Chair Senechal called the meeting to order at 9:30 a.m. and drew Committee members' attention to Attachment B (September 19, 2003) - minutes of the June 24, 2003, meeting.
It was moved by Randy Lee, seconded by Sandi Tabor, and carried unanimously that the minutes be approved.
Chair Senechal drew attention to the proposed 2004 meeting schedule listed in the agenda. She asked whether, in light of the work before the Committee, it would be worthwhile to schedule additional meetings. After discussion, Committee members concluded two additional meetings should be scheduled. Chair Senechal said possible dates would be reviewed and members advised of the revised meeting schedule.
Chair Senechal mentioned that Rule 1.19 and associated rule amendments governing client files, papers, and property were adopted by the Supreme Court effective August 1- the effective date of legislation removing remaining statutory references to attorney retaining liens. She noted the new rule has garnered national attention and was reviewed in a recent edition of the ABA/BNA Lawyers' Manual on Professional Conduct [ See Attachment C (September 19, 2003)]. Chair Senechal also informed the Committee that the Rule 7 series proposals concerning lawyer advertising had been submitted to the Supreme Court for consideration.
Multijurisdictional Practice - Review of Revised Rule Amendments
At the request of Chair Senechal, staff reviewed revisions to the previously considered amendments to Rule 5.5, Rules of Professional Conduct - Attachment D (September 19, 2003). He said the revisions include those changes directed at the June 24 meeting and a few additional technical amendments. He noted the "safe harbor" identified in Rule 5.5(b)(5) pertaining to services performed by a lawyer which may be performed by a person without a license to practice law or without some other authorization. He said the revisions, in response to discussion at the last meeting, are intended to clarify the meaning of the rule proper and explanatory language was added to the Comment (page 5, lines 3-8). The explanatory language, he said, was borrowed from the ABA's Interim MJP Task Force Report and offers examples of the kinds of services an out-of-state lawyer could perform without running afoul of in-state licensing requirements.
Staff said the proposed amendments to Rule 8.5, also included in Attachment D, remain unchanged from those reviewed by the Committee at the June 24 meeting.
Sandi Tabor noted the references to "pro hac vice" in the Rule 5.5 amendments [paragraph (b)(1) and (2)]and suggested "pro hac vice admission" be substituted to ensure consistency with other references in the rule.
It was moved by Dan Crothers, seconded by Sandi Tabor, and carried unanimously that the revised amendments to Rule 5.5, modified as suggested, and proposed amendments to Rule 8.5 be approved for submission to the Supreme Court.
At the request of Chair Senechal, staff then reviewed revisions to Rule 3 of the Admission to Practice Rules, also included in Attachment D (September 19, 2003). Staff said the revisions incorporate, in underscored format, Rule 11.1 of the Rules of Court currently governing pro hac vice admission, as that rule was modified by the SBAND MJP Task Force and further modified by the Committee at its June 24 meeting.
Sandi Tabor drew attention to the requirement in Section A(1)(b)(2) [page 2, lines 19-20] that the nonresident attorney must submit an affidavit indicating, among other things, whether the attorney is subject to a "public" disciplinary proceeding in any jurisdiction. She questioned whether this disclosure should concern only public proceedings. She suggested the disclosure should be with respect to any disciplinary proceeding. Staff noted that the reference is included in current Rule 11.1.
Dan Crothers said limiting the disclosure to public proceedings would eliminate an entire category of disciplinary proceedings from consideration by the admitting authority.
It was moved by Sandi Tabor, seconded by Dan Crothers, and carried unanimously that "public" be deleted from Section A(1)(b)(2).
Sandi Tabor noted Section B, which would provide for registration of an out-of-state attorney who is eligible for admission and is employed by, among other entities, a "governmental entity" whose lawful business consists of activities other than the practice of law or the provision of legal services. She questioned whether it is meaningful to include governmental entities in this way and asked whether it is intended that someone employed by an Attorney General's office, for example, could not file an application for registration.
Dan Crothers said if a registered attorney must obtain pro hac vice admission to appear in court on behalf of a client, then it is unclear why there would be an exception for an attorney employed by a governmental entity. Staff noted that Section B(1)(b)(6) provides that if in-house counsel desires to appear, then a separate motion for pro hac vice admission is required.
Sandi Tabor questioned the need to retain the reference to governmental entity. Judge Braaten said there may be a chilling effect if an attorney for a governmental entity must register and then file for pro hac vice admission before appearing in a court.
