FEBRUARY 2010 • VOLUME 57, NUMBER 1
CALENDAR OF EVENTS &
CLE SEMINARS
March 15-16
SBAND Sun & CLE
Costa Rica
April 5
Free Ethics IVN:
Common Ethical Issues in Litigation
April 19
Bankruptcy IVN
June 3-5
2010 Jack Rabbit Bar Annual Meeting
Radisson Hotel, Fargo
June 15-18
2010 SBAND Annual Meeting
Ramkota Hotel, Bismarck
November 18-19
Family Law Section Seminar
Kelly Inn, Bismarck
December 2-3
Real Property, Probate & Trust Law
Section Seminar
Ramada Plaza Suites, Fargo
Additional seminars will be added
throughout the year
Dates & seminar titles subject to change
Official Publication of the State Bar Association of North Dakota
FEATURES
President’s Message . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Fargo Athletes Benefit from Coaching by Dunn and Williams . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Blowin’ in the Wind: New Legislation on Wind Leases
by Constance Hofland, Zuger Kirmis & Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
War Stories: The Prize Rooster Case
by David L. Peterson, Bismarck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Leadership Forum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Member Profiles: Know Your Board Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Young Lawyer Showcase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Direct Case Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Committee Volunteers Needed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Committee Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
ABA Nominates North Dakota Lawyer to Board of Governors . . . . . . . . . . . . . . . . . . . . . . . . . .15
NDBF Scholarship Winners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
DEPARTMENTS
ABA Report: American Bar Association: Defending Liberty, Pursuing Justice
by James Hill, SBAND Delegate to the ABA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Memorials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
North Dakota School of Law: Ringing in the New Year at UND School of Law
by Kathryn Rand, University of North Dakota Law School . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Bar Foundation Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Information Inadvertently Sent Part III
by Daniel J. Crothers, Justice, North Dakota Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Ethics & Discipline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
News & Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
State Bar Association of North Dakota Officers
President: Jane Dynes, Fargo
President-Elect: Sandi Tabor, Bismarck
Secretary-Treasurer: Michael Williams, Fargo
Immediate Past President: David Maring, Bismarck
ABA Delegate: James S. Hill, Bismarck
P.O. Box 2136
Bismarck, ND 58502
701-255-1404
Toll free: 1-800-472-2685
www.sband.org
Board of Governors:
Robert Keogh, Dickinson; Hon. Gail Hagerty, Bismarck;
Asmunder S. Benson, III, Bottineau; Fallon Kelly, Lisbon;
Nancy Morris, Fargo; Kristen Pettit, Grand Forks;
Dennis E. Johnson,Williston; Petra Mandigo Hulm,Young Lawyer Rep;
Kathryn Rand, Dean, UND Law School, Grand Forks
The Gavel is published by the State Bar Association of North Dakota
504 N.Washington St., Bismarck, ND 58501
E-mail The Gavel: [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
February 2010
1
PRESIDENT’S MESSAGE
We are getting older. This likely does not
come as any big surprise to you individually,
but it has some wide ranging implications
for our Association. The chart below, from
the Board of Law Examiners, shows the
increasing age of licensed attorneys in North
Dakota.
By Jane Dynes
President, SBAND
2
Age
20-29
30-39
40-49
50-59
60-65
66-69
70-79
2008 2006 2004 2002
124 104 80
77
371 348 379 392
459 490 497 560
638 616 587 519
201 166 142 139
71
64
52
49
65
64
69
67
2000
88
424
634
445
106
52
72
As of the date of the survey (September
2008), one-third of all lawyers licensed in
our state (638 of 1,929) were in the 50-59
age group. The numbers of North Dakota
lawyers in the 40-49 (459) and 30-39 (371)
age groups were also significantly larger than
those in the 20-29 age group (124).
This trend means that, in coming years,
SBAND will likely face declining license fee
revenues, and a smaller pool of attorneys to
volunteer their time to serve as members of
SBAND leadership and SBAND committees
and task forces. In addition to the “aging”
trend, SBAND, like other professional, community and service organizations, has seen
the level of its members’ participation in
some activities wane over the years. SBAND
recognizes the need to establish a meaningful relationship with our “young” lawyers and
nurture our relationship with our “seasoned”
lawyers. During his presidency, Dave Maring
initiated measures to address at least one of
the above-mentioned concerns – the need to
develop a mutually beneficial relationship
with SBAND’s “young lawyers” (those attorneys licensed less than five years or no more
than 35 years of age).
Once such measure was SBAND’s
Leadership Forum for young lawyers, held
this past November in Bismarck. Twenty-one
young lawyers applied for, received admission to, and participated in the two-day
Leadership Forum. The Women Lawyers
Section; Young Lawyers Section; Real
Property, Probate and Trust Law Section;
Business and Corporations Section; and the
Government Lawyers Section were most generous in their willingness to subsidize the
cost of the Leadership Forum to reduce the
financial burden on those attending. These
young professionals gave up time that
otherwise would have been spent in their
practices, in their communities, and with
their loved ones. They chose to invest that
time in learning ways to become better leaders. Kathy Story, a consultant and facilitator
with over 25 years of experience in law, education and counseling, was the Forum’s
leader. She guided those in attendance
through exercises that helped to identify
learning and leadership styles. That awareness was then used by the attendees, through
various exercises, in developing an authentic
leadership method personal to them. The
Forum focused on creating and delivering
effective presentations, learning how to master resilience in the practice of law, and on
making commitments to further the lessons
learned.While it is SBAND’s hope that the
leadership skills these young lawyers learned
will, in part, be used to guide SBAND in the
future, there is no doubt the skills acquired
will benefit the attendees’ practices and communities.
Members of our Association also participated in the Leadership Forum. Chief Justice
VandeWalle provided the opening remarks,
and President-Elect Sandi Tabor shared
some of her key life experiences with the
attendees in the “Modeling of Milestones”
exercise. In addition, Jim Hill, Dave Maring,
Justice Mary Maring, and I spent time with
the attendees to encourage them in their
leadership development.
Those in attendance indicated they found
the Leadership Forum to be a valuable experience. The challenge for those of us who
participated is to follow through with our
commitments and continue to work on the
lessons and skills necessary to create valuable leaders.
I want to thank the young lawyers who
participated in the Leadership Forum and
the experienced attorneys who gave their
time and talent to support it. It is SBAND’s
hope that the Leadership Forum can become
a recurring event, as it is a wise investment
for the future of our Association and our
profession.
The Gavel
February 2010
GIVING BACK TO THE COMMUNITY
Fargo Athletes Benefit
from Coaching
by Dunn and Williams
This is the first in a series of articles about
how North Dakota lawyers are giving back to
their communities. Suggestions for future
stories can be emailed to Justine Rowinski,
[email protected].
It’s not that Dan Dunn and Mike Williams
don’t already have busy lives. Both lawyers at
the Maring Williams Law firm in Fargo, they
also have wives and children. But a love of
sports, an interest in working with young
people, and a desire to give back to their community have brought them to the center of the
action on area football fields and basketball
courts.
“Sports teaches some of the best life lessons,”
says Williams,“including teamwork, work
ethic, sacrifice and discipline.” He learned
some of these lessons while playing high
school football and basketball, and as an adult
he found himself drawn back to sports.
His coaching began with girls’ basketball in
the early 1980s in Bismarck, and later with
youth basketball and football after he moved to
Fargo.“There are never enough adults for all
the needs in youth athletics programs,”
Williams says,“and this is true in Fargo.”
Over the past 20 years in Fargo he had
coached fourth grade football, youth basketball
at the YMCA, traveling basketball, AAU
basketball, and the Fargo South High School’s
summer traveling program before he became
an assistant coach for the Fargo South varsity
basketball team in 2007 and 2008. During his
last year, he was able to help coach Fargo South
to the state championship game. Williams still
helps out occasionally as needed by the team.
“I love basketball,” says Williams,“it has
smaller numbers than football, and it offers an
opportunity to build relationships with kids.
You really get to know the players, and I have
felt as close to some of them as I have my own
kids.”
A year ago Williams went to a wedding of
one of the young people he coached, and the
groom and six of his friends pulled him over
to share memories of the good times they had
in fourth grade basketball.“Many of these
young men had gone on to play high school
and college sports, and yet some of their best
memories were from their grade school
teams.”
Some of the lessons Williams hopes he has
been able to teach through coaching is to
always have passion and enthusiasm, and do
well in whatever they do.“There’s more to the
game than winning and losing and often the
real competition is with yourself.”
While growing up in Fargo, Dunn remembers
the coach he had in fourth grade football.
Mike Williams (holding notepad) joins other Fargo South Bruins coaches to discuss team strategy at the 2008 State
Championship game in Bismarck.
The Gavel
February 2010
Shanley High players line up with Dan Dunn to receive
their State Championship plaques at the 2009 Dakota
Bowl in Fargo.
“I still recall some of the things he told us
about football.” Dunn went on to play football
at Fargo North High School and Moorhead
State University. Beginning in 2001 he coached
youth soccer for six years and basketball for
five years. With his three children now students
at Shanley High School, he has spent the past
three years as one of the coaches for the
school’s varsity football team. He is the offensive line coach, and also coaches the punt
team. Last fall, Shanley took the state football
championship.
“I really enjoy my time with these young
athletes,” says Dunn.“It’s fun to be part of
teaching and molding them into productive,
thoughtful and caring young people.”
During football season from August 11 to
November 15, Dunn says it sometimes feels
like he had two full-time jobs.“It requires
about 30 hours a week, either in meetings or
practice. It creates a challenge to try to balance
work, football and family.”
Williams learned to work efficiently and at
odd hours to meet
the demands of
“Sports teaches
working and coaching.“I would come in some of the best
early or bring files
life lessons,”
with me on the bus
rides to the games.”
says Williams,
And, these lawyers
“including
both credit the
support of their
teamwork,
families and their
work ethic,
law firm – especially
good secretaries
sacrifice and
and paralegals –
for helping them be
discipline.”
successful coaches.
3
WIND LEASES
Blowin’ in the Wind
New Legislation on Wind Leases
By Constance Hofland
Zuger, Kirmis & Smith, Bismarck
In 2009 North Dakota enacted legislation that
establishes very specific requirements for wind
leases and wind easements. This article is just
a general discussion as a “heads up” on this
issue. Consult the statute itself for the specific
requirements, of which there are many.
Chapter 17-04 of the North Dakota Century
Code covers wind energy property rights. The
new section, 17-04-06, was enacted this year.
This section adds several specific requirements
for wind easements and wind energy leases,
including in some instances, a certain required
font size.
For example, the lease or easement must be
delivered to the property owner with a cover
page containing the specific paragraph that is
in the statute, in 16-point type. This paragraph
starts off with “Special message to property
owners” and goes on to point out the agreement is important, binding, needs to be studied, and hiring a lawyer is strongly encouraged.
The language also suggests the property owner
talk to neighbors about contracts they have
received. NDCC 17-04-06(1)(a).
Section 17-04-06(1), in subsections (b)
through (i), lists several other “musts.” Some of
these “musts” include a 10-day waiting period
between delivery of the lease and execution,
the prohibition against any requirement to
4
keep negotiations confidential, and the need to
preserve the right of the property owner to be
able to continue conducting current business
operations during the term of the agreement.
Also, the property owner cannot be made
liable for property tax associated with the wind
energy facility; damages caused by the wind
energy facility; or violations of laws by the
developer, owner or operator.
The property owner must be allowed to terminate the agreement if the wind energy
facility has not operated for a period of at least
three years, unless the property owner is paid
the minimum lease payments that would have
been paid if it had been operating during that
time. The statute goes on to define “normal
minimum lease payments.”
Also, the agreement must state clearly any
circumstances that would allow the developer,
owner, and operator of the wind facility to
withhold payments for the property owner.
The owner of the facility must carry general
liability insurance for property damage or
bodily injury arising out of the construction or
operation of the wind facility.
This is just a quick overview to let you know
these specific requirements exist.You “must”
study the statute itself for the specifics.
The Gavel
February 2010
WAR STORIES
THE PRIZE ROOSTER CASE
David L. Peterson, Bismarck
A number of years ago SBAND had a program called: “Ask a Lawyer” on May 1st which
was Law Day. On that day a person could call a
lawyer with a legal problem and an answer
would be provided free of charge.
I received such a call and the question was
“Whether a wife could successfully plead ‘justification or self defense’ if she assaulted or
killed her husband because of his snoring?”
Knowing the caller, and the obvious frivolity of
the question, I sent her a multiple page letter
answering the question in great detail. I concluded my sage advice suggesting that she
could solve the problem by proper usage of a
plumbing plunger placed over her husband’s
nose or else she could consider engaging in a
romantic interlude each time she was awakened by her husband’s snoring.
Several days later when I returned from
lunch I was surprised that most of the secretaries in our office decided to follow me into
my office. They did not usually do that and
then when I entered my office I was surprised
to see a large box on my desk. Even more surprising was the fact that the box was jumping
around. On the lid of the box was a nice card
thanking me for the sage advice and then said
that she was so appreciative she wanted to
compensate me for the advice and since I was
a lawyer in a farm state she thought it appropriate to compensate me with farm produce. I
opened the box and out jumped a nice plump
rooster which I quickly grabbed and stuffed
back in the box before it “fowled” my office.
Then I had to decide what to do with this
wonderful rooster.
I quickly recalled a recent very complex case
that I had tried in County Court in Mandan
against Dewey Kautzmann wherein he claimed
that my client’s dog had come to his client’s
farm and killed a number of chickens and a
billy goat. I had prevailed in the case and
thought perhaps Dewey had taken the case on
a contingent fee expecting to receive some
chickens as his fee. But since he had lost the
case I thought it would be a nice gesture if I
gave the rooster to Dewey. I grabbed the box
with the rooster and headed for Dewey’s
Mandan office. When I got there he was in
conference so I left the box in his waiting room
explaining to his secretary that Dewey should
be sure to open the box before
going home for the evening.
I just got back to my office in
time to take a call from Dewey
thanking me for the rooster and
advising that he intended to
eat it.
I then called my wife to tell
her what a trying day I had
been having and told her Dewey
had the rooster and intended to
eat it. Diane said “Oh no!! He
can’t do that because she
(the client with the question who had shared
her little ploy with Diane) borrowed the rooster from the Dakota Zoo in Bismarck.” So
Diane called the client with the question and
told her that the zoo rooster was in Mandan
about to be eaten. The client quickly drove to
Mandan and rescued the rooster and returned
it to the Dakota Zoo. For several years after
that the same client called on May 1st with
some interesting question but she never again
paid me with farm produce – but we have had
many laughs over this event.
WAR STORIES – WE’VE ALL GOT ’EM –
LET’S ALL SHARE ’EM!
One of the best things about being a lawyer is hearing one another’s war stories – those great experiences we’ve had or heard about. The storied greats of
our profession live on in that oral history. It’s time some of that oral history
became written, and we want to write it in The Gavel, so send us your war
story – witnessed or merely rumored, true or apocryphal. We’ll pick out the
best ones we dare to print, and include them in future issues. Don’t let those
great stories die – give us a chance to tell them again, and keep our profession’s
oral history alive.
Email your story for consideration to [email protected].
The Gavel
February 2010
5
LEADERSHIP FORUM
SBAND’s First Leadership Forum
Reaches Out to Young Lawyers
One of the goals of the SBAND Board of
Governors in recent years has been to connect more with the state’s young lawyers. Last
November, 22 young North Dakota lawyers
spent two days at a Leadership Forum learning more about themselves, their learning
styles and their potential for leadership in
their profession and their community.
