Is maternity leave a physical condition that requires a lawyer to withdraw from cases, and what must a lawyer do to cover her matters during a 7-month leave?

Plain-English summary

An immigration lawyer who practiced in another state but was licensed in North Dakota planned to take a roughly seven-month maternity leave after the birth of her child. She asked whether maternity leave is a physical condition that impairs her ability to represent clients and requires her to withdraw from her court cases under Rule 1.16.

The committee concluded that an extended maternity leave is not a physical condition that materially impairs a lawyer's ability to represent clients and does not, by itself, require mandatory withdrawal under Rule 1.16(a)(2). It cited Crowston v. Jamestown Public School District for the point that maternity leave serves the maternal-bonding process and that a relatively healthy mother with an uncomplicated delivery may be able to perform a sedentary job within a couple of weeks.

The committee held, however, that the lawyer has several ethical duties to address before and during the leave. Under Rule 1.3 she should control her caseload and be cautious about accepting new cases. Under Rule 1.4 and Rule 1.16's comments she must communicate to existing clients that she will be unavailable during the leave. Under Rule 1.1's comments 7 and 8 on retaining lawyers outside the firm, she should arrange for other North Dakota-licensed counsel to handle her North Dakota matters and obtain each client's informed consent, consulting with the substitute lawyer about scope, communication, fee sharing, and confidentiality. Only if she cannot find substitute North Dakota counsel or cannot obtain client consent, and so cannot fulfill her duties, may she seek to withdraw under Rule 1.16(b), and only if withdrawal causes no material adverse effect on the client or other good cause exists; if a tribunal denies withdrawal or withdrawal would materially harm the client, she must continue the representation. The committee noted that failing to communicate, arrange coverage, obtain consent, or properly withdraw could violate the Rules, citing Matter of Disciplinary Action Against Bruhn.

In practice

This opinion, approved October 27, 2020, applies North Dakota Rules of Professional Conduct 1.1, 1.3, 1.4, and 1.16 as they stood at that time. The committee held that maternity leave is not a physical condition that materially impairs a lawyer's ability to represent clients, so Rule 1.16(a)(2) does not mandate withdrawal. The committee held that the lawyer must, before the leave, control her caseload (Rule 1.3), communicate her unavailability to clients (Rule 1.4 and Rule 1.16's comments), and arrange for other North Dakota-licensed counsel to cover her North Dakota matters with each client's informed consent (Rule 1.1, comments 7-8). The committee held that only if she cannot secure substitute counsel or client consent may she seek permissive withdrawal under Rule 1.16(b), accomplished without material adverse effect or with the tribunal's permission, taking steps to protect the client's interests under Rule 1.16(e).

Common questions

Q: Does a lawyer have to withdraw from cases because she is taking maternity leave?

A: No. The committee concluded maternity leave is not a physical condition that materially impairs the lawyer's ability to represent clients, so Rule 1.16(a)(2) does not require mandatory withdrawal.

Q: What must the lawyer do before going on leave?

A: The committee concluded she should control her caseload and limit new cases (Rule 1.3), tell existing clients she will be unavailable (Rule 1.4), and arrange for North Dakota-licensed counsel to cover her North Dakota matters with the clients' informed consent (Rule 1.1, comments 7-8).

Q: When may the lawyer withdraw instead of arranging coverage?

A: Only as a fallback. The committee concluded that if she cannot find substitute North Dakota counsel or obtain client consent, she may seek permissive withdrawal under Rule 1.16(b), but only without material adverse effect on the client or with the tribunal's permission.

Q: What happens if a tribunal will not let her withdraw?

A: The committee concluded that if a tribunal denies withdrawal or withdrawal would materially harm the client, the lawyer must continue the representation despite good cause, consistent with Rule 1.16(c).