It was moved by Dan Crothers, seconded by Judge Braaten, and carried unanimously that "or a governmental entity" be deleted from Section B (page 4, line 20).
With respect to Section A governing pro hac vice admission, Mike Williams wondered whether arbitration activities would be subject to the admission requirements. He said the reference to "tribunals" (page 1, line 13) would seem applicable to various courts, but not to arbitration, which is generally handled outside the court system. Dan Crothers said his recollection was that lawyers involved in arbitration would be subject to the requirements. Sandi Tabor noted that the proposed Comment to Rule 5.5 provides that an out-of-state lawyer representing a client in an ADR proceeding in North Dakota must obtain pro hac vice admission ( Rule 5.5 amendments, page 5, lines 14-16).
Mike Williams observed that Section A of the Rule 3 amendments refers to representing a party in a "court-sponsored" alternative dispute resolution process and wondered whether a private ADR process is also included. Additionally, he asked whether the reference to "court-sponsored" ADR in Section A is intended to mean something different from the reference in the Rule 5.5 Comment to "an ADR proceeding."
Randy Lee noted that the ABA MJP rule defines tribunal to include an arbitrator in binding arbitration proceedings. He said it may be necessary to consider including a definition of "tribunal".
Dan Crothers noted that the SBAND Task Force diverged from the ABA approach in proposing stricter requirements for out-of-state lawyers involved in ADR proceedings within the state. That, he said, would suggest retention of the "court-sponsored" requirement in Section A, which would mean any out-of-state lawyer in a private ADR proceeding would not be able to practice law in the state without affiliating with an in-state lawyer.
Sandi Tabor asked with whom the pro hac vice application for admission would be filed if the admission requirement applied to all ADR proceedings, not just those that were court-sponsored. She wondered whether the application could also be filed with the Board of Law Examiners. Dan Crothers said resistance to that approach was premised on the Board's lack of adequate staff to handle the work that might be associated with such an expanded application of the rule. He said the expectation is that there will be a fairly high number of applications for pro hac vice admission even with the narrower scope of the current language. Consequently, he said, it was feared that expanding the kinds of proceedings for which such admission could be sought would cause workload problems.
Dan Crothers suggested that if the "court-sponsored" limiter was removed from the rule with respect to ADR proceedings, then the affected tribunal would likely be the entity responsible for receiving the application of admission and monitoring compliance.
In response to a question from Sandi Tabor, Mike Williams said Minnesota attorneys regularly appear in North Dakota mediation and arbitration proceedings. He drew attention again to the apparent conflict between the proposed Comment language in Rule 5.5 that seems to require pro hac vice admission if an out-of-state attorney is representing a client in a North Dakota ADR proceeding, and the language in Section A of proposed Rule 3, which seems to require pro hac vice admission only for "court-sponsored" ADR proceedings. He said it is unclear why there is a distinction with respect to admission requirements between, for example, arbitration in which an action has been filed and arbitration in which an action has not been filed. Dan Crothers said one distinction is that if the action has been filed, the district judge in the proceeding would be responsible for overseeing admission.
Ron Reichert suggested there may also be some ambiguity concerning when an action is "filed". Alice Senechal agreed and drew attention to the third paragraph of the Explanatory Note (Rule 3 amendments, page 7, lines 18-19). That provision, she said, provides that an action must be filed before an attorney can move for permission to appear, but if the action settles before it is filed the attorney need not file the motion requesting permission to appear. Judge Braaten said the language may also be inconsistent with the requirement in proposed Rule 3A(2) that the motion requesting permission to appear must be filed within 45 days after service of the pleadings, motion, or other paper. Dan Crothers suggested reading the two requirements together would mean that there is a 45 day window in which the action can be settled without the attorney being required to file the motion for permission to appear.
Noting that in North Dakota an action is commenced with service not filing, Ron Reichert said it would appear then that an out-of-state attorney could serve and settle an action without ever having been subject to the state's discipline process. Judge Braaten noted that the proposed rule does provide that once an attorney signs pleadings, the attorney has 45 days after service within which to file the motion requesting permission to appear.
Judge Braaten noted that under Rule 8.8, Rules of Court, "court-sponsored" ADR appears to refer to situations in which a judge or judicial officer is involved in settlement conferences or domestic relations mediation.
