Ezel / Ethics Opinions / SBAND

May a plaintiff’s lawyer publish a statewide patient-information request that conceals its litigation purpose?

Short answer The committee found no Rule 3.6 problem on the stated facts, but said the proposed notice misstated the lawyer’s purpose under Rule 4.1 and was contrary to Rule 4.3 because readers could mistake the lawyer for a disinterested person.
Bar
SBAND
Issued
August 7, 1995
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1995. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: 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.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A lawyer representing two radial-keratotomy plaintiffs proposed a statewide notice seeking patients’ experiences. The lawyer’s stated purpose was to test a defendant doctor’s assertion that patients always received full informed consent.

The committee found no apparent Rule 3.6 trial-publicity violation. It said the notice’s stated aim of learning patient satisfaction differed from the lawyer’s actual purpose, raising Rule 4.1. It also found the notice likely to suggest disinterest or confuse readers about the lawyer’s role, contrary to Rule 4.3. The opinion mentions possible Rule 7.1 application.

Currency note

This opinion was issued in 1995, 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 Treat this page as historical context, not current guidance.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 find a trial-publicity violation?

A: No. It said nothing in the supplied facts or proposed notice appeared contrary to Rule 3.6.

Q: Why did the committee reject the proposed notice?

A: It said the notice contained a false account of the requester’s purpose and could make readers think the lawyer was disinterested, contrary to Rules 4.1 and 4.3.

Background and rules framework

The opinion applies North Dakota Rules 3.6, 4.1, 4.3, 7.1 to the facts described above.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 3.6.
  • North Dakota Rule 4.1.
  • North Dakota Rule 4.3.
  • North Dakota Rule 7.1.

See also

Source

Original opinion text

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

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