Members Present Judge Michael Sturdevant George Ackre Clare Carlson (joined meeting at 10:30 a.m.) Dann Greenwood Jean Hannig Mark Hanson Ryn Pitts Justice Dale Sandstrom Jason Vendsel Pat Ward
Members Absent Petra Mandigo Hulm Carol Johnson Dianna Kindseth Dan Ulmer
Staff Jim Ganje Bill Neumann
Others Present Aaron Birst, Executive Director, ND State's
Chair Sturdevant called the meeting to order at 10:05 a.m. and welcomed George Ackre and
Jason Vendsel as new Committee members appointed by the SBAND Board of Governors.
ABA Amendments to Model Rule 1.10 - Imputed Disqualification
Chair Sturdevant drew attention to Attachment B (October 19, 2009) - ABA amendments to
Model Rule 1.10 which would essentially permit screening, when a lawyer moves from one law firm
to another, to avoid the imputation of conflicts that would normally occur under Model Rules 1.9
and 1.10. He noted that the ABA amendments had been brought to his attention in an email from
Justice Dan Crothers which was forwarded by the Chief Justice. He said a subcommittee consisting
of Mark Hanson, Jean Hannig, and Carol Johnson was asked to review the ABA amendments and
provide a report to the Committee. The Subcommittee report is included as Attachment B (December
Mark Hanson then provided a summary of the Subcommittee's report. He said the ABA
amendments addressed issues concerning when a lateral hire comes to a new firm and a conflict
arises involving a client the lateral hire had at a previous firm. He said Model Rule 1.10, before the
amendments, imputed the lateral hire's conflict to all lawyers in the new firm. He said the
amendments to the model rule essentially permit screening so that the lateral hire's conflict would
not be imputed to all members of the new firm. He said North Dakota is one of several states that
have rule provisions that allow screening to prevent imputing the lateral hire's personal
disqualification to all members of the firm. He said the ABA amendments include written notice
requirements and require that a certification of compliance with the rule be provided to the client.
He said the North Dakota rule does not contain a certification requirement but does include a broader
written notice requirement with respect to previous clients, i.e., notice must be provided to "all
affected clients" rather than only to "any affected former client" as the ABA amendments provide.
He said the ABA certification requirement seems problematic in that it is uncertain when the
certification must be provided and seems to require additional, unnecessary communication with
clients, particularly when the current rule already requires notice to all affected clients. Additionally,
he said there is some concern that the certification requirement may trap lawyers into a rule violation
if a certification is later determined to be inadequate. He said the Subcommittee essentially
concluded that there is no significant issue with the current rule that the ABA amendments would
remedy and, on balance, the current rule works well. Consequently, he said the Subcommittee
recommends that no changes be made to the current rule in response to the ABA amendments.
Jean Hannig noted that during the last extensive revision of the Rules of Professional
Conduct the Committee discussed screening issues at length. She said the amendments that resulted
in the current rules were thought sufficient to address the issues.
It was moved by Jean Hannig, seconded by Mark Hanson, and carried that the
Committee recommend to the Supreme Court that no changes be made to current Rule 1.10
in response to the ABA amendments.
Responsibilities of a Prosecutor - ABA Amendments to Model Rule 3.8
Chair Sturdevant again drew attention to Attachment B (October 19, 2009), which includes
recent amendments by the ABA to Model Rule 3.8. The ABA amendments would add new
paragraphs (g) and (h) and related comment language to Rule 3.8. The new provisions would
essentially require a prosecutor to take certain actions when the prosecutor knows of new, credible,
and material evidence creating a reasonable likelihood that a convicted defendant did not commit
the offense of which the defendant was convicted. He noted that he had forwarded the ABA
amendments to the President of the State's Attorneys Association for any comments the Association
members may have. He then welcomed Aaron Birst, Executive Director of the State's Attorneys
Association, for observations regarding the model rule amendments.
