| Ethics and Opinions |
I. CLIENT-LAWYER RELATIONSHIPRule 1.1 Competence1988-01 Scope of representation ethically required of an attorney when accepting the representation, either under contract or by private retention of a client in a DUI criminal matter? 20-01 Is maternity leave a physical condition that impairs an attorney’s ability to represent a client and withdraw from court cases while on maternity leave for 7 months? Rule 1.2 Scope of Representation2005-03 When an attorney finds out from his client (in confidence), following the settlement of a divorce, that the two parties have an unstated side agreement regarding distribution of the property, does the attorney have an obligation to provide such information to the other attorney or the court? Given the fact that the client was unwilling to have placed in the stipulation (already agreed to by the parties) the content of the side agreement and was unwilling to allow the attorney to advise the opposing counsel or the court of such a side agreement, is it appropriate for the attorney to immediately withdraw from the case since in the attorney’s view the stipulation signed by the parties contains inaccurate information? 06-05 Do the North Dakota Rules of Professional Conduct prohibit an attorney from representing criminal defendants in city court when a partner of the requesting attorney is on the city’s council? 06-01 Do the North Dakota Rules of Professional Conduct permit participation in a lawyer referral service in which participating lawyers receive referrals from a nonprofit corporation on the condition that the lawyers list themselves in a third-party directory and pay fees to a third party for each referral that results in an attorney-client engagement? 05-03 Under N.D.R.Prof.Conduct 3.3(d), does an attorney have further obligations to the court of the client after withdrawing representation? 06-08 Must a waiver of confidentiality be in writing acknowledging that an attorney working for the Commission on Legal Counsel for Indigents is required to disclose to the Commission financial information the attorney receives that may make the client ineligible? 06-07 Can three public defender offices opened by the Commission on Legal Counsel for Indigents be treated as separate law firms for purposes of imputing conflicts of interest? 1987-05 Representation by defense contract attorney at DUI administrative hearing. 1988-01 Scope of representation ethically required of an attorney when accepting the representation, either under contract or by private retention of a client in a DUI criminal matter? 1993-09 Whether settlement offer from defendants which includes condition that plaintiffs waive their right to ask for attorney's fees and costs under 42 U.S.C. 1988 creates a conflict of interest for the attorney and whether the attorney is foreclosed from rejecting the offer. 1992-07 Clarification of acts that may be performed by an attorney under suspension. Rule 1.3 Diligence15-05 Must an Attorney continue to store a Client's private property after making multiple attempts to contact the Client who has not made any arrangements to take delivery of the property and is now unreachable? What ethical obligations to the Client does Attorney have in relations to personal property the Attorney agreed to store "temporarily?" 20-01 Is maternity leave a physical condition that impairs an attorney’s ability to represent a client and withdraw from court cases while on maternity leave for 7 months? Rule 1.4 Communication09-03 Is an attorney obligated to share information regarding representation of a ward with the ward's legal guardian in a criminal manner? 1997-12 A lawyer has an ethical obligation to release medical or psychological records to a client when communication concerning the records is necessary to proper representation of the client, or when the client requests the records from the lawyer. The only exception is when the lawyer reasonably believes the disclosure of certain information to the client would have a high probability of resulting in substantial harm to the client or others. The lawyer may withhold or delay the transmission of the information only to the extent reasonably necessary to avoid the harm. 1991-12 Request by state for inmate's appointed attorney to limit disclosure of information in civil rights action against State Penitentiary. 2001-03 A lawyer providing law-related services such as a tax business is subject to the North Dakota Rules of Professional Conduct. Under its procedures, the committee will not address issues related to past practice. Targeted mailings are not prohibited by the Rules of Professional Conduct so long as those mailings are not false or misleading. No distinction can be made between a client's file in electronic or paper format with respect to the ethical obligation to provide information requested by the client. 1993-09 Whether settlement offer from defendants which includes condition that plaintiffs waive their right to ask for attorney's fees and costs under 42 U.S.C. 1988 creates a conflict of interest for the attorney and whether the attorney is foreclosed from rejecting the offer. 15-06 Is an Attorney representing the adoptive parents ethically obligated to disclose confidential information about the genetic parents to the adoptive parents? 20-01 Is maternity leave a physical condition that impairs an attorney’s ability to represent a client and withdraw from court cases while on maternity leave for 7 months? Rule 1.5 Fees2005-02 Is it permissible to maintain a collaboration with out-of-state lawyers, and are referrals to an attorney-owned law related enterprise permissible under the North Dakota Rules of Professional Conduct? 09-05 Is it acceptable for a law firm to deposit credit card payments for advanced fees and costs into the firm's merchant account" and "promptly" transfer into the client trust account to offset additional processing fees charged by the credit card company? 04-02 Is a lawyer’s fee splitting arrangements ethically maintained now that the referring lawyers are suspended and can the lawyer pay fees earned to a suspended lawyer? 1994-02 An attorney who has represented a client to obtain a divorce decree in which spousal support was awarded is not precluded by Rule 1.5 (d)(1) of the NDRPC from entering into a contingent fee contract with the client to collect arrearage in spousal support. 1992-08 May a former associate be required by a firm to pay a percentage of fees for services performed for clients of the law firm after the associate had left the firm? 1989-06 Referral fee or commission in real estate matter. 1987-11 Contingent fees and fee sharing. 2001-03 A lawyer providing law-related services such as a tax business is subject to the North Dakota Rules of Professional Conduct. Under its procedures, the committee will not address issues related to past practice. Targeted mailings are not prohibited by the Rules of Professional Conduct so long as those mailings are not false or misleading. No distinction can be made between a client's file in electronic or paper format with respect to the ethical obligation to provide information requested by the client. 2000-11 An attorney may not enter into a contractual relationship with an out-of-state firm for the referral of cases that come to the out-of-state firm via the Internet. Under the proposed agreement the out-of-state firm was to receive 33 percent of any contingent, or 20 percent of any hourly fees the North Dakota attorney would earn from any case referred. The Committee found that the proposed agreement did not require a division of fees proportionate to the services performed by each attorney as required by Rule 1.5(e) N.D.R. Prof. Conduct, nor did the agreement require the out-of-state firm to assume joint responsibility for any representation arising from the referral as required in subsection (1) of paragraph (e). Consequently, the agreement violated the requirements of Rule 1.5 (e)(1), and the attorney could not enter the contractual relationship. 1993-01 Can attorney share legal fees with a person whose license to practice law has been suspended? 1993-15 The client must communicate the fact of discharge to his or her attorney, not the newly retained attorney. A new attorney taking on a case previously handled by another attorney must ensure that the client has terminated the former attorney. A retaining lien is not a per se violation of the Rules of Professional Conduct, however, the circumstances of each case must be assessed by the attorney to determine whether the ethical obligations of the attorney to protect the former client's interest would require the attorney to forego the assertion of the retaining lien. An attorney should forgo the right to enforce a retaining lien on a client's papers when the former client lacks the means to pay the lawyer's fee or to provide adequate security and has an urgent need for the papers to defend a criminal prosecution or to assert or defend a similarly important personal liberty. 11-06 Can a North Dakota law firm enter into an agreement with an out-of-state law firm that manages a pre-paid legal services referral? Rule 1.6 Confidentiality of Information05-01 Can a law firm represent farmer x in a personal injury action against corporation when law firm performed various legal services for corporation over previous years, ending three years ago? Corporation is also a borrower from bank which is also a client of the law firm. 03-01 Is there a conflict of interest in bringing a derivative/class action lawsuit against an organization when an attorney’s law firm had previously performed some legal work for an affiliate of the organization? 05-03 Under N.D.R.Prof.Conduct 3.3(d), does an attorney have further obligations to the court of the client after withdrawing representation? 06-02 How do client confidentiality requirements apply when responding to a request for information from another state’s attorney discipline authority? 06-08 Must a waiver of confidentiality be in writing acknowledging that an attorney working for the Commission on Legal Counsel for Indigents is required to disclose to the Commission financial information the attorney receives that may make the client ineligible? 2002-04 An attorney who has represented a company (company one) that is later acquired by the parent (company two) may represent the owners of company one in an action against company two for termination of employment. In reaching this conclusion on the facts presented, the committee concluded that parent company two was not a former client of the attorney and thus Rule 1.9 did not prohibit the representation. The committee also considered whether the attorney could represent the claimant in a lease dispute against the attorney’s former client, company one. Under the facts presented, since the attorney had no involvement in the preparation of the lease, the attorney’s representation of the claimant would not violate either Rule 1.6 or 1.9 of the North Dakota Rules of Professional Conduct. 1998-03 An attorney, who represents several small cities within a county and serves as municipal judge in another city located within the same county, if elected to the county commission, may continue to represent the cities on issues not directly or indirectly affecting the county. However, even in those circumstances, the attorney must comply with Rules 1.6 and Rule 1.8, NDRPC. In the attorney's role as a county commissioner, the attorney must not use information received in the role as an attorney for a city to the city's disadvantage nor breach any client confidences. The committee is unaware of any rule in the rules of professional conduct suggesting that the attorney may not be a member of the county commission and a municipal judge within the county at the same time. However, this opinion does not address the applicability of ND Code of Judicial Conduct. 1997-09 Rule 1.6 of the ND Rules of Professional Conduct is not violated by a lawyer who communicates routine matters with clients, and/or other lawyers jointly representing clients, via unencrypted electronic mail (e-mail) transmitted over commercial services or the Internet unless unusual circumstances require enhanced security measures. 1997-04 A lawyer may represent a new client in an action against a former client concerning a dissimilar problem when the subject matter of the new action is not the same or substantially related within the meaning of Rule 1.9. In representing the new client, the lawyer and the members of the firm are bound by the provisions of Rules 1.6 and 1.9 (c) which preclude the use of confidential information to the disadvantage of a client or former client. 1990-08 Confidentiality of deceased client's files. 1995-11 Absent a court order, a lawyer may not disclose confidential information concerning the lawyer's preparation and execution of a deceased client's will to relatives who are seeking to challenge the will unless the client consented to the disclosure or some other basis for revelation or use established by Rule 1.6 applies. If, however, a court finds that the information is not protected by the attorney-client privilege and orders the lawyer to produce the information, the lawyer must do so. 1993-14 Conflict of interest does not exist in case where attorney drafting pleadings in divorce case for husband's signature at the request of the wife provided no attorney/client relationship between the attorney and husband had been established and no privileged communications between the attorney and the husband occurred. 1992-10 How much information is the attorney required to reveal concerning a client whom the attorney believes is likely to commit unlawful acts. 1992-03 Conflict in representing opposing party in previous action. 1999-03 A law firm does not violate Rule 1.6 of the NDRPC if it subscribes to an online data backup service, provided the law firm ensures that the security of the data transmission and the security of the data storage are adequate for the sensitivity of the records that are to be transmitted and stored. 2000-01 An attorney represented both Husband and Wife on various domestic matters during their marriage to one another. Specifically, the Attorney represented the Wife in obtaining a Restraining Order against an acquaintance of her former husband. The Attorney also represented the Wife in conjunction with child support and custody issues arising from her divorce from the same former husband. The Attorney also represented the Husband in matters relating to spousal support from an earlier marriage. Wife initiated a divorce action against Husband. Husband retained the Attorney to represent him in that divorce action. Wife objected to the representation. Rule 1.9(b) of the ND Rules of Professional Conduct prohibits a lawyer who has formerly represented a client from representing "another person in a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation". Family law matters touch upon virtually every aspect of a person's life. For that reason, communications between a lawyer and client in domestic matters are frequently wide ranging and address sensitive issues. For that reason, it would be difficult under the Rules of Professional Conduct for a lawyer to represent one spouse in family law matters, whether or not they involve the current spouse. When the former client objects, the attorney should not accept the representation. To do so would be a conflict of interest. 2000-04 A law firm is not precluded by Rules 1.6, 1.7, or 1.9, from representing another law firm which may be a defendant in a legal negligence action, despite the fact that the potential plaintiff had a brief discussion with the requesting law firm about the case underlying the potential legal negligence action. 1991-01 Confidentiality after attorney/client relationship ends. 1997-08 While the requesting attorney may not represent another attorney in a malpractice case due to a conflict of interest, he may not disclose communications with the attorney regarding relevant transactions provided during prior representation of the attorney. The comment to Rule 1.6 specifically states that the duty of confidentiality continues after the client/lawyer relationship has terminated. 1995-04 A lawyer who represented a North Dakota lawyer before a board of law examiners in another state is not required to report actions of the lawyer-client which resulted in the lawyer-client's application to practice being denied in the other state. Rule 8.3's exception for information protected by Rule 1.6 applies, so the inquiring lawyer is not required to report the matter to the disciplinary authority in North Dakota, even though the matter raises a substantial question as to the lawyer-client's honesty and trustworthiness. 1991-04 Obligation to report suspected unethical conduct of another attorney when such disclosure may be to the disadvantage of the client at the present time. 2001-06 Rule 1.9(a) does not prohibit an attorney who represented Client A ten years ago in "general legal work" from representing Client B in a claim brought by Client A, assuming the claim does not involve the "same matter." If the pending claim does not involve issues that bring into play information obtained by the attorney or members of his firm during the prior representation of Client A, then the pending claim is not "substantially related" to the prior matters and no conflict of interest exists under Rule 1.9(b). If the attorney determines the matters are substantially related under Rule 1.9(b), the attorney must determine whether Client B's interests are "materially adverse" to Client A's interests. If the attorney determines the interests are adverse, he can continue to represent Client B only if he obtains consent after consultation with Client A (through Client A's attorney, if represented) and from Client B. 2001-07 The Ethics Committee concluded the states attorney does not have a conflict of interest pursuing a civil commitment and prosecuting a criminal offense against the same individual. A prosecutor's duties include both prosecuting public offenses on behalf of the state and representing the state in commitment proceedings. In both instances, the states attorney is representing the same client. Since there is no adversarial relationship created between the client and the states attorney in either case, no conflict of interest exists under Rule 1.7 NDRPC. The inquiring attorney also asked whether the states attorney can use information acquired in the commitment proceeding to assist in the prosecution of the criminal offense. The records in a commitment proceeding are confidential under §25-03.1-43, with certain exceptions. If the information obtained by the states attorney is confidential and is not one of the exceptions in §25-03.1-43 N.D.C.C., the states attorney may not disclose the information except as necessary to prevent the commission of a crime resulting in imminent death, imminent substantial bodily harm, or substantial harm to the financial interest of another under Rule 1.6 N.D.C.C. If the confidential information may be released under §25-03.1-43 N.D.C.C., then the information can be used to prosecute past wrong doing. 