Members Present
Alice Senechal, Chair
Elaine Fremling
Jean Hannig
Dianna Kindseth
Petra Hedvig Mandigo
Ryn Pitts
Tim Priebe
Sandi Tabor
Bob Udland
Members Absent
Judge Karen Braaten
David Hogue
Staff
Jim Ganje
Bill Neumann
Others Present
Penny Miller, Clerk of the Supreme Court
Paul Jacobson, Disciplinary Counsel
Chair Senechal called the meeting to order at 10:00a.m. and welcomed as new members Petra Mandigo, an attorney member appointed by the Chief Justice, Ryn Pitts, a lay member appointed by the Chief Justice, and Dianna Kindseth, a lay member appointed by the SBAND Board of Governors. Committee members also welcomed Bill Neumann, new Executive Director of the State Bar Association.
Committee members then observed a moment of reflection and comment regarding the recent loss of Randy Lee, a long-serving and highly esteemed member of this Committee and its predecessor. All agreed that Randy brought to the Committee an inestimable wealth of knowledge about lawyer conduct and ethics, a keen wit, and infectious good humor, and while the Committee will continue its work, it will do so with deep awareness of the extent of its loss.
Chair Senechal then drew Committee members' attention to AttachmentB (March 10, 2005)- Minutes of the November 19, 2004, meeting. Jean Hannig noted typographical errors on pages 3 and 5 of the minutes.
It was moved by Sandi Tabor, seconded by Jean Hannig, and carried unanimously that the minutes be approved with the noted corrections.
Rule 7.3, Rules of Professional Conduct - Lawyer Advertising — Comments
Chair Senechal provided an update concerning the request for comments concerning recently
adopted amendments to Rule 7.3 regarding direct contact with prospective clients. She briefly
described the issues surrounding the changes to the rule, which were recommended by the
Committee, and subsequent action by the SBAND General Assembly requesting that the Committee
provide an opportunity for comments concerning the changes. She said Mike Williams, former
Committee member and immediate past-Chair of the Committee, prepared a notice of comment and
comments are due March 20. She said she has thus far received three comments regarding the rule.
She said all comments will be assembled following the close of the comment period and presented
to the Committee for a determination regarding how next to proceed.
Rule 6.1 - Pro Bono Publico Service
Chair Senechal next drew attention to Attachment C (March 10, 2005) - letter requesting comments from the SBAND Board of Governors regarding Rule 6.1, Rules of Professional Conduct (Pro Bono Publico Service). She said the Committee had earlier concluded that comments from the Board would be solicited before considering whether any changes to Rule 6.1, in light of model rule changes, should be considered. She said Sherry Mills Moore, SBAND President, responded that the Board of Governors considered it unnecessary to consider any changes to the present rule, which is regarded as having worked well up to this point.
Sandi Tabor recalled the Committee's discussion at the November 19, 2004, meeting which indicated a general reluctance, for a variety of reasons, to follow the model rule approach.
Chair Senechal noted that Randy Lee's report at the November 19 meeting regarding Rule 6.1 did not seem to recommend any changes to the rule if a mandatory pro bono obligation was not adopted.
It was moved by Sandi Tabor and seconded by Tim Priebe that current Rule 6.1 be retained without change.
In response to a question from Ryn Pitts concerning approaches taken in other states, Sandi Tabor said most states have rules similar to North Dakota's rule. She said those states that have adopted a mandatory requirement for hours of pro bono service have typically included a "buy-out" provision, which permits attorneys who are otherwise prevented from providing pro bono services, government attorneys, for example, to pay a designated fee in lieu of providing services. She noted that family law cases constitute the majority of cases in which pro bono services are needed . She said compelling an attorney not versed in family law to handle such cases would be a disservice to the client and could potentially result in malpractice by the attorney. She said alternatives were discussed at the last meeting by which the State Bar Association might be able to offer incentives, such as CLE credits, for attorneys to provide services in needed areas.
Bill Neumann agreed with the concerns about requiring attorneys to provide legal services in cases in which the attorney has no background or expertise, and the prospect of malpractice is a particular concern. He said the association recognizes the unmet need for pro bono or reduced cost legal services and will be pursuing efforts to address the issue.
The motion carried unanimously.
