Alice Senechal, Chair
Judge Karen Braaten
Petra Hedvig Mandigo
Brent Edison, Assistant Disciplinary Counsel
Chair Senechal called the meeting to order at 10:00 a.m. and welcomed Clare Carlson, a new member appointed by the Board of Governors. She then drew attention to Attachment B ( April 1, 2005) - minutes of the March 18, 2005, meeting. It was noted that on page 13, 3rd paragraph, the reference to "current rule" should read "current comment".
It was moved by Jean Hannig, seconded by Ryn Pitts, and carried unanimously that the minutes, as corrected, be approved.
Chair Senechal noted that the Committee is nearing the end of its review of the Rules of Professional Conduct. She said she expected the review of proposed amendments to the remaining comments to be completed at this meeting. She said the Committee would conduct a final read-through of all the proposed amendments at its next meeting. The Committee's assembled report, she said, would then be submitted to the SBAND Board of Governors for comment, as required by rule. She noted that some thought had been given to scheduling an additional meeting of the Committee to permit the read-through and submission to the Board for its June meeting, but the conclusion was that the Board would schedule a special meeting to review the submission. She said the Committee could consider any comments the Board may have at the Committee's September meeting and then prepare the final report for submission to the Supreme Court. The principal objective, she said, for the time between this April meeting and the Committee's scheduled June 14 meeting is for members to review rule and comment amendments for cross-references, formatting, and any substantive issues that may require attention. Committee members agreed a special May meeting is unnecessary and the plan as outlined should be sufficient.
Rule 4 Series Comments - Revisions
Judge Braaten then reviewed her proposed revisions to the Rule 4 series comments - Attachment A (April 4, 2005).
With respect to Rule 4.1 comment, Judge Braaten noted that the Committee had not made any changes to the black-letter rule. She noted that the current rule is broader in scope than the ABA model rule in that it is not limited to prohibiting a lawyer from making false statements of material fact. Rather, she said, the current rule prohibits making a statement of fact or law to a third person that the lawyer knows to be false. In light of those differences, she said she would recommend inclusion of a reference to Rule 8.4, similar to that contained in the model rule comment, but she would not recommend inclusion of any additional ABA comment language. Most particularly, she said, the ABA comment addresses conduct by lawyers in negotiations and appears to create a substantive exception to the black-letter rule within the comment, which is an approach the Committee has declined to follow.
Jean Hannig noted that paragraph  of the model rule comment provides that misrepresentations can occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. She wondered whether that language should be included in the comment. Brent Edison noted that such issues have arisen in which the "silence" was considered to be a false statement.
For purposes of discussion, it was moved by Judge Braaten and seconded by Elaine Fremling that the proposed comment revisions in Attachment A be approved.
It was moved by Jean Hannig, seconded by Run Pitts, and carried unanimously that the motion be amended to include the sentence from the model rule comment addressing misrepresentation in the form of partially true but misleading statements or omissions that are the equivalent of affirmative false statements.
The main motion, as amended, carried unanimously.
Judge Braaten next reviewed the proposed revisions to the Rule 4.2 comment. She noted that the Committee's revision to the black-letter rule essentially included a reference to "court order". She said the proposed addition of paragraph  to the comment is from the model rule and assists in explaining the general purpose of the rule. She said the proposed language in paragraphs and , also from the model rule, further clarifies acceptable communications by a lawyer with a represented person. She said new paragraph  explains the ability of a lawyer to seek a court order when there is uncertainty concerning whether the communication is permissible or when there are exceptional circumstances. She noted that proposed revisions in paragraph  address significant issues concerning communications with "constituents" of an organization that is represented by counsel. The revisions, she said, follow the model rule in defining permissible communications. She noted that the current rule prohibits communications by a lawyer with those having managerial responsibility on behalf of the organization, which does not clearly describe with whom a lawyer may or may not communicate. The model rule language, she said, is clearer in referring to a "constituent" and in the defining that term. With respect to paragraph , she said the deleted language was also deleted from the model rule comment, which seems appropriate since the language is inconsistent with the definition of "knowledge" included in the Terminology rule.
It was moved by Judge Braaten and seconded by Petra Mandigo that the proposed revisions to the Rule 4.2 comment be adopted.