2001-01 Attorney A sought to disqualify Attorney B, asserting a conflict of interest, in a case where Attorney A's client, Jane Doe, is suing her mother, Carol Doe, for wrongful conversion. When served with the complaint Carol Doe and her boyfriend hired Attorney B to represent her. The basis of Attorney A's conflict assertion is that Attorney B had represented the mother, Carol Doe, ten years before in her divorce from Wayne Doe, who is Jane Doe's father. Attorney A asserts that in the course of handling the divorce action, Attorney B would have acquired inside "family" information about Jane Doe that would justify Attorney B's disqualification from the current case. In concluding, on the facts presented, that Attorney B would not violate the Rules of Professional Conduct if he were to continue representing Carol Doe and her boyfriend, the committee noted that Jane Doe was ten years old at the time of the divorce action and no attorney/client relationship was created between Attorney B and Jane Doe. The committee further noted that inasmuch as the two matters (the divorce and the wrongful conversion) were substantially dissimilar, the language of Rule 1.9 would not come into play even if it were assumed that some attorney/client relationship had been created between Jane Doe and Attorney B in the divorce action. Finally, based on the facts presented, the committee concluded that Attorney B could not have obtained any confidential information relating to Jane Doe in the prior divorce action that would be applicable to litigation commenced ten years after the divorce was concluded. Attorney A raised a second issue relating to an inquiry made by Carol Doe to Attorney B concerning her daughter Jane Doe's termination in an employment situation. In concluding that Attorney B would not violate the Rules of Professional Conduct by continuing to represent Carol Doe, the committee noted that no attorney/client relationship was formed between Carol Doe and Attorney B with respect to the inquiry regarding the termination of Jane Doe's employment and no conflict could be inferred from the facts presented. 1995-14 A lawyer who innocently obtains a copy of a confidential settlement agreement from the lawyer representing one of the settling parties may, without violating Rule 1.6, retain the document for possible use in related litigation. 2000-02 A law firm which has possession of closed files of another law firm as a result of the purchase of another law firm's practice has a duty to maintain confidentiality of any confidential information in those files. The purchasing law firm may be prohibited, under Rule 1.7, from representing a party whose position is adverse to that of a former client of the selling law firm. The purchasing law firm may wish to inventory the closed files, in order to identify any files which may contain confidential information which may disqualify the purchasing firm from undertaking other representation in the future. The Committee also found that in light of the terms of the purchase agreement (requiring the purchasing firm to keep the files for at least 10 years and to dispose of the files in an appropriate manner after 10 years), the purchasing firm could not dispose of the closed files without examining the contents of the files in order to properly return certain property to the client. The purchasing firm is not merely a custodian of the closed files. Because of the obligations it assumed as to the closed files, the purchasing firm has responsibilities to persons whose files it possesses, and those responsibilities to those third persons may disqualify the law firm, under N.D.R. Prof. Conduct 1.7 (a) or (c), from undertaking the representation of party in question. 2001-05 Attorney A, a bank employee, asked whether he has a duty to report Attorney B to the disciplinary system after learning that Attorney B is transferring funds from his IOLTA account to cover overdrafts in his law office or personal accounts. The duty to represent is not triggered if Attorney B withdrew earned funds from the client's IOLTA accounts under proper bookkeeping procedures. The Committee concluded that if Attorney A has knowledge of Attorney B's misuse of IOLTA funds, Attorney A must initiate disciplinary proceedings unless disclosing the information would violate the prohibitions of Rule 1.6. Rule 1.6 would bar the disclosure if the information came to Attorney A in his role as attorney unless Attorney A's client, the bank, consents to the disclosure. Attorney A should encourage the client to consent unless to do so would substantially harm the client. 1994-05 An attorney, whose representation of a client is terminated by that client with express direction that his address remain confidential, is not precluded by Rule 1.6 from disclosing that address in a motion to withdraw where NDROC 11.2(b) specifically requires such disclosure unless another attorney is being substituted. 1995-13 A lawyer's client, the defendant in a hearing to modify child support, provided certain financial information to the Court. The information was correct at the time of the hearing, but before the Court's memorandum decision was issued, the defendant's client got a new job with potential for overtime. Since the evidence was not false when offered, even though the facts had changed, the lawyer does not have a duty of disclosure to the court or the other party. 13-01 Can an attorney use services of an outside collection agency or a third party recovery service to collect outstanding client accounts receivable before litigation is filed, after litigation is filed, and after judgment is entered? 15-04 Defendant, despite receiving notices from Court and Public Defender, fails to appear at a scheduled hearing. At the hearing, Court asks Public Defender what contacts have occurred between Public Defender and Defendant. State’s Attorney then charges Defendant with bail jumping. Rule 1.7 Conflict of Interest: General Rule2005-04 Based upon the claim that the opposing party was a former client, is there a conflict of interest which requires the requesting attorney withdraw as attorney for a current client in a domestic relations matter? 2005-03 When an attorney finds out from his client (in confidence), following the settlement of a divorce, that the two parties have an unstated side agreement regarding distribution of the property, does the attorney have an obligation to provide such information to the other attorney or the court? Given the fact that the client was unwilling to have placed in the stipulation (already agreed to by the parties) the content of the side agreement and was unwilling to allow the attorney to advise the opposing counsel or the court of such a side agreement, is it appropriate for the attorney to immediately withdraw from the case since in the attorney’s view the stipulation signed by the parties contains inaccurate information? 05-06 Doe the North Dakota Rules of Professional conduct prohibit an attorney from serving as a city council member and sitting on its Police Commission from representing criminal defendants in city cases transferred to the District Court when the cases are handled by the State’s Attorney? Can city cases by transferred to the District Court be handled by city attorney? Is the attorney prohibited from representing defendants in District Court? 05-01 Can a law firm represent farmer x in a personal injury action against corporation when law firm performed various legal services for corporation over previous years, ending three years ago? Corporation is also a borrower from bank which is also a client of the law firm. 05-04 Based upon a claim that the opposing party was a former client, is there a conflict of interest which requires he/she withdraw as attorney for a current client in a domestic relations matter? 06-10 Does a part-time state’s attorney’s previous civil representation create an ethical preclusion to the attorney prosecuting the former client(s)? 08-01 Representation by RA is requested by an Agent holding a Durable Power of Attorney (“Agent”). The representation is of a client in front of the County Social Services Board and the North Dakota Department of Human Services (“DHS”). The representation is by RA on behalf of the client claiming the client meets the financial guidelines for Medicaid. If DHS – the opposing party in Medicaid Administrative proceedings – defends that the client has a claim, i.e., an asset, against the Agent, does this claim present an unwaivable conflict of interest preventing RA from representing the client? 08-03 Under N.D.R. Prof. Conduct can a state's attorney's office assume the duties of a community service coordinator? 09-01 Can a law firm that currently represents a city under a contract arrangement with the city attorney also enter into a contract with the city to defend indigents who face city criminal prosecution? 09-02 Can an attorney who is a district clerk of court (formerly with the State of North Dakota Child Support Enforcement Program) participate in the Volunteer Lawyer Program? 09-08 Can attorneys advertise or market themselves as “Super Lawyers” as designated by Minnesota Law and Politics? 1987-01 Conflict of interest in prior representation of both plaintiff and defendant precludes representation in subsequent case. 1989-10 Can a firm represent two defendants in a criminal case? 1989-02 Conflict of interest in representing various parties in probate. 1988-05 Doing collection work for a law firm and later handling lawsuits in which an attorney from that law firm is on the opposite side. 1988-02 Restrictions on private practice of part-time municipal judge. 1987-09 Areas of law in which a part-time court referee is allowed to practice. 1985-41 Can a part-time states attorney be retained by a victim to act as private attorney in pursuing a lawsuit to recover damages after the time for appeal has expired in the criminal action, regardless of verdict? 1987-13 Conflict of interest between representing the County and related client in civil action. 2000-04 A law firm is not precluded by Rules 1.6, 1.7, or 1.9, from representing another law firm which may be a defendant in a legal negligence action, despite the fact that the potential plaintiff had a brief discussion with the requesting law firm about the case underlying the potential legal negligence action. 1995-03 There is a potentially inherent conflict of interest under Rules 1.7(a) and (c), 1.8(j) and 1.10, NDRPC and Sections 11-16-01 and 11-16-05, NDCC, for an attorney acting in the dual capacity as states attorney and as an associate of a public interest law firm, and it extends to all members of the firm, in matters relating to the states attorney member's governmental duties and restrictions. 1994-06 An attorney spouse of a district court judge may appear in a judicial proceeding before other judges in the district. 1994-03 An attorney whose law firm previously represented the father-in-law of a present divorce client is not precluded by Rules 1.7 or 1.9 of the NDRPC from representing the daughter-in-law in the divorce proceedings absent a showing that the attorney's firm gained information that is relevant to the divorce proceeding in its prior representation of the father-in-law. 1993-11 An attorney is precluded from accepting employment from one client to comment on proposed administrative rules in a manner contrary to the position of a former client without the consent of the client. 1996-04 Having declined representation of a potential client based on information obtained during an intake and application process, a public interest law firm which is later contacted by that potential client's opponent generally may represent the opponent in the same matter, but may not use information obtained from the potential client absent consent or information becoming generally known. The public interest law firm may use a waiver or consent form to limit its obligations of confidentiality to a potential client, if the potential client gives consent to the waiver. Where a public interest law firm enters in to a contractual relationship with a private firm or lawyer, the terms of the contract control the nature of the relationship between the firms. If under Rule 1.10(d) of the NDRPC the resulting relationship establishes a firm, screening cannot avoid an imputation of the conflicts to both the public interest and the private interest firm. Where one spouse is employed by a public interest law firm and one by a private firm on opposing sides of an issue, the issue as to the conflict of interest is left to Rule 1.7 of the NDRPC, and if there is a conflict it is imputed under the general imputation rule found at 1.10(d) of the NDRPC. Where a legal assistant or secretary volunteers with a public interest law firm and where that secretary or legal assistant has access to the general files of a law firm which employs him or her, all conflicts between the public interest firm and the private firm are imputed to both firms. 1993-08 Can an attorney, as an agent for a title company, issue title insurance policies where a client of the attorney is either a seller, buyer, mortgagor, or mortgagee? 1993-02 Can an attorney testify as an expert witness in a case involving a subsidiary corporation of a former client? 1992-16 Can an assistant state's attorney for one county represent a juvenile in another county in which he has an appointment as a special assistant state's attorney? 1993-12 No attorney-client relationship existed, and consequently, no conflict of interest existed when law firm A represented a former partner of law firm B in an action against law firm B. 1998-05 Neither a State's Attorney or other attorneys in the State's Attorney's office are per se precluded by the NDRPC from prosecuting a criminal complaint against an attorney who, or whose firm, represents the County and the State's attorney in a pending action. Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation; and only the state's attorney himself can answer the question about whether there is a conflict of interest. However, a lawyer's personal interests can not be allowed to affect the lawyer's ability to exercise the independent professional judgment required. Therefore, if the state's attorney subjectively believes that he has an actual conflict because his own interests will, are likely to , or might adversely affect the representation, he should disqualify himself. 1998-04 The opinion deals with a lawyer's ownership of stock in a law firm organized as a professional corporation when the lawyer has left that firm and is practicing law with a competing law firm in the same city. No North Dakota rule of professional conduct expressly prohibits either: (a) the law firm the lawyer left from continuing to make purchases of the lawyer's stock under a stock redemption agreement or (b) the lawyer from continuing as a shareholder in that law firm while working as an employee at a second law firm. However, numerous difficult conflict of interest and confidentiality issues are likely to arise if the lawyer continues to be a shareholder of or retains another financial interest in one law firm while practicing in another law firm in the same city. The lawyer may be considered a member of the law firm he left as long as he owns stocks in that professional corporation. If so, under Rule 1.10 both law firms would be required to treat all of the members of both firms as members of each firm for conflict of interest purposes. Even if the lawyer is not considered a member of the law firm he left, as long as he is a stockholder, he will have a continuing financial interest in that firm. As long as he has a financial interest in the firm, the lawyer -- and under Rule 1.10(a) all members of his new firm -- would be required to consider and comply with the provisions of Rule 1.7 in any matter in which attorneys from both firms were involved. 1997-08 While the requesting attorney may not represent another attorney in a malpractice case due to a conflict of interest, he may not disclose communications with the attorney regarding relevant transactions provided during prior representation of the attorney. The comment to Rule 1.6 specifically states that the duty of confidentiality continues after the client/lawyer relationship has terminated. 1996-01 A law firm representing a third party in a lawsuit against Husband must decline representation of Wife in divorce and tort action against Husband if the firm cannot represent third party and Wife without adversely affecting responsibilities to either. If the firm believes the dual representation will not adversely affect either client, Rule 1.7(c), NDRPC requires consent of both clients after consultation and full explanation of the implications. 1997-02 When one partner in a law firm represents a corporation in which two spouses are each 50% shareholders and there are allegations of misuse of corporate property by one of the spouses, another partner in the law firm cannot represent one of the spouses in their divorce absent consent of the other spouse. Absent consent of the other spouse, the law firm cannot continue to represent either the corporation or one of the shareholder/spouses. 1996-02 Both a public interest law firm that refers cases to a contract attorney and the contract attorney to whom a case is referred should adopt and follow reasonable procedures to identity conflicts or potential conflicts of interest involving the matter to be assigned to the contract attorney. The conflict identification procedures adopted should be appropriate for the size and type of firm and practice and should be designed to determine in both litigation and non-litigation matters the parties and issues involved and whether there are actual or potential conflicts of interest. Once a conflict or potential conflict of interest has been identified, the attorneys must consider and comply with NDRPC 1.7 and 1.13. Based on the information provided, the contract attorney and that attorney's three associates constitute a "firm" for the purposes of Rule 1.10. Therefore, if any member of this firm would be prohibited from representing a client the public interest law firm refers to the contract attorney, the contract attorney would also be prohibited from undertaking that representation. Although there would be no blanket ethical prohibition on one firm member doing collection work while another represents clients of the public interest law firm, the conflict issue would have to be considered for each client and dealt with appropriately in each case. Finally, at least in this specific instance, a screening mechanism, such as a Chinese Wall, would not be an appropriate method of resolving the conflict of interest issue. 