Temporary License for Attorneys Applying for Admission - Draft Rule
At the request of Chair Senechal, Penny Miller reviewed Attachment D (March 10, 2005) - her letter and draft rule regarding temporary licensure for attorneys who are applying for admission in North Dakota. She said current Rule 3 governing registration and pro hac vice admission for nonresident attorneys does address the situation involving an attorney admitted elsewhere who has moved into the state and is applying for admission. She said during the pending admission process the attorney is unable to practice law in the state because the attorney is not considered a "nonresident" attorney for purposes of Rule 3. She said an attendant issue is that Rule 3 does not provide a definition of "nonresident" attorney, which may be a matter worth addressing in the comment or elsewhere in the rule. She then reviewed the components of the draft rule. She noted that a temporary license would be valid for no longer than 12 months and there would be circumstances under which the license could be revoked (Section E).
Penny Miller noted Section D regarding the fee for the temporary license and said the precise amount is yet to be identified. She said attorneys applying for pro hac vice admission currently pay a $355 fee. She explained that a person applying for a temporary license under the draft rule will have paid the required admission application fee, a background investigation fee, and will pay the required annual fee once admitted. She asked whether an additional fee should be imposed for someone applying for the temporary license.
Jean Hannig said a fee equivalent to that for pro hac vice admission appears unreasonable, but a lesser fee for the privilege of practicing law prior to regular admission seems appropriate. Sandi Tabor agreed and suggested a fee in the neighborhood of $100 may be worth considering. Penny Miller noted the possible issue of a prorated fee if the person will be temporarily admitted for less than the 12 month period identified in the draft. She observed that a prorating process would be quite burdensome to implement and monitor. Bill Neumann noted the concept of providing a credit against the first annual license fee for the amount paid for temporary licensure, but he agreed that anything other than straight payment of a set fee would become complicated to manage.
Penny Miller drew attention to Section E of the draft rule, which identifies circumstances that would result in revocation of a temporary license. She recommended another provision be added which would provide for revocation of the license if the attorney withdraws an application for admission under Rule 5 or 6 of the Admission to Practice Rules. She said since the temporary license is contingent upon the attorney having applied for admission, it would be appropriate to revoke the license if the attorney withdraws the admission application. Committee members agreed.
Tim Priebe asked whether the rule would allow a nonresident attorney to apply for admission to the bar and be temporarily admitted while maintaining a practice and residency in another state. Penny Miller said the attorney would be required to apply for admission under Rule 5 (bar examination) or 6 (reciprocity) of the Admission to Practice Rules. She said the draft rule does not explicitly address residency. Bob Udland said he is unaware of any state that imposes a residency requirement.
In response to a question from Sandi Tabor, Penny Miller said an attorney applying for pro hac vice admission must show that the attorney is licensed and in good standing in the other state. She said a background investigation fee is not required.
With respect to a possible fee for the temporary license, Sandi Tabor asked how collection and monitoring of fee payment would be handled. Penny Miller said disposition of the fee is the more problematic concern. She noted that under the current statute the annual license fee is subject to an initial earmark of $75 for discipline and the remainder of the fee is divided between the association (80%) and the board of law examiners (20%).
In response to a question from Chair Senechal, Sandi Tabor and Penny Miller agreed to develop draft language concerning the fee for review at the next meeting. The additional language concerning revocation upon withdrawal of application for admission would also be included in the revised draft.
Penny Miller reiterated the need to consider whether "nonresident attorney" should be defined for purposes of Rule 3 of the Admission to Practice Rules. She suggested it would be preferable to clarify that "nonresident" is not premised on the legal definition of residency, which is somewhat vague. She said the assumption has been that a nonresident attorney is someone who does not actually live in the state.
Penny Miller noted as an additional issue the Chief Justice's continuing interest in considering the model rule concerning admission of foreign legal consultants. Chair Senechal said the model rule will be reviewed in the near future.
Multijurisdictional Practice Amendments - Additional Considerations
Chair Senechal drew attention to Attachment B (February 3, 2005) - a letter and related correspondence regarding referral to the Committee of issues concerning the recently adopted MJP rule amendments - and Attachment C (February 3, 2005) - Rule 5.5, Rules of Professional Conduct, and Rule 3, Admission to Practice Rules, as amended and adopted. She noted two issues raised in the letter from Paul Richard, former chair of the SBAND MJP Taskforce: not including an attorney employed by a governmental entity as being eligible for registration under Rule 3 and the need to consider a definition of "jurisdiction" for purposes of Rule 5.5.
