
meeting indicated that the definition of firm would include a governmental entity. He said the
definition included in paragraph [1] does not explicitly include governmental entities and urged that
the definitions be reconciled in some manner. If, he said, the definition in the revised comment is
intended to apply only to Rule 1.10, then the reference in paragraph [1] to "these Rules" should be
revised. Alice Senechal said the ABA commentary regarding the meaning of "firm"seems to indicate
that the definition would include a governmental entity. She said the question could revisited when
the comment to Rule 1.0 is reviewed. Mike Williams said if the definition of "firm" under Rule 1.10 is intended to mean the same
as provided in Rule 1.0, then a definition is not needed in the Rule 1.10 comment. Sandi Tabor noted that the revised Rule 1.11 comment provides that "Rule 1.10 is not
applicable to the conflicts of interest addressed by these paragraphs." Randy Lee observed that
paragraph (a) of Rule 1.10 provides an exception for conflicts governed by Rule 1.11, resulting in
the rules together excluding each other. He said it may be better to simply delete the definition from
paragraph [1] of the revised Rule 1.10 comment. Following further discussion, it was moved by Alice Senechal, seconded by Tim Priebe,
and carried unanimously that further consideration of the revised Rule 1.10 comment be
tabled until the next meeting. Rule 1.11 Comment Revisions With respect to the black-letter rule, Sandi Tabor suggested including the following language
in paragraph (d)(2)(i) after "employment": "unless the appropriate government agency gives its
consent in writing". The language, she said, tracks language in the ABA rule. She suggested also
modifying "shall not represent" in paragraph (a)(2) to read "shall not otherwise represent."
Additionally, she suggested paragraph (d) should be modified to insert "currently" after "lawyer" in
the first sentence. It was moved by Sandi Tabor, seconded by Alice Senechal, and carried unanimously
that revised Rule 1.11 be further modified as described. With respect to the comment revisions, Sandi Tabor said the revisions track the ABA
comment language. However, she said changes are required with respect to the first sentence of
paragraph [5]. She said the sentence should be revised to read, after appropriate formatting: "When
a lawyer has been employed by one government agency and then moves to a second agency, it may
be appropriate to treat the second agency as another client for purposes of this Rule, e.g., as when
a lawyer is employed by a city and subsequently is employed by a federal agency." It was moved by Sandi Tabor, seconded by Randy Lee, and carried unanimously that
the revisions to the Rule 1.11 comment, further modified as described, be adopted. Rule 1.12 Comment Revisions Randy Lee then reviewed the revisions to the Rule 1.12 comment. He said the revisions
reflect ABA comment language directly related to the changes made to the black-letter rule. He said
the revisions in paragraph [1], line 13, should be modified to retain the reference to the Compliance
section of the Code of Judicial Conduct and the outside parentheses regarding the paragraph
references should be deleted. It was moved by Randy Lee, seconded by David Hogue, and carried unanimously that
the revisions to the Rule 1.12 comment, further modified as described, be adopted. Next Meeting Chair Williams said the goal for the next meeting will be to complete review of the Rule 1
series comment revisions and review revisions to the Rule 2 series and Rule 3 series comments. Sandi Tabor again requested that any grammatical corrections concerning the Rule 1 series
comment revisions be emailed to her. There being no further discussion the meeting was adjourned at 2:00 p.m.