Dan Crothers reiterated that the SBAND MJP Task Force discussion centered around the effort and resources that would be needed to administer admissions for attorneys involved in ADR proceedings that are not court-sponsored. Consequently, he said, the conclusion was to limit pro hac vice admission to court-sponsored ADR proceedings and not extend it at this time to neutrals or ADR proceedings that are not court-sponsored. Sandi Tabor wondered that there was no concern that there would be no way, then, to monitor the activities of those involved in such proceedings. Dan Crothers said the conclusion was that such activities would continue to be considered the unauthorized practice of law.
Mike Williams said there should be no distinction between arbitration or mediation that is court-sponsored and arbitration or mediation that is not. He agreed with the general principle in the Comment to proposed Rule 5.5 that there should be some form of regulation if an out-of-state attorney represents a client in a North Dakota ADR proceeding.
In response to a question from Chair Senechal concerning how the issue should be addressed, Dan Crothers said if changes to the proposed language are to be considered, then comments should be solicited at least from Penny Miller concerning the possible personnel and workload impact on the Board of Law Examiners.
Mike Williams suggested Section A of proposed Rule 3 be modified to be consistent with the Comment to proposed Rule 5.5 with respect to requiring pro hac vice admission if an out-of-state attorney represents a client in any ADR proceeding in North Dakota. Dan Crothers said revisiting the issue will likely require postponing submission of proposed Rule 5.5 to the Supreme Court.
It was moved by Mike Williams, seconded by Sandi Tabor, and carried unanimously that Section A of proposed Rule 3 be modified in the manner described and that Penny Miller be contacted for comments concerning any impact on the Board of Law Examiners.
It was moved by Randy Lee, seconded by Dr. Post, and carried that the Committee postpone submission of proposed Rules 5.5 and 8.5 to the Supreme Court.
Chair Senechal noted the previous discussion concerning the inconsistency between the reference in the Rule 3 Explanatory Note to an action being filed before the request to appear is made (page 7, lines 18-19) and the requirement in Section A(2) that the request for permission to appear must be filed within 45 days after service of pleadings. She asked whether there were any suggested changes to address this issue.
Judge Braaten said she preferred the requirement language set out in Section A(2). She suggested that perhaps the language could be modified to provide that the rule requires a motion requesting permission to appear to be filed no later than 45 days after service of the pleadings, but the attorney should be aware that to move for permission to appear, the action must first be filed.
Dan Crothers said the language in the Explanatory Note was added to address actions such as debt collections in which there may be a significant chance the matter will settle before it is filed. He said the basic point is to make clear that for any action that is commenced with service of the summons, the attorney must be aware that the motion for pro hac vice admission must be served within 45 days of service. Judge Braaten said the objective is also to make clear that the action must be filed before the motion for admission is made, else there is no action in court to which the motion for admission pertains.
Randy Lee suggested prefacing the last paragraph with language emphasizing that Section A(2) requires a motion for permission to appear to be filed within 45 days of service of the pleading and clarifying that if an action is commenced by service, the action must be filed before the attorney moves for permission to appear.
It was moved by Judge Braaten, seconded by Dan Crothers, and carried unanimously that the Explanatory Note be modified as discussed.
Elaine Fremling suggested Section B(1) should be restructured to clarify the requirement that the various affidavits and fee must be filed with the Secretary of the Board of Law Examiners. Staff said the section could be revised to follow the captioning approach of the remaining paragraphs in the section.
It was moved by Mike Williams, seconded by Dr. Post, and carried unanimously that Section B(1) be revised as described.
Sandi Tabor noted the CLE requirement in Section B(3) and wondered who would have the responsibility for monitoring compliance by registered attorneys. Judge Braaten said an additional issue is whether "approved coursework" means only coursework approved the North Dakota CLE Commission, as opposed to coursework the out-of-state registered attorney completes elsewhere.
With respect to hourly requirements, Ron Reichert suggested a registered lawyer should complete 15 hours of CLE in each year during which the attorney is registered. Otherwise, he said, a registered attorney could provide services in the state for less than three years and leave without ever having complied with the CLE requirement.
It was moved by Ron Reichert and seconded by Dan Crothers that Section B(3) be modified to require that the registered attorney complete at least 15 hours of CLE during each year of registration.
