Order of Adoption Wednesday, March 17, 1999
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
ORDER OF ADOPTION
Supreme Court No. 990001
Amendments to the
Rules for Lawyer Discipline,
Rules of Professional Conduct,
and Admission to Practice Rules
On January 5, 1999, the Joint Committee on Attorney Standardsfiled its Report along with proposed amendments to Rules 1.3, 2.1, 2.3, 2.4, 2.5, 3.1, 3.3, 3.5, 4.2, 4.5, 5.2, 6.1, 6.5, and 6.6., North Dakota Rules for Lawyer Discipline, Rule 4.2, North Dakota Rules of Professional Conduct, and Rule 3, North Dakota Admission to Practice Rules. Notice was provided under Section 7, N.D.R.Proc.R., and a hearing was held on the proposed amendments on Wednesday, February 17, 1999. At that time, any written comments received were also submitted to the Court. The Court considered the matter, and
ORDERED, the proposed amendments to the North Dakota Rules for Lawyer Discipline, as further amended by the Court, are adopted effective July 1, 1999.
IT IS FURTHER ORDERED, proposed amendments to Rule 4.2, North Dakota Rules of Professional Conduct, as further amended by the Court, are adopted effective July 1, 1999, with Justice Kapsner voting no for the reasons stated below.
IT IS FURTHER ORDERED, proposed amendments to Rule 3, North Dakota Admission to Practice Rules, are held in abeyance until proposed amendments to Rule 11.1, North Dakota Rules of Court, have been considered by the Joint Procedure Committee and a recommendation made to the Court.
Dated at Bismarck, North Dakota, March 17, 1999.
Gerald W. VandeWalle, Chief Justice
William A. Neumann, Justice
Dale V. Sandstrom, Justice
Mary Muehlen Maring, Justice
Carol Ronning Kapsner, Justice
ATTEST:
Penny Miller, Clerk
Carol Ronning Kapsner, Justice (dissenting to Rule 4.2, N.D.R. Prof. Conduct)
I dissent to the changes to the Comment to Rule 4.2, N.D.R. Prof. Conduct, which provides: "The prohibition of this Rule does not apply to contact with unrepresented former agents or employees of the represented organization." An organization such as a corporation, limited liability company and the like, whose legal status is recognized and which has the power to sue and be sued, is entitled to representation. The acts or omissions of a former agent or employee who acted in a managerial capacity for the organization concerning the matter in issue may be attributed to the organization for the purpose of establishing liability or the former agent or employee's statements may constitute an admission on the part of the organization regarding that matter. In such situations, effective representation is denied to the organization where a lawyer may contact the former agent or employee without the knowledge of the organization's lawyer.
Carol Ronning Kapsner, Justice