State Bar Association of North Dakota Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the State Bar Association of North Dakota, with full citations and source links on every page.
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Can a state's attorney who used to be a public defender prosecute a person they once represented, when the new charge is unrelated to the old case?
Sometimes, but only after a careful Rule 1.9 analysis and safeguards. The committee concluded a prosecutor may handle a case against a former client if the new matter is not the same or…
Is maternity leave a physical condition that requires a lawyer to withdraw from cases, and what must a lawyer do to cover her matters during a 7-month leave?
No. The committee concluded that maternity leave is not a physical condition that materially impairs a lawyer's ability to represent clients and so does not require withdrawal under Rule 1.16(a)(2).…
Is a licensed lawyer who is not currently practicing law but works as a licensed real estate salesperson bound by the Rules of Professional Conduct?
It depends on the circumstances. The committee concluded that real estate sales work is a 'law-related service,' so under Rule 5.7 a non-practicing lawyer working as a real estate agent may avoid…
Can a firm that represents a government entity in unrelated matters defend a private client against that same government entity in a fraud investigation, if both clients consent?
The committee concluded Rule 1.7 does not explicitly prohibit the representation, but applies Rule 1.7(c): because the representation only might be adversely affected, the firm may proceed only if…
Can a lawyer employed in a non-attorney capacity as a state-court case officer also run a limited real-estate and title practice on the side?
The committee concluded the Rules of Professional Conduct contain no express prohibition on dual practice or second occupations. Rule 5.7 supplies the framework: to the extent the case-officer job…
Can a lawyer with offices in two communities sell one office's practice and keep practicing in the same fields and the same geographic area?
No. The committee concluded that Rule 1.17 does not permit a lawyer who has offices in more than one North Dakota community to sell the practice associated with one office and continue practicing in…
After serving a summons and complaint, can a lawyer simply withdraw when the client stops paying and communicating, or must the lawyer file the case and move for leave to withdraw?
The lawyer must file the case, pay the filing fee, and move for leave to withdraw. The committee concluded that serving a summons and complaint is an appearance, and under North Dakota Rule of Court…
Must a lawyer who represents adoptive parents and can see confidential genetic-parent information in the court file disclose it to the adoptive-parent client on request?
No. The committee concluded a lawyer for adoptive parents is statutorily obligated under N.D.C.C. 14-15-16 to keep the genetic parents' identifying information confidential unless that statute's…
If a lawyer agreed to store a client's tangible personal property 'temporarily' and the client is now unreachable, must the lawyer keep storing it, or can the property be treated as abandoned?
The lawyer must keep safeguarding it. The committee concluded that Rule 1.15 requires the lawyer to hold the client's tangible personal property with a fiduciary's care until it can be delivered to…
When a court asks a public defender about contacts with an absent client, what may the lawyer disclose, and can the lawyer still represent the client on the original and new bail-jumping charges?
A public defender may disclose only nonprivileged facts about contacts with the client, and only when the court orders the answer, not on a mere question, under Rule 1.6(c)(5). On the limited facts,…
Can a lawyer transfer the stock of a law professional corporation to a revocable living trust for estate planning, if at least one trustee is a licensed attorney?
No. The committee concluded that a revocable living trust may not own stock in a professional corporation that practices law for a profit, even if a trustee is a licensed attorney. Rule 5.4(d)(1)…
When a lawyer leaves a firm and some clients choose to follow, does the lawyer automatically represent them, and can the lawyer require new fee agreements?
No automatic relationship, but the lawyer may represent them. The committee concluded that clients who chose to follow a departing lawyer are former clients of the old firm, not automatic clients of…
If a lawyer practices under a temporary North Dakota license through a required supervising associate, can the lawyer take a case the associate must decline for a conflict of interest?
No, absent informed consent. The committee concluded that because a temporarily licensed lawyer must associate with a designated North Dakota attorney who actively participates and shares actual…
Can a North Dakota lawyer move to Minnesota and use physician-recommended medical marijuana while keeping a North Dakota law license?
