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?
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This page answers the general question as of 2015. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
A lawyer practicing under a temporary North Dakota license is required to affiliate with a designated North Dakota associate attorney. Here the lawyer had a solo practice and the associate worked at a different firm. The lawyer met a prospective client about a family-law matter, and the prospective client mentioned that he had previously approached the associate attorney, who declined because of a conflict of interest. The committee was asked whether the temp-licensed lawyer could take the case the associate could not, and whether the answer changed if no pleadings would be filed in a North Dakota court. The committee assumed the associate did have a disqualifying conflict under Rule 1.7(a).
The committee framed the question as whether the associate's conflict is imputed to the temp-licensed lawyer, which turns on the required working relationship. Under North Dakota Admission to Practice Rule 6.1, the associate must put his or her name on all papers and personally appear at hearings, and under Rule 5.5(b)(4) the temp-licensed lawyer may practice only when associated with a North Dakota lawyer who "actively participates in the representation." Comment 6 to Rule 5.5 adds that the local lawyer "may not serve merely as a conduit" but must actively participate and share actual responsibility, and that pro forma involvement subjects both lawyers to discipline.
The committee reasoned that to actively participate and share actual responsibility, the associate must know, understand, and process the case alongside the temp-licensed lawyer. If the associate cannot represent the client because of a Rule 1.7(a) conflict, the same restriction applies to cases the associate supervises, so the temp-licensed lawyer should not accept the case. The committee also held that the requirement is not limited to formal court proceedings: because Rule 5.5(b) and Admission Rule 6.1 attach whenever the lawyer provides "legal services" or "practices law," and the North Dakota Supreme Court defines the practice of law broadly to include office work (Ranta v. McCarney), the same obligation applies even if no pleadings are filed. The only exception the committee identified is when the associate reasonably believes the representation will not be adversely affected and both the affected client and the prospective client give informed consent under Rules 1.7 and 1.18.
In practice
This opinion, approved in April 2015, applies North Dakota Admission to Practice Rule 6.1 and North Dakota Rules of Professional Conduct 5.5(b)(4), 1.7, and 1.18 as they stood at that time. The committee held that a temporarily licensed lawyer may not take a case that the required supervising associate must decline for a conflict of interest, because the associate must actively participate and share actual responsibility rather than serve as a mere conduit, so the associate's conflict reaches the supervised case. The committee held that the obligation applies to all legal services, not only matters with court filings, and that the only exception is the associate's reasonable belief that the representation will not be adversely affected combined with the informed consent of both the affected client and the prospective client.
Common questions
Q: If my supervising attorney has a conflict, can I still take the client under my temporary license?
A: No, absent informed consent. The committee concluded that because the supervising associate must actively participate and share actual responsibility under Rule 5.5(b)(4), the associate's Rule 1.7 conflict reaches the case the associate would supervise, so the temp-licensed lawyer should not accept it.
Q: Does it matter that no pleadings would be filed in a North Dakota court?
A: No. The committee held that Rule 5.5(b) and Admission Rule 6.1 require the local lawyer's active participation whenever the lawyer provides "legal services" or "practices law," not just in court, citing the North Dakota Supreme Court's broad definition of the practice of law in Ranta v. McCarney.
Q: Is there any way to take the case despite the associate's conflict?
A: Only under the exception. The committee said the case could proceed if the associate reasonably believes the representation will not be adversely affected and both the affected client and the prospective client give informed consent under Rules 1.7 and 1.18.
Background and rules framework
The opinion interprets North Dakota Rule of Professional Conduct 5.5 (Model Rule 5.5, unauthorized practice; multijurisdictional practice), specifically the Rule 5.5(b)(4) requirement that a temporarily practicing out-of-state lawyer associate with a local lawyer who actively participates, and Comment 6's bar on the local lawyer serving as a mere conduit. It applies Rule 1.7 (conflicts of interest) and Rule 1.18 (duties to prospective clients), together with North Dakota Admission to Practice Rule 6.1 (temporary license) and Rule 3 (pro hac vice). It relies on the North Dakota Supreme Court's definition of the practice of law in Ranta v. McCarney.
The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.
Citations and references
Rules of Professional Conduct:
- Model Rule 5.5 / N.D.R. Prof. Conduct 5.5(b)(4) (multijurisdictional practice; active local-lawyer participation; Comment 6)
- Model Rule 1.7 / N.D.R. Prof. Conduct 1.7 (conflicts of interest)
- Model Rule 1.18 / N.D.R. Prof. Conduct 1.18 (duties to prospective clients)
- N.D. Admission to Practice Rule 6.1 (temporary license) and Rule 3 (pro hac vice)
- N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)
Cases:
- Ranta v. McCarney, 391 N.W.2d 161 (N.D. 1986), broad definition of the practice of law, quoting Cain v. Merchants Nat. Bank & Trust Co.