Jean Hannig noted paragraph  of the model rule, which addresses communications with a person concerning the matter to which the communication relates. Judge Braaten said similar language is contained in the current rule and is set out as paragraph  of the revised comment.
Jean Hannig drew attention to paragraph  of the model rule, which explains that the rule applies even though the represented person initiates or consents to the communication and instructs that the lawyer must terminate the communication immediately if the lawyer learns that the communication is not permitted by the rule. She asked whether the language is included in the revisions. Judge Braaten said the language is not included, but could be a useful addition. Committee members agreed the language could be added to the revised comment as a new paragraph .
With respect to the reference to "Terms" in paragraph , Jean Hannig suggested substituting a reference to the proposed new Terminology rule and the particular paragraph pertaining to "knowingly" etc.
Following further discussion, it was moved by Jean Hannig, seconded by Petra Mandigo, and carried unanimously that the motion be amended to include the addition of new paragraph  and the further revision to paragraph , as described.
The motion, as amended, carried unanimously.
Judge Braaten next reviewed the proposed revisions to the Rule 4.3 comment. She noted that the Committee had concluded at the June 8, 2004, meeting that the model rule comment should replace the current comment. She said the proposed revisions adapt the current comment to the model rule comment.
It was moved by Judge Braaten, seconded by Jean Hannig, and carried unanimously that the proposed revisions to the Rule 4.3 comment be approved.
Judge Braaten then reviewed the proposed revisions to the Rule 4.4 comment. She noted that the Committee had made only a minor change to the black-letter rule by including a reference to delay. In consequence, she said the proposed revision to the comment is also minor.
It was moved by Judge Braaten, seconded by Petra Mandigo, and carried unanimously that the proposed revisions to the Rule 4.4 comment be approved.
New Rule 4.5 - Inadvertent Transmission
Chair Senechal noted the Committee's earlier approval of a new Rule 4.5 governing inadvertent transmission of documents to another lawyer. She said the Committee has not yet reviewed a proposed comment to the rule, but she would provide one for review at the next meeting.
Rule 5.3 - Comment Revisions
Alice Senechal then reviewed Attachment C (April 1, 2005) - proposed revisions to the Rule 5.3 comment. Preliminarily, she noted that the last four paragraphs of the current rule address issues concerning the use of legal assistants, subject matter that is unique to the North Dakota rule and therefore not contained in the model rule. With respect to the proposed revisions, she said the second paragraph reflects model rule language and explains the responsibility of lawyers with managerial authority to make efforts to establish policies designed to ensure compliance with the Rules. She recommended that "18" in the 4th paragraph (3rd paragraph of current comment) be spelled out. Additionally, she recommended that "lawyer" rather than "attorney" be used through the comment. With respect to the 5th paragraph (4th paragraph of current paragraph), she noted the reference midway through the paragraph to "fee arrangement relating to the presentation" and suggested it should correctly read "fee arrangement relating to the representation". She did not recommend any further revisions to the comment.
It was moved by Elaine Fremling, seconded by Ryn Pitts, and carried unanimously that the proposed revisions to the Rule 5.3 comment be approved.
Rule 6 Series Comments - Revisions
Petra Mandigo then reviewed Attachment D (April 1, 2005) - proposed revisions to the Rule 6 series comments. With respect to the Rule 6.1 comment, she noted that the Committee had not approved revisions to the black-letter rule and the proposed comment revisions consist of numbering the paragraphs of the current comment and adding a 4th paragraph, which reflects language added to the model rule comment.
It was moved by Petra Mandigo, seconded by Jean Hannig, and carried unanimously that the proposed revisions to the Rule 6.1 comment be approved.
With respect the Rule 6.2 comment, Petra Mandigo said the proposed revisions consist of numbering the paragraphs to follow the model rule format. She noted that there were no changes to the current rule and no changes to the model rule or comment.
It was moved by Petra Mandigo, seconded by Clare Carlson, and carried unanimously that the comment paragraphs be numbered as recommended.
With respect to the Rule 6.3 comment, Petra Mandigo said the proposed revisions again consist of numbering the paragraphs as there were no significant changes to the rule and no changes to the model rule and comment.
It was moved by Petra Mandigo, seconded by Clare Carlson, and carried unanimously that the comment paragraphs be numbered as recommended.