This was the first year SBAND had sponsored this Leadership Forum for its members
who are 35 years or younger or have practiced for less than five years. It was led by
Kathy Story of Story Consulting of Memphis,
a lawyer who has conducted similar programs for bar associations in other states.
Some of the costs for each participant were
covered by SBAND’s Women Lawyers,Young
Lawyers, Real Property, Probate & Trust,
Business & Corporations and Administrative
& Government Lawyers sections.
“We want to make our association more
open for involvement to our new members,”
says SBAND President Jane Dynes. “If this
forum helps them become stronger leaders,
we know it will strengthen SBAND, as well as
other aspects of their lives.”
The sessions covered the different ways
people learn, how to lead a group and how to
make decisions and motivate others. Three of
the participants shared how they benefited
from attending.
“I thought the most valuable part of the
leadership conference was the goal setting
that was done at the conclusion of the conference,” said Katy Schaefer of Minot. “It was
concrete and required a commitment by each
person made in furtherance of the information that was learned at the conference. The
goals are obligations I feel compelled to
achieve.” Since the conference, Schaefer said
she has made an effort to implement the
information she learned from the people who
were “listeners.” “I am a ‘talker’ and I would
have to find a listener to talk to tell me
whether I have been successful in that
endeavor.”
Schaefer is an associate at McGee, Hankla,
Backes & Dobrovolny, P.C., and has been
practicing since 2007.
Daniel Kelsch has practiced law in
Washburn for less than a year. “The conference was thought-provoking,” he said. “It was
a small group that made us look within ourselves – and that is where leadership begins.”
He also liked the personal stories and life
profiles they were able to develop at the
Leadership Forum facilitator, Kathy Story.
conference.“It was inspiring to learn that
being adaptable and open to change can help
us reach some of our goals in 10 years or so.”
Carlee McLeod said she enjoyed the company of the others attending the forum. “As a
young attorney we don’t have the opportunity
to interact with other colleagues very often.
It was exciting to see the talent, skills, dedication and potential of everyone there,” she
said.
McLeod enjoyed studying the different
communication styles of people and how
these styles affect others. “It was interesting
to learn how people approach tasks in various ways. I thought the way I did it was the
way everyone did, and I learned that is not
the case.”
She also benefitted from the sessions on
managing energy. “We learned there are
energy sources and energy drains, and how
small changes in schedules or routines can
make a big difference. I have implemented
some of these changes and it has helped me
be more productive.”
McLeod has practiced law for five years and
was a legal counsel and lobbyist prior to
becoming the Deputy State Treasurer last
summer.
Dynes says SBAND hopes to offer the leadership forum again in the future, perhaps
biennially.
SBAND’s first Leadership Forum was designed to
encourage young lawyer involvement and development
in their profession, association and communities.
6
The Gavel
February 2010
MEMBER PROFILES
Know Your SBAND Board Members
This is the first of a series of profiles about North Dakota lawyers who serve on the SBAND Board of Governors.
FALLON KELLY
Southeast Judicial District
PETRA MANDIGO HULM
Young Lawyer Representative
HON. GAIL HAGERTY
South Central Judicial District
Hometown: Lisbon
College and law school attended: North
Dakota State University and Hamline Law
School.
Any professional work prior to
law school: Worked in my family’s newspapers.
What led you to a career in law?: My
undergraduate degree was in anthropology
and I wanted to have a direct effect on
helping people rather than just studying
people.
Year admitted to the Bar: 2003
Nature of your Practice: Small town
general practice, Jones and Kelly, P.C., Lisbon
Length of time on SBAND Board:
Since summer of 2007
Particular areas of interest regarding
SBAND or legal profession in North
Dakota: I am concerned about the apparent
trend of fewer and fewer attorneys living and
serving the rural areas of North Dakota.
Favorite quote: “It is better to fail in originality than to succeed in imitation,” Herman
Melville.
Last book read (good or bad): East of Eden
Hometown: Bismarck
College and law school attended: Ripon
College and Creighton University School of
Law
Any professional work prior to law
school: I was a chemist before law school.
What led you to a career in law?: Initially,
I wanted to do intellectual property, but after
one summer of clerking in a patent firm,
I quickly changed my mind!
Year admitted to bar: 2003 in Nebraska and
2004 in North Dakota
Nature of your Practice: Civil cases, administrative hearings, labor and employment,
commercial at Crowley Fleck PLLP, Bismarck
Length of time on SBAND Board: Less
than one year
Other involvement with SBAND prior to
being on Board: Attorney Standards
Committee, Annual meeting planning, a few
task forces. I’m looking forward to being
active on other committees.
Particular areas of interest regarding
SBAND or legal profession in North
Dakota: Young Lawyers is my current area of
interest. I want to raise participation, make
this section active, and encourage involvement by all young lawyers.
Favorite quote: I don’t have one, but maybe
I should.
Last book read (good or bad): North
Dakota Century Code. Really, this is the last
book I read.
Hometown: Grand Forks
College and law school attended:
University of North Dakota and UND School
of Law
What led you to a career in law: When I
was in junior high school, a teacher gave me
an aptitude test as part of her study for a
master’s in counseling. She told me I had an
aptitude for the law and suggested a career
as a lawyer or judge. That opened an ambition I might not have had otherwise.
Year admitted to bar: 1978
Nature of your Practice: Judge, South
Central Judicial District, Bismarck
Length of time on SBAND Board:
Six months
Other involvement with SBAND prior to
being on Board: I’ve served on a number
of committees including the legislative
committee and the family law task force. I’m
president of the Big Muddy Bar Association
this year.
Particular areas of interest regarding
SBAND or legal profession in North
Dakota: I’m particularly interested in
uniform laws and the uniform law process,
drug courts, and the drafting of pattern jury
instructions.
Favorite quote: “Life is a journey, not a
destination,” Ralph Waldo Emerson
Last book read (good or bad): Little Bee
by Chris Cleave
The Gavel
February 2010
7
ABA REPORT
American Bar Association
Defending Liberty,
Pursuing Justice
By James Hill
SBAND Delegate to the ABA
From time to time, even the most ardent
supporter of the American Bar Association
must reflect upon the association and remind
oneself of its importance to the lives of not
only practicing lawyers but the justice system
of this country. Sometimes it takes difficult
economic times or international disasters to
high-point the visibility of the American Bar
Association and the essential function it plays
in making certain that citizens continue to
have access to competent legal help in the
judicial system.
As a new lawyer, joining the ABA as soon as
I passed the bar was a given. Joining at that
time appeared to be the right thing to do and
belonging to the American Bar Association
was simply part of being a lawyer and supporting the legal profession. Times have
changed. Lawyers do not automatically join
any specific professional association like the
ABA. It remains the largest professional association in the country. Its impact upon the
judicial system is undeniable and its leadership in preserving the system of justice
enjoyed in the United States is unparalleled.
So, the question is “why should young
lawyers join the American Bar Association?”
The simple answer is that by membership,
lawyers become involved most specifically in
divisions that most closely relate to that aspect
of the profession chosen by that lawyer.
Division membership provides a critical window for young lawyers (and not so young
lawyers) to look outside and beyond law
school and the early years of practice and into
critical issues facing professionals in the legal
field throughout the nation.
The ABA provides contacts for marketing
and knowledge exchange with colleagues
8
nationwide who work within a given practice
area and who have different approaches to
challenges that young lawyers and old lawyers
alike face daily. There is access to information
in current legal fields through the ABA
Journal, the weekly Journal E-Newsletters and
dozens of practice specific journals and email
newsletters from sections, divisions, and committees throughout the ABA. The reach of the
ABA is broad and sweeping.A casual view of
the ABA website illustrates the point vividly.
See www.ABA.net.org
The ABA is the leader in providing continuing legal education to the legal profession. On
a regional and national basis, it provides
opportunities for lawyers to hear national
experts address legal issues through teleconferencing, webinars, podcasts, and on-site
meetings. The ABA has also been a leader in
developing means and ways to produce educational seminars in the most expedient and
economic manner.
Its divisions and sections provide management tools, tips on legal technology, and free
ethics research. They are unparalleled in what
they provide to this profession.
On a professional basis, the ABA provides an
expanse of leadership opportunities through
the sections and its committees. By joining
divisions and sections, a lawyer is provided
opportunities on a national basis to contribute
to the legal profession. The divisions and sections have numerous ongoing task forces and
every facet of the profession from young
lawyers to senior lawyers are included in some
way, not only in task forces but in the governing House of Delegates.
The ABA is a legend with respect to its
newsletters, magazines, books, national con-
ferences, webinars, and its service opportunities which includes a significant lobbying
presence in Washington, DC.
Perhaps the most important of the valued
aspects of membership is the opportunity for
providing pro bono services.Without the
American Bar Association standing vigilant in
Washington, the present judicial system and
law would not stand as it is today. The ABA’s
support of legal services is unquestioned and
is a powerful voice for continued financial
support of that system of legal service.
The association also stands for providing
public knowledge and understanding of our
system of government and to promote civic
education throughout this state.
While all of us belong to the State Bar
Association of North Dakota, there is only one
bar that exists on a national and international
basis that is able and capable of doing the following:
• The ABA consistently advocates for adequate funding to provide legal services to the
poor, opposing legislation that reduces federal
support or limits services to groups such as
low-income military personnel.
• The ABA vigorously promotes the importance of an independent judiciary. This
includes promoting a fair and impartial judicial system, assisting courts in responding to
actual and potential infringements and promoting public awareness of the need for an
independent judiciary in our democratic system.
• The ABA advocates nationally for adequate
compensation for our federal judges.
• The ABA has worked for more than 30
years on behalf of children, leading the charge
for legislative reform in areas ranging from
child abuse and neglect to youth health issues.
The Gavel
February 2010
• Through its Rule of Law Initiative, the ABA
works internationally to promote access to
justice, freedom of information laws and
women’s rights.
In conclusion, the individual lawyer cannot
alone succeed on a mission to protect
individual rights and justice for all within this
country. The American Bar Association represents all lawyers, in all fields, in all regions,
and has become an unquestioned advocate for
the American judicial system.
As trite as it may seem, belonging because it
is the “right thing to do” is perhaps the easiest
explanation and the most pure reason for
doing so. If lawyers do not stand up and
participate in an organization that seeks to
preserve the system of justice in this country
then, of course, it begs the question who will
do so.
The process is relatively easy and you are
encouraged to review the ABA website and
explore the many opportunities available to
you as professionals on becoming a member
of the American Bar Association.
MEMORIALS
The North Dakota Bar Foundation has
received the following memorial
contributions:
In memory of Michael R. McIntee
(October 17, 2009)
Neff Eiken & Neff, PC
In memory of Hon. Adam Gefreh
(November 18, 2009)
State Bar Association of North Dakota
In memory of Alan Grindberg
(January 11, 2010)
Hon. Carol Kapsner
State Bar Association of North Dakota
Hon. Gerald VandeWalle
In memory of Gene P. Johnson
(January 24, 2010)
State Bar Association of North Dakota
ALTERNATE DISPUTE RESOLUTION SERVICES
QUALIFIED
NEUTRAL MEDIATORS
JACK G. MARCIL
MAUREEN HOLMAN
ROGER J. MINCH
[email protected]
[email protected]
[email protected]
701-232-8957
1-800-726-1963
www.serklandlaw.com
Mediation is an effective and cost efficient
method to resolve disputes. We specialize in
mediation in the following areas:
Personal Injury
Wrongful Death
Professional Malpractice
Construction
Family Law
Products Liability
Estates
Discrimination
Commercial
Contract
Bankruptcy
Banking
Alternate dispute resolution can also include
Arbitration, Early Neutral Evaluation,
Mediation/Med. Abitration.
FAX: 701-237-4049 • 10 Roberts Street, PO Box 6017, Fargo, ND 58108-6017
The Gavel
February 2010
9
YOUNG LAWYER SHOWCASE
CHARLES G. DEMAKIS
Charles DeMakis obtained his Juris Doctor degree (with distinction) from the UND School
of Law in 2004. He is an associate with Olson & Burns, P.C. in Minot.
Charles is admitted to practice before the North Dakota Supreme Court, the United States
District Court for the District of North Dakota, the United States Court of Appeals for the
Eight Circuit, and the United States Tax Court.
While he maintains a general law practice, Charles is primarily engaged in practice in the
areas of Energy (oil, gas and wind), Commercial Transactions, Banking, Real Estate (including
minerals), Business Organization and Planning, and Wealth Management/Estate Planning.
He is currently serving as the President-Elect of the Young Lawyers Section of the State Bar
Association of North Dakota, and previously served as the Vice President and President of the
Ward County Bar Association.
Charles is a member of the American Bar Association, State Bar Association of North
Dakota, the Ward County Bar Association, and the Kenmare Lions Club.
When not practicing law Charles enjoys hunting, fishing, traveling, sports, and boating.
He and his wife, Ashley (Killmer) DeMakis, have two sons - Alexander and Caden.
CAREY A. GOETZ
Carey Goetz is an associate with Zuger Kirmis & Smith in Bismarck. She grew up in Center,
North Dakota, and obtained her law degree from the University of Kansas School of Law in
2003, and her undergraduate degree from the University of St. Thomas in St. Paul, Minnesota,
in 2000.
After law school, she served as law clerk to the Honorable William A. Neumann (retired)
with the North Dakota Supreme Court. Prior to practicing law in Bismarck, Goetz practiced
law in Minot, and Minneapolis, Minn., in the areas of criminal defense, domestic law, general
litigation, appellate practice, and securities class action litigation. Her current practice is
focused on criminal defense and family law.
Carey is admitted to practice in the state courts of North Dakota, Minnesota and Kansas and
the federal courts of North Dakota and Minnesota.
Carey currently serves as the President of the Young Lawyers Division of the State Bar
Association of North Dakota. She also serves on the Consumer Protection Committee and
Joint Alternative Dispute Resolution Committee for the State Bar Association of North Dakota.
Carey is a member of the State Bar Association of North Dakota, the American Bar
Association, and the Judge Bruce M.Van Sickle American Inn of Court.
10
The Gavel
February 2010
DOUGLAS W. MURCH
Douglas W. Murch is an associate with Conmy Feste, Ltd. in Fargo. His practice focuses on
the areas of Corporate and Business Law, Banking, Commercial Law, Creditors’ Rights, Real
Estate, and Foreclosures.
Doug is a native of Hunter, North Dakota. In 2002, he earned his Bachelor of Science degree
in business administration, summa cum laude, from Valley City State University. He earned
his Juris Doctor degree with distinction from the UND School of Law in 2005. While in law
school, he served on the Board of Editors for the North Dakota Law Review as Editor-in-Chief.
After graduation, Doug served as law clerk to Justice Dale V. Sandstrom at the North Dakota
Supreme Court. He then moved to Fargo and served as law clerk to Judge Rodney S. Webb at
the United States District Court for the District of North Dakota.
Doug is licensed to practice law in North Dakota and Minnesota, and is also admitted to
practice before the United States District Court for the District of North Dakota and the
United States District Court for the District Minnesota.
Doug is currently serving as the Secretary Treasurer of the Young Lawyers Section of the
State Bar Association of North Dakota. He is also a member of the Minnesota State Bar
Association, the Cass County Bar Association, and the Ronald N. Davies Inn of Court. He is a
member of the Kiwanis Club of Fargo and serves on the Lutheran Social Services Youth Court
Advisory Board.
Doug enjoys spending time with his family and sports. He is married to Bethany, and they
have one son, Logan.