Staff noted that during the hearing on the proposed amendments a recommendation was made to the Supreme Court that the reference to "governmental entity" be included in Rule 3A. The Court declined the suggested change, he said, because of uncertainty about the purpose to be served. He said Paul Richard's letter in Attachment B suggests including the governmental entity reference so nonresident attorneys who are not admitted pro hac vice but who are providing legal services for matters not pending before a court can take advantage of the safe harbor provided under Rule 5.5C(1).
Bill Neumann said part of the Supreme Court's uncertainty about including the recommended language was due to there being no attorneys employed by a governmental entity nor a representative of a governmental entity present at the hearing to explain why the change was needed.
Sandi Tabor noted that pro hac vice admission governs appearance in court, while the registration process appeared intended to address, for example, nonresident attorneys doing transactional work for a corporation that has a branch office in North Dakota. She said the Committee's earlier discussion of the issue indicated an uncertainty about exactly when a nonresident attorney would be doing transactional work for a governmental entity. She said she could not recall an instance in the Attorney General's office when a nonresident attorney was brought in to do transactional work. Staff noted one example given in the past was that of a nonresident attorney providing legal advice or services to a board of county commissioners, without appearing in court.
Bob Udland wondered whether including the reference to "governmental entity" in Rule 3B would actually address the issues Paul Richard raises in his letter. Sandi Tabor said if the registration process was considered by the MJP Task Force as applying to something other than transactional work, then the change may be worthwhile. But, she said, it is not at all clear exactly what registration would be for in that other circumstance.
Chair Senechal said the issue would be discussed further at the Committee's April 8 meeting.
She drew attention Penny Miller's question concerning a definition of "nonresident attorney". Sandi
Tabor said she and Penny would discuss a possible draft definition for review at the next meeting.
Rule 1 Series Comments (and Rules) - Additional Revisions
Alice Senechal then drew attention to Attachment D (February 3, 2005) - revised Rule 1.0, and revised comments to Rules 1.7, 1.10, and 1.13 - 1.18. She reviewed earlier revisions to Rule 1.0, which would be a new rule governing terminology in the Rules of Professional Conduct. She noted the question raised by Paul Richard in his letter concerning the need for a definition of "jurisdiction". She said the definition could be added as a new paragraph (e) in revised Rule 1.0. As a possible definition of "jurisdiction" she recommended "this state, another state of the United States, the District of Columbia, Puerto Rico, or a territory or possession of the United States."
It was moved by Elaine Fremling, seconded by Sandi Tabor, and carried unanimously that the recommended definition be included in revised Rule 1.0.
Alice Senechal then reviewed the proposed comment to Rule 1.0 (pages 2-4), which reflects the ABA model rule comment language to the extent that model rule definitions were included.
It was moved by Sandi Tabor, seconded by Jean Hannig, and carried unanimously that the proposed comment language be approved.
Alice Senechal next reviewed revisions to the Rule 1.7 comment, consideration of which had been held over from the last meeting. She noted that the Committee approved revisions to the black-letter rule which would add "consent in writing" if there is a representation for which a conflict would be waived and would delete a definition that has since been included in Rule 1.0. She said proposed revisions to the comment language appear substantial in comparison to the relatively minor changes to the black-letter rule, but that is due to a concerted effort to make the comment clearer and easier to follow and to provide step-by-step guidance with respect to conflict situations.
Sandi Tabor said the revisions adopt language from the ABA comment that was considered very useful in assessing conflict situations and attempt to integrate that language into the current comment. The proposed comment language is intended, she said, to clearly describe how a conflict is analyzed and the relevant considerations are set out on page 2, lines 10-19. She said the proposed comment then moves to a discussion of the kind of conflict that may be at issue, e.g., personal, litigation, nonlitigation. The additional language from the ABA comment, she said, reflects the better organization and guidance of the model rule comment. Additionally, she noted the addition of paragraph [3] on page 2 of comment concerning the "adverse effect" of a conflict. She said the Committee, when revisions to Rule 1.7 were discussed, had requested that the Rule 1 review group consider an explanation of what would constitute an adverse effect. The proposed language, she said, is an attempt to clearly explain the concept.
Sandi Tabor noted the references to "the situation where" in paragraph [2], lines 16, 19, and 21 and suggested the more appropriate phrase would be "the situation in which".
