JANUARY 2005 • VOLUME 52, NUMBER 1
CALENDAR OF EVENTS &
CLE SEMINARS
February 18, 2005
FREE Ethics IVN
Various Interactive Video Sites in ND
March 12, 2005
Board of Governors Meeting
SBAND Office, Bismarck
Every Friday thru March 11, 2005
Legislative Committee
SBAND Office, Bismarck
March 18, 2005
Joint Attorney Standards Committee
March 25, 2005
Joint Attorney Standards Committee
March 24-26, 2005
SBAND CLE & Sun
Belize
April 8, 2005
Joint Attorney Standards Committee
April 8, 2005
Medical Legal Seminar
Ramkota, Bismarck
April 15, 2005
Bankruptcy IVN
Various Interactive Video Sites in ND
April 20-22, 2005
April 26-28, 2005
UND Civil Mediation Training
SBAND Office, Bismarck
Official Publication of the State Bar Association of North Dakota
FEATURES
SBAND President Sherry Mills Moore Sees A Year of Challenges, Opportunity . . . . . . . . . . . . .2
2004 Annual Meeting Recap
O’ Pioneers! Theme Honors North Dakota’s Legal Heritage . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
New UND Law School Dean Paul LeBel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
C.B. Little House – New Home for SBAND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Tribute: Jay Fiedler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Tribute: James (Jim) P. Rausch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
SBAND Membership Survey – Chapter Three: Member Demographics . . . . . . . . . . . . . . . . . .28
Rules Allow Interactive Video Use in Criminal, Civil Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
DEPARTMENTS
TECHNICAL ADVICE
Ask A Computer Expert by Attorney Joe Aas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
HUMOR, ANYONE?
High Anxiety by Nick Simonson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
ABA REPORT
From Civil Discovery Standards to Liability Insurance Disclosure by Jim Hill . . . . . . . . . . . .23
Ethics/Discipline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
News & Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
May 6, 2005
2005 Legislative IVN
Various Interactive Video Sites in ND
April 22, 2005
Board of Governors Dinner
State Bar Association of North Dakota Officers
President: Sherry Moore, Bismarck
President-Elect: Michael Williams, Fargo
Secretary-Treasurer: Timothy P. Hill, Fargo
Immediate Past President: Maureen Holman, Fargo
ABA Delegate: James S. Hill, Bismarck
April 23, 2005
Board of Governors Meeting
SBAND Office, Bismarck
April 30, 2005
Run For Justice
Sertoma Park, Bismarck
June 14-17, 2005
SBAND Annual Meeting
Ramkota, Bismarck
June 14, 2005
Joint Attorney Standards Committee
All dates subject to change.
P.O. Box 2136
Bismarck, ND 58502
701-255-1404
Toll free: 1-800-472-2685
www.sband.org
Board of Governors:
William Herauf, Dickinson; Lawrence E. King, Bismarck;
David L. Petersen, Grafton; Alexander Reichert, Grand Forks;
Paul Richard, Fargo; Cynthia Schaar, Jamestown; Jason Vendsel, Minot;
Paul LeBel, Dean, Grand Forks
The Gavel is published by the State Bar Association of North Dakota
504 N.Washington St., Bismarck, ND 58501
E-mail the Bar: [email protected]
Statements or opinions expressed herein are those of the authors, and do not necessarily reflect those of the State Bar Association of
North Dakota, its officers, Board of Governors or staff. No endorsement of any product or service offered by any advertisement is
intended or implied by publication in The Gavel. Contributions to The Gavel are welcome, but the right is reserved to select material
to be published. All members of the Association receive The Gavel as part of their annual fees. Annual subscription price to nonmembers is $25. Third class postage paid at Bismarck, North Dakota, 58502.
The Gavel
January 2005
1
MEET YOUR PRESIDENT
SBAND President Sherry Mills Moore
Sees a Year of Challenges, Opportunities
speakers at the annual meeting CLE’s? That
diversity follows us around for every service
we provide but pretty much assures that we
can’t please everybody all the time. The
challenge is to get close.
Sherry Mills Moore is no stranger to the
State Bar Association of North Dakota. She
began her term as president in June, after
many years of service to SBAND on several
committees and sections. She is a past member of the Board of Governors, and her committee involvement has included ethics, joint
procedures, judicial conference, legislative and
case flow management. She also chairs the
Gavel Editorial Board.
In previous years she chaired the Family
Law Task Force, Legislative Interim
Committee for Family Law, Ad Hoc
Committee on Family Law, Editorial Board,,
Lawyer Referral Committee, Women’s Section
and Family Law Section of. She has been a
SBAND volunteer lobbyist for the past 10
years and has presented a number of CLEs on
family law, legislative updates and ethics. In
2000, she was the volunteer Lawyer of the Year
for the Big Muddy Bar Association.
Sherry is a solo practitioner in Bismarck,
concentrating her practice almost exclusively
on family law. She is active in the community
as a board member of the Mental Health
Association of North Dakota, Prevent Child
Abuse North Dakota, the president of the
Bismarck Library Board and chair of the
Mayor’s Task Force on Methamphetamine.
Sherry and her husband, Tim, are parents
of two college-age children, Katie and Charlie.
Below she shares some of her observations
about law, leadership and life’s lessons
learned.
SBAND’s greatest challenges – Because our
members are so diverse, the greatest challenge
is to continue to be relevant to each of our
members. Just as an example, the continuing
education needs of corporate counsel are very
different from those of the plaintiff’s trial
lawyer. How do we find common ground for
2
Issues on which to focus – My goal this year
is to make sure that the committees and sections are healthy and active.Vibrant committees and sections expand the association’s
resources and assure that it is “in touch” with
what is happening in the field, so to speak.
The membership gave us what we wanted, a
dues increase, so the executive director can be
adequately staffed which means, in turn, the
sections and committees can get the association assistance they need. In addition, we
need to carry forward with the Indigent
Defense Task Force recommendations as well
as to implement the Lawyer Assistance
Program. That’s a full plate.
Reasons to be SBAND president – Why I
want to do something is never completely
clear to me, being more of a “following sea“
kind of person. For this honor, however, I felt
as though I had been involved in so many
committees and bar activities that I was stopping one step short of the top. I like the bar
association, which is surprising for someone
who started out loathing meetings, and I
wanted to continue to be in a leadership position with this group.
Born and raised and influence – I was born
and raised in Bismarck and became a lawyer,
again, in that “following sea” motif. I was a
teacher of disabled preschoolers in Bismarck,
but then married and
moved to Sausalito,
California, where there
were no teaching jobs. I
went to work for the Bank
of America in San
Francisco as a research
assistant to a securities
analyst. Tim and I wanted
to return to North Dakota
eventually, and I applied
to law school. It turned
out to be a perfect decision for me, but was a
far cry from deliberate.
Education – Beloit College, UND Law School
Type of Law and Why – By choice, I practice
family law. When I first started out I practiced
as a generalist doing everything from securities fraud defense to products liability, always
just a little of each. I thought I wanted to work
in commercial law, but found that given the
choice between reading an extensive (and ohso-dry) document or listening to someone tell
me of an immediate and harrowing problem,
I always gravitated towards the harrowing.
Family law has allowed me to be very independent, to focus my learning, to have a great
deal of contact with my clients and other
attorneys, all of which I like. Beyond that,
because we live where we do, I not only have
been able to work with individual problems
but to tackle systemic issues. If some part of
this system does not work, we are fortunate to
be able to do something about it – changing
rules, seeking legislation. And, I make a
decent living.
Greatest satisfaction about being a lawyer –
Finding a workable solution to a messy problem, whether through negotiation, litigation,
or just plain advice.
Greatest influence – Here I need to share the
credit/blame. My father told me I could do
anything and my mother told me I had to do
Katie, Tim, Sherry and Charlie Moore at Devils Tower.
The Gavel
January 2005
MEET YOUR PRESIDENT Continued
everything. With that deadly combination,
Marilyn Foss, my law partner of many years
helped me to understand that what I was
doing was important and honorable and
every bit as worthy as the banking law she
practiced. As Executive Director of SBAND for
many years, my good friend, Sandi Tabor has
endlessly channeled my ideas into arenas that
produce results, not just more ideas. For the
specifics of my practice, I could look for no
greater mentor than Carma Christensen.
Experience You Can Trust
Mediation and Dispute Resolution Services
Rebecca S. Thiem is a civil practice attorney with 20 years
of litigation experience with Zuger Kirmis & Smith law
firm in Bismarck. Rebecca is a qualified neutral with 30
hours of mediation training provided by the Mediation
Center for Dispute Resolution at Hamline University. She
mediates cases in all areas of civil litigation, including:
• Personal Injury • Estates
• Employment
• Commercial
Changes to the profession – One of the glaring differences is that there are so many more
woman attorneys. Early on, I had a DUI hearing in a small rural community and the room
was packed. When I asked why, they told me
that they wanted to see a woman attorney. We
are no longer novelties, but firmly engrained.
Technology has changed the practice. Before
we had to dedicate an entire room to hold our
libraries, now we need a CD case. But, then we
had only a typewriter and now we need a
scanner, printer, copier, and many computers.
Also there are far fewer generalists and more
specialists, which, I think separates us further
as a profession.
ALTERNATIVE DISPUTE RESOLUTION
Outside of law – I most enjoy being with my
family. I have a great family – husband, kids,
mom, and siblings. For fun, I love outdoor
photography, especially the wild horses at the
badlands and wildflowers; my jet ski; and,
reading. All of this is better at the lake, with
my family.
David R. Bliss has been in civil practice for
more than fifteen years. He was trained in
alternative dispute resolution at the Willamette
Law School’s Center for Dispute Resolution
in Salem, Oregon and the Conflict Resolution
Center at the University of North Dakota.
I want to be remembered – As a wise woman
who knew when to have fun.
Best advice – Don’t curse the darkness, light
a candle. Confucius, by way of my mom.
Greatest fear – Mice.
Greatest accomplishment – My children,
Katie and Charlie, although in truth they are
their own accomplishment.
ZUGER KIRMIS & SMITH
316 N. Fifth Street, P.O. Box 1695, Bismarck, ND 58502-1695
701-223-2711 • Fax: 701-223-7387
[email protected]
Areas of mediation services include:
• Personal Injury
• Contracts
• Will Contests
• Real Estate
• Family Law
• Commercial Litigation
Favorite junk food – Pizzaburger flying style
from the Big Boy.
Most treasured possession – A book, the
“Owen’s Law Quizzer” published in 1924. It
belonged to my grandmother, Ethel Mills,
when she worked for Bill Langer. It then was
my father’s and now is mine.
The Gavel
January 2005
David R. Bliss
[email protected]
P.O. Box 817, 115 North 4th Street, Bismarck, ND 58501 701-223-4524
3
2004 ANNUAL MEETING
O Pioneers! Theme Honors
North Dakota’s Legal Heritage
The 105th annual meeting of the State Bar
Association of North Dakota paid tribute to
the state’s rich legal heritage during its fourday gathering June 8-11, 2004, in Fargo. A
commemorative booklet and luncheon program brought to life several colorful stories
of early legal pioneers.
Those recognized included Cavalier
County Judge W.H. Kneeshaw; the first
woman graduate of the UND School of Law
and first female attorney admitted to the
American Bar Association Helen Hamilton;
lawyer, judge, U.S. Treasurer and Chief Justice
of the North Dakota Supreme Court John
Burke; Traill County lawyer F.W. Ames; and
lawyer, author and U.S. Representative Usher
L. Burdick.
But no story was as enthralling as that of
Gudmunder Grimson, who as state’s attorney
in Langdon in the 1920s, worked with the
Taberts family of Munich to help uncover the
answers to their son Martin Taberts’s mysterious death in Florida. In doing so, Grimson
uncovered a penal system scandal that was
to involve Florida’s Governor and Legislature,
the North Dakota Legislature, and the New
York World newspaper, which received a
Pulitzer Prize in 1923 for its reporting of the
scandal. Grimson’s dogged efforts to see that
Martin Taberts’s death was not in vain,
helped bring about national prison law
reforms. Grimson ended his distinguished
legal career as a North Dakota Supreme
Court Justice from 1949 to 1958.
A special thanks to Merrill Piepkorn, and
Merry Helm from North Dakota Public
Radio for preparing and presenting this
program.
Merrill Piepkorn at Law School luncheon.
4
The Gavel
January 2005
2004 ANNUAL MEETING
Annual Meeting Programs
Provide CLE Credits
Lawyers attending the annual meeting
had an opportunity to earn CLE credits for a
variety of legal issues.
“Medicaid Planning, Family Law, Federal
Indian Law and Access to Legal Services”
was presented by Legal Services of North
Dakota.
Martin Latz, president of Latz Negotiation
Institute, a nationally acclaimed leader in
negotiation, presented “Gain the Edge!
Negotiation Strategies for Lawyers.”
Capital punishment was the theme of the
Third Annual Constitutional Symposium.
Participants were able to interact with
national death penalty scholars James
Coleman and Frank Zimring, as well as
United State Attorney Drew Wrigley, of Fargo,
and Rev. Laurie Natwick of Bismarck. The
symposium was moderated by Fargo attorney Bruce Quick.
Alex Reichert of Grand Forks presented a
session on his first-hand experience preparing for and arguing US v. Billy Jo Lara before
the U.S. Supreme Court. Edward L. Kelly,
M.D., J.D., presented a primer in Forensic
Psychiatry, which provided all civil and criminal practitioners and judges basic information on understanding the various multiple
mental health fields and their differences in
education, theory and treatment.
In its tribute to the 50th anniversary of
Brown v. Board of Education, Professor
James Coleman and members of the association portrayed the roles of counsel and the
members of the Supreme Court in the reenactment of “Cooper v. Aaron, the oral argument before the U.S. Supreme Court.” This
was the landmark 1958 case in which the
Supreme Court upheld the order of U.S.
District Judge Ronald Davies of Fargo, who
had denied the request of the Little Rock,
Arkansas, school board to suspend a plan to
desegregate the public schools. The case led
to President Dwight Eisenhower’s decision to
order federal troops to escort black children
through angry mobs to a previously all-white
high school in Little Rock.
