Justice Daniel Crothers
Chair Senechal called the meeting to order at 10:00a.m. and reviewed the July meeting with the SBAND Board of Governors concerning the Committee's proposed rule amendments. She thanked Sandi Tabor and Petra Mandigo for their assistance in presenting and explaining the various amendments. She said the Board was generally supportive of the proposed amendments and agreed with the Committee's decision not to incorporate the informed consent approach taken in the ABA Model Rules. However, she said the Board was not supportive of the Committee's alternative to informed consent, i.e., including a writing requirement concerning client consent and consultation in various rules. She said the Board also recommended additional changes to various rules. She drew attention to Attachment C (September 2, 2005), a letter from SBAND President Mike Williams which summarizes the Board's conclusions concerning the proposed amendments. She said the Committee's initial task is to determine whether and how to respond to the Board's observations, particularly the issue regarding the various writing requirements..
In response to a question from Bob Udland regarding the Board's opposition to a writing requirement, Sandi Tabor said there was concern that including such a requirement would establish a standard that would result in an automatic violation of the rules if an attorney did not obtain written consent. She said the Board supports the idea of a writing requirement as a "best practice", perhaps emphasized in rule comments, but would not support including writing requirements in black-letter rules. She noted a particular example involving representation of a client in a divorce action in which there is a potential conflict that can be waived, and the client verbally agrees to the waiver. She said there was concern about whether writing a letter after the fact to confirm the client's consent to the waiver would be regarded as sufficient to satisfy a writing requirement.
Bill Neumann observed that the Reporter's Explanations to the various model rule changes incorporating informed consent indicated that no substantive change was intended in adopting the informed consent approach. He said general sentiment among Board members is that if the thrust of the model rule changes was that no great change was intended, then imposing a writing requirement, as an alternative, would be an important change.
Petra Mandigo said some Board members were concerned that if the writing requirement is elevated to black-letter rule a hearing on whether the client consented would never be available since the absence of a writing would indicate a violation of the black-letter rule.
Bill Neumann said there is general support for explaining in rule comments that consent in writing is considered the best practice and agreed there is concern that the simple absence of a writing, if the requirement is in the black-letter rule, would result in discipline.
Judge Braaten said she tended to agree that not obtaining written consent would likely result in a violation of the rule. She observed, however, that there may be some rules in which a writing requirement would be appropriate.
Petra Mandigo explained that her research indicates that 44 states and the District of Columbia have adopted some form of informed consent requirement, with some variations in how the requirement is applied.
Sandi Tabor said she had reviewed the various rules in which a writing requirement was added and it is difficult to identify a particular rule in which it would not be a prudent, commonsense practice to obtain written consent or confirmation of consent in writing. She said a writing serves interests in client protection as well as attorney self-protection. She noted that if a client, for example, will not consent in writing to a conflict, there may be a problem with the client that requires the attorney's attention.
Elaine Fremling explained that in the insurance and securities industry nearly every communication with a client is in writing and oversight approval of the written document is required. She said her files are audited yearly to ensure that all necessary written documents are maintained.
Ryn Pitts observed that in the health care industry a simple premise is followed: if a matter is not documented, it did not occur. She said it is difficult to understand why the legal profession would not want to obtain important matters, such as client consent, in writing.
Judge Braaten noted the previously mentioned interests in client and attorney protection. She said there may be a distinction between rules that serve to protect the public or client, which arguably should have a writing requirement, and rules that essentially protect the attorney, which should emphasize in comment language that obtaining written consent is the preferred practice. She suggested that approach be taken in reviewing Attachment C (September 2, 2005) - the comparison of informed consent and writing requirements prepared by Alice Senechal.
Jean Hannig said she views the Rules of Professional Conduct as having the primary purpose of protecting the public, rather than protecting attorneys. She said her inquiry committee experience indicated that having matters formalized in writing would have been an advantage for many lawyers who were the subjects of complaints. She said taking the time to produce a writing about aspects of representation may have caused the lawyer to think more closely about the situation and may have helped avoid disciplinary issues.