Jean Hannig said the structure of the proposed comment is an improvement over the current comment and sets out a method of analysis that provides needed guidance.
Sandi Tabor noted that the proposed revisions also address the issue of future conflicts in paragraph [27].
It was moved by Jean Hannig, seconded by Sandi Tabor, and carried unanimously that the revisions to the Rule 1.7 comment, with the grammatical changes to paragraph [2], be approved.
Sandi Tabor then reviewed a possible additional revision to Rule 1.10 and proposed revisions to the comment contained in Attachment D. With respect to the black- letter rule, she drew attention to an issue noted earlier by Randy Lee, which concerned the impact of the Supreme Court's decision in Heringer v. Haskell, 536 NW2d 362 (N.D. 1995). The circumstance, she explained, involved an attorney having left a firm and thereafter taking a case that presented a direct conflict with a case the attorney's former firm was handling. The question, she said, was whether there had been a violation of Rule 1.6 (Confidentiality of Information) and whether there was an issue about the sharing of confidential information while the attorney was with the former firm, and how that information was used when the attorney left the firm and took the new case. The Supreme Court, she said, found that there was an appearance of impropriety, even though that language was no longer used in the rule. She said Randy Lee concluded the Court found the rule applicable to situations in which the attorney not only had information protected by the rule, but also had access to the information. She noted the Committee's effort to ensure that substantive limitations or provisions are reflected in the black-letter rule rather than in the comment language. She said it appears that the Court in Heringer had looked to the comment language and elevated a concept set out in the comment to a black-letter rule limitation. As a result, she said Randy Lee suggested that Rule 1.10 (c)(3), which precludes a firm from representing a person if any lawyer in the firm has information protected by Rule 1.6, be modified to reflect what the Court apparently intended. To that end, she said Randy Lee recommended that Rule 1.10(c)(3) be modified to read: "Any lawyer remaining in the firm has or has had access to material information protected by Rule 1.6."
It was moved by Sandi Tabor, seconded by Ryn Pitts, and carried unanimously that Rule 1.10(c)(3) be modified as described.
Sandi Tabor then reviewed the proposed revisions to the Rule 1.10 comment contained in Attachment D. She said the overstruck language on pages 1 and 2 reflect changes to the new definitions and changes to the black-letter rule. Alice Senechal said much of the overstruck language is now included in the comment to new Rule 1.0. Sandi Tabor noted the proposed deletion on page 5 of the definition of "matter", which reflects inclusion of the definition in new Rule 1.0.
Bob Udland noted paragraph [9] on page 5 and asked whether the comment language, in its references to acquiring information, addresses the changes to paragraph (c)(3).
After discussion, Sandi Tabor suggested that lines 1-3 on page 5 (paragraph [9]) be modified in part as follows" "Paragraphs (b) and (c) operate to disqualify the firm only when the lawyer involved has or has had access to material information protected by Rule 1.6. Thus, if a lawyer while with one firm did not have access to material information ... ".
It was moved by Sandi Tabor, seconded by Jean Hannig, and carried unanimously that the proposed revisions to the Rule 1.10 comment, with the additional modifications to paragraph [9], be approved.
Sandi Tabor next reviewed proposed revisions to the Rule 1.13 comment. She noted that the black-letter rule was revised extensively in light of the model rule. She said the added language reflects the model rule comment language.
It was moved by Jean Hannig, seconded by Sandi Tabor, and carried unanimously that the proposed revisions to the Rule 1.13 comment be approved.
Committee members then considered proposed revisions to the Rule 1.14 comment. Sandi Tabor explained that the revisions to the black-letter rule follow the model rule with the exception of references to "limited capacity", rather than "diminished capacity". She said revisions to the comment reflect the model rule comment, with the substitution of limited capacity.
Elaine Fremling asked the meaning of references on page 1 to "chronic" use of drugs and "chronic" intoxication. She said there are varying degrees of condition in these situations before the person reaches a chronic stage. Sandi Tabor said the rule addresses those situations in which a client may have a condition that results in the client's limited capacity to make certain decisions. She said the rule describes what the attorney may do in those situations during representation of the client.
It was moved by Sandi Tabor, seconded by Tim Priebe, and carried unanimously that the proposed revisions to the Rule 1.14 comment be approved.