The Gavel
January 2005
Alex Reichert presents a seminar on arguing a case
before the U.S. Supreme Court.
Martin Latz shares negotiation strategies.
Presenters at the Constitutional Symposium on Capital Punishment are left to right, Drew Wrigley, Laurie
Natwick, James Coleman, Frank Zimring and Bruce Quick.
“The Changing Faces of
Treatment” provided training
for judges and lawyers interested in becoming volunteer peer
counselors for the SBAND
Lawyer Assistance Program
and other professionals who
deal with substance abuse and
treatment issues. The program
was moderated by Deputy
Attorney General Sandi Tabor,
and presenters were Kerry
Wicks, Karen Romig Larson
and Don Wahus.
Sandi Tabor, Kerry Wicks and Don Wahus, presenters
at “The Changing Faces of Treatment” seminar.
5
2004 ANNUAL MEETING
Community Service Awards Recognize Exemplary Service by Seven Attorneys
Northeast Judicial District
Senator Thomas Trenbeath, Cavalier
During his many years of practicing law,
Thomas Trenbeath has made extensive contributions to Pembina County and the City of
Cavalier. He was in private practice in
Cavalier for 12 years before becoming
Cavalier’s City Administrator. In 2000, he was
elected to the North Dakota Senate.
A U.S. Army and Army Reserve veteran,
Tom is a past commander of the American
Legion Gainer-McAndrews Post #242. He
also has served as past master of Bathgate
Lodge #23 A.F. and A.M. His community
service has included being on the boards of
the Red River Regional Council, Cavalier
Improvement, Inc., North Dakota
Humanities Council, vice president of North
Dakota Association of Municipal Power
Systems, and president of the North Dakota
Municipal Power Agency Dakota Legislature
as senator for District 10. Recently, Tom was
elected to the American Public Power
Association Board of Directors in
Washington, D.C.
Northeast Central Judicial District
Sandra Dittus, Grand Forks
Sandra Dittus has given her time and talents to the board of directors of a number of
Grand Forks area organizations. They
include the Grand Forks Foundation for
Education, the Wesley Center for Religion,
Youth Music programs, United Campus
Ministry, PEO Chapter T, the Community
Violence Intervention Center, the Grand
Forks Chamber of Commerce, and the North
Dakota Museum of Art. She has performed
pro bono legal work for Habitat for
Humanity, and is campaign chair for United
Way.
Sandra is also a past president of the
Grand Forks County Bar.
East Central Judicial District - Craig
Campbell, Fargo
As a board member for the Fargo/West
Fargo Girl’s Hockey Association, Craig assisted in raising more than $100,000 to fund the
sanctioning of girl’s hockey as a high school
sport for the Fargo and West Fargo school
districts. He made a presentation to the
North Dakota High School Activities
6
Association in support of sanctioning girls’
high school hockey. He also organized, coordinated and managed the first Team North
Dakota Select Girls’ Hockey Team and traveled with the team to play in the Chicago
Showcase, a tournament for graduating girls
to showcase their talents for college coaches
from throughout the United States.
His other community service includes
being a board member and vice president of
the YMCA, and past lead gift chair for the
Partner of Youth Campaign for the YMCA. He
was president of the Fargo Kiwanis Club, the
Ronald N. Davies Inns of Court, and is a substitute Sunday School teacher and Salvation
Army bell ringer.
Southeast Judicial District
Wayne Jones, Lisbon
Wayne Jones practices law in Lisbon,
where he was Ransom County States
Attorney for many years, and is now a
Ransom County Commissioner.
His past and present volunteer work in the
Lisbon area includes the Boy Scouts of
America, where he is a merit badge counselor for three citizenship badges, chairman
of the advancement committee for Troop
#523, and chairman of the board of review
for advancement and Eagle Award for
Ransom County.
He has been chairman of the Backway and
Byway Committee to establish Valley Road as
a National Backway-Byway, and has helped
organize and volunteer for the Fort Ransom
Sodbusters Historical Society located at Fort
Ransom State Park.
South Central
Judicial
District
Judge Gail
Hagerty,
Bismarck
Gail Hagerty
has been
president of
the Bruce M.
Van Sickle Inn
of Court in
Bismarck,
and recently
Judge Gail Hagerty accepts her
concluded a
community service award.
term as
president of the Bismarck Rotary Club.
Her other volunteer activities include
being vice president of the Grimsrud School
PTO, the secretary of the Parent Advisory
Committee for Boy Scout Troop #2 and a
Brownie leader. She is also active in Good
Shepherd Lutheran Church as a Sunday
School teacher, confirmation group leader,
and a Stephen minister.
Randall Sickler presents the community service award to
Bob Keogh.
Southwest Judicial District
Bob Keogh, Dickinson
In addition to his private practice in
Dickinson, Bob Keogh has been active in
many civic and community services activities. He is a member of the Dickinson
The Gavel
January 2005
2004 ANNUAL MEETING
Community Band, is president of the
Dickinson Area Concert Association, vice
president of the Urban Forestry Committee,
and active in many committees within the
Dickinson Area Chamber of Commerce.
Bob has been president of the Dickinson
Hockey club, the Trinity High School Music
Boosters, the Dickinson Gymnastics club,
and was actively involved in construction of
the Dickinson Recreation Center. He is a
founding director of the Dickinson Nutrition
Services, which provides Meals on Wheels to
area residents.
As a member of St. Wenceslaus Catholic
Church, he has served on its parish council
and been its finance council president. He
has also been president of the St. Wenceslaus
school board.
Northwest Judicial District
Judge Gary Holum, Minot
Gary Holum has served on the bench for
more than three decades and is retiring at
the end of this year.
Over the years he has worked tirelessly on
numerous projects in the Minot community,
particularly on behalf of the region’s youth.
As past president of the Minot Kiwanis Club,
Gary continues to be active in its ongoing
philanthropy projects devoted to the youth of
Northwestern North Dakota.
He has been on the church council and
youth board at First Lutheran Church, and
was instrumental in expanding its youth
program. He has also been on the board of
the Minot State University Foundation, and
he is heavily involved in the planning and
implementation of Minot’s Norsk Hostfest.
Representative
Ron Carlisle Receives
the Legislative
Service Award
The Legislative Service award
recognizes a lawmaker who has
had legislative involvement at the
state or federal level, has a commitment to serving his or her constituents by actively participating
in the legislative process, and balances the principles of justice and
jurisprudence while serving the
needs of the public.
Representative Ron Carlisle of
Bismarck has served honorably
and faithfully in the North Dakota
House of Representatives since
1991. As vice chair of the House
Carlisle accepts the service award in recognition of his years
Appropriations Committee, he is a
of commitment to the state of North Dakota.
key figure in the funding of the
judiciary.
Carlisle is known as a leader in the fight for a strong and independent third
branch of government, for his respect for the judiciary, and for his warm and loyal
friendships with the judges and lawyers of North Dakota.
Time and again he has helped the third branch obtain funding for important and
necessary projects and programs such as Drug Court, as well as the major funding
for the operating budget for the Judiciary. He is known for his willingness to tackle
Judicial budget requests and successfully carry them to his fellow members of the
Appropriations Committee.
During this past interim, Carlisle was appointed to the Interim Criminal Justice
Committee and was hand-selected to the Blue-Ribbon SBAND Indigent Defense Task
Force. He served faithfully on both committees, attending all Task Force meetings. He
provided invaluable guidance on the complex fiscal issues that underlie all efforts to
reform the indigent defense system.
Special Thanks
A special thanks for a successful annual meeting to the following individuals on the
Annual Meeting Committee:
Steven McCullough, chair, Pat Monson, Shannon Gregor, Ben Thomas, Melissa
Schmalenberger, Maureen Holman, William Schlossman and Paul Richard. Margy Lee and
Diane Peterson were very helpful in collecting items for this year’s silent auction.
The meeting and silent auction would not have been possible without the dedication and
hard work by the State Bar Association staff: Christine Hogan, Jeanne Schlittenhard, Carrie
Toergerson, MeDonna Fryer, Bonnie Storbakken, Justine Schnieder and Breanna Smith.
The Gavel
January 2005
7
2004 ANNUAL MEETING
19 Members are Recognized for
40 and 50 Years of Service
This year SBAND recognizes 19 members for
their dedication and
service in the
Association that has
spanned 40 to 50 years.
They are:
40 years: Wallace D.
Berning, Minot; R. Jon
Fitzner, Valley City;
Russell F. Freeman,
Fargo; Benny A. Graff,
Bismarck; Clifford C.
Grosz, Harvey; R. Lee
Hamilton, Grand Forks;
John D. Hovey, New
Rockford; Lester S.
Ketterling, Bottineau;
Larry Kraft, Fargo;
Patrick J. Maddock,
Grand Forks; Irvin B.
Nodland, Bismarck;
Roger Schell, Bottineau;
Jan M. Sebby, Minot;
Harlan P. Weir,
Bismarck; and Wayne W.
Westund.
Benny Graff
Clifford Grosz
Lester Ketterling
50 years: Vincent A.
LaQua, Hankinson;
Thomas W. Nielsen,
Bismarck; Gordon C.
Thompson, Williston
and Ray H. Walton,
Bismarck.
Larry Kraft
Patrick Maddock
8
Harlan Weir
SBAND Honors
Marilyn Hagerty
with the Liberty
Bell Award
Since 1972, the
Association has presented
the Liberty Bell award to a
non-lawyer who strengthens
the effectiveness of the
American system of freedom
Marilyn Hagerty accepts the Liberty Bell Award.
under law through community service or education efforts.
The award is given to an individual whose actions promote an understanding of government, encourage a greater respect for law and the courts, and stimulate a deeper sense of
responsibility on the part of citizens regarding their duties as well as their rights.
The Liberty Bell is the Association’s highest honor for a non-lawyer. Past award winners
include University of Mary President Sister Thomas Welder, former clerk of the Supreme
Court Luella Dunn, businessman Harold Schafer, former Lt. Governor Lloyd Omdahl, former Governor Arthur Link and God’s Child Program founder Patrick Atkinson.
Marilyn Hagerty of Grand Forks is this year’s recipient. Working for newspapers since
she was 17, Hagerty considers them to be a way of life. She began working for the Grand
Forks Herald some 40 years ago, covering the school board proceedings for about 10 years.
To recognize this service, the board made her an honorary member.
Her long-running column has attracted a huge following of readers, with more people
often reading Hagerty’s column than anything else in the Herald.
She has written a huge array of columns on the courts, courthouse, jury service and
becoming a lawyer. These columns have been informative, spiced with humor and personal
experience. In 2000 she began following the Law School Class of 2003. She actually went to
class with the law students to find out “what it was like” to become a lawyer. In her sometimes humorous, self-deprecating way she explained the trials, tribulations and rewards of
being a law student at UND.
She almost single-handedly had Themis, the Statue of Justice, restored on top of the
Grand Forks County Courthouse. By contacting the Grand Forks County Commissioners to
ask about the statue, she drew attention to Themis no longer having the scales of justice in
her hands. Because of her interest and prodding, the Grand Forks County Commission
agreed to spend $24,000 to restore the statue.
Hagerty wrote about Federal District Judge Ronald N. Davies, and the naming of the
Federal Courthouse in Grand Forks after him. In the course of several articles, she publicized the dedication and highlighted Judge Davies’ involvement in the Little Rock Arkansas
case and the impact it had on society.
In other articles she has written about Federal Judge Rodney Webb and his impressive
citizenship ceremonies. And, in her column Hagerty gave a virtual civics lesson on jury
service and what it entails. This helped future jurors to be more at ease when being summoned for jury service.
Hagerty has helped the public understand the human side of judging, writing about
judges Lawrence Jahnke, Debbie Kleven and Joel Medd. She told of the importance of family to Judge Jahnke, especially after he was shot while presiding. She wrote about James
Odegard’s retirement as the long time Grand Forks County States Attorney and how he felt
about his role as a lawyer. The article showed his dedication to his office and profession,
and explained the function of the States Attorney’s office.
Her deep commitment over many years to explaining the law and lawyers to people has
shown the value of law and lawyers. She has brought about a better understanding and
appreciation for the state’s laws and legal system.
The Gavel
January 2005
2004 ANNUAL MEETING
Judge Bruce Bohlman
Receives Distinguished
Service Award
Since 1980, the Distinguished Service
Award has been the highest honor given by
the State Bar Association, presented only in
the years when there was a worthy recipient.
This year’s recipient, Judge Bruce
Bohlman, has a long and distinguished
record of service and achievement. He served
as an officer in the U.S. Air Force before
beginning law school in 1966. He was editor
in chief of the North Dakota Law Review, and
after graduating in 1969 practiced with the
Nilles Law Firm in Fargo. He returned to the
UND Law School to become the first full
time director of the Legal Aid Association.
Judge Bohlman traveled with law students to
Fort Totten and even defended clients in jury
trials at Belcourt.
In 1975, while continuing to teach at the
law school, he began practicing law in Grand
Forks. Because of his distinguished career,
Governor George Sinner appointed him
District Judge in 1987. Judge Bohlman has
authored several articles in the North Dakota
Law Review, and has been a speaker at various CLE and CJE seminars. A longtime judge
for the Trial Advocacy Classes at the UND
Law School, Judge Bohlman was presented
with a Life Time Achievement Award from
the law school for his service in that capacity.
Throughout his outstanding judicial
career, Judge Bohlman was a member of the
Tribal-State Committee, and chaired the
Indigent Defense Commission, the Judicial
Education Commission and the entire
Judicial Conference. He has been a longtime
active member of the Joint Procedures
Committee and the Court Services
Committee, where he assisted with the drafting of family law forms to assist in resolving
divorce disputes.
Judge Bohlman has been an innovator in
serving people. He chaired the committee
that developed the summary divorce proceedings under Rule 8.5 of the North Dakota
Rules of Court. In 2003, he wrote a grant for
the only Family Court in the state, and
through his efforts a coordinator was hired
and all the cases involving a family have
been largely consolidated before one judge to
The Gavel
January 2005
Judge Bohlman accepts the Distinguished Service Award.
avoid duplication and potentially conflicting
orders. As a director of the American
Judicature Society, Judge Bohlman assisted
in developing a jury orientation tape.
