Joint Committee on Attorney Standards November 17, 2006, Minutes

Joint Committee on Attorney Standards

Minutes
Joint Committee on Attorney StandardsSupreme Court Front Conference Room
November 17, 2006

Members Present

Sandi Tabor, Chair
Judge Karen Braaten
Justice Daniel Crothers
Elaine Fremling
Jean Hannig
Mark Hanson
Carol Johnson
Dianna Kindseth
Petra Hedvig Mandigo
Ryn Pitts
Tim Priebe
Bob Udland
Members Absent

Clare Carlson
Pat Ward

Staff
Jim Ganje
Bill Neumann
Others Present:
Penny Miller, Clerk of the Supreme Court

Chair Tabor called the meeting to order at 9:00 a.m. and drew Committee members' attention to Attachment B (November 8, 2006) - minutes of the March 24, 2006, meeting.

It was moved by Jean Hannig, seconded by Judge Braaten, and carried that the minutes be approved.

Temporary Licensure for Attorneys Applying for Admission

Chair Tabor drew Committee members' attention to Attachment C (November 8, 2006) - the revised draft rule concerning temporary licensure of attorneys applying for admission and excerpts from minutes of previous Committee meetings at which the topic was discussed. Staff briefly reviewed the history of the Committee's discussion of temporary licensure and development of the draft rule.

Bob Udland wondered whether it was necessary to retain on lines 19-20, page 1, the reference to the associate attorney not being required to be in the same firm as the applicant for a temporary license. He said the pro hac vice rule does not have a similar provision and since the draft rule would address a similar issue, i.e., temporary practice by an attorney not licensed in the state, it would not seem necessary to include the language. Jean Hannig agreed the language appears to be unnecessary.

It was moved by Bob Udland, seconded by J. Braaten, and carried that " , who need not be in the same firm as the applicant, and" be deleted from lines 19-20, page 1, of the draft.

Justice Crothers drew attention to the reference on page 2, line 14, to the temporary license being "immediately revoked without further action". He said the language refers to revocation, based on one of the identified factors, before expiration of the 12 month period of temporary licensure. He said it seems that some sort of action would be required to effect revocation and the reference to "immediately revoked" is unclear concerning how and when revocation action is to occur.

Judge Braaten said she would favor automatic revocation in certain of the circumstances listed in E(1) - (7), but questioned the appropriateness of automatic action with respect to the entire list. She wondered who, for example, would determine if the applying attorney had filed an untruthful affidavit as set out in E(1).

Elaine Fremling observed that the 2^nd sentence of Section E seems confused in combining in one sentence two distinct issues: the timeframe for a valid license and immediate revocation if certain acts occur. She suggested the sentence should be separated to deal with each issue in an independent sentence.

With respect to the process for implementing Section E, Judge Braaten said it appears necessary for the Board of Law Examiners to make some sort of determination, i.e., that one of the disqualifying factors is present, before the license could be revoked.

Justice Crothers suggested the language following "issuance" on lines 14-15, page 2, should be deleted and a new sentence added to the effect that a license may be summarily revoked upon a showing of one of the identified factors.

Judge Braaten said she would favor automatic revocation with respect to factor (2) [fails the bar examination], factor (6) [withdraws the application for admission to practice law under Rule 5 or 6], and factor (7) [is admitted to the practice of law in North Dakota under Rule 5 or 6]. The other factors, she said, should likely require some action by the Board of Law Examiners to effect the revocation.

Penny Miller said the general intent of the provision was that if any of the seven factors occurred, then no further action by the Board, e.g., a hearing, would be required to revoke the license.

Sandi Tabor suggested Section E should be modified to replace "and will be immediately revoked without further action if the applicant " with " . A temporary license may be summarily revoked by the Board if the applicant ...".

Justice Crothers asked whether factor (1) [files an untruthful affidavit] should be clarified to indicate the affidavit relates to the application for a temporary license. Penny Miller observed that if an applicant were to file an untruthful affidavit during the application process, the result would be a negative recommendation for admission.

With respect to the suggested language that the Board "may" summarily revoke a license, Tim Priebe asked whether the "may" construction changes the intent of the current draft language that the license "will be" revoked. Committee members agreed revocation should be required.

Following further discussion, it was moved by Justice Crothers and seconded by Jean Hannig that Section E on page 2, line 14, of the draft be modified to insert a period after "issuance" and replace "and will be immediately revoked without further action" with "The Board shall summarily revoke the temporary license ..."

Elaine Fremling suggested that Section E, if so modified, would be clearer if separated into two sections: Section E regarding issuance and timeframe of a valid license and perhaps a new Section F regarding revocation of the license based on the identified factors. Judge Braaten agreed with the suggested division.

It was moved by Elaine Fremling, seconded by Ryn Pitts, and carried that the motion be amended to include division of Section E as described to create a new Section F regarding revocation.

The motion, as amended, carried.

Chair Tabor drew attention to the first factor for revocation - the filing of an untruthful affidavit - and the previous discussion concerning its applicability.

It was moved by Justice Crothers and seconded by Jean Hannig that factor (1) be modified to read "files an untruthful affidavit with the Board".

Jean Hannig said the additional language would address an affidavit submitted with respect to temporary licensure, admission to the bar, or some other filing with the Board.