SCOTT M. STRAND
Scott M. Strand is an attorney with the Cahill Law Office, PA, in Moorhead, Minn. His
practice is devoted to civil litigation with an emphasis in insurance defense, construction
litigation, personal injury and commercial litigation.
Scott earned his Juris Doctor degree from the UND School of Law in 2003, and is licensed
to practice in North Dakota and Minnesota. He is also admitted to practice before the U.S.
District Court for the District of North Dakota.
Currently he serves as the president of the North Dakota Defense Lawyers Association, and
as Secretary/Treasurer of the Cass County Bar Association. Scott also previously served as
Chair of SBAND’s Young Lawyers Section, and District Representative for the ABA Young
Lawyers Division. In addition he is a member of the Order of the Coif, the Minnesota State
Bar Association and the Ronald N. Davies Inn of Court.
Scott and his wife, Laura, reside in Fargo.
To recommend a future young lawyer for this showcase, please e-mail Charles DeMakis
at [email protected].
The Gavel
February 2010
11
FROM THE DEAN
Ringing in the New Year
at UND School of Law
By Kathryn Rand, Dean
University of North Dakota School of Law
Dean Kathryn Rand
Year’s end is neither an end nor a beginning but a going on,
with all the wisdom that experience can instill in us.
– Hal Borland
The passing of the old year and the advent of
the new is a traditional time for taking stock –
looking back on significant events and accomplishments, and looking forward to meeting
challenges and creating opportunities. Yet now,
just several weeks into 2010, many of us will
have lapsed on well-meaning resolutions and, as
the saying goes, merely made a new start on old
habits.
As the end of the calendar year marks the
middle of the academic year, author Hal
Borland’s observation about the year as a “going
on” rather than either a beginning or end has
particular meaning here at the School of Law.
In many ways, 2009 was a year of achievement
and change at our law school. We welcomed
several new faculty and staff in 2009, all of
whom have fast become part of our School of
Law team: Assistant Professor Robin Runge, who
joined our faculty in Fall 2009 and teaches in
our Clinical Legal Education Program; Trish
Hodny, our new Director of Career Services,
replacing Mark Brickson, who now serves as our
Director of Development at the UND
Foundation; Jan Stone, who fills a new position
in the Law Library as Head of Faculty Services;
Laurie McHenry, our new Catalog Librarian, and
Kalan Davis, our new Serials Associate, both in
the Law Library; and Cheri Tretter, our new
administrative assistant in the Dean’s Office.
The good work of each of these folks already has
made a difference at the School of Law, improving our program of legal education and the services we provide to our students and graduates,
as well as enhancing our public service role to
12
the practicing bench and bar, our state, and our
region. And in March, after five years of serving
as Dean and leading the School of Law through
an important period of transition, Paul LeBel
took on an even larger role at UND by agreeing
to serve as the University’s Provost and Vice
President for Academic Affairs on an interim
basis.
2009 also marked a series of milestones and
achievements:
• In March, our Trial Team won regionals and
competed in the National Trial Competition in
San Antonio, Texas. This was the second consecutive year the team has qualified for nationals,
helping to establish our growing reputation for
teaching effective lawyering skills in our program of legal education.
• In April, UND School of Law was formally
and fully reaccredited by the American Bar
Association’s Section of Legal Education and
Admissions to the Bar, the culmination of an
extensive seventh-year review by the ABA in
2007.
• In May, 68 School of Law graduates crossed
the stage at the Chester Fritz Auditorium to be
hooded and receive their diplomas. (Thanks to
our summer courses, an additional 13 graduates
completed the requirements for their juris doctor degrees in time for our December 2008 commencement.) Our newest graduates have
embarked on a range of professional careers, in
private practice across North Dakota and our
region, as well as in government and military
service, business and finance ventures, and public interest and non-profit organizations.
• In August, we welcomed our newest students
– the Class of 2012 – with a special pinning ceremony where each student took the Oath of
Professionalism administered by North Dakota
Supreme Court Justice Mary Maring. The Class
of 2012, 44 men and 42 women, range in age
from 20 to 35 and come to UND from 11 states
and two foreign countries, with nearly twothirds hailing from North Dakota.
• And in September, Coach Tom “Knute”
Lockney led the law school’s Rough Justice team
to victory against the med school in the annual
Malpractice Bowl. As Fall 2009 was the last
semester of Tom’s phased retirement, the win
was a fitting end to Tom’s last year as coach.
Tom taught his last class in November, and was
treated to a standing ovation by students, faculty, and staff in appreciation of his nearly 40
years at the School of Law.
Looking back on 2009, all of us at UND School
of Law are proud of our work and accomplishments, and especially proud of our students and
graduates who help to make our law school a
very special place. But we don’t rest on our laurels around here – our law school must be
dynamic, constantly improving upon past
achievements and seeking new opportunities.
We must be about the “going on” of the pursuit
of excellence in legal education, for our students
and for our state. We want North Dakota’s law
school to be one of the premier small public law
schools in the country, one that provides an outstanding legal education to our students and
leads our legal profession in positively impacting our state, its economy, and the quality of life
for all its citizens. And that’s what we’ll be doing
in 2010: going on to achieve even more, with the
wisdom and experience of our bench and bar –
each of you – to help our students and our
School of Law realize our full potential.
The Gavel
February 2010
Direct Case Assignments
Judge Charles S. Miller
The United States District Court for the
District of North Dakota is pleased to
announce that in the Spring of 2010, the
Court will begin the direct assignment of a
percentage of its civil cases to the full-time
Magistrate Judges. In doing so, the District
will join a number of other federal courts
around the country that are following the
same practice.
While the full-time Magistrate Judges are
trying civil cases now, the District hopes to
increase the number of cases handled by
them in light of the increasing civil case load
coupled with the fact the District now has
one less senior judge available to take assignments, with the untimely death of Judge
Webb. Also, having the Magistrate Judges
handle a greater percentage of the civil docket will provide the parties with firmer trial
dates and lessen the amount of delay. The
right to a speedy trial in felony criminal
cases requires that District Judges give priority to those cases, which sometimes requires
that civil trial dates be continued. The
Magistrate Judges, however, can give priority
to the civil cases since they do not preside
over felony criminal trials.
For all cases directly assigned to a
Magistrate Judge, the clerk’s office will provide the parties, via the Court’s electronic
case filing system, a Notice of Direct
Assignment and a Consent/Reassignment
Form. Each party will be required to return
the Consent/Reassignment Form to the Clerk
within fourteen days and elect to proceed
with the assignment to the Magistrate Judge
or request reassignment to a District Judge
The Gavel
February 2010
Judge Karen K. Klein
without any adverse consequences. Cases
that remain with the Magistrate Judges will
be handled completely by them through trial
and entry of judgment. All appeals will go
directly to the Eighth Circuit Court of
Appeals, the same as if the case had been
handled by a District Judge.
In addition to a percentage of the civil
docket, several types of cases will be directly
assigned to Magistrate Judges, including: all
prisoner pro se cases not dismissed upon
initial review by a District Judge; all pro se
cases which do not involve a prisoner; and
all cases filed pursuant to § 205(g) of the
Social Security Act. The following types of
cases will be excluded from direct assignment to Magistrate Judges: foreclosure cases
initiated by the United States; cases seeking
an immediate temporary restraining order;
and federal habeas corpus cases filed pursuant to 28 U.S.C. § 2255.
United States Magistrate Judges are
appointed by way of the highly competitive
and rigorous merit selection process, conducted by a Merit Selection Panel of attorneys and laypersons. Magistrate Judges are
appointed by the Court for an eight year
renewable term of office. The reappointment
process is as rigorous as the initial appointment process. Extensive input is sought
from both the bench and bar prior to reappointment.
Chief Magistrate Judge Karen K. Klein has
served as a Magistrate Judge since 1985 with
chambers in Fargo. In 2004, Judge Klein was
designated Chief Magistrate Judge handling
a wide variety of administrative duties
including coordinating and monitoring magistrate judge schedules, coordinating duty
assignments, preparing reports and maintaining liaison with other court officers and
committees. Judge Klein has served as a
member of the United States Judicial
Conference Committee on the
Administration of the Magistrate Judges
System. She currently serves on the United
States Judicial Conference Committee on
Information and Technology. Judge Klein
has also presented judicial education programs for federal judges involved in judicial
reform projects in other countries.
Magistrate Judge Charles S. Miller, Jr. is
chambered in Bismarck, North Dakota, and
serves primarily the western half of North
Dakota. Prior to joining the Court, Judge
Miller practiced law for more than 27 years.
His civil litigation experience includes several complex litigation matters and a wide
variety of cases. Since his appointment to
the bench in 2004, Magistrate Judge Miller
has presented on the topics of technology
use in the courts and court procedures.
The Court encourages you to take advantage of the benefits the direct assignment of
civil cases to Magistrate Judges will provide
you and your clients. Additional information
can be found at the District Court’s website:
www.ndd.uscourts.gov.
13
VOLUNTEERS NEEDED
SBAND 2010-11 COMMITTEE VOLUNTEERS NEEDED
The effectiveness of our committees is determined by the volunteers who serve. Sandi Tabor, President-Elect,
will be making committee appointments in the next several months and is interested in getting new people involved.
Advisory Council to the Office of Administrative Hearings
Civil Legal Assistance Committee
Consumer Protection Committee
Continuing Legal Education Committee
Editorial Board
Ethics Committee
Information & Services Committee
Inquiry Committee Southeast
Inquiry Committee West
Inquiry Committee Northeast
Joint Committee on Civil Legal Services
Joint SBAND/NDMA Committee
Lawyer Assistance Program Committee
Law Students & Young Lawyers Liaison Committee
Legislative Committee
Member Services Committee
If you are interested in serving on any of SBAND's committees,
please complete this form and return it by May 14, 2010, to the address listed below or FAX to (701)-224-1621.
I would like to be considered for appointment to the following committee(s):
1st Choice ____________________________________________________________________
2nd Choice ____________________________________________________________________
3rd Choice ____________________________________________________________________
Name ________________________________________________________________________
Address_______________________________________________________________________
City__________________________State________Zip______________Telephone_____________
PLEASE RETURN TO SBAND, P.O. Box 2136, Bismarck, ND 58502-2136
14
The Gavel
February 2010
COMMITTEES & COMMISSIONS
Advisory Council to the Office of Administrative Hearings provides counsel to the Office of Administrative Hearings.
Joint Committee on Civil Legal Services assesses and provides
information concerning the need for civil legal services for the poor.
Consumer Protection Committee monitors the unauthorized
practice of law; investigate complaints, and recommend policies and
procedures to the board of governors.
Joint SBAND and NDMA Committee discusses issues of interest
to the legal and medical communities, sponsor CLE seminars on
medical/legal topics and maintain the inter-professional code for
lawyers and physicians.
Continuing Legal Education Committee develops topic ideas and
monitors the production of the Association’s CLE seminars.
Editorial Board provides topic suggestions for articles and establishes the editorial policy of The Gavel.
Ethics Committee issues advisory opinions to attorneys in the area
of ethics and professional responsibility.
Information and Services Committee provides information to the
public about legal issues and the judicial system.
Inquiry Committee Northeast investigates complaints against
attorneys and recommend disciplinary action as part of the
Supreme Court's disciplinary process.
Inquiry Committee Southeast investigates complaints against
attorneys and recommend disciplinary action as part of the
Supreme Court's disciplinary process
Inquiry Committee West investigates complaints against attorneys
and recommend disciplinary action as part of the Supreme Court's
disciplinary process.
Law Students and Young Lawyers Liaison Committee addresses
the relationship of the Bar Association with its newest members and
potential members, and makes recommendations to the Board of
Governors on ways to better serve young lawyers and law students.
Lawyer Assistance Program Committee provides confidential
counsel to attorneys experiencing difficulties in the following areas:
practice management, disciplinary issues, chemical dependency, or
other emotional and behavioral issues.
Legislative Committee monitors proposed legislation and recommend positions to the board of governors.
Member Services Committee reviews present membership services and assesses additional services that may benefit our members
and makes recommendations to the Board of Governors.
SBAND Civil Legal Assistance Committee monitors the administration of the Volunteer Lawyer Program (pro bono and reduced
fee) and recommends changes in policy to the Board of Governors;
establishes policies and administers the Lawyer Referral &
Information Services Program.
ABA Nominates North Dakota Lawyer to Board of Governors
The American Bar Association has chosen North Dakota
attorney, James S. Hill, along with eight others to serve on its
Board of Governors. Hill will serve a three-year term beginning
with the end of the 2010 Annual Meeting and ending in 2013.
He will be the representative of District 10, which covers North
Dakota, South Dakota, Nebraska and Wyoming. The last North
Dakotan to serve the ABA Board of Governor was Judge Kermit
Bye twelve years ago. The ABA Board of Governors meets four
to five times a year, and Hill is excited to begin this new position
with the ABA.“It is an extraordinary opportunity to become
deeply involved with the ABA and I am delighted to represent
our State Bar Association in this endeavor.”
In the next year, Board will consist of 40 members, and revert
to 38 members when the secretary and treasurer assume their
posts in August. The ABA Board of Governors oversees the
association administration and policy-implementation.
The American Bar Association, founded in 1878, is the largest
volunteer professional organization in the country numbering
410,000 members. Its most stated activities are the setting of
academic standards for law schools, and the formation of model
ethical codes related to the legal profession.
The Gavel
February 2010
Jim Hill (center) with Judge Kermit Bye and Chief Justice Gerald VandeWalle
immediately following Hill’s recent appointment to District 10 of the ABA
Board of Governors.
Hill has represented the North Dakota State Bar Association in
the ABA House of Delegate since 1994 and presently serves on
the SBAND Board of Governors. He is a former President of the
SBAND and practices civil litigation with the law firm of Zuger
Kirmis and Smith, Bismarck, ND.
15
BAR FOUNDATION CONTRIBUTORS
North Dakota Bar Foundation Contributors
October 2009 through December 2009
Gold
Malcolm H. Brown
Thomas A. Dickson
Harris P. Kenner
Jack G. Marcil
Roger J. Minch
Michael S. Neustel
Lisa J.Wheeler
Paul G.Yale
Silver
Brenda L. Blazer
Bradley J. Burgum
Hon. Kermit E. Bye
Joseph J. Cichy
Jerry W. Evenson
Steven J. Lies
Murray G. Sagsveen
Patrick J.Ward
Patron
Susan L. Bailey
David R. Bossart
Jo Louise Bullis
Birch P. Burdick
Michael F. Daley
Janis M. DeRemer
Daniel J. Dunn
Patrick W. Durick
Steven C. Ekman
Hon. Ralph R. Erickson
Gary E. Euren
Adam L. Fleischman
Sharon A. Gallagher
Michael L. Gjesdahl
Wallace R. Goulet, Jr.