He was the presiding judge of the
Northeast Central Judicial District during the
1997 Grand Forks flood, and Judge Bohlman
rallied the judges and staff and worked with
the legal community to ensure the continuation of judicial services while the City of
Grand Forks was evacuated, including the
Grand Forks County Courthouse. He coordinated with the county commissioners to
establish judicial services in Larimore, and
operated there for many months before the
court was able to move back to Grand Forks.
While attending the National Judicial
College, Judge Bohlman was a discussion
group leader, and at the conclusion of his
tenure, his group contributed to the National
Judicial College Fund in his honor.
Judge Bohlman has been an outstanding
member of his community, serving as president of his church council and an adult education leader. He and his wife, Eunice, have
been foster parents for several Vietnamese
children who have grown into responsible
adults. They traveled to Vietnam for the wedding of one of their foster children.
Judge Bohlman has been a tremendous
resource for other judges in the district. His
advice and assistance is often sought and
freely given, and he assists with mediating
cases for other judges in addition to handling his own cases, often outside of normal
working hours.
Baird Honored as
Outstanding Committee
Chair
The chair of one of SBAND’s most
active committees, the Volunteer Lawyer
Program, is the recipient of the
Outstanding Committee Chair Award.
LaRoy Baird of Bismarck has worked
tirelessly for the Association, for the staff
and for the public that is served by the
VLP program. He never turns down a
request for help, and recently stepped in
to co-chair the 2004 Run For Justice
committee, making it the most successful run ever.
Pro Bono Awards Recognize
Community Service
A total of 125 North Dakota lawyers
donated free legal time this year to those
who would not otherwise be able afford
the civil justice system through the
SBAND Volunteer Lawyer Program
Those donating more than 85 hours to
the program are:
Robert Keogh, Dickinson, 173 hours
Paul Probst, Minot, 100 hours
Kent Morrow, Bismarck, 85 hours
9
2004 ANNUAL MEETING
2004 Silent Auction
The following individuals and organizations contributed to the silent auction that
celebrated the 20th anniversary of the Bar
Foundation:
Leslie Johnson Aldrich
Honorable Kermit E. & Carol Beth Bye
Camrud Maddock Olson & Larson, LLP
Holly Crothers
Dakota Medical Foundation
Dorsey & Whitney, LLP
Brent Gilje & Dakota Orient
Honorable Gail Hagerty &
Honorable Dale Sandstrom
Mike Halpern
Greg Hennessey
Jim Hill
Governor John Hoeven
Dale Kadlec
Mackoff Kellogg Law Firm/
Theodore Roosevelt Medora Foundation
Gary & Margaret Lee
Maring Williams Law Firm
Nilles, Hansen & Davies, Ltd.
North Dakota Supreme Court Law Clerks
Ohnstad Twichell, PC
Olson Burns Lee, PC
Pemberton Sorlie Rufer & Kershner, PLLP
Paul & Mary Jo Richard
Robert Vogel Law Office
Alice Senechal
Serkland Law Firm
State Bar Association of ND
Jacque Stockman
Thompson & Thompson
Lisa Wheeler
Wheeler Wolf Law Firm, PC
Zuger Kirmis & Smith
EXHIBITORS
Thanks to the following exhibitors at the
annual meeting:
Vaaler Insurance,
Commonwealth Law Publishers
Anne Carlsen Center for Children
Elk’s Camp Grassick
Litigation Services, Inc.
Benefit Specialists
Alerus Financial
Thomson West
ABA Members Retirement
Attorneys Liability Protection Society
LexisNexis
Guardian & Protective Services, Inc.
SBAND Volunteer Lawyers Program
Nicholas L. Bourdeau, CPA
SPONSORS
The State Bar Association thanks the
following sponsors for their participation in
the 105th annual meeting:
ABA Members Retirement
Cass County Bar Association
Attorneys Liability Protection Society
LexisNexis
Eide Bailly
MBNA
North Dakota Bar Foundation
and a grant from IOLTA
Serkland Law Firm
Administrative and Government Section
Business and Corporate Section
Family Law Section
Criminal Law Section
Legal Economics Section
Real Property Section
Women Lawyers Section
Young Lawyers Section
Taxation Section
United Printing
Norman E. Mark, Court Reporter Services
Blue Cross / Blue Shield
Diane Petersen – Yoga
North Dakota Public Radio
State Historical Society
Trial Lawyers Association of North Dakota
The Bar Foundation
reception and silent
auction was hosted
at the Vogel Law Firm
in downtown Fargo.
Other Groups Meet in Conjunction with Annual Meeting
For the first time the North Dakota States Attorney’s Association held its annual
meeting in conjunction with the SBAND annual meeting, with a total of 34 states attorneys attending.
Other organizations and sections that met included the Pattern Jury Instruction
Commission, Joint Attorney Standards Committee, Disciplinary Board of the Supreme
Court, North Dakota Bar Foundation, Young Lawyers Section, Women Layers Section,
Administrative and Government Lawyers Section, North Dakota Defense Lawyers
Meeting, Judicial Conference and the North Dakota Judges Association.
Disciplinary Board of the Supreme Court meeting.
10
The Gavel
January 2005
2004 ANNUAL MEETING
New Board of Governor Members
Mike Williams,
Elected SBAND
President-Elect
Mike Williams of
Fargo, whose practice
specializes in plaintiff 's
Mike Williams
personal injury and
cases involving the
rights of people with disabilities, is the new
president-elect of the SBAND.
A Wahpeton native, he attended the North
Dakota State College of Science, and received
his undergraduate and law degree at the
University of North Dakota.
He has served on the SBAND Board of
Governor, the North Dakota Attorney
Standards Committee, the North Dakota Bar
Foundation Board and the Ronald A. Davies
Inns of Court. A member of both the
Minnesota and North Dakota Trial Lawyers
Association, and the Association of Trial
Lawyers of America, he is currently serving
as president of the North Dakota group.
Mike is an active member of Hope
Lutheran Church in Fargo and has coached
children's basketball, football and other
sports for many years. In his free time, Mike
enjoys all sports, especially running. Mike
completed his first marathon in 1994. Mike
and his wife live in Fargo with their two children.
Cynthia Schaar, Jamestown
Cynthia Schaar is a partner in the law firm
of Merrick and Schaar, P.C. She is a 1990
UND School of Law graduate and has practiced in Jamestown ever since.
Her areas of practice include family law
and estate planning, and she is a certified
mediator and custody investigator.
Cynthia is president of several professional
organizations – the North Dakota Family
Law Section, the Southeast Judicial District
Bar Association and the Stutsman County
Bar Association. In 2001 she received the
Community Service Award for the South East
Judicial District.
A native of Scranton, Cynthia was a registered nurse before attending law school. She
has two children, Jeremy and Anne Cebula.
The Gavel
January 2005
Board of Governors meeting.
Bill Herauf, Dickinson
William Herauf lives in Dickinson, North
Dakota, with his wife, Joan, and three children, Hayley, Billie and Sally. He is a shareholder in the firm of Reichert & Herauf, P.C.
and has been with the firm since 1990. Mr.
Bill graduated cum laude from the University
of North Dakota in May of 1982.
Bill has been on the Board of Directors of
the North Dakota Trial Lawyers Association
since 1985, and has served various positions
for NDTLA, including President from 19911992. Bill served as Secretary of the
President’s Council for the Association of
Trial Lawyers of America between
1991-1992, and has also served as the
President of the Stark-Dunn County Bar
Association between 1995-1996. He also
served on Inquiry Committee West from
1993-2000, and is currently serving as the
North Dakota Trial Lawyers State Delegate
through the Association of Trial Lawyers of
America, is President of the Southwest
District Bar Association, and is a member
and Vice-President of the Disciplinary Board
of North Dakota Supreme Court.
The other new member of the Board of
Governors is UND Law School Dean Paul
LeBel, who is profiled on page 12.
ADR Video
Project Unveiled
The benefit of mediation is the
topic of a new brochure and
video project produced by the
Joint Committee on Alternative
Dispute Resolution. Kristine
Paranica, a member of the committee, presented a preview of the
video at the annual meeting.
Kristine Paranica presents a preview of the recently produced ADR video.
One of the missions of the Joint
ADR Committee is to educate laywers and the public about the benefits of resolving disputes
without litigation. This video was written, designed, and produced by members of the
Committtee and the UND Center for Dispute Resolution especially for the purpose of assisting
lawyers in fulfilling their obligations under Rule 8.8 N.D. Rules of Court to “discuss ADR
participation with their clients.”
This project was funded by a grant from the North Dakota Supreme Court.
11
DEAN PAUL LEBEL
New UND Law
School Dean
Paul LeBel
UND Law School Dean Paul LeBel
Taking Legal Education
to the Next Level of
Excellence
By Andrea Winkjer Collin
In the short time that he has been its dean,
Paul LeBel already has a clear vision of the
future for North Dakota’s only law school. As
he explained in his remarks at the State Bar
Association’s annual meeting in June,“people
in the law school are committed to taking the
law school to the next level of excellence.”
What that means, he says, is “for the law
school to become one of the finest small,
public law schools in the country.”
LeBel believes that the law school’s size,
with an enrollment over the past several
years of approximately 200 students, is one
of its distinctive strengths.“As a small law
school with a high quality faculty, we are able
to provide a rigorous legal education in a
personally supportive environment.”
He has already learned that the school is
considered one of North Dakota’s treasures.
Throughout the summer, he introduced himself to state lawyers and community leaders
at 15 receptions across the state.“I was
impressed with the turnout,” he says of these
receptions.“It’s obvious North Dakotans care
deeply about the school and want it to succeed. I’m also impressed by the significant
number of lawyers and judges who are not
UND alumni who attended the receptions.
This has reinforced the notion that this is
North Dakota’s law school, and the level of
engagement with the school is very high.”
As he looks at what is needed in moving
the law school forward, LeBel is committed
to respecting the traditions of the school as
decisions for the future are made. He has
identified three challenges the school is facing – resources, complacency and inertia.
The law school has been supported predominantly through appropriated state
funds. LeBel believes that in North Dakota,
12
as in other states, the prospect of significant
increases in state funding is unlikely.“In
other disciplines, that situation could call for
an increase in grant funding, but in legal
education, grants typically support service
rather than basic research.” As a result, the
most critical factor in the success of the law
school is increasing private contributions
from alumni and other sources of support
for the school.
The law school initiated an annual fund
appeal this fall, seeking contributions that
are used to supplement appropriated funds
and allow the law school to provide greater
support for student organizations, educational programs, technological needs, and
research and service activities.“The idea of
annual fund giving is that the contributions
can be spent in the year they are received,” he
says,“and that will have a dramatic effect on
the day-to-day quality of life in the law
school.”
LeBel is also looking toward a future capital campaign for major gifts to endowment.
“Those are the kinds of gifts that affect the
character of the school in major ways.” He
sees both annual fund contributions and
major gifts to endowments as essential to the
long term health of the law school.
He senses enthusiasm and energy about
the law school.“The quality of the school has
been high for a long time,” he says, and the
strong support by the alumni is one of the
reasons.“But there is always at least some
risk of complacency and inertia, being satisfied with where we are and what we do,
instead of building on the enthusiasm and
energy that is out there.”
LeBel believes any resistance toward
change creates a challenge for the school to
better communicate its vision and goal.
Challenges Ahead
In addition to focusing on giving students
a solid basic law education, LeBel wants to
give the law faculty the flexibility to build up
programs offered at the school to better prepare students for the demands of their professional careers. These programs could
include returning the law school to a significant presence in areas where the school has
been strong in the past, such as agricultural
law and natural resources law.
UND Law School.
The Gavel
January 2005
DEAN PAUL LEBEL Continued
UND Law School has trained
more than 4,000 lawyers
“Interdisciplinary work and international
programs are also likely to become increasingly important at UND, as they are in most
good law schools around the country.
Keeping up with ever-evolving technology
also places a big demand on our resources,”
he says.
To keep up with the added demands of
these enhanced programs, LeBel wants to
increase the faculty and provide additional
development resources for them. The
school’s present authorization for a full-time
faculty of 16 could increase by three. One
new faculty position could be added each
year over the next three years, beginning in
the fall of 2006, if the law school has modest
increases in student enrollment to fund
those new positions.
“This really involves more of a return to the
enrollment patterns of a few years ago of 80
to 85. Our enrollment appears to be on track
to accomplish that,” he says, which would be
up from recent entering classes of around 70
students.
The annual tuition and fees of a little over
$7,000 for state residents is low, especially
when UND is compared to other law schools
in the country.“But it is nevertheless true
that the University is increasingly dependent
on tuition revenue to fund the basic educational programs. That is why recent tuition
increases could have an adverse effect on
student recruitment. We don’t want to lose
good students for the wrong reasons,” he
says,“so there will be a continuing need for
the financial support of our students that so
many of our donors have been providing for
a long time.” At the present time, there are
more than 30 endowed scholarships for UND
law students.
From Florida to North Dakota
LeBel came to UND in May after seven
years at the Florida State University College
of Law. He has specialized in torts and product liability and has taught at other law
schools, including the College of William and
Mary Marshall-Wythe School of Law, the
University of Alabama School of Law, and
the University of Illinois College of Law, and
The Gavel
January 2005
Dean Paul LeBel at the 2004 SBAND Annual Meeting.
the University of Richmond T.C. Williams
School of Law.
He received his Juris Doctor from the
University of Florida College of Law in 1977.
A veteran of the U.S. Air Force, LeBel earned
a bachelor’s degree in American literature
from George Washington University in 1971.
The satisfaction of his involvement in faculty governance while he was at William and
Mary piqued his interest in being a law
school dean. He was encouraged to apply for
the UND Law School position by former colleague Bob Laurence, who is currently a law
school faculty member at the University of
Arkansas – Fayetteville. Laurence was on the
UND Law School faculty from 1978 to 1981.
