(1) Counsel and substitute temporary counsel must be admitted to the practice of law in North Dakota; and
(2) With the exception of substitute temporary counsel, counsel may not engage in the private practice of law.
B. Powers and Duties. Counsel has the following powers and duties:
(1) Receive and screen all complaints to determine whether summary dismissal is appropriate;
(2) Investigate all information about a lawyer which, if true, would be grounds for discipline or transfer to disability inactive or incapacitated status and prepare an investigative report and recommendations for the district inquiry committee's disposition;
(3) In accordance with Rule 3.1C, dismiss a complaint;
(4) Provide training and education to the board, hearing panels, and the district inquiry committees on legal issues relating to lawyer discipline and disability;
(5) Prosecute disciplinary, disability, and reinstatement proceedings before hearing panels and the court;
(6) Supervise staff needed for the performance of investigative and prosecutorial functions, as authorized by the operations committee and within limits of funds available;
(7) Promptly notify the complainant and the lawyer of the disposition of each matter;
(8) Notify each jurisdiction in which a lawyer is admitted of a transfer to or from disability inactive or incapacitated status, a reinstatement, or any public discipline imposed in this state;
(9) When a lawyer is convicted in this state of a serious crime as defined in Rule 4.1C, forward a certified copy of the judgment of conviction to the disciplinary agency in each jurisdiction in which the lawyer is admitted;
(10) Maintain permanent records of informal matters, subject to the expunction requirements of Rule 6.1C; and
(11) Provide regular reports on all complaints filed with the secretary to the district inquiry committees and the board at their scheduled meetings.
C. Advisory Letter. At the direction of the inquiry committee under Rule 3.1C, counsel shall issue an advisory letter in conjunction with dismissal of a complaint when:
(1) the respondent's conduct constitutes a violation, but does not warrant an admonition or sanction and it appears appropriate to caution the respondent concerning the respondent's conduct; or
(2) the respondent's conduct does not constitute a violation, but the respondent should be cautioned.
An advisory letter is not a sanction and is not a disciplinary action. An advisory letter may not be introduced into evidence in any subsequent disciplinary proceeding.
D. Ex Parte Communications with Disciplinary Counsel.Members of the inquiry committee, hearing panel, the board, or the supreme court shall not communicate ex parte with disciplinary counsel regarding a pending or impending investigation or disciplinary matter except as explicitly provided for by law or for procedural, scheduling, or administrative purposes, or emergencies that do not deal with substantive matters or issues on the matters provided that:
(1) it is reasonable to believe that no party will gain a procedural or tactical advantage as a result of the ex parte communication; and
(2) provision is promptly made to notify all other parties of the substance of the ex parte communication and an opportunity to respond is allowed.
Rule 2.5 adopted effective January 1, 1995; amended on an emergency basis effective July 16, 1998; adopted on a final basis effective September 8, 1998; amended effective July 1, 1999; amended effective March 1, 2017.
Section B was amended effective March 1, 2017, to establish new disciplinary counsel duties related to receiving and screening all complaints to determine whether summary dismissal is appropriate, investigation of all information and complaints, summary dismissal of a complaint under Rule 3.1C, providing training and education, rather than advising, the disciplinary board, hearing panels, and inquiry committees, and maintaining permanent records of informal matters.
New Section C was created effective March 1, 2017, to provide for the issuance to a respondent lawyer of an advisory letter by disciplinary counsel if directed by the inquiry committee.
New Section D was created effective March 1, 2017, to prohibit, with certain exceptions, ex parte communications between disciplinary counsel and members of the inquiry committees, hearing panel, disciplinary board, or the supreme court.