Committee members then turned to a review of Attachment C, a comparison of current rule provisions, the Committee's proposed changes concerning writing requirements, and the ABA alternative concerning informed consent.
Writing Requirements - Rule Comparisons in Attachment C
Rule 1.0(b). With respect to Rule 1.0(b) regarding the definition of "consent in writing", Sandi Tabor asked whether some of the Board of Governors' concern might be addressed by revisiting the Committee's proposed language in the definition which addresses how oral consent can be confirmed. She said the proposed language appears to require a sign-off by the client even if the attorney sends written confirmation to a client regarding the client's earlier oral consent. She noted concern by some Board members that, particularly in family law cases, an attorney may not have time to prepare a written agreement and obtain written consent while the client is in the office. Nevertheless, she said, the client may verbally consent to the attorney's description of the scope of representation. She wondered whether modifying the language to make clear that a written confirmation of the client's consent, without requiring anything more, might address the concern. Pat Ward said such an approach likely would be helpful.
Bill Neumann said if the various writing requirements are retained, the Board will likely appear at the hearing on the proposed amendments and restate its opposition to the requirements. He cautioned that the Supreme Court may not support the writing requirement approach since no other state has adopted such a requirement and the Board has voiced clear opposition. He reiterated that there is a significant difference between identifying something as a best practice and creating an ethical requirement that may result in possible discipline for failure to comply.
After further discussion, it was moved by Judge Braaten and seconded by Sandi Tabor that the proposed definition of "consent in writing" be modified to delete, on lines 9-10, "a writing that a lawyer promptly transmits to the person confirming oral consent" and substitute "or the lawyer promptly transmits to the person a writing confirming oral consent".
Bill Neumann said the modified language may address the practical difficulties mentioned by Sandi Tabor, but it does not address the Board's general concern about writing requirements.
Sandi Tabor drew attention to the 2nd sentence on lines 10-11 regarding the lawyer obtaining or transmitting "it" within a reasonable time if it is not feasible to obtain or transmit the writing at the time the person consents. She asked whether the language should refer specifically to obtaining or transmitting a letter or some other kind of writing. Pat Ward suggested "written confirmation". Petra Mandigo said there may be situations in which there was no time to talk to the person about giving consent at the time, but consent is obtained later.
Following discussion, it was moved by Judge Braaten, seconded by Sandi Tabor, and carried that the motion be amended to delete on lines 9-10 "a writing that a lawyer promptly transmits to the person confirming oral consent" and substitute "or oral consent promptly confirmed in writing by the lawyer".
With respect to line 11 of the 2nd sentence, Sandi Tabor expressed concern about the reference to "obtain it", which seems to imply that the lawyer must somehow obtain consent. Pat Ward suggested the 2nd sentence could be deleted in light of the changes to the 1st sentence.
It was moved by Sandi Tabor and seconded by Jean Hannig that the 2nd sentence in the revised definition of "consent in writing" be deleted.
Petra Mandigo said the 1st sentence, as revised, implies that the lawyer will have talked with the client at the time consent is given and that may not always be the case. Alice Senechal agreed there may be situations in which the lawyer cannot obtain consent, but said the language addresses when a writing, rather than consent, is obtained.
The motion carried. (Petra Mandigo - no).
Rule 1.2(c). With respect to proposed amendments to Rule 1.2(c), which would require written consent to limit the scope of representation, Judge Braaten said she is inclined to support retention of the writing requirement. Pat Ward said the requirement is more acceptable in light of the changes made to the definition of "consent in writing". In response to a question from Sandi Tabor regarding the burden of a writing requirement in family law cases, Jean Hannig said the requirement would likely not be a burden because a written agreement with a retainer is generally obtained in family law cases. She said her normal practice is to set out the scope of representation in the written agreement. Judge Braaten observed that written consent may be more burdensome in very simple kinds of cases, such as preparation of a deed.
