Report of the Joint Committee on Attorney Standards
Since the filing of its December 1998 Report, the Joint Committee on Attorney Standards has concentrated its study efforts on two general areas of lawyer professional conduct: lawyer advertising and client access to files held by a lawyer. The Joint Committee also reviewed an issue concerning proper service of a lawyer's response upon a complainant under the Rules for Lawyer Discipline. As a result of its studies, the Joint Committee recommends a series of new rules and rule amendments to the North Dakota Rules of Professional Conduct on the issues of lawyer advertising and client access to files. The Joint Committee also recommends amendments to Rule 3.1D of the Rules for Lawyer Discipline to address the question of service of a lawyer's response in a disciplinary proceeding. The proposals are summarized below.
The Joint Committee began its review of lawyer advertising issues in response to questions raised by the SBAND Ethics Committee concerning the ability of the Ethics Committee to effectively review discrete instances of lawyer advertising. There was also discussion of whether creation of a special entity to review lawyer advertising was feasible. The Joint Committee generally reviewed advertising practices in the state and solicited information about Internet-based lawyer advertising. The Joint Committee concluded that the current Rules of Professional Conduct should be modified to more explicitly address lawyer advertising generally, and to reflect the impact of current and emerging technology, e.g., the Internet, on methods of advertising. The Joint Committee's several recommendations are based on a review of the ABA Model Rules of Professional Conduct and a 1998 ABA White Paper on lawyer advertising. See Attachment A.
The Joint Committee recommends amendments to Rule 7.1 of the Rules of Professional Conduct to more closely reflect the ABA Model Rule governing communications concerning lawyer services. The amendments retain the current focus of Rule 7.1 in barring false and misleading statements about the lawyer or the lawyer's services, but incorporate new paragraphs (b) and (c) from the Model Rule as further explanations of which statements are false and misleading. Paragraph (b) disallows statements that are likely to create an unjustified expectation about results the lawyer can achieve, and paragraph (c) prohibits comparisons of the lawyer's services with those of other lawyers, unless the comparisons can be factually substantiated. The amendments would also delete portions of current Rule 7.1 concerning direct contact with clients, a subject addressed in recommended new Rule 7.3. The Comment to current Rule 7.1 would be modified to generally reflect the Model Rule comment. Additional language is added with respect to a lawyer's obligation to correct inaccurate information about the lawyer's services as quickly as feasible. Language is also included regarding Web-based communications and the lawyer's obligation to avoid use of unseen information on a Web-site, e.g., meta-tags, which would be inappropriate under the rules if it were seen.
The Joint Committee recommends new Rule 7.2, which reflects the ABA Model Rule with minor enhancements and would establish the general rule parameters for lawyer advertising. Paragraph (a) generally permits lawyers to market and advertise legal services through a variety of methods. Additional, non-Model Rule language is added to address advertising over the Internet and through e-mail. Paragraph (b) requires lawyers to retain a copy or recording of any advertisement for two years after its use. Additional, non-Model Rule language is added requiring lawyers to maintain for two years a list of addressees for written and e-mail advertisements and a record of telephone numbers called if recorded communications are used via the telephone. Paragraph (c) establishes the general rule that a lawyer may not pay someone else to recommend the lawyer's services. The Comment generally reflects the Model Rule Comment, with portions carried forward from current Rule 7.1> and additional language regarding advertising through the Internet and e-mail.
The Joint Committee recommends new Rule 7.3 governing direct contact with prospective clients and which reflects the ABA Model Rule with minor changes. Paragraph (a) generally prohibits direct personal or telephone contact with prospective clients to secure business. Even if contact is not prohibited under paragraph (a), paragraph (b) disallows contact if the prospective client has made known the desire not to be contacted or solicited, the solicitation involves coercion, duress, or harassment, or the receipt of the solicitation is uninvited and imposes an economic cost on the prospective client to respond. The latter circumstance regarding the cost of responding is additional to the current Model Rule provisions. Paragraph (c) generally allows the lawyer to participate in a legal services program operated by an organization not owned or directed by the lawyer and which solicits memberships or subscriptions for the program.