It was moved by Petra Mandigo, seconded by Elaine Fremling, and carried unanimously that the Rule 6.4 comment paragraphs be numbered as recommended in Attachment D.
Rule 8 Series Comments - Revisions
Jean Hannig then reviewed Attachment E (April 1, 2005) - proposed revisions to the Rule 8 series comments. With respect to the Rule 8.1 comment, she recommended the inclusion in paragraph  of model rule language concerning the obligation to correct a prior misstatement in a matter that may have been made. She noted that portions of the report pertaining to paragraph  and  were not included in the material. She said there are no recommended revisions to paragraph , but it is recommended that "including Rule 1.6 and, in some cases, Rule 3.3 (language from the model rule comment) be added at the end of paragraph .
Petra Mandigo suggested, and Committee members agreed, that the reference to "client-lawyer" in paragraph  be changed to "lawyer-client".
It was moved by Jean Hannig, seconded by Elaine Fremling, and carried unanimously that proposed revisions to the Rule 8.1 comment be approved.
With respect to the proposed revisions to the Rule 8.2 comment, Jean Hannig noted that the Committee had made no changes to the black-letter rule. Consequently, she recommended no revisions to the comment other than the numbering of paragraphs.
It was moved by Jean Hannig, seconded by Judge Braaten, and carried unanimously that the proposed revisions to the Rule 8.2 comment be approved.
With respect to the proposed revisions to the Rule 8.3 comment, Jean Hannig explained that the Committee had made relatively minor revisions to the black-letter rule - substituting "who knows" for "having knowledge" in paragraphs (a) and (b), which follows the model rule. She said the proposed revisions to the comment, therefore, also track the model rule comment.
Elaine Fremling drew attention to paragraph  and the reference to reporting misconduct not being required "where" it would involve violation of Rule 1.6. She wondered whether the more appropriate language would be "when" it would involve a violation. Committee members agreed the sentence structure is awkward. After further discussion, it was agreed the first sentence of paragraph  should be revised to read: "A report about misconduct is not required if it would involve a violation of Rule 1.6 by the reporting lawyer."
It was moved by Jean Hannig, seconded by Elaine Fremling, and carried unanimously that the proposed revisions to the Rule 8.3 comment, as further modified, be approved.
Jean Hannig then reviewed the proposed revisions to the Rule 8.4 comment. She explained that the previous revisions to the black-letter rule reflect the model rule except for paragraph (f) concerning bias as misconduct, which was recently amended into the rule. She said the proposed revisions to the comment reflect model rule language, with two exceptions. One exception, she said, is proposed paragraph , which reflects language in the model rule comment concerning bias as misconduct and which is now included in the current black-letter rule. Elaine Fremling asked whether the language should be included since it largely restates the black-letter provision. Alice Senechal noted there is additional language in the paragraph that further explains the effect of the black-letter provision. She additionally noted the reference to "socio-economic status" in the comment language which is not included in paragraph (f) of the rule and therefore should be deleted. Committee members agreed.
Jean Hannig said paragraph  in the revised comment reflects current language and would be retained. Petra Mandigo asked whether it is necessary to retain the several statutory references in the paragraph. After discussion, Committee members agreed the first two sentences of the paragraph should be revised in pertinent part to read: " N.D.C.C. Section 27-14-02 provides for the revocation or suspension of the certificate of admission of any lawyer who has committed an offense determined by the North Dakota Supreme Court to have a direct bearing on the lawyer's ability to serve the public as a lawyer and counselor at law. The statute also provides for revocation or suspension in other instances of misconduct, including ... ."
It was moved by Jean Hannig, seconded by Petra Mandigo, and carried that the proposed revisions to the Rule 8.4 comment, with the deletion of "socio-economic" from paragraph  and the further revisions to paragraph , be approved.
With respect to the proposed revisions to the Rule 8.5 comment, Jean Hannig said the revisions simply reflect a numbering of paragraphs.
It was moved by Elaine Fremling, seconded by Ryn Pitts, and carried unanimously that the proposed revisions to the Rule 8.5 comment be approved.
Chair Senechal said the proposed amendments to the rules would be assembled in their entirety for review at the next meeting.
