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?

Plain-English summary

A defendant who had received the scheduling order and notices from both the court and an appointed public defender failed to appear at a hearing. At the hearing, the court asked the public defender on the record what contacts had occurred between the public defender and the defendant, and the state's attorney then charged the defendant with bail jumping. The committee was asked two questions: how far the public defender may go in answering the court's inquiry, and whether the public defender is barred from representing the defendant in the original action, the new bail-jumping action, or both.

On disclosure, the committee concluded the question of contacts falls within Rule 1.6, which broadly protects all information relating to the representation, whatever its source. None of the early exceptions applied (no client consent, no authorization to carry out the representation, no risk of death or substantial bodily harm, and none of the first four permissive scenarios). The committee also rejected Rule 3.3(b) as a basis, because bail jumping requires willful conduct and no facts showed the public defender knew whether the defendant acted willfully. The applicable exception was Rule 1.6(c)(5), allowing disclosure to comply with a court order. The committee drew a clear line: a court's mere inquiry is not enough, but a court's directive to answer is, because courts have authority to question court officers about nonprivileged information integral to court operations. Even then, only nonprivileged facts may be disclosed; the fact that a communication occurred, without its content, is not privileged under N.D.R.Ev. 502, while the substance of confidential communications remains protected.

On later representation, the committee concluded the public defender is not necessarily barred. Under Rule 1.7(a), nothing in the facts showed the public defender's ability to represent the defendant in the original case would be adversely affected by the lawyer's own interests or duties to a third person, and the ordered disclosure of nonprivileged information would not necessarily change that. Under Rule 3.7(a), it was uncertain whether the public defender would be a necessary witness on the bail-jumping charge or whether any testimony would relate to a contested issue, particularly since the state could likely rely on court personnel, records, and the defendant's written acknowledgment of the scheduling order. So neither rule necessarily disqualified the public defender on the facts presented.

In practice

This opinion, approved June 29, 2015, applies North Dakota Rules of Professional Conduct 1.6, 3.3, 1.7, and 3.7 as they stood at that time. The committee held that information about a public defender's contacts with a client is information relating to the representation under Rule 1.6(a), which the lawyer must not reveal unless an exception applies, and that the applicable exception, Rule 1.6(c)(5), is triggered by a court's order to answer but not by a mere inquiry. The committee held that even under an order, the public defender may disclose only nonprivileged facts that contacts occurred, not the substance of any confidential communications. On conflicts, the committee held the public defender is not necessarily barred from continuing the original representation (no Rule 1.7(a) conflict shown) or from representing the client in the new bail-jumping action (no showing under Rule 3.7(a) that the lawyer would be a necessary witness on a contested issue).

Common questions

Q: Can a court make a public defender say whether the client has been in contact?

A: Only by order. The committee concluded that a court's mere inquiry does not justify disclosure, but a court's directive to answer triggers Rule 1.6(c)(5)'s exception for complying with a court order, limited to nonprivileged facts.

Q: What exactly can the public defender disclose, and what stays protected?

A: Only the nonprivileged fact that contacts occurred. The committee explained that under N.D.R.Ev. 502 the fact a communication occurred is not privileged, but the substance of confidential communications with the defendant may not be disclosed.

Q: Does Rule 3.3's candor obligation require the public defender to disclose?

A: No, on these facts. The committee concluded Rule 3.3(b) did not apply because bail jumping requires willful conduct and no facts showed the public defender knew whether the defendant acted willfully.

Q: Is the public defender disqualified from the original case or the new bail-jumping case?

A: Not necessarily. The committee found no Rule 1.7(a) conflict shown in the original case and no showing under Rule 3.7(a) that the public defender would be a necessary witness on a contested issue in the bail-jumping case.

Background and rules framework

The opinion interprets North Dakota Rule of Professional Conduct 1.6 (Model Rule 1.6, confidentiality), including the Rule 1.6(c)(5) exception for complying with a court order, and distinguishes Rule 3.3 (Model Rule 3.3, candor toward the tribunal). On disqualification it applies Rule 1.7 (Model Rule 1.7, conflicts of interest) and Rule 3.7 (Model Rule 3.7, lawyer as witness). It relies on the North Dakota evidence rule on attorney-client privilege (N.D.R.Ev. 502), the court's general powers (N.D.C.C. 27-05-06), and the bail-jumping statute's willfulness element (N.D.C.C. 12.1-08-05).

