How did the committee address contacting inmates as prospective clients and a settlement offer that waived attorney fees?
Apply this to your situation
This page answers the general question as of 1993. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A lawyer representing prison inmates in civil-rights litigation asked about contacting additional female inmates after class certification was denied. The lawyer did not specify whether contact would be in person, by mail, or otherwise. The committee described Rule 7.1's restrictions on false or misleading solicitation, undue influence, contact with someone unable to exercise considered judgment, and contact with someone who did not wish to be approached. It expressly declined to decide whether incarceration itself implicated those restrictions.
The lawyer also reported a settlement offer conditioned on the clients' waiver of attorney fees and costs. The committee said Rules 1.2, 1.4, and 2.1 required the lawyer to report and explain the offer and follow the clients' choice about accepting it. It said the lawyer's contracts with some clients, which barred acceptance of such offers, created a conflict under Rule 1.7; the offer itself was not the source of that lawyer-client conflict.
The committee declined to opine on the opposing lawyers' conduct. It noted Evans v. Jeff D. as approving this kind of fee-waiver settlement offer under the federal statute, while treating the case as persuasive rather than controlling on North Dakota ethics requirements.
Currency note
This opinion was issued in 1993, 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 Treat this page as historical context, not current guidance.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 say an inmate's incarceration automatically barred contact?
A: No. It expressly offered no opinion on whether incarceration itself increased the risk of undue influence or impaired considered judgment.
Q: Could the lawyer reject the fee-waiver settlement offer without consulting the clients?
A: No. The committee said the lawyer had to explain the offer and abide by the clients' decision whether to accept it.
Q: What created the lawyer-client conflict?
A: The committee identified the lawyer's contracts forbidding some clients to accept a settlement conditioned on waiver of attorney fees.
Background and rules framework
The opinion applies North Dakota Rule 7.1 to solicitation and Rules 1.2, 1.4, 2.1, and 1.7 to settlement decisions and the lawyer's fee interest. It discusses 42 U.S.C. § 1988 and Evans v. Jeff D., 475 U.S. 717 (1986).
Citations and references
Rules of Professional Conduct:
- North Dakota Rules 7.1(b), 7.1(c), 1.2, 1.4, 2.1, and 1.7.
Cases:
- Shapero v. Kentucky State Bar, 486 U.S. 466 (1988).
- In re Primus, 436 U.S. 412 (1978).
- Evans v. Jeff D., 475 U.S. 717 (1986).
See also
Source
- Landing page: https://www.sband.org/page/ethics_opinions
- Original PDF: https://web.archive.org/web/20250000000000id_/https://www.sband.org/resource/resmgr/docs/for_lawyers/93-09.pdf
Original opinion text
Full opinion text unavailable from the official source; see the linked source above for the complete text.
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