"Nonresident attorney" - Definition
Chair Senechal then drew attention to Attachment G (April 1, 2005) - a draft definition of "nonresident attorney" for purposes of Rule 3 of the Admission to Practice Rules. "Nonresident attorney", under the draft, would be defined as "an attorney admitted and licensed in another state or the District of Columbia who does not live in or maintain an office in North Dakota." The draft resulted from discussion at the last meeting concerning the possible need for a definition to address ambiguities and uncertainties concerning the meaning and scope of "nonresident attorney" in Rule 3.
Staff said the draft reflects what has been the commonly understood, though not formalized, meaning of the reference.
Brent Edison explained that absent a clear definition it could be possible for a lawyer licensed in another state to live in North Dakota for a number of years and still be considered a resident of that other state, which poses difficult issues if the lawyer seeks to practice in the state. Bill Neumann observed that the definition may also underscore the need to become licensed in North Dakota if an out-of-state lawyer intends to stay in the state for an appreciable time.
Judge Braaten noted the potential ambiguity in the simple reference to maintaining "an office" and suggested the more particular reference to maintaining a "law office". Brent Edison observed that "law office" may be too limiting since a lawyer may practice law in settings other than what may be considered a "law office". He said the primary focus is on the conduct of the lawyer, i.e., the practice of law, rather than the environment in which the conduct occurs. Judge Braaten wondered whether the definition is necessary in light of the requirements set out in Rule 3A governing pro hac vice admission of nonresident attorneys. Bill Neumann said the issue becomes one of whether an out-of-state lawyer living in the state is a "resident" of the other state and whether the lawyer must either become licensed in North Dakota or seek pro hac vice admission if the lawyer desires to practice law in North Dakota. Brent Edison agreed and said the policy question is whether an out-of-state lawyer who has lived in North Dakota for several years and has not become licensed can seek temporary admission under the pro hac vice admission provisions. If the answer is yes, he said, then the definition is not needed. Bill Neumann said there is some sentiment that the lawyer ought not be able to use the pro hac vice admission process, but instead should be required to obtain a license to practice in the state.
Petra Mandigo said there is a circular quality to the argument and issue. Residency, she said, is considered elsewhere as a fact inquiry that takes into account such things as filing taxes or exhibiting an intention to maintain a residency. She said including "live in" in the definition returns the inquiry to some kind of factual evaluation. Bill Neumann observed that the use of "live" likely is intended to move the determination away from a determination of "residency" and encompass more situations than those that might qualify under a residency determination.
Judge Braaten said she would consider "nonresident" as relating to living in the state, rather than maintaining an office. She said the pro hac vice rule provisions address the practice of law in the state, which should encompass issues of maintaining an office.
After further discussion, Chair Senechal said the issue would be revisited at the Committee's next meeting.
Temporary License for Attorneys Applying for Admission - Revised Draft Rule
At the request of Chair Senechal, staff reviewed Attachment F (April 1, 2005) - a revised draft rule regarding temporary licensure for attorneys applying for admission. Staff said the draft is substantially the same as that reviewed at the March 18 meeting except for the addition of Section (D) regarding fees, and the addition of Section (E)(6) regarding withdrawal of the application for admission as a basis for revocation of the temporary license.
Elaine Fremling noted the use in Sections (B) and (C) of the reference to " resident associate attorney" and "associate attorney". She wondered whether the reference implies a substantive quality of relationship to the attorney seeking temporary admission. Staff noted the term "associate attorney" is also used in Rule 3A regarding pro hac vice admission in that the nonresident attorney must designate an associate attorney in North Dakota who must appear with the nonresident attorney in court unless excused. Elaine Fremling suggested paragraphs (2) and (3) of Section (B) could be confined with the deletion of the references to "resident associate" and "associate" as it will then be clear that the attorney in question is one who is licensed to practice law in the state. Judge Braaten suggested "associate attorney" be retained as it is consistent with usage in other rules and that a reference to "licensed" be added to Section (B)(3). Bill Neumann noted that deletion of "resident" as modifying "associate attorney" in Section (B)(2) may have a notable effect. Judge Braaten noted the pro hac vice rule does not refer to "resident associate attorney".
Petra Mandigo wondered whether there was a particular purpose in including the reference to "resident associate attorney". Chair Senechal suggested contacting Penny Miller regarding the issue.