Donald Hager
Nicholas B. Hall
Sarah Andrews Herman
Donald R. Holloway
Judith E. Howard
Hon. Carol Kapsner
William E. Kretschmar
David S. Maring
Hon. Mary L. Maring
Hon.William A. Neumann
John M. Olson
Kent A. Reierson
Hon. Dale V. Sandstrom
16
Hon.Allan
Schmalenberger
Charles S. Schultz
Greg B. Selbo
John L. Sherman
Gregory L. Thompson
Daniel M. Traynor
Jason R.Vendsel
Melvin L.Webster
Hon. Robert O.Wefald
Henry C.Wessman
Michael J.Williams
Albert A.Wolf
Donor
Jeffry D.Anderson
Nicholas W. Chase
Hon. Daniel J. Crothers
Michelle M. Donarski
Fintan L. Dooley
Aaron J. Dorrheim
Jack P. Dwyer
Lisa K. Edison-Smith
Edward E. Erickson
Julie A. Evans
Robert E. Feidler
James D. Geyer
Don R. Grande
Rex A. Hammarback
James B. Hovland
Jeffrey N. Jensen
Joel D. Johnson
Michael E. Juntunen
Carol K. Larson
Stuart A. Larson
Gregory C. Larson
Duane H. Schurman
Wayne K. Stenehjem
Benjamin E. Thomas
Constance L. Triplett
Joseph A. Turman
LaDonne R.Vik
James P.Wang
Sustaining
Robert G.Ackre
Jerilynn Brantner Adams
Leslie Johnson Aldrich
Howard R.Alton, III
Hon. Sonna M.Anderson
Dennis L.Anderson
Kelly M.Armstrong
Mitchell D. Armstrong
Shawn L.Autrey
Kyongbin Baek
Zenas Baer
Darin B. Barker
Laura L. Berger
Lee R. Bissonette
David R. Bliss
Jon Bogner
Julie M. Buechler-Boschee
Arne F. Boyum, Jr.
Ross W. Brandborg
Jeff A. Bredahl
Christopher A. Carlson
Kevin J. Chapman
Charles L. Chapman
Hon. Sonja Clapp
Theresa L. Cole
Pamela F. Coleman
Jodi L. Colling
Lori H. Conroy
David M. Crane
Heidi MF Davies
Michael W. Deeds
Gary L. Delorme
Jennifer Mattson Dick
John M. Dingess
Sandra Dittus
Michael A. Dwyer
Jason M. Elbert
Terry W. Elhard
Wade G. Enget
Charles D. Evans
Dwain E. Fagerlund
Forde O. Fairchild
Gary A. Ficek
Amber J. Fiesel
Ronald F. Fischer
Arnold V. Fleck
James C. Fleming
Marilyn K. Foss
John J. Fox
Irving Freeman
Daniel E. Gast
James D. Gion
Thomas J. Glass
Tracy A. Gompf
Peter G. Graves
Dann E. Greenwood
Donavin L. Grenz
David D. Hagler
Gretchen Handy
Jean P. Hannig
Melissa A. Hauer
Lindsey D. Haugen
Timothy P. Hill
Patricia A. Hodny
Ashley E. Holmes
Michael P. Hurly
Charles R. Isakson
Gary L. Jackson
Shirley F. Jahnke
Thomas D. Jensen
Kara J. Johnson
David L. Johnson
Erik R. Johnson
Bruce D. Johnson
Craig E. Johnson
DeWayne A. Johnston
Jacey L. Johnston
Hon. Donald L. Jorgensen
John A. Juelson
Fallon M. Kelly
Robert A. Keogh
Brian W. Keohane
Lyle W. Kirmis
Sylvia N. Kloster
Marianne O. Knudson
George A. Koeck
Sander R. Kopseng
Gregory L. Lange
Jerry D. Larson
Mark V. Larson
Michael H. Leonard
Duane A. Lillehaug
David A. Lindell
A.William Lucas
Galen J. Mack
Bruce L. Madlom
Ann Christianson Mahoney
John J. Mahoney
Roger C. Malm
Jack T. McDonald
Jason W. McLean
Stephen M. McLean
Carlee M. McLeod
Michael D. McNair
Nola A. McNeally
Hon. Joel D. Medd
Diane F. Melbye
Lorelle A. Moeckel
Sherry Mills- Moore
Nancy J. Morris
Janet K. Naumann
Jeff L. Nehring
Gary D. Neuharth
Joseph A. Nilan
James E. Nostdahl
Leslie Bakken-Oliver
Adam M. Olschlager
Adele H. Page
Justin Palecek
Johannes N. Palsgraaf
Kristine J. Paranica
Elizabeth L. Pendlay
David L. Petersen
Gary J. Petersen
Kimberly Lillestol Peterson
Charles J. Peterson
Kristen S. Pettit
DeAnn M. Pladson
Berentje Pohlman
Kimberly J. Radermacher
Gary D. Ramsey
Kathryn R.L. Rand
Sharon M. Reis
Bernard E. Reynolds
Larry J. Richards
David J. Ridl
Derick J. Roller
Marie A. Roller
Lolita Hartl Romanick
Dakota S. Rudesill
Simone M. Sandberg
Jason A. Schatz
Jodie Marie Koch-Scherr
Robin A. Schmidt
Steven C. Schneider
Bernard Schuchmann
David E. Scouton
Bruce A. Selinger
Grant H. Shaft
Andrea H. Smith
Hon. Kirk Smith
The Gavel
February 2010
Richard E.T. Smith
David B. Sogard
Jennifer M. Stanley
Jaclyn M. Stebbins
R. Scott Stewart
Arthur W. Stokes
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The Gavel
February 2010
17
LAWYER ETHICS & TECHNOLOGY
Information Inadvertently Sent
Part III
By Daniel J. Crothers, Justice, North Dakota Supreme Court
All rights reserved
This is Part II of an article on the inadvertent
transmission of confidential client information. Part I focused on the lawyer’s ethical obligation to safeguard client information and on
how electronic information might leak out of a
law
office.1 This part reviews the legal background
of North Dakota’s Rule and highlights ethics
opinions from other jurisdictions that offer
suggested courses of conduct when information is inadvertently sent by or to a lawyer.2
What should be done when confidential
information is accidentally transmitted to a
third party? Regardless whether you are the
sending party or receiving party, the answer is
“scream”! Your day just became dramatically
more complicated because the situation could
lead to ethics complaints, legal malpractice
claims and motions to disqualify counsel.3
The sending lawyer had and has an obligation to safekeep confidential client
information.4 Inadvertent transmission of that
confidential information may be a violation of
the sending lawyer’s professional obligation.5
Upon learning of inadvertent transmission, the
sending lawyer should attempt to remedy or
mitigate harm from the error by notifying the
receiving lawyer of the mistake, ascertaining
the status of the document (i.e. whether the
document has been received, read, or distributed to others) and requesting the immediate
unread return of the document.6
However, if transmission truly was inadvertent, the sending lawyer often learns of the
problem only when notified by the receiving
lawyer. Focus therefore turns to the recipient.
The receiving lawyer’s responsibilities are
guided by Rule 4.5 of the Rules of Professional
Conduct:
A lawyer who receives a document relating to
the representation of the lawyer’s client and
knows or reasonably should know the document was inadvertently sent shall promptly
notify the sender.7
18
A pertinent part of commentary to Rule 4.5
provides:
[T]his Rule requires the lawyer to promptly
notify the sender in order to permit that person to take protective measures. Whether the
lawyer is required to take additional steps,
such as returning the original document, is a
matter of law beyond the scope of these Rules,
as is the question of whether the privileged
status of a document has been waived.
Similarly, this Rule does not address the legal
duties of a lawyer who receives a document
that the lawyer knows or reasonably should
know may have been wrongfully obtained by
the sending person. For purposes of this rule,
“document” includes e-mail or other electronic
modes of transportation subject to being read
or put into readable form.8
North Dakota’s rule was adopted in 2006
from the American Bar Association’s 2002 version of Model Rule 4.4(b). Prior to the ABA
addressing this issue by Rule, the ABA had
issued a 1992 ethics opinion advising that a
lawyer receiving materials appearing on their
face to contain confidential or privileged information had a duty to refrain from examining
the documents, to notify the sender and to
comply with the sender’s instructions regarding the documents.9 The 1992 opinion was
withdrawn in 2005 after the ABA recognized
that the creation of Rule 4.4(b) “directly
addressed the precise issue discussed in
Formal Opinion 92-358, [and] narrowed the
obligations of the receiving lawyer.”10
Most jurisdictions addressing the receiving
lawyer’s obligations have done so in the context
of examining metadata in electronically stored
information.11 Producing and viewing metadata inside and outside of discovery will be the
subject of one or more future Gavel articles.
Only a few jurisdictions have addressed the
precise issue in this article, and still fewer have
addressed the matter since the ABA’s 2002
adoption of Rule 4.4(b). North Dakota does not
have a relevant Ethics Opinion from either
before or after adoption of Rule 4.5.12
Therefore, scattered tea leaves must be read to
provide alternatives for consideration.
First, the obvious: if the receiving lawyer has
no notice and no reason to believe the sending
lawyer has or will claim privilege, the receiving
lawyer can examine the documents.13 To conclude otherwise would be to “place the unreasonable burden on a lawyer of examining the
circumstances of the delivery of all mail, faxes
and other materials before reading them.”14
Second, Colorado noted prior to 2002 that
where “a lawyer who receives documents from
an adverse party or an adverse party’s lawyer
that on their face appear to be privileged or
confidential has an ethical duty… to notify the
sending lawyer. . . unless the receiving lawyer
knows that the adverse party has intentionally
waived privilege and confidentiality.”15 This
opinion also recognized that, while notice was
the only ethically required action, professionalism suggested the lawyers either work out a
solution for handling the documents going forward or, absent agreement, maintain the status
quo until a court or other tribunal orders proper disposition of the documents and rules on
the substantive law waiver issues.16
Third, an ethical violation would occur if a
receiving lawyer examined and did not return
privileged or confidential documents after
being notified of inadvertent disclosure. In the
words of the Colorado Committee:
The receiving lawyer who actually knows of
the inadvertence of the disclosure before
examining the privileged or confidential documents has these additional duties for two
reasons. First, in this situation, the receiving
lawyer knows that the documents which were
inadvertently sent are not his or her property;
therefore, the receiving lawyer has a duty to
safeguard the documents as property belonging to others under Rule 1.15(a), and to notify
the sending lawyer and return the documents
if requested under Rule 1.15(b). Second, the
receiving lawyer is prohibited from acting
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February 2010
dishonestly under Rule 8.4(c), and in this situation it would be dishonest for the receiving
lawyer to examine the privileged or confidential documents knowing that the documents
were sent inadvertently.17
Lastly, this article closes with brief mention
of the elephant in the room: whether the attorney-client privilege is waived by inadvertent
disclosure. Commentary to Rule 4.5 notes that
that question “is a matter of law beyond the
scope of these Rules.”18 The privileged status
of inadvertently disclosed documents is a factually dependent analysis under a three-prong
legal test and the Rules of Evidence.19
Litigation about application of the legal test
and about waiver of privilege likely will be
time consuming and expensive, which is why
counsel are best advised to give notice and try
negotiate resolution of an inadvertent disclosure problem before the controversy turns into
screaming about ethics, malpractice and
disqualification.
1 Daniel J. Crothers,“Information Inadvertently Sent: Part I,”
The Gavel, Nov. 2009 at 16-17, available at
http://www.sband.org/data/gavelupfiles/nov09screen.pdf at pp.
16-17.
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February 2010
2 Information might be sent to an opposing side of litigation
by a lawyer, by the client or by a third party acting on behalf of a
litigant. Similarly, information might be received by a lawyer, by
the opposing party or by a third party acting on behalf of the
opposing party. The scope of this article is limited to information transmitted or received by attorneys.Also, this article is
limited to inadvertent disclosure, as opposed to documents
wrongfully obtained by a party, which is not addressed by either
North Dakota’s Rule of Professional Conduct 4.5 or the ABA’s
Model Rule of Professional Conduct 4.4(b). But see ABA Formal
Ethics Op. 94-382 (1994) (Lawyer receiving document known to
be improperly obtained must notify opposing counsel and comply with counsel’s direction or seek guidance from the court).
See e.g.,American Express v.Accu-Weather, Inc., No. 91 Civ.
6485, 1996 WL 346388, at *3 (S.D.N.Y. June 25, 1996) (finding
ethical violation where attorney opened and reviewed contents
of package from opposing counsel despite knowing package
contained inadvertently disclosed material); Mendenhall v.
Barber-Greene Co., 531 F.Supp. 951, 955 (D.C. Ill. 1982) (holding
attorney may be liable for malpractice by inadvertently disclosing confidential letters of client); Richards v. Jain, 168 F.Supp.2d
1195, 1200 (W.D.Wash. 2001) (disqualifying law firm for retaining and reviewing inadvertently disclosed materials).
4 N.D.R. Prof. Conduct 1.6.
Id. But cf. District of Columbia Bar Ass’n Ethics Op. 256
(1995) (negligent disclosure of confidential information not a
violation of the District of Columbia’s Rule 1.6(a) “knowingly”
requirement, but inadvertent disclosure may be a violation of
Rule 1.1 regarding competence).
6 See N.D.R. Evid. 510 (“A person upon whom a privilege
against disclosure is conferred by rule or by law waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part
of the privileged matter.”) and Fed. R. Evid. 502(b) (disclosure
does not operate as waiver if inadvertent, the privilege holder
took reasonable steps to prevent disclosure and the holder took
reasonable steps to rectify error).
7 N.D.R. Prof. Conduct 4.5(a).
N.D.R. Prof. Conduct 4.5 cmt. 1.
ABA Formal Ethics Op. 92-368 (1992).
ABA Formal Ethics Op. 05-437 (2005).
See, e.g.,ABA Formal Ethics Op. 06-442 (2006).
North Dakota Ethics Op. 95-14 (1995),
http://www.sband.org/data/ethics/95-14.pdf, addresses disclosure of settlement information that was protect by a confidentiality agreement. The SBAND Ethics Committee concluded that
the issue centered on a contractual confidentiality clause rather
than on notions of attorney-client privilege and attorney ethics
and that use of the information was permitted. Id.
District of Columbia Bar Ass’n Ethics Op. 256 (1995) (“We
begin our analysis with the belief that a lawyer (no different
than any other person) should be able to presume that materials
delivered to him or her in the ordinary course were intended to
be so delivered.”).
Id.
Colorado Ethics Op. 108 (2000).
Id.
Id. (citing the District of Columbia Bar Ass’n Ethics Op. 256
which states,“Reading the materials under these circumstances
should be treated as the equivalent of a lawyer opening the
closed file folder of his adversary in a conference room, while
the adversary was out of the room. Such conduct has been found
in other jurisdictions to be dishonest. See, e.g., Lipin v. Bender,
644 N.E.2d 1300 (N.Y. 1994).”).
N.D.R. Prof. Conduct 4.5 cmt. 1.
See Farm Credit Bank of St. Paul v. Huether, 454 N.W.2d 710,
718-24 (N.D. 1990); n.6, supra.
19
ETHICS & DISCIPLINE
ETHICS OPINIONS
Opinion No. 09-05
The Ethics Committee received a request for
an opinion regarding use of credit cards for payment of legal services, including a subordinate
lawyer's duty to report a potential ethical violation of a supervising lawyer for improper use of
credit card payments, and responsibility for following the directives of the supervising attorney.
FACTS
The requesting lawyer is an associate in a law
firm. The law firm accepts credit card payments
for both already incurred attorney fees and costs
and for payment of advance retainers for fees
and costs. The supervising lawyer has adopted a
procedure in which all credit card payments are
deposited into the law firm's general operating
bank account. This general operating account is
considered the “merchant account” for all credit
card payment purposes. The supervising lawyer
also promptly transfers any credit card payment
for advance attorney fees and costs to the client
trust account. The supervising lawyer has directed the requesting subordinate lawyer to follow
that procedure.