1996-08 An attorney may continue to represent the wife in a divorce action if the husband did not provide any confidential information to the attorney's partner in a brief meeting prior to the filing of the divorce action. 1996-07 An attorney may undertake representation of a defendant/insured in a wrongful death action and also undertake representation of an insurer in a bad faith action arising out of the same automobile accident only if the attorney reasonably believes the dual representation will not adversely affect either of the clients, and both clients consent after full disclosure of the implications. 1996-06 An attorney representing a client in pending matters must obtain the consent of the existing client and a new client suing the existing client before taking on representation of the new client. To proceed in the absence of consent from both parties would be a per se violation of Rule 1.7(c). If either will not consent, the attorney must withdraw as counsel. 1996-05 The declination of a potential client based on information obtained during the intake and application process handled by one member of the law firm does not prevent another member of the firm from representing the adverse party to that potential client where the client relationship had not been consummated and where the law partner had not obtained any confidential information from the potential client as part of the process of determining whether the firm would represent that potential client. 1992-12 Private attorney from firm representing creditors to interview LAND client and provide advice as part of a volunteer legal assistance program. 1997-06 Under the facts presented, a law firm's representation of a plaintiff in a wrongful death lawsuit against a defendant who is an existing client violates Rule 1.7(c). The existing client consented to the representation with the understanding that the plaintiffs' damages will be covered solely by insurance. The qualified consent given by the existing client affects a number of the plaintiff's rights and advantages in their wrongful death lawsuit. Accordingly, the Firm should reasonably believe that its representation will adversely affect its client resulting in an impermissible conflict of interest under Rule 1.7(c). 1992-14 Claims by two persons, one or both of whom were a client, to the same document held by an attorney. 2001-01 Attorney A sought to disqualify Attorney B, asserting a conflict of interest, in a case where Attorney A's client, Jane Doe, is suing her mother, Carol Doe, for wrongful conversion. When served with the complaint Carol Doe and her boyfriend hired Attorney B to represent her. The basis of Attorney A's conflict assertion is that Attorney B had represented the mother, Carol Doe, ten years before in her divorce from Wayne Doe, who is Jane Doe's father. Attorney A asserts that in the course of handling the divorce action, Attorney B would have acquired inside "family" information about Jane Doe that would justify Attorney B's disqualification from the current case. In concluding, on the facts presented, that Attorney B would not violate the Rules of Professional Conduct if he were to continue representing Carol Doe and her boyfriend, the committee noted that Jane Doe was ten years old at the time of the divorce action and no attorney/client relationship was created between Attorney B and Jane Doe. The committee further noted that inasmuch as the two matters (the divorce and the wrongful conversion) were substantially dissimilar, the language of Rule 1.9 would not come into play even if it were assumed that some attorney/client relationship had been created between Jane Doe and Attorney B in the divorce action. Finally, based on the facts presented, the committee concluded that Attorney B could not have obtained any confidential information relating to Jane Doe in the prior divorce action that would be applicable to litigation commenced ten years after the divorce was concluded. Attorney A raised a second issue relating to an inquiry made by Carol Doe to Attorney B concerning her daughter Jane Doe's termination in an employment situation. In concluding that Attorney B would not violate the Rules of Professional Conduct by continuing to represent Carol Doe, the committee noted that no attorney/client relationship was formed between Carol Doe and Attorney B with respect to the inquiry regarding the termination of Jane Doe's employment and no conflict could be inferred from the facts presented. 1988-01 Scope of representation ethically required of an attorney when accepting the representation, either under contract or by private retention of a client in a DUI criminal matter? 1997-01 A states attorney, or other attorneys in his office, are not disqualified from prosecuting a criminal charge against an attorney who actively represents criminal defendants in the same court in which both the states attorney and the attorney-defendant practices. If, however, the states attorney subjectively believes that he, or any other attorneys in his office, has an actual conflict of interest, he should disqualify himself. 1990-02 Restrictions on attorney/legislators. 1993-13 Attorney may continue representation of client even thought his partner may be called as a witness in the case provided no conflict of interest exists. 2000-02 A law firm which has possession of closed files of another law firm as a result of the purchase of another law firm's practice has a duty to maintain confidentiality of any confidential information in those files. The purchasing law firm may be prohibited, under Rule 1.7, from representing a party whose position is adverse to that of a former client of the selling law firm. The purchasing law firm may wish to inventory the closed files, in order to identify any files which may contain confidential information which may disqualify the purchasing firm from undertaking other representation in the future. The Committee also found that in light of the terms of the purchase agreement (requiring the purchasing firm to keep the files for at least 10 years and to dispose of the files in an appropriate manner after 10 years), the purchasing firm could not dispose of the closed files without examining the contents of the files in order to properly return certain property to the client. The purchasing firm is not merely a custodian of the closed files. Because of the obligations it assumed as to the closed files, the purchasing firm has responsibilities to persons whose files it possesses, and those responsibilities to those third persons may disqualify the law firm, under N.D.R. Prof. Conduct 1.7 (a) or (c), from undertaking the representation of party in question. 1996-11 If the dismissal of an action against one of two defendants on the grounds of insufficiency of service of process was the result of an error for which the plaintiff's lawyer is or may be responsible and the error is or may be of consequence in the litigation, a conflict of interest exists for the lawyer. In that event, the lawyer's own interests are likely to have an adverse effect on the representation of the client and the lawyer must withdraw pursuant to Rules 1.7 and 1.16 of the Rules of Professional Conduct. If the insufficiency of service of process was not the result of an error for which the lawyer is or may be responsible or if the dismissal is of no particular consequence in the litigation, then a conflict of interest may not exist or the representation of the client might not be adversely affected. In that event, the lawyer may continue to represent the client, but only if he or she reasonably believes that the representation will not be adversely affected and the client consents after full disclosure of the implications of the continued representation. 1994-08 City attorney who serves as a voting member of the City's planning commission might have a conflict of interest in representing the City with respect to action taken by the City's governing body where the governing body's action is contrary to the attorney's vote on the planning commission. After considering all relevant factors, if the lawyer "reasonably believes the representation will not be adversely affected" and the City consents, the conflict can be waived. On the other hand, if after considering the relevant factors, the attorney concludes that the representation of the City will or is likely to be adversely affected, the attorney must not represent the City, and under Rule 1.7 (a) and (b), the conflict cannot be waived by the City. 1993-09 Whether settlement offer from defendants which includes condition that plaintiffs waive their right to ask for attorney's fees and costs under 42 U.S.C. 1988 creates a conflict of interest for the attorney and whether the attorney is foreclosed from rejecting the offer. 1992-18 Can different lawyers in the same firm separately represent the husband and wife in a default divorce proceeding? 1992-17 Whether an attorney may establish a professional service corporation in which he would act as both a licensed real estate broker and a licensed attorney? 1998-07 A lawyer/agent may sell insurance and other estate planning products to law clients, or may sell insurance through a separate entity controlled by the lawyer individually or with others. However, whether an individual lawyer's conduct complies with the Rules of Professional Conduct is fact specific. Thus, a lawyer choosing to offer such law-related services must fully inform his clients and take special and careful steps to comply with the many rules of professional conduct applicable to such dual activities. 1997-07 An attorney's continued representation of a trustee would result in a disqualifying conflict of interest arising to a widow and children as present or former clients under Rules 1.7 and 1.9 if it was determined that the representation of the wife in the estate planning process, or in the probating of the settlor's estate, or in the prior representation of the widow and children on various matters, involved matters that may be related to a pending controversy. 12-01 The SBAND Ethics Committee has been asked if it is ethical to engage in the practice of collaborative law in the State of North Dakota. Collaborative law is a process in which the collaborative lawyers adequately advise their respective clients of the advantages and disadvantages of limited scope of representation underlying the collaborative law process, and to which each client must give informed consent before their lawyer agrees with opposing counsel to not utilize the formal discovery process and not represent their clients in adversarial litigation. 14-01 Wife and Husband held general durable power of attorney (POA) for Aunt (of Wife). After establishing the POA for Aunt, legal work was completed on behalf of Wife and Husband. It was subsequently alleged that Wife and Husband were inappropriately using Aunt's funds for their personal use. Are Wife and Husband still Attorney's clients? If not, will Attorney’s representation of Aunt in a civil action against them violate Attorney’s duties owed to them as former clients under North Rules of Professional Conduct Rule 1.9? Would such representation be a violation of any other rule? 2015-02 Attorney has been granted a temporary law license for the state of North Dakota. As a requirement for the temporary license, Attorney must affiliate with a licensed associate attorney. In this case, Attorney and Associate Attorney do not work in the same firm. Attorney has a solo practice. Recently, Attorney met with a potential client regarding a family law issue. During the interview, Potential Client disclosed he previously met with Associate Attorney, who declined representation due to a conflict of interest. The Ethics Committee has been asked to render its opinion on whether it is permissible for Attorney, practicing under a temporary license, to represent a client when Associate Attorney is unable to do so because of a conflict of interest. Attorney also inquired whether he/she is able to represent Potential Client if that case does not involve filing any pleadings with a North Dakota Court. 15-02 An attorney practicing under a temporary license may not represent a client when his/her designated Associate Attorney is unable to represent that same client due to a conflict of interest, absent informed consent. The same is true for cases where no pleadings are filed in a North Dakota Court on behalf of the client. 15-04 Defendant, despite receiving notices from Court and Public Defender, fails to appear at a scheduled hearing. At the hearing, Court asks Public Defender what contacts have occurred between Public Defender and Defendant. State’s Attorney then charges Defendant with bail jumping. 19-01 A firm represents an enterprise with a diverse operation and is a governmental entity (“Government Client”). The firm currently provides services to the Government Client in two distinct areas of the law which are unrelated to the other. The attorney at issue (“Attorney”) is employed at the firm. Attorney does not currently represent the Government Client in any matter. Attorney has not represented the Government Client in any matter in the past. Only Attorney’s colleagues in the firm have represented the Government Client. The firm also represents another client (“Private Client”) concerning a business. The firm’s services to the Private Client are unrelated to the firm’s representation of the Government Client. Attorney has primarily represented the Private Client. Although other counsel within the firm have provided services to the Private Client, none of the other counsel are currently providing services for the Government Clients. The Government Client served a subpoena on the Private Client indicating that Government Client (a governmental entity) is investigating whether the Private Client have committed unlawful conduct including construction fraud (“Investigation”). The firm is not providing any services to the Government Client regarding the Investigation. The Private Client have asked Attorney to represent the Private Client regarding the Investigation. After consultation, both the Government Client and the Private Client have consented to the firm’s representation of the Private Client regarding the Investigation. Rule 1.8 Conflict of Interest: Prohibited Transactions1987-10 Part-time court referee practicing in county court. 1991-02 Part-time states attorney performing criminal defense work in counties other than that which he holds a prosecutorial appointment. 1991-09 Holding positions as part-time city prosecutor and part-time county defense counsel simultaneously. 1985-01 City prosecutor appearing as defense counsel. 1984-40 No attorney who serves as municipal judge and also maintains a private law practice shall appear as defense counsel in any criminal action in a court in which he/she presides. Also applies to other firm members. 1980-38 Can states attorneys, assistant states attorneys, federal magistrates, city prosecutors, municipal judges, and county justices handle defense work? 1980-37 Can partners or associates of a federal magistrate, city prosecutor, municipal judge, county justice, states attorney, or assistant states attorney appear as counsel for a criminal defendant? 1980-36 Can city prosecutors or federal magistrates ethically engage in criminal defense work? 1988-02 Restrictions on private practice of part-time municipal judge. 1991-05 Part-time states attorney in one county acting as a municipal judge in another county. 1993-07 May part-time municipal prosecutor defend cases in County Court in situations where the County Court prosecution does not involve the enforcement of municipal ordinances of the municipality in which the attorney holds the prosecutorial appointment? 1998-03 An attorney, who represents several small cities within a county and serves as municipal judge in another city located within the same county, if elected to the county commission, may continue to represent the cities on issues not directly or indirectly affecting the county. However, even in those circumstances, the attorney must comply with Rules 1.6 and Rule 1.8, NDRPC. In the attorney's role as a county commissioner, the attorney must not use information received in the role as an attorney for a city to the city's disadvantage nor breach any client confidences. The committee is unaware of any rule in the rules of professional conduct suggesting that the attorney may not be a member of the county commission and a municipal judge within the county at the same time. However, this opinion does not address the applicability of ND Code of Judicial Conduct. 1987-11 Contingent fees and fee sharing. 1995-03 There is a potentially inherent conflict of interest under Rules 1.7(a) and (c), 1.8(j) and 1.10, NDRPC and Sections 11-16-01 and 11-16-05, NDCC, for an attorney acting in the dual capacity as states attorney and as an associate of a public interest law firm, and it extends to all members of the firm, in matters relating to the states attorney member's governmental duties and restrictions. 1993-08 Can an attorney, as an agent for a title company, issue title insurance policies where a client of the attorney is either a seller, buyer, mortgagor, or mortgagee? 1992-16 Can an assistant state's attorney for one county represent a juvenile in another county in which he has an appointment as a special assistant state's attorney? 1996-08 An attorney may continue to represent the wife in a divorce action if the husband did not provide any confidential information to the attorney's partner in a brief meeting prior to the filing of the divorce action. 