Following further discussion, there were no suggested changes to Rule 1.2(c) as revised.
Rule 1.5(b). Sandi Tabor noted that the revised language requires that the basis, rate, or amount of attorney fees be communicated to the client, "preferably" in writing. There were no suggested changes to Rule 1.5(b) as revised.
Rule 1.5(c) [contingent fee agreement to be in writing "signed by the client"]. There were no suggested changes to Rule 1.5(c) as revised.
Rule 1.5(e)(2) [division of fee requires client consent in writing]. There were no suggested changes to Rule 1.5(e)(2) as revised.
Rule 1.6(a) [disclosure of information relating to representation permitted when client consents in writing]. Alice Senechal said that in light of the Board of Governors discussion it may be appropriate to delete the requirement of a writing in these situations. Jean Hannig observed that a writing requirement may be unduly burdensome if written consent must be obtained, for example, during a trial or deposition. Sandi Tabor said there was concern expressed by Board members about the difficulty of obtaining written consent in the context of settlement discussions.
It was moved by Jean Hannig and seconded by Sandi Tabor that the proposed amendments to Rule 1.6(a) be modified to delete the reference to "in writing".
Pat Ward wondered whether the language should be modified to require client consent "after consultation". Jean Hannig observed that the current rule does not require consultation.
Petra Mandigo suggested language should be added to the comment indicating that obtaining client consent in writing is a preferred practice. Committee members agreed.
The motion carried.
Rule 1.7(c)(2) [waiver of conflict - when permitted - requires client consent in writing]. Sandi Tabor said the Board's concern with the writing requirement is understandable, but wondered whether the requirement would constitute a burden in light of the changes to the definition of "consent in writing". She said the requirement, as a matter of commonsense protection for the lawyer, should probably be retained. Pat Ward said as long as the revised definition permits a lawyer to send a letter to the client confirming what was discussed, then the writing requirement should not be a significant issue. Judge Braaten observed that client consent in writing regarding waivers of conflicts also serves to protect the client. Committee members agreed written consent would serve as an impetus to the lawyer to closely examine the nature of the conflict. There were no suggested changes to Rule 1.7(c)(2) as revised.
Rule 1.7(d) [use of information to disadvantage of client requires client consent in writing after consultation]. There were no suggested changes to Rule 1.7(d) as revised.
Rule 1.8(a) [transactions with client require written client consent after consultation, including written advice to seek independent counsel]. There were no suggested changes to Rule 1.8(a) as revised.
Rule 1.8(b) [use of information to disadvantage of client requires client consent in writing after consultation - similar to Rule 1.7(d)]. There were no suggested changes to Rule 1.8(b) as revised.
Rule 1.8(g) [aggregate settlement of matters involving more than one client requires written consent after consultation with each client]. Jean Hannig noted that the model rule requires informed consent in writing signed by each client, an approach different from the previously revised definition of "consent in writing". Committee members generally discussed circumstances under which discussions concerning aggregate settlements occur. Petra Mandigo observed that the rule bars participation in making an aggregate settlement unless consent is given. Committee members agreed it is beneficial that all concerned parties are contacted before discussions concerning any aggregate settlement are undertaken. There were no suggested changes to Rule 1.8(g) as revised.
Rule 1.8(h)(2) [settlement of currently unrepresented client's claim against a lawyer requires written consent after consultation, including written advice to seek independent counsel]. Alice Senechal said the consent at issue in Rule 1.8(h)(2) seems to be different in kind from other references to consent in the rules. She said there probably is a less compelling need for written consent in the circumstances subject to rule 1.8(h)(2).
It was moved by Jean Hannig, seconded by Pat Ward, and carried that the reference to "in writing" be deleted from Rule 1.8(h)(2).
