|Members Present |
Alice Senechal, Chair
Judge Karen Braaten
Dr. Richard Olafson
Sandi Tabor (joined at 1:45 p.m.)
|Members Absent |
Following lunch, Chair Senechal called the meeting to order at 12:20 p.m. and welcomed Tim Priebe and Bob Udland as recently appointed members to the Committee. She then drew Committee members' attention to Attachment B (June 3, 2002) - minutes of the November 15, 2001, meeting.
It was moved by Mike Williams, seconded by Randy Lee, and carried unanimously that the minutes be approved.
Update on Rule Submissions
Chair Senechal explained that the Joint Committee's previously submitted amendments to Rule 3.1 of the Rules for lawyer Discipline had been adopted by the Supreme Court. She noted that the Committee's proposal concerning Rule 1.19 governing client files and papers and companion amendments have been held in abeyance by the Supreme Court until after the 2003 legislative session. The SBAND Board of Governors, she said, had agreed to seek introduction of legislation amending NDCC Section 35-20-08 to remove references to retaining liens, which would be addressed in the new Rule 1.19.
Lawyer Assistance Program Proposal - Update
At the request of Chair Senechal, Christine Hogan next reviewed the Board of Governors' response to the Committee's recommendation that the Board proceed with establishment of a lawyer assistance program. She noted that she had prepared a detailed possible proposal for the Board's review [Attachment C (June 3, 2002). The Board, she said, did not seem prepared at the time the presentation was made to support establishment of an assistance program. She said one Board member had general misgivings about the recommendation and proposal and appeared to have contemplated a differently constructed assistance program. She said a letter was sent to the Board member soliciting specific comments regarding the proposal but a response had not been received. She said her understanding of the Board member's objections was that he preferred a true diversion program, rather than assistance for lawyers with chemical or other dependency problems. Although the Board was not prepared to endorse a program, she said, there was no opposition to continued review of rules and financing options for establishment of a program. Therefore, she said, she would suggest that the Committee continue review of possible rule amendments and methods of providing funding support for a program. With respect to funding, she said some thought had been given to using part of the client protection fund to support an assistance program. That, she said, may be a less viable option in light of the decision by the Board of Law Examiners to no longer make contributions to the fund. Additionally, she said, the Board has said that any contributions that it has made must be earmarked for lawyer discipline. She said an additional assessment on license fees is also an unlikely candidate as a source of funding.
With respect to sources of funding, Mike Williams wondered whether funding might be obtained from grant sources, or perhaps from tobacco settlement funds.
Christine Hogan said while there may be sources for one-time funding to establish a program, the significant problem will be securing an ongoing funding source.
Dr. Olafson said there are several foundations, such as the Bush Foundation and the Dakota Medical Foundation, that are interested in preventive health issues and which might be possible sources of funding for an assistance program.
Elaine Fremling observed that malpractice insurance carriers sometimes offer discounts on premiums if individuals covered by the policy are enrolled in wellness or assistance programs that may reduce future liability. Christine Hogan noted that the state bar association does not offer a health insurance program for lawyers, having found that it is difficult to compete with the program offered, for example, by Blue Cross Blue Shield. Nevertheless, she said, it may be worthwhile to approach Blue Cross Blue Shield on the issue, as well as major malpractice carriers for lawyers in the state.
Confidentiality, Immunity, and Duty to Report - Draft Rules
At the request of Chair Senechal, staff reviewed Attachment D (June 3, 2002) - a draft rule regarding confidentiality and immunity for participants in a lawyer assistance program, and draft amendments to Rule 8.3 of the Rules of Professional Conduct which would modify the duty to report misconduct for a lawyer or judge participating in a lawyer assistance program. He said the confidentiality and immunity draft is based in part on the Louisiana statute contained in the Appendix to the November 15, 2001, meeting minutes, as well as Rules 6.4 and 6.5 of the Rules for Lawyer Discipline relating to immunity for professional trustees and those participating in the lawyer discipline process. He said the draft amendments to Rule 8.3 reflect amendments to the rule currently included in the Ethics 2000 Report.
Elaine Fremling wondered whether the immunity provision would shield someone from liability for conduct occurring before involvement in the lawyer assistance program. Staff noted that the draft would provide immunity only for conduct in the course of the person's official duties as a participant in the program.
Ron Reichert inquired whether the immunity provision should immunize participants with respect to all conduct, or whether there should be some limitation on the scope of immunity, for example, if the conduct constitutes gross negligence. As a general rule, he said, he is uncomfortable with blanket immunity provisions.