2001-08 Assuming the states attorney serves in a county that has a population less than 35,000 and the county has not by resolution restricted the states attorney from acting as counsel for other parties, no statutory prohibition prevents a part-time states attorney from representing a plaintiff in an action against the state of North Dakota arising from an automobile accident, unless the action involves the elected officials, officers, or employees of the county in which the states attorney serves. Sections 11-16-01 and 11-16-05 N.D.C.C. set forth the powers and duties of a states attorney and restrictions on those powers. Although §11-16-01(5) requires the states attorney to defend all suits brought against the state or against the county, the duty of states attorney to defend the state of North Dakota has largely been abrogated by Chapter 32-12.2 N.D.C.C. Under this chapter, actions brought against the state of North Dakota or its employees are defended by the Attorney General or the Attorney General's appointee. Consequently, it would be very unlikely for a states attorney to be called upon to defend the state in a lawsuit over an automobile accident. Even though the statute is not an absolute bar to the lawyer's representation of a client suing the state of North Dakota, the lawyer could not represent the client if the lawsuit involved the county, or county officers, employees, or elected officials. Before undertaking the representation, the inquiring lawyer must also consider and resolve any question of conflict of interest under Rules 1.7, 1.8 and 1.11 of the North Dakota Rules of Professional Conduct. 1990-04 Restrictions on a city prosecutor from practicing in a county court. (Overturned by Committee in Ethics Opinion 93-07) 1990-02 Restrictions on attorney/legislators. 1986-01 Municipal judges practicing criminal defense work. Rule 1.9 Conflict of Interest: Former Client2005-04 Based upon the claim that the opposing party was a former client, is there a conflict of interest which requires the requesting attorney withdraw as attorney for a current client in a domestic relations matter? 06-10 Does a part-time state’s attorney’s previous civil representation create an ethical preclusion to the attorney prosecuting the former client(s)? 06-09 Can an attorney have former client live in his/her home to assist in a transition to independent living following commitment for treatment in a state hospital? 2002-04 An attorney who has represented a company (company one) that is later acquired by the parent (company two) may represent the owners of company one in an action against company two for termination of employment. In reaching this conclusion on the facts presented, the committee concluded that parent company two was not a former client of the attorney and thus Rule 1.9 did not prohibit the representation. The committee also considered whether the attorney could represent the claimant in a lease dispute against the attorney’s former client, company one. Under the facts presented, since the attorney had no involvement in the preparation of the lease, the attorney’s representation of the claimant would not violate either Rule 1.6 or 1.9 of the North Dakota Rules of Professional Conduct. 09-07 Law Firm represented Corporation in collection matters. Corporation was owned by an employee stock ownership plan (ESOP). ESOP decided to sell corporate assets. Attorney X represented Purchaser, Attorney Y represented the ESOP. Although complications arose during the sale, the transaction ultimately closed. Law Firm had no role in the creation of the ESOP, nor in the sales transaction. After the sale closed, Attorney X filed an ethical complaint against Attorney Y based on the sales transaction. Attorney Y contacted Law Firm about representing him in the disciplinary matter. Because of its representation of the Corporation in collection matters, is it a conflict of interest for Law Firm to represent Attorney Y in the disciplinary matter? 08-05 Is attorney is required by North Dakota Rule of Professional Conduct 1.19 to pack and pay postage on a client's file when representation has been terminated and all appeals have run. Also, may the former client be required to bring his own paper and copy the files under supervision of the attorney's assistant? 05-04 Based upon a claim that the opposing party was a former client, is there a conflict of interest which requires he/she withdraw as attorney for a current client in a domestic relations matter? 05-01 Can a law firm represent farmer x in a personal injury action against corporation when law firm performed various legal services for corporation over previous years, ending three years ago? Corporation is also a borrower from bank which is also a client of the law firm. 03-01 Is there a conflict of interest in bringing a derivative/class action lawsuit against an organization when an attorney’s law firm had previously performed some legal work for an affiliate of the organization? 06-06 Is a states attorney prohibited from representing a governmental entity against a former client? Is an assistant states attorney also prohibited from representing the governmental entity? 2000-01 An attorney represented both Husband and Wife on various domestic matters during their marriage to one another. Specifically, the Attorney represented the Wife in obtaining a Restraining Order against an acquaintance of her former husband. The Attorney also represented the Wife in conjunction with child support and custody issues arising from her divorce from the same former husband. The Attorney also represented the Husband in matters relating to spousal support from an earlier marriage. Wife initiated a divorce action against Husband. Husband retained the Attorney to represent him in that divorce action. Wife objected to the representation. Rule 1.9(b) of the ND Rules of Professional Conduct prohibits a lawyer who has formerly represented a client from representing "another person in a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation". Family law matters touch upon virtually every aspect of a person's life. For that reason, communications between a lawyer and client in domestic matters are frequently wide ranging and address sensitive issues. For that reason, it would be difficult under the Rules of Professional Conduct for a lawyer to represent one spouse in family law matters, whether or not they involve the current spouse. When the former client objects, the attorney should not accept the representation. To do so would be a conflict of interest. 2001-06 Rule 1.9(a) does not prohibit an attorney who represented Client A ten years ago in "general legal work" from representing Client B in a claim brought by Client A, assuming the claim does not involve the "same matter." If the pending claim does not involve issues that bring into play information obtained by the attorney or members of his firm during the prior representation of Client A, then the pending claim is not "substantially related" to the prior matters and no conflict of interest exists under Rule 1.9(b). If the attorney determines the matters are substantially related under Rule 1.9(b), the attorney must determine whether Client B's interests are "materially adverse" to Client A's interests. If the attorney determines the interests are adverse, he can continue to represent Client B only if he obtains consent after consultation with Client A (through Client A's attorney, if represented) and from Client B. 2000-10 In a case involving a potential conflict of interest with a former client where Lawyer A's former partner Lawyer B represented the current Plaintiff in an unrelated matter, the Committee determined that no facts were presented indicating 1) the representation of the Defendant by Lawyer A was in a same matter as was handled by Lawyer B on behalf of the Plaintiff; 2) the current matter between the Plaintiff and Defendant was substantially related to any matter Lawyer B handled on behalf of the Plaintiff; and 3) Lawyer A obtained any information as a result of Lawyer B's prior representation which Lawyer A is now using to the Plaintiff's disadvantage in the present litigation. In addition, the facts presented indicate that Law Firm Y (Lawyer A's new firm) represented parties in legal matters adverse to the Plaintiff since 1994. There was no indication that any conflict of interest issues were raised by the Plaintiff in any of those other legal matters. For that reason, it is reasonable to conclude that the Plaintiff did not believe a conflict of interest existed with regard to his prior relationship as a former client of Lawyer B when A and B were partners in Law Firm Z. Since there is no violation of Rule 1.9 N.D.R. Prof.Conduct, there is no conflict of interest in the representation of the Defendant by Lawyer A and Law Firm Y as a result of the former representation of the Plaintiff by Lawyer B and Law Firm Z. 2001-01 Attorney A sought to disqualify Attorney B, asserting a conflict of interest, in a case where Attorney A's client, Jane Doe, is suing her mother, Carol Doe, for wrongful conversion. When served with the complaint Carol Doe and her boyfriend hired Attorney B to represent her. The basis of Attorney A's conflict assertion is that Attorney B had represented the mother, Carol Doe, ten years before in her divorce from Wayne Doe, who is Jane Doe's father. Attorney A asserts that in the course of handling the divorce action, Attorney B would have acquired inside "family" information about Jane Doe that would justify Attorney B's disqualification from the current case. In concluding, on the facts presented, that Attorney B would not violate the Rules of Professional Conduct if he were to continue representing Carol Doe and her boyfriend, the committee noted that Jane Doe was ten years old at the time of the divorce action and no attorney/client relationship was created between Attorney B and Jane Doe. The committee further noted that inasmuch as the two matters (the divorce and the wrongful conversion) were substantially dissimilar, the language of Rule 1.9 would not come into play even if it were assumed that some attorney/client relationship had been created between Jane Doe and Attorney B in the divorce action. Finally, based on the facts presented, the committee concluded that Attorney B could not have obtained any confidential information relating to Jane Doe in the prior divorce action that would be applicable to litigation commenced ten years after the divorce was concluded. Attorney A raised a second issue relating to an inquiry made by Carol Doe to Attorney B concerning her daughter Jane Doe's termination in an employment situation. In concluding that Attorney B would not violate the Rules of Professional Conduct by continuing to represent Carol Doe, the committee noted that no attorney/client relationship was formed between Carol Doe and Attorney B with respect to the inquiry regarding the termination of Jane Doe's employment and no conflict could be inferred from the facts presented. 2000-02 A law firm which has possession of closed files of another law firm as a result of the purchase of another law firm's practice has a duty to maintain confidentiality of any confidential information in those files. The purchasing law firm may be prohibited, under Rule 1.7, from representing a party whose position is adverse to that of a former client of the selling law firm. The purchasing law firm may wish to inventory the closed files, in order to identify any files which may contain confidential information which may disqualify the purchasing firm from undertaking other representation in the future. The Committee also found that in light of the terms of the purchase agreement (requiring the purchasing firm to keep the files for at least 10 years and to dispose of the files in an appropriate manner after 10 years), the purchasing firm could not dispose of the closed files without examining the contents of the files in order to properly return certain property to the client. The purchasing firm is not merely a custodian of the closed files. Because of the obligations it assumed as to the closed files, the purchasing firm has responsibilities to persons whose files it possesses, and those responsibilities to those third persons may disqualify the law firm, under N.D.R. Prof. Conduct 1.7 (a) or (c), from undertaking the representation of party in question. 14-01 Wife and Husband held general durable power of attorney (POA) for Aunt (of Wife). After establishing the POA for Aunt, legal work was completed on behalf of Wife and Husband. It was subsequently alleged that Wife and Husband were inappropriately using Aunt's funds for their personal use. Are Wife and Husband still Attorney's clients? If not, will Attorney’s representation of Aunt in a civil action against them violate Attorney’s duties owed to them as former clients under North Rules of Professional Conduct Rule 1.9? Would such representation be a violation of any other rule? 15-01 Attorney does not have an automatic attorney-client relationship with former clients in a new firm, but could represent the four clients who chose to follow Attorney to his new firm with the requirement that new fee agreements be signed. 20-02 Is it a conflict of interest for a state’s attorney to prosecute a person whom the attorney previously represented as an indigent defense client, where the new criminal case is completely unrelated to the prior case? Rule 1.10 Imputed Disqualification: General Rule06-05 Do the North Dakota Rules of Professional Conduct prohibit an attorney from representing criminal defendants in city court when a partner of the requesting attorney is on the city’s council? 06-07 Can three public defender offices opened by the Commission on Legal Counsel for Indigents be treated as separate law firms for purposes of imputing conflicts of interest? 03-01 Is there a conflict of interest in bringing a derivative/class action lawsuit against an organization when an attorney’s law firm had previously performed some legal work for an affiliate of the organization? 06-06 Is a states attorney prohibited from representing a governmental entity against a former client? Is an assistant states attorney also prohibited from representing the governmental entity? 09-01 Can a law firm that currently represents a city under a contract arrangement with the city attorney also enter into a contract with the city to defend indigents who face city criminal prosecution? 1999-01 In a situation where: 1) lawyer A, a former member of a law firm, consulted with the maternal grandparents pertaining to the subject matter of present pending litigation while still employed with the law firm; 2) lawyer B was not a member of the law firm at the time of the contact with the maternal grandparents; 3) lawyer A left the firm before lawyer B was contacted by the paternal grandparents to the law suit; and 4) file materials pertaining to the first consultation were destroyed prior to the contact with lawyer B - the law firm and lawyer B should not be precluded from continuing to represent the paternal grandparents in the case provided the attorney and the law firm do not possess or have access to material information protected by Rule 1.6. 1995-12 A former member of a law firm may represent the spouse of a client of the law firm in a divorce based upon a three-step analysis in which the attorney must consider 1) if the new client's interests are materially adverse to the former client's interests; 2) if the matter is the same or substantially related to the prior representation; and 3) if the lawyer has any material information. It is the burden of the attorney whose representation has been challenged to show a lack of access to the previous client's confidential information. If, while associated with the former firm, the attorney had acquired no material information, nor had access to confidential information, from the former representation of the firm's client, there would be no vicarious or imputed disqualification. Likewise, the attorney may represent the spouse even though there was access to information, if the information was of the type that falls under the exception of Rule 1.6(h), information which has generally become known. If, on the other hand, the attorney had general access to or had acquired material information concerning the former client of the law firm, the attorney would be disqualified from representing the spouse. 1998-01 A plaintiff's attorney would not be precluded from continuing to represent the plaintiff in the litigation if the attorney's firm hires opposing counsel's former legal secretary as long as effective screening procedures are imposed and there is no actual disclosure of client confidences. 1987-04 Client consent to represent prospective client in related subsequent case. 1994-01 Whether the lawyer's office sharing arrangement with another lawyer would result in conflicts for the other lawyer could not be determined on the facts presented but must be analyzed by considering the factors discussed in the Comment to NDRPC 1.10(a). 1992-05 Defining legal services organizations as a "firm" under Rule 1.10. 1999-04 No attorney client relationship was created between one member of a law firm and a doctor with whom the firm had no contact simply by virtue of the fact that the doctor was named as a shareholder in a closely held corporation formed with the assistance of the attorney. Therefore, another member of the law firm was not precluded from representing the Plaintiff in a medical malpractice commenced against the doctor. 1997-04 A lawyer may represent a new client in an action against a former client concerning a dissimilar problem when the subject matter of the new action is not the same or substantially related within the meaning of Rule 1.9. In representing the new client, the lawyer and the members of the firm are bound by the provisions of Rules 1.6 and 1.9 (c) which preclude the use of confidential information to the disadvantage of a client or former client. 1992-03 Conflict in representing opposing party in previous action. 1995-03 There is a potentially inherent conflict of interest under Rules 1.7(a) and (c), 1.8(j) and 1.10, NDRPC and Sections 11-16-01 and 11-16-05, NDCC, for an attorney acting in the dual capacity as states attorney and as an associate of a public interest law firm, and it extends to all members of the firm, in matters relating to the states attorney member's governmental duties and restrictions. 1996-04 Having declined representation of a potential client based on information obtained during an intake and application process, a public interest law firm which is later contacted by that potential client's opponent generally may represent the opponent in the same matter, but may not use information obtained from the potential client absent consent or information becoming generally known. The public interest law firm may use a waiver or consent form to limit its obligations of confidentiality to a potential client, if the potential client gives consent to the waiver. Where a public interest law firm enters in to a contractual relationship with a private firm or lawyer, the terms of the contract control the nature of the relationship between the firms. If under Rule 1.10(d) of the NDRPC the resulting relationship establishes a firm, screening cannot avoid an imputation of the conflicts to both the public interest and the private interest firm. Where one spouse is employed by a public interest law firm and one by a private firm on opposing sides of an issue, the issue as to the conflict of interest is left to Rule 1.7 of the NDRPC, and if there is a conflict it is imputed under the general imputation rule found at 1.10(d) of the NDRPC. Where a legal assistant or secretary volunteers with a public interest law firm and where that secretary or legal assistant has access to the general files of a law firm which employs him or her, all conflicts between the public interest firm and the private firm are imputed to both firms. 