Rule 1.9(b) [representation adverse to that of former client in substantially related matter requires former client's written consent after consultation]. Pat Ward suggested the writing requirement could be deleted in light of changes made previously to related rules. Sandi Tabor said if the issue is one of attorney protection than it may be acceptable to address the preference for consent in writing in the comment.
It was moved by Sandi Tabor, seconded by Pat Ward, and carried that the reference to "in writing" be deleted from Rule 1.9(b) and language added to the comment explaining that obtaining consent in writing is the preferred practice.
Chair Senechal noted that there are several issues with respect to Rule 1.10 and suggested the rule be discussed later in the sequence.
Rule 1.11(a)(2) [imputed disqualification can be waived through client's written consent after consultation]. Sandi Tabor said a writing requirement is arguably not necessary in this particular rule.
It was moved by Sandi Tabor, seconded by Jean Hannig, and carried that the reference to "in writing" be deleted from Rule 1.11(a)(2).
Rule 1.11(d)(2)(i) [successive private/governmental representation requires written consent of appropriate governmental agency]. In light of the deletion of the writing requirement from Rule 1.11(A)(2), it was moved by Sandi Tabor, seconded by Jean Hannig, and carried that the reference to "in writing" be deleted from Rule 1.11(d)(2)(i).
Rule 1.12(a) [representation after work as adjudicator or third-party neutral requires written consent of all parties after consultation].
It was moved by Jean Hannig, seconded by Sandi Tabor, and carried that the writing requirement be retained but relocated to precede "after consultation".
Rule 1.18 [if lawyer has received significantly harmful information in the course of discussion with potential client, disqualification is not imputed to the firm if affected client and potential client both give written consent]. Sandi Tabor said the Board of Governors recommended several changes with respect to the revised rule - Attachment B (September 2, 2005). She said the Board recommends that Rule 1.8(b) be modified to refer to the lawyer not using or revealing "significantly harmful" information learned in consultation with a potential client. The change would track language contained in paragraph (c). She suggested a similar approach be used in paragraph (d), rather than referring to "disqualifying" information. She said the Board also recommended that paragraph (d)(2)(i) regarding timely screening of the disqualified lawyer also be deleted and language added to the comment explaining that a lawyer may divulge to a client the fact that an opposing party has contacted the lawyer seeking representation. Jean Hannig suggested that if the reference to "disqualifying" information is changed in paragraph (d), then the related language concerning the term being defined in paragraph (c) should also be deleted.
It was moved by Sandi Tabor, seconded by Judge Braaten, and carried that paragraph (b) be further modified to refer to "significantly harmful" information, that paragraph (d) be further modified to substitute "significantly harmful" information for "disqualifying" information, to delete the reference to the definition in paragraph (c), and to delete subparagraph (2)(i).
With respect to the requirement for written consent in paragraph (d)(1), Jean Hannig suggested a writing requirement is not necessary.
It was moved by Jean Hannig and seconded by Pat Ward that paragraph (d)(1) be further modified require only client consent.
Ryn Pitts said it appears there are other circumstances in which a writing requirement has been supported and it seems such a requirement is appropriate in this circumstance. Petra Mandigo said if the option is given to the client to consent to the use of significantly harmful information, then there should be written consent. Jean Hannig suggested the alternative of including language in the comment explaining that obtaining client consent in writing is the preferred practice.
The motion carried (6 yes - 2 no).
With respect to the Board's recommendation that language be added to the comment concerning a lawyer revealing to a client that an opposing party has contacted the lawyer seeking representation, it was moved by Sandi Tabor, seconded by Judge Braaten, and carried that the recommended language be added to comment . (Petra Mandigo - no).
In light of the changes made to paragraphs (c) and (d), it was moved by Sandi Tabor , seconded by Judge Braaten, and carried that comment  be revised to reflect that a lawyer obtains consent "from" the potential and affected clients, rather than obtaining consent in writing, that language regarding timely screening of disqualified lawyers be deleted, and that the last two sentences be deleted from the comment.