“I remember Bob speaking very highly of
the law school and of Grand Forks,” LeBel
says.“He was impressed with the sense of
community and the quality of education that
students receive here. Because Bob has kept
in touch with (current faculty member)
Randy Lee, Bob was able to assure me that
the positive qualities he remembered from
his time here were still present, and that was
a strong reason for my expressing interest in
the dean position.”
LeBel moved to Grand Forks in May with
his wife, Lucinda, who is working part time
as a medical technologist at Altru Hospital.
An Indiana native, Lucinda is happy to be
living back in the Midwest, he says. They are
the parents of one daughter, Lisa, who lives
near Washington, D.C.
The University of North Dakota School
of Law was established in 1899 and has
been a member of the Association of
American Law Schools since 1911. Since
1923, the School of Law has been continuously approved by the Section of Legal
Education and Admissions to the Bar of
the American Bar Association. The School
of Law is a fully accredited graduate professional school of the University.
The educational program of the School
of Law is designed to provide education
and training in legal analysis and the
application of legal principles leading to
professional competence. The School also
has a variety of special programs –
including a nationally recognized trial
advocacy program, Law Review, Clinical
Legal Education, Central Legal Research,
legislative and judicial internships,
regional and national moot court and trial
advocacy teams, the Northern Plains
Tribal Judicial Institute, the Northern
Plains Indian Law Center, and an
exchange program with the University of
Oslo in Norway – to augment its traditional course offerings.
The School of Law has graduated more
than 4,000 students in its history, and has
a current alumni base of approximately
3,000. The largest concentration of the
school's alumni, or approximately 1,300,
practice in North Dakota. More than 600
alumni practice in Minnesota, with
approximately half of them working in
the Twin Cities metro area. Other significant alumni bases can be found in the
states of Arizona, California, Colorado,
and the District of Columbia.
Each year, the School of Law receives
approximately 370 applications. Of those
applicants, approximately 42 percent are
admitted to the school. In the 2004-05
academic year, 75 first-year students
enrolled in the law school. Approximately
70 percent of the 2004 first-year class is
from North Dakota and Minnesota. Forty
two percent of the class is from North
Dakota.
13
OUR NEW HOME
C.B. LITTLE HOUSE
New Home for SBAND
The stately mansion at 504 North Washington Street in Bismarck’s
Historic Cathedral District is now the new home of the State Bar
Association of North Dakota. It is fitting that this turn-of-the-century
house was built by an early Dakota Territory’s lawyer, judge and banker.
Construction began on the house overlooking the Missouri Valley in 1902, and when
finished in July, 1906, was considered to be
one of the most beautiful in the state. Today
with renovations uncovering and restoring
much of the beautiful woodwork and flooring, it is a “home” rich in history for all
members of the State Bar Association of
North Dakota to enjoy.
Stonework on the C.B. Little mansion was
crafted by a stone mason brought from
Sweden specifically to work on the house.
Intricate mahogany woodwork on the interior, imported from South America, was completed by workers from the North Dakota
State Penitentiary. In keeping with the
extraordinary tastes of its owner, the house
was furnished with heavy velvet and silk
drapes, oriental rugs, magnificent furniture
and unusual light fixtures.
Originally the first floor consisted of the
library, living room, dining room kitchen,
pantry and butler’s pantry. As a serious
patron of the arts and music, Little designated the living room to hold a massive $45,000
pipe organ, with the tubes and pipes held in
the basement. The organ has since relocated
to Trinity Lutheran Church of Bismarck. The
dining room initially featured black walnut
furniture and rich blue velvet drapes, and
was the perfect venue for Colonel and Mrs.
Little’s extensive collection of china, crystal
and silverware. Upon renovations, the main
floor now houses a library and sitting area,
kitchen, individual office and meeting room
for visiting attorneys.
Elaborately decorated bedrooms for the
Colonel, Mrs. Little and their children were
located on the second floor, while the third
floor (which today stands unrenovated) consisted of quarters for the housekeeper and
other personnel. Today the second floor is
comprised of individual offices as well as a
14
common work area for the staff at SBAND.
Northwest of the main house is the carriage
house which, at the time, was home for the
chauffeur and later used as a musical conservatory. The grounds to the north at one time
also contained two large greenhouses and a
large grape arbor. Each summer, C.B. Little –
with his eye for the extraordinary and
unusual – would have palm trees planted
along the front walkway. During winter
months they were kept in the greenhouses.
In keeping with its impressive beginnings,
the century-old mansion has seen a variety
of owners and served distinct purposes over
the years. The house was occupied by
Colonel Little and his family for nearly four
decades before the Catholic Diocese of
Bismarck purchased it in 1942 following
Little’s death. The house was also used by the
Annunciation Priory, and home to 65 nuns
until the mid-60’s, when additional facilities
were constructed north of the house for their
living quarters. It was then converted to an
office building used by the Diocese until
January, 2004. While used as offices by
SBAND today, the staff and members are fortunate to enjoy some of the intricate originality of the house, as well as the prevalent
feeling of being at a wonderful home away
from home.
Left: Father Tom Kramer of the Diocese of Bismarck.
Below: Main entrance to the SBAND offices.
The Gavel
January 2005
C.B. LITTLE
It was once said that Clarence Belden
Little’s life story is nearly also the story
of Bismarck. Little came here much by
chance when Bismarck was still a
struggling frontier town in territorial
days, and subsequently became a
leader in its growth until the time of
his death in 1941.
Born in 1857 and raised in New
Clarence Belden Little
Hampshire, Little attended local
schools and eventually received his A.B. degree from Dartmouth
College in 1881. He attended Harvard Law School, working for
firms in both New Hampshire and Massachusetts, and was admitted to the bar in 1883. At the age of 25, he set out for the Northwest
in 1882 with the intent of settling and practicing law in Seattle.
Stopping in Bismarck during his travels, Little admired the community and its potential. Upon reaching Seattle he decided that if
North Dakota had a great city it would be Bismarck, so he returned
to establish his law practice in the Dakota Territory.
State Historical Society of North Dakota 0029-141
OUR NEW HOME Continued
In 1885 he was elected judge of probate of Burleigh County, and
again re-elected in 1887, soon after being named to the state
senate. Throughout his service in the senate he was chairman of
the judiciary committee, and helped create the framework for
many of the state’s basic laws. Little was a staunch Republican who
served in the senate until 1909, his high profile status allowing him
to be instrumental in such arenas as choosing the state capitol
building. As Inspector General of the citizen soldiery for three
years, he earned the title of Colonel, by which he was widely
known.
In addition to his legal, judicial and governmental roles, Little’s
financial interests surged to the forefront when he was elected a
director of the Capital National Bank of Bismarck (the second
national bank organized in the territory). Two years later he
became president. In 1895 he purchased control of the First
National Bank of Bismarck, liquidated Capital National and merged
the two institutions. Although retired from active business life in
later years, at the time of his death in the early 40’s, Little was one
of the oldest bank presidents, in point of service, in the nation.
North Dakota Bar Foundation Contributors, January 2003 to August 2004
Gold Members
Harold P. Kenner, Jack G. Marcil, Roger J. Minch, W.
Jeremy Davis, Michael S Neustel, Gerald VandeWalle,
James S. Hill, Lisa J. Wheeler
Silver Patron Members
Bradley J. Burgum, Richard W. Grosz, Steven J. Lies,
Christine A. Hogan, Joseph J. Cichy, Beryl J. Levine, J.
Philip Johnson, Jerry W. Evenson, Daniel S. Kuntz,
Herbert L. Meschke, Patrick J. Ward, Kermit E. Bye,
David L. Peterson, H.F. Gierke, III, Howard D.
Swanson, Rodney S. Webb
Donor Members
Carol K Larson, Rick D. Johnson, Jeffry D Anderson,
Daniel J Frisk, Don R Grande, Robert Holte, Monty G.
Mertz, Duane Schurman, Berentje Pohlman, Stuart
A. Larson, Myron H. Bright, Harlan G. Fuglesten,
Gerald D. Galloway, Robert S. Thomas, Lester J. Trnka,
Joseph A. Turman, Julie A. Evans, David T. DeMars,
Janis M. DeRemer, Edward E Erickson, Benny A.
Graff, W. Todd Haggart, James B. Hovland, Robert J.
LaBine, Thomas A. Mayer, LaDonne R.Vik, Rodger G
Mohagen, Malcolm H. Brown, Aaron J Dorrheim,
James D. Geyer, Gregory C. Larson, James P. Wang,
David R. Bailly, Robert E Feidler, Burt L. Riskedahl,
John W. Dwyer, James M. Bekken, John J. Petrik,
Georgia Dawson, Michel W. Stefonowicz, Debbie
Gordon Kleven, Rex A. Hammarback, Richard
Henderson, Carol Kapsner
Sustaining Members
Melissa Schmalenberger, James A. Clement, Thomas
E. Rutten, Jonal H. Uglem, Gary H. Lee, Sarah M.
Vogel, Mikal Simonson, Timothy J. Austin, Jon H.
Brosseau, Birch P Burdick, M. Richard Geiger,
Theodore . Kessel, Jr., Donald A. Negaard, Paul R.
Oppegard, Marian M. Stine, Thomas L. Zimney,
Christopher A. Carlson, A. William Lucas, Michael S.
McIntee, Gary J Petersen, Kevin J Chapman, Steven C
The Gavel
January 2005
Ekman, Donavin L. Grenz, Gary S. Helgeson, Bruce D.
Johnson, Stephen M. McLean, Brenda L. Selinger,
Arthur W. Stokes, Fintan L. Dooley, Gary A. Ficek,
Vince H. Ficek, Laurie A. Fontaine, William G. Heth,
Shirley F. Jahnke, David L. Johnson, Jerry D. Larson,
Richard E.T. Smith, Patrick Sogard, Fred Strege,
Howard R. Alton, III, Earl W. Anderson, Jr., Stephen J
Behm, Anna Frissell, John W. Frith, Dennis R.
Johnson, Donald L. Jorgensen, Robert Vaaler, Arne F.
Boyum, Jr., Brian W. Keohane, Sherry Moore, Michael
G. Sturdevant, Dennis L. Anderson, David R. Bliss, Jeff
Bredahl, Sandra Dittus, Lisa B. Gibbens, Tracy A
Gompf, Ronald E. Goodman, Gerald E DeLoss, David
B. Sogard, Michael C Van Berkom, James D. Gion,
Roger C. Malm, Diane F. Alm, Dann E. Greenwood,
Robert A. Keogh, Gary D. Ramsey, Kevin Deitz,
Sharon M. Reis, Grant Shaft, Galen Mack, Stephen
Forrest Hutchinson, Kristin J Vollmers, Paul D
Odegaard, Max D. Rosenberg, Norlyn E. Schulz,
Douglas G.Vang, Harold J Bergquist, Julie M. Buechler
Boschee, Michael A. Dwyer, Jonathan R. Fay, Glen R.
Nagel, Leisa Marie Richards, Terry W. Elhard, Jay
DECEASED H. Fiedler, Gretchen Handy, Jon Bogner,
David J. Ridl, Bruce A. Selinger, Peter B. Wold, Wade G.
Enget, Thomas D Jensen, Christopher V Nugent, Larry
J Richards, Kevin B. Spaeth, John A Warcup, Ronald J.
Weikum, David M. Crane, Daniel J. Dunn, DeAnn M
Pladson, Anthony J Weiler, Marlyce A Wilder, Jean P.
Hannig, Lawrence A. Dopson, Austin Engel, Janet
Gregory, Michael Hagburg, Dale M Kadlec, Lawrence
E King, Lyle W. Kirmis, Lisa K McEvers, Joel D. Medd,
Adele H Page, Theresa Zimmerman, Jeanne Combs,
John A. Juelson, Charles J. Peterson, Daniel R.
Twichell, Charles L. Chapman, Heidi Fisher M
Davies, Charles R. Isakson, Craig R. Campbell, Dean
A. Hoistad, Jack McDonald, Kent A. Reierson, Craig E.
Johnson, William D. Schmidt, Peter A. Schmit, Sonna
M. Anderson, Louis C Annunziata, David A. Engen,
Peter G Graves, James L. Taylor, Terry Knoepfle,
James P. Fitzsimmons, Lawrence E. Jahnke, Peter E
Karlsson, Mark V. Larson, Keith C. Magnusson, Lolita
Hartl G. Romanick, Constance L. Triplett, Anne E.
Summers, Mitchell D. Armstrong, Gordon W.
Myerchin, Katherine M Irigoin, Bruce L. Madlom, Lyle
H. Moe, Mary Ellen Seaworth, Stephannie N. Stiel,
Justin Palecek, Jean R. Mullen, Doug Sletten, Jerod E.
Tufte, Jerilynn Brantner Adams, Cheryl F. Bergian,
Lee Christofferson, Gary L. Jackson, John D. Olsrud,
Kristine J. Paranica, Charles J.Vaala, Steven R.
Snortland, Christopher R Kelley, Bruce E. Bohlman,
James E. Leahy, Maureen Holman, Michael T
Andrews, Marilyn K. Foss, Angela Elsperger Lord,
Leslie B. Oliver, Monte L Rogneby,
Lynn Erickson (Deceased), James W. Wold (Deceased)
Patron Members
Thomas A. Dickson, Timothy Purdon, Thomas J.
Clifford, Dale V. Sandstrom, Ronald H. McLean,
Michael L. Halpern, Ralph E. Hooper, Randy H. Lee,
Robert J. Udland, Robert O. Wefald, Bruce H. Carlson,
Gary E. Euren, Donald Hager, John M. Nilles, Murray
G. Sagsveen, Joy L. Wezelman, Donald R. Holloway,
William C. Kelsch, John M. Olson, David R. Bossart,
Douglas L Holloway, Judith E. Howard, Michael F.
Daley, Sharon A. Gallagher, Mary Maichel Guler, Mart
Daniel Vogel, Patrick W. Durick, David S. Maring,
Mary L. Maring, Michael J. Williams, Ralph R.