1993-12 No attorney-client relationship existed, and consequently, no conflict of interest existed when law firm A represented a former partner of law firm B in an action against law firm B. 1998-04 The opinion deals with a lawyer's ownership of stock in a law firm organized as a professional corporation when the lawyer has left that firm and is practicing law with a competing law firm in the same city. No North Dakota rule of professional conduct expressly prohibits either: (a) the law firm the lawyer left from continuing to make purchases of the lawyer's stock under a stock redemption agreement or (b) the lawyer from continuing as a shareholder in that law firm while working as an employee at a second law firm. However, numerous difficult conflict of interest and confidentiality issues are likely to arise if the lawyer continues to be a shareholder of or retains another financial interest in one law firm while practicing in another law firm in the same city. The lawyer may be considered a member of the law firm he left as long as he owns stocks in that professional corporation. If so, under Rule 1.10 both law firms would be required to treat all of the members of both firms as members of each firm for conflict of interest purposes. Even if the lawyer is not considered a member of the law firm he left, as long as he is a stockholder, he will have a continuing financial interest in that firm. As long as he has a financial interest in the firm, the lawyer -- and under Rule 1.10(a) all members of his new firm -- would be required to consider and comply with the provisions of Rule 1.7 in any matter in which attorneys from both firms were involved. 1996-02 Both a public interest law firm that refers cases to a contract attorney and the contract attorney to whom a case is referred should adopt and follow reasonable procedures to identity conflicts or potential conflicts of interest involving the matter to be assigned to the contract attorney. The conflict identification procedures adopted should be appropriate for the size and type of firm and practice and should be designed to determine in both litigation and non-litigation matters the parties and issues involved and whether there are actual or potential conflicts of interest. Once a conflict or potential conflict of interest has been identified, the attorneys must consider and comply with NDRPC 1.7 and 1.13. Based on the information provided, the contract attorney and that attorney's three associates constitute a "firm" for the purposes of Rule 1.10. Therefore, if any member of this firm would be prohibited from representing a client the public interest law firm refers to the contract attorney, the contract attorney would also be prohibited from undertaking that representation. Although there would be no blanket ethical prohibition on one firm member doing collection work while another represents clients of the public interest law firm, the conflict issue would have to be considered for each client and dealt with appropriately in each case. Finally, at least in this specific instance, a screening mechanism, such as a Chinese Wall, would not be an appropriate method of resolving the conflict of interest issue. 1996-05 The declination of a potential client based on information obtained during the intake and application process handled by one member of the law firm does not prevent another member of the firm from representing the adverse party to that potential client where the client relationship had not been consummated and where the law partner had not obtained any confidential information from the potential client as part of the process of determining whether the firm would represent that potential client. 2001-04 Where Attorney A employs Attorney B in his law firm, Attorney A may represent Attorney B's mother-in-law, Jane Doe, in her divorce, so long as he is not precluded from doing so by a conflict of interest. Determining whether a conflict exists is the attorney's responsibility. The Committee did not offer guidance on the conflict question because Attorney A did not identify a conflict in the facts presented. The Committee did, however, identify potential conflicts that may arise that should be considered by Attorney A before continuing the representation. Rule 1.7's requirement of client consent may apply, but if Attorney A determines that the representation of Jane Doe will not be adversely affected because the law firm has no responsibilities to John Doe and there is no issue as to Attorney B's own interest as a family member, there is no need to secure Jane Doe's consent to representation. Based on the limited facts provided, the committee could not determine whether Attorney B is a necessary witness and Attorney A could be disqualified on that basis. Finally, if there is a conflict of interest involving Attorney B, the committee is of the opinion that "insulating Attorney B" or erecting "a loose Chinese wall" would have no effect under the ruling in Heringer v. Haskell, 536 N.W. 2d 362 (N.D. 1995). 2000-10 In a case involving a potential conflict of interest with a former client where Lawyer A's former partner Lawyer B represented the current Plaintiff in an unrelated matter, the Committee determined that no facts were presented indicating 1) the representation of the Defendant by Lawyer A was in a same matter as was handled by Lawyer B on behalf of the Plaintiff; 2) the current matter between the Plaintiff and Defendant was substantially related to any matter Lawyer B handled on behalf of the Plaintiff; and 3) Lawyer A obtained any information as a result of Lawyer B's prior representation which Lawyer A is now using to the Plaintiff's disadvantage in the present litigation. In addition, the facts presented indicate that Law Firm Y (Lawyer A's new firm) represented parties in legal matters adverse to the Plaintiff since 1994. There was no indication that any conflict of interest issues were raised by the Plaintiff in any of those other legal matters. For that reason, it is reasonable to conclude that the Plaintiff did not believe a conflict of interest existed with regard to his prior relationship as a former client of Lawyer B when A and B were partners in Law Firm Z. Since there is no violation of Rule 1.9 N.D.R. Prof.Conduct, there is no conflict of interest in the representation of the Defendant by Lawyer A and Law Firm Y as a result of the former representation of the Plaintiff by Lawyer B and Law Firm Z. 1997-01 A states attorney, or other attorneys in his office, are not disqualified from prosecuting a criminal charge against an attorney who actively represents criminal defendants in the same court in which both the states attorney and the attorney-defendant practices. If, however, the states attorney subjectively believes that he, or any other attorneys in his office, has an actual conflict of interest, he should disqualify himself. 1990-02 Restrictions on attorney/legislators. 1992-18 Can different lawyers in the same firm separately represent the husband and wife in a default divorce proceeding? Rule 1.11 Successive Government and Private Employment06-10 Does a part-time state’s attorney’s previous civil representation create an ethical preclusion to the attorney prosecuting the former client(s)? 1996-03 An attorney is not prohibited from utilizing expertise developed while representing a government agency in matters adverse to the agency after the attorney's employment is terminated. Rules 1.9 and 1.11 analyzed together would prohibit the former government agency attorney from representing a client in an action adverse to the agency only if the attorney was involved both personally and substantially in any judicial or administrative proceeding, request for a ruling or investigation. This is a determination which must necessarily be made on a case-by-case basis. Agency files may constitute a single "matter" or may consist of several "matters." The distinction is based upon the particular legal or factual issues raised at various times while the claim or claims are open and whether these is a commonality which should be considered with respect to each. 1995-08 By implementation of proper screening and notice procedures mandated by Rule 1.11 (a), conflicts of interest between government agencies and a state's attorney member of a public interest firm will not be imputed to other members of the firm. 1989-09 State appointee's conduct. 1989-07 Government attorneys representing private individuals. 1994-01 Whether the lawyer's office sharing arrangement with another lawyer would result in conflicts for the other lawyer could not be determined on the facts presented but must be analyzed by considering the factors discussed in the Comment to NDRPC 1.10(a). 1996-02 Both a public interest law firm that refers cases to a contract attorney and the contract attorney to whom a case is referred should adopt and follow reasonable procedures to identity conflicts or potential conflicts of interest involving the matter to be assigned to the contract attorney. The conflict identification procedures adopted should be appropriate for the size and type of firm and practice and should be designed to determine in both litigation and non-litigation matters the parties and issues involved and whether there are actual or potential conflicts of interest. Once a conflict or potential conflict of interest has been identified, the attorneys must consider and comply with NDRPC 1.7 and 1.13. Based on the information provided, the contract attorney and that attorney's three associates constitute a "firm" for the purposes of Rule 1.10. Therefore, if any member of this firm would be prohibited from representing a client the public interest law firm refers to the contract attorney, the contract attorney would also be prohibited from undertaking that representation. Although there would be no blanket ethical prohibition on one firm member doing collection work while another represents clients of the public interest law firm, the conflict issue would have to be considered for each client and dealt with appropriately in each case. Finally, at least in this specific instance, a screening mechanism, such as a Chinese Wall, would not be an appropriate method of resolving the conflict of interest issue. 2001-08 Assuming the states attorney serves in a county that has a population less than 35,000 and the county has not by resolution restricted the states attorney from acting as counsel for other parties, no statutory prohibition prevents a part-time states attorney from representing a plaintiff in an action against the state of North Dakota arising from an automobile accident, unless the action involves the elected officials, officers, or employees of the county in which the states attorney serves. Sections 11-16-01 and 11-16-05 N.D.C.C. set forth the powers and duties of a states attorney and restrictions on those powers. Although §11-16-01(5) requires the states attorney to defend all suits brought against the state or against the county, the duty of states attorney to defend the state of North Dakota has largely been abrogated by Chapter 32-12.2 N.D.C.C. Under this chapter, actions brought against the state of North Dakota or its employees are defended by the Attorney General or the Attorney General's appointee. Consequently, it would be very unlikely for a states attorney to be called upon to defend the state in a lawsuit over an automobile accident. Even though the statute is not an absolute bar to the lawyer's representation of a client suing the state of North Dakota, the lawyer could not represent the client if the lawsuit involved the county, or county officers, employees, or elected officials. Before undertaking the representation, the inquiring lawyer must also consider and resolve any question of conflict of interest under Rules 1.7, 1.8 and 1.11 of the North Dakota Rules of Professional Conduct. Rule 1.12 Former Judge, Arbitrator, Adjudicative Officer and Law Clerks1995-10 A former judge may not represent persons as clients in proceedings in which he previously presided and had substantial responsibility as judge unless all parties to those proceedings consented after consultation. Rule 1.13 Organization as Client2002-04 An attorney who has represented a company (company one) that is later acquired by the parent (company two) may represent the owners of company one in an action against company two for termination of employment. In reaching this conclusion on the facts presented, the committee concluded that parent company two was not a former client of the attorney and thus Rule 1.9 did not prohibit the representation. The committee also considered whether the attorney could represent the claimant in a lease dispute against the attorney’s former client, company one. Under the facts presented, since the attorney had no involvement in the preparation of the lease, the attorney’s representation of the claimant would not violate either Rule 1.6 or 1.9 of the North Dakota Rules of Professional Conduct. 1999-04 No attorney client relationship was created between one member of a law firm and a doctor with whom the firm had no contact simply by virtue of the fact that the doctor was named as a shareholder in a closely held corporation formed with the assistance of the attorney. Therefore, another member of the law firm was not precluded from representing the Plaintiff in a medical malpractice commenced against the doctor. 1997-02 When one partner in a law firm represents a corporation in which two spouses are each 50% shareholders and there are allegations of misuse of corporate property by one of the spouses, another partner in the law firm cannot represent one of the spouses in their divorce absent consent of the other spouse. Absent consent of the other spouse, the law firm cannot continue to represent either the corporation or one of the shareholder/spouses. Rule 1.14 Client Under a Disability08-01 Representation by RA is requested by an Agent holding a Durable Power of Attorney (“Agent”). The representation is of a client in front of the County Social Services Board and the North Dakota Department of Human Services (“DHS”). The representation is by RA on behalf of the client claiming the client meets the financial guidelines for Medicaid. If DHS – the opposing party in Medicaid Administrative proceedings – defends that the client has a claim, i.e., an asset, against the Agent, does this claim present an unwaivable conflict of interest preventing RA from representing the client? 2000-06 When an attorney questions the ability of a client to make adequately considered decisions regarding the matter of representation, the attorney needs to establish the ability. The attorney may need to seek assistance to make that determination after first attempting to obtain the consent of the client. 1988-03 Questionable client competency. Rule 1.15 Safekeeping Property2002-01 After a case had been closed and the actual clients had died, a Montana court returned an appeal bond to a North Dakota law firm. The law firm placed the money in its trust account and tried unsuccessfully to find the heirs of the original clients. Based on the facts provided, the Ethics Committee concluded that Rule 1.15 N.D. Rules of Professional Conduct requires a lawyer to hold client property in an identifiable interest bearing trust account. Based on the assumption that the heirs of the clients cannot be located using reasonable and prudent means to do so, the principal and any accrued interest not governed by Rule 1.15b must be delivered to the administrator of the state abandoned property office as described in chapter 47-3.1 N.D.C.C. Applicable N.D. Rule of Professional Conduct: Rule 1.15. 1997-10 A lawyer holding personal property belonging to a client of the requesting lawyer incarcerated in a facility outside North Dakota may follow the client's request to forward specific items to another person without violating the rules of professional conduct. 1988-06 Trust account. 1996-08 An attorney may continue to represent the wife in a divorce action if the husband did not provide any confidential information to the attorney's partner in a brief meeting prior to the filing of the divorce action. 1992-14 Claims by two persons, one or both of whom were a client, to the same document held by an attorney. 1993-15 The client must communicate the fact of discharge to his or her attorney, not the newly retained attorney. A new attorney taking on a case previously handled by another attorney must ensure that the client has terminated the former attorney. A retaining lien is not a per se violation of the Rules of Professional Conduct, however, the circumstances of each case must be assessed by the attorney to determine whether the ethical obligations of the attorney to protect the former client's interest would require the attorney to forego the assertion of the retaining lien. An attorney should forgo the right to enforce a retaining lien on a client's papers when the former client lacks the means to pay the lawyer's fee or to provide adequate security and has an urgent need for the papers to defend a criminal prosecution or to assert or defend a similarly important personal liberty. 1991-06 Return of retainer to party from whom payment was received rather than to client. 11-04 Can a lawyer, who is involved in a debt collection law practice, have an i9ndividual client trust account that uses a daily bank sweep process to take in collection payments and disburse those funds automatically to a client every day? 15-05 Must an Attorney continue to store a Client's private property after making multiple attempts to contact the Client who has not made any arrangements to take delivery of the property and is now unreachable? What ethical obligations to the Client does Attorney have in relations to personal property the Attorney agreed to store "temporarily?" Rule 1.16 Declining or Terminating Representation2001-03 A lawyer providing law-related services such as a tax business is subject to the North Dakota Rules of Professional Conduct. Under its procedures, the committee will not address issues related to past practice. Targeted mailings are not prohibited by the Rules of Professional Conduct so long as those mailings are not false or misleading. No distinction can be made between a client's file in electronic or paper format with respect to the ethical obligation to provide information requested by the client. 