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 1.6 / N.D.R. Prof. Conduct 1.6 (confidentiality; 1.6(c)(5), compliance with a court order)
• Model Rule 3.3 / N.D.R. Prof. Conduct 3.3 (candor toward the tribunal)
• Model Rule 1.7 / N.D.R. Prof. Conduct 1.7 (conflicts of interest)
• Model Rule 3.7 / N.D.R. Prof. Conduct 3.7 (lawyer as witness)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Statutes and rules:

• N.D.R.Ev. 502 (attorney-client privilege; confidential communications)
• N.D.C.C. 27-05-06 (general powers of the district court)
• N.D.C.C. 12.1-08-05 (bail jumping; willfulness)

Cases:

• In re Disciplinary Action Against Dyer, 2012 ND 118, 817 N.W.2d 351, breadth of Rule 1.6
• Knoff v. American Crystal Sugar Co., 380 N.W.2d 313 (N.D. 1986), fact of communication not privileged

See also

• AZ Ethics Op. 98-01: Public Defender Status Reports
• ABA Formal Op. 98-412: Client Violating a Court Order

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/ethics/opinion_15-04.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. 15-04

THIS OPINION IS ADVISORY ONLY
QUESTIONS PRESENTED
Defendant, despite receiving notices from Court and Public Defender, fails to appear at
a scheduled hearing. At the hearing, Court asks Public Defender what contacts have
occurred between Public Defender and Defendant. State’s Attorney then charges
Defendant with bail jumping.

The Ethics Committee has been asked to render opinions on the following:

1. To what extent may Public Defender address Court’s inquiry into contacts
   with Defendant?
2. Is Public Defender barred from representing Defendant in original action,
   new bail jumping action, or both?
   OPINION

Based on the facts presented below, Public Defender — when ordered by Court - may
address the inquiry by disclosing nonprivileged facts of contacts with Defendant.
However, a mere question by Court is insufficient to justify Public Defender’s disclosure.
Further, under the limited facts provided, Public Defender is not necessarily barred from
representing Defendant in either the original action or the new bail jumping action.

APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT

Rule 1.6, N.D.R. Prof. Conduct: Confidentiality of Information
Rule 3.3, N.D.R. Prof. Conduct: Candor Toward the Tribunal
Rule 1.7, N.D.R. Prof. Conduct: Conflict of Interest: General Rule
Rule 3.7, N.D.R. Prof. Conduct: Lawyer as Witness

FACTS PRESENTED

D.
D.

Defendant attends initial court appearance, receives the scheduling order setting forth
all hearing dates and times for the case, and acknowledges in writing that Defendant
received scheduling order. Public Defender is assigned.

After learning of assignment, Public Defender sends to Defendant a notification letter,
which includes another copy of the scheduling order and an appointment time for
Defendant and Public Defender to discuss the case. Public Defender’s policy is that if a
defendant does not make the appointment, Public Defender sends to defendant a
second letter with a request to reschedule the appointment, a reminder of the date and
time of the next hearing, and yet another copy of the scheduling order.

Defendant fails to appear at a scheduled hearing. Public Defender attends the hearing,

and Court, on the record, asks what contacts have occurred between Public Defender
and Defendant.

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State’s Attorney charges bail jumping as a separate criminal action, based upon
Defendant's failure to appear at the scheduled hearing where Public Defender was
present.

DISCUSSION

lL. When ordered by Court, Public Defender may address inquiry by disclosing
nonprivileged facts of contacts with Defendant.

The extent to which Public Defender may address Court’s inquiry into contacts with
Defendant turns largely on Rule 1.6. Under the rule, a lawyer “shall not reveal
information relating to the representation of the client” unless (1) the client consents, (2)
disclosure is authorized to carry out the representation, (3) disclosure is required
because it is necessary “to prevent reasonably certain death or substantial bodily harm,”
or (4) disclosure is permitted because one of five scenarios exists. N.D.R. Prof.
Conduct 1.6. The rule is “broad,” applying not just to matters communicated in
confidence by the client but “also to all information relating to the representation,
whatever its source. In re Disciplinary Action Against Dyer, 2012 ND 118, 9 19, 817
N.W.2d 351; N.D.R. Prof. Conduct 1.6 cmt. 3. Court’s inquiry into what contacts had
occurred between Public Defender and Defendant thus does encompass the rule’s
broad protection of “information relating to the representation.” See N.D.R. Prof.
Conduct 1.6(a). Because Court's inquiry triggers that protection, the exceptions to the
prohibition on disclosure must be considered.