Erickson, Maurice R. Hunke, John H. MacMaster, Paul
J. McCann, Neil Thompson, Daniel M. Traynor, Melvin
L. Webster, Gordon W. Schnell, Jon R. Kerian, Henry C.
Wessman, Albert A. .Wolf, William E. Kretschmar,
Zane Anderson, Bruce B. Bair, Jo Louise Bullis,
Michael L. Gjesdahl, Greg B Selbo, Stephen D. Easton,
Bruce D. Quick, Nicholas B. Hall, Charles Schultz,
William A. Neumann, Leslie Johnson Aldrich, Paul F.
Richard, Mark Bring, Alice Senechal, Jacque G.
Stockman
15
TRIBUTE TO JAY FIEDLER
JAY FIEDLER
OUR PROFESSION LOSES ONE OF ITS FINEST
By Richard Clapp
Jay Fiedler died on June 9, 2004. That day I lost a close
friend and valued partner. Our profession lost one of its
finest lawyers and a truly decent man.
Jay and I became friends in 1978 when, as
newly minted lawyers, we represented codefendants in a dram shop case that took us
to San Francisco for depositions. During
that first trip with Jay, I learned that he could
not be trusted to make hotel reservations. As
I and other lawyers learned over the years,
Jay took delight in staying in derelict hotels
in major cities. On that first San Francisco
trip, the hotel Jay selected was torn down
mere days after our departure. On that trip I
also learned that Jay could not hang on to a
set of keys, no matter how hard he tried.
Over the years, I made numerous trips to the
office and other places to unlock doors
where Jay had inadvertently locked in his
keys.
I also learned on that very first San
Francisco trip that Jay Fiedler was a terrific
person and a fine lawyer. Nearly a year after
traveling to San Francisco Jay and I became
partners and we remained so until his death.
During those years I had the pleasure of
watching Jay grow and mature into one of
this state’s most respected attorneys. I am
honored to have the opportunity to write of
Jay’s life and career.
Jay was 52 years of age at the time of his
death. He received his Juris Doctorate with
distinction from the University of North
Dakota School of Law in 1977. Prior to
attending law school, Jay attended North
Dakota State University and Concordia
College. Jay was admitted to the Bar in North
Dakota and Minnesota, United States District
Court, Eighth Circuit Court of Appeals and
the United States Supreme Court. Jay practiced law his entire career in Grand Forks. At
the time of his death, Jay was a partner in
Pearson Christensen, PLLP. His practice
16
included insurance defense, plaintiff ’s personal injury, domestic relations and criminal
law. Between 1978 and 1995, Jay served as
Grand Forks’ City Attorney, Assistant City
Attorney and Deputy City Attorney. Jay was
an active and highly respected member of
the North Dakota Bar and was a former
member of the Inquiry Committee East of
the State Bar Association as well as member
of its Volunteer Lawyers Committee. Jay also
served on the State Bar Association’s Fee
Arbitration Panel. United States District
Court Judge Rodney Webb appointed Jay to
serve on the Civil Justice Reform Act
Committee, and at the time of his death, Jay
was a member of the Federal Practice
Committee for the Eighth Circuit Court of
Appeals. In addition to being a member of
the State Bar Association of North Dakota,
Jay was a member of the American Bar
Association and various litigation oriented
organizations.
Jay was much more than a lawyer. He was a
loving father to his three children, Paul,
Ainsley and Dana, and his step-daughter,
Hailey. He was also a devoted husband to his
wife and true love, Karen Lauer-Fiedler.
Jay served as the president of Calvary
Lutheran Church, served on the church
council and taught Sunday School for a number of years. Jay was also a lifelong athlete
who enjoyed softball, skiing and hunting.
People who knew Jay universally agreed
that he was one of the most likable people
they had ever met. In an often adversarial
profession, Jay was able to bring people
together with his quick smile and easy going
demeanor. One of the comments most frequently heard since Jay died was the fact that
“everyone liked Jay”. He had the ability to
Jay Fiedler
turn opposing counsel into a lifelong friend
and did so on many occasions.
Jay tried numerous cases to juries but
enjoyed arguing before the North Dakota
Supreme Court most of all. Jay’s affability
and charm worked to win over juries and his
skill and sharp mind won over judges. Since
his death, many attorneys who knew him
commented on how professional yet likable
Jay was.
One attorney commenting on Jay’s abilities
as a lawyer stated that,“Jay’s manner and
methods should be at the heart of every law
professor’s teaching. Specifically, that you can
be gentle without sacrificing authority, you
can self-deprecate without weakness and you
need not be hostile to accomplish your
client’s goals.” Jay was truly a lawyer’s lawyer.
In fact, many of Jay’s clients were referrals
from other attorneys who had grown to
respect Jay while involved in cases where
they opposed Jay. He was frequently called by
other attorneys to consult with them and
advise them.
Jay Fiedler took great pride in the fact that
he was from a small town in North Dakota.
He often commented on how he hoped to
return to Cavalier when he retired because to
Jay, Cavalier was always home. Jay’s ashes
were scattered near his parents’ grave in
Cavalier.
The Gavel
January 2005
Title: Unequal Contest: Bill Langer and His Political Enemies
By Robert Vogel, former North Dakota Supreme Court Justice
Publisher: Crain Grosinger Publishing, Mandan, ND
ISBN: 0-9720054-3-9
Paperback, 224 pages, $17.95
877-566-2665 www.wmlanger.com (Take the “What Would Wm. Langer Do?” quiz.)
Book Description
Former North Dakota Supreme Court Justice Robert Vogel brings the roots of the PopulistProgressive movement come to life, vividly showing what happens to those who challenge the
corporate mindset, and setting the record straight about the Nonpartisan League and its
hero, Bill Langer.
Cover Quotes:
“We can’t prosecute men for their opinions. That is, we can’t do that in America, yet.”
The Honorable A. Lee Wyman, Judge U.S. District Court, District of South Dakota (1929-1953)
“This is the previously untold story of how a leader with both strong convictions and human
failings fought against corruption, greed and those who sought to personally destroy him. Bill
Langer's fierce independence, willingness to challenge wrongdoers, and political savvy shine
through in Unequal Contest. Bob Vogel shares a unique perspective of this political leader and sets
the record straight.”
U.S. Senator Kent Conrad (ND)
The Gavel
January 2005
17
TECHNICAL ADVICE
Ask a Computer Expert
Attorney Joe Aas Answers Your Computer Queries
What can wireless Internet capability do for me?
Several attorneys I work with have recently
upgraded from desktop computers to
portable laptop computers. Laptop computers have come down in price, while their feature lists have expanded. One common feature on current laptop computers is built-in
wireless Internet capability. If wireless isn’t
built into your computer, you can easily purchase a card to add it on. The increasing
number of wireless Internet “hot-spots” is
reason enough for you to take advantage of
wireless and consider getting a laptop computer if you don’t already own one.
Wireless “Wi-Fi” Internet is a way to distribute high speed Internet access without
being tied down by copper wire. A wireless
base station can provide coverage for a large
open area. The radio waves can penetrate
through walls, so it can also provide access
in buildings, however the range is limited by
obstructions. Of course, there are several different standards out there that you will need
to pay some attention to, but you will find
very few roadblocks caused by compatibility.
The main type of Wi-Fi is technically called
802.11b. There are also 802.11a networks,
and the latest standard is 802.11g. The most
important thing to know is that if you purchase something new, make sure it is compatible with 802.11g and 802.11b.
As a caveat, I am not endorsing the use of
wireless networking in your law office. There
are serious security issues with wireless networks and I do not recommend their use on
a network that also contains client confidential information. If you want to use wireless
networking in your office, or if you already
have it installed, please consult a networking
professional to be sure the security settings
are fully utilized. An improperly configured
wireless setup opens up a huge hole in your
network that could allow everyone in the
neighborhood access to your files.
My company has recently completed
installing wireless equipment to saturate the
18
Donaldson Hotel in downtown Fargo with
free Internet access. I have heard that other
wireless hot-spots have started to crop up
around the country, so I began to wonder
how we are doing here in North Dakota in
places that would be useful for attorneys. I
did an informal survey of airports and hotels
in Fargo, Bismarck, Grand Forks and Minot
and I was pleasantly surprised to find a high
availability of wireless hot-spots in many different locations. This was not exhaustive and
I didn’t personally go out and test all of these
locations, but this will show you where you
can expect to get Internet access while you
are out of the office. I suggest that you call
and ask before traveling.
Airports
Fargo Hector International Airport, Grand
Forks International Airport and The
Minneapolis-St. Paul International Airport
all have wireless covering all terminals.
Access is free in Fargo and Grand Forks, and
there is a $6.95 charge for 24 hours of use in
the Minneapolis airport. The Bismarck airport expects to have wireless capability when
the new terminal is completed in July of
2005, and the Minot airport has no wireless
as of this time.
Hotels
In Fargo, the Donaldson Hotel, the Wingate
Inn and the Holiday Inn all have wireless
access. The Moorhead Courtyard by
Marriott, Doublewood and Ramada do not.
In Grand Forks, the Best Western
Townhouse and the Lakeview Inn were the
only places that reported having wireless
Internet access. The Holiday Inn Express,
Holiday Inn, Ramada, South Road King and
the Hilton Garden Inn do not.
In Bismarck, the Expressway Inn, Radisson,
Best Western Doublewood and Best Western
Seven Seas all reported the availability of
wireless Internet. The Kelly Inn, Country
Suites and Best Western Ramkota do not.
In Minot, the Holiday Inn and the
International Inn reported having wireless
coverage and the Best Western Inn does not.
All hotels with wireless Internet available
also stated that there was no charge for use
of their wireless networks. Regardless of
whether wireless was available, almost every
hotel I surveyed has high speed Internet
available via Ethernet cable. One notable
exception to this was the Grand Forks
Ramada, which stated that it had no wired or
wireless Internet access. Many hotels also
have “business centers,” where they have
computers and printers and other office
equipment already setup with high speed
access. In Fargo, the West Acres Mall has free
wireless Internet available in the food court
area. I didn’t check with the other major
malls in the state, but malls may be another
good spot to get connected.
So, how can you take advantage of having
Internet connectivity wherever you travel?
The primary use of Internet access is for
access back to your office.You can configure
your office system by several different methods to allow access to e-mail and your files.
The most secure way to connect back into
your office is with a Virtual Private Network
(VPN). A VPN encrypts all data transmitted
between your remote computer and the
office firewall. It is also possible to connect
back to a machine in the office running
Symantec pcAnywhere. This software allows
you to remote control a computer from a
remote location. The problem is that you
then need to have a machine sitting in the
office that is running and available for the
connection. If you have a network server, you
may be able to provide access to your e-mail
through a web browser. Another option is to
have your e-mail forwarded to an Internet
based e-mail client such as Hotmail, Yahoo
Mail or the new Google mail. All of these
options have security ramifications, so be
The Gavel
January 2005
TECHNICAL ADVICE Continued
MEMORIALS
sure to check with a knowledgeable consultant to cover all of your bases.
Are there any Internet domain names
specifically for lawyers?
I recently ran across some information
regarding a new type of Internet domain
name specifically for lawyers. It is now possible to register domain names with a .pro suffix. A lawyer or a law firm may register a
.law.pro domain name with proof of certification as a licensed attorney. A digital certificate is issued to accompany the .law.pro
domain name that can be used to encrypt
electronic communication and provide electronic verification.You may also make a
defensive registration of your trademark to
block others from registering a .pro domain
name that is the same as your firm’s name.
Even if you already have a domain name registered for your firm, a .law.pro domain
name can be setup to work in conjunction
with your current domain. The idea is that
only certified and licensed professionals may
get a .law.pro domain name, thus lending
immediate credibility to the registrant.You
can find more information on this at
www.domainpeople.com/pro.cfm.
Joe Aas graduated from the UND School of
Law in 1991. Between 1991 and 1995 he was
employed with the Gunhus Law Firm in
Moorhead, MN, in the litigation department.
Since 1995, he has been employed with
Software Solutions, Ltd., in Fargo, serving the
computer needs for law
offices and legal related
businesses. He welcomes
your questions for future
Gavel columns, and can
be reached at 701-2933197 or [email protected]
The North Dakota Bar Foundation has
received the following memorial
contributions:
In memory of Jay Fiedler
(passed away on June 9, 2004)
The Honorable Rodney Webb
Letnes, Marshall, Swanson & Warcup, Ltd.
Kirk & Janice Tingum
Alice Senechal
Mark Bring and Dacia Stiles Bring
State Bar Association of North Dakota
In Memory of Judge Paul Benson
The Honorable Rodney Webb
State Bar Association of North Dakota
In memory of James Rausch
(passed away on June 13, 2004)
State Bar Association of North Dakota
In Memory of Edmund Vinje II
(passed away on July 27, 2004)
State Bar Association of North Dakota
In memory of Theodore Kessel, Sr.
Lenaburg, Fitzner, Nelson, Hooper, &
Cruff, PLLP
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The Gavel
January 2005
19
HUMOR, ANYONE?
High
Anxiety
By Nick Simonson
Taking the bar exam itself wasn’t too stressful. The refresher course studying for the bar
exam was more of a burden than stress.
Finally, waiting six weeks for results wasn’t
much of an anxiety producing experience
either.
The time when I worried most was the fifteen minutes AFTER I found out that the representatives of the Bar Board were calling with
the pass/fail answer. A classmate of mine, who
had taken the Minnesota Bar Exam, popped
up on my instant messenger and asked me if I
had heard anything.“Heard what?” I replied,
knowing that the rumor of early results had
been floating around among my colleagues
who had taken the exam in late July. I replied
that the results would be released as scheduled
on September 13, and that I expected them no
earlier than that time.
There on the message machine,
was a red flashing number one,
shining on and off like an eye doctor’s
light, right in front of my eyes.
It was taunting me with the future…
“My brother just got the call, he passed.”
Sweat instantly beaded up on my forehead as
I stared at his last entry on the screen. My
stomach plummeted into my shoes, like it was
on some death drop ride at an amusement
park. Apparently four months of pent up anxiety had manifested itself in three seconds and
was spiraling toward total and complete meltdown. My hands shook so bad I had trouble
resetting them on the home rows of my laptop
keyboard to reply.