Mike Williams drew attention to paragraph 2 of the confidentiality/immunity draft, which, in part, provides that any person who in good faith reports information in connection with the program is immune for reporting the information. He wondered whether that provision concerns the person who reports lawyer conduct to the program, or whether it might also include an addiction counselor, for example, who discloses information at a later date. Additionally, he said, the meaning of reporting information "in connection with the program" is not entirely clear. Staff noted that the language is based on a similar provision in the Louisiana statute discussed at the November 15, 2001, meeting. He said the statute does include additional language providing that the immunity does not protect a person who makes a report known to be false or with reckless disregard for the truth.
Ron Reichert asked whether the confidentiality/immunity provisions, if adopted as rules, would be included in the lawyer discipline rules or would be placed elsewhere. He said placement may become an important factor since the drafts are based, in part, on lawyer discipline rules. How the new provisions are interpreted, he said, may be affected by where they are placed. Randy Lee said his initial assessment was that the confidentiality/immunity provisions would be included in a new rule establishing a lawyer assistance program. Staff said the Committee would have to reach a conclusion concerning where a rule establishing a lawyer assistance program might be located within the current rule structure. He noted Barbara Harper had indicated at the November 15, 2001, meeting that the rule establishing a program in Washington was initially included in the lawyer discipline rules, but had since been relocated to avert perceptions that lawyer assistance was a part of the discipline process.
In response to a question from Chair Senechal concerning possible structure and location of a rule, Judge Braaten said she would prefer a separate set of rules to address the issue. Randy Lee agreed and said the rule should be clear that the bar association has sufficient regulatory authority to ensure confidentiality of the program is maintained. Annetta Sutton agreed that a lawyer assistance program, to be successful, should be established separate from lawyer discipline.
Christine Hogan noted that the ABA model lawyer assistance proposal also addresses the necessity for a rule adopted by the supreme court.
Returning to the issue of financial resources, Christine Hogan said that if increased license fees is considered as a source of funding, the increase would have to be submitted to the bar membership. She noted that some jurisdictions have obtained funding for assistance programs through a special assessment imposed by the supreme court. She said Bar Foundation funds might serve as a revenue source, but those funds are limited. Judge Braaten agreed lawyer assistance would be a good program for Bar Foundation funding, but there likely is not sufficient funds available.
Annetta Sutton observed that there are many resources with respect to the education and treatment components of an assistance program and simply ensuring that the information is available may be a low-cost commitment in support of the program.
Ron Reichert emphasized that the lawyer assistance issue is broader than alcohol or chemical dependency. He said there are persistent issues, particularly for young lawyers and solo practitioners, with respect to law office management and economics. Annetta Sutton suggested the possibility of enlisting the assistance of retired attorneys to offer education concerning time and finance management.
In response to a question from Chair Senechal, there was a general consensus among Committee members to review a draft rule providing for the establishment of an assistance program separate from lawyer discipline.
Ron Reichert observed that the Board of Governors should make clear what it will accept, if anything, with respect to establishing an assistance program. He said it makes little sense for the Committee to commit time to the project if the Board will not support a program.
Dr. Olafson suggested the Committee should review possible collaborative efforts with other entities which might provide access to funding and support for an assistance program.
In response to a question from Chair Senechal, Dr. Olafson, Annetta Sutton, and Ron Reichert agreed to pursue information concerning possible funding sources and report at the next meeting.
Chair Senechal next drew attention to the draft amendments to Rule 8.3 of the Rules of Professional Conduct included in Attachment D (June 3, 2002). Staff said the draft amendments provide an exception from the general duty to report misconduct for lawyers or judges participating in a lawyer assistance program. He reiterated that the draft amendments are taken from the amendments to Rule 8.3 included in the Ethics 2000 Report adopted by the ABA.
Randy Lee noted the reference to "such an obligation" in line 22 of the added language in the Comment. He said it is unclear what that phrase is in reference to, although it appears to be related to the earlier statement that the Rule does not address confidentiality. He suggested the intent of the sentence would be clearer if it were modified to simply provide that confidentiality may be imposed by the rules of the program or other law.
Christine Hogan observed that the amending language in paragraph ( c ) provides that the rule "does not require" disclosure of information gained while participating in a lawyer assistance program. She wondered whether a lawyer could be disciplined for breaching confidentiality of information obtained in an assistance program.
Chair Senechal said the issue would be discussed further at the next meeting.
Chair Senechal reviewed the Committee's earlier submission to the Supreme Court of proposed amendments to the Rule 7 series of the Rules of Professional Conduct, which addressed a number of lawyer advertising issues. She said the Supreme Court, after a hearing, subsequently referred the proposed amendments back to the Committee for review in light of amendments to the Model Rule 7 series adopted as part of the Ethics 2000 Report to the ABA. At the request of Chair Senechal, staff briefly reviewed major differences between the Ethics 2000 amendments and the proposed amendments submitted by the Committee to the Supreme Court.