According to the requesting lawyer, the supervising lawyer has stated that credit card payments for advance fees and costs are put in the
general operating account so the account funds
can offset any processing fees charged by the
credit card company. The requesting lawyer did
not indicate whether the law firm was absorbing
the credit card processing fees or charging those
fees to the client.
The requesting lawyer also is concerned about
his responsibility to report ethical misconduct to
the Disciplinary Board, if the above process of
utilizing the general operating account for credit
card payments of both earned fees and costs
and for advance retainers is unethical.And, the
requesting lawyer is worried about professional
responsibility for following the directives of the
supervising lawyer.
In order to process credit card payments,
banks require that at least one merchant account
be set up into which credit card payments are
electronically transferred. Each credit card payment has merchant fees and credit card transaction fees ("a processing fee") attached to it
before the payment is made electronically to the
merchant account. Usually this is a percentage of
the total amount charged. The practical result of
the processing fee is that an amount of money
less than the client's credit card payment is
deposited into the account. In addition, once a
20
credit card payment is made, the client has a
certain amount of time within which to dispute
a charge. If a dispute occurs, the amount of the
credit card payment in dispute (called a chargeback or reversal of charges) and a chargeback
fee are electronically withdrawn from the merchant account, pending resolution of the dispute,
even if some money has already been spent by
the law firm. See Ariz.R.Prof. Conduct ER 1.15,
COMMENT (2009 Amendment); and, Ky. Bar
Ass'n. Ethics Op. KBA E-426 (2007). In addition,
if there is a dispute by the client about the payment, or the client fails to pay their credit card
bill, most credit card merchant account agreements require the law firm's cooperation in collection efforts, which may require the lawyer to
reveal confidential information about the legal
services provided to the client. Colo. Bar Ass'n.
Formal Op. 99 (1997).
ISSUES
1.What are the ethical implications of and
guidelines for the use of client credit card payments in the provision of legal services in North
Dakota?
2.What is a lawyer's duty to report improper
credit card payment practices by a supervisory
lawyer; and, what is a subordinate lawyer's ethical responsibility for following the supervising
lawyer’s directive?
DISCUSSION
A.ACCEPTANCE OF CREDIT CARD
PAYMENTS
1. Introduction
The Ethics Committee has never issued an
ethics opinion on the subject of use of credit
card payments by clients for past and future
attorney fees and costs. Despite this, it appears
that many, if not most, law firms in North
Dakota accept credit card payments. This is also
true in other states. See George A. Riemer,
"Charge It? Credit Cards and Lawyer Trust
Accounts," www.osbar.org/publications/bulletin/00july/0007barcounsel.htm.
The use of credit card payments for legal services first appeared as an ethical issue in the late
1960s and early 1970s. The ABA Ethics
Committee initially indicated it was only ethical
to accept credit cards for payment of sales of
merchandise and non-professional services. See
ABA Informal Opinions 1120 (1969) and 1176
(1971). In 1974, the ABA Ethics Committee
issued Formal Opinion 338 explicitly approving
the use of credit cards to pay for legal services.
Following that opinion, every state that considered the propriety of use of credit cards for payment of legal services found the practice ethical.
Peter Geraghty, "Can You Take The Credit?"
www.abanet.org/media/youraba/200903/article10.html . States' ethics opinions, however, differ regarding the mechanics of using credit
cards for payment of legal services. The ABA
Ethics Committee does not appear to have provided clear directives to its membership on how
to best handle credit card transactions related to
lawyer services.
Use of credit cards for payment of legal services is not explicitly allowed in the North Dakota
Rules of Professional Conduct, but it is allowed
by implication. In 2005, the Joint Committee on
Attorney Standards amended N.D.R.Prof.
Conduct 1.15(b), allowing a lawyer to "deposit
the lawyer’s own funds in a client trust account
only for the purpose of paying bank service
charges, fees associated with credit card payments, or wire transfers related to the account,
but only in an amount necessary for the purpose." See Minutes of the Joint Committee on
Attorney Standards dated 6/14/05 and 9/09/05.
(Emphasis added.) Rule 1.15(b), therefore,
assumes that it is ethical to use credit cards for
payment of legal services in North Dakota. The
N.D.R.Prof. Conduct, however, are silent about
the details of credit card payments, except that
apparently it is acceptable to use a client trust
account as a merchant account in certain circumstances and for the lawyer to deposit nonclient funds into the client trust account to cover
credit card processing fees.
The Rules are also silent about whether the law
firm's general operating account can be used as
a merchant account to accept credit card payments for attorney fees and expenses that have
already been earned and billed.And, the Rules
are silent about whether the general operating
account can accept credit card advances on fees
and costs.
Many ethics committees in other states have
struggled with the details of credit card payments for both past and future attorney fees and
costs, and whether the general operating
account and/or the client trust fund account can
function as a merchant account. Most of these
states' ethics committees have identified the following issues pertaining to credit card payments:
1.Are credit card payments allowed generally?
2. Can credit cards be used for payment of the
following:
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February 2010
a. Previously earned attorney fees and already
incurred costs;
b. Non-refundable retainers for attorney fees
and costs; or,
c. Refundable retainers for future attorney fees
and costs?
3. Into what accounts (i.e., general operating or
client trust fund) can the above three kinds of
payments be made?
4. Can any credit card processing fees be
charged to the client?
5.What are client confidentiality issues related
to credit card payments?
6.What are client informed consent issues
related to credit card payments?
7. Can the lawyer advertise that credit card
payments are accepted?
For the reasons already discussed, the Ethics
Committee will assume that lawyers in North
Dakota can accept credit card payments as long
as the lawyer complies with the N.D.R.Prof.
Conduct. But, as they say, the devil is in the
details.
2. Can credit card payments be used both for
outstanding attorney fees and expenses and
for advance retainer attorney fees and
expenses?
a. Introduction
Lawyers have the opportunity to allow client
use of credit cards for payment of already
incurred attorney fees and expenses and for
payment of advances for future attorney fees
and expenses.While all modern ethics opinions
in other states conclude that credit cards can be
used to pay the client's existing bill with a law
firm, the same is not necessarily true for using
credit cards to make advance payments. See
Ariz. Bar Ass'n. Ethics Comm. Formal Op. 08-01
(2008).
b.Already billed attorney fees and costs
A lawyer's bill for prior performed legal services may include attorney fees and expenses
incurred and advanced by the lawyer during
representation. Payment for these services could
be made with cash, check, property, barter, or
credit card. There is nothing inherently unethical about using one form of payment over the
other, as long as the charges are reasonable and
the client consents to the payment. One might
even postulate that a lawyer should accept credit
card payments to facilitate the client's access to
legal services. See, e.g., N.H. Bar Ass'n. Ethics
Comm. Formal Op. 1984-85/1 (1984). The
Committee concludes, therefore, that a lawyer
can accept credit card payments for already
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February 2010
billed attorney fees and costs.What account can
be used as the merchant account to accept these
payments is discussed later.
c. Non-refundable advance retainer
A non-refundable advance retainer is a payment of a certain lump sum for legal work that
is to be performed in the future without regard
to the amount of lawyer time expended during
the representation of the client. It is considered
earned at the time of payment. See Ky. Bar Ass'n.
Op. KBA E-426 (2007). The use of non-refundable advance retainers in North Dakota was
briefly discussed in Richmond v. Nodland, 501
N.W.2d 759 (N.D. 1993); and, In Re Discipl.
Action Against Madlom, 2004 ND 206, ¶ 7, 688
N.W.2d 923, 924.Although the propriety of such
a retainer was not decided in either opinion, the
Supreme Court did not condemn its use. See 501
N.W.2d at 762 and 688 N.W.2d at 924. It appears
that the main ethical limitation on non-refundable retainers is that they be reasonable. Id. and
N.D.R.Prof. Conduct 1.5(a). Other states' ethics
committees that have considered the ethical
implications of the use of credit cards for these
payments conclude the practice is ethically permissible. See e.g., Ky. Bar Ass'n. Ethics Op. KBA
E-426. The Committee agrees with those states'
conclusions.Which account can be used to
accept credit card payments for non-refundable
advance retainers is discussed later.
d. Refundable advance retainer
A refundable advance retainer is payment of a
lump sum of money for legal services to be performed in the future. The retainer can only be
drawn by the lawyer when it is earned and only
in the amount earned.Any amount not earned
by the lawyer must be refunded to the client at
the conclusion of the legal matter. See id.All
states' ethics committees that have issued ethics
opinions on this subject, with the exception of
Alaska,Arizona, California, and Vermont, have
concluded that it is ethically permissible to
accept credit card payments of refundable
advance retainers, as long as the client's credit
card agreement allows such advance payments
and steps are taken to protect the integrity of
client funds. See, Colo. Bar Ass'n. Formal Op. 99
(1997); D.C. Ethics Opinion 248 (2009); Fla. Bar
Ass'n. Op. 76-37 (1976); Iowa Bar Ass'n. Op. 0305 (2003); Ky. Bar Ass'n. Formal Op. E-172
(1977) and Ky. Bar Ass'n. Formal Op. KBA E-426
(2007) (but cannot draw funds until chargeback
period expires); Mass. Bar Ass'n. Op. 78-11
(1978) (but discourages use for advances);
Mich. Bar Ass'n. Op. RI-34 (2008) (but cannot
draw funds until chargeback period expires);
Neb. Bar Ass'n. Formal Op. 95-4 (1995); N.H. Bar
Ass'n. Ethics Comm. Formal Op. 1993-94/18;
N.M. Bar Ass'n.Advisory Op. 2000-1 (but, it is
considered ill advised to do so); N.C. Bar Ass'n.
Formal Op. 97-9 (1998); Ore. Bar Ass'n. Formal
Op. 2005-172; and, Utah Bar Ass'n. Op. 97-06;
but see,Alaska Bar Ass'n. Op. 85-5; Ariz. Ethics
Bar Ass'n. Op. 08-01 (2008) (but, now allowed by
rule change); Cal. Bar Ass'n. Op. 2007-172
(2007); and,Vt. Bar Ass'n.Advisory Op. 89-10
(1989).
N.D.R.Prof. Conduct Rule 1.15(b) surely
implies that it is permissible to accept credit
card payments of advance retainers, because
under the Rule lawyers are allowed to place their
own funds into a client trust account for the limited purpose of offsetting client credit card fees.
Since generally only client funds can be placed
in a client trust account, and Rule 1.15(c)
requires that advance retainers be placed in a
client trust account, the Rule amendment contemplated placement of credit card payments for
advances into the client trust fund. The ethical
dilemma, however, is that a chargeback is not a
credit card fee.When a chargeback occurs, the
entire amount in dispute, which could be the
whole of the credit card advance retainer payment, is pulled out of the general operating or
client trust account automatically with a chargeback fee. If the advance is placed in a client trust
fund, and a portion of the retainer is already
spent, other client funds would be drawn out
automatically to pay for the chargeback. This is
very problematic ethically.
3. Into what accounts may credit card payments be deposited?
a. Introduction
There are a number of choices when designating the merchant account for acceptance of credit card payments. The choice, however, must
comply with N.D.R.Prof. Conduct 1.15. Rule 1.15
states in part:
(a) A lawyer shall hold property of clients or
third persons that is in a lawyer's possession in
connection with a representation separate from
the lawyer's own property. Funds shall be
deposited in one or more identifiable interest
bearing trust accounts in accordance with the
provisions of paragraph (f). ...
(b) A lawyer may deposit the lawyer's own
funds in a client trust account only for the purpose of paying bank service charges, fees associated with credit card payments, or wire transfers
related to that account, but only in an amount
21
ETHICS & DISCIPLINE
necessary for that purpose.
(c) A lawyer shall deposit into a client trust
account legal fees and expenses that have been
paid in advance, to be withdrawn by the lawyer
only as fees are earned or expenses incurred.
The spirit of Rule 1.15 is to prohibit the comingling of lawyer funds and client funds. See,
In re: Discipl.Action Against Robb, 2000 ND
146, ¶ 9, 615 N.W.2d 125, 127. In practice, in
order to avoid co-mingling, a lawyer must have
both a general office operating account and one
or more client trust accounts. This generally
works fine for cash and check payments, but
credit card payments are different because of the
possibility of chargebacks.As a result, ethics
opinions in other states have struggled with
which account or accounts can be the "merchant
account."
Many states' ethics opinions suggest that the
solution is to have more than one merchant
account. The most logical solution is to designate the lawyer's general operating account as
one merchant account for acceptance of credit
card payments for already earned fees and
expenses; and, also designate the client trust
fund as a merchant account for acceptance of
refundable advance retainers. See Ore. Bar Ass'n.
Formal Op. 2005-172 (2005). Some banks or
credit card processors, however, may not allow
more than one merchant account. Id. Therefore,
some states suggest utilizing a separate trust
fund account to accept only credit card payments. See N.C. Bar Ass'n. Formal Op. 97-9
(1998); and,Wis. Rules of Prof. Conduct SCR
20:1.15(e)(4)(h) (requiring the lawyer to create
a "credit card trust account" for the purpose of
accepting all credit card payments). Trying to
manage more than one merchant account, however, could be time consuming, complex, and
expensive.And, a separate account to accept
credit card payments for both already earned
fees and for advances will no doubt result in comingling of funds.
Some banks allow chargebacks and other
credit card fees to be taken from an account different than the merchant account. For example,
if an advance retainer is placed into the trust
account, some merchant agreements allow any
chargebacks and processing fees be taken out of
the lawyer's general operating account. Ore. Bar
Ass'n. Formal Op. 2005-172 (2005).
These various credit card practices are not
within the scope of an ethics opinion.
Identifying what is the best ethical practice
when using credit cards requires lawyers to
22
become familiar with their bank's credit card
practices and the merchant account contract
with the bank. The various scenarios are beyond
the scope of this opinion. Once that is known,
however, there are some basic guiding ethical
principles the lawyer should adopt when accepting credit card payments.
b. Previously earned fees and expenses and
non-refundable retainers.
In one scenario, the lawyer has performed
legal services and incurred expenses on behalf
of a client, and the lawyer has billed the client.
The client wants to pay the bill with a credit
card. There are three possible choices for
depositing the credit card payment: (1) put the
payment in the lawyer's general operating
account; (2) put the payment in the client trust
account; or, (3) put the payment in a separate
client trust account dedicated to accepting only
credit card payments. Ethics opinions in other
states all agree that the lawyer can accept the
credit card payment for already earned fees and
costs, if it gets deposited into the lawyer's general operating account. The payment is considered
property of the lawyer because it has already
been earned by the lawyer. It should not be
deposited into the lawyer's trust account, which
is only for the purpose of holding client funds or
funds that belong to both the client and others.
Depositing the payment in a third merchant
account for already earned fees and costs could
be problematic ethically, if advance retainers are
also deposited into the account, because that
account would mix both client and lawyer funds.
Therefore, assuming the lawyer's general operating account is a merchant account, accepting
credit card payments for already earned fees and
advanced expenses in that account is ethical.
If the scenario is changed so that the lawyer
has asked for a non-refundable retainer, the
lawyer can also accept a credit card payments
deposited into the general operating account of
the lawyer because the credit card payment is
for attorney fees and expenses already earned
and is not the property of the client. The use of a
trust account or third merchant trust account
would be unacceptable because the payment is
not client funds.
c. Refundable advance retainers.
Rule 1.15(c) requires that all advance retainers
be placed in the client trust account. The Rule
doesn't differentiate by the kind of payment,
such as cash, check, electronic transfer, or credit
card payment. It seems, therefore, that depositing an advance retainer paid by credit card into
a general operating account would be a per se
violation of Rule 1.15(c). Most states' ethics
opinions require that advance retainers paid by
credit card be placed in a client trust account,
since the money is unearned. See Colo. Bar
Ass'n. Formal Op. 99 (1997); Fla. Bar Ass'n. Op.