Neither of the first two exceptions apply; no facts show that Defendant consented to
disclosure or that disclosure is authorized for Public Defender to carry out the
representation. N.D.R. Prof. Conduct 1.6(a). Nor do any facts suggest that disclosure
is required because it is “necessary to prevent reasonably certain death or substantial
bodily harm.” N.D.R. Prof. Conduct 1.6(b). Moreover, of the five scenarios where a
lawyer is permitted to disclose, none of the first four apply; no facts suggest that
disclosure is necessary (1) to prevent Defendant from committing a financial crime or
fraud, (2) to prevent or mitigate substantial injury to another’s financial interest, (3) to
secure legal advice about Public Defender’s compliance with the ethical rules, or (4) to
establish a claim or defense of Public Defender or to respond to allegations about
Public Defender’s representation. See N.D.R. Prof. Conduct 1.6(c)(1)-(4).

The final scenario where disclosure is permitted, though, could apply. A lawyer “may
reveal information relating to the representation of a client to the extent the lawyer
reasonably believes necessary.... to comply with other law or court order.” N.D.R. Prof.
Conduct 1.6(c)(5). It should be noted that Public Defender would not be authorized
under Rule 3.3(b), which provides for disclosure if necessary as a remedial measure
when the lawyer “knows that person intends to engage, is engaging, or has engaged in
criminal or fraudulent conduct related to the proceeding[.]” The potential crime involved
is bail jumping, which requires that the offender act “willfully.” See N.D.C.C. § 12.1-08-
05(1). Yet no facts show that Public Defender knows Defendant's culpability, i.e.,
whether Defendant intended to skip the scheduled hearing, recklessly forgot about it, or
intended to attend the hearing but while enroute was involved in a terrible accident and
rushed to a hospital. While one could envision a scenario in which Rule 3.3(b) might
authorize a lawyer’s disclosure, Public Defender’s case does not qualify.

On the other hand, Public Defender would be authorized by his duty to comply with an
order to provide the information. While Court’s mere inquiry would be insufficient to
trigger Public Defender’s duty, Court’s directive to respond to the inquiry would be
sufficient. At the outset, it must be recognized that a court has authority to question

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court officers about nonprivileged information integral to court operations. The district
court has “all the powers, according to the usages of courts of law and equity,
necessary to the full and complete jurisdiction of the causes and parties and the full and
complete administration of justice[.]” N.D.C.C. § 27-05-06(3). These powers include
setting release conditions, forfeiting bail, issuing bench warrants for failure to appear,
and continuing hearings. See eg. N.D.R.Crim.P. 46 (“Release from Custody’);
N.D.R.Ct. 6.6 (“Bench Warrant’); N.D.R.Ct. 6.1 (“Continuances”). Moreover, the district
court also has the duty to act diligently and thus is required “to take reasonable
measures to ensure that court officials, litigants, and their lawyers cooperate with the
judge to that end.” See N.D. Code Jud. Conduct Rule 2.5(A) cmt. 3. The district
court’s workload highlights the importance of the court’s powers and duty of diligence.
In 2014, there were 31,372 criminal cases filed in the district courts of the state. See
2014 North Dakota Court System Annual Report at 12. Caseloads per judicial district
ranged from 2,866 to 6,272. See id. Simply put, assessing all nonprivileged information
to determine whether a bench warrant should be issued, bond forfeited, or proceedings
continued is integral to the efficiency of the district court.

It must also be recognized that information regarding what contacts Public Defender
and Defendant have occurred is not privileged. Under N.D.R.Ev. 502(b), the attorney-
client privilege applies to “confidential communications[.]” The fact that a
communication occurred — without any reference to the actual communication, i.e., the
content of the communication — is not privileged. See generally Knoff v. American
Crystal Sugar Co., 380 N.W.2d 313, 320-21 (N.D. 1986) (recognizing as nonprivileged
information that was “not the content of [the lawyer’s representative’s] communications
with [the lawyer] or the client”); see also 81 Am. Jur. 2d Witnesses § 370 (2015) (noting
“the attorney-client privilege does not apply to an attorney's calendars, appointment
books, or other logs of dates and/or events, absent a showing that the responsive
documents would likely require disclosure of the attorney's confidential communications
with other clients’).