1996-11 If the dismissal of an action against one of two defendants on the grounds of insufficiency of service of process was the result of an error for which the plaintiff's lawyer is or may be responsible and the error is or may be of consequence in the litigation, a conflict of interest exists for the lawyer. In that event, the lawyer's own interests are likely to have an adverse effect on the representation of the client and the lawyer must withdraw pursuant to Rules 1.7 and 1.16 of the Rules of Professional Conduct. If the insufficiency of service of process was not the result of an error for which the lawyer is or may be responsible or if the dismissal is of no particular consequence in the litigation, then a conflict of interest may not exist or the representation of the client might not be adversely affected. In that event, the lawyer may continue to represent the client, but only if he or she reasonably believes that the representation will not be adversely affected and the client consents after full disclosure of the implications of the continued representation. 1994-05 An attorney, whose representation of a client is terminated by that client with express direction that his address remain confidential, is not precluded by Rule 1.6 from disclosing that address in a motion to withdraw where NDROC 11.2(b) specifically requires such disclosure unless another attorney is being substituted. 1992-11 Closing of office and disposal of closed client files. 1990-06 Responsibility to contact clients and return all significant original documents. 1986-01 Municipal judges practicing criminal defense work. 1990-01 Establishment of attorney/client relationship. 1993-15 The client must communicate the fact of discharge to his or her attorney, not the newly retained attorney. A new attorney taking on a case previously handled by another attorney must ensure that the client has terminated the former attorney. A retaining lien is not a per se violation of the Rules of Professional Conduct, however, the circumstances of each case must be assessed by the attorney to determine whether the ethical obligations of the attorney to protect the former client's interest would require the attorney to forego the assertion of the retaining lien. An attorney should forgo the right to enforce a retaining lien on a client's papers when the former client lacks the means to pay the lawyer's fee or to provide adequate security and has an urgent need for the papers to defend a criminal prosecution or to assert or defend a similarly important personal liberty. 20-01 Is maternity leave a physical condition that impairs an attorney’s ability to represent a client and withdraw from court cases while on maternity leave for 7 months? Rule 1.17 Sale of A Law Practice2000-02 A law firm which has possession of closed files of another law firm as a result of the purchase of another law firm's practice has a duty to maintain confidentiality of any confidential information in those files. The purchasing law firm may be prohibited, under Rule 1.7, from representing a party whose position is adverse to that of a former client of the selling law firm. The purchasing law firm may wish to inventory the closed files, in order to identify any files which may contain confidential information which may disqualify the purchasing firm from undertaking other representation in the future. The Committee also found that in light of the terms of the purchase agreement (requiring the purchasing firm to keep the files for at least 10 years and to dispose of the files in an appropriate manner after 10 years), the purchasing firm could not dispose of the closed files without examining the contents of the files in order to properly return certain property to the client. The purchasing firm is not merely a custodian of the closed files. Because of the obligations it assumed as to the closed files, the purchasing firm has responsibilities to persons whose files it possesses, and those responsibilities to those third persons may disqualify the law firm, under N.D.R. Prof. Conduct 1.7 (a) or (c), from undertaking the representation of party in question. 15-08 An attorney who has offices in more than one North Dakota community cannot sell the attorney's practice that is associated with one of the offices and continue to practice law in the same fields and in the same geographic area as the practice to be sold. Rule 1.18 Governmental Entity as The Client1994-08 City attorney who serves as a voting member of the City's planning commission might have a conflict of interest in representing the City with respect to action taken by the City's governing body where the governing body's action is contrary to the attorney's vote on the planning commission. After considering all relevant factors, if the lawyer "reasonably believes the representation will not be adversely affected" and the City consents, the conflict can be waived. On the other hand, if after considering the relevant factors, the attorney concludes that the representation of the City will or is likely to be adversely affected, the attorney must not represent the City, and under Rule 1.7 (a) and (b), the conflict cannot be waived by the City. 2000-05 A prosecutor is a minister of justice not simply that of an advocate. Rule 3.8 N.D.R. Prof Conduct. A prosecutor represents the governmental entity distinct from its officials or employees. Rule 1.18(a) N.D.R. Prof Conduct. An attorney would not violate Rule 4.2 N.D.R. Prof Conduct if they should speak to a police officer about a case, in which they are representing a defendant, not withstanding the prosecutor's written notice prohibiting ex-parte contact provided, the attorney properly identifies himself and his involvement in the case as required by Rule 4.3 N.D.R Prof Conduct and does not try to improperly influence the witness as prohibited by Rule 3.4 N.D.R Prof Conduct. 2015-02 Attorney has been granted a temporary law license for the state of North Dakota. As a requirement for the temporary license, Attorney must affiliate with a licensed associate attorney. In this case, Attorney and Associate Attorney do not work in the same firm. Attorney has a solo practice. Recently, Attorney met with a potential client regarding a family law issue. During the interview, Potential Client disclosed he previously met with Associate Attorney, who declined representation due to a conflict of interest. The Ethics Committee has been asked to render its opinion on whether it is permissible for Attorney, practicing under a temporary license, to represent a client when Associate Attorney is unable to do so because of a conflict of interest. Attorney also inquired whether he/she is able to represent Potential Client if that case does not involve filing any pleadings with a North Dakota Court. 15-02 An attorney practicing under a temporary license may not represent a client when his/her designated Associate Attorney is unable to represent that same client due to a conflict of interest, absent informed consent. The same is true for cases where no pleadings are filed in a North Dakota Court on behalf of the client. Rule 1.19 Files, Papers and Property Related to a Representation15-06 Is an Attorney representing the adoptive parents ethically obligated to disclose confidential information about the genetic parents to the adoptive parents? II. COUNSELORRule 2.1 Advisor
1993-09
Whether settlement offer from defendants which includes condition that plaintiffs waive their right to ask for attorney's fees and costs under 42 U.S.C. 1988 creates a conflict of interest for the attorney and whether the attorney is foreclosed from rejecting the offer.
Rule 2.2 Intermediary1992-18 Can different lawyers in the same firm separately represent the husband and wife in a default divorce proceeding? 1997-07 An attorney's continued representation of a trustee would result in a disqualifying conflict of interest arising to a widow and children as present or former clients under Rules 1.7 and 1.9 if it was determined that the representation of the wife in the estate planning process, or in the probating of the settlor's estate, or in the prior representation of the widow and children on various matters, involved matters that may be related to a pending controversy. Rule 2.3 Evaluation for Use by Third PersonsIII. ADVOCATERule 3.1 Meritorious Claims and ContentionsRule 3.2 Expediting LitigationRule 3.3 Candor Toward the Tribunal2005-03 When an attorney finds out from his client (in confidence), following the settlement of a divorce, that the two parties have an unstated side agreement regarding distribution of the property, does the attorney have an obligation to provide such information to the other attorney or the court? Given the fact that the client was unwilling to have placed in the stipulation (already agreed to by the parties) the content of the side agreement and was unwilling to allow the attorney to advise the opposing counsel or the court of such a side agreement, is it appropriate for the attorney to immediately withdraw from the case since in the attorney’s view the stipulation signed by the parties contains inaccurate information? 05-03 Under N.D.R.Prof.Conduct 3.3(d), does an attorney have further obligations to the court of the client after withdrawing representation? 1991-03 No affirmative obligation to report ex-client's perjury. 1995-14 A lawyer who innocently obtains a copy of a confidential settlement agreement from the lawyer representing one of the settling parties may, without violating Rule 1.6, retain the document for possible use in related litigation. 1994-04 An attorney's obligations under the NDRPC, if any, arising from a telephone conversation with a former employee of the attorney's client in which the former employee indicated that while still an employee he gave false deposition testimony in litigation involving the attorney's client are dependent upon whether the lawyer knows or comes to know that the deposition testimony was false, whether the evidence has been offered by the attorney, whether the evidence is material, and whether the former employee can be considered the attorney's client in the pending litigation. 1995-13 A lawyer's client, the defendant in a hearing to modify child support, provided certain financial information to the Court. The information was correct at the time of the hearing, but before the Court's memorandum decision was issued, the defendant's client got a new job with potential for overtime. Since the evidence was not false when offered, even though the facts had changed, the lawyer does not have a duty of disclosure to the court or the other party. 15-04 Defendant, despite receiving notices from Court and Public Defender, fails to appear at a scheduled hearing. At the hearing, Court asks Public Defender what contacts have occurred between Public Defender and Defendant. State’s Attorney then charges Defendant with bail jumping. Rule 3.4 Fairness to Opposing Party and Counsel1995-07 To determine when and how certain disclosures of information, such as statements and photographs, must be made by an attorney responding to discovery proceedings necessitates reference, application and interpretation of specific rules of civil procedure dealing with discovery. 2000-05 A prosecutor is a minister of justice not simply that of an advocate. Rule 3.8 N.D.R. Prof Conduct. A prosecutor represents the governmental entity distinct from its officials or employees. Rule 1.18(a) N.D.R. Prof Conduct. An attorney would not violate Rule 4.2 N.D.R. Prof Conduct if they should speak to a police officer about a case, in which they are representing a defendant, not withstanding the prosecutor's written notice prohibiting ex-parte contact provided, the attorney properly identifies himself and his involvement in the case as required by Rule 4.3 N.D.R Prof Conduct and does not try to improperly influence the witness as prohibited by Rule 3.4 N.D.R Prof Conduct. 15-07 An attorney's appearance for a party may only be withdrawn upon leave of court. An attorney must file the case, incur the cost of a filing fee, and bring a motion for leave to withdraw. Withdrawal without leave of court would be in violation of Rule 3.4(c), N.D.R. Prof. Conduct: Fairness of Opposing Party and Counsel, and Rule 3.4(c), N.D.R.Ct: Withdrawal of Attorneys. Rule 3.5 Impartiality and Decorum of the TribunalRule 3.6 Trial Publicity1995-09 A proposed statewide publication seeking information from the public in connection with a medical malpractice case does not violate Rule 3.6, in part because the publication would not create a serious or imminent threat of materially prejudicing an adjudicative proceeding. The attorney seeking to use the publication should, however, consider Rules 4.1 through 4.4 (transactions with persons other than clients) and Rule 7.1 (communications concerning the services of a lawyer) and the applicability of each. Rule 3.7 Lawyer as Witness08-04 Is Attorney A required to disqualify him/herself from further representation of employee when numerous other persons employed by the law firm possess knowledge of the same facts as Attorney A, moreover, when such other persons possess knowledge of additional facts of which Attorney A does not have knowledge, and additional facts of which Attorney A would not have had knowledge had he/she not represented employee. 2001-04 Where Attorney A employs Attorney B in his law firm, Attorney A may represent Attorney B's mother-in-law, Jane Doe, in her divorce, so long as he is not precluded from doing so by a conflict of interest. Determining whether a conflict exists is the attorney's responsibility. The Committee did not offer guidance on the conflict question because Attorney A did not identify a conflict in the facts presented. The Committee did, however, identify potential conflicts that may arise that should be considered by Attorney A before continuing the representation. Rule 1.7's requirement of client consent may apply, but if Attorney A determines that the representation of Jane Doe will not be adversely affected because the law firm has no responsibilities to John Doe and there is no issue as to Attorney B's own interest as a family member, there is no need to secure Jane Doe's consent to representation. Based on the limited facts provided, the committee could not determine whether Attorney B is a necessary witness and Attorney A could be disqualified on that basis. Finally, if there is a conflict of interest involving Attorney B, the committee is of the opinion that "insulating Attorney B" or erecting "a loose Chinese wall" would have no effect under the ruling in Heringer v. Haskell, 536 N.W. 2d 362 (N.D. 1995). 1988-01 Scope of representation ethically required of an attorney when accepting the representation, either under contract or by private retention of a client in a DUI criminal matter? 1993-13 Attorney may continue representation of client even thought his partner may be called as a witness in the case provided no conflict of interest exists. 15-04 Defendant, despite receiving notices from Court and Public Defender, fails to appear at a scheduled hearing. At the hearing, Court asks Public Defender what contacts have occurred between Public Defender and Defendant. State’s Attorney then charges Defendant with bail jumping. Rule 3.8 Special Responsibilities of a Prosecutor1997-01 A states attorney, or other attorneys in his office, are not disqualified from prosecuting a criminal charge against an attorney who actively represents criminal defendants in the same court in which both the states attorney and the attorney-defendant practices. If, however, the states attorney subjectively believes that he, or any other attorneys in his office, has an actual conflict of interest, he should disqualify himself. 1995-02 A city prosecutor can ethically dismiss a criminal case initiated by an individual's complaint which was allowed by the municipal judge, when requested by the city council due to the cost of paying for court-appointed counsel. Pursuant to case law, a prosecutor's "duty" to initiate prosecution does not arise by the mere submission of a sworn complaint, but only upon the prosecutor's decision, after due inquiry and consideration, that a criminal charge is proper under the circumstances. The prosecutor must exercise discretion and professional judgment in deciding whether to initiate prosecution. The prosecutor may, in certain circumstances and for good cause consistent with the public interest, decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction. The prosecutor may also forego legitimate charges already brought in an effort to save the time and expense of trial. Thus, the Committee was of the opinion that the decision of whether to prosecute the criminal complaint lies with the city attorney. His actions cannot be controlled by the city council in its desire to save the cost of court-appointed counsel. However, in making the determination, the prosecutor is entitled to consider the public interest as well as the time and expense of trial. 2000-05 A prosecutor is a minister of justice not simply that of an advocate. Rule 3.8 N.D.R. Prof Conduct. A prosecutor represents the governmental entity distinct from its officials or employees. Rule 1.18(a) N.D.R. Prof Conduct. An attorney would not violate Rule 4.2 N.D.R. Prof Conduct if they should speak to a police officer about a case, in which they are representing a defendant, not withstanding the prosecutor's written notice prohibiting ex-parte contact provided, the attorney properly identifies himself and his involvement in the case as required by Rule 4.3 N.D.R Prof Conduct and does not try to improperly influence the witness as prohibited by Rule 3.4 N.D.R Prof Conduct. Rule 3.9 Advocate in Nonadjudicative ProceedingsIV. TRANSACTIONS WITH OTHERSRule 4.1 Truthfulness in Statements to Others
1994-04
An attorney's obligations under the NDRPC, if any, arising from a telephone conversation with a former employee of the attorney's client in which the former employee indicated that while still an employee he gave false deposition testimony in litigation involving the attorney's client are dependent upon whether the lawyer knows or comes to know that the deposition testimony was false, whether the evidence has been offered by the attorney, whether the evidence is material, and whether the former employee can be considered the attorney's client in the pending litigation.