The Joint Committee recommends new Rule 7.4, which is based on the ABA Model Rule and governs communications of fields of practice. Generally, the rule would allow a lawyer to communicate the fact that the lawyer practices in a certain field of law. However, a lawyer would be prohibited from stating or implying the lawyer is a specialist in a particular field unless engaged in patent or admiralty practice or the lawyer has been certified as a specialist by a named organization. In the latter case and with an exception, the communication must clearly state there is no procedure in this jurisdiction for approving the certifying organization. Additional language is added providing that the statement is not necessary if the named organization has been accredited by the ABA or the lawyer has successfully completed a certification program sponsored by a state bar association.
The Joint Committee recommends an amendment to current Rule 7.2 of the Rules of Professional Conduct to renumber it as Rule 7.5. There are no substantive changes to the rule.
Client Files, Papers, and Property - Access and Copying
At the request of disciplinary counsel, the Joint Committee reviewed issues concerning client access to files held by a lawyer and the circumstances under which a lawyer may charge a client for providing copies of a file to the client. In the past, disciplinary counsel had received complaints regarding lawyers not returning files to clients or charging excessively for providing copies of a file. The Joint Committee discussed current practices concerning client access to files, the manner in which copies of file documents are generally provided to clients, and under what circumstances charging a client the cost of making copies may or may not be appropriate. The Joint Committee reviewed a proposal submitted by disciplinary counsel and approaches in other jurisdictions to this issue. The Joint Committee also discussed whether it is appropriate for a lawyer to assert a retaining lien against a client's files, papers, or property. After discussion at several meetings, the Joint Committee developed a proposed new rule and conforming amendments to two existing rules to address lawyer retention of files and copying of files. See Attachment B.
The Joint Committee recommends new Rule 1.19 to the Rules of Professional Conduct. Paragraph (a) of the new rule would disallow the assertion of a retaining lien against a client's files, papers, or property. (It was also recommended that the SBAND Board of Governors pursue legislation repealing the retaining lien statute). Paragraph (b) defines what constitutes client files, papers, and property, while paragraph (e) defines what does not. Paragraph (c) establishes the general limitation that a lawyer may not condition the return of client files, papers, or property on the payment of copying charges. Paragraph (d) addresses situations in which the lawyer has withdrawn from representation or has been discharged. In those instances, unless copies have been provided earlier to the client, the lawyer may only charge the cost of copying if the client, before termination of the lawyer's services, has agreed in writing to reimburse the lawyer for copying costs. Paragraph (f) permits a lawyer to make copies of a file for retention by the lawyer in connection with return of the file to the client. This is intended to afford a lawyer the opportunity to retain a copy of the file for essentially self-protective reasons, in the event of a future malpractice action. The lawyer cannot charge a client for making such copies.
The Joint Committee recommends conforming amendments to the Comment to Rule 1.6 of the Rules of Professional Conduct to reflect the lawyer's ability to make copies of a client file for the lawyer's own purposes, subject to the limitations imposed under new Rule 1.19.
The Joint Committee recommends conforming amendments to the Comment and paragraph (e) of Rule 1.16. The proposed amendment to paragraph (e) replaces the general reference to "other law" with a reference to new Rule 1.19 in describing the authorization for lawyer retention of client papers. The Comment is amended in the section pertaining to "Assisting the Client Upon Withdrawal" do delete language regarding retention of a file as security for a fee. The language is regarded as no longer applicable in light of the limitations imposed under new Rule 1.19.
Amendments to the Table of Rules are included as Attachment C to reflect the proposed changes and additions.
Service Under Rule 3.1D, Rules for Lawyer Discipline
At the request of Alvin Boucher, Chair of Inquiry Committee Northeast, the Joint Committee considered whether a lawyer/respondent should be required to serve a copy of the lawyer's response on the complainant in a disciplinary proceeding. It has been a practice to require such service, but the applicable rule is ambiguous concerning whether it is required. Rule 3.1D(4) simply provides that before consideration by the inquiry committee, a copy of the lawyer's response must be provided to the complainant. If the lawyer does not serve the copy, then the responsibility likely falls to the inquiry committee with the attendant time delay and drain on limited committee resources.
The Joint Committee recommends amendments to Rule 3.1D(4), Rules for Lawyer Discipline, to require that the lawyer/respondent serve a copy of the lawyer's response on the complaint at the time the response is submitted to the inquiry committee under Rule 3.1D(3). The lawyer would be required to provide proof of service to the assigned investigator. See Attachment D.