Alice Senechal, Chair
Chair Senechal called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (September 6, 2001) - Minutes of the June 12, 2001, meeting.
It was moved by Marilyn Foss, seconded by Dan Crothers, and carried unanimously that the minutes be approved.
Committee's Role and Responsibilities - History and Context
At the request of Chair Senechal, Randy Lee reviewed the Committee's responsibilities and the history of its various activities. He explained that this Committee's predecessor - the Supreme Court's Attorney Standards Committee - was established in the late 1970's as part of the newly adopted Rule on Procedural Rules. The first challenge for the committee, he said, came with the adoption by the ABA in 1983 of the Model Rules of Professional Conduct. He said the committee was thereafter assigned the responsibility of studying the new Model Rules to determine whether all or some part of them should be adopted in North Dakota. That study, he said, was conducted by the Professional Conduct Subcommittee over an extended period of time. He said the study resulted in recommended rules and amendments, which were reviewed and accepted by the state bar association, and subsequently adopted by the Supreme Court with some modifications. The next project undertaken by the committee, he said, was a review and recommended revision of the rules governing the lawyer discipline process. He said the recommended rule revisions were submitted to the Supreme Court and were adopted, but only after substantial revision by the Court. He explained further that as part of a discussion about the concept of a unified bar association - long established in North Dakota - a recommendation to disestablish the committee was made. That recommendation, he said, was based on the idea that essential to the concept of a unified bar was the concept of self-regulation. And, he said, the manner in which the bar association participated with the Supreme Court through the committee on issues of lawyer regulation was considered inconsistent with the self-regulation concept. He said no action was taken on the recommendation, and the committee continued to operate, although very intermittently because of budget restrictions. Thereafter, he said, a Joint Commission on Lawyer Discipline and Admissions was established in response to a petition from the state bar association requesting a thorough review of the lawyer discipline and admissions process. Among the many recommendations made by the Commission, he said, was the recommendation that a joint bench and bar committee on attorney standards - this committee - be established. The Joint Committee, he said, has functioned well, although experiencing some turbulence with respect to recommendations concerning bias as a form of lawyer misconduct, and disposition of client papers. He said the most significant issues waiting on the horizon for the Committee are those associated with multijurisdictional practice and possible amendments to the Model Rules of Professional Conduct resulting from the ABA Ethics 2000 Report. A synopsis of Randy Lee's comments is attached as Appendix A.
Multijurisdictional Practice and Ethics 2000
At the request of Chair Senechal, Dan Crothers reviewed the ABA's recent consideration of the Ethics 2000 Report's recommended amendments to the Model Rules of Professional Conduct, and the activities of the SBAND Task Force on Multijurisdictional Practice. He said the ABA House of Delegates began review of the proposed Ethics 2000 amendments at its August meeting and will likely finish in the summer of 2002. For that reason, he reiterated his suggestion that the Committee not consider any of the Ethics 2000 amendments until the ABA has concluded its work. Additionally, he noted that Chief Justice VandeWalle had indicated at the June Annual Meeting that the Supreme Court is deferring action on the Committee's recently submitted advertising rule amendments, also awaiting final action by the ABA on the Ethics 2000 report. By way of summary, he said the House of Delegates deferred action on proposed amendments to Rules 5.5 and 8.5, both having to do with aspects of multijurisdictional practice. He said amendments to Rule 5.1 regarding written fee agreements were not adopted, while amendments to Rule 1.6 providing an exception to the general prohibition against disclosing client confidences were approved. He said proposals regarding written conflict waivers and lateral screening were also rejected, but a proposed amendment prohibiting sex with clients was adopted.
With respect to the SBAND Task Force on Multijurisdictional Practice (MJP), Dan Crothers said the discussion is concerned, in essence, with the unauthorized practice of law - that is, when and under what circumstances lawyers not licensed in one state may be permitted to offer legal services in another state. He noted that some states, Oregon and Texas for example, broadly define what constitutes the practice of law, resulting in one assertion that simply taking a deposition is practicing law and, therefore, local co-counsel is required. The national MJP effort, he said, has been undertaken to determine if the Rules of Professional Conduct should be modified to accommodate changes in contemporary law practices. He said the ABA Task Force report is due in November 2001, and, in the meantime, several states have initiated their own reviews. He said the SBAND Task Force has held one meeting, and expects to have 3 or 4 meetings before completing its work. He said the task force has focused on three general issues: reciprocity, pro hoc vice admissions, and the admission of corporate counsel. The task force, he said, expects to present its report at the June 2002 Annual Meeting.