1995-05 A statewide publication by an attorney seeking information from the public in connection with a medical malpractice case was deemed improper under Rule 4.1 because the proposed publication contained a false and misleading statement and was otherwise misleading. Rule 4.2 Communication with Person Represented by Counsel
09-06
What ethical limitations arise when an attorney communicates with a child of a client in matters of custody disputes?
09-04 Can an attorney serving in the capacity as a bankruptcy trustee make direct contact with a debtor who is represented by legal counsel? 1996-12 Rule 4.2 does not prohibit ex parte communications with unrepresented, former county officials of an opposing government agency. Whether questions to an unrepresented, former county official of a represented, opposing government agency are appropriate requires an application of all the ethical rules, not just Rule 4.2, to the specific questions and factual circumstances. 1996-10 Rule 4.2 of the North Dakota Rules of Professional Conduct prohibits an attorney from communicating about the subject matter of his or her representation with a party the attorney knows to be represented by another lawyer in the matter, unless the attorney has the consent of the other lawyer or is authorized by law to do so. The Rule does not prevent one party from communicating with another. An attorney does not have a duty to demand that the client refrain from contacting the adverse party. While there are circumstances under which an attorney may be required to advise the client to make direct contact with the adverse party, an attorney may not attempt to violate the Rule through the subterfuge of assisting or inducing the client to contact the adverse party as the attorney's alter ego. 1989-04 Direct contact with client of opposing attorney. 1995-06 After being advised that a government agency is represented by retained counsel and after being directed by the agency or by the retained counsel that all communications should be directed through retained counsel, a lawyer may have direct contact with an employee of a government agency only if 1) the contact concerns a matter unrelated to the matter for which the agency has retained counsel, or 2) the contact is made with an employee who does not have the power to bind the agency, who does not have responsibility for making decisions in the matter for which the agency has retained counsel, whose acts or omissions are not the subject of the matter for which the agency has retained counsel, and whose acts or omissions could not be imputed to the agency for purposes of criminal or civil liability. 1993-15 The client must communicate the fact of discharge to his or her attorney, not the newly retained attorney. A new attorney taking on a case previously handled by another attorney must ensure that the client has terminated the former attorney. A retaining lien is not a per se violation of the Rules of Professional Conduct, however, the circumstances of each case must be assessed by the attorney to determine whether the ethical obligations of the attorney to protect the former client's interest would require the attorney to forego the assertion of the retaining lien. An attorney should forgo the right to enforce a retaining lien on a client's papers when the former client lacks the means to pay the lawyer's fee or to provide adequate security and has an urgent need for the papers to defend a criminal prosecution or to assert or defend a similarly important personal liberty. 1993-10 A state's attorney may not communicate with a defendant concerning a pending criminal matter without the presence or consent of the defendant's attorney, when the communication is requested by the defendant after his attorney advised him not to do so. 1992-13 Contacting former employees of an adverse corporate party. 1992-04 Communication with insurance company representative by claimant's attorney without prior approval of defense counsel. 1989-11 Direct contact with employees of opposing party. 1987-14 Unauthorized practice of law - Worker's Comp. claims analyst. 2000-05 A prosecutor is a minister of justice not simply that of an advocate. Rule 3.8 N.D.R. Prof Conduct. A prosecutor represents the governmental entity distinct from its officials or employees. Rule 1.18(a) N.D.R. Prof Conduct. An attorney would not violate Rule 4.2 N.D.R. Prof Conduct if they should speak to a police officer about a case, in which they are representing a defendant, not withstanding the prosecutor's written notice prohibiting ex-parte contact provided, the attorney properly identifies himself and his involvement in the case as required by Rule 4.3 N.D.R Prof Conduct and does not try to improperly influence the witness as prohibited by Rule 3.4 N.D.R Prof Conduct. 1995-01 A lawyer representing a client in a matter adverse to a party that is represented by another lawyer may, without violating Rule 4.2, communicate about the subject of the representation with persons employed by that party or by the same company as that party. It would be improper, however, to use that person as a conduit to communicate with the represented party. 1990-03 Can reporting be postponed until proceeding is concluded and is failure of judge and other lawyers to report the misconduct a violation that must be reported? Rule 4.3 Dealing with Unrepresented Person
09-06
What ethical limitations arise when an attorney communicates with a child of a client in matters of custody disputes?
1992-01 Obligation of IV-D attorneys to clearly state his or her role of representing the State, not the obligor or obligee, in matters of child support enforcement. 2000-05 A prosecutor is a minister of justice not simply that of an advocate. Rule 3.8 N.D.R. Prof Conduct. A prosecutor represents the governmental entity distinct from its officials or employees. Rule 1.18(a) N.D.R. Prof Conduct. An attorney would not violate Rule 4.2 N.D.R. Prof Conduct if they should speak to a police officer about a case, in which they are representing a defendant, not withstanding the prosecutor's written notice prohibiting ex-parte contact provided, the attorney properly identifies himself and his involvement in the case as required by Rule 4.3 N.D.R Prof Conduct and does not try to improperly influence the witness as prohibited by Rule 3.4 N.D.R Prof Conduct. 1997-07 An attorney's continued representation of a trustee would result in a disqualifying conflict of interest arising to a widow and children as present or former clients under Rules 1.7 and 1.9 if it was determined that the representation of the wife in the estate planning process, or in the probating of the settlor's estate, or in the prior representation of the widow and children on various matters, involved matters that may be related to a pending controversy. 1995-05 A statewide publication by an attorney seeking information from the public in connection with a medical malpractice case was deemed improper under Rule 4.1 because the proposed publication contained a false and misleading statement and was otherwise misleading. 1995-01 A lawyer representing a client in a matter adverse to a party that is represented by another lawyer may, without violating Rule 4.2, communicate about the subject of the representation with persons employed by that party or by the same company as that party. It would be improper, however, to use that person as a conduit to communicate with the represented party. Rule 4.4 Respect for Rights of Third PersonsV. LAW FIRMS AND ASSOCIATIONSRule 5.1 Responsibility for an Associated Lawyer's Compliance with Rules
2001-04
Where Attorney A employs Attorney B in his law firm, Attorney A may represent Attorney B's mother-in-law, Jane Doe, in her divorce, so long as he is not precluded from doing so by a conflict of interest. Determining whether a conflict exists is the attorney's responsibility. The Committee did not offer guidance on the conflict question because Attorney A did not identify a conflict in the facts presented. The Committee did, however, identify potential conflicts that may arise that should be considered by Attorney A before continuing the representation. Rule 1.7's requirement of client consent may apply, but if Attorney A determines that the representation of Jane Doe will not be adversely affected because the law firm has no responsibilities to John Doe and there is no issue as to Attorney B's own interest as a family member, there is no need to secure Jane Doe's consent to representation. Based on the limited facts provided, the committee could not determine whether Attorney B is a necessary witness and Attorney A could be disqualified on that basis. Finally, if there is a conflict of interest involving Attorney B, the committee is of the opinion that "insulating Attorney B" or erecting "a loose Chinese wall" would have no effect under the ruling in Heringer v. Haskell, 536 N.W. 2d 362 (N.D. 1995).
Rule 5.2 Responsibilities of a Subordinate LawyerRule 5.3 Responsibilities Regarding Nonlawyer Assistants
2001-02
An attorney who has been suspended from the practice of law may act as a paralegal, legal assistant, or other type of support staff to a licensed attorney, so long as the suspended attorney complies with the strictures of In re Application of Christenson, 215 N.W. 2d 970 (N.D. 1974), and Rule 5.3 of the North Dakota Rules of Professional Conduct. A suspended attorney may not act as in-house counsel or otherwise provide legal services in any manner to a corporation without violating Rule 5.5 of the North Dakota Rules of Professional Conduct. A suspended attorney may not act as a guardian ad litem under §§ 14-09-06.4 and 30.1-28-03 of the North Dakota Century Code, but the committee was not able to answer the question whether the suspended attorney may otherwise act as a guardian ad litem. A suspended attorney may act as a mediator if the attorney is listed on the roster of qualified mediators pursuant to Rule 8.9 of the North Dakota Rules of Court, but the committee was not able to answer the question whether this suspended attorney may otherwise act as a mediator.
1990-09 Listing Certified Legal Assistants on law firm letterhead. 1992-07 Clarification of acts that may be performed by an attorney under suspension. Rule 5.4 Professional Independence of a Lawyer
2000-11
An attorney may not enter into a contractual relationship with an out-of-state firm for the referral of cases that come to the out-of-state firm via the Internet. Under the proposed agreement the out-of-state firm was to receive 33 percent of any contingent, or 20 percent of any hourly fees the North Dakota attorney would earn from any case referred. The Committee found that the proposed agreement did not require a division of fees proportionate to the services performed by each attorney as required by Rule 1.5(e) N.D.R. Prof. Conduct, nor did the agreement require the out-of-state firm to assume joint responsibility for any representation arising from the referral as required in subsection (1) of paragraph (e). Consequently, the agreement violated the requirements of Rule 1.5 (e)(1), and the attorney could not enter the contractual relationship.
2000-09 An attorney would violate Rule 5.4(d) and Rule 5.5(b) of the North Dakota Rules of Professional Conduct if the attorney became a salaried employee of a title company and for that title company the attorney reviewed abstracts, prepared title opinions and title insurance, and drafted deeds and other title documents (for which the buyers and sellers of the property would be charged predetermined fees) unless either: 1) the services performed by the attorney related solely to transactions in which the title company was a party; or 2) the title company was wholly owned by licensed attorneys, all officers and directors of the title company were licensed attorneys, and the only persons with the right to control and direct the attorney's professional judgment were licensed attorneys. This opinion is strictly limited to questions asked by the attorney concerning prospective employment as a salaried employee. The Committee was not asked for, and did not express, any opinion as to the propriety of the present arrangement the attorney has with the title company. 1996-13 To the extent that payments to a nonlawyer entity operating an electronic information exchange between law firms and insurance companies, capped at ten percent of the attorneys' fees generated in any case, constituted fee sharing in exchange for the privilege of access to the system and serving as designated North Dakota counsel in the nonlawyer's system of referring attorneys to insurance companies, not ordinary firm expenses, these payments would constitute improper fee sharing under Rule 5.4(a) of the NDRPC. 1993-03 Can a North Dakota attorney form a partnership with a lawyer licensed only in another state, but admitted to the federal bar in North Dakota? 1992-17 Whether an attorney may establish a professional service corporation in which he would act as both a licensed real estate broker and a licensed attorney? 1993-01 Can attorney share legal fees with a person whose license to practice law has been suspended? 1989-08 Fee sharing arrangement with non-attorney. 1987-12 Out of state law firm maintaining office in N.D. 13-01 Can an attorney use services of an outside collection agency or a third party recovery service to collect outstanding client accounts receivable before litigation is filed, after litigation is filed, and after judgment is entered? 15-03 Can a revocable living trust own stock in a professional corporation authorized to practice law for a profit, if at least one of the trustees is a licensed attorney? Rule 5.5 Unauthorized Practice of Law
2005-02
Is it permissible to maintain a collaboration with out-of-state lawyers, and are referrals to an attorney-owned law related enterprise permissible under the North Dakota Rules of Professional Conduct?
07-01 Does Rule 5.5(e) of the North Dakota Rules of Professional Conduct prohibit administrative law judges from allowing a non-attorney to represent the interests of a corporation at administrative hearings? 84-39 Guidelines for debt collection agencies and creditor's collection attempts. 2001-02 An attorney who has been suspended from the practice of law may act as a paralegal, legal assistant, or other type of support staff to a licensed attorney, so long as the suspended attorney complies with the strictures of In re Application of Christenson, 215 N.W. 2d 970 (N.D. 1974), and Rule 5.3 of the North Dakota Rules of Professional Conduct. A suspended attorney may not act as in-house counsel or otherwise provide legal services in any manner to a corporation without violating Rule 5.5 of the North Dakota Rules of Professional Conduct. A suspended attorney may not act as a guardian ad litem under §§ 14-09-06.4 and 30.1-28-03 of the North Dakota Century Code, but the committee was not able to answer the question whether the suspended attorney may otherwise act as a guardian ad litem. A suspended attorney may act as a mediator if the attorney is listed on the roster of qualified mediators pursuant to Rule 8.9 of the North Dakota Rules of Court, but the committee was not able to answer the question whether this suspended attorney may otherwise act as a mediator. 2000-09 An attorney would violate Rule 5.4(d) and Rule 5.5(b) of the North Dakota Rules of Professional Conduct if the attorney became a salaried employee of a title company and for that title company the attorney reviewed abstracts, prepared title opinions and title insurance, and drafted deeds and other title documents (for which the buyers and sellers of the property would be charged predetermined fees) unless either: 1) the services performed by the attorney related solely to transactions in which the title company was a party; or 2) the title company was wholly owned by licensed attorneys, all officers and directors of the title company were licensed attorneys, and the only persons with the right to control and direct the attorney's professional judgment were licensed attorneys. This opinion is strictly limited to questions asked by the attorney concerning prospective employment as a salaried employee. The Committee was not asked for, and did not express, any opinion as to the propriety of the present arrangement the attorney has with the title company. 1993-04 Can an attorney who is not licensed in North Dakota act as general counsel for a North Dakota corporation? 1992-02 Distribution of living will forms to public. 1984-01 Ethical collection procedures. 1992-07 Clarification of acts that may be performed by an attorney under suspension. 2015-02 Attorney has been granted a temporary law license for the state of North Dakota. As a requirement for the temporary license, Attorney must affiliate with a licensed associate attorney. In this case, Attorney and Associate Attorney do not work in the same firm. Attorney has a solo practice. Recently, Attorney met with a potential client regarding a family law issue. During the interview, Potential Client disclosed he previously met with Associate Attorney, who declined representation due to a conflict of interest. The Ethics Committee has been asked to render its opinion on whether it is permissible for Attorney, practicing under a temporary license, to represent a client when Associate Attorney is unable to do so because of a conflict of interest. Attorney also inquired whether he/she is able to represent Potential Client if that case does not involve filing any pleadings with a North Dakota Court. 15-02 An attorney practicing under a temporary license may not represent a client when his/her designated Associate Attorney is unable to represent that same client due to a conflict of interest, absent informed consent. The same is true for cases where no pleadings are filed in a North Dakota Court on behalf of the client. Rule 5.6 Restrictions on Right To Practice Rule
1997-05
The test of the propriety of a settlement provision under Rule 5.6(b) is whether the restriction would restrain a lawyer's exercise of independent judgment on behalf of other clients to an extent greater than that of an independent attorney not subject to such a limitation. Under that test, at a client's request, an attorney may agree: 1) to keep confidential the amount and terms of the settlement, provided this information is not a matter of public record; 2) to keep confidential the fact of the lawsuit and settlement or any other information to the extent that information constitutes confidential client information under Rule 1.6; and 3) to return to the opposing counsel or party documents that party produced in discovery, deposition transcripts, and correspondence between the opposing party and the attorney's client if the documents in question do not constitute attorney work product. Under Rule 5.6(b) an attorney may not agree -- even at a client's request: 1) to turn over to the opposing party or counsel documents protected by the attorney work product doctrine if that action would restrict the attorney's representation of other clients; or 2) to keep confidential information that is not confidential client information under Rule 1.6, for example, information that is a pubic record or that the attorney could otherwise obtain through channels, such as discovery, and use in subsequent cases, but for the proposed confidentiality agreement.