Alice Senechal then reviewed proposed revisions to the Rule 1.15 comment. She said the black-letter rule was revised in light of the model rule to address deposits in a trust account by an attorney to cover bank fees and to address situations in which property in the attorney's possession is subject to claims by two or more persons. She said the proposed revisions to the comment incorporate model rule language. She said paragraph [2] relates to deposits to cover bank charges and paragraph [4] addresses claims on property by multiple persons. Additionally, she said proposed paragraph [6] would direct attorneys to the IOLTA Committee for guidance regarding the administration of trust accounts.
It was moved by Sandi Tabor, seconded by Elaine Fremling, and carried unanimously that the proposed revisions to the Rule 1.15 comment be approved.
Sandi Tabor reviewed the proposed revisions to the Rule 1.16 comment. She explained that the Committee had approved only minor amendments to the black-letter rule. She said much of the current comment is retained. She noted lines 18-21 on page 1 - new language clarifying the lawyer's obligation to continue representation if withdrawal is denied but underscoring that the lawyer may not use or argue a client's false testimony.
It was moved by Tim Priebe, seconded by Sandi Tabor, and carried unanimously that the proposed revisions to the Rule 1.16 comment be approved.
Sandi Tabor then reviewed proposed revisions to the Rule 1.17 comment. She noted that the Committee had made no changes to the black-letter rule. She said the proposed comment revisions would delete the current second and third paragraphs since they are not helpful in describing issues concerning the sale of a law practice. She said new paragraph [4] reflects model rule language. She recommended that line 1 of new paragraph [2] be further modified to refer to a seller's ceasing to engage in the private practice of law or in an area of practice, which would more accurately reflect provisions in the black-letter rule. She also recommended that line 11, page 3, be modified to refer in part to "practice or area of practice" and that references to "this rule" on pages 4 and 5 be replaced with "this Rule".
It was moved by Jean Hannig, seconded by Sandi Tabor, and carried unanimously that the proposed revisions to the Rule 1.17 comment, further modified as recommended, be approved.
Alice Senechal then reviewed proposed revisions to the Rule 1.18 comment, which, she said, reflect the substitution of the model rule for the current black-letter rule, with the exception of referring to "potential" client rather than "prospective" client.
Bill Neumann suggested subtitles within the comment, similar to those in other comments, would be helpful guides. Committee members agreed.
It was moved by Jean Hannig, seconded by Sandi Tabor, and carried unanimously that the proposed revisions to the Rule 1.18 comment, with the inclusion of subtitles, be approved.
Rule 2 Series Comment Revisions
Tim Priebe reviewed Attachment E (February 3, 2005) - proposed revisions to the Rule 2 series comments. With respect to Rule 2.1, he noted that the Committee had made no changes to the black-letter rule. He said the proposed revisions to the Rule 2.1 comment are essentially grammatical changes in the second paragraph and the addition of language in the last paragraph regarding offering a client information concerning other forms of dispute resolution that might be reasonable alternatives to litigation. The new language, he said, reflects the model rule.
It was moved by Sandi Tabor, seconded by Tim Priebe, and carried unanimously that the proposed revisions to the Rule 2.1 comment be approved.
Tim Priebe then reviewed proposed revisions to the comments for new Rule 2.2. He explained that the Committee had previously approved the deletion of current Rule 2.2 (Intermediary) and, as a consequence, current Rule 2.3 (Evaluation for Use by Third Persons) would be renumbered as Rule 2.2. He said the proposed revisions to the comment track the model rule commentary.
Elaine Fremling noted the reference in paragraph (b) of the revised black-letter rule to "client consents after consultation". She asked whether the language should be further revised to reflect that the consent must be in writing, as the Committee has done elsewhere in the rules.
It was moved by Sandi Tabor, seconded by Elaine Fremling, and carried unanimously that the revised black-letter rule be further modified to provide that the "client consents in writing after consultation."
It was moved by Sandi Tabor, seconded by Tim Priebe, and carried unanimously that the proposed revisions to the comment for new Rule 2.2 be approved.
Tim Priebe then reviewed the proposed comment for new Rule 2.3 (Lawyer Serving as Third-Party Neutral). He said the Committee had previously approved the new black-letter rule, which is the same as the model rule. The comment, he said, therefore reflects the model rule comment. He recommended, however, that "the Rules of Professional Conduct" in the last paragraph be replaced with "these Rules".
It was moved by Jean Hannig, seconded by Tim Priebe, and carried unanimously that the proposed comment to new Rule 2.3, modified as recommended, be approved.