76-37 (1976); Iowa Bar Ass'n. Op. 03-05 (2003);
Ky. Bar Ass'n. Formal KBA Op. E-426 (2007);
Mass. Bar Ass'n. Op. 78-11 (1978); Mich. Bar
Ass'n. Formal Op. RI-344 (2008); Mo. Bar Ass'n.
Op. 20000202 (2000); Neb. Bar Ass'n. Formal Op.
95-4 (1995); N.H. Ethics Comm. Formal Op.
1984-85/1; N.M. Bar Ass'n.Advisory Op. 2000-1
(but, ill advised to accept); N.C. Bar Ass'n.
Formal Op. 97-9 (1998); Ore. Bar Ass'n. Formal
Op. 2005-172; and,Va. Bar Ass'n. Op. LEO 1848
(2009).
Some states, however, find this practice unethical. The California Bar Association Ethics
Committee was so worried that a lawyer may
not have funds available to pay a chargeback,
which would compromise other client trust
funds, that it prohibited credit cards from being
used to pay advance retainers.Accord,Alaska
Bar Ass'n. Op. 85-5; Ariz. Bar Ass'n. Op. 08-01
(2008) (obviated by Ariz. Supreme Court rule);
and,Wis. Bar Ass'n. Formal Op. E-75-1
(1975)(now changed by Wis. Supreme Court
rule).
A similar opinion was issued in Arizona.Ariz.
Bar Ass'n. Formal Op. 08-01 recognized that it
was ethical for lawyers to accept credit card payments for earned fees and "earned-uponreceipt" (non-refundable) retainers, as long as
the payments were put into the lawyers' general
operating account. The Arizona ethics opinion,
however, stated that it was unethical to use credit cards for refundable advance retainers
because they would have to be placed in the
lawyers' trust account, from which "chargebacks" could occur. It was determined that this
possibly would compromise the integrity of
other clients' funds held in the trust account, if a
client's advance had been partially or fully
spent. The opinion also concluded that since the
advance retainer was client, not lawyer, money it
could not be placed in the lawyer's general operating account. In effect, this prohibited a lawyer
in Arizona from accepting credit card payment
of an advance retainer.
Shortly after this ethics opinion was issued, the
Supreme Court of Arizona amended ER 1.15 on
an emergency basis, allowing lawyers under certain circumstances to accept credit card payment for advance fees and costs. See Ariz. Ethics
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February 2010
Rules ER 1.15(b)(2)(2009) (allowing lawyers to
put their own funds into a client trust account to
offset fees and charges related to credit card
transactions, including chargebacks). The 2009
COMMENT to Rule ER 1.15 is very detailed and
describes the specifics related to credit card
transactions for lawyer services. Some of the
highlights are: (1) advances can only be placed
in a client trust account; (2) lawyers should
strive to use only companies that allow fees and
chargebacks to be charged to the lawyer's general operating account; (3) if that is impossible, a
lawyer must monitor the account carefully and
keep an amount of personal funds in the trust
account to cover any fees or chargebacks; and,
(4) if the trust account is short due to a chargeback, the lawyer has only three days to deposit
funds to cover the shortfall.
North Carolina also allows the trust account to
be used for credit card payments of already
earned attorney fees and expenses if only one
merchant account is allowed by the bank. See
N.C. Bar Ass'n. Formal Op. 97-9 (1998).
D.C. Bar Ass'n. Op. 348 (2009), on the other
hand, allows credit card advances to be placed in
either account; but, if the lawyer uses the trust
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February 2010
account, the lawyer must ensure that a chargeback is not allowed against the trust fund
account. The District of Columbia Bar
Association's rationale for allowing payment of
an advance retainer first into the lawyer's general operating account then transferring to the
client trust account, is that it is an effective way
of diverting the possibility of chargeback and
processing fees being taken against other client
funds held in the trust fund.As already discussed, the Florida Supreme Court's solution
was to amend Rule 1.15 to allow, but not require,
lawyers to place substantial lawyer funds permanently in the client trust fund for the purpose of
covering processing fees and chargebacks. This
results in per se co-mingling of funds, which
could be long term. The use of the general operating fund as a brief stop over point to accept
credit card advances avoids putting other client
trust funds in jeopardy due to chargebacks; and,
it eliminates the need to put lawyer funds into
the client trust account. This procedure appears
to best protect the integrity of client funds and
has the least amount of co-mingling.
As already stated, N.D.R.Prof. Conduct 1.15(b)
allows co-mingling of funds in a trust account to
cover the cost of credit card "fees." The Rule,
however, does not address the issue of chargebacks.A strict reading of Rule 1.15(b) would
suggest that placing advance retainers paid by
credit card payments into a client trust fund
would be inappropriate since there is no authority for the lawyer to pay the chargeback. If credit
card advance retainers also cannot be put in the
general operating account, the result would be
that advance retainers paid by credit card would
be unethical in North Dakota.Yet, one must
assume that Attorney Standards Committee
knew that not only credit card processing fees
were an issue, but also that chargebacks were an
issue. In other words, the Attorney Standards
Committee had no problem with that practice as
long as the lawyer promptly covered the chargeback with personal funds.
There are a number of ways to avoid the ethical dilemma caused by potential chargebacks to
the client trust account. These have been discussed in ethical opinions from other states:
(1) deposit the payment into the client trust
account and monitor the account closely and
promptly cover any chargeback from general
operating funds; (2) deposit the payment into
23
ETHICS & DISCIPLINE
the trust account, but always keep a certain
cushion of lawyer money in the account to cover
processing fees and chargebacks; (3) deposit the
payment into the client trust account, but do not
draw on the client's funds until the time for the
client to dispute the charge has passed; or, (4)
deposit advance retainer credit card payments
into the general operating account and promptly
transfer the payments to the trust account.
(1) Closely monitor the client trust account
and promptly cover the chargeback with lawyer
funds.
Rule 1.15(b) seams to suggest that the practice
of depositing a credit card payment of a refundable advance retainer into a trust account is ethical, as long as the lawyer immediately deposits
the chargeback amount in the trust account or
takes other precautions to ensure that other
clients' trust funds are not overdrawn or placed
in jeopardy.A lawyer who fails to do this would
be subject to discipline due to inappropriate
administration of the client's trust fund. This
would be similar to the lawyer depositing personal funds into the client trust account to cover
credit card processing fees. This practice, however, seems to be fraught with risks to other client
funds deposited in the client trust account, especially if the lawyer does not have funds to cover
the chargeback or the credit card processing fee.
(2) Keep a cushion of lawyer money in the
trust account to cover processing fees and
chargebacks.
This practice is suggested by Ariz. R. of Prof
Conduct ER 1.15 (COMMENT 2009
Amendment). However, the practice would
require permanent co-mingling and would
appear to be ethically improper.
(3) Deposit the advance retainer credit card
payment into the client trust account and wait to
draw out earned fees and expenses until the
chargeback period expires.
As already described, the practice of depositing an advance retainer credit card payment into
the trust account is fraught with an ethical risk
that other client trust funds could be expended
for an improper purpose.As a result, some states
require the lawyer to wait until the chargeback
period expires before earned fees and expenses
can be drawn out of account. See Ky. Bar Ass'n.
Ethics Op. KBA E-426 (2007); DC Bar Ass'n. Op.
348 (2009); and, Mich. Bar Ass'n. Op. RI 344
(2008). The problem with this practice is that it
slows down the transfer of earned fees and costs
to the general operating account. The time period within which a dispute may be made can be
24
substantial. See DC Bar Ass'n. Op. 348 (2009).
The reason for an advance retainer, which is to
have certainty and promptness in attorney fee
and expenses collection, would be defeated to
the detriment of the law firm's cash flow. This
practice would, however, ensure that the potential for a chargeback does not risk other client
funds held in the trust account; but, it would
result in co-mingling for a substantial period of
time.
The specifics of chargeback deadlines and procedures are not within the purview of an ethics
committee.A lawyer who uses the client trust
fund as a merchant account for advance retainers should become familiar with chargeback
banking practices and adopt a withdrawal of
funds policy consist with it. The only other
option would be to have the client use a credit
card check or obtain a cash advance on the credit card for the amount of the advance retainer
and place that amount in the client trust
account. See N.M. Bar Ass'n.Advisory Op. 20001 (2001). The problem with this, however, is that
credit card companies usually charge a much
higher interest rate for use of credit card checks
and cash advances and may have limits on the
cash advance amount.
(4) Deposit the advance credit card payment
into the law firm's general operating account
and promptly transfer it into the client trust
account.
From a purely ethical standpoint, considering
the bright line that client funds and lawyer
funds should not be co-mingled, the practice of
putting credit card advance retainers into the
general operating account appears technically
unethical.Yet, this may be the most logical
approach, because it results in the least long
term co-mingling of client and lawyer funds and
the potential risk of a chargeback is shouldered
by lawyer, not client, funds. See Cal. Bar Ass'n.
Op. 2007-172 (2007).
As already described, the District of Columbia
obviates this ethical dilemma by allowing
deposits of advance retainers paid by credit card
into a general operating account after the client
consents to the practice in writing. See D. C. Bar
Ass'n. Ethics Op. 348 (2009). If this method is
used, the lawyer would have to immediately
transfer the advance retainer to the client trust
account. Id.While there is a technical co-mingling of funds, it is only for a brief moment to
protect the integrity of the trust account. Rule
1.15(a) states: "A lawyer shall hold property of a
client... separate from a lawyer's own property."
(Emphasis added.) In other words, the credit
card advance is not "held" in the general operating account. Rule 1.15(c) requires a "deposit"
into the client trust account, but does not mention when the deposit should occur or from
where it should occur.When the lawyer's general
operating account is used merely as a pass
through account to accept credit card advance
retainers, and if the advance is immediately
"deposited" into the client trust account, the
lawyer is "holding" the property separate from
the lawyer's own property. This would appear to
be the best practice ethically, and it is most practical from a business standpoint. However, if the
transfer is not made immediately from the general operating account to the client trust fund,
the lawyer would clearly be in violation of the
rule prohibiting co-mingling of funds. It
appears, therefore, that the practice of the
requesting lawyer's supervising lawyer is a fleeting technical violation of Rule 1.15, but it may
be the most logical practice. Moreover, the
N.D.R.Prof. Conduct should be interpreted and
applied as "rules of reason." See N.D.R.Prof.
Conduct, Preamble and Scope, Scope [1]. This
approach to depositing advance retainer credit
card payments appears to be the most reasonable approach.
(5) A single credit card payment for both past
billed attorney fees and costs and for an advance
retainer.
Some states' ethics opinions frown upon the
practice of accepting a single credit card payment for both earned and advance fees and
expenses because it is a per se co-mingling of
funds. Instead, two credit card payments are
suggested, but two payments will each have a
separate processing fee.A single payment will be
less expensive for the client or lawyer, depending
on who is paying the credit card processing fee.
The Committee will defer offering an opinion
about this issue, since it was not raised by the
requesting lawyer.
(6) Conclusion for acceptance of advance
retainers by credit card payment.
In conclusion, there is no clear ethical choice
regarding into which account advance refundable retainers should be placed. Ethics opinions
in other states have reached different results. If
the advance retainer was paid by cash, check, or
electronically, Rule 1.15 would require the
money to be deposited in the client trust fund.
But, because of processing fees and the potential
for chargebacks, the practice of depositing of
credit card payments into client trust accounts is
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February 2010
not so clear cut ethically. This practice has the
potential for longer periods of co-mingling than
when using the lawyer's general operating
account as a pass through.Yet, using the lawyer's
general operating account as an advance retainer pass through appears to be prohibited by Rule
1.15(c). Thus, using either the lawyer's general
operating account or the client trust account has
some inherent ethical issues if things go wrong.
It would be helpful to lawyers if Attorney
Standards or the Supreme Court adopted clear
practice guidelines for credit card payments.
In the meantime, the Committee believes the
lawyers should have some guidance about how
to accept advance retainers paid by credit card.
The best practice would be to get the bank/credit card processor to chargeback only the lawyer's
general operating account when the deposit is
made into the trust account. If this will not be
allowed, the most ethical approach would be to
deposit advance retainers into the client trust
account, but not allow any withdrawal of money
from the account for earned fees and expenses
until the chargeback period expires. This seems
impractical from a business standpoint, howev-
The Gavel
February 2010
er. The better practical approach when chargebacks cannot be taken from a different account,
appears to be to deposit any advance retainers
paid by credit card into the law firm's general
operating account, with a prompt, if not immediate, transfer of any unearned funds to the
client trust fund. In the event a chargeback
occurs, the lawyer's general operating account
would bear the financial risk, not other client's
trust funds deposited into the client trust
account. The co-mingling would be for a very
limited time period, because the lawyer would
not hold client funds long term. This is a fleeting
technical violation related to co-mingling, but
this practice would be a reasonable application
of the ethics rules. The Arizona approach, which
requires use of the client trust fund for
advances, on the other hand, assures that there
will be long term co-mingling of both client and
lawyer funds in the client trust account.
4.Who should pay the credit card processing
fee?
N.D.R.Prof. Conduct, 1.15(b) allows a lawyer to
place the lawyer's own funds into the trust
account to pay "fees associated with credit card
payments." The lawyer, therefore, can ethically
absorb the processing fees. Rule 1.15(b), however, does not answer the question whether the
lawyer can charge the processing fees to the
client.
As already discussed, there are credit card processing fees associated with each merchant
account and credit card transaction.
Customarily, most non-lawyer businesses absorb
the fees as a cost of doing business. Thus, the
actual amount charged to the credit card is credited to the bill, even though the actual payment
is less. Most ethics opinions in other states allow
the lawyer to either absorb the fee or pass it on
to the client with written client consent. See Cal.
Bar Ass'n. Op. 2007-172 (2007); Colo. Bar Ass'n.
Formal Op. 99 (1997); Ky. Bar Ass'n. Formal Op.
KBA E-426 (007); Md. Bar Ass'n. Op. 97-14
(1997); Mo. Bar Ass'n. Op. 20000202 (2000); S.C.
Bar Ass'n. Op. 98-08 (1998); Utah Bar Ass'n. Op.
97-06 (1997); and,Va. Bar Ass'n. LEO 1848
(2009).
At least two state ethics committees, however,
conclude that the lawyer must absorb the credit
card fee and cannot pass it on to the client. See
25
ETHICS & DISCIPLINE
Fla. Bar Ass'n. Op. 76-37 (1976); and, Mich.
Formal Op. RI-168 (1993). The Michigan Bar
Association ethics committee concluded that
charging the client for the fee would be unreasonable and in violation of Rule 1.5(a).
The overwhelming majority of state ethics
committees allow the lawyer to charge the processing fee to the client or to absorb the cost.
The Committee agrees that the practice does not
per se violate the N.D.R.Prof. Conduct. The
lawyer must, however, obtain written client consent for the practice after a full informed consent is provided. See Ky. Bar Ass'n. Ethics Op.
KBA E-426 (2007) (stating the practice would be
so outside the norm in the commercial world
that lawyers have an unusually high burden of
ensuring the client understands that the service
charge will be passed on to the client.) The
lawyer may not want to do this, however, considering the prevailing practice of other businesses.
See D.C. Bar Ass'n. Op. 348 (2009).