Committee members agreed the references in comment  to screening should be deleted.
Rule 2.2(b) [evaluation for use by third persons which would affect client's interests materially and adversely requires written client consent after consultation]. Sandi Tabor wondered how the provision might be applied. Alice Senechal said the rule would apply to situations involving opinion letters, for example, when there is knowledge by the lawyer that a third party may use what the lawyer has prepared. Pat Ward said auditor's letters are a similar example and in those circumstances there is written authorization. After further discussion, there were no suggested changes to rule 2.2(b) as revised.
Committee members then returned to consideration of Rule 1.10. Alice Senechal drew attention to Attachment D (September 2, 2006) - her suggested changes to revised Rule 1.10. Particularly, she said the proposed definition of "personal interest" in Rule 1.10(a) seems too narrow and may not address issues raised in recent court decisions. She suggested as an alternative defining "personal interest" in the manner set out in the first sentence of the quote from Geoffrey Hazard's The Law and Ethics of Lawyering. Bob Udland suggested if the recommended language is used, "disqualification" should be used instead of "conflict".
It was moved by Judge Braaten, seconded by Sandi Tabor, and carried that the definition of "personal interest" be revised as described.
Alice Senechal next drew attention to Rule 1.10(d) and explained that the revised rule would seem to permit waiver of imputed disqualification in virtually any conflict. Sandi Tabor asked whether Rule 1.10(d) should be further modified or if the issue should be addressed in Rule 1.7. Alice Senechal said her preference, since the rule deals with imputed disqualification, is that the issue be addressed in Rule 1.10. She suggested consideration of language from Model Rule 1.7(b)(3) which sets out a condition that must be satisfied in order for concurrent representation to proceed.
After further discussion, it was moved by Pat Ward, seconded by Jean Hannig, and carried that Rule 1.10(d) be further modified to include at the end of the sentence: "so long as the representation does not involve the assertion of a claim by one client against another client represented by the same firm in the same litigation or other proceedings before the tribunal."
Sandi Tabor noted the issue raised in the Board of Governors' comments concerning modifying Rule 1.10 to make clear that proper screening can adequately permit some lawyers in a law firm to be involved in a case even though others have been disqualified. She said the issue is somewhat similar to that addressed in Rule 1.10(c), which was revised to take into account screening issues raised in Heringer. She said if lawyers should be permitted to screen in situations governed by Rule 1.10, the rule should make that allowance clear. She noted that most state rules that address imputed disqualification emphasize the protection of confidential information. She distributed draft language that could be included as a replacement for current paragraph (b) and which would govern situations in which screening involving a new attorney to the firm is undertaken. She said the draft language is a combination of rule provisions from Minnesota and New Jersey. A copy of the draft language is attached.
Chair Senechal said the threshold question is whether anything should be included in the rule regarding screening. Sandi Tabor agreed and said the Board of Governors discussion conveyed a sense that screening is occurring now and there is a question whether anything in current rules allows screening as a general matter. Judge Braaten said language governing screening should be included in Rule 1.10. Bob Udland agreed but said he is not aware of screening occurring on any regular basis.
It was moved by Pat Ward and seconded by Jean Hannig that Rule 1.10(b) be modified as described in the draft language.
Judge Braaten said she would prefer restructuring the draft language so that it more closely follows the general format and expression of other rules. Sandi Tabor agreed and observed that the draft language is formed more in the affirmative than as a restriction. She suggested the opening paragraph should be redrafted to state a general prohibition against representation "unless" factors identified in the following subparagraphs are satisfied. Petra Mandigo suggested that the draft language, rather than referring only to prohibitions under Rule 1.9(b), should be modified to also recognize limitations imposed under Rule 1.9(a). She said for screening to be effective and to enable lawyers to move from firm to firm situations addressed by both Rule 1.9(a) and (b) should be referenced in the language. She said the effect of the suggested change would be to simply refer to "Rule 1.9" in the proposed language.