No. The committee concluded that using medical marijuana, even where a state authorizes it and a physician recommends it, would violate Rule 8.4(b). Marijuana remained illegal under federal law and…
May a lawyer represent an aunt in a financial claim against relatives the lawyer previously represented?
No. The committee found the relatives remained the lawyer's clients and that the proposed claim was materially adverse and substantially related to the lawyer's earlier work involving their…
Can a North Dakota lawyer use an outside collection agency to collect unpaid client fees, and how should the lawyer pay the agency and protect client confidences?
Yes, with two limits. The committee concluded a lawyer may use an outside collection agency or third-party recovery service for unpaid accounts receivable, but the payment to the agency may not be a…
Is it ethical for a North Dakota lawyer to practice collaborative law, where the lawyer agrees to withdraw if the parties cannot settle and litigation becomes necessary?
Yes. The committee concluded that collaborative law is a permissible limited-scope representation under Rule 1.2(c), so long as the client gives informed consent after being told the process's…
Can a North Dakota law firm pay an out-of-state firm a percentage of fees collected in exchange for being its exclusive referral firm for North Dakota clients?
No. The committee concluded the arrangement violates Rule 1.5(e) because the percentage paid to the out-of-state firm is for the referral alone, not in proportion to services performed and with no…
Can a debt-collection lawyer use a daily bank sweep on a client trust account to disburse collection payments to the client automatically?
Yes, but with safeguards. The committee concluded a lawyer may set up a separate interest-bearing trust account for a debt-collection client and honor a daily sweep, but only if the sweep removes…
Did North Dakota's bar ethics committee uphold or withdraw its opinion limiting 'Super Lawyers' advertising?
The committee withdrew Ethics Opinion 08-02 and declined to issue a new opinion on advertising the 'Super Lawyers' designation. It explained that the New Jersey Supreme Court had vacated the opinion…
Does a firm's past collection work for a company bar it from defending a lawyer in a disciplinary case arising from that company's later sale?
No, on the facts. The committee concluded the firm's former collection work for the company was not the same as or substantially related to the lawyer's disciplinary proceeding (which arose from a…
Where can a North Dakota lawyer deposit credit card payments for earned fees versus advance retainers, and must a subordinate lawyer report a supervisor's credit card trust-account practice?
Credit card payments for already-earned fees and costs go in the firm's general operating account. For refundable advance retainers, the committee called it the most practical approach to route the…
Can a lawyer who serves as a bankruptcy trustee contact a debtor who has a lawyer, without going through that lawyer?
It depends on the lawyer's role. The committee concluded that Rule 4.2 applies only when a lawyer is representing a client, so a lawyer acting solely as a bankruptcy trustee (not as legal counsel…
Must a lawyer share information about a criminal client's case with the client's court-appointed guardian when the client objects?
The committee concluded that, because a court had given the guardian full authority over the client's legal matters, the lawyer does have an obligation to communicate with the guardian even over the…
Can a licensed lawyer who works as a clerk of court take pro bono cases through a volunteer lawyer program, especially defending child-support cases in her own district?
No. The committee concluded that the lawyer's position as clerk of court, her statutory duties to the district judges, her access to the state child-support computer system, and her prior work for…
Can a firm that represents a city in civil matters also take a contract to defend indigent defendants the city is prosecuting?
No. The committee concluded that a firm which represents the city (through contracts with the city attorney) cannot also serve as contract indigent-defense counsel against the city's own…
Can a firm pay a for-profit marketing company an annual fee to advertise its services to a company's employees at a reduced rate?
No. The committee concluded the arrangement violates Rule 7.2(d)(2): paying an annual fee to a for-profit 'lawyer referral service' to steer a select group of employees to the firm is giving…
Can a state's attorney's office also run the community service program that monitors the sentences it helped obtain?
No. The committee concluded that taking on the community service coordinator role creates an irreconcilable conflict under Rule 1.7, because the program is funded in part by fees from people…
Must a lawyer pack and ship a former client's file, and when may the lawyer charge for a copy?
The committee said the lawyer must make the former client's file available but need not pack or ship it; the committee declined to say whether the 700-mile distance changes that result. A requested…
Does a lawyer have to withdraw because opposing counsel calls the lawyer a 'necessary witness,' when others in the firm know the same facts?