Aaron Birst said he had recently returned from a national executive directors meeting at
which the ABA amendments were discussed. He said there was general support for the concept
behind the amendments but there was concern regarding specific language in the amendments. He
drew attention to new paragraph (h), which requires a prosecutor to seek a remedy to a conviction
if the prosecutor knows of clear and convincing evidence that a defendant in the prosecutor's
jurisdiction was convicted of an offense that the defendant did not commit. He said there was
uncertainty about precisely which prosecutor's jurisdiction is being referred to. For example, he said,
if a Burleigh County prosecutor were to receive information about a conviction in Cass County, the
amendments seem to imply that it would be the Burleigh County prosecutor that has the ethical duty
to remedy the conviction. He said there was also some sentiment that the ethical obligation addressed
in the rule should apply to any lawyer who learns of exculpatory information rather than apply only
to prosecutors. He noted that the State's Attorneys Association Board would be meeting in the
coming week and the ABA amendments would be discussed more thoroughly.
Pat Ward suggested that the Committee defer action on the ABA amendments until the
State's Attorneys Association can provide specific comments or suggest changes to the amendments.
Aaron Birst said the Association could provide comments for the Committee's consideration
at the March 19 meeting. He noted that Fritz Fremgen had raised some additional issues regarding
Rule 3.8 and prosecutor contact with an unrepresented accused.
Chair Sturdevant welcomed Fritz Fremgen, Stutsman County State's Attorney, for additional
comments regarding Rule 3.8.
Fritz Fremgen said there are a number of lingering issues with respect to the direction under
Rule 3.8(c) that a prosecutor "shall not seek to obtain from an unrepresented accused a waiver of
important pretrial rights ... ." Those issues, he said, include whether it is permissible for a prosecutor
to write a sentence recommendation letter to an unrepresented defendant before a pretrial conference
or a preliminary hearing; whether a conditional offer is a solicitation for waiver of the right to
counsel, silence, or other pretrial rights; and how a prosecutor can appropriately respond if a court's
pretrial order instructs the prosecutor to notify the defendant at least 48 hours before the hearing of
what the prosecutor's recommendation for disposition of the charges. He said some have suggested
that Rule 3.8(c) precludes the prosecutor from seeking the waiver of any important pretrial right,
including constitutional rights to silence and counsel. Others, he said, have suggested the rule only
applies to asking the defendant to waive procedural rights and that the reference to "important
pretrial rights" does not include constitutional rights such as the right to silence and counsel. He said
the SBAND Ethics Committee has not addressed any of these issues, but a Wisconsin ethics opinion
concluded that prosecutor contact with an unrepresented defendant is permissible. He said it would
be helpful if the scope of Rule 3.8(c)'s prohibition could be clarified.
In response to a question from Chair Sturdevant, Mr. Fremgen said he would present the
issues for discussion at the upcoming meeting of the State's Attorneys Association Board and will
provide any resulting comments or suggestions for the Committee's consideration at the March 19
Electronic Storage of Client Files
Chair Sturdevant then drew attention to Attachment D (October 19, 2009) - a email from
Committee member Petra Mandigo-Hulm regarding an issue raised by attorney Dennis Johnson at
a recent Board of Governors meeting. The issue concerns whether a rule amendment should be
considered which would affirmatively permit electronic storage of client files.
Staff explained that current Rule 1.19 of the Rules of Professional Conduct, which governs
files, papers, and property related to representation, is unique to North Dakota. He said the rule is
intended to address, independently of Rules 1.15 and 1.16, what happens to client files and papers
in the possession of a lawyer. He noted that the opening language of paragraph (b) refers to "client's
files, papers (including items only electronically stored), or property". He said paragraph (d) allows
a lawyer who has withdrawn from representation or who has been discharged from representation
to charge a client for the cost of "electronically retrieving" the client's files or papers. He said the
current rule, therefore, acknowledges that electronic storage of client files may have occurred but
does not affirmatively state that electronic storage is permissible. He said initial background research
seems to indicate that electronic storage of client files is commonplace and generally does not raise
ethical issues. He said ethical considerations have arisen with respect to actual disposition of hard-copy client files that have been stored electronically, whether client consent is required to dispose
of hard-copy files, and methods of access by the client to electronically stored file information.
Pat Ward said the question posed by Dennis Johnson may be with respect to whether it is
permissible to scan and store electronically client papers and property in a file that may not already
be electronically stored. He said a literal reading of the rule may suggest there is some risk to the
lawyer if client papers are not actually retained in the file.
Justice Sandstrom noted that there may be a distinction between certain kinds of documents,
for example, originals versus copies, with respect to whether electronically storing and then
destroying the document is permissible.
