JOINT COMMITTEE ON ATTORNEY STANDARDS
Radisson Inn, Bismarck
June 8, 1999
Judge Ralph Erickson, Chair
Paul Jacobson, Disciplinary Counsel
Chair Erickson called the meeting to order at 9:30 a.m. and welcomed Mike Williams, a newly appointed member of the Committee. Chair Erickson then drew Committee members' attention to Attachment B (June 2, 1999) - Minutes of the October 14, 1998, meeting. Marilyn Foss noted that she was present at the October meeting, but the minutes reflect her as neither present nor absent. Staff said the minutes would be corrected to reflect that Ms. Foss was present.
IT WAS MOVED BY BEN HAHN, SECONDED BY RANDY LEE, AND CARRIED UNANIMOUSLY THAT THE MINUTES, AS CORRECTED, BE APPROVED.
Revised Draft Amendments - Rule 8.4, Rules of Professional Conduct
Chair Erickson drew Committee members' attention to Attachment C (June 2, 1999) - Revised draft amendments to Rule 8.4 concerning manifestations of bias or prejudice as forms of lawyer misconduct. Staff explained the draft amendments reflect revisions based on Committee discussion at the October, 1998, meeting.
Marilyn Foss said the proposed language, with its numerous clauses and commas, is awkward and difficult to read. She suggested setting out the legitimate advocacy exception as a separate sentence.
IT WAS MOVED BY MARILYN FOSS THAT THE DRAFT AMENDMENTS BE MODIFIED AS SUGGESTED.
Following discussion, THE MOTION FAILED FOR LACK OF A SECOND.
IT WAS MOVED BY RANDY LEE, SECONDED BY KAREN BRAATEN, AND CARRIED UNANIMOUSLY THAT THE PROPOSED AMENDMENTS BE APPROVED AND SUBMITTED TO THE SUPREME COURT FOR CONSIDERATION.
Client Request for Files
Chair Erickson drew Committee members' attention to Attachment D (June 2, 1999) - A letter from Vivian Berg concerning client request for file copies or files retained by the client's lawyer.
Paul Jacobson said there are occasions, as indicated in Vivian Berg's letter, when complaints are received concerning a lawyer not giving a client files or charging excessively to provide copies of the files. He then distributed possible amendatory language to the Comment to Rule 1.16, Rules of Professional Conduct; a memorandum on the issue prepared by Vivian Berg; and two Minnesota ethics opinions concerning retaining liens and the cost of photocopying. Copies of the material is attached as Appendix A. He said there is also an issue of exactly what is the property of the client and what particularly the lawyer is required to return to the client.
Sandi Tabor observed that the bar association frequently receives calls regarding client access to lawyer files. She said her office attempts to provide general guidance based on dicta in old ethics opinions. She urged the Committee to pursue discussion of this issue.
In response to a question from Mike Wagner concerning whether there is a rule governing retention of records, Judge Erickson said there is not, but there is a statutory retaining lien that applies to retention of a client's property (N.D.C.C. §§27-13-05 through 27-13-07).
Dan Crothers said he would support clarifying Rule 1.16 to address the issue.
Randy Lee agreed the rule should be made clearer. For example, he said, Rule 1.16(e), in the closing sentence, does not describe what the "other law" might be that permits a lawyer to retain a client's papers, and thereby may leave the impression that a lawyer has some right to hold on to the papers.
Mike Wagner agreed the issue should be pursued and volunteered to serve on a subcommittee to review Rule 1.16. Randy Lee agreed to assist.
In response to a question from Chair Erickson regarding directions to the subcommittee, Dan Crothers asked whether thought should be given to doing away with the statutory retaining lien in North Dakota. He said while the statute authorizes retaining the money or property of a client, an ethical rule could establish that lawyers, in fact, may not retain a file for purposes of avoiding issues of conflict or prejudice to clients. Consequently, he would suggest repealing the relevant statutes. Ron Reichert suggested the rule be made very simple and require the return to the client of everything done on the case and connected with the file. That, he said, would foreclose the endless exercise of trying to determine what in the file should or should not be returned. Mike Williams cautioned that such an approach may be too broad. He said in some cases he often receives medical records, psychiatric records, or dependency records that are not authorized for release. Many times, he said, psychiatrists will request that the particular record never be released to the client because to do so would interfere with their relationship with a patient. Paul Jacobson said those kinds of records would essentially be someone else's property, as opposed to being something the lawyer has prepared for a client's case. Karen Braaten said it may be a different matter if the lawyer has charged the client to obtain copies of those records.
Ben Hahn observed that federal rules governing the release of psychiatric records are much more stringent than those governing release of regular medical records.