Rule 3 Series Comment Revisions
Bob Udland and Jean Hannig reviewed Attachment A (March 14, 2005) - proposed revisions to the Rule 3 Series comments.
With respect to the proposed revisions to the Rule 3.1 comment, Bob Udland explained that the current rule is the same as the former model rule and the Committee had previously approved the addition of a reference to "in law and fact" to the rule, which reflects the only change made in the new model rule. As a result, he said, the proposed changes to the comment reflect the current model rule comment with one exception. He said paragraph [4], which is in the current comment but not in the model rule comment, would be retained. He said the provision provides useful additional guidance to lawyers.
It was moved by Sandi Tabor, seconded by Jean Hannig, and carried unanimously that the proposed revisions to the Rule 3.1 comment be approved.
Jean Hannig then reviewed proposed revisions to the Rule 3.2 comment. She noted that the Committee had not made any changes to the black-letter rule, which is the same as the model rule. She said the proposed revisions to the comment would also track the model rule comment.
It was moved by Tim Priebe, seconded by Ryn Pitts, and carried unanimously that the proposed revisions to the Rule 3.2 comment be approved.
Bob Udland next reviewed the proposed revisions to the Rule 3.3 comment. He said the proposed revisions reflect the incorporation in the current comment of model rule language with one significant exception. He explained that in its consideration of the black-letter rule, the Committee had initially concluded to modify the rule to follow the model rule with respect to candor to a tribunal. That conclusion, he said, represented an abandonment of the current rule provisions that incorporate the Supreme Court's holding in Matter of Malloy. That decision and the current rule counterpart essentially provides that if an attorney has offered testimony from a client and later learns that the testimony was false and the attorney fails in getting the client to recant, then the attorney must attempt to withdraw without giving a reason. If the court denies the withdrawal, the attorney must continue the representation. Bob Udland explained further that the Committee revisited its action regarding revisions to Rule 3.3 and essentially reinstated the Malloy approach. He said other revisions to the black-letter rule reflect the current model rule. As a result, he said the proposed revisions to the Rule 3.3 comment also reflect the model rule comment except for retention of language concerning the Malloy-related rule provisions.
Jean Hannig recommended that additional language be added to the end of new paragraph [5] to provide: "The lawyer may not use or argue false evidence."
It was moved by Bob Udland, seconded by Jean Hannig, and carried unanimously that the proposed revisions to the Rule 3.3 comment, including the recommended addition to paragraph [5], be approved.
At this point, Sandi Tabor had to leave the meeting due to a prior commitment.
Jean Hannig then reviewed the proposed revisions to the Rule 3.4 comment. She noted first that the Committee had not approved any changes to the black-letter rule, which is nearly identical to the model rule. She said the proposed revisions to the comment therefore incorporate language from the model rule comment.
It was moved by Bob Udland, seconded by Jean Hannig, and carried unanimously that the proposed revisions to the Rule 3.4 comment be approved.
Jean Hannig next reviewed proposed revisions to the Rule 3.5 comment. She noted that the revisions to the black-letter rule track the model rule with minor exceptions. The proposed revisions, she said, also follow the model rule.
It was moved by Tim Priebe, seconded by Petra Mandigo, and carried unanimously that the proposed revisions to the Rule 3.5 comment be approved.
Committee members then reviewed the proposed revisions to the Rule 3.6 comment. Jean Hannig explained that the Committee had previously approved revisions to the black-letter rule to follow the model rule. The proposed revisions, she said, follow the model rule comment.
It was moved by Jean Hannig, seconded by Ryn Pitts, and carried unanimously that the proposed revisions to the Rule 3.6 comment be approved.
Jean Hannig then reviewed the proposed revisions to the Rule 3.7 comment. She explained that the Committee had revised the black-letter rule to follow the model rule with the exception of retaining the reference in paragraph (b) to "conflict of interest", rather than including the model rule's explicit references to Rule 1.7 and 1.9. She said the proposed revisions retain some of the current rule that is different from but not inconsistent with the model rule comment, e.g., paragraph [1], but otherwise the revisions reflect the model rule comment. She noted that new paragraph [6] includes language to alert lawyers to the kinds of conflicts that may arise and new paragraph [7], in following the model rule, discusses vicarious disqualifications that may result in certain situations.
