May a lawyer distribute standard living-will and health-care power-of-attorney forms without an individual consultation?

Plain-English summary

A lawyer proposed making standard living-will and durable health-care power-of-attorney forms available, including through a local clinic. The committee found no specific professional-conduct rule that directly answered the proposal. It said standard forms might not fit a person's particular needs, including when a North Dakota resident received care across a state border.

The committee said distribution without personal consultation might imply that the standard forms sufficed for all recipients and could lead to malpractice claims or disciplinary complaints where a personalized directive was needed. It pointed to Rule 7.1 as possible guidance, while saying it was probably not directly applicable. It also said that suggesting nonlawyers distribute the forms while presenting them as generally sufficient might run afoul of Rule 5.5(b)'s prohibition on assisting unauthorized practice.

Currency note

This opinion was issued in 1992, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Did the committee identify a rule that directly prohibited distributing the forms?

A: No. It said it could not point to a specific rule directly addressing the proposal.

Q: Why did the committee discuss care in another state?

A: It gave the example of a North Dakota resident who used a South Dakota hospital, where different advance-directive law could make a standard North Dakota form unsuitable.

Q: Did it identify a concern about nonlawyers distributing the forms?

A: Yes. It said suggesting that nonlawyers distribute forms as generally sufficient could implicate Rule 5.5(b).

Background and rules framework

The letter discusses North Dakota Rules 7.1 and 5.5(b). It also notes that the Patient Self Determination Act required covered facilities to notify patients of the right to prepare advance directives, while distinguishing that notice from a lawyer's claim that standard forms fit everyone.

Citations and references

• North Dakota Rule of Professional Conduct 7.1.
• North Dakota Rule of Professional Conduct 5.5(b).
• Patient Self Determination Act of 1991, as referenced by the committee.

Source

• Official index: State Bar Association of North Dakota ethics opinions.
• Opinion scan: archived official PDF. The January 29, 1992 committee letter says it "could not point to any specific rule which addresses the issues" and that distributing a standard form without personal consultation "might subject the attorney to legal malpractice claims or disciplinary complaints" where a personalized directive was needed.

Original opinion text

Full opinion text unavailable from the official source; see the linked scan for the complete text.