Judge Erickson said some lawyers often prepare memoranda on various issues, for example, the credibility of witnesses. There may be, he said, an interest in not having those kinds of documents released.
Chair Erickson said a report concerning possible revisions to Rule 1.16 will be provided at the Committee's next meeting.
Update on ABA Ethics 2000 Initiative
Chair Erickson called on Randy Lee for an update concerning the activities of the ABA Commission on the Evaluation of the Rules of Professional Conduct. Randy Lee said the Commission is seriously at work and is issuing internal reaction drafts on several proposals and several final draft proposals have been distributed for public review. The objective, he said, is to issue a final report regarding new rules in the summer of 2000. He suggested keeping in mind the experience in the early 1980's of the Kutak Commission, which developed what are now the Model Rules of Professional Conduct. He said the Commission's draft rules that went into the House of Delegates for consideration and the draft rules that came out were considerably different. Consequently, he said, the Committee likely should not spend a good deal of time on the details of the current Commission's proposals, since a similar experience may occur again.
With respect to the Commission's final draft material, Randy Lee said seven proposals have been issued for public comment: amendments to Rule 1.14, which would replace the current concept of client consent after consultation with a defined informed consent provision; amendments to Rule 1.16, governing confidentiality which includes language very close to North Dakota's current rule and which would also permit the lawyer to reveal information when advice on compliance with professional rules is sought; amendments to Rule 1.7, the general conflicts of interest rule; amendments to Rule 1.8, which deals with conflicts of interest regarding prohibited transactions and would include a prohibition against sex with clients which many states currently have, although North Dakota does not; amendments to Rule 1.9, which propose many additions to the Comment regarding conflicts with former clients; and amendments to Rule 1.10, regarding imputed disqualifications which would add an exception regarding when the basis of the non-involved lawyer's conflict in a matter is "personal" to that lawyer, thus allowing others in the office to take the case.
With respect to internal working drafts, Randy Lee said the Commission is considering revisions to Rule 1.2 concerning the scope of representation; and rules regarding fees, the revolving door between government and private employment, clients under disability, safeguarding money and property, candor to a tribunal, and duties to prospective clients. He said the Commission will continue to work on revisions to the current Model Rules as well as on the development of possible new rules.
Chair Erickson said the Joint Committee will continue to follow the ABA Commission's progress.
Future Agenda Items
Chair Erickson invited Committee discussion concerning possible agenda items for future Committee consideration. He noted the continuing interest in diversion or mentoring programs for lawyers involved in minor misconduct. The question, he said, has been whether disciplinary systems should take a more active role in mentoring such lawyers before there is a need to initiate the formal disciplinary process. Paul Jacobson observed that it is likely difficult to make people who will not obey the professional rules do so through a mentoring process. Consequently, he said, he has little faith in such a program.
Marilyn Foss said her concern is that a system likely has no business diverting a lawyer into a program if the lawyer would not have received an admonition in the first place. Additionally, she said, there is a question regarding how protection is provided for the "mentor" from claims that the mentor has some obligation or role with respect to the mentored lawyer's clients.
Fran Gronberg wondered who would decide who a mentor would be.
Sandi Tabor explained that mentoring and diversion programs are established in many different ways around the country. When mentoring is tied directly to diversion, she said, it is typically routed through the disciplinary office, the bar association, or some entity of the Supreme Court. The process, she said, usually begins with the filing of a complaint that does not reach the formal discipline level. It may be clear, she said, within the complaint that a lawyer needs some kind of direction or assistance, but does not require official discipline. Generally, she said, one complaint will not trigger the process, rather it is a series of problems or complaints that indicate a need for assistance. Karen Braaten observed that mentoring and diversion are also used with respect to psychological problems or involvement with alcohol or drugs.
Sandi Tabor observed that many programs around the country were started to deal with protecting the public from lawyers who are not doing anything "wrong" in terms of pronounced ethical violations. She noted that there are threats in Arizona that legislation would be introduced to address the problem if the organized bar did not.
Marilyn Foss inquired whether diversion programs are established on a mandatory participation basis or are simply added as a resource a lawyer may seek out. Sandi Tabor responded that both approaches have been used. She said the Jackson Hole Group has also discussed this issue and the Supreme Court is interested in the matter as well as the Board of Governors. Mike Wagner said it may be useful to consider some kind of quality assurance program that would establish a group of lawyers to assist other lawyers in providing adequate legal services.
Randy Lee said he hoped the Committee would pursue the issue further, particularly in light of the Committee's recommendation and the Supreme Court's adoption of rules regarding conditional admission. Diversion, he said, would simply be the other half of this particular puzzle.
