|North Dakota Rules for Continuing Legal Education||)|
|PETITION TO AMEND RULE 4|
A) The North Dakota Commission for Continuing Legal Education (Commission) respectfully submit this Petition to amend paragraphs (b), (c) and (e) of Rule 4 and Appendix A of the N.D.R. Continuing Legal Ed. The changes are requested in response to two different situations involving attorneys filing their reports of compliance.
1) The Commission is recommending amendments to Rule 4(b) and Appendix A in response to a case where an attorney included false information on his report of compliance, and when questioned by the Commission, he filed for inactive status. The Commission filed a disciplinary complaint against the attorney and the attorney disappeared. In subsequent discussions the Commission raised concerns regarding its need to know when disciplinary proceedings are outstanding against an attorney seeking inactive status in order to ensure that Commission action does not hamper the activities of the Disciplinary Board. The proposed language requires a certification as part of the request for inactive status that there are no pending discipline proceedings or investigations in any jurisdiction against the requesting attorney.
2) The Commission is recommending amendments to paragraphs (c) and (e) of Rule 4 because the Commission believes that attorneys suspended by the Commission should provide notice to clients of the CLE suspension similar to the notice required under Rule 6.3 N.D.R. Lawyer Discipl. The action is specifically requested in response to a case where an attorney suspended under the CLE rules sought readmission. The attorney had been notified of the requirement to provide notice of the suspension to his clients. Upon receipt of the attorney's report of compliance and petition for readmission, the Commission requested an affidavit verifying his compliance with Rule 6.3 of the ND Rules for Lawyer Discipline. The attorney refused to provide the affidavit to the Commission, suggesting that the Commission did not have authority under the rules to impose the requirement. The proposed language clarifies the Commission's right to include the affidavit requirement in the Order of Suspension, and to require a suspended attorney to notify clients of the CLE suspension.
B) The undersigned, pursuant to action taken by the Commission, hereby petition the Supreme Court to amend Rule 4 and Appendix A N.D.R. Continuing Legal Ed. in the following manner:
1. That Rule 4 (b) be amended as follows:
(b) An attorney not desiring licensure in North Dakota may request to be placed on inactive status. An attorney must make such a request in writing in the format in Appendix A no later than June 30 of the year in which the attorney's Report of Compliance is due. The request shall include a certification that the attorney is not subject to any pending discipline proceedings or investigations in any jurisdiction. Attorneys electing inactive status are not required to comply with continuing legal education reporting requirements.
A lawyer not complying with the continuing legal education requirements and electing voluntary inactive status has special ethical concerns. An inactive lawyer may not represent any other person or business in legal matters or proceedings. The name of an inactive lawyer may not appear on a law firm letterhead without a qualification that the North Dakota license is inactive. A law firm name may continue to include the lawyer's name if the name was included prior to the lawyer's placement on inactive status. An inactive lawyer may not be listed as "of counsel" or otherwise be represented to clients or others as being able to undertake legal business.
Law partners or associates knowingly allowing an inactive lawyer to continue practice violate the Rules of Professional Conduct. An inactive lawyer may not have a financial interest in a law firm that is a professional corporation except under a separation agreement allowing for payments to former partners or associates of a law firm. An inactive lawyer should promptly advise clients that the lawyer is unable to represent them and that they should retain other counsel.
Reinstatement to active status from inactive status is governed by Rule 7 of the Admission to Practice Rules which allows the State Bar Board to examine the attorney's continuing legal education course work during the three-year period preceding the period of nonlicensure and the number of approved or approvable course work hours received during the period of nonlicensure.
2. That Rule 4 (c) be amended as follows:
(c) Upon the filing of the Commission's findings of non-compliance and order of suspension with the secretary-treasurer of the State Bar Board, the attorney's license to practice law is suspended effective the 31st day of December after the order of suspension is filed with the secretary-treasurer of the State Bar Board. From that date forward the attorney is prohibited from engaging in the practice of law and is prohibited from securing a license to practice law in the State of North Dakota until the Commission issues and files with the secretary-treasurer of the State Bar Board findings of compliance and an order of reinstatement, or unless the attorney is relicensed under Rule 7 of the North Dakota Admission to Practice Rules. The order of suspension shall require the attorney to comply with Rule 6.3 of the North Dakota Rules For Lawyer Discipline pertaining to notification of clients regarding the suspension.
At the time the order of suspension and findings of non-compliance are filed with the secretary-treasurer of the State Bar Board, the Commission shall serve, by certified mail -- return receipt requested, the findings of non-compliance and the order of suspension upon the attorney involved. At the same time the order of suspension and findings of non-compliance are filed with the secretary-treasurer of the State Bar Board a certified copy of the findings of non-compliance and the order of suspension shall be filed with the Clerk of the Supreme Court of the State of North Dakota.
3. That Rule 4 (e) be amended as follows:
(e) An attorney subject to an order of suspension issued by the Commission may have his or her license to practice law reinstated by 1) completing the number of hours of approved course work in Continuing Legal Education which the Commission has determined the attorney to be delinquent, 2)
and by filing proof of such compliance with the Commission within one year from the date of issuance of the order of suspension and 3) filing the proof of compliance with Rule 6.3 of the North Dakota Rules within the time period specified in the rule. If an attorney timely files proof of such compliance, the Commission shall issue and file with the secretary/treasurer of the State Bar Board and the Clerk of the Supreme Court of the State of North Dakota its findings of compliance and an order of reinstatement. Upon such filing with the secretary/treasurer of the State Bar Board, the attorney's license to practice and right to practice law in this State shall be reinstated, provided the attorney's certificate of admission has not otherwise been revoked or suspended by the Supreme Court.
4. That Appendix A be amended as follows:
I hereby certify that I will no longer be actively practicing law in North Dakota and request that I be placed on inactive status. I have reviewed Rule 4 (b) of the North Dakota Rules for Continuing Legal Education and understand: 1) that I will no longer be licensed to practice law in North Dakota; and 2) the ethical obligations associated with my inactive status. I also certified that I am not subject to any disciplinary proceedings or investigations in any jurisdiction.
|Dated this day of , 2 .|
|Subscribed to and sworn before me this day of , 2 .|
|My commission expires:|
C) Since the Commission will be issuing new orders of suspension and acting upon request for inactive status in November, and would like to include the amended language in the order of suspension and in the request for inactive status, we respectfully request the Supreme Court adopt the proposed amendments on an emergency basis placing each into effect immediately pursuant to Rule 6, N.D.R. Proc.R. If the Court determines that a hearing is necessary on the proposed changes, the Commission will be in attendance to provide further background regarding the changes.
Dated this 23rd day of August, 2000.
North Dakota Commission for
Continuing Legal Education