After further discussion Sandi Tabor recommended the following changes to the proposed language: refer only to Rule 1.9; modify the language to provide that lawyers in the other firm may not represent the client unless the factors are satisfied; move the language concerning there being no reasonably apparent risk regarding use of confidential information to sub-paragraph (2); and delete "subsequent" from sub-paragraph (1). The remaining language would remain.
With the consent of the second, the recommended changes were accepted as a friendly amendment to the motion.
The motion, as amended, carried.
Chair Senechal drew attention to the writing requirement in Rule 1.10(d) [successive private/governmental representation requires written consent of appropriate governmental agency], which Committee members had not yet addressed. Jean Hannig suggested the writing requirement should be retained. Pat Ward agreed. There were no further suggested changes to Rule 1.10(d) as revised.
Committee members then turned to the remainder of the Board of Governors' comments in Attachment B (September 2, 2005).
Sandi Tabor drew attention to the Board's recommendation that Rule 1.15(b) be amended to clarify how lawyers handle credit card or wire transfer fees with respect to trust accounts.
Following discussion, it was moved by Sandi Tabor, seconded by Jean Hannig, and carried that Rule 1.15(b) be modified to read: "A lawyer may deposit the lawyer's own funds in a client trust account only for the purpose of paying bank service charges, fees associated with credit card payments, or wire transfers related to that account, but only in an amount necessary for that purpose."
Chair Senechal drew attention to the Board's recommendation that Rule 3.1 be modified to include "or commitment" after "incarceration" in the black-letter rule.
It was moved by Sandi Tabor, seconded by Jean Hannig, and carried that Rule 3.1 be modified as recommended.
Char Senechal drew attention to the Board's recommendation that Rule 3.3(b) be further modified to insert language to clarify that the requirement that a lawyer take remedial measures is subject to the general requirements of paragraph (a)(3).
It was moved by Sandi Tabor, seconded by Petra Mandigo, and carried that Rule 3.3(b) be further modified as recommended.
Chair Senechal drew attention to the Board's recommendation that Rule 3.5(b) be further modified to make clear that a lawyer may not communicate ex parte with an "impaneled" juror.
It was moved by Jean Hannig, seconded by Ryn Pitts, and carried that Rule 3.5(b) be further modified as recommended.
Chair Senechal next drew attention to the Board's recommendation that the new language in the comment, paragraph , to Rule 4.3 be modified to clarify that a lawyer is not typically required to disclose the identity of the client in order to explain that the lawyer represents someone who has interests opposed to the unrepresented person. Sandi Tabor said the Board's concern was that the first sentence of the new language in the comment suggested that a lawyer would typically identify the lawyer's client to an unrepresented person who had contacted the lawyer about possible representation.
It was moved by Sandi Tabor, seconded by Bob Udland, and carried that the first sentence of the new language in comment paragraph  be modified to delete "identify the lawyer's client and, where necessary," and to insert "lawyer's" before the remaining "client".
Chair Senechal drew attention to the Board's recommendation that Rule 8.4(c) be further modified to insert "professional" before "conduct", which would then describe, as a form of professional misconduct, engaging in "professional conduct involving dishonesty, fraud, deceit, or misrepresentation." She said the concern was that the simple reference to "conduct" in Rule 8.4(c) could subject a lawyer to discipline for, for example, telling an untruth to the lawyer's child. Pat Ward suggested the language remain unchanged. Bill Neumann noted that an alternative to including "professional" in the rule might be to describe the conduct as being related to the practice of law. Judge Braaten observed that character and fitness examinations usually consider various kinds of conduct and behavior in determining whether a law license should be granted. She said the language should probably be revised to generally clarify the kind of actions that may be regarded as professional misconduct, but to also recognize that some kinds of conduct that are not directly related to the practice of law may also be a kind of professional misconduct.
Following further discussion, it was moved by Judge Braaten, seconded by Sandi Tabor, and carried that Rule 8.4(c) be revised to read " engage in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer's fitness as a lawyer."