No. The committee concluded that a lawyer is a 'necessary witness' under Rule 3.7 only when the lawyer is the sole available source of material testimony on a contested issue, so as long as others…
When an agent under a durable power of attorney hires a lawyer to get a client onto Medicaid, and the agency claims the agent mismanaged the client's money, does that create an unwaivable conflict?
The committee concluded the only client is the Medicaid applicant, not the agent, so the agency's claim that the agent mismanaged funds does not by itself create an unwaivable conflict. It is at…
Can a North Dakota lawyer advertise being named a 'Super Lawyer'?
This opinion has been withdrawn and superseded by SBAND Opinion 09-08. As issued, the committee expressed concern that advertising a 'Super Lawyers' designation without explaining the entity behind…
Does a lawyer serving as an administrative law judge violate Rule 5.5 by allowing a non-attorney to represent a corporation at an administrative hearing?
The committee concluded that an administrative law judge violates Rule 5.5(e) by knowingly permitting the unauthorized practice of law in a proceeding over which the judge presides, limited to…
May an uncertified family law attorney advertise himself as a specialist?
The committee concluded that the requesting attorney could not call himself a family law specialist without the certification required by North Dakota Rule 7.4(c), though he could truthfully state…
Can an indigent-defense lawyer be required, even with a written waiver, to report a client's financial information to the funding commission when it could be disclosed in open court?
The committee concluded that disclosing a client's confidential financial information to the funding commission, knowing it would be filed in open court and could be used against the client, would…
If a prosecutor is conflicted out of a matter because it is adverse to a former client, are the other lawyers in the same state's attorney's office also disqualified?
The committee concluded that a state's attorney who formerly represented a party may not handle the office's same matter against that former client under Rule 1.9(a), and that because the lawyers in…
Does a part-time state's attorney's earlier civil work for someone bar the attorney from later prosecuting that former client?
The committee concluded the question turns on whether the prior civil work is 'substantially related' to the criminal charges, or whether confidential information from it would be used against the…
If a lawyer's law partner sits on the city council, can the lawyer still defend criminal cases in that city's court?
No. A lawyer who sits on a city council has a non-waivable conflict in defending criminal cases in that city (Opinion 05-06), and Rule 1.10 imputes that conflict to the partner's firm. The committee…
When another state's disciplinary authority demands client trust-account information, must a lawyer produce it or does confidentiality bar disclosure?
Rule 8.1 requires a lawyer to respond to a disciplinary authority's lawful demand, but it does not require disclosing information protected by Rule 1.6. The committee concluded the lawyer cannot…
Can a lawyer let a former client (someone she represented in a mental-health commitment) live in her home to help with the transition to independent living?
The committee concluded that no North Dakota Rule of Professional Conduct directly addresses this and that the arrangement does not violate the rules, so long as the lawyer does not take a position…
Can separately located public defender offices run by one state commission be treated as separate law firms, so a conflict in one office is not imputed to the others?
On the facts presented (offices in different cities with separate staff, files, computer systems, and letterhead, no shared access to client confidences, and only administrative oversight by the…
Can a North Dakota lawyer pay a per-referral fee to join an internet lawyer referral service?
Paying a referral service for clients gives value for recommending the lawyer's services, which Rule 7.2(d) generally bars, but the committee concluded a lawyer may participate if the service is…
Can a lawyer who serves on the city council and its police commission defend criminal cases in that city's court, and can resigning a seat cure the conflict?
The committee concluded a sitting city council member may not defend city cases moved to district court (a non-waivable conflict that requires resigning the council seat to take such cases).…
Can a North Dakota prosecutor accept a small thank-you gift from a crime victim, and do the ethics rules address it?
The committee concluded that North Dakota's Rules of Professional Conduct do not address whether a prosecutor may accept a gift from a victim. It pointed the prosecutor to a statute (N.D.C.C.…
Can a lawyer collect names of potential clients from seminar attendees and then contact those people to solicit business?