Petra Mandigo observed that including a reference to "with the Board" would extend the rule beyond situations involving temporary licensure. Additionally, she noted that the application is an affidavit because it must be attested or sworn to.

Jean Hannig asked whether any kind of separate affidavit, other than the application, could be submitted. Penny Miller said it is possible that an additional affidavit may be required if, for example, more information is required. She noted that the Board requires that everything be submitted to it in affidavit form.

The motion carried.

Sandi Tabor noted the reference to Section "(F)" on page 2, line 27, and asked whether it should be changed to "(G)" in light of the creation of new Section F or if it should simply be considered the concluding paragraph of new Section F.

Jean Hannig asked whether the expiration of the temporary license should be addressed on line 28 with respect to notifying the Disciplinary Board. Brent Edison said there likely is no need for such notification. Penny Miller noted that, under the draft rule, the Disciplinary Board would not receive notice at the outset of the issuance of a temporary license.

Following further discussion, it was moved by Elaine Fremling, seconded by Judge Braaten, and carried that "(F)" be deleted from page 2, line 27, of the draft, resulting in the remaining language representing the concluding paragraph of new Section F.

It was moved by Petra Mandigo, seconded by Jean Hannig, and carried that the draft rule, as modified, be approved for submission to the SBAND Board of Governors for review and comment and, if there are no Board issues requiring Committee attention, for submission to the Supreme Court for its consideration.

Pro Bono Services by Inactive or Retired Attorneys

Chair Tabor next drew attention to Attachment D (November 8, 2006) - ABA information forwarded to the Committee by Bill Neumann, SBAND Executive Director, regarding rules permitting inactive or retired attorneys to provide pro bono legal services. She said the question is whether the Committee should move forward with consideration of the information and perhaps consider a draft rule based on the information provided.

Jean Hannig asked whether an inactive or retired attorney participating under such a rule would have to fulfill CLE requirements. Sandi Tabor drew attention to the chart included in Attachment D, which summarizes the basic features of various state rules and indicates differing requirements regarding CLE. She noted that those states that waive CLE requirements or in-state licensure seem to require involvement of a supervising attorney.

Dianna Kindseth asked whether a participating attorney would work under the auspices of an organization such as Legal Services of North Dakota.

Bob Udland recommended that the Committee pursue consideration of a possible rule. He noted that the summary of state rules indicates a fairly controlled environment in which an inactive or retired attorney would be permitted to provide pro bono legal services.

It was moved by Jean Hannig, seconded by Justice Crothers, and carried that the Committee consider a draft rule generally based on the information in Attachment D.

Chair Tabor then asked if there were particular features, based on the summary of rules, that should be included in a draft rule.

Justice Crothers suggested that an active in-state license not be required, but some level of supervision should, in that event, be required. Jean Hannig said there should be a minimum years of practice requirement and suggested reviewing issues concerning reduced dues and reduced CLE requirements. It was noted that license fees are established, in part, by statute and that CLE requirements are determined by the CLE Commission.

Petra Mandigo asked whether a participating attorney would be subject to the disciplinary system if a license to practice law is not required. Brent Edison noted that once a person is reflected in the roll of attorneys, it is immaterial for disciplinary purposes whether the person has a license.

With respect to CLE, Sandi Tabor suggested the possibility of requiring participating attorneys to attend seminars conducted by a non-profit legal services group, such as Legal Services of North Dakota. She noted that most of the pro bono legal activity in the state is in the family law area and there would be some risk in permitting an attorney to provide pro bono services in such cases without benefit of either particular experience or some level of related CLE.

With respect to years of experience, Justice Crothers drew attention to the summary information concerning Washington's rule. He said the rule appears to require that the attorney have 5 years of practice in the last 10 years and 10 years of practice in the last 15 years if the attorney is out-of-state. The requirement, he said, seems reasonable. Committee members tentatively agreed the Washington example should be followed. There was also general agreement to not require in-state licensure but to require supervision and to require attendance at CLE programs conducted by non-profit legal services programs, as previously discussed.

Jean Hannig and Bob Udland agreed to review the background information further.

Chair Tabor said Jim Fitzsimmons, Executive Director of Legal Services of North Dakota, would be invited to the next meeting for comments concerning involvement of non-profit legal service providers.

ABA Model Rule Concerning Legal Services After a Catastrophic Event - Request for Comment

Chair Tabor drew attention to Attachment E (November 8, 2006) - information from the ABA Standing Committee on Client Protection concerning a proposed model rule relating to the provision of legal services following a catastrophic event. She said the preliminary question appears to be whether the proposed rule should be a court rule or a rule of professional conduct. The information indicates a previous comments suggest the rule should be a "court" rule since it addresses conditions of admission, rather than a rule of professional conduct since it does not relate particularly to ethical issues.

Following discussion, it was moved by Justice Crothers, seconded by Bob Udland, and carried that the Chair be authorized to submit a comment indicating the rule should be proposed as a court rule, rather than a rule of professional conduct.

2007 Meeting Schedule

Chair Tabor noted the 2007 meeting schedule reflected on the agenda. She asked that Committee members contact her or staff with respect to any conflicts.

There being no further discussion the meeting was adjourned at 10:20 a.m.