In sum, Public Defender may provide information as to what contacts have occurred
between Public Defender and Defendant, but only in response to an order from the
court rather than a mere inquiry from the court. Public Defender, though, may only
disclose nonprivileged facts of contacts and may not discuss the substance of any
confidential communications with Defendant.

Il. Public Defender is not necessarily barred from representing Defendant in
either the original action or the new bail jumping action.

Whether Public Defender is barred from representing Defendant in original action, new
bail Jumping action, or both is governed largely by Rules 1.7 and 3.7. Under Rule
1.7(a), “[a] lawyer shall not represent a client if the lawyer's ability to consider,
recommend, or carry out a course of action on behalf of the client will be adversely
affected by the lawyer's responsibilities to another client or to a third person, or by the
lawyer's own interests.” Under Rule 3.7(a), “[a] lawyer shall not act as an advocate at a
trial in which the lawyer is likely to be a necessary witness unless: (1) The testimony
relates to an uncontested issue[.]”

No evidence establishes that Public Defender would necessarily be barred under Rule
1.7(a) from continuing the representation in the original action. Nothing shows that
Public Defender’s ability to represent Defendant would be adversely affected by Public
Defenders own interests or responsibilities to a third person. Public Defender’s
disclosure of nonprivileged information in response to Court’s directive would not
necessarily change that.

Page 3 of 5

Nor does the disclosure necessarily establish that Public Defender would be barred
from representing Defendant in the new bail jumping action under Rule 3.7(a). For bail
jumping, State’s Attorney must simply prove that Defendant “after having been released
upon condition or undertaking that he will subsequently appear ... willfully fail[ed] to
appear as required.” See N.D.C.C. § 12.1-08-05(1). It’s uncertain whether Public
Defender is likely to be a “necessary witness” of the alleged bail jumping or if so,
whether his testimony would relate to a contested issue. In fact, the circumstances
suggest that State’s Attorney might rely exclusively on witnesses - such as court
personnel or deputies — and records to prove the new bail jumping charge. Defendant
had provided written acknowledgement of the scheduling order - before Public Defender
became involved; many others in the courtroom likely saw that Defendant was not
present at the scheduled hearing; and no facts definitely establish that Public Defender
had unique knowledge that Defendant acted willfully. Moreover, it’s unknown whether
State’s Attorney even endorsed, on the charging document, Public Defender as a
potential witness. See N.D.R.Crim.P. 7(g) (providing that “[w]hen an indictment or
information is filed, the names of all the witnesses on whose evidence the indictment or
information was based must be endorsed on it before it is presented”).

In sum, Public Defender is not necessarily barred from continuing representation of
Defendant in existing case because the facts do not show that Public Defender’s ability
to represent Defendant would be adversely affected by Public Defender’s own interests
or responsibilities to a third person. Public Defender is also not necessarily barred from
representing Defendant in new bail jumping case because the facts do not show that
Public Defender would be a necessary witness in the case or that Public Defender’s
testimony would relate to a contested issue.

CONCLUSION

Information about what contacts have occurred between Public Defender and
Defendant constitutes information relating to the representation under Rule 1.6(a),
which Public Defender must not reveal unless an exception applies. To respond to an
order by the Court, Public Defender has applicable exception under Rule 1.6(c) and
may disclose such information to the extent it’s not privileged under N.D.R.Ev. 502.

Public Defender is not necessarily barred from continuing to represent Defendant in
existing case. The given facts do not establish that Public Defender’s ability to
represent Defendant would be adversely affected by Public Defender’s own interests or
responsibilities to a third person. Thus there is not necessarily a conflict of interest
under Rule 1.7(a).

Further, Public Defender is not necessarily barred from representing Defendant in new
bail jumping case. The given facts do not show that Public Defender would be a
necessary witness in the case or that Public Defender’s testimony would relate to a
contested issue. Thus there is not necessarily any bar to representation under Rule
3.7(a).

Page 4 of 5

This opinion was drafted by Cherie Clark and was approved by the Ethics
Committee on the 29" day of June, 2015.

Ethics Committee 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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