“Plsh…I mean Okay, thanks,” I typed back,
trying not to sound nervous over messenger,
and at the same time wondering if I could
20
Nick Simonson and his dog Gunnar.
sound nervous on a computer. Thirty seconds
into this, the most volatile 15 minutes of my
life, I was a wreck. I had heard of people being
so nervous during the exam that they vomited
three times, and wondered how anyone could
ever take the test so damn seriously? Now I
knew.
My knees were wobbly as I walked down the
hall to my supervising attorney’s office. I
blamed it all on the excessive caffeine I had
been drinking, in an effort to keep up with a
new puppy I had brought home the Tuesday
before. In her office I explained the situation
and stuttered as I requested fifteen minutes to
go home and check the answering machine for
any messages from the bar examiners.
The request was granted. I stumbled down
the stairs, thinking the worst and not remembering the mantra that had gotten me through
not only the bar exam, but law school as well.
“You’ll be fine,” my roommate would always
reassure me before a test, or project due date,
but for some reason the letters rearranged
themselves and added up to,“You failed, fool.”
I hopped in my truck, thinking that working at
the new Gander Mountain or Sportsman’s
Warehouse in Fargo would be great after I got
the news, at least I was thinking positively
when it came to thinking negatively.
Halfway home, going just a hair over the
speed limit, it seemed like my Ford Ranger
was moving about as fast as a three-year-old’s
tricycle. I decided to pedal faster, as my hands,
now white-knuckled and imprinted on the
steering wheel, cut grooves which I am sure
are still present on the leather today. Magically,
I was standing in my front driveway, as I had
apparently thought away the last few blocks of
the drive. I blamed it on alien abduction, and
at a jog, burst through the doorway of the
house.
There on the message machine, was a red
flashing number one, shining on and off like
an eye doctor’s light, right in front of my eyes.
It was taunting me with the future, almost
laughing at my struggle to maintain a shred of
sanity, which somehow had disappeared in
just a matter of moments. My stomach slid
out of my shoe as I walked over and used
every ounce of strength I could muster to
extend my index finger and push the “play”
button.
“This message is for Mr. Simonson,” I
thought that this was it and braced for impact.
“This is Jane So-and-so,” nice to meet you
Jane…dispense with the formalities already, I
don’t think my heart can go above 275 beatsper minute.
“I am calling to inform you…” (Insert dramatic pause here)
“That your bifocals are ready at Doctor
Nelson’s office.”
“YOU HAVE GOT TO BE KIDDING ME!” My
brain screamed, but my mouth mumbled out
only “dang!”A secretary’s message for my dad
stood in the place of the message that would
determine the next 40 years of my life.
In consolation, I took the puppy for a quick
walk, all the time thinking the most extreme
and outrageous thoughts that one can get
when the phone call doesn’t come in.“Maybe
they don’t call the failures,” I thought as we
rounded the block and headed back in the
front door.
I put the pup in the kennel, much to his disappointment, and decided that my fifteen
The Gavel
January 2005
HIGH ANXIETY Continued
minutes were up and I’d have to wait until five
o’clock to get the message. I walked out of my
room, and as I shut the door, I heard something. The sound was somewhere between the
sweet shrill of the last school bell in May, and
the saddening ring of taps played over a
national cemetery.
Turning my head around, exorcist style, the
green frog phone, which had been given to me
as a Christmas present years ago continued it’s
high mating trill. Like a bad movie pan-in on
a murder weapon or clue that the producer
doesn’t want the audience to miss, the phone
consumed my field of vision. My hand reached
out for the all important item.
I flipped open the phone on the third ring.
“Hello,” I managed to squeak. All the time
wanting to shout,“I know who you are, and
why you’re calling…JUST TELL ME!” But the
politeness in me let the conversation run its
course.
“Is Nicholas Simonson there?” The woman at
the end of the line inquired.
“This is him, ah, he…I mean this is me,” I
stammered out.
“This is Carla Kolling with the…”
“DID I PASS OR FAIL!?! PASS OR FAIL!?!”
The Gavel
January 2005
I said, nearly yelling but luckily my mouth
muted a portion of what my brain was trying
to fire out (so much for being polite).
For a moment, there was silence. The wind
stopped blowing outside, the dog stopped
whining, the whole earth stood in awe of this
second in time in which hopes, dreams, and
aspirations from the past twenty years would
come to fruition…or be trampled into the
ground by a heard of oxen-like multiple choice
questions and buffalo-sized essay answers.
“You passed!”
I declared my love for Carla, for the bar
examiners, and for each and every thing that
was just, good and right on the face of the
earth. Thanking her profusely, I hung up the
phone and hollered so loud that my future
hunting dog will most likely have to track
pheasants by scent and sight alone, as the volume of my yell probably rendered him deaf in
both ears.
I sped back to work, my Ranger transformed
into a shining chariot. I was the king returning
from the battlefield, surrounded by the multitudes of my kingdom. All glory was to be mine
this day. I waved to everyone, even the skateboarders who do their after school rail slides
“DID I PASS OR FAIL!?!
PASS OR FAIL!?!” I said,
nearly yelling but luckily my
mouth muted a portion of what my
brain was trying to fire out
and ollies in front of the law office where I
work, reeking havoc in general on the flower
beds and sidewalk.
Smiling, I went into my supervising attorney’s office and said, triumphantly,“I passed!”
She congratulated me, and said,“Was there
ever any doubt?”
“Never,” I replied back confidently.
Apparently, aliens had abducted me again, as
my memory of the fifteen minutes prior had
been completely and blessedly erased.
Nick Simonson is an attorney in Valley City
with the firm of Lenaburg, Fitzner, Nelson,
Hooper & Cruff, PLLP. Look for more humor
columns from Nick in future issues of The
Gavel.
21
22
The Gavel
January 2005
ABA REPORT
ABA ANNUAL MEETING
From Civil Discovery Standards
to Liability Insurance Disclosure
By James Hill
This summer’s ABA Annual Meeting in
Atlanta was filled with the usual resolutions
dealing with increased funding to the federal
judiciary and standards of practice for defense
counsel to reduce the risk of convicting the
innocent. Sandwiched in between these lofty
aspirational goals were several rules and resolutions bound to pass through our Joint
Attorneys Standards Committee in the near
future.
The most contested resolution was the
Model Court Rule on Insurance Disclosure,
Report No. 108. Sponsored by the Standing
Committee on Client Protection, the resolution
seeks to require lawyers to disclose on their
annual state registration statements whether
they maintain professional liability insurance.
Excluded from the model rule would be those
lawyers who are not engaged in active practice
and those who are engaged in practice as full
time governmental lawyers or as counsel
employed by an organizational client and do
not represent clients in an outside capacity.
The proposed rule also would place an affirmative duty upon lawyers to notify the highest
court whenever the insurance policy covering
the attorney’s conduct lapses or is terminated.
Such information would be available to
prospective clients by such means designated
by the highest court of a particular jurisdiction.
Surprisingly, the proposed resolution was
met with stiff resistance from a number of
unlikely corners of the House of Delegates and
barely passed the house. The ABA Committee
on Lawyers’ Professional Liability was one of
the more articulate opposition to the model
rule. That committee reasoned that the proposed rule would not assist the public in making an informed decision about hiring an
attorney because it does not educate the public about the fundamental difference between
professional liability insurance (claims made
policies) and the types of insurance policies
with which most consumers are familiaroccurrence based.
The Gavel
January 2005
The opposition further reasoned that without sufficient context and education, promoting the concept that a lawyer’s insurance protects the client (rather than the lawyer) will
lead to a false sense of security for the
prospective client. Sensing that the proposed
rule would foster increased miscommunication between lawyer and client the Committee
on Professional Liability was extremely vocal
in its opposition to this model rule. The eventual vote was a bare majority. Expect this
model rule to be on the agenda of Joint
Attorney Standards in a short time and the
practicing bar should be prepared to fashion
its view on the adoption of such a rule.
Another rules-oriented resolution dealt with
amendments to the Civil Discovery Standards
destined to hit the agenda at a future Joint
Procedures Meeting in North Dakota. The
most substantive change deals with preservation of documents. The model rule changes
would mandate that once retained to handle a
matter, a lawyer has the duty to inform his
client to preserve potentially relevant documents “in the client’s custody or control.” The
changes to the rules go on to say that such
“duty to produce may be, but is not necessarily, coextensive with the duty to preserve.” The
issue is left to state and federal law which begs
debate on this issue before the Joint
Procedures Committee, both from a rule perspective and ethical viewpoint.
Predictably, when faced with an election
year, the floor debate was dominated by resolutions touching on all the major platform
issues in the major political party agendas.
Even when passed their impact is nominal.
Model rule changes, however, have a way of
drifting back to the individual states. Look for
these to make it to North Dakota.
As always, a full daily journal of the actions
of the ABA House of Delegates is available by
calling me at 701-223-2711 or dropping me an
e-mail at [email protected]
James Hill
SBAND Delegate to the ABA
23
ETHICS/DISCIPLINE
Order of Disbarment
In November, 2003, Donald L. Peterson, a ND
attorney licensed to practice since 1976,
admitted service of a Summons and Petition
for Discipline. Peterson was placed on
Interim Suspension by the Supreme Court of
North Dakota in May, 2004. The Petition
alleged that Peterson failed to pursue an
appeal in a divorce proceeding as agreed,
failed to file a contempt motion in the same
proceeding while telling the client he had,
forged the client’s name on an affidavit, failed
to communicate a plea proposal to the client
in a related criminal matter, and failed to
turn over part of the criminal file to new
counsel once he had been discharged as the
client’s attorney. The Petition further asserts
that Peterson forged an Order of Dismissal in
a separate civil action.
A hearing took place in March, 2004, and the
Hearing Panel filed its report in June. The
Report concluded that Peterson violated
N.D.R. Prof. Conduct 1.4 (Communication),
3.3 (Candor Toward Tribunal), 4.1
(Truthfulness in Statements to Others), 8.4
(Misconduct), and Lawyer Discipl. 1.2(A)(3)
(Grounds for Discipline). The Hearing Panel
considered aggravating factors under N.D.
Stds. Imposing Lawyer Sanctions 9.22(c), a
pattern of misconduct, 9.22(d) multiple
offenses, 9.22(i) substantial experience in the
practice of law, and 9.22(a) prior disciplinary
offense. The Panel also considered 9.32(c)
personal or emotional problems, as possible
mitigation, in the context of Peterson’s testimony concerning an anxiety disorder, and a
statement from Dr. L. Mark Bell, D.O., psychiatrist, concerning Peterson’s treatment for
anxiety and depression, however found this
information not to be mitigating. The
Hearing Panel also considered that no harm
or injury to the above-mentioned clients.
The Panel recommended that Peterson be
suspended from the practice of law for one
year and pay administrative costs; no objections were filed. At the request of the Court,
on August 14, 2004, the parties filed briefs on
the issue of whether the recommended suspension was adequate. The Court considered
the matter and ordered that Donald L.
Peterson be disbarred from the practice of
law, and pay the costs of the disciplinary proceedings in the amount of $4,156.38. Under
24
N.D. Std. Imposing Lawyer Sanctions 5.11
disbarment is appropriate when (a) a lawyer
engages in serious conduct a necessary element of which includes intentional interference with the administration of justice, false
swearing, misrepresentation, fraud, extortion,
misappropriation or theft; or (b) a lawyer
engages in any other intentional conduct
involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects
on the lawyer’s fitness to practice.
Reciprocal Discipline,
Order of Disbarment
On April 12, 2004, the Disciplinary Board
notified the Supreme Court under N.D.R.
Lawyer Discipl. 4.4 that it was recommending
the reciprocal discipline of Robert J. Schaefer,
a member of the bar of the State of North
Dakota.
The Record reflects that an Order disbarring
Robert J. Schaefer for violation of Minn. R.
Prof. Conduct 8.1(a), 8.4(c), and (d), namely
misappropriation of client funds and making
misrepresentations to the ethics investigator
to conceal his use of the funds, was filed by
the Minnesota Supreme Court in January,
2004. Under N.D.R. Lawyer Discipl. 4.4(B)
Schaefer was given notice that a certified
copy of the Order of Disbarment filed by the
Minnesota Supreme Court was received by
the Disciplinary Board in ND in February,
and he had 30 days to file any claim that the
imposition of the identical discipline in
North Dakota would be unwarranted.
Schaefer filed no such claim.
Under N.D.R. Lawyer Discipl. 4.4(D), the
Disciplinary Board forwarded its recommendation that Schaefer be disbarred from the
practice of law and pay the costs of the disciplinary proceedings in the amount of $250.
The Court considered the matter and
ordered the same.
Reprimands issued
Richard G. Hunegs and Steven Hunegs are
admitted to practice law in Minnesota. The
Hunegs represented a client who lived and
was injured in North Dakota, in a lawsuit that
was filed in the federal district court of
Minnesota, and which resulted in a settlement in 1996. The parties and their attorneys
agreed to keep the settlement confidential. In
2002 the Hunegs disseminated their firms in
North Dakota in the area their client lived,
and Steven Hunegs disclosed some of the settlement terms to a newspaper in the area.
A hearing of the Disciplinary Board of the
Supreme Court found the Hunegs’ actions
violated N.D.R. Prof. Conduct 1.6 which provides that unless required or permitted to do
so, a lawyer shall not reveal information relating to the representation of a client, and when
such information is authorized by the rule to
be revealed, the revelation shall be no more
than the lawyer reasonably believes as necessary for the purpose; and N.D.R. Prof.
Conduct 5.1 which provides responsibility for
a lawyer in a firm for an associated lawyer’s
compliance with the rules.
Following the finding of violations, Hunegs
tendered a Conditional Admission agreeing to
a reprimand and payment of reasonable costs
and expenses. On behalf of the Disciplinary
Board of the Supreme Court, the Hearing
panel ordered that Richard G. Hunegs and
Steven Hunegs be reprimanded for their violations, and they each pay $1,881.20 for the
costs and expenses of the disciplinary proceedings.
