Members Present Judge Michael Sturdevant Dann Greenwood Mark Hanson Petra Mandigo Hulm Dianna Kindseth Ryn Pitts Justice Dale Sandstrom Dan Ulmer Pat Ward
Members Absent George Ackre Clare Carlson Jean Hannig Carol Johnson Jason Vendsel
Staff Jim Ganje Bill Neumann
Chair Sturdevant called the meeting to order at 10:00 p.m. and drew Committee members’
attention to Attachment B (September 3, 2010) - minutes of the June 15, 2010, meeting.
It was moved by Pat Ward, seconded by Dann Greenwood, and carried that the
minutes be approved.
Responsibilities of a Prosecutor - Amendments to Rule 3.8 - Cont’d Review
Chair Sturdevant explained that following the Committee’s June 15 meeting the proposed
amendments to Rule 3.8 relating particularly to revised paragraph ( c) were distributed for comment
to the ND Association of Criminal Defense Lawyers, the ND Commission on Legal Counsel for
Indigents, and Legal Services of North Dakota. The comments received are reflected in Attachment
C (September 3, 2010). He said comments submitted by Bismarck attorney Mike Hoffman on behalf
of the Association of Criminal Defense Lawyers are the more lengthy and substantive, while
comments submitted by Jim Fitzsimmons for Legals Services of ND are narrowly directed at
references in the amendments to juvenile proceedings. He said comments submitted by Robin
Huseby, Executive Director of the Indigent Defense Commission, generally agree with those
submitted by Mr. Hoffman. He noted that the U.S. Attorney had also submitted comments which
were distributed by email to Committee members and which address amendments to paragraphs (g)
and (h) of the current rule. Committee members then discussed the comments.
With respect to the comments submitted by Mr. Fitzsimmons, Judge Sturdevant noted that
the suggestion is that the amendments be modified to make clear that a prosecutor cannot
communicate with an unrepresented juvenile charged under a juvenile petition. He said the
comments note that juvenile proceedings are not criminal in nature and that current caselaw requires
that a juvenile must have counsel unless the juvenile is represented by a parent. He said the concerns
raised in the comment could likely be addressed by removing the reference to juvenile petitions in
paragraph ( c)(1).
Justice Sandstrom asked whether specific language should be included in revised paragraph
( c)(2) that makes explicit that communications with unrepresented juveniles are not permitted.
Without explicit language, he said, there may be an open question concerning what is prohibited in
Dann Greenwood noted that current paragraph ( c) is simply a blanket prohibition against a
prosecutor obtaining a waiver of rights from an unrepresented accused. He said the proposed
amendments carve out exceptions to what is now a general prohibition.
Judge Sturdevant asked whether language could be included in the comment to explain that
lack of any reference to juvenile proceedings does not imply that contact is permissible.
Bill Neumann noted that the opening phrase in the Rule indicates that the rule applies only
to prosecutor conduct in “a criminal case”.
Justice Sandstrom requested that staff research whether Rule 3.8 has ever been applied in the
context of a juvenile proceeding. Committee members agreed.
Chair Sturdevant said further consideration of the issue would be deferred until the next
meeting and presentation of information by staff.
Committee members next reviewed the comments submitted by Mr. Hoffman for the ND
Association of Criminal Defense Lawyers. It was noted that the Association’s primary concern is
with the amending language allowing a prosecutor to negotiate the disposition of a non-felony case
with an unrepresented defendant. The comment lists numerous collateral consequences that may
follow from a defendant’s guilty plea in a misdemeanor case. The comment suggests that if
prosecutors are allowed to negotiate with the defendant, then the result should be binding on the
court or the defendant should be allowed to withdraw the guilty plea. Additionally, the comments
suggest that procedural protections should be required, such as any communication with the
defendant must be in writing and prosecutors must advise the unrepresented defendant in writing of
any likely and potential consequences following the guilty plea.
Justice Sandstrom noted that there are likely many “collateral consequences” other than those
listed in the comment and it may be exceedingly difficult for a prosecutor to fully advise the
defendant of “any likely and potential” consequences.
Dann Greenwood observed that if the Association’s concerns are taken seriously then there
may be no worthwhile reason to amend paragraph ( c) at all.
Pat Ward said the comments set out general suggestions for a number of possible changes.
There is no indication, he said, how prosecutors would respond to the suggested changes. He
suggested that the Association and staff of the Indigent Defense Commission be requested to provide
specific proposed language for changes to the rule. He said the proposal could be circulated to the
state’s attorneys association for review and comment.
Following further discussion, Committee members agreed the Chair should contact Mr.
Hoffman, Ms. Huseby, and Mr. Fitzsimmons and request specific recommended language be
provided to address concerns noted in the submitted comments. Any proposed language would be
distributed to the state’s attorneys association for further comment. The Committee will discuss the
issue further at the December 10 meeting.
With respect to the comment submitted by U.S. Attorney Tim Purdon, it was noted that the
comment is with respect to proposed paragraphs (g) and (h) which resulted from the recent
amendments by the ABA to the model rule. The comment strongly encourages that paragraphs (g)
and (h) not be included in the current rule.
Justice Sandstrom suggested it would be helpful to know whether other jurisdictions have
adopted new paragraphs (g) and (h). Committee members agreed. Staff noted that the ABA monitors
adoption of model rule amendments and should have relatively recent information concerning
actions in other jurisdictions.
Staff drew attention to Attachment D (September 3, 2010) - a memorandum setting out ABA
comments related to paragraphs (g) and (h) that, through staff error, had not been included in earlier
rule amendments for Committee review. He said the ABA comments , , and , as reflected
in Attachment D, could be inserted at the end of the current rule’s comments. The ABA comments,
he said, would require only minor revisions, which are shown in Attachment D, to reflect the
Committee’s changes to paragraphs (g) and (h). He noted that Comment , on lines 8-9, refers to
prompt disclosure “to the court”, but the reference does not track any specific provision in the rule.
He suggested the reference could be removed. The new comment paragraphs will be included in the
revised draft to be reviewed at the December 10 meeting.
Chair Sturdevant recalled the Committee’s earlier decision to consider at a future meeting
draft amendments to Rule 1.15 of the Rules of Professional Conduct to provide guidance regarding
the acceptance of credit card payments for fees, costs, and retainers. Dann Greenwood, Petra
Mandigo Hulm, and Pat Ward had agreed to develop draft language. He noted a recent news item
on the Supreme Court’s website which indicated the ABA has adopted new model rules regarding
client trust accounts, which are addressed in current Rule 1.15. He said the Committee will likely
be reviewing the new model rules. He suggested that further consideration of rule language related
to credit card payment could be combined with review of the new trust account rules. Committee
There being no further discussion the meeting was adjourned at 11:00 a.m.