Handing out a form at a seminar that asks attendees to name people who might want the lawyer's services is not itself improper, but using those names to make in-person, telephone, or other real-time…
If opposing counsel in a divorce claims my firm once represented the other spouse, must I withdraw when no clear attorney-client relationship with that spouse was ever formed?
The committee held that, because it does not act as a fact finder and was given no facts showing the other spouse had ever formed an attorney-client relationship with the firm (no express agreement,…
If a client secretly makes a side deal that renders a signed court stipulation false, must the lawyer tell the court, and can the lawyer reveal it?
Under the version of Rule 3.3 the committee applied, because the false stipulation amounted to the client's own offer of false evidence, the lawyer's duty was to seek to withdraw without disclosure,…
May a North Dakota lawyer use out-of-state lawyers as estate-planning consultants and receive their referrals to a separate investment business?
The committee permitted the proposed consultation if the North Dakota lawyer retained responsibility, the consultants worked outside the state, and they did not advise clients directly. Referrals to…
Can a law firm sue a company it did transactional work for years ago on behalf of a personal-injury plaintiff, when the firm also represents a bank that lent the company money?
The committee concluded the firm could treat the company as a former client because more than two years had passed with no contact, so Rule 1.9 did not bar a new, unrelated personal-injury suit…
Can a North Dakota lawyer keep a fee-splitting agreement with another lawyer who has since been suspended, and pay that lawyer a share of the fee?
Under Rule 1.5(e), the lawyer may pay a now-suspended lawyer only for services that lawyer actually performed before the suspension, and only in an amount proportionate to that work; paying for…
Does a law firm's earlier insurance-coverage opinion for a company create a conflict that bars the firm from later bringing a shareholder derivative or class action on that company's behalf?
Because a derivative action is brought in the right of the corporation, the committee concluded the firm represented the same client (the company) in both matters, so no Rule 1.9 conflict arose on…
Can a lawyer who once did legal work for a company later sue that company's parent corporation, or the company itself, on behalf of the company's former owners?
Prior work for a subsidiary does not automatically make its corporate parent a former client; whether the parent counts as a client turns on alter-ego and unity-of-interest factors. On the facts…
What should a law firm do with an old client appeal bond when the clients and their heirs cannot be found?
Assuming reasonable efforts could not locate the deceased clients or their heirs, the committee concluded that the $500 bond and accrued interest held in the firm's trust account had to be delivered…
May a part-time county state’s attorney represent a plaintiff suing North Dakota over a car accident?
The committee found no absolute statutory bar on the assumed facts, but excluded matters involving county officials or employees and left Rules 1.7, 1.8 and 1.11 to be assessed.
May a state’s attorney prosecute a person involved in a commitment proceeding and use information from that proceeding?
The committee found no conflict in representing the state in both proceedings, but said confidential commitment information could not be used for past wrongdoing outside the statute’s exceptions.
May a lawyer defend a current client against a former client in a real estate claim unrelated to earlier document work?
The committee found no same-matter bar on the assumed facts; if the matters were substantially related and interests materially adverse, the lawyer needed proper consent, and confidentiality still applied.
Must a lawyer employed by a bank report another lawyer’s apparent use of IOLTA funds for overdrafts?
The committee said a lawyer with knowledge of substantial IOLTA misuse must initiate discipline unless Rule 1.6 bars disclosure of information learned as the bank’s lawyer without its consent.
Can a firm handle a divorce when one associate is the client’s son-in-law and may be a witness?
The committee left the conflict determination to counsel; if the associate had a conflict, it would reach the firm, and screening him from the matter would not cure it.
After a lawyer leaves a firm, may the lawyer contact former tax clients and must the firm provide requested electronic client data?
The committee applied the conduct rules to the lawyer’s tax business, allowed truthful targeted mailings, and said requested electronic client-file information must be provided electronically; it…
What work may a suspended lawyer do as a legal assistant, company counsel, guardian ad litem, or mediator?
The committee permitted supervised legal-assistant work within stated limits, barred corporate legal services and two specified guardian roles, and allowed roster-qualified mediation while declining…
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Legal ethics opinions from the State Bar Association of North Dakota interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.