In response to a question from Chair Sturdevant, Committee members agreed the issue
should be considered further. Pat Ward and Jason Vendsel agreed to review the issue and the initial
background material assembled by staff for further discussion at the March 19 meeting.
Chair Sturdevant said he would advise Jane Dynes, SBAND President, that the Committee
will be reviewing the issue further in the event the Board of Governors wishes to submit any
comments or suggestions.
Lawyer Advertising - "Super Lawyer" Designation
Chair Sturdevant next drew Committee members' attention to Attachment C (December 3,
2009) - an email from Bill Neumann, SBAND Executive Director, requesting that the Committee
consider issues associated with lawyers who advertise their designation as "Super Lawyers" or a
similar description. The email draws attention to recent rule amendments adopted in New Jersey to
address the issue and a related ABA Journal article which are included in Attachment C. Current
Rule 7.1 of the ND Rules of Professional Conduct is also included in Attachment C
Bill Neumann explained that the SBAND Ethics Committee had been struggling with the
Super Lawyer issue for quite some time. He said the Committee received an inquiry regarding
whether the "Super Lawyer" designation posed ethical issues and had issued an opinion (Ethics
Opinion No. 08-02) based on current ND Rule 7.1 and, in part, based on an earlier opinion of the
New Jersey Supreme Court Advisory Committee on Attorney Advertising. The opinion, he said,
expressed several concerns about a lawyer advertising a "Super Lawyer" designation. He said the
opinion generally concluded that, based on the current rule, if certain things are true about the
designation then a lawyer likely could advertise it but if there was uncertainty about the truth of the
designation then ethical issues may arise. The opinion, he said, was not regarded as having addressed
the issue in a helpful way. He observed that those who support use of the "Super Lawyer"
designation often compare it to a lawyer being listed in Martindale-Hubbell. He said while there are
similarities between the two listing services, there are also differences. He noted that the rule
amendments adopted by the New Jersey Supreme Court seem to permit use of the Super Lawyer
designation in much the same way as use of a Martindale-Hubbell rating is permitted.
Justice Sandstrom asked whether it is being suggested that certain organizations be identified
as legitimate to award ratings or designations for use by a lawyer in advertising.
Bill Neumann said the New Jersey rule amendments do not endorse any particular
organization. He said the amendments impose certain criteria with respect to when a lawyer
compares that lawyer's services to the services of other lawyers - the name of the comparing
organization must be stated, the basis for the comparison must be substantiated, and the
advertisement must include a disclaimer that the court has not approved any aspect of the
advertisement. He said explanatory language is also added to the rule's comment. He said his
understanding is that the "Super Lawyer" designation would appear to satisfy the requirements set
out in the rule. He said the general thrust of the New Jersey rule amendments seems to be to sharpen
the defining line between what is acceptable practice and what is not. He said the language added
to the comment is perhaps more significant and appears to be the real "teeth" of the rule.
Justice Sandstrom said there is the potential for providing useful information by way of a
designation or rating but cautioned that there is also the potential for misleading the public in regard
to the kinds of services a lawyer will provide. He noted that some rating services, if the criteria are
examined closely enough, seem to have as a principle criteria that the person has paid a fee to be
Bill Neumann observed that as the "Super Lawyer" designation process has evolved it seems
to be more similar to inclusion in Martindale-Hubbell in that there is no fee required to obtain the
designation and the designation is conferred upon the lawyer by the rating entity.
Pat Ward explained that any new limits of lawyer advertising must be considered in light of
a substantial body of case law that permits a wide range of advertising. He said current Rule 7.1 is
fairly comprehensive in addressing the issue and essentially requires truthfulness in any
communication about a lawyer's services. He said it may be better to leave the matter to be further
addressed by the Ethics Committee rather than attempt to fashion a rule provision to address the
Dann Greenwood noted that current Rule 7.1( c) disallows, as false or misleading, a
comparison in an advertisement of a lawyer's services with other lawyers' services "unless the
comparison can be factually substantiated". He said the Ethics Committee is not an investigative,
fact-finding body and, as a result, determining whether a particular comparative advertisement is
"factually substantiated" would be a difficult task. In that respect, he said, the New Jersey language
may be beneficial in establishing some method for determining how comparisons can be evaluated.
Pat Ward said the more significant part of the New Jersey language may be the required
disclaimer that no part of the advertisement was approved by the Supreme Court. He wondered
whether anyone believes that a lawyer advertisement has been approved by a court. Most people,
he said, are aware of the puffery that occurs in advertising generally.