The Hearing Panel, having accepted a
Stipulation and Consent to Discipline, reprimanded Ralph F. Carter for violation of RULE
1.7(a), RPC, which provides that a lawyer
shall not represent a client if the lawyers ability to consider, recommend, or carry out a
course of action on behalf of the client will be
adversely affected by the lawyer’s responsibilities to another client, in that Ralph F. Carter
was the attorney for William Lloyde
Richmond, Sr. and Willhelmina Richmond,
drafted wills for the Richmonds in which he
was named co-personal representative, and
subsequently represented the Richmond’s
son, Rodney, in guardianship and conservatorship proceedings involving the
Richmonds; and for violation of RULE 1.7(c),
RPC, which provides that a lawyer shall not
represent a client if the representation of that
client might adversely be affected by the
lawyer’s responsibilities to another client or to
a third person. Costs and expenses of the disciplinary proceeding were assessed against
Ralph F. Carter in the amount of $500.
The Gavel
January 2005
ETHICS/DISCIPLINE
In October, 2004, a Petition for Discipline was
filed against T.L. Secrest, who was admitted to
practice law in North Dakota in 1956. The
petition alleges that while representing
Emelia Hirsch regarding estate planning and
the preparation of revocable and irrevocable
trusts, Secrest did not reasonably communicate the effect of the irrevocable trust in minimizing estate taxes. The petition also contains allegations that Secrest did not advise
the trustees appointed under the irrevocable
trust of their duties and obligations in order
to give effect to the purpose of the trust.
Specifically, the petition alleges that Secrest
violated N.D.R. Prof. Conduct 1.1
(Competence) and N.D.R. Prof. Conduct
1.4(B) (Communication).
In April of 2004, Secrest filed his Answer to
Petition for Discipline denying the above allegations. Subsequently, a Stipulation and
Consent to Discipline was signed by Secrest
and Paul W. Jacobson, Disciplinary Counsel,
in August 2004. A Hearing Panel of the
Disciplinary Board of the Supreme Court
found that Secrest did not reasonably communicate to his client or the trustees of their
duties and obligations under the trust, and
was in violation of N.D.R. Prof. Conduct
1.4(B). The panel ordered a reprimand, and
assessed discipline in the form of $500 in
payment for the costs of the disciplinary proceedings.
In September, 2004, the Hearing Panel of the
Disciplinary Board, having accepted the
Stipulation and Consent to Discipline, reprimanded Patti J. Jensen for violation of Rule
1.4(b) RPC, which provides that a lawyer
shall explain matters relating to representation to the extent reasonably necessary to
permit a client to make informed decisions.
Jensen failed to return numerous telephone
calls from, and otherwise failed to adequately
communicate with, her client regarding a
Motion to Modify Child Support. A second
REPRIMAND was issued for violation of Rule
1.3 RPC, which provides that a lawyer shall
act with reasonable diligence and promptness in representing a client, in that Jensen
failed to provide information to the court as
promised. Costs and expenses of the disciplinary proceeding were assessed against Patti J.
Jensen in the amount of $250.
The Gavel
January 2005
Upon acceptance of a Stipulation and
Consent to Discipline, the Hearing Panel of
the ND Supreme Court Disciplinary Board
reprimanded attorney, Bruce L. Madlom,
licensed to practice in ND since 1989. The
Panel concluded and ordered that Madlom
violated N.D.R. Prof. Conduct 1.4 and 1.5(b)
in not adequately explaining his terms of
engagement and fee requirements in a bankruptcy matter, as well as further violation of
N.D.R. Prof. 1.5(a) and 1.16(e) in failing to
refund fees when representation was terminated before the bankruptcy petition was
filed. Madlom was ordered to pay restitution
to his former client in the amount of $650
and release her of any further obligation to
pay her daughter’s bill, as well as pay the
costs of the disciplinary proceedings in the
amount of $250.
Reciprocal Discipline,
Orders of Suspension
On January 15, 2004, the Disciplinary Board
notified the Supreme Court under N.D.R.
Lawyer Discipl. 4.4 that it was recommending
the reciprocal discipline of C. Charles
Chinquist, a member of the bar of the State of
North Dakota. The Record reflects that an
Order suspending Chinquist for failure to file,
or timely file, state and federal individual
income tax returns for the years 1991
through 2001 was filed by the Minnesota
Supreme Court in December, 2003, and a certified copy of the Order was received by
Disciplinary Counsel for North Dakota.
Under N.D.R. Lawyer Discipl. 4.4(B)
Chinquist was given notice that a certified
copy of the Order of Suspension filed by the
Minnesota Supreme Court was received, and
he had 30 days to file any claim that the
imposition of the identical discipline in
North Dakota would be unwarranted. By letter dated February 26, 2004, Chinquist agreed
to discipline similar to that imposed by the
Supreme Court of Minnesota. The Court considered the matter and ordered, under N.D.R.
Lawyer Discipl. 4.4(D), that C. Charles
Chinquist be suspended from the practice of
law for a period of 90 days, effective May 1,
2004. It was further ordered C. Charles
Chinquist pay the costs and expenses of the
disciplinary proceedings in the amount of
$250.
On April 12, 2004, the Disciplinary Board
notified the Supreme Court under N.D.R.
Lawyer Discipl. 4.4 that it was recommending
the reciprocal discipline of Kenneth F.
Johannson, a member of the bar of the State
of North Dakota. The Record reflects that an
Order suspending Johannson for violation of
Minn. R. Prof. Conduct 1.8(k), which provides
a lawyer shall not have sexual relations with a
current client unless a consensual sexual relationship existed between them when the
lawyer-client relationship commenced, was
filed by the Minnesota Supreme Court in
March, 2004.
The Record further reflects that on March 25,
2004, Disciplinary Counsel served Notice
pursuant to N.D.R. Lawyer Discipl 4.4(B) on
H. Patrick Weir, Attorney for Johannson in
March, 2004.
Under N.D.R. Lawyer Discipl. 4.4(B)
Johannson was given notice that a certified
copy of the Order of suspension filed by the
Minnesota Supreme Court was received, and
he had 30 days to file any claim that the
imposition of the identical discipline in
North Dakota would be unwarranted. By letter dated March 29, 2004, Johannson agreed
to identical discipline as imposed by the
Supreme Court of Minnesota. Johannson
waived any due process defenses based upon
lack of an identical North Dakota rule, and
requested the suspension run concurrent
with the dates of the Minnesota suspension.
The Court considered the matter and
ordered, under N.D.R. Lawyer Discipl. 4.4(D),
that Kenneth F. Johannson be suspended
from the practice of law for a period of 90
days, effective March 23, 2004. It was further
Ordered that Kenneth F. Johannson pay the
costs and expenses of the disciplinary proceedings in the amount of $250.
Transfer to Disability Inactive Status
Ordered
On April 26, 2004, an Application for the
Interim Suspension of Lee J. Balerud, a member of the Bar of North Dakota, was filed
under N.D.R. Lawyer Discipl. 3.4, asserting
that Balerud had committed misconduct or
was disabled, and posed a substantial threat
of irreparable harm to the public. The
Application further asserted that there were
25
ETHICS/DISCIPLINE
four complaints against Balerud under investigation, all of which claim that Balerud failed
to communicate with his clients and failed to
diligently pursue their cases. Balerud failed to
respond to three of the four complaints.
Disciplinary Counsel repeatedly tried to reach
Balerud at his office without success; however, Disciplinary Counsel had received a facsimile transmission indicating that Balerud
wanted to respond to the complaints but was
having difficulties, including a “medical side
to these difficulties.”
Disciplinary Counsel asserted the information provided supported a conclusion that
Balerud had committed misconduct, and that
he posed a substantial threat of irreparable
harm to the public. The evidence implicated
N.D.R. Prof. Conduct 1.3, Diligence, and 1.4,
Communication, and N.D. Stds. Imposing
Lawyer Sanctions 4.41(c), which provides
that disbarment is generally appropriate
when a lawyer engages in a pattern of neglect
with respect to client matters and causes serious or potentially serious injury to a client.
26
On May 5, 2004, Sheldon A. Smith submitted
a Response to Application for Order of
Interim Suspension on behalf of Balerud,
asserting that Balerud was medically incapable of responding to the allegations and
charges. The Response requested the Court
consider Balerud’s medical condition and
enter an Order under N.D.R. Lawyer Discipl.
5.1, Disability Proceedings. The Court considered the matter, and ordered Lee J. Balerud be
placed on disability inactive status under
N.D.R. Lawyer Discipl. 5.1(B) until further
order of the Court. It was further ordered all
disciplinary proceedings against Lee J.
Balerud be stayed for 60 days pending receipt
of an evaluation from a licensed psychiatrist
as to whether Balerud could assist in his
defense as well as his mental fitness to practice law. If no timely report was received, disciplinary proceedings would proceed. It was
also ordered Disciplinary Counsel promptly
apply to the district court for a professional
trustee as provided in N.D.R. Lawyer Discipl.
6.4. And that, Lee J. Balerud must give notice
of the Court’s action to his clients under
N.D.R. Lawyer Discipl. 6.3.
The annual conference of the
Guardianship Association of North Dakota will be held
April 20 and 21, 2005 at the Kelly Inn in Bismarck.
The conference theme is:
“When Personal Autonomy Collides with Health and Safety”
Speakers include Terry Hammond, an attorney from Texas who specializes in guardianship law,
and Dr. Patrick Konewko, Clinical Neuropsychologist in the Department of Neurology,
MeritCare Health System, Fargo, ND.
CEU’s are pending for attorneys, judges as well as for social workers.
For more information, contact 1-888-570-4277 or 701-222-8678.
The Gavel
January 2005
TRIBUTE
JIM RAUSCH
A LAWYER AND A GENTLEMAN
By Charles “Casey” L. Chapman
The North Dakota Bar Association lost a
true gentleman, when James (Jim) P. Rausch
died on June 13, 2004. As we know, lawyers
are not always gentlemen; there was no
doubt that Jim Rausch carried both titles
very well.
Jim grew up in Bismarck, graduated from
St. Mary’s High School, and attended UND,
where he graduated from the School of Law
in 1977. He returned to Bismarck to practice
law with his father, and continued to operate
the Rausch Law Firm until his death.
Jim is survived by his son, Chris of
Bismarck; his girlfriend, Lynn Larson of
Mandan, and her children, Jennifer, Matt,
and Ben; his mother, Gladys of Bismarck; his
aunt, Ruth Rausch of Bismarck, his uncle and
aunt Lester and Sally Laub of Bismarck; his
aunt, Millie Boatright of Jamestown; his
aunt, Etta Feldner of Mandan; and a great
many friends and relatives. He is also survived by his cat, Buddy, and his three tarantulas, Igor, Buffy, and Tootsie.
No one will dispute that Jim was a very talented attorney; in Bismarck, if there was a
question on real estate law, Jim was one of
those lawyers that could always be contacted
to offer his thoughts. Not sure about that
easement? Call Jim Rausch. Have a question
about the covenants in a warranty deed? Call
Jim Rausch. It wasn’t legal talent alone, however, which set Jim Rausch apart. Certainly,
there are other very talented lawyers in the
State of North Dakota. Few attorneys, however, could mirror Jim’s gentlemanly
demeanor. Jim’s ability to continually maintain courtesy in the day-to-day practice of
law was inspiring. It’s not that Jim declined
to stand his ground; it’s simply that Jim
espoused his client’s position, without the
typical lawyerly fanfare. No ranting, no raving, no threats.... simple advocacy in a way
that it was, no doubt, originally intended to
be pursued.
Jim’s gentle demeanor extended beyond his
law practice. He was a friend to many, and
wasn’t hesitant to offer support, when the
need arose. North Dakota District Judge
Bruce Haskell recalls that, when Judge
Haskell’s father died, Jim was quick to give
comfort. Jim’s father, and law partner, had
died, shortly before, and Jim expressed his
feelings about the loss of his own father and
used that experience to give support and
encouragement to Judge Haskell. As Judge
Haskell recalls, Jim’s actions were “really
thoughtful and really nice.”
To those who knew Jim Rausch, however,
those actions were simply a reflection of
Jim’s approach to life, i.e., do your job well,
but never forget family and friends.
We remember Jim Rausch, not simply as a
comrade at law who has passed from our
presence, but as an example of an individual,
who never forgot his priorities as a human
being, as he pursued the practice of law. As
individuals, each of us misses Jim Rausch,
and, as a Bar Association, we miss Jim
Rausch, the consummate professional.
James (Jim) P. Rausch
Jim’s ability to continually maintain courtesy in the
day-to-day practice of law was inspiring.
The Gavel
January 2005
27
SBAND MEMBERSHIP SURVEY
Chapter Three: Member demographics
This is the third in a series of reports on the important findings of the comprehensive membership survey conducted in 2003.
28
The Gavel
January 2005
SBAND MEMBERSHIP SURVEY
The Gavel
January 2005
29
NEWS &
On behalf of the Legal Services of
North Dakota Board of Directors
and management we would like to
thank the following private attorneys
who completed cases for LSND clients as
part of our Private Attorney Involvement
Project in 2004:
Bonnie Askew
Annette Bendish
Anthony Swain Benson
Eugene Buresh
Christopher Carlson
Gene Doeling
Lawrence DuBois
Edwin Dyer
Janel Fredericksen
Neil Gillund
Cynthia Wagner Goulet
Valeska Hermanson
Charles Isakson
Samuel Johnson
DeNae Kautzmann
Don R. Krassin
Ann Mahoney
Diane Melbye
Thomas Merrick
Kent Morrow
Jeff Nehring
Gary Neuharth
Mark B. Rasmuson
James Reisnour
Craig Richie
Cynthia Schaar
Mark Schneider
Susan Schmidt
Ted Seibel
Jared Simonson
Reed Soderstrom
Kevin Spaeth
Anne Summers
Paul Temanson
Faron Terry
Lyle Thomason
Maury C. Thompson
Neil Thompson
Theresa Zimmerman
Notes
SBAND Welcomes New Staff
Member and New Addition
Justine Schneider is the new CLE
Compliance Administrator and
Publications Coordinator. She began
her job on June 8, 2004, and previously
was a legal secretary for Zuger Kirmis
and Smith in Bismarck. Schneider
moved to Bismarck in 2003 from
Colorado. She has a bachelor’s degree
in journalism from the University of
Carrie and Charli
Justine Schneider
Wyoming.