With respect to the kind of CLE to be completed, Dan Crothers suggested rather than referring to "approved" coursework, simply requiring that the registered lawyer complete CLE as otherwise provided by the rules for continuing legal education. Ron Reichert suggested referring to "CLE approved by the CLE Commission" or, alternatively, simply allowing the Commission to determine applicable requirements for registered attorneys. Sandi Tabor observed that the Commission currently does not require yearly CLE reports and a different process would have to be developed to monitor such reports.
Mike Williams questioned the additional burden imposed on the registered lawyer who, although qualified, must complete 15 hours of CLE each year while resident lawyers have three years over which to accumulate the required 45 hours.
Dan Crothers said that notwithstanding having seconded the motion, he would oppose it since a yearly requirement would create a significant problem for the bar association office. Additionally, he said, creating different CLE requirements for special categories of lawyers may pose a problem with respect to reciprocity, an issue to be reviewed later by the Committee.
After further discussion, the motion failed.
Alice Senechal noted Section C, which provides that a nonresident attorney subject to license restriction in another jurisdiction is not eligible for pro hac vice admission. With respect to lawyer diversion and assistance programs, she wondered whether a lawyer's participation in such a program in another jurisdiction would be considered a license restriction. The consensus among Committee members was that it would constitute a license restriction.
Chair Senechal said the proposed rule, with the revisions discussed, would be presented for review at the next meeting. Dan Crothers stressed the need to conclude review of the MJP proposals and submit them to the Supreme Court so the rules, if adopted, can appear in the new rule publication.
Chair Senechal next drew Committee members' attention to Attachment E (September 19, 2003) - a letter from Christine Hogan forwarding to the Committee two proposals regarding reciprocal licensure which are under consideration in South Dakota and Montana. Staff also distributed a follow-up letter indicating that the Board of Governors had formally voted to refer the issue of reciprocal licensure to the Committee for review. A copy of the letter is attached as an Appendix.
Dan Crothers explained that as part of the general consideration of multijurisdictional practice, a number of bar association presidents in the region discussed the possibility of some type of reciprocal admission to somewhat ease the barriers to licensure in surrounding states. At present, he said, to be admitted in South Dakota an out-of-state lawyer must take the bar examination, although that state has relatively liberal pro hac vice admission requirements. He said Montana, on the other hand, limits an attorney to two pro hac vice admissions within the attorney's lifetime. He said it appeared to be in the interest of rural states to cooperate on the issue of licensure for out-of-state attorneys and the South Dakota bar association membership recently approved a proposed change to that state's reciprocity provision. It also appears, he said, that Montana's Committee on Multijurisdictional Practice has recommended changes in that state's rules. He said Washington, Oregon, and Idaho currently have a reciprocity arrangement and there is discussion of Montana joining that effort. It is possible, he said, that North Dakota could pursue efforts to also join. It would, he said, be a benefit to North Dakota lawyers as well as lawyers in the other states.
Chair Senechal said the initial question is whether changes should be made to current Rule 6 of the Admission to Practice Rules (Admission by Motion) should be considered. In response to a question from Chair Senechal, Randy Lee offered to review Rule 6 and the South Dakota and Montana proposals.
Licensing of Foreign Legal Consultants
Chair Senechal then drew Committee members' attention to Attachment F (September 19, 2003) - correspondence and related information concerning a model rule for licensing foreign legal consultants. She noted that the Committee had briefly discussed this issue in the past but had deferred further review until the Committee began its consideration of the multijurisdictional practice proposals.
Randy Lee observed that the model rule inexplicably describes in detail what a person licensed as a foreign legal consultant cannot do, but does not identify what the person can do.
Dan Crothers said the SBAND MJP Task Force briefly reviewed the issue but did not see a need to further pursue it. Randy Lee noted the impending impact of the General Agreement on Trade in Services. Dan Crothers agreed the possible effect of GAT on lawyer services is problematic, but there is likely no need for the rule in North Dakota at present. He suggested the better course would be to monitor GAT developments and address the issue in the future if necessary.
It was moved by Dan Crothers, seconded by Ron Reichert, and carried unanimously that the Committee not consider the model rule at this time and await further developments concerning the impact of GAT and the response in other jurisdictions.
Lawyer Diversion and Assistance - Review of Revised Draft Rules
At the request of Chair Senechal, staff reviewed Attachment G (September 19, 2003) - revised rule proposals regarding lawyer diversion and assistance. Staff said the revisions incorporate the various changes discussed at the Committee's June 24 meeting. He said other changes were included at the request of Chair Senechal as a result of her discussions with disciplinary counsel. Particularly, he said, those changes clarify that the hearing panel, rather than the disciplinary board, would be responsible for referring the lawyer for screening for possible participation in the assistance program, and also clarify that the hearing panel's consideration of a complaint would continue during the screening process. Chair Senechal said the changes concerning the hearing panel's involvement were included due to the fact that the board meets infrequently and a hearing panel is better situated to handle the referral responsibility to ensure the process is not delayed.