Ryn Pitts said people generally do pay attention to designations and ratings and often assume
that there is a legitimate basis for them. She said it would be of benefit to spend the time to clarify
for the public what is worth paying attention to and what is not.
Judge Sturdevant agreed the public is generally aware that puffing occurs in advertising. But,
he said, the public is also aware that the legal profession is regulated and, therefore, may assume that
advertising claims would not be made if they had not been subject to review or approval in some
George Ackre described a recent occurrence in his community in which a law firm on the
eastern side of the state placed a substantial advertisement in the local newspaper identifying
members of the firm as having been designated "Super Lawyers". He said the advertisement was
followed by a second article that stated that the firm had the most "super lawyers" designated in the
Dann Greenwood suggested that the Committee consider adding language to Rule 7.1( c) that
would provide some direction regarding how comparison of services could be verified. He said the
New Jersey language may be generally useful in that regard, although some of the specific wording
may require close attention. At this point, he said, lawyers have very little guidance from the current
rule regarding what may be acceptable.
Pat Ward expressed concern that there may be an element of professional jealousy involved
in concerns voiced about the use of "super lawyer" designations. He said it is uncertain whether an
organization can be prohibited, as a matter of constitutional law, from awarding the designation.
Mark Hanson agreed that a lawyer cannot be prohibited from advertising with the "super
lawyer" designation. He said he had requested the earlier ethics opinion on the issue because
there was very little guidance concerning how to advertise the designation if a lawyer chose to do
so. He said the opinion has been very difficult to implement and it is likely that very few lawyers
are trying to follow the opinion. He said the "super lawyer" designation is powerful and effective and
there is concern about how to properly use the designation. He said he is uncertain whether guidance
for lawyers should come through rule amendments or by way of additional ethics opinions. He
agreed, however, that the issue should be fully discussed.
In response to a question from Pat Ward, Mark Hanson said the New Jersey language would
likely result in more consistent advertising practices by those lawyers who choose to advertise the
designation. Additionally, he said the language may constrain those who may be tempted to abuse
Jason Vendsel said imposing rule restrictions because a particular advertisement is
considered very effective is cause for concern. He questioned whether that is an important enough
reason to consider additional rule requirements. Mark Hanson said the phrase "super lawyer" tends
to be misleading and the basic premise of Rule 7.1 is that a lawyer may not engage in misleading
advertising. He agreed lawyers have constitutional right to advertise. But, he said, there is no
constitutional right to be misleading. The question, he said, is how to strike the proper balance.
Judge Sturdevant said the focus on the "super lawyer" designation may be too exclusive.
There may be other organizations in the future, he said, that offer a different designation if certain
criteria are considered satisfied. He said a rule provision should not be tied too closely to one
Mark Hanson said the comment language added to the New Jersey rule seems more useful
in providing guidance to lawyers in how to analyze how a designation is awarded. That, he said, may
be more beneficial than the additions to the black-letter rule. He suggested that the Committee
consider draft amendments to current Rule 7.1 that incorporate the New Jersey language.
Jason Vendsel suggested another approach may be to incorporate the New Jersey comment
language into the black-letter rule.
Pat Ward said it would be of interest to know whether or how advertising practices in New
Jersey have changed following adoption of the New Jersey rule amendments.
Following further discussion, it was moved by Mark Hanson, seconded by Dann
Greenwood, and carried that the Committee consider draft amendments to Rule 7.1 that
incorporate the New Jersey rule and comment changes and alternative draft amendments that
incorporate the New Jersey comment language in the black-letter rule.
License Fees for Military Lawyers
Chair Sturdevant next drew Committee members' attention to Attachment E (October 19,
2009) - emails from Committee member Petra Mandigo-Hulm requesting consideration of whether
lawyer license fees should be reduced or waived for active duty military lawyers. The emails indicate
the suggestion originated with a response to a request for suggestions to improve lawyer service
undertaken by the Young Lawyers Section. The emails also included information regarding other
jurisdictions in which license fees have been reduced or waived.
Justice Sandstrom summarized information regarding pay and allowances received by
military lawyers in the Air Force. He said it appears that military lawyers must be licensed in a state
in order to serve as military lawyers. If the military lawyer is full-time, active duty, he said, the
lawyer is restricted in the kinds of legal services that can be provided outside the military context.