IT WAS MOVED BY CHRISTINE HOGAN, SECONDED BY RANDY LEE, AND CARRIED UNANIMOUSLY THAT CONSIDERATION OF DIVERSION AND MENTORING PROGRAMS BE PLACED ON THE COMMITTEE'S FUTURE AGENDA FOR DISCUSSION.
In response to a question from Chair Erickson, Karen Braaten, Christine Hogan, and Connie Sprynczynatyk agreed to serve on a subcommittee to initially review diversion programs and present a general outline for the Committee's November meeting.
Chair Erickson then drew Committee members' attention to issues concerning multidisciplinary practice as a topic for future Committee discussion. Christine Hogan said that within the American Bar Association multidisciplinary practice is considered to be the most significant issue of the next decade. Randy Lee observed that the ABA Commission on Multidisciplinary Practice has produced a report and recommendations. Generally, he said, the recommendations would amend current rules forbidding sharing fees and offices to permit such practices.
IT WAS MOVED BY FRAN GRONBERG, SECONDED BY MARILYN FOSS, AND CARRIED UNANIMOUSLY THAT CONSIDERATION OF ISSUES CONCERNING MULTIDISCIPLINARY PRACTICES BE PLACED ON THE COMMITTEE'S FUTURE AGENDAS FOR DISCUSSION.
Chair Erickson said the report and recommendations of the ABA Commission would be provided for Committee review at the September meeting.
Randy Lee suggested the Committee should consider possible amendments to Rule 8.3, which addresses a lawyer's duty to report misconduct. Particularly, he suggested addressing whether there is a duty to report information concerning possible misconduct which is derived from participation in lawyer assistance programs.
Chair Erickson said the topic would be placed on the Committee's next agenda. Randy Lee agreed to provide a draft report.
Sandi Tabor suggested that amendments to Rule 8.3 include information gained by the Ethics Committee. Dan Crothers suggested that the rule amendments should address information obtained by anyone consulted in conjunction with providing information for an opinion or about compliance with ethical rules.
At the request of Chair Erickson, Sandi Tabor provided background information regarding lawyer advertising.
Sandi Tabor said the SBAND Ethics Committee often receives requests to review certain kinds of lawyer advertising. For example, she said, the Committee is now looking at issues concerning advertising over the internet. As a result, she said, the Committee has asked that someone review all relevant rules and consider whether the Ethics Committee or an "advertising" committee should be responding to such requests. The Ethics Committee, she said, is particularly concerned about the burden associated with reviewing all the lawyer advertising efforts to determine compliance with the Rules of Professional Conduct. She said members of the Board of Governors have also had discussions regarding the content of certain advertisements that have surfaced in North Dakota. Generally, she said, the Joint Committee could review what other states are doing in this area and determine whether any of those approaches can be adapted to North Dakota and, if so, how such an approach might be implemented. Funding, she said, readily becomes an apparent issue. Additionally, she said, advertising on the internet is becoming a more frequent source of inquiry. She said there are questions concerning access, marketing, and also providing legal advice in states where the particular lawyer is not licensed. Although, she said, the latter is more an issue of unauthorized practice of law than it is an issue of advertising.
Sandi Tabor then turned to a general overview of permissible methods of regulating lawyer advertising. Initially, she said, lawyer advertising was not considered protected speech under the First Amendment and states could freely regulate such advertising. Then, she said, in the 1970's the U.S. Supreme Court decided a case concerning pharmacy pricing of drugs and "commercial speech" was given protection from laws that were too broad or intrusive in application. She explained that generally there are three broad, permissible kinds of restrictions that may be placed upon commercial speech: restrictions with respect to time, manner, or place; restrictions on false and misleading advertising; and restrictions on speech proposing illegal transactions. In 1977, she said, the U.S. Supreme Court considered a challenge to a state ban on advertising for routine legal services in Bates v. State Bar of Arizona. There, she said, the court held there can be no blanket ban on advertising of legal services. However, she said, there was recognition that there are certain kinds of lawyer communications that require regulation: typical advertising, such as television or yellow pages; in-person or telephone communications, which invite issues concerning direct solicitation; direct or targeted mailing; and endorsements in which, typically, a client will attest to the fine work of the lawyer. Matters became less clear in 1978, she said, when the U.S. Supreme Court in one case decided that mail solicitation falls under protections normally afforded political speech, while, in another case, the court upheld a state provision placing limits on in-person solicitation. During the late 1970's and early 1980's, she said, a level of uncertainty still existed with respect to restrictions on commercial speech. However, she said, the U.S. Supreme Court began to develop a standard that focused on the government's stake in regulating the particular communication and whether the regulation was considered overbroad. As a consequence, she said, in the 1990's states began forming advertising committees and formulating rules with respect to direct mail solicitation. The U.S. Supreme Court, she said, subsequently upheld, in Went For It, Inc., a 30-day waiting period after an accident before letters could be sent to accident victims or their families. The regulation, she said, was considered a reasonable time, place, or manner restriction. In response to the court's apparent receptiveness to some kinds of restrictions on lawyer advertising, she said, some states, particularly Florida, Texas, and Iowa, have established extensive screening requirements for lawyer advertisements.
