North Dakota Supreme Court
600 E Boulevard Ave Dept 180
Bismarck, ND 58505-0530
Phone: (701) 328-2689
Fax: (701) 328-4480
Alice R. Senechal, Chair
PO Box 5576
Grand Forks, ND 58206-5576
Phone: (701) 775-3117
Fax: (701) 775-6274
Chief Justice Gerald VandeWalle
North Dakota Supreme Court
600 East Boulevard Avenue, Dept. 180
Bismarck, ND 58505-0530
Dear Chief Justice VandeWalle:
On behalf of the Joint Committee on Attorney Standards, I am pleased to submit the enclosed recommendations for amendment of the North Dakota Rules of Professional Conduct. At the Court's request, JCAS completed a comprehensive review of the North Dakota Rules after the American Bar Association adopted changes to the Model Rules in 2002 and 2003. The ABA's actions, as you know, were based on consideration of extensive work of the Ethics 2000 (E2K) Commission.
These recommendations result from work of many individuals. Professor Randy Lee was, of course, instrumental to the committee's work until his death earlier this year. JCAS dedicates its work to his memory.
Throughout the rules review process, M. James Ganje provided staff support to JCAS, and his work was outstanding. His organization and attention to detail made the review process run much more smoothly than it otherwise would have. On behalf of all of the members of JCAS, I thank Mr. Ganje for his dedication to this project.
Other members of JCAS currently include Hon. Daniel J. Crothers, Hon. Karen Kosanda Braaten, Clare Carlson, Elaine Fremling, Jean Hannig, David J. Hogue, Dianna L. Kindseth, Petra H. Mandigo, Ryn Pitts, Timothy A. Priebe, Sandi Tabor, Robert J. Udland, and Patrick J. Ward. Others who were part of JCAS during its work on this project included Dr. Gregory Post, Ron Reichert, Michael J. Williams, Barbara Cichy, Annetta Sutton, and Dr. Richard Olafson. As JCAS chair, I thank each committee member, past and present, for their contributions.
JCAS began its work on this project in late 2002. Pursuant to Administrative Rule 38, in July 2005 JCAS submitted its proposals to the State Bar Association Board of Governors for review and comment. Three members of JCAS attended a special meeting of the Board in July, and, following that meeting, the Board advised JCAS of its position on the recommendations.
After receiving the Board's comments, JCAS met in September, and considered each of the Board's comments. Based on those comments, JCAS made some changes in its recommendations, but JCAS does not recommend all of the changes which the Board suggested.
JCAS recommends many amendments in many rules and comments. Many of the recommendations are not for substantive revisions, but would adopt format changes to follow the Model Rules. JCAS endeavored to follow Model Rules numbering and format, even when not recommending that the substance of a model rule be adopted in North Dakota.
Early in its deliberations, JCAS had considerable discussion about the Model Rules use of "informed consent" rather than "consent after consultation," and about the Model Rules requirements that client consent for some matters be confirmed in writing. JCAS was concerned that, if "informed consent" language was incorporated into the rules, informed consent concepts from the medical field might be interpreted to be a part of the rules. In the committee's opinion, that interpretation would not be appropriate. JCAS therefore recommends that North Dakota retain the "consent after consultation" language rather than adopting the "informed consent" language of the Model Rules.
JCAS does, however, recommend that, in certain circumstances, client consent be in writing (either in a document signed by the client or in a lawyer's written transmittal confirming oral consent). JCAS recommends written consent to provide better protection to the public, and to provide clear guidance to practicing lawyers. As the non-lawyer members of the committee reminded us, a writing requirement would make our rules more consistent with those of some other professions.
In addition to recommending that "consent in writing" be included in a number of the rules, the committee's primary recommendations include the following:
Revision of Rule 1.6, to expand the circumstances under which lawyers are required to disclose confidential information to prevent death or substantial bodily harm, and to permit disclosure of confidential information in order to seek legal advice about compliance with the rules;
Revision of Rule 1.10 to provide that conflicts resulting from a lawyer's personal interests not be imputed to members of the lawyer's firm, and to allow for screening to address imputed disqualification under certain circumstances;
Revision of Rule 1.13, which addresses a lawyer's disclosure of confidential information to prevent likely substantial injury to an organizational client;
Revision of Rule 1.14 to provide additional avenues of action to a lawyer whose client might have limited capacity for decision-making, including allowing a lawyer to seek assistance from other professionals, or seek appointment of a guardian ad litem, guardian or conservator for a client;
Adoption of Rule 1.18, to describe lawyers' duties to potential clients;
Revision of Rule 3.3 to specify that, if a lawyer comes to learn that he or she has offered false testimony of a client, the lawyer may not use or argue that false testimony;
Adoption of Rule 4.5 to guide lawyers who receive inadvertent transmissions of documents;
Revision of Rules 5.1, 5.2, and 5.3 concerning the responsibilities of lawyers who are partners in a law firm or who have comparable managerial authority within a law firm; and
Revision of Rule 8.4 to add certain acts that can form the basis for discipline under the rules.
A more detailed summary of the recommendations follows, along with the detailed proposals for amendment. Members of JCAS will be available at any hearing scheduled on these proposals, to provide more detail about the proposals, and to address questions members of the Court may have.
My second term on the Joint Committee will conclude at the end of 2005. Thank you for allowing me to be a part of the committee during this important time period.
Sincerely,
Alice R. Senechal, Chair
Joint Committee on Attorney Standards
pc: Bill Neumann
M. James Ganje