Committee members then returned to a review of Attachment D (September 2, 2005) and the outline of miscellaneous changes prepared by Alice Senechal.
With respect to the insertion of "same" in Rule 1.0 page 3, line 13, it was moved by Sandi Tabor, seconded by Jean Hannig, and carried that Rule 1.0 be further modified as suggested.
With respect to the suggested deletion of "also" from Rule 1.9 on page 2, line 3, it was moved by Jean Hannig, seconded by Sandi Tabor, and carried that Rule 1.9 be further modified as suggested.
With respect to inserting "the client" in Rule 1.14, page 1, line 6, it was moved by Sandi Tabor, seconded by Jean Hannig, and carried that Rule 1.14 be further modified as suggested.
With respect to inserting "legal assistant" in Rule 5.3, page 3, line 21, it was moved by Sandi Tabor, seconded by Jean Hannig, and carried that Rule 5.3 be further modified as suggested.
With respect to moving the reference in Rule 8.3, page 2, lines 7-8, to reports made to the Disciplinary Board, it was moved by Sandi Tabor, seconded by Judge Braaten, and carried that the noted sentence be relocated to the end of Comment .
Chair Senechal noted there may be changes to rule comments resulting from changes to black-letter rules approved at the meeting. She asked how review of comment language could be most expeditiously handled. Sandi Tabor suggested the Chair and staff review any required changes and if there are substantive concerns the comment revisions could be assigned to a Committee member for review. Committee members agreed. It was also agreed that in the absence of any substantive questions concerning comment language revisions to the rule amendments should be finalized for submission to the Supreme Court.
It was moved by Sandi Tabor, seconded by Jean Hannig, and carried that the proposed amendments to the Rules of Professional Conduct, as further modified and with any related changes to comments in the manner described, be approved and submitted to the Supreme Court for consideration.
Chair Senechal said if there are any substantial issues that require Committee attention a conference call meeting can be arranged to reconsider approval.
Definition of "Nonresident Attorney"
Consideration of the definition of "nonresident attorney" for purposes of Rule 3, Admission to Practice Rules, was deferred until a subsequent meeting.
Registration of Government Attorneys
Chair Senechal drew attention to Attachment H (September 2, 2006), particularly the suggestion by Paul Richard that Rule 3B of the Admission to Practice Rules be modified to permit a nonresident attorney employed by a governmental entity to register under the rule. She said the matter has been pending during the Committee's consideration of the rule amendments. Sandi Tabor said the analysis presented by Paul Richard indicates the change should probably be made.
It was moved by Sandi Tabor, seconded by Elaine Fremling, and carried that "governmental entity" be added to the list of entities identified in Rule 3B.
Lawyer Assistance Plan - Consequences for Failure to Comply
With respect to Attachment J (September 2, 2006), Judge Braaten explained that there appears to be an unintended gap in the rules governing the lawyer assistance program which creates uncertainty about the status of an underlying complaint during a lawyer's participation in an assistance program or if the lawyer fails to comply with the assistance plan. She drew attention to the proposed amendments to Rule 6.6E, Rules for Lawyer Discipline, which would clarify that disciplinary action is stayed during a period of compliance with the plan, that failure to comply is a basis for lifting the stay, and that compliance with the plan will result in dismissal of the complaint.
It was moved by Sandi Tabor, seconded by Pat Ward, and carried that Rule 6.6 be modified as recommended in Attachment J.
Chair Senechal said the proposed amendments to Rule 3 of the Admission to Practice Rules and Rule 6.6E of the Rules of Lawyer Discipline will be submitted to the Board of Governors for comment.
It was noted that Chair Senechal's second and final term on the Committee will end December 31. Committee members thanked her for her leadership and substantial commitment of time and effort during her tenure as Chair and Committee member.
There being no further discussion the meeting was adjourned at 2:30 p.m.