It should be noted that some ethics opinions in
other states make specific reference to Truth in
Lending laws regarding charging clients for the
processing fee. See e.g., D.C. Bar Ass'n. Ethics Op.
348 (2009); Ore. Bar Ass'n. Formal Op. 2005-172
(2005); and,Va. Bar Ass'n. Op. LEO 1848 (2009).
This issue is outside the scope of this opinion,
but a lawyer desiring to charge the client for the
credit card processing fee may want to consider
the implications of federal law.
5. Client confidentiality issues.
A lawyer must maintain the confidentiality of
client secrets. N.D.R.Prof. Conduct 1.6. Other
states' ethics opinions recognize that credit card
payment can put client confidentiality at risk
when credit card companies require the disclosure of the nature of the legal services charged
during collection efforts. See e.g., Del. Bar Ass'n.
Comm. Prof. Ethics Op. 1992-6 (1992); and, D.C.
Bar Ass'n. Op. 348 (2009). Clients should be
informed of this risk and consent to it in writing. However, lawyers should limit disclosures to
generalities as much as possible. Id.
6. Informed consent issues.
As already discussed, most states' ethics opinions make client informed consent an essential
component of the ethical use of credit card payments for lawyer services.A lawyer who intends
to accept credit card payments should become
familiar with clients' credit card billing procedures. The lawyer should inform the client about
the usual issues related to the payment of lawyer
services with credit cards, such as processing
fees, chargebacks, and the account into which
26
the payment will be deposited. The lawyer
should obtain the client's consent for the use of
credit cards, including into what account the
payment will be made, and how processing fees
and chargebacks will be handled.Although the
N.D.R.Prof. Conduct, do not appear to require
that client consent to use of credit card payment
be put into writing, the better practice would be
to do so.
7.Advertising that credit card payments are
accepted.
Many states' ethics opinions pertaining to use
of credit cards in payment for legal services discuss advertising that credit cards are accepted.
See e.g., Colo. Bar Ass'n. Formal Op. 99 (1997);
Del. Bar Ass'n. Prof. Ethics Op. 1992-6 (1992);
N.H. Bar Ass'n. Ethics Comm. Formal Op. 198485/1 (1984); Utah Bar Ass'n. Op. 97-06 (1997);
and,ABA Formal Op. 00-419 (2000). Some older
ethics opinions had problems with the practice,
but this practice is now considered ethically permissible as long as the lawyer complies with that
state's ethics rules related to advertising. The
Committee concludes that a lawyer may advertise acceptance of credit card payments as long
as the lawyer complies with N.D.R.Prof. Conduct
7.1 and 7.2. The specifics of advertising compliance are beyond the scope of the ethics opinion
requested.
B.A LAWYER'S DUTY TO REPORT IMPROPER CREDIT CARD PRACTICES BY A SUPERVISING LAWYER AND ETHICAL RESPONSIBILITY OF A SUBORDINATE LAWYER.
The requesting lawyer inquired about a
lawyer's duty to report unethical credit card
payment practices by a supervising lawyer. The
lawyer also wondered if Rule 5.2 absolves a subordinate lawyer, who follows the supervising
lawyer's directives related to credit card
payments.
1. Duty to report.
The duty of a lawyer to report unethical practices by another lawyer is found at N.D.R.Prof.
Conduct 8.3(a):
(a) A lawyer who knows that another lawyer
has committed a violation of these rules that
raises a substantial question as to that lawyer’s
honesty, trustworthiness, or fitness as a lawyer
in other respects shall initiate proceedings
under the North Dakota Rules for Lawyer
Discipline. (Emphasis added.)
The Rule does not differentiate between the
duty to report a supervising lawyer's violation
versus that of an equal level colleague. The duty
to report an ethical violation exists if the lawyer
"knows" of a violation that raises a “substantial”
question about the lawyer’s honesty, trustworthiness, or fitness as a lawyer. The Rule, therefore,
does not require the lawyer to report every violation. Only those violations that the profession
of law “must vigorously endeavor to prevent”
must be reported. See COMMENT [3] to
Rule 8.3.
Generally, misuse of client trust funds or inappropriate client trust fund practices would
require a disciplinary report.As can be gleaned
from this Ethics Opinion, however, the issues
related to the use of credit card payments for
legal services have significant complexities; and,
there are no clear cut rules adopted in North
Dakota regarding credit card use despite the
uniqueness of credit card payments. The issue of
what are ethical credit card practices also
depends on the specific facts related to a
lawyer's practice, including the merchant
account contracts and kinds of legal services a
lawyer provides and what kinds of payments are
being made by credit card.Without more specific details from the requesting lawyer, the
Committee is unable to specifically state
whether there is a duty to report the supervising
lawyer. It appears that under the facts provided,
however, there is no ethical duty to report the
supervising lawyer.
2. Ethical responsibility of a subordinate
lawyer.
Regarding the ethical responsibility of the
requesting lawyer's own actions, Rule 5.2 would
apply. Rule 5.2 states:
(a) A lawyer is bound by these Rules notwithstanding that the lawyer acted at the direction of
another person.
(b) A subordinate lawyer does not violate these
Rules if that lawyer acts in accordance with a
supervisory lawyer's reasonable resolution of an
arguable question of professional duty.
Rule 5.2(a) does not absolve a lawyer's unethical conduct simply because a supervising lawyer
directed the lawyer to act. The supervisory and
subordinate lawyer relationship, however, may
be relevant in certain situations. See COMMENT
[1] to Rule 5.2. If the conduct directed by the
supervising lawyer is clearly unethical, the subordinate lawyer has an ethical duty not to follow
the supervising lawyer’s directive. See COMMENT [3] to Rule 5.2.When the ethics of the
supervisor's directive is an arguable question of
professional duty, the subordinate lawyer would
not be violating the Rules if the subordinate
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February 2010
lawyer acts pursuant to the supervisor’s directive. Id. Since the ethics issue presented is
arguable, it would not be an ethical violation for
the requesting lawyer to follow the supervisor’s
directive regarding credit card payments
CONCLUSION
The requesting lawyer has identified a difficult
ethical question. The best ethical practice for
accepting credit card payments and into what
accounts the payments should be made are not
clear cut. Credit card payments of already
earned attorney fees and advanced costs, however, should be deposited into the lawyer's general
operating account. The best ethical practice for
deposits of advance refundable retainers paid by
credit card, on the other hand, are not clear cut.
Many states have issued recent ethics opinions
toiling over what is the best ethical practice. The
practice of the supervising lawyer, as described
in the requesting lawyer's letter to the
Committee, is identified as the required practice
for advance retainers in at least the District of
Columbia with client consent. It also appears to
be the most practical solution from a business
perspective, and it is least likely to result in long
term co-mingling of funds and the least likely to
risk other client trust funds. But, in most other
states, the practice of putting an advance retainer paid by credit card into a general operating
account is considered unethical. Those states
require that credit card payments of advance
retainers be placed into a client trust fund.Yet,
because of the possibility of a chargeback, this
practice puts other clients' trust funds at risk.
Many solutions to this ethical problem result in
co-mingling of funds for a substantial period of
time. The most ethical solution would be to get
the credit card processor/bank to take chargebacks out of the lawyer's operating account. If
this is not possible, the lawyer should wait until
the chargeback period expires before drawing
out earned fees and costs. This is, however, an
impractical business practice that impedes the
law firm's operating cash flow. The most practicable resolution for credit card payments of
refundable advance retainers is to use the
lawyers' general operating account to briefly
accept deposits of advance refundable retainers
with a prompt transfer to the client trust fund
account. This is the District of Columbia Bar
Association approach.
Without clear guidelines from Attorney
Standards or the North Dakota Supreme Court,
what is the acceptable practice is uncertain. The
Committee, however, has offered its opinion
about the preferred practice, which is to obtain
the written consent of a client to use the lawyer's
general operating account for all credit card payments, including advance retainers, with a
prompt transfer of unearned funds into the
client trust account.While this may be a fleeting
technical violation of the Rules of Professional
Conduct, it is a reasonable solution. It appears,
therefore, that the requesting lawyer has no duty
to report the supervising lawyer's credit card
practices under the facts described.Also, under
the circumstances it would not appear that the
requesting lawyer would be unethical in following the supervisor's directives regarding credit
card payments.
This opinion is provided pursuant to North
Dakota Rules of Lawyer Discipline 1.2(B), which
states:
A lawyer who acts in good faith and reasonable reliance on a written opinion or advisory
letter of the ethics committee of the association
is not subject to sanction for violation of the
North Dakota Rules of Professional Conduct as
to the conduct that is the subject of the opinion
or advisory letter.
This opinion was drafted by Alvin O. Boucher
and was approved by the majority of the Ethics
Committee on November 12, 2009.
MEDIATION AND ARBITRATION SERVICES
PATRICK J. WARD
ZUGER KIRMIS & SMITH
316 North Fifth Street
PO Box 1695
Bismarck, ND 58502-1695
701-223-2711
701-223-9619 (fax)
[email protected]
The Gavel
February 2010
• 1979 UND Law Grad (30 years in civil litigation practice)
• Experienced in Civil Litigation, Employment Law, Insurance,
and Personal Injury
• Qualified Civil Mediation Neutral listed on North Dakota ADR Roster
• UND Conflict Resolution Center Trained
• Licensed in North Dakota, Montana, Illinois, and U.S. Supreme Court
• Diplomate of National Institute of Trial Advocacy
• Handled dozens of mediations and arbitrations for over 10 years
• Will provide conference rooms in Bismarck or travel at reduced rate
to your office
“I promise to serve you, your client, and your adversary
with fairness, common sense, respect,
knowledge of the law and complete impartiality.”
27
ETHICS & DISCIPLINE
Opinion No. 09-07
The Ethics Committee received a request
regarding whether representation of a potential
client would be a conflict of interest.
FACTS PROVIDED
Corporation’s assets were owned by an
employee stock ownership plan (ESOP).
Corporation decided to sell. During the sales
talks,Attorney X represented the Purchasing
Company; Attorney Y represented the ESOP,
which owned Corporation.Although complications occurred during the sale, the transaction
did ultimately close.
After the sale closed,Attorney X filed an ethical complaint against Attorney Y based on the
sales transaction.Attorney Y contacted Firm
about representing him in the disciplinary matter.Attorney X left a voice mail with Firm indicating a conflict of interest prevented Firm from
representing Attorney Y in the disciplinary proceeding. The alleged conflict is due to Firm’s former representation of Corporation.
Firm’s former representation of Corporation
was limited to collection actions. Firm represented Corporation in a collection action against
a former key employee of Corporation.Attorney
X was substituted as counsel in the collection
matter when Purchasing Company purchased
Corporation. Firm did not represent Corporation
in the creation of the ESOP plan or the sales
transaction between the Purchasing Company
and Corporation.
QUESTION PRESENTED
Is it a conflict of interest for Firm to represent
Attorney Y in the disciplinary proceeding?
DISCUSSION
Rule 1.9 of the North Dakota Rules of
Professional Conduct addresses lawyers’ duties
to former clients. It provides, in pertinent part:
(a) A lawyer who has formerly represented a
client in a matter shall not thereafter represent
another person in the same or a substantially
related matter in which that person's interests
are materially adverse to the interests of the former client unless the former client consents in
writing.
(c) A lawyer who has formerly represented a
client in a matter or whose present or former
firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client in
28
the same or a substantially related matter except
as these Rules would require or permit with
respect to a client, or when the information has
become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or
require with respect to a client.
Id.
Under Rule 1.9, the issue presented is whether
the Firm’s former representation of Corporation
in collection matters was “the same or a substantially related matter” as the disciplinary proceeding of Attorney Y.
The Firm unequivocally states it did not represent Corporation in the creation of the ESOP
plan or the sales transaction between the
Purchasing Company and Corporation.
Regarding the sale of Corporation, Firm states it
“was not involved in that matter at all.”
Accepting Firm’s representation, the Ethics
Committee concludes Firm did not represent its
former client, Corporation, in the same matter
as requested by Attorney Y.
Whether matters are “substantially related”
depends of the facts and “is usually determined
on a case-by-case basis.” Opinion No. 03-01, at
11.“Matters are ‘substantially related’ for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a
substantial risk that confidential factual information as would normally have been obtained
in the prior representation would materially
advance the client's position in the subsequent
matter.” N.D. Rules of Prof’l Conduct 1.9, cmt. 3;
see also Continental Res., Inc. v. Schmalenberger,
2003 ND 26, ¶¶ 20-24, 656 N.W.2d 730.
There is no indication from the information
provided by Firm that information obtained in
Firm’s collection actions for Corporation would
materially advance Attorney Y’s position in the
disciplinary proceeding. Generally information
obtained in a collection matter would not be
material to allegations of unprofessional conduct
by an attorney in an unrelated sales transaction.
Based on the facts provided by Firm, the Ethics
Committee finds Firm’s past representation of
Corporation is not substantially related to its
desired representation of Attorney Y in his disciplinary proceeding. This is emphasized by
Firm’s assertion it was in no way involved in the
transaction between Corporation and
Purchasing Company, which is the basis of
Attorney Y’s disciplinary complaint.
It is noted that the Ethics Committee’s finding
is based on the limited information provided by
Firm and confidential information typically
obtained during collection actions. Because this
issue is fact dependent, if the collection actions
did in fact include confidential information
which would materially advance Attorney Y’s
position in the disciplinary proceedings, an
impermissible conflict exists under Rule 1.9(a).
CONCLUSION
Based on the facts presented by Firm, the
Ethics Committee finds Rule 1.9 does not prohibit Firm from representing Attorney Y in his
disciplinary proceedings.Although the Ethics
Committee finds Rule 1.9 does not prohibit Firm
from representing Attorney Y in his disciplinary
proceedings, the Firm is reminded of the
requirements of Rule 1.6(a) and Rule 1.9(c)(2).
Those rules prohibit Firm from revealing information relating to its former representation of
Corporation absent consent, except as permitted
or required by the Rules of Professional
Conduct.
This opinion is provided pursuant to rule
1.2(B) of the North Dakota Rules for Lawyer
Discipline, which provides:
A lawyer who acts in good faith and reasonable reliance on a written opinion or advisory
letter of the ethics committee of the association
is not subject to sanction for violation of the
North Dakota Rules of Professional Conduct as
to the conduct that is the subject of the opinion
or advisory letter.
The opinion was prepared by Douglas A. Bahr
and approved by a unanimous vote of the Ethics
Committee on the 12th day of November, 2009.
Opinion No. 09-08
(Withdrawal of Ethics Opinion No. 08-02)
The Ethics Committee received a request that
it reconsider Ethics Opinion 08-02, which
addressed whether lawyers could market themselves as "Super Lawyers." The Committee elected to reconsider the opinion, and it has decided
to withdraw Ethics Opinion 08-02.
FACTS
On April 10, 2008, the Ethics Committee
adopted Ethics Opinion No. 08-02, related to
"Super Lawyers." The opinion should be consulted for the details of the Super Lawyers designation. In summary, the opinion concluded that
the "Super Lawyers" designation implicated
N.D.R.Prof. Conduct 7.1 governing communications regarding a lawyer's services. The opinion
expressed specific concerns about using the desThe Gavel
February 2010
ignation in advertising "without an explanation
of the purpose for the designation and the
methodology used to select identified attorneys...." In part, the opinion was based on a July
24, 2006, ethics opinion issued by the New Jersey
Supreme Court Advisory Committee on
Attorney Advertising, N.J. Ethics Op. 39(2006),
which essentially prohibited New Jersey attorneys from using the "Super Lawyers" designation. It appears to the Committee that Opinion
08-02 was perceived by some North Dakota
lawyers to have the same effect.