See also
Source
- Landing page: https://www.sband.org/page/ethics_opinions
- Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/docs/for_lawyers/opinion_15-02.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE
OPINION NO. 15-02
THIS OPINION IS ADVISORY ONLY
QUESTION PRESENTED
Attorney has been granted a temporary law license for the state of North Dakota. As a
requirement for the temporary license, Attorney must affiliate with a licensed associate attorney.
In this case, Attorney and Associate Attorney do not work in the same firm. Attorney has a solo
practice. Recently, Attorney met with a potential client regarding a family law issue. During the
interview, Potential Client disclosed he previously met with Associate Attorney, who declined
representation due to a conflict of interest. The Ethics Committee has been asked to render its
opinion on whether it is permissible for Attorney, practicing under a temporary license, to
represent a client when Associate Attorney is unable to do so because of a conflict of interest.
Attorney also inquired whether he/she is able to represent Potential Client if that case does not
involve filing any pleadings with a North Dakota Court.
OPINION
Based upon the facts presented, and the assumptions set forth below, Attorney practicing
under a temporary license may not represent a client when his/her designated Associate Attorney
is unable to represent that same client due to a conflict of interest, absent informed consent. The
same is true for cases where no pleadings are filed in a North Dakota Court on behalf of the
client.
APPLICABLE NORTH DAKOTA RULES
Rule 6.1, N.D. Admission to Practice: Temporary License for Lawyers Applying for Admission
Rule 3, N.D. Admission to Practice: Pro Hac Vice Admission and Registration of Nonresident
Lawyers
Rule 5.5, N.D.R. Prof. Conduct: Unauthorized Practice of Law
Rule 1.7, N.D.R. Prof. Conduct: Conflict of Interest: General Rule
Rule 1.18, N.D.R. Prof. Conduct: Duties to Potential Client
FACTS PRESENTED
Attorney has been granted a temporary law license for the state of North Dakota. This
committee presumes the temporary law license is granted pursuant to North Dakota Admission
to Practice Rule 6.1. As a requirement for the temporary license, Attorney must work with a
designated associate attorney (N.D. Admission to Practice Rule 6.1B). The associate attorney
must fulfill specific obligations to the temporarily licensed attorney, which include: (1) inserting
his/her name and address on all papers served and filed; and, (2) personally appearing at all
hearings before a Court, Administrative Agency, or Tribunal, unless excused by such entity
(N.D. Admission to Practice Rule 6.1(C) and Rule 3(A)(3)).
In this case, Attorney and Associate Attorney do not work in the same firm. Attorney has
a solo practice. Recently, Attorney met with a potential client regarding a family law issue.
During the interview, Potential Client disclosed he previously approached Associate Attorney,
who declined representation due to a conflict of interest. This opinion is based upon the
assumption that Associate Attorney does have a conflict of interest pursuant to N.D.R. Prof.
Conduct 1.7(a), which prevents him/her from representing Potential Client.
DISCUSSION
The overriding consideration is whether Associate Attorney’s conflict of interest is
imputed to Attorney. This requires an analysis of the working relationship between Attorney and
Associate Attorney.
As a requirement for practicing under a temporary license, Attorney must work with a
designated associate attorney (Admission to Practice Rule 6.1B). The associate attorney must
fulfill specific obligations to the temporarily licensed attorney, which include: (1) inserting
his/her name and address on all papers served and filed; and, (2) personally appearing at all
hearings before the Court, Administrative Agency, or Tribunal, unless excused by the Court
(Admission to Practice Rule 6.1(C) and Rule 3(A)(3)).
N.D.R. Prof. Conduct 5.5 further illustrates the importance and protection offered to an
attorney working under a designated associate attorney on a temporary basis:
(b) A lawyer admitted to practice in another jurisdiction and not in this
jurisdiction who performs legal services in this jurisdiction on a temporary basis
does not engage in the unauthorized practice of law in this jurisdiction when:
(4) with respect to matters, transactions or proceedings pending in or
substantially related to this jurisdiction and for which pro hac vice
admission is not available under Admission to Practice R.3, the lawyer is
associated in the matter, transaction or proceeding with a lawyer admitted
to practice in this jurisdiction who actively participates in the
representation of the client in the matter, transaction or proceeding, or....
N.D.R. Prof. Conduct 5.5(b) (emphasis added).