Sandi Tabor noted the reference to State Bar Association of North Dakota on page 6, line 36. In light of the definition of "association" in the rules, she said it is likely unnecessary to refer to the association by its full formal title. She also suggested the reference to "cure" is uncertain in meaning and likely unnecessary in light of the other diversion objectives listed.
It was moved by Sandi Tabor, seconded by Dr. Post, and carried unanimously that the reference on page 6, line 36, to State Bar Association of North Dakota be changed to "association" and that the reference to "cure" on page 7, line 22, be deleted.
Mike Williams wondered whether the reference on page 7, line 23, to the lawyer's underlying "problem" is too narrow, and whether another term, such as "issues" might be more descriptive. Elaine Fremling noted that the definition of lawyer assistance program refers to "problems" and in that respect the reference on page 7 is consistent.
In response to a question from Dr. Post, Judge Braaten said the hope and objective of the program with respect to mentors is that a group of attorneys and other individuals would be formed which would be available to offer assistance and guidance to the affected lawyer.
Staff noted that the Committee had previously completed review of a draft enabling rule concerning the establishment of a lawyer assistance program and proposed amendments to Rule 8.3, Rules of Professional Conduct, which addressed the duty of lawyers or judges participating in an assistance program to report misconduct.
After further discussion, it was moved by Sandi Tabor, seconded by Elaine Fremling, and carried unanimously that the proposed enabling rule and the various proposed rule amendments regarding lawyer assistance and diversion be submitted to the Board of Governors for review and comment.
Ethics 2000 Review
Sandi Tabor drew attention to Model Rule 6.5, which would remove the previous ethical rule barriers to lawyers offering service as part of a non-profit or limited legal services program. The most obvious example, she said, was the Thursday evening call-in legal assistance program in which many lawyers participated. The program was canceled, she said, as the result of an ethics opinion that concluded that because of the potential conflict of interest government and corporate lawyers, particularly, could not participate in the program. She said Model Rule 6.5 would address these rules and she requested that the Committee expedite consideration of the rule.
Chair Senechal said consideration of the model rule would be placed on the agenda for the next meeting.
Chair Senechal next drew attention to an issue concerning previously reviewed Rule 1.2 - the potential inconsistency in the references to objectives versus scope of representation. Dan Crothers noted that the Comment to ABA Model Rule 1.2 makes clear that there is a purposeful distinction between the objectives of representation and the scope of representation and the language in revised North Dakota Rule 1.2 now tracks the ABA language. As a result, he said the issue is no longer a concern.
Committee members then turned to a review of Attachment H (September 19, 2003) - a review and comparison of Model Rule 1.8 and North Dakota Rule 1.8 submitted by Tim Priebe. Staff noted that the Committee had previously reviewed Rule 1.8(a) and had tentatively approved addition of a writing requirement in paragraph (a)(2) [written advice to seek counsel and client consent in writing].
Sandi Tabor drew attention to paragraph (b), which generally prohibits a lawyer from using information relating to a client's representation to the disadvantage of the client unless the client consents after consultation, including advice to seek independent counsel. She suggested that to be consistent with the Committee's previous conclusions concerning written client consent, paragraph (b) should require that the client consent in writing.
It was moved by Sandi Tabor, seconded by Ron Reichert, and carried unanimously that a requirement be included in paragraph (b) that the client consents in writing.
Mike William noted the reference in current paragraph (b) to the lawyer's use of information to the disadvantage of the client "for purposes of furthering either the lawyer's or another person's interest". He suggested deleting the phrase because the model rule does not contain a similar reference. Dan Crothers expressed concern that removing the identified purpose might expose lawyers to potential discipline for a variety of actions that may be viewed simply as being "to the disadvantage of the client." Additionally, he said he is uncertain about the history and purpose of including the provision in the rule in the first instance. Mike Williams said use of confidential information to the disadvantage of a client, regardless of motive or method, is inappropriate. Judge Braaten noted that the Comment to the current rule does not address the purpose for which the information is used.
