Rule 3.2: Provision of Legal Services Following Determination of Major Disaster

Effective Date: 5/1/2012

A. Determination of existence of major disaster. For purposes of this Rule, the Supreme Court shall determine when an emergency affecting the justice system, as a result of a natural or other major disaster, has occurred in:

1. this jurisdiction and whether the emergency caused by the major disaster affects the entirety or only a part of this jurisdiction, or
2. another jurisdiction but only after such a determination and its geographical scope have been made by the highest court of that jurisdiction. The authority to engage in the temporary practice of law in this jurisdiction under Section C extends only to lawyers who principally practice in the area of the other jurisdiction determined to have suffered a major disaster causing an emergency affecting the justice system and the provision of legal services.

B. Temporary practice in this jurisdiction following major disaster. Following the determination under Section A of an emergency affecting the justice system in this jurisdiction, or a determination that persons displaced by a major disaster in another jurisdiction and residing in this jurisdiction are in need of pro bono services and the assistance of lawyers from outside of this jurisdiction is required to help provide such assistance, a lawyer authorized to practice law in another United States jurisdiction, and not disbarred, suspended from practice or otherwise restricted from practice in any jurisdiction, may provide legal services in this jurisdiction on a temporary basis. The legal services must be provided on a pro bono basis without compensation, expectation of compensation or other direct or indirect pecuniary gain to the lawyer. The legal services must be assigned and supervised through the State Bar Association of North Dakota, a pro bono program or legal services program, or through another organization specifically designated by the Supreme Court.

C. Temporary practice in this jurisdiction following major disaster in another jurisdiction. Following the determination of a major disaster in another United States jurisdiction, a lawyer who is authorized to practice law and who principally practices in that affected jurisdiction, and who is not disbarred, suspended from practice or otherwise restricted from practice in any jurisdiction, may provide legal services in this jurisdiction on a temporary basis. Those legal services must arise out of and be reasonably related to that lawyer's practice of law in the jurisdiction, or area of such other jurisdiction, where the major disaster occurred.

D. Duration of authority for temporary practice. The authority to practice law in this jurisdiction granted under Section B ends when the Supreme Court determines the conditions caused by the major disaster in this jurisdiction have ended except that a lawyer then representing clients in this jurisdiction is authorized to continue the provision of legal services for such time as is reasonably necessary to complete the representation, but the lawyer shall not thereafter accept new clients. The authority to practice law in this jurisdiction granted under Section C ends 60 days after the Supreme Court declares that the conditions caused by the major disaster in the affected jurisdiction have ended.

E. Court appearances. The authority granted by this Rule does not include appearances in court except:

1. under Admission to Practice R.3, Section A, and, if such authority is granted, the fee imposed under Admission to Practice R. 3, Section A(1)(a)(4) is waived; or
2. if the Supreme Court, in any determination made under Section A, grants blanket permission to appear in all or designated courts of this jurisdiction to lawyers providing legal services under Section B. If such an authorization is included, the fee imposed under Admission to Practice R. 3, Section A(1)(a)(4) is waived.

F. Disciplinary authority and registration requirement. Lawyers providing legal services in this jurisdiction under Section B or C are subject to the Supreme Court's disciplinary authority as provided in N.D.R. Prof. Conduct 8.5. Lawyers providing legal services in this jurisdiction under Section B or C shall, within 30 days from the commencement of the provision of legal services, file a registration statement with the State Board of Law Examiners in a form prescribed by the Board. Any lawyer who provides legal services under this Rule is not engaged in the unlawful practice of law in this jurisdiction.

G. Notification to clients. Lawyers authorized to practice law in another United States jurisdiction who provide legal services under this Rule shall inform clients in this jurisdiction of the jurisdiction in which they are authorized to practice law, any limits of that authorization, and that they are not authorized to practice law in this jurisdiction except as permitted by this Rule. They shall not state or imply to any person that they are otherwise authorized to practice law in this jurisdiction.

Comment

[1] A major disaster in this or another jurisdiction may cause an emergency affecting the justice system with respect to the provision of legal services for a sustained period of time interfering with the ability of lawyers admitted and practicing in the affected jurisdiction to continue to represent clients until the disaster has ended. When this happens, lawyers from the affected jurisdiction may need to provide legal services to their clients, on a temporary basis, from an office outside their home jurisdiction. In addition, lawyers in an unaffected jurisdiction may be willing to serve residents of the affected jurisdiction who have unmet legal needs as a result of the disaster or, though independent of the disaster, whose legal needs temporarily are unmet because of disruption to the practices of local lawyers. Lawyers from unaffected jurisdictions may offer to provide these legal services either by traveling to the affected jurisdiction or from their own offices or both, provided the legal services are provided on a pro bono basis through an authorized not-for-profit entity or another organization specifically designated by the Supreme Court. A major disaster includes, for example, a hurricane, earthquake, flood, wildfire, tornado, public health emergency or an event caused by terrorists or acts of war.