Comment 6 to this Rule further clarifies the “active participation” role of the associate
attorney:
[6] Paragraph (b)(4) requires the out-of-state lawyer to associate with a duly
licensed local attorney for all transactions that are pending in or substantially
related to this jurisdiction and for which pro hac vice admission is not available.
The Rule recognizes that association with a lawyer licensed in this jurisdiction is
likely to protect the interests of both clients and the public. The local lawyer
may not serve merely as a conduit for the out-of-state lawyer, but must
actively participate in and share actual responsibility for the representation
of the client in the matter. If the licensed lawyers involvement is merely pro
forma, then both lawyers are subject to discipline under this Rule.
N.D.R. Prof. Conduct 5.5(Comment 6) (emphasis added).
To actively participate and share actual responsibility for the representation of a client in
a case where Associate Attorney is serving in a supervisory capacity, Associate Attorney must
know, understand, and process the case, alongside Attorney. If Associate Attorney cannot
represent a client because his/her ability to consider, recommend, or carry out a course of action
on behalf of the client will be adversely affected by his/her responsibility to another client, or
third person, or the lawyer’s own interest, pursuant to N.D. R. Prof. Conduct 1.7(a), that same
restriction applies to cases Associate Attorney supervises.
If Associate Attorney has a conflict of interest, and cannot actively participate in
Attorney’s potential case, as required by N.D. Admission to Practice Rules 6.1, and N.D.R. Prof.
Conduct 5.5(b), Attorney should not accept the case.
The only exception to this opinion would be if the Associate Attorney reasonably
believes the representation will not be adversely affected by his/her responsibility to another
client, to a third person, or the lawyer’s own interest, and both the affected client and potential
client consent. See N.D.R.Prof. Conduct 1.7(c) (emphasis added), and N.D.R. Prof. Conduct
1.18(d).
Furthermore, North Dakota Admission to Practice Rule 6.1 and N.D.R. Prof. Conduct
5.5(b)(4) do not limit Attorney’s requirement to work with Associate Attorney only in formal
Court settings. Instead, N.D.R. Prof. Conduct 5.5(b) requires the involvement of a local licensed
attorney when the Attorney is providing “legal services.” North Dakota Admission to Practice
Rule 6.1 requires an associate attorney when Attorney “practices law.” Our Supreme Court
defines “the practice of law” as:
Practice of law under modern conditions consists in no small part of work
performed outside of any court and having no immediate relation to proceedings
in court. It embraces conveyancing, the giving of legal advice on a large variety
of subjects, and the preparation and execution of legal instruments covering an
extensive field of business and trust relations and other affairs. Although these
transactions may have no direct connection with court proceedings, they are
always subject to become involved in litigation. They require in many aspects a
high degree of legal skill, a wide experience with men and affairs, and great
capacity for adaptation to difficult and complex situations. These ‘customary
functions of an attorney or counselor at law’ bear an intimate relation to the
administration of justice by the courts. No valid distinction...can be drawn
between that part which involves appearance in court and that part which involves
advice and drafting of instruments in his office. The work of the office lawyer is
the ground work for future possible contests in courts. It has profound effect on
the whole scheme of the administration of justice. It is performed with that
possibility in mind, and otherwise would hardly be needed. It is of importance to
the welfare of the public that these manifold customary functions be performed by
persons possessed of adequate learning and skill, of sound moral character, and
acting at all times under the heavy trust obligation to clients which rests upon all
attorneys. The underlying reasons which prevent corporations, associations, and
individuals other than members of the bar from appearing before the courts apply
with equal force to the performance of these customary functions of attorneys and
counselors at law outside of courts.
Ranta v. McCarney, 391 N.W.2d 161, 163 (N.D. 1986), quoting Cain v. Merchants Nat. Bank &
Trust Co. of Fargo, 66 N.D. 746, 752, 268 N.W.2d 719, 722.
The same ethical obligations apply whether or not Attorney is providing legal services to
a Client before the Court.
CONCLUSION
Attorney practicing under a temporary license may not represent a client when his/her
designated Associate Attorney is unable to represent that same client due to a conflict of interest,
unless Associate Attorney reasonably believes that the representation will not be adversely
affected and he/she has informed consent from both the affected client and potential client. The
same is true for cases where no pleadings are filed to a North Dakota Court on behalf of the
client.
This opinion was drafted by Leah duCharme, and was unanimously approved by the Ethics
Committee on the /4* day of April, 2015. f
CA Chairperson
This opinion is provided under Rule 1.2(B), North Dakota Rules for Lawyer Discipline, which
states:
A lawyer who acts with 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.
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