Mike Williams then summarized the Supreme Court's hearing on the proposed amendments. He said most of the discussion and questions concerned the proposed amendments to Rule 7.3, which addresses direct contact with prospective clients. He explained that North Dakota's Rule 7.3, when first adopted, did not restrict attorney solicitation. He said solicitation has since become an issue, with examples around the state of questionable solicitation practices. The proposed amendments, he said, reflected the Model Rule approach, which generally prohibits solicitation. He drew attention to Attachment I (June 3, 2002), which provides a state-by-state summary of lawyer solicitation restrictions. Most states, he said, impose limitations on solicitation activities. With respect to the hearing on the proposed amendments, he said one of the justices regarded the proposed amendments as overbroad and an unnecessary infringement on the First Amendment. He said it was pointed out at the hearing that the proposed language was designed to prevent lawyers from soliciting those who are vulnerable, which is likely less of an issue with more sophisticated prospective clients. He noted that the ABA Whitepaper, upon which the Committee's proposed amendments were based, was the predecessor of the Ethics 2000 amendments. In light of the Supreme Court's response, he said, the Committee should revisit the proposed amendments to Rule 7.3 and determine whether any changes should be made.
Randy Lee suggested the possibility of simply submitting a new Rule 7.3 based on the model rule resulting from the Ethics 2000 Report.
In response to a question from Bob Udland regarding differences in approach between Minnesota and North Dakota, Mike Williams said Minnesota generally follows the model rule approach and prohibits most solicitation, while North Dakota imposes few limitations.
In response to a question from Chair Senechal concerning how to approach a review of the lawyer advertising amendments, Christine Hogan suggested perhaps a subcommittee could be formed to review the amendments previously submitted by the Committee and the amendments adopted as part of the Ethics 2000 Report. A conclusion could then be reached, she said, regarding whether the earlier amendments should be modified or resubmitted in the original form.
Mike Williams suggested there are some parts of the model rules that the Committee should not follow, such as the requirement that any advertising materials be labeled as such. He recalled the Committee previously discussed and rejected that requirement. Randy Lee said the Committee may also want to retain the limitation included in the previous submission which prohibited solicitation that imposes any involuntary cost on the prospective client.
Mike Williams, David Hogue, and Alice Senechal agreed to review the proposed amendments and the Ethics 2000 amendments and submit any recommendations at the next meeting.
General Review of Ethics 2000 Amendments to the Model Rules of Professional Conduct
The Committee next discussed possible approaches to reviewing North Dakota's Rules of Professional Conduct in relation to the Ethics 2000 amendments recently adopted by the ABA House of Delegates. Christine Hogan noted that a subcommittee was used when the current rules were developed. The downside of that approach, she said, was that the full Committee was inactive for quite some time. Sandi Tabor suggested the full Committee is small enough that the rules could be reviewed over a series of meetings, with a small group of rules and Ethics 2000 amendments compared and reviewed at each meeting.
In response to a question from Chair Senechal, Committee members agreed the full Committee should undertake the rules review over the next several meetings.
Multidisciplinary Practice - Review
Chair Senechal drew attention to Attachment K (June 3, 2002) - a letter from Dan Crothers to Chief Justice VandeWalle suggesting that the Committee continue to review and monitor developments and initiatives concerning the multidisciplinary practice of law. Staff also distributed a letter from Dan Crothers by which he had forwarded a letter from a Fargo attorney about multidisciplinary practice. A copy of the material is attached as an Appendix.
It was moved by Sandi Tabor, seconded by Mike Williams, and carried unanimously that Dan Crothers continue to monitor any developments concerning multidisciplinary practice proposals.
Christine Hogan observed that the ABA will likely continue to consider issues in this area.
Foreign Legal Consultants
Chair Senechal then drew attention to Attachment L (June 3, 2002) - a letter from Chief Justice VandeWalle, and his exchange of letters to Becky Thiem, President of the Board of Law Examiners, concerning a model rule for licensing foreign legal consultants. She said the correspondence is provided at this meeting for information purposes , with the aim of determining how the Committee should respond at a future meeting. She noted that the letter from Ms. Thiem suggested that the Committee could perhaps review the model rule at the same time the Committee reviews the report of the Multijurisdictional Practice Task Force.
Following discussion, it was agreed the model rule would be included in the Committee's review of the multijurisidictional practice issues.
There being no further business, the meeting was adjourned at 2:30 p.m.