After discussion, it was moved by Mike Williams, seconded by Judge Braaten, and carried that "for purposes of furthering either the lawyer's or another person's interest" be deleted from paragraph (b). (Dan Crothers - no).
Staff noted the Committee's previous conclusion to include in paragraph (a)(2) a requirement that advice to seek independent counsel be in writing. He asked whether a similar approach is warranted for paragraph (b).
Committee members noted that the general thrust of the Comment to the Model Rule seems to be that nearly everything should be in writing. Ron Reichert said the advice to seek independent counsel should be in writing. Judge Braaten said she would prefer deleting the requirement from paragraph (a)(2) and not including it in paragraph (b).
It was moved by Ron Reichert, seconded by Mike Williams, and carried that paragraph (b) include a requirement that the advice to seek independent counsel be in writing. (Dan Crothers, Judge Braaten - no).
Committee members then reviewed paragraph (c), which prohibits a lawyer from preparing an instrument giving the lawyer or a person related to the lawyer any substantial gift from the client. Dan Crothers noted that the model rule is broader in scope than the current rule, but does not address whether the lawyer can solicit a gift on behalf of someone else, such as a non-profit organization.
Elaine Fremling said the focus of the rule seems to be on the risks associated with the conflict of interest when a lawyer prepares a document giving the lawyer a gift from the client. She said the rule should not restrict the lawyer's ability to solicit gifts on behalf of a charity, for example. Alice Senechal wondered whether it could be to the lawyer's benefit to solicit a gift for a charity. Dan Crothers said it could be to the lawyer's benefit and, as a result, such activities would also represent a conflict of interest. He noted that the Comment to the Model Rule explains the purpose is to generally prohibit receiving substantial gifts for the lawyer or the lawyer's benefit.
Mike Williams noted that the Model Rule prohibits "soliciting" a gift and wondered where solicitation begins and ends.
Dan Crothers said it would add a clarifying element if the definition of "related persons" in the Model Rule were included in the current rule.
It was moved by Dan Crothers, seconded by David Hogue, and carried unanimously that paragraph (c) be modified to follow the Model Rule approach in defining related persons.
Following a review of paragraphs (d) and (e), Committee members concluded changes to the current provisions were unnecessary.
Committee members then reviewed paragraph (f), which prohibits, with exceptions, a lawyer from accepting compensation for representing a client from someone other than the client. Alice Senechal noted the exception concerning the client's consent after consultation and asked whether a writing requirement should be included.
It was moved by Mike Williams and seconded by Judge Braaten, that paragraph (f)(3) be modified to include a writing requirement.
Ron Reichert noted the potential problem in juvenile cases, in which the parent often pays for legal representation for the child. He wondered what the child's consent would pertain to. David Hogue observed that in the context of insurance agreements, a client has already consented in the agreement to the insurer's choice of representation. He wondered why the client would be required to consent in writing a second time. Mike Williams said the importance of consent is to ensure that if the lawyer accepts compensation from someone else, the client still has the lawyer's undivided loyalty. Judge Braaten wondered if the purpose of the rule is to simply address situations in which the client consents to someone else paying the fee for representation.
David Hogue suggested the alternative of simply informing the client that someone else is paying the bill. Dan Crothers said the lawyer's commitment to the client, even if accepting compensation from someone else, is addressed in other rule provisions. Mike Williams noted that paragraph (f)(1) and (2) require that when accepting compensation from someone else there must be no interference with the lawyer's independent professional judgment or the lawyer-client relationship, and information relating to representation of the client must remain protected. If , he said, these considerations are included in the consultation with the client, there appears to be no reason why the client's consent should not be in writing. Judge Braaten agreed.
After further discussion, the motion carried. (David Hogue, Dan Crothers - no).
Committee members next reviewed paragraph (g), which generally prohibits a lawyer representing two or more clients from making an aggregate settlement of claims unless each client consents. It was noted that the model rule change consists of requiring that the each client give informed consent in writing.
It was moved by Mike Williams and seconded by Judge Braaten that paragraph (g) be modified to require that the client consent in writing.
Ron Reichert wondered what would constitute an aggregated settlement in a criminal case.
He said his basic concern with the existing rule is that a lawyer should not be representing two clients in the same criminal case and the rule seems to imply that is acceptable. He suggested deleting criminal cases from the rule. Alice Senechal noted that there is no blanket prohibition on representing two clients in a criminal case and there is a general reference to criminal cases in Rule 1.7 governing conflicts of interest.