Sandi Tabor explained that North Dakota's rule is fairly simple, in essence, it is that the lawyer may not "lie". Specifically, she said, Rule 7.1(a) requires that a lawyer not make false or misleading statements to a prospective client. She said the rule also discusses, in the Comment, in-person contact. She said a violation occurs if, again, there are false or misleading statements. There is, she said, no direct prohibition against in-person, direct contact or solicitation. The rule, she said, also limits lawyer contact if the lawyer knows a prospective client has an impairment that may cloud the ability to make an informed decision regarding hiring the attorney.
With respect to record keeping requirements, Sandi Tabor said other state rules and the Model Rules address maintaining the retention of advertisements. For example, she said, the Model Rules require that all legal advertisements be retained for two years after use, with a record of where and when the advertisement was used. The Model Rules do not, she said, require prior review of the advertisement, although some states have adopted such a requirement. Thirteen states, she said, require that a copy of the advertisement be submitted to the regulating entity before its use. Twenty-five states, she said, require retention of copies of the advertisement for varying numbers of years. Montana and Minnesota, she said, have a two-year record keeping requirement; four states require that lawyers show how they learned that persons solicited were in need of legal services; and four states require disclaimers on lawyer advertisements.
With respect to internet issues, Sandi Tabor said some states require that a Web-site address be provided to the regulating entity so that Web-advertising can be reviewed. She said a recent Pennsylvania federal district court case enjoined the Department of Justice from enforcing the federal Communications Decency Act, because internet communication was considered as warranting the highest level of protection. Consequently, she said, internet communications may not be considered in the "commercial speech" area, which garners a lesser degree of protection. The question for the Joint Committee, she said, is whether issues related to internet advertising should be reviewed at this time. She said there have already been several inquiries regarding whether North Dakota has internet restrictions regarding lawyer advertising. There is as well, she said, the remaining issue of unauthorized practice of law over the internet.
Following review of a videotape demonstrating certain kinds of lawyer advertising, Chair Erickson invited Committee discussion regarding review of lawyer advertising issues.
Connie Sprynczynatyk inquired whether there are any states that may be less aggressive in approach than others. Sandi Tabor responded that she was surprised at the number of states that have record keeping requirements. The obvious question, she said, is what do you do with the records that are retained. Mike Williams said the logic of such a requirement is that a specific advertisement could be reviewed in response to a specific complaint.
Christine Hogan observed that after the Bates decision, North Dakota's rule was reviewed and the false and misleading standard was considered clear and simple. Additionally, she said, it was thought that North Dakota did not have a problem in this area. But, she said, the question is whether there is a problem now and, as such, the question warrants consideration.
Sandi Tabor noted that some members of the Board of Governors have raised concerns about trends in lawyer advertising in the Red River Valley.
Dan Crothers said the Joint Committee should review the various issues, if only to consider the questions that have come to the Ethics Committee. Additionally, he said, a review is warranted in light of changes in the law and the impact of technology on transmitting information. He suggested assembling information regarding approaches in other states in a manner that identifies low level, medium level, and high level approaches.
Sandi Tabor said a comparison of other state rules can be provided. The question, she said, then becomes whether there should be another committee to deal with advertising or, perhaps, whether some kind of fee approach should be considered.
In response to a question from Connie Sprynczynatyk, Sandi Tabor said it is not entirely clear whether legal services cannot be provided over the internet in states where the particular lawyer is not licensed.
Christine Hogan said the possibility of a separate committee should be considered in light of the Ethics Committee's concern about the burden of the fact-finding responsibility, i.e., someone would have to check the content of each advertisement even under North Dakota's less onerous rule.
In response to a question from Mike Williams, Sandi Tabor said she is uncertain whether there is any demonstrable trend in complaints concerning lawyer advertising. She said certain members of the Board of Governors have concerns about what they perceive as trends in advertising and certain yellow page ads in Grand Forks have been identified as questionable.
Chair Erickson requested that information be assembled regarding lawyer advertisement review processes in other states and that an attempt be made to identify any perceived problems in North Dakota. Ron Reichert and Mike Williams agreed to assist in identifying whether there are any potential problems in particular areas of the state. The assembled information will be reviewed at the Committee's next meeting.
A meeting schedule for the remainder of the year and 2000 was distributed. A copy is attached as Appendix B.
There being no further business, the meeting was adjourned at 12:00 noon.