On December 17, 2008, the New Jersey
Supreme Court vacated N.J. Ethics Opinion 39
with specific detailed rationale, and remanded
the matter to the Advisory Committee on
Attorney Advertising to develop specific rules
consistent with its decision. See In re Opinion 39
of Comm. on Attorney Adver., 197 N.J. 66, 78-80
961 S.2d 722, 730-731 (2008). The New Jersey
Supreme Court decision was based on the report
of a special master, who devised twelve regulatory components related not only to Super
Lawyers, but also Best Lawyers in America and
Martindale-Hubbell designations. Id. at 76-77,
961 A.2d at 729. The requesting lawyer asked the
Committee to consider the N.J. Supreme Court
Opinion and the fact that Minnesota Law &
Politics had changed its criteria for identifying
"Super Lawyers."
DISCUSSION
The Ethics Committee has the power to reconsider and withdraw the ethics opinions it has
issued. It appears that the New Jersey Supreme
Court decision vacating N.J. Ethics Op. 39 (2006)
has changed the framework for discussion of
not only the use of the "Super Lawyers" designation, but also use of the "Best Lawyers in
America" and Martindale-Hubbell designations.
On November 2, 2009, the New Jersey Supreme
Court approved amendments to RPC 7.1
(Communications Concerning a Lawyer's
Services). The amendments contain specific
directives to lawyers who want to use designations in advertising that are comparative to
other lawyers or which identify accolades a
lawyer may have received. The Committee
believes that this matter may be best addressed
through amendments to N.D.R.Prof. Conduct
7.1. The Committee, therefore, has elected not to
issue another opinion on this subject at this
time. St. Bar Ass'n. N.D. Ethics Op. 08-02 is hereby withdrawn and is no longer considered operative. The opinion will remain available at the
The Gavel
February 2010
Bar Association's website with a designation that
it was subsequently withdrawn by this opinion.
CONCLUSION
Ethics Opinion 08-02 is hereby withdrawn.
This opinion is provided pursuant to North
Dakota Rules of Lawyer Discipline 1.2(B), which
states:
A lawyer who acts in good faith and reasonable reliance on a written opinion or advisory
letter of the ethics committee of the association
is not subject to sanction for violation of the
North Dakota Rules of Professional Conduct as
to the conduct that is the subject of the opinion
or advisory letter.
This opinion was drafted by Alvin O. Boucher
and James S. Hill, and was approved by the
majority of the Ethics Committee on
November 12, 2009.
ORDER OF SUSPENSION
Bonnie J. Askew
A Hearing Panel of the Disciplinary Board
found that Bonnie Askew violated N.D.R. Prof.
Conduct 1.3, Diligence, and N.D.R. Prof. Conduct
1.4, Communication. The Hearing Panel recommended Askew be suspended from the practice
of law for 60 days and be required to pay costs of
the disciplinary proceedings in the amount of
$3,801.85.
The Supreme Court adopted the Hearing
Panel’s recommendation, and ordered that
Askew be suspended from the practice of law for
60 days, effective March 1, 2010. She was also
ordered to pay the above costs of the disciplinary proceedings.
for the claim.An Answer to the Notice was filed.
Subsequently, a Stipulation and Consent to
Discipline were forwarded to a Hearing Panel of
the Disciplinary Board, and then filed and
rejected by the Supreme Court.
Varriano withdrew his Answer and consented
to reciprocal and identical discipline to that
imposed in Minn. The Hearing Panel forwarded
its report and recommendation to the ND
Supreme Court. The Supreme Court accepted
the Panel’s recommendation and suspended
Varriano from the practice of law for one year in
ND effective Feb. 1, 2010.Varriano was also
ordered to comply with rules regarding notice
and reinstatement.
CLE SUSPENSION
The following attorney has been suspended,
effective December 31, 2009, for CLE non-compliance:
Nicole E. Foster
ORDER OF SUSPENSION
RECIPROCAL DISCIPLINE
Richard D. Varriano
Richard D.Varriano was admitted to practice
law in North Dakota on Jan. 5, 1988. On Sept. 4,
2008, the Minnesota Supreme Court suspended
Varriano for a minimum of one year for engaging in several forms of misconduct, including
representation of clients with clear conflicts of
interest and using a trust account to shelter personal funds from the IRS, with eligibility to
apply for reinstatement after one year.
The Disciplinary Board of the ND Supreme
Court served Varriano and his counsel Notice
that a certified copy of the discipline order was
received from Minn., and informed him he had
30 days to file any claim that identical discipline
in ND would be unwarranted and the reasons
29
NEWS &
ADMINISTRATOR
SETS 2010 JUDGMENT
INTEREST RATE
The North Dakota State Court
Administrator has set the judgment
interest rate for 2010 at 6.50 percent.
The administrator is required by law
to annually determine the judgment
interest rate prior to Dec. 20. The rate
will be applied to all judgments entered
in 2010.
The judgment interest rate is calculated by using the prime rate as reported
on the first Monday in December, plus
three percentage points. The result must
be rounded up to the next one-half
percentage point.
The prime rate on Dec. 7 was 3.25
percent. Application of the judgment
rate formula yielded the 2010 judgment
interest rate of 6.50 percent.
CLASSIFIED
ADVERTISING
FULL TIME LAWYER POSITION for
busy civil litigation practice in Bismarck,
North Dakota. Work involves primarily
insurance defense work. Pay commensurate with experience. Position available
approximately April 1, 2010. Send
resume to Lori Steckler at
[email protected].
OFFICE SPACE FOR LEASE
1,500 square feet in one-story newer
building near the intersection of I-29
and 13th Avenue South, Fargo, North
Dakota: geo-thermal heating, 23 parking
spaces, handicap accessible, conference
room, high speed internet available,
extensive network wiring in place. Price
based on triple net and terms of lease.
Contact Kathleen Weir at 701-200-6190
or [email protected].
30
Notes
MYSTERY LAWYER
Each issue will feature one lawyer identified only by his or her unique activities not
related to the law. E-mail your answer to [email protected] by Friday, February 26;
the winner will be chosen through a drawing of all correct responses, receiving not only
fame and glory, but also a $15 coupon good for an upcoming SBAND CLE. (Members of
the lawyer’s firm or organization are disqualified).
This attorney comes from a family that has made practicing law in North Dakota a
95-year tradition. There are five attorneys in the family and one doctor. He is passionate
about spending time with his wife, three children and one grandchild, as well as being
passionate about the law. In the summer, you may find him fishing and in the fall you
may spot him hunting turkey and more!
E-mail your answer to [email protected].
November Mystery Lawyer: Tarek Howard
November Mystery Lawyer Winner: Tracy Laaveg
Civil Practice
of North Dakota 2d
Forms (3 vol.) and Trial Notebook
Litigation Services, Inc., Bismarck
www.cpndbooks.com
DICKSON, COLLING PRESENTED AARC AWARD
Bismarck attorneys Tom Dickson and Jodi Colling have been presented the Abused Adult Resource
Center’s Esprit de Corps award.
The award recognizes community members who exhibit public spirit, empathy and sense of honor in
ending domestic violence or sexual assault, or for extraordinary services to victims of these crimes.
Presenting the awards Wednesday (Feb. 3) were Diane Zainhofsky, AARC executive director, and Heidi
Leingang, an AARC advocate.
Colling and Dickson have been a voice for victims who are unjustly charged for reporting their rape to
law enforcement, according to the award. “Jodi and Tom have unselfishly taken on cases of rape victims
being charged with providing false information or false reports to law enforcement at no charge,” the
award says. They understand the inconsistencies that commonly occur after the trauma of rape, as well
as the importance for victims to report the crime, according to the award. Without the reports from rape
victims, perpetrators will go free, putting our community at risk, the award said.
The AARC is a private nonprofit that serves victims of domestic violence and sexual assault and their
families in a seven-county area in south-central North Dakota.
The Gavel
February 2010
NEWS &
Notes
REGIONAL BAR ASSOCIATIONS SET 2010 MEETING DATES
Several regional bar associations in North
Dakota have set dates for their 2010 meetings. The schedules for four are listed below.
Contact information about other groups can
be found at www.sband.org.
Cass County Bar Association
The Cass County Bar Association meets at
11:45 a.m. at the Avalon Events Center in
Fargo. No meeting will be held June through
August; the remaining 2010 schedule is as
follows:
March 25
April 22
May 27
September 23
October 28
November 18
December 16
Officers of the Cass County Bar include
Stephannie Stiel, President; Susan Bailly, Vice
President; and Scott Strand, SecretaryTreasurer. For more information, contact
Nancy J. Morris, Nancy_Morris@ndd.
uscourts.gov, 701-297-7071.
Ward County Bar Association
Big Muddy Bar Association
The Ward County Bar Association generally
meets at noon the third Friday of every
month at the Grand International Inn in
Minot.
President Katy Schaefer says the meeting
dates and locations are subject to change
depending upon the speaker’s schedule and
the event center’s availability.
In addition, there is a Christmas party in
December and a banquet in May, and the
group sponsors a golf tournament with local
accountants in the summer.
For more information, contact Schaefer at
[email protected], 701-852-2544.
The Big Muddy Bar will meet monthly this
year, except in June and November. The
remaining schedule is as follows:
March 25
Regular noon meeting
Bismarck Elks Club
April 29
Law Day luncheon
Bismarck Municipal Country Club
April 30
Law Day at Courthouses
May 27
Regular noon meeting
Bismarck Municipal Country Club
July 22
Big Muddy hosts
“The Banquet” community meal
August
Picnic, date and location TBA
September
Golf tournament, date TBA
September 23
Regular noon meeting
Bismarck Elks Club
October 28
Regular noon meeting
Bismarck Elks Club
December
Holiday party
The Greater Grand Forks County
Bar Association
This group holds noon meetings at the
Aaltos Café at the Canad Inn in Grand Forks.
Tentative dates for the rest of 2010 are:
March 25
April 22
May 27
September 23
October
(TBA based upon Supreme Court visit)
November 18
For more information contact Stephanie
Weis, attorney at the Community Violence
Intervention Center, at [email protected], or 701-746-0405.
CASS COUNTY BAR LENDS A HAND TO HAITI
In light of the devastation caused by the recent earthquake in Haiti, the Cass County Bar
Association has made a $1,000 donation to the hospital in Pignon. Siri Fiebiger, wife of
Fargo attorney Thomas Fiebiger, has led a medical team that serves the Haitian hospital for
the past 13 years.
If you are interested in donating, please visit www.promiseforhaiti.org or mail your contribution to Promise for Haiti, 4402 Howell Place, Nashville, TN 37205.
This year’s president is Judge Gail Hagerty;
[email protected],
701-222-6682. Other officers include Tiffany
Johnson, Vice President; Zachary Pelham,
Secretary-Treasurer; and John Grinsteiner,
Officer at Large.
To publish information on your local bar
association meetings and officers in a future
issue of The Gavel, please email
[email protected].
COURTHOUSE FEATURE CORRECTION
The Gavel’s November 2009 feature on the McIntosh County Courthouse incorrectly
included a watercolor of the Dickey County Courthouse in Ellendale (above). The courthouse actually featured in the text was the McIntosh County Courthouse in Ashley.
Unfortunately, there is not an existing watercolor of the McIntosh County Courthouse.
Our sincere apologies for the incorrect photo reference, and thank you to Bill Kretschmar
for pointing it out.
The Gavel
February 2010
31
NEWS &
Notes
MERRICK NEW SOUTHEAST
DISTRICT JUDGE
Judge Tom Merrick pictured at the formal investiture on January 15, 2010, with his wife Pamela
and Rev. JoAnne Moeller, Chaplain at the Anne Carlsen Center.
Longtime Jamestown attorney, Tom Merrick, was sworn in as the
new Southeast District Judge at a formal investiture held Friday,
January 15, 2010. Merrick was appointed by Gov. John Hoeven to fill
the new seat on the bench, and becomes the 7th judge serving a fivecounty area.
Judge Merrick earned his Bachelor of Arts in sociology in 1972, and
was admitted to practice law in ND in 1983, at which time he began
his 26-year career in Jamestown. His practice included client defense,
creating deeds, handling civil cases and mental health proceedings.
Prior to that he served as a caption in the Air Force.
He has participated in over 40 jury trials and 46 appeals to the ND
Supreme Court, has represented clients through Legal Services of ND
for more than 20 years, and received the SBAND Community Service
Award in 2006.
Judge Merrick and his wife, Pamela, have three children.
CRESAP NEW NORTHWEST
JUDICIAL DISTRICT JUDGE
Judge Todd Cresap addresses his peers at the formal investiture on
December 28, 2009.
32
The formal investiture of Todd L. Cresap to the Northwest Judicial
District was held on Monday, December 28, 2009. Cresap was
appointed in November by North Dakota Gov. John Hoeven to fill a
new judgeship in Minot created by the 2009 state Legislature, and
officially took the bench January 1, 2010.
Judge Cresap is a Valley City native who has lived in Minot for some
years. He received a Bachelor’s degree in economics from Minot State
College in 1983, and a Juris Doctor degree from the UND School of
Law in 1986.
Judge Cresap practiced law in Minot for 23 years, focusing in recent
years on family law and representing defendants in the state juvenile
court system, and served as the defense attorney for Minot’s Juvenile
Drug Court. He previously practiced law with Gary Lee, Michael
Sturdevant, Douglas Mattson and Richard Hagar, all of whom are now
district judges.
Judge Cresap and his wife, Linda, have three children.
The Gavel
February 2010
ANNOUNCEMENTS
NOTICE OF OPEN POSITION FOR PRESIDENT-ELECT
The Position of President-Elect of SBAND is to be voted on at the General Assembly
Meeting on June 17, 2010 at Bismarck, North Dakota. The Constitution requires nomination by a petition signed by at least five other members of the Association and received
by the Association at least 50 days before the General Assembly meeting. In the event of
a contested election, absentee ballots will be provided pursuant to Article 4.7 of the
Constitution. Any member interested in the nomination process is encouraged to
consult Article 4.7 of the Constitution or contact the Executive Director of SBAND.
NOTICE OF OPEN POSITION FOR SBAND ABA DELEGATE
The position of SBAND ABA Delegate (the position presently held by attorney James S.
Hill of Bismarck) is to be voted on at the General Assembly meeting on June 17, 2010, in
Bismarck, North Dakota. The Constitution requires nomination by a petition signed by
at least five members of the Association and received by the Association at least 50 days
before the General Assembly meeting.
The Gavel
February 2010
CALL FOR RESOLUTIONS
Pursuant to Section 12, By-Laws of
SBAND, any substantive resolution
proposed for consideration by any
member of the Association shall be
filled with the Executive Director of
SBAND at least 30 days prior to the
date of the meeting at which the resolution is to be considered. The Annual
meeting of this Association commences June 17, 2010. The Board of
Governors, in order to facilitate mailing
and publication to the membership,
hereby calls for and requests all proposed resolutions be delivered (and if
mailed to be postmarked) to SBAND
no later than May 1, 2010.
33
Published by The State Bar Association of North Dakota
P.O. Box 2136
Bismarck, ND 58502
PRESORTED STD
US POSTAGE
PAID
BISMARCK, ND
PERMIT NO. 188
CHANGE SERVICE REQUESTED
SAVE THE DATES
for the 2010 SBAND Annual Meeting
June 15-18, 2010
Best Western Ramkota Hotel
Bismarck