With respect to a possible purpose for the "resident" reference, Bill Neumann said there may be an assumption that the attorney granted temporary licensure would be practicing under the "supervision" of a local North Dakota attorney.
With respect to the fees set out in Section (D), Petra Mandigo wondered whether the additional $50 fee required if the temporary license is in effect more than 6 months is appropriate if the application process for a regular license takes longer than 6 months.
In response to a question from Jean Hannig concerning the purpose of the draft rule, Bill Neumann said the draft is arguably intended to address situations in which pro hac vice admission is not available to an out-of-state attorney who has moved to North Dakota, applied for admission, and is awaiting issuance of a license to practice law. Jean Hannig wondered whether the rule would then require the temporarily licensed attorney to be under the supervision of an associated attorney. Bill Neumann said the draft is unclear in that it does not specify the responsibilities of the associate attorney, which may be an issue for the attorney's malpractice coverage.
Alice Senechal wondered whether the associate attorney requirement is to serve as an interim substitute for the character and fitness evaluation, i.e., during the period of temporary licensure there will be at least one person who will attest to the attorney's good character. Judge Braaten agreed and said she did not regard the draft rule as imposing any substantive duties on the associate attorney to supervise the attorney issued the temporary license.
Jean Hannig suggested the rule should very clearly describe the role and responsibility, if any, of the associate attorney.
Alice Senechal noted the opening paragraph of Section (E) which provides that on certain conditions the temporary license would be "immediately revoked without further action". She wondered whether the meaning of the language is clear and whether it would mean, for example, that there is no appeal of the revocation decision.
Following additional discussion, Committee members agreed Penny Miller should be invited to the next meeting to further discuss the draft rule. Petra Mandigo agreed to contact Penny concerning the issues raised by Committee members.
Rule 7.3, Rules of Professional Conduct - Lawyer Advertising - Review of Comments
Chair Senechal then drew Committee members' attention to Attachment I (April 1, 2005) - three comments received in response to a request for comments regarding recent amendments to Rule 7.3 governing direct solicitation of clients. She briefly reviewed the process of soliciting comments in response to a resolution adopted by the SBAND General Assembly. She said the issue now is whether to proceed to a more formal hearing process on the Rule 7.3 amendments or to respond to the Board of Governors based on the comments received.
Jean Hannig said it seems counterproductive to reopen the rule review process considering the long series of events leading to adoption of the rule amendments. She said she would agree with the comments submitted by Dan Crothers concerning the amount of work and review done in the development of the amendments and the status of similar rule provisions in other jurisdictions.
In response to a question from Clare Carlson, Bill Neumann said two justices dissented from adoption of the amendments to Rule 7.3, viewing them as violating the 1st Amendment.
Bill Neumann observed that the basic question is whether the process of requesting comments from members of the bar will be considered sufficient to comply with the General Assembly resolution. He said the Committee could submit a report to the Board of Governors based on the comments and the Board will determine whether the resolution's objective has been satisfied. If, he said, the conclusion is that it has not, then the Committee may receive a letter back from the Board. If, he said, the conclusion is that the process has served the purpose, then that would likely be the end of the matter.
After further discussion, it was moved by Judge Braaten and seconded by Jean Hannig that the Chair report to the Board of Governors that the Committee solicited comments from the bar membership, that three comments were received, and that on the basis of the apparent lack of significant interest the Committee recommends no change to Rule 7.3
Petra Mandigo said the motion may go too far. Judge Braaten said that, as summarized in the comment submitted by Dan Crothers, the Committee carefully considered the amendments to Rule 7.3 during the study and drafting process. She said there is no precedent for a hearing process by the Committee and in light of the few comments received it appears there is not a high degree of interest in changing the rule. Petra Mandigo said she would agree with the procedural description in the motion, but could not agree with the recommendation portion. Clare Carlson said he would favor time for more examination, but would not necessarily support a hearing process. Elaine Fremling said she would support the motion with the understanding that the Board of Governors can respond. Ryn Pitts said she could support the motion if it stopped short of presenting a recommendation.
After further discussion, the motion carried (4 yes - 3 no).
Chair Senechal said the multijurisdictional practice issues and the model rule for licensing of foreign legal consultants will be carried over to the next agenda.
There being no further discussion the meeting was adjourned at 2:20 p.m.