It was moved by Ron Reichert, seconded by Dr. Post, and carried that the motion be tabled pending consideration of additional information concerning application of the rule to criminal cases.
Chair Senechal then drew attention to paragraph (h) regarding limiting liability for malpractice, which differs substantially from the model rule. Dan Crothers noted the model rule change which would extend the prohibition against settling claims to potential claims. He said that approach seems warranted.
It was moved by Dan Crothers, seconded by Mike Williams, and carried unanimously that paragraph (h) be modified to include potential claims.
Alice Senechal noted paragraph (h) requires as prerequisites to any settlement that there be consultation with the client, including advice to seek independent counsel, and that the client consents. She wondered whether a writing requirement should be included as with previous provisions.
Mike Williams observed that the current rule places the emphasis on client consent, while the model rule seems to emphasize advising the client.
It was moved by Judge Braaten, seconded by Mike Williams, and carried unanimously that paragraph (h) be modified to require that the client consent in writing.
Committee members next reviewed paragraph (i), which is addressed in some measure in model rule paragraph (h)(1).
Dave Hogue wondered whether a lawyer must obtain consent if the lawyer proposes that any prospective malpractice be resolved by arbitration or if in some other way procedural rights are taken from the client.
Mike Williams asked whether, from a client's perspective, it is ever possible to justify a prospective limit on the lawyer's malpractice. Ron Reichert gave the example of a client requesting representation on an issue for which the statute of limitations has nearly expired. In order for the client's interests to be preserved, he said, the action must be started immediately and quickly. Because the time before the statute of limitations expires is so short, he said, a lawyer may refuse to take the case unless there is some protection against a future malpractice claim.
Dan Crothers said model rule paragraph (h)(1) does not address the example given in which the client has no time to explore alternatives, but it does seem to strike a middled ground.
It was moved by Dan Crothers and seconded by Dr. Post that model rule paragraph (h)(1) be substituted for current paragraph (i).
Dan Crothers said malpractice is simply negligence. There is, he said, a standard of care regardless of the circumstances of the case and a client should not be asked to waive that standard of care at the outset.
Judge Braaten noted that the Comment to current Rule 1.1 (Competence) discusses emergency situations in which a lawyer may provide advice or assistance in a matter in which the lawyer does not have the skill ordinarily required.
David Hogue said he would oppose the motion because the current rule serves fairness to the attorney. He said in situations in which the client has, by whatever means, created the crisis or emergency, it is better for a lawyer to take the case and limit liability than to reject the client.
The motion carried (4-3).
It was moved by Mike Williams, seconded by Dan Crothers, and carried unanimously that paragraph (h) and paragraph (i), as modified, be combined.
Committee members then reviewed paragraph (j) governing the practice of law by a part-time prosecutor or judge, which has no counterpart in the model rules. There were no suggested changes to paragraph (j).
Attention then turned to model rule paragraph (j), which would prohibit a sexual relationship with a client unless a consensual relationship existed between the lawyer and client when the lawyer-client relationship began.
Dan Crothers asked lay Committee members their perception of the need for such a rule. Dr. Post said in the medical profession sexual relationships with patients are strictly taboo and subject to significant discipline. He said there is a simple prohibition against such relationships; there is no allowance for a relationship if it existed before the doctor-patient relationship commenced. Elaine Fremling said within the insurance industry there is nothing similar to the power position associated with a lawyer-client or doctor-patient relationship. Consequently, there is no similar "rule" of professional conduct. Nevertheless, she said, because of the unique relationship between lawyer and client, it is likely necessary that the subject be addressed.
It was moved by Dan Crothers, seconded by Judge Braaten, and carried that model rule paragraph (j) be adopted. Dr. Post said he opposed the motion because a sexual relationship between a lawyer and client should simply be prohibited. He wondered how a lawyer could be truly objective with respect to a client's interests if the lawyer is sexually involved with the client. Judge Braaten agreed with the concern, but suggested the model rule is a step forward since North Dakota has no rule now.
With respect to model rule paragraph (k), which provides for imputation of the prohibitions set out in Rule 1.8, Dan Crothers said there is a Supreme Court opinion that holds that "chinese walls" are appropriate under some circumstances. He suggested the Committee postpone discussion of paragraph (k) until Randy Lee can join the discussion at the next meeting. Committee members agreed.
There being no further business, the meeting was adjourned at 2:05 p.m