It was moved by Bob Udland, seconded by Tim Priebe, and carried unanimously that the proposed revisions to the Rule 3.7 comment be approved.
Jean Hannig next reviewed proposed revisions to the Rule 3.8 comment. She explained that the Committee had previously revised the black-letter rule to follow the model rule with the exception of retaining the current rule's requirement in paragraph (d) that information beneficial to the defense must be disclosed "at the earliest practical time". She said the proposed comment revisions therefore incorporate model rule language. She noted the added language in new paragraph [2] regarding the prosecutor's particular responsibility with regard to pro se defendants.
It was moved by Bob Udland, seconded by Tim Priebe, and carried unanimously that the proposed revisions to the Rule 3.8 comment be approved.
Jean Hannig next reviewed the proposed revisions to the Rule 3.9 comment. She noted that minor revisions were made to the black-letter rule, which is nearly identical to the model rule except for the last sentence addressing activities by lawyers who are involved in lobbying activities. The proposed revisions to the comment, she said, incorporate model rule comment language. She noted the typographical errors in the second and third lines of paragraph [3].
It was moved by Jean Hannig, seconded by Bob Udland, and carried that the proposed revisions to the Rule 3.9 comment, with the typographical corrections, be approved.
Rule 5 Series Comment Revisions
Alice Senechal distributed and reviewed her report concerning proposed revisions to the comments for Rules 5.1 and 5.2, which is attached as Appendix A.. She said the revisions to the Rule 5.3 comment would be carried over to the next meeting. She said the black-letter rules were previously revised by the Committee to parallel the model rules. As a result, she said the proposed comments to Rules 5.1 and 5.2 would also follow the model rule except that references to "the Rules of Professional Conduct" would be replaced with "these Rules".
It was moved by Jean Hannig, seconded by Ryn Pitts, and carried unanimously that the proposed revisions to the Rule 5.1 comment be approved.
It was moved by Jean Hannig, seconded by Tim Priebe, and carried unanimously that the proposed revisions to the Rule 5.2 comment be approved.
Tim Priebe then distributed and reviewed his report concerning proposed revisions to the comments for Rules 5.4, 5.6, and 5.7, which is attached as Appendix B. He explained that the Committee previously revised the black-letter Rule 5.4 to follow the model rule. He said the current comment is identical to paragraph [1] of the model rule comment and paragraph [2] has since been added to the model rule comment. He recommended that the current comment be revised to include the additional paragraph.
Jean Hannig suggested the parenthetical explanation following the reference to Rule 1.8(f) was unnecessary. Committee members agreed.
It was moved by Jean Hannig, seconded by Petra Mandigo, and carried unanimously that the proposed revisions to the Rule 5.4 comment, with the deletion of the parenthetical explanation, be approved.
With respect to Rule 5.6, Tim Priebe explained that the Committee had revised the black-letter rule to follow the model rule except for replacing the reference to "retirement" in paragraph (a) with "such termination". He recommended revising the first paragraph of the comment to replace "partners and associates" with "lawyers", which would then follow the model rule.
It was moved by Tim Priebe and seconded by Elaine Fremling that the proposed revisions to the Rule 5.6 comment be approved.
Alice Senechal drew attention to the reference to "retirement" in the first paragraph of the comment. She suggested that the reference be replaced with "termination", which would reflect the earlier change to the black-letter rule. After discussion, Committee members agreed the last sentence of the paragraph should be modified to provide in part: " ... concerning benefits after termination of a relationship with the firm."
It was moved by Petra Mandigo, seconded by Jean Hannig, and carried unanimously that the motion be amended to include the additional revision.
The amended motion carried unanimously.
Tim Priebe then reviewed the proposed revisions to the Rule 5.7 comment. He noted that the Committee had previously revised the black-letter rule to follow the model rule, which required only minor changes. He said the current comment follows the previous model rule comment and the proposed revisions reflect E2K -changes to that comment. He recommended also that references in the comment to "the Rules of Professional Conduct" be replaced with "these Rules".
It was moved by Bob Udland, seconded by Petra Mandigo, and carried unanimously that the proposed revisions to the Rule 5.7 comment, with the additional recommended change, be approved.
Comment Review Assignments for April 8 Meeting
Tim Priebe and Petra Mandigo will review the Rule 6 series comments. Jean Hannig and Bob Udland will review the Rule 8 series comments.
There being no further discussion the meeting was adjourned at 2:05 p.m.