Part-time military lawyers, such as National Guard or Reserve, he said, are permitted to maintain a
normal law practice outside their military service. He said Air Force pay and allowances based on
rank for military lawyers ranges from $51,000 to $71,000 during the first two years of service. He
said a retention bonus paid after the first four years of enlistment ranges from $20,000 to $40,000.
Jason Vendsel said his recollection is that the issue has been discussed in the past by the
Board of Governors and providing a fee waiver or reduced fee was rejected.
Clare Carlson wondered whether the rationale for a fee waiver or reduced fee was based on
concerns about income received by military lawyers or is intended to be a simple recognition of the
importance of military service.
Jason Vendsel asked whether the intention is that a fee waiver or reduced fee would apply
only to Judge Advocate General lawyers or to any lawyer who happens to be in military service but
is engaged in some activity other than providing legal services.
Following further discussion, the consensus among Committee members was that no action
be taken regarding the issue.
Rule 3.1, Rules for Lawyer Discipline - Reciprocal Discipline for Discipline Imposed by Tribal
Chair Sturdevant drew Committee members' attention to Attachment D (December 3, 2009) -
a referral to the Committee by the Supreme Court of proposed amendments to Rule 3.1, Rules for
Lawyer Discipline, submitted by attorney Irv Nodland. The proposed amendments would require
that a complaint concerning lawyer conduct in tribal court would be handled by the tribal court and
would require a lawyer sanctioned by a tribal court to report the sanction to the Supreme Court for
purposes of considering reciprocal discipline.
Judge Sturdevant said it is unclear whether all the tribal courts in the state have a lawyer
discipline process similar to the state's process. Staff noted that most, if not all, tribal courts in the
state have a process for obtaining a license to practice in tribal court.
George Ackre said the Turtle Mountain Band of Chippewa does have a process by which a
license to practice in tribal court is issued by the Tribal Council. He said there appears, as a general
matter, to be no viable structure in the various tribal courts that the Supreme Court could rely upon
for purposes of reporting and subsequent imposition of reciprocal discipline consistent with current
Jason Vendsel asked whether there have been situations in which two North Dakota licensed
lawyers have been involved in a tribal court matter and a report was made to the state Disciplinary
Board alleging unethical conduct by one of the lawyers. George Ackre said he is unaware of any such
reports, but observed that his experience has been that licensed lawyers have maintained acceptable
standards in tribal court.
Jason Vendsel said the basic rationale for the proposed amendments is unclear and it is also
unclear whether the amendments intend that the tribal forum would be the exclusive forum for
purposes of imposing discipline upon a state licensed lawyer.
Justice Sandstrom explained that the Rules for Lawyer Discipline essentially require that
reciprocal discipline be imposed by the Supreme Court unless there are deficiencies in the other
jurisdiction's process, such as lack of notice or an opportunity to be heard, an infirmity in the proof,
or that imposition of the same discipline would result in grave injustice.
Pat Ward said the proposed amendments would establish a requirement that the lawyer report
tribal court discipline to the Supreme Court. He said it is unclear whether that requirement is
intended as an alternative to the current requirement for reporting to the Disciplinary Board. He said
there does not appear to be a problem with the current rule that would support adoption of the
Dann Greenwood questioned whether a rule could be adopted that requires a tribal
jurisdiction to essentially establish its own lawyer discipline system.
Pat Ward said the current rules establish the Supreme Court's jurisdiction for lawyer
discipline and it is uncertain whether the proposed amendments are intended to create an exception
to that jurisdiction. He said it is fairly clear that the Supreme Court has disciplinary jurisdiction over
a North Dakota licensed lawyer wherever the lawyer engages in the practice of law.
Following further discussion, it was moved by Pat Ward, seconded by Dann Greenwood,
and carried that the Committee recommend to the Supreme Court, for the reasons discussed,
that no action be taken in response to the proposed amendments.
Justice Sandstrom said a couple of items that may be referred to the Committee at some point
in the future are consideration of the establishment of a mentoring program for new lawyers and
reconsideration of the "Katrina" rule, the ABA Model Rule regarding the provision of legal services
following a natural disaster.
There being no further discussion the meeting was adjourned at 12:45 p.m.