Rule 5.7 Responsibilities Regarding Law-Related Services
2005-02
Is it permissible to maintain a collaboration with out-of-state lawyers, and are referrals to an attorney-owned law related enterprise permissible under the North Dakota Rules of Professional Conduct?
2001-03 A lawyer providing law-related services such as a tax business is subject to the North Dakota Rules of Professional Conduct. Under its procedures, the committee will not address issues related to past practice. Targeted mailings are not prohibited by the Rules of Professional Conduct so long as those mailings are not false or misleading. No distinction can be made between a client's file in electronic or paper format with respect to the ethical obligation to provide information requested by the client. 2001-02 An attorney who has been suspended from the practice of law may act as a paralegal, legal assistant, or other type of support staff to a licensed attorney, so long as the suspended attorney complies with the strictures of In re Application of Christenson, 215 N.W. 2d 970 (N.D. 1974), and Rule 5.3 of the North Dakota Rules of Professional Conduct. A suspended attorney may not act as in-house counsel or otherwise provide legal services in any manner to a corporation without violating Rule 5.5 of the North Dakota Rules of Professional Conduct. A suspended attorney may not act as a guardian ad litem under §§ 14-09-06.4 and 30.1-28-03 of the North Dakota Century Code, but the committee was not able to answer the question whether the suspended attorney may otherwise act as a guardian ad litem. A suspended attorney may act as a mediator if the attorney is listed on the roster of qualified mediators pursuant to Rule 8.9 of the North Dakota Rules of Court, but the committee was not able to answer the question whether this suspended attorney may otherwise act as a mediator. 1998-07 A lawyer/agent may sell insurance and other estate planning products to law clients, or may sell insurance through a separate entity controlled by the lawyer individually or with others. However, whether an individual lawyer's conduct complies with the Rules of Professional Conduct is fact specific. Thus, a lawyer choosing to offer such law-related services must fully inform his clients and take special and careful steps to comply with the many rules of professional conduct applicable to such dual activities. 19-02 Can attorney employed in a non-attorney capacity by the North Dakota State Court system as a case officer also engage in liited practice of law related to real property? 19-03 Is a licensed active lawyer, who is not currently practicing law, and who is a licensed real estate salesperson actively working as a real estate agent, bound by the North Dakota Rules of Professional Responsibility? VI. PUBLIC SERVICERule 6.1 Pro Bono Public Service
15-02
Attorney practicing under a temporary licenses may not represent a client when his/her designated Associate Attorney is unable to represent that same client due to a conflict of interest, absent informed consent. The same is true for cases where no pleadings are filed in a North Dakota Court on behalf of the client.
Rule 6.2 Appointment by a TribunalRule 6.3 Membership in Legal Services OrganizationRule 6.4 Law Reform Activities Affecting Client InterestsVII. INFORMATION ABOUT LEGAL SERVICESRule 7.1 Communications Concerning the Services of a Lawyer or Persons Professionally Associated with the Lawyer08-02 Can attorneys advertise or market themselves as “Super Lawyers” as designated by Minnesota Law and Politics? 1997-11 A lawyer may advertise the lawyer's services through the placement of the lawyer's business card or brochure in the reception area of an office of a chiropractor or physician. Consistent with Rule 7.1 (a) of the NDRPC, a lawyer must ensure that any written communication is neither false nor misleading. As a general practice, this Committee will not pre-approve a brochure or other similar documents. However, the Committee will address specific questions a lawyer may have regarding the application of Rule 7.1 (a) to a specific portion of a written communication. 1987-02 Advertising to discover other persons injured in manner similar to client. 1993-05 Does a specific divorce advertisement violate the rules of professional conduct? 1992-19 Can an attorney utilize direct mail to contact prospective clients? 1992-15 Can an attorney use direct mail targeted to former clients and potential clients to advise them of the attorney's new licensure in another state and of an expansion of the law firm? 1992-09 Advertising of mediation services by lawyers in a firm. 1988-04 Sending of a newsletter to non-clients. 1984-03 Listing areas of specialization. 1984-02 Placement of attorney's photograph in Yellow Pages advertising. 1989-05 Advertising as both an attorney and CPA. 2001-03 A lawyer providing law-related services such as a tax business is subject to the North Dakota Rules of Professional Conduct. Under its procedures, the committee will not address issues related to past practice. Targeted mailings are not prohibited by the Rules of Professional Conduct so long as those mailings are not false or misleading. No distinction can be made between a client's file in electronic or paper format with respect to the ethical obligation to provide information requested by the client. 1998-06 The Ethics Committee can provide only limited guidance on content of lawyer advertising. A majority of the Committee opined that a firm's proposed advertisement was not misleading as to the number of cities in which the firm has offices. 1993-09 Whether settlement offer from defendants which includes condition that plaintiffs waive their right to ask for attorney's fees and costs under 42 U.S.C. 1988 creates a conflict of interest for the attorney and whether the attorney is foreclosed from rejecting the offer. 1992-02 Distribution of living will forms to public. 2000-03 With regard to a question involving the advertisement of a jury verdict in the telephone yellow pages, the committee opined that it can provide only limited guidance to lawyers concerning the content of their advertising. It is a lawyer's responsibility to ensure that an advertisement does not contain a material misrepresentation or omission. The opinion suggested that a caveat stating, "References to past performance were no guarantee of future results," was the proper approach to avoid a misleading communication. However, the use of the phrase "Largest Verdict" without indication of the jurisdiction or that it pertained to the lawyer's client, could be misleading. The committee was also concerned a statement regarding settlements in dollars could be misleading because of the difficulty in substantiating the settlement amounts and the circumstances of the settlement. 1999-02 Attorney advertising or solicitation on a web page is governed by the same rules which generally apply to attorney advertising or solicitation by more traditional methods. Rule 7.2 Firm Names and Letterheads08-06 Under N.D.R.Prof.Conduct 7.2(d), can a law firm participate in a "lawyer referral service" whereby the law firm would pay an annual fee in exchange for the "lawyer referral service" performing advertising and marketing services to employees of a medical entity? 05-05 Do printed materials distributed at general estate planning seminars comply with the language of Rule 7.3, N.D.R. Prof. Conduct? 06-01 Do the North Dakota Rules of Professional Conduct permit participation in a lawyer referral service in which participating lawyers receive referrals from a nonprofit corporation on the condition that the lawyers list themselves in a third-party directory and pay fees to a third party for each referral that results in an attorney-client engagement? 1983-01 Propriety of placement of professional degree or title on attorney letterhead. 1987-08 Handling of legal activities of deceased attorney. 1985-02 Professional designation on letterhead (declined opinion) 1987-07 Law firm name. 1991-11 Holding insurance license and license to practice law simultaneously. 1993-03 Can a North Dakota attorney form a partnership with a lawyer licensed only in another state, but admitted to the federal bar in North Dakota? 1990-09 Listing Certified Legal Assistants on law firm letterhead. 11-06 Can a North Dakota law firm enter into an agreement with an out-of-state law firm that manages a pre-paid legal services referral? Rule 7.3 Direct Contact with Prospective Clients05-05 Do printed materials distributed at general estate planning seminars comply with the language of Rule 7.3, N.D.R. Prof. Conduct? Rule 7.4 Requesting Attorney can identify himself as a family law "specialist" in his advertising.VIII. MAINTAINING THE INTEGRITY OF THE PROFESSIONRule 8.1 Bar Admission and Disciplinary Matters06-02 How do client confidentiality requirements apply when responding to a request for information from another state’s attorney discipline authority? Rule 8.2 Judicial and Legal OfficialsRule 8.3 Reporting Professional Misconduct1992-06 Reporting misconduct of another lawyer. 1997-03 A lawyer is not required to initiate proceedings against another attorney under the ND Rules of Disciplinary Procedure with respect to the unintentional release of information deemed confidential under North Dakota law by another attorney when the lawyer is convinced the release was accidental. In this case, the knowledge of the inquiring lawyer did not appear to raise a "substantial question" as to the other attorney's honesty, trustworthiness, or fitness as a lawyer in other respects. 1995-04 A lawyer who represented a North Dakota lawyer before a board of law examiners in another state is not required to report actions of the lawyer-client which resulted in the lawyer-client's application to practice being denied in the other state. Rule 8.3's exception for information protected by Rule 1.6 applies, so the inquiring lawyer is not required to report the matter to the disciplinary authority in North Dakota, even though the matter raises a substantial question as to the lawyer-client's honesty and trustworthiness. 1993-06 Requesting whether a specific fact situation triggers a duty to report. 1991-13 Article by Paul Richard titled "Lawyers as the Police of Their Own Profession: The Rule 8.3, ND Rules of Professional Conduct, Duty to Report." 1991-04 Obligation to report suspected unethical conduct of another attorney when such disclosure may be to the disadvantage of the client at the present time. 1990-05 1996-14 The act by an attorney of notarizing the signature of a spouse, unless otherwise demonstrated by the attending circumstances, does not raise a substantial question as to a lawyer's honesty, trustworthiness, and fitness as a lawyer; and therefore, it does not constitute a violation of the NDRPC which must be reported. 1998-02 An out-of-state attorney who participates in arbitration proceedings in North Dakota against a North Dakota corporation and threatens further actions against the North Dakota corporation, presumably in North Dakota, is subject to discipline in North Dakota to the extent his activities violate the North Dakota Rules of Professional Conduct. An out-of-state attorney participating in professional activities in North Dakota must comply with the North Dakota rules. A North Dakota attorney who has information suggesting ethical violations by a California attorney has no duty to report potential violations to California disciplinary authorities (California has no duty to report rule), but Rule 8.3 of the North Dakota rules may require the North Dakota attorney to initiate disciplinary proceedings in North Dakota against the California attorney. 1990-04 Restrictions on a city prosecutor from practicing in a county court. (Overturned by Committee in Ethics Opinion 93-07) 1993-13 Attorney may continue representation of client even thought his partner may be called as a witness in the case provided no conflict of interest exists. 01-05 1990-03 Can reporting be postponed until proceeding is concluded and is failure of judge and other lawyers to report the misconduct a violation that must be reported? Rule 8.4 Misconduct05-08 Can an assistant state’s attorney accept a gift received from a victim? 05-06 Doe the North Dakota Rules of Professional conduct prohibit an attorney from serving as a city council member and sitting on its Police Commission from representing criminal defendants in city cases transferred to the District Court when the cases are handled by the State’s Attorney? Can city cases by transferred to the District Court be handled by city attorney? Is the attorney prohibited from representing defendants in District Court? 1996-14 The act by an attorney of notarizing the signature of a spouse, unless otherwise demonstrated by the attending circumstances, does not raise a substantial question as to a lawyer's honesty, trustworthiness, and fitness as a lawyer; and therefore, it does not constitute a violation of the NDRPC which must be reported. 1990-02 Restrictions on attorney/legislators. 1993-13 Attorney may continue representation of client even thought his partner may be called as a witness in the case provided no conflict of interest exists. 1996-10 Rule 4.2 of the North Dakota Rules of Professional Conduct prohibits an attorney from communicating about the subject matter of his or her representation with a party the attorney knows to be represented by another lawyer in the matter, unless the attorney has the consent of the other lawyer or is authorized by law to do so. The Rule does not prevent one party from communicating with another. An attorney does not have a duty to demand that the client refrain from contacting the adverse party. While there are circumstances under which an attorney may be required to advise the client to make direct contact with the adverse party, an attorney may not attempt to violate the Rule through the subterfuge of assisting or inducing the client to contact the adverse party as the attorney's alter ego. 14-02 Based on the facts presented below, Attorney would not be able to live and use medical marijuana prescribed by a physician in Minnesota while being licensed to practice law in North Dakota. The conduct would be a violation of N.D.R. Prof. conduct 8.4(b). 19-03 Is a licensed active lawyer, who is not currently practicing law, and who is a licensed real estate salesperson actively working as a real estate agent, bound by the North Dakota Rules of Professional Responsibility? Rule 8.5 Jurisdiction1998-02 An out-of-state attorney who participates in arbitration proceedings in North Dakota against a North Dakota corporation and threatens further actions against the North Dakota corporation, presumably in North Dakota, is subject to discipline in North Dakota to the extent his activities violate the North Dakota Rules of Professional Conduct. An out-of-state attorney participating in professional activities in North Dakota must comply with the North Dakota rules. A North Dakota attorney who has information suggesting ethical violations by a California attorney has no duty to report potential violations to California disciplinary authorities (California has no duty to report rule), but Rule 8.3 of the North Dakota rules may require the North Dakota attorney to initiate disciplinary proceedings in North Dakota against the California attorney. 1991-08 An association of attorneys, practicing in Minnesota as a limited partnership, wants to also practice in N.D. as a limited partnership. 1987-06 Request from Honorable Jon Kerian declined because it was outside the scope of the committee. |
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