Randy Lee observed that there is a larger, additional issue involved with multijurisdictional practice, which is that corporate counsel have been unhappy with state licensing regimes for several years. Since corporations tend to operate in many states, he said, there is some sentiment that corporate attorneys ought to be able to move more freely among states when representing a corporation. He noted that a U.S. Supreme Court decision in the late 1960's held that the practice of law involves interstate commerce, and as such, he said, Congress would have regulatory authority under the interstate commerce clause. He said if the ABA and state MJP efforts do not produce results for corporate clients, then there likely will be movement to have Congress address the issue, possibly by federalizing the licensing of lawyers.
Rule 3.1D(2) and (3), Rules for Lawyer Discipline - Draft Amendments
Chair Senechal next drew attention to Attachment C (September 6, 2001) - draft amendments to Rule 3.1D of the Rules for Lawyer Discipline, and Attachment D (September 6, 2001) - comments regarding the draft amendments submitted by Dan Kuntz.
Randy Lee noted Dan Kuntz's comment regarding the amendments to Rule 3.1D(3), which would require a lawyer to respond to a complaint within 20 days of service of the complaint. He said the comment that the proposed language would cause questions because of uncertainty about whether an additional 3 days would be available seems to be addressed by the fact that the Rules of Civil Procedure apply pursuant to Rule 3.5B. Committee members agreed.
Discussion then turned to the draft amendments to Rule 3.1D(2), which would require that any subsequent written reply by the complainant must be served on the lawyer. Dan Kuntz's comment questions who would be required to provide service and suggests that requiring lay members of inquiry committees to provide proof of service would impose a significant inconvenience, as well as potentially compromise confidentiality. Marilyn Foss said the comments are not persuasive in that lay members can be instructed how to provide service. Additionally, she said, inquiry committees are capable of devising a preferred procedure for how service is provided.
Dan Crothers suggested possibly adding language to the Comment which would describe how proof of service could be shown. He noted that under the Rules of Civil Procedure a certificate of service must be signed by an attorney. He said he would not support imposing any further burdens on inquiry committee members, which may result if additional service requirements are established. There is, he said, the potential additional problem associated with defects in service.
Randy Lee wondered whether the issue could be resolved without requiring "service", perhaps by placing a duty on the investigator to give a copy of the complainant's reply to the lawyer.
It was moved by Dan Crothers, seconded by Judge Braaten, and carried unanimously that the proposed second sentence in Rule 3.1D(2) be modified to read: "Any subsequent written reply to the lawyer's answer by the complainant must be provided to the lawyer within a reasonable time after receipt by the investigator."
Committee members agreed the draft amendments, as modified, should be presented to the Board of Governors for review and comment.
At the request of Chair Senechal, Christine Hogan reviewed background information concerning various options for implementing a lawyer assistance program. A copy of the material is attached as Appendix B. She noted that the assistance program used by the Board of Medical Examiners, which the Committee had previously briefly discussed, does not appear to be a workable model for a lawyer assistance program. She said Barbara Harper, who administers the Washington Lawyer Assistance Program, serves as the ABA's regional representative on this topic and is available to consult with state representatives on lawyer assistance and diversion. She said Ms. Harper could attend the Committee's November 15 meeting if it is concluded that would be helpful. She said the Washington program is administered by staff of the state bar association and is an ambitious program. The preliminary question, she said, is whether our state bar association staff would be sufficient to handle an assistance program. She suggested contracting with an entity to provide the program services may be the most practical alternative in North Dakota.
In response to a question from Marilyn Foss, Christine Hogan said staffing for an assistance program would likely consist of someone within the association, or on behalf of the association, who would coordinate meetings to determine treatment plans, assist with educational efforts, arrange voluntary counseling sessions, and perhaps serve as a liaison with the employee assistance provider.
Randy Lee wondered whether there was yet any firm conclusion concerning the role of diversion or lawyer assistance within the disciplinary process. He said the Committee, at some point, would likely have to return to a consideration of the draft diversion rule that was briefly reviewed several meetings ago.
In response to a question from Chair Senechal concerning additional information, Judge Braaten agreed it would be helpful if Barbara Harper could attend the November 15 meeting and provide information concerning possible methods of establishing a lawyer assistance program in the state. Committee members agreed and also requested that Paul Jacobson, Disciplinary Counsel, be invited to the November meeting.
Chair Senechal noted there is a vacancy on the Committee for a lay member to be appointed by the Board of Governors. She said any suggestions could be forwarded to Dan Crothers.
There being no further business, the meeting was adjourned at 12:30 p.m.