Carrie Torgerson and Shane Molander welcomed a new daughter, Charli Amanda, on June
15. Carrie is the coordinator of the CLE and VLP programs at SBAND.
If you have any questions about our
Private Attorney Involvement Project,
feel free to contact Jim Fitzsimmons or
Private Attorney Involvement
Coordinator, Willa Rhoads, at
701-222-2110.
30
The Gavel
January 2005
NEWS &
Notes
Rules Allow Interactive Video Use in Criminal, Civil Cases
By Mike Hagburg, Staff Attorney, North Dakota Supreme Court
Rule changes that took effect March 1, 2004, have opened the door to expanded use
of interactive video in North Dakota criminal proceedings.
Amendments to N.D.R.Crim.P. 5, 10 and 43
allow criminal defendants to appear by interactive video at the initial appearance and
arraignment.
The amendments are in line with amendments to the federal criminal rules that took
effect December 1, 2002.
There is a significant difference, however, in
the language of the North Dakota interactive
video amendments and the federal approach:
the federal rules allow the use of video teleconferencing “if the defendant consents”
while the North Dakota rules allow interactive video to be used for an appearance “if the
defendant does not object.”
In other words, when federal courts wish to
use interactive video for a criminal appearance, authorities must obtain the consent of
the defendant. In North Dakota, an interactive video appearance may go forward unless
the defendant objects.
When it recommended the interactive video
amendments, the Joint Procedure Committee
proposed that the federal “consent” language
be used. The Supreme Court, however, chose
to adopt the “does not object” formula.
North Dakota has been taking steps to
widen the use of interactive video in the
courts since at least 2000, when
Administrative Order 11 was adopted. This
order established an interactive television
pilot project in the South Central Judicial
District. Under the order, interactive video
may be used in the SCJD for “a hearing, conference, or other proceeding” in both civil and
criminal actions.
In 2002, a similar pilot project order –
Administrative Order 13 – was put in place to
allow use of interactive video in civil and
criminal proceedings in the East Central
Judicial District. In 2003, an interactive video
pilot project designed specifically for mental
health proceedings was begun in the
Southeast Judicial District under
Administrative Order 15.
Attorneys who wish to take advantage of
interactive video should consult the applicable administrative order for their judicial district as a first step. Admin. Orders 11, 13 and
15 all contain provisions that exempt the districts involved from certain procedural rules
in conducting interactive video proceedings.
Instead, provisions in the pilot project orders
govern interactive video procedure in the
given district.
The pilot project orders at present are more
liberal than the procedural rules in allowing
use of interactive video. In particular, all the
pilot project orders allow testimony to be
taken by interactive video when certain conditions are met. Indeed, the main purpose of
Admin. Order 15 is to facilitate remote testimony from the North Dakota State Hospital
in mental health cases.
The criminal rules do not allow interactive
video testimony. The Judicial Conference of
the United States, which developed the federal videoconferencing rules, proposed an
amendment to Fed.R.Crim.P. 26 that would
have allowed testimony to be taken from
remote locations in some criminal cases. The
Supreme Court rejected this proposal as having “dubious validity” under the U.S.
Constitution’s Sixth Amendment
Confrontation Clause.
In civil cases the Confrontation Clause does
not apply, and both N.D.R.Civ.P. 43 and
Fed.R.Civ.P. 43 allow testimony to be taken by
“contemporaneous transmission.” In North
Dakota, such testimony is allowed if the parties agree. In the absence of an agreement,
the court may also authorize such testimony
“for good cause shown in compelling and
unexpected circumstances.”
A factor that may limit the expanded use of
interactive video is available technology.
Courthouses in Cass, Burleigh, Stutsman,
Mercer and McLean counties are equipped
with state purchased video systems and they
are being used in a variety of ways:
• In the South Central Judicial District,
equipment is in place that allows interactive
video transmission between Bismarck and
remote sites at Stanton and Washburn;
• the Southeast Judicial District, the
Stutsman County Courthouse and the State
Hospital are connected together for interactive video transmission;
• the East Central Judicial District, the Cass
County Courthouse is linked to the State
Hospital and equipment is in place for interactive video transmission between the courthouse and the new Cass
County Jail.
In addition the Stark and
Williams County courthouses have some video
capability.
Mike Hagburg
The Gavel
January 2005
31
NEWS &
Notes
Sean M. Fredricks Joins Ohnstad Twichell,
P.C. Law Firm as an Associate Attorney
The law firm of Ohnstad Twichell, P.C., is
pleased to announce that Sean M. Fredricks
has joined the firm as an associate attorney.
Sean graduated from Jamestown High
School. He was an All-American and an
Academic All-American football player at
NDSU, where in 1998 he graduated, with
honors, with a B.A. in English. In 2001, he
received his law degree, with distinction,
from the University of North Dakota School
of Law.
Prior to joining Ohnstad Twichell, P.C.,
Sean had been practicing law at a firm in
Minneapolis, Minnesota.
Sean practices in the West Fargo office, and
is licensed in both North Dakota and
Minnesota. He will maintain a general practice of law, but will concentrate his practice
in the following areas: municipal law, real
estate law, and litigation (including plaintiff ’s
personal injury and criminal defense).
Sean and his wife, Sarah, have a son and
reside in West Fargo.
Ohnstad Twichell, P.C., founded in 1939, is
a full-service law firm offering recognized
expertise in the areas of litigation (both civil
and criminal), employment law, estate planning, municipal law and bonding, corporate
law, family law, water rights, probate, real
estate, bankruptcy, farm foreclosure workouts, and taxation. The following attorneys
were recently elected as officers: Brian D.
Neugebauer, President; John A. Juelson, Vice
President; Robert E. Rosenvold, Treasurer;
Steven E. McCullough, Secretary; and David
L. Wanner and Ross V. Keller, Assistant
Secretaries.
It now has offices in Fargo, West Fargo,
Mayville, Hillsboro, Page, Hope, and Finley,
North Dakota, and Detroit Lakes, Minnesota.
CLASSIFIED ADVERTISING
ATTORNEYS
Legal Services of North Dakota
DUTIES: Representing low-income clients throughout North Dakota, practice in state
and federal courts and before administrative agencies. Caseload includes wide variety of
cases including consumer, housing, family, Indian, poverty, public benefits and elder law.
Community education activities are required. Location flexible.
QUALIFICATIONS: Sensitivity to client need; license to practice law in North Dakota,
eligible for reciprocity, or willing and able to take next bar exam; and strong oral and
writing communications skills. Experience in poverty law preferred. The applicant must
be a motivated self-starter who can assume a significant and diverse caseload.
SALARY RANGE: $31,477 and up, DOE plus excellent fringe benefits
APPLICATION DEADLINE: Employment will not begin until January 1, 2005. Open
until filled.
TO APPLY: Request an application form or take from website. No resumes will be
accepted in place of an application.
Legal Services of North Dakota
Attention: W. Rhoads
P. O. Box 1893
Bismarck, ND 58502-1893
email: [email protected]
Website: legalassist.org
EEO based on age, race, color, religion, gender, disability, national origin, or sexual
preference.
32
Rebecca Thiem (left) at her first NCBE meeting in
Telluride, CO.
Rebecca S. Thiem Elected to
the Board of The National
Conference of Bar Examiners
Rebecca S. Thiem of Bismarck, North
Dakota, was elected to the Board of Trustees of
the National Conference of Bar Examiners in
August of this year. The National Conference,
which produces multistate bar examinations
for use by U.S. jurisdictions, is governed by a
twelve-person board.
Thiem is a partner in the Bismarck law firm
of Zuger Kirmis & Smith. She is the current
president of the North Dakota State Board of
Law Examiners, the entity responsible for
investigating and recommending applicants
for admission to the North Dakota Bar, and has
served on that Board for 14 years. She also
serves on the Bar Admissions Committee of
the American Bar Association’s Section of
Legal Education and Admissions to the Bar.
Thiem, who received a Distinguished Service
Award from the State Bar Association of North
Dakota, is listed in The Best Lawyers in
America.A graduate of Valparaiso University,
she earned her J.D. at the University of North
Dakota School of Law.
The National Conference of Bar Examiners is
a non-profit organization that develops and
provides tests and services to bar examining
boards and state supreme courts across the
nation. There are four multistate tests offered
by the National Conference—the Multistate
Bar Examination (MBE), the Multistate
Performance Test (MPT), the Multistate Essay
Examination (MEE), and the Multistate
Professional Responsibility Examination
(MPRE).
The Gavel
January 2005
PRESIDENT’S MESSAGE
By Sherry Mills Moore
President, SBAND
Active Membership
is Vital to a
Strong Association
Since writing this column last summer,
a lot has happened. So I have decided that
I do need a theme, one from John Lennon,
which is “Life is what happens while you are
busy making other plans.” I learned the
wisdom of this while raising children, but
apparently it is applicable for being the
President as well. Those of you who tune into
cybermessages from SBAND, or other
information pipelines, know that Christine
Hogan has resigned. While we will miss her
elegant touch and passion for the association,
we do move forward. The Board has put into
place an interim operating group, a search
committee, hired Joel Gilbertson as our
lobbyist, and many other mechanisms to
assure that the business of the bar continues
until we have a new executive director at the
helm. Thank you to Christine, to the Board of
Governors, and to the membership for your
energy and commitment to SBAND, especially
at this time. Chief Justice VandeWalle once
said that change is good, it is the transition
that will kill you. I affirm him on the former
and hope to prove him wrong on the latter.
Cover: Bar President Sherry Mills Moore with her
husband Tim, daughter Katie, and son Charlie.
Do you know the difference between irreverent
and irrepressible? I hope so, because in writing
this column I am trying to avoid the former and
am burdened with the latter.With that caveat,
read on.
When you get elected to the position of
President-Elect you learn that you may well be
expected to have a theme for the year, a pet project, a focal point. That expectation alone ratcheted
up the tension associated with the pending presidency.A theme, good grief, is this like prom where
I need signature colors and a catch phrase?
Blessedly, as the year in the chute progressed, I
came to understand that it is neither so simple,
nor so complicated. No “carmine with touches of
white”, no “tonight’s the night”. Just a simple
question, what is my focus for this year? Let me
try to answer that.
Over the past few years the bar association has
had some struggles, primarily financial.And you,
the membership, stepped up and gave us the dues
increase that we needed. Thank you. This means
we can have adequate staff to continue the services we do provide and breathe life back into those
which, frankly, had to sit on the shelf for awhile.
You gave us what we asked for now we are going
to give you what you have said you want, while at
the same time being careful stewards of SBAND
resources.
When did you speak, you might ask.A membership survey was done in 2003 and what you said
was most important to you were our publications,
CLE, Ethics Opinions, Judicial Candidate
Evaluations, Inquiry Committees,Volunteer
Lawyers and the Consumer Protection
Committee.All of these services require committee and section input. So, to give you the services
you have asked for, we need not only the paid
staff, but an active membership who participates
in the association.
Perhaps the best vehicle for involvement is
through the committee work and the sections. My
focus, then, is to revitalize those committees and
sections which have been less active and to continue to support those which are more so. SBAND
supports the committees and sections with the
staff they need to organize the meetings, record
the business, and carry out the directives.As the
lifeblood of the association, the committees and
sections keep us in tune with members’ needs
and expertise. In turn, serving on a committee
and working in a section gives members a better
understanding of the association.
Already, the association is working with the
Business and Corporations section to look at clarifying/revising/updating the state’s constitutional
article on corporations. The Indigent Defense
Task Force has completed its work in making
recommendations, but now we have to draw
together to push the legislation through, making it possible for our members who represent
the indigent defendants to be able to do their
job, and feed their family.With the new rule
approval, the Lawyer Assistance Program needs
to evolve from idea to implementation, and it
will. The Family Law section has some ideas
bubbling. The Volunteer Lawyer Program is
facing its never-ending quest to match need
with availability. The Consumer Protection
committee has been very active.And, you probably are very aware that the judicial evaluation
poll has been red hot.
From a purely selfish point of view, committee and section work can be enormously fulfilling. On this I speak from what I know.Years
ago I asked to be put on a committee.
Eventually, with the lure of training in Dallas
with the ABA, I agreed to chair the Volunteer
Lawyer Committee. This is like buying on
credit.You agree to get something now with the
thought that payback time is far far away. But
then the payback of the committee starts to
pull on you which leads you to more work,
more committees, in my case some task forces,
some appointments, and voile’, here I am.All
irrepressibility aside, even if there are not
enough committee appointments for all who
are interested (and there are not), digging into
the work of your section is a great way to help,
to learn, to network, and to have other opportunities.And, the association is greatly benefited by your individual experience, skills, and
commitment. If I can avoid a theme surely I
can avoid clichés, except this one, it is a winwin combination.
When I put my name out to run for
President-elect, the most common comment
was, why would you want to do that? The reasons are myriad and run the gamut from free
lunch to a true fondness for the bar association
and its work. The next question asked was how
can you, a solo practitioner, handle the work?
Skipping any flip responses the answer is, how
will I know until I have done it? What I do
know is that I really truly do welcome your
input and will make time for it. If you have an
idea or a problem, call or write or e-mail me or
stop me on the street. Equally good, talk to the
staff or members of the board. As this column
ends, my time is up for that snappy theme, so
here goes. Confucius or Eleanor Roosevelt, by
way of my mother said, do not curse the darkness, light a candle. I prefer to do both and so
can you.
Mark Your Calendars…
ANNUAL 5K AND 10K RUN FOR JUSTICE
April 30, 2005
Sertoma Park, Bismarck
Contact SBAND at 255-1404, or Committee Chair LaRoy Baird at 223-6400
Sponsors, Runners and Volunteers Needed!
2005 SBAND ANNUAL MEETING
June 14-17, 2005
Ramkota Hotel, Bismarck
Published by The State Bar Association of North Dakota
P.O. Box 2136
Bismarck, ND 58502
PRESORTED
STANDARD
US POSTAGE
PAID
BISMARCK, ND
PERMIT NO. 188
Official Publication of the State Bar Association of North Dakota
JANUARY 2005
SBAND President Sherry Mills Moore & Family