August 1, 2009 March 1, 2016
RULE 1.0 - TERMS
1 (a) "Belief" or "believes" denotes that the person involved actually supposed the fact in
2 question to be true. A person's belief may be inferred from the person's conduct in the
4 (b) "Consent in writing", when used with reference to the consent of a person, denotes
5 consent that is given in writing by the person or oral consent promptly confirmed in writing
6 to the client by the lawyer.
7 (c) "Consult" or "consultation" denotes communication of information reasonably sufficient
8 to permit the client to appreciate the significance of the matter in question.
9 (d) "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional
10 corporation, sole proprietorship or other association authorized to practice law; or lawyers
11 employed in a legal services organization or the legal department of a corporation or other
13 (e) "Fraud" or "fraudulent" denotes conduct having a purpose to deceive and not merely
14 negligent misrepresentation or negligent failure to apprise another of relevant information.
15 (f) "Jurisdiction" means this state, another state of the United States, the District of
16 Columbia, Puerto Rico, or a territory or possession of the United States.
17 (g) "Knowingly", "known", or "knows" denotes actual knowledge of the fact in question. A
18 person's knowledge may be inferred from the person's conduct in the circumstances.
19 (h) "Legal Assistant" (or paralegal) means a person who assists lawyers in the delivery of
20 legal services, and who through formal education, training, or experience, has knowledge and
21 expertise regarding the legal system and substantive and procedural law which qualifies the
22 person to do work of a legal nature under the direct supervision of a licensed lawyer.
23 (i) "Matter", for purposes of Rules 1.7 through 1.12, includes any judicial or other
24 proceeding, application, request for a ruling or other determination, contract claim,
25 controversy, investigation, charge, accusation, arrest, or other transaction.
26 (j) "Notice of dishonor" refers to the notice that an eligible financial institution is required
27 to give, under the laws of this jurisdiction, upon presentation of an instrument that the
28 institution dishonors.
29 (k) "Partner" denotes a member of a partnership, a shareholder in a law firm organized as a
30 professional corporation, or a member of an association authorized to practice law.
31 (l) "Properly payable" refers to an instrument that, if presented in the normal course of
32 business, is in a form requiring payment under the laws of this jurisdiction.
33 (m) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the
34 conduct of a reasonably prudent and competent lawyer.
35 (n) "Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes
36 that the lawyer believes the matter in question and that the circumstances are such that the
37 belief is reasonable.
38 (o) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of
39 reasonable prudence and competence would ascertain the matter in question.
40 (p) "Screened" denotes the isolation of a lawyer from any participation in a matter through
41 the timely imposition of a firm's procedures that are reasonably adequate under the
42 circumstances to protect information that the isolated lawyer is obligated to protect under
43 these Rules or other law.
44 (q) "Substantial" when used in reference to degree or extent denotes a material matter of clear
45 and weighty importance.
46 (r) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative
47 body, administrative agency or other body acting in an adjudicative capacity. A legislative
48 body, administrative agency or other body acts in an adjudicative capacity when a neutral
49 official, after presentation of evidence or legal argument by a party or parties, will render a
50 binding legal judgment directly affecting a party's interests in a particular matter.
51 (s) "Writing" or "written" denotes a tangible or electronic record of a communication or
52 representation, including handwriting, typewriting, printing, photostating, photography, audio
53 or videorecording, and
54 electronic sound, symbol, or process attached to or logically associated with a writing and
55 executed or adopted by a person with the intent to sign the writing.
57 Consent in Writing
58  Where it is required by these Rules, a client's consent must be given in writing at the time
59 consent is given or oral consent by the client must be promptly confirmed in writing to the
60 client by the lawyer. If a lawyer has obtained a client's oral consent, the lawyer may act in
61 reliance on that oral consent so long as it is promptly confirmed in writing.
63  Whether two or more lawyers constitute a firm within paragraph (d) can depend on the
64 specific facts. For example, two practitioners who share office space and occasionally consult
65 or assist each other ordinarily would not be regarded as constituting a firm. However, if they
66 present themselves to the public in a way that suggests that they are a firm or conduct
67 themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms
68 of any formal agreement between associated lawyers are relevant in determining whether
69 they are a firm, as is the fact that they have mutual access to information concerning the
70 clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying
71 purpose of the Rule that is involved. A group of lawyers could be regarded as a firm for
72 purposes of the Rule that the same lawyer should not represent opposing parties in litigation,
73 while the same group of lawyers might not be regarded as a firm for purposes of the rule that
74 information acquired by one lawyer is attributed to another.
75  With respect to the law department of an organization, including the government, there
76 is ordinarily no question that the members of the department constitute a firm within the
77 meaning of these Rules. There can be uncertainty, however, as to the identity of the client.
78 For example, it may not be clear whether the law department of a corporation represents a
79 subsidiary or an affiliated corporation, as well as the corporation by which the members of
80 the department are directly employed. A similar question can arise concerning an
81 unincorporated association and its local affiliates.
82  Similar questions can also arise with respect to lawyers in legal aid and legal services
83 organizations. Depending upon the structure of the organization, the entire organization or
84 different components of it may constitute a firm or firms for purposes of these Rules.
86  When used in these Rules, the terms "fraud" or "fraudulent" do not include merely
87 negligent misrepresentation or negligent failure to apprise another of relevant information.
88 For purposes of these Rules, it is not necessary that anyone has suffered damages or relied
89 on the misrepresentation or failure to inform in order for the misrepresentation or failure to
90 inform to constitute fraud.
93  This definition applies to situations where screening of a personally disqualified lawyer
94 is permitted to remove imputation of a conflict of interest under Rules 1.11, 1.12, and 1.18.
95  The purpose of screening is to assure the affected parties that confidential information
96 known by the personally disqualified lawyer remains protected. The personally disqualified
97 lawyer should acknowledge the obligation not to communicate with any of the other lawyers
98 in the firm with respect to the matter. Similarly, other lawyers in the firm who are working
99 on the matter should be informed that the screening is in place and that they may not
100 communicate with the personally disqualified lawyer with respect to the matter. Additional
101 screening measures that are appropriate for the particular matter will depend on the
102 circumstances. To implement, reinforce and remind all affected lawyers of the presence of
103 the screening, it may be appropriate for the firm to undertake such procedures as a written
104 undertaking by the screened lawyer to avoid any communication with other firm personnel
105 and any contact with any firm files or other
materials information, including information in
106 electronic form, relating to the matter, written notice and instructions to all other firm
107 personnel forbidding any communication with the screened lawyer relating to the matter,
108 denial of access by the screened lawyer to firm files or other
materials information, including
109 information in electronic form, relating to the matter and periodic reminders of the screen to
110 the screened lawyer and all other firm personnel.
111 Rule 1.0 amended effective 08/01/06, 08/01/09, 03/01/16.
112 Reference: N.D.C.C. 41-03-60; Minutes of the Professional Conduct Subcommittee of the
113 Attorney Standards Committee on 01/10/86 and 01/31/86; Minutes of the Joint Committee
114 on Attorney Standards Meetings of 06/13/95, 09/15/95, 12/01/95, 06/11/96, 09/24/04,
115 03/18/05, 06/14/05, 09/09/05, 06/10/08, 09/19/08, 11/07/08, 12/01/08, 09/13/13, 09/12/14.