[2] Under Section A(1), the Supreme Court determines whether a major disaster causing an emergency affecting the justice system has occurred in this jurisdiction, or in a part of this jurisdiction, for purposes of triggering Section B of this Rule. The Supreme Court may, for example, determine that the entirety of this jurisdiction has suffered a disruption in the provision of legal services or that only certain areas have suffered such an event. The authority granted under Section B extends only to lawyers authorized to practice law and not disbarred, suspended from practice or otherwise restricted from practice in any other manner in any other jurisdiction.

[3] Section B permits lawyers authorized to practice law in an unaffected jurisdiction, and not disbarred, suspended from practice or otherwise restricted from practicing law in any other manner in any other jurisdiction, to provide pro bono legal services to residents of the affected jurisdiction following determination of an emergency caused by a major disaster, notwithstanding that they are not otherwise authorized to practice law in the affected jurisdiction. Other restrictions on a lawyer's license to practice law that would prohibit that lawyer from providing legal services under this Rule include probation, inactive status, disability inactive status or a non-disciplinary administrative suspension for failure to complete continuing legal education or other requirements. Lawyers on probation may be subject to monitoring and specific limitations on their practices. Lawyers on inactive status, despite being characterized in many jurisdictions as being in good standing, and lawyers on disability inactive status are not permitted to practice law. Public protection warrants exclusion of these lawyers from the authority to provide legal services as defined in this Rule. Lawyers permitted to provide legal services under this Rule must do so without fee or other compensation, or expectation thereof. Their service must be provided through an established not-for-profit organization that is authorized to provide legal services either in its own name or that provides representation of clients through employed or cooperating lawyers. Alternatively, this court may instead designate another specific organization through which these legal services may be rendered. Under Section B, an emeritus lawyer from another United State jurisdiction may provide pro bono legal services on a temporary basis in this jurisdiction provided that the emeritus lawyer is authorized to provide pro bono legal services in that jurisdiction under that jurisdiction's emeritus or pro bono practice rule. Lawyers may also be authorized to provide legal services in this jurisdiction on a temporary basis under N.D.R. Prof. 5.5(b).

[4] Lawyers authorized to practice law in another jurisdiction, who principally practice in the area of the other jurisdiction determined by the Supreme Court to have suffered a major disaster, and whose practices are disrupted by a major disaster there, and who are not disbarred, suspended from practice or otherwise restricted from practicing law in any other manner in any other jurisdiction, are authorized under Section C to provide legal services on a temporary basis in this jurisdiction. Those legal services must arise out of and be reasonably related to the lawyer's practice of law in the affected jurisdiction. For purposes of this Rule, the determination of a major disaster in another jurisdiction should first be made by the highest court of appellate jurisdiction in that jurisdiction.

[5] Emergency conditions created by major disasters end, and when they do, the authority provided under Sections B and C also ends with appropriate notice to enable lawyers to plan and to complete pending legal matters. Under Section D, the Supreme Court determines when those conditions end for purposes of this Rule. The authority granted under Section B ends upon such determination except that lawyers assisting residents of this jurisdiction under Section B may continue to do so for such longer period as is reasonably necessary to complete the representation. The authority provided under Section C ends 60 days after the Supreme Court makes the determination with regard to an affected jurisdiction.

[6] Sections B and C do not authorize lawyers to appear in the courts of this jurisdiction. Court appearances are subject to pro hac vice admission requirements under Admission to Practice R. 3, Section A. The Supreme Court may, in a determination made under Section E(2), include authorization for lawyers who provide legal services in this jurisdiction under Section B to appear in all or designated courts of this jurisdiction without need for pro hac vice admission. If such an authorization is included, the admission fee imposed under Admission to Practice R.3, Section (1)(a)(4) is waived. A lawyer who has appeared in the courts of this jurisdiction under Section E may continue to appear in any such matter notwithstanding a declaration under Section D that the conditions created by major disaster have ended. Withdrawal from a court appearance is subject to N.D.R. Prof. Conduct 1.16.

[7] Authorization to practice law as a foreign legal consultant or in-house counsel in a United States jurisdiction offers lawyers a limited scope of permitted practice and may therefore restrict that person's ability to provide legal services under this Rule.

[8] The ABA National Lawyer Regulatory Data Bank is available to help determine whether any lawyer seeking to practice in this jurisdiction under Section B or C of this Rule is disbarred, suspended from practice or otherwise subject to a public disciplinary sanction that would restrict the lawyer's ability to practice law in any other jurisdiction.

Reference: Minutes of the Joint Committee on Attorney Standards on 09/16/11, 12/09/11.

Effective Date Obsolete Date
05/01/2012 View