Background and rules framework

The opinion interprets North Dakota Rules of Professional Conduct 1.1 (competence, including comments 7-8 on retaining lawyers outside the firm), 1.3 (diligence and caseload control), 1.4 (communication), and 1.16 (declining or terminating representation), addressing both mandatory withdrawal under Rule 1.16(a)(2) for a materially impairing physical or mental condition and permissive withdrawal under Rule 1.16(b). It relies on Crowston v. Jamestown Public School District and Matter of Disciplinary Action Against Bruhn.

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 1.1 / N.D.R. Prof. Conduct 1.1 (competence; comments 7-8, retaining outside lawyers)
• Model Rule 1.3 / N.D.R. Prof. Conduct 1.3 (diligence; workload)
• Model Rule 1.4 / N.D.R. Prof. Conduct 1.4 (communication)
• Model Rule 1.16 / N.D.R. Prof. Conduct 1.16 (declining or terminating representation; 1.16(a)(2), (b), (c), (e))
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Cases:

• Crowston v. Jamestown Public School District No. 1, 335 N.W.2d 775 (N.D. 1983), nature of maternity leave
• Matter of Disciplinary Action Against Bruhn, 2018 ND 186, 915 N.W.2d 850, neglect-based rule violations

See also

• ABA Formal Op. 516: Permissive Withdrawal
• ABA Formal Op. 03-429: Impaired Lawyer in the Firm
• DC Ethics Op. 377: Duties When a Lawyer Is Impaired

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/ethics/opinion_2020-01.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. 2020-01
THIS OPINION IS ADVISORY ONLY
QUESTION PRESENTED

Is maternity leave a physical condition that impairs an attorney’s ability to represent a
client and withdraw from court cases while on maternity leave for 7 months?

APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT

Several of the North Dakota Rules of Professional Conduct are applicable to this inquiry .
including Rule 1.1 on competence, 1.3 on diligence, 1.4 on communication, and 1.16 on
declining or terminating representation.

Rule 1.1 on competence states: “A lawyer shall provide competent representation to a
client. Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.” N.D.R.PROF.CONDUCT Rule 1.1. The
applicable comments provide direction in retaining and contracting with other lawyers:

Before a lawyer retains or contracts with other lawyers outside the lawyer's own firm to
provide or assist in the provision of legal services to a client, the lawyer should ordinarily .
obtain consent from the client and must reasonably believe that the other lawyers’
services will contribute to the competent and ethical representation of the client. See also
Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing),
1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The reasonableness of the
_ decision to retain or contract with other lawyers outside the lawyer's own firm will

depend upon the circumstances, including the education, experience and reputation of the
-nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal
protections, professional conduct rules, and ethical environments of the jurisdictions in
which the services will be performed, particularly relating to confidential information:

When lawyers from more than one law firm are providing legal services to the client on a
particular matter, the lawyers ordinarily should consult with each other and the client
about the scope of their respective representations and the allocation of responsibility
among them. See Rule 1.2. When making allocations of responsibility in a matter
pending before a tribunal, lawyers and parties may have additional obligations that are a
matter of law beyond the scope of these Rules.

N.D.R.PROF.CONDUCT Rule 1.1 (cmt. 7,8)

Rule 1.3 on diligence requires a lawyer to act with reasonable diligence and promptness
in representing a client. N.D.R.PROF.CONDUCT Rule 1.3.

Also applicable to this inquiry is the lawyer’s duties of communication including making
reasonable efforts to keep the client reasonably informed about the status of a matter, and

promptly comply with the client’s reasonable requests for information. N.D.R.PROF.CONDUCT
Rule 1.4(a)(3-4).

Lastly, Rule 1.16, declining or terminating representation, should be addressed focusing |
on whether declining or terminating representation is either mandatory or permissive with the
facts presented. N.D.R.PROF.CONDUCT Rule 1.16. Subsection (a)(2) is the specific rule raised by
the attorney, which would require mandatory withdrawal, states: “Except as stated in paragraph
(c), a lawyer shall not represent a client or, where representation has commenced, shall seek to
withdraw from the representation of a client if the lawyer's physical or mental condition
materially impairs the lawyer's ability to represent the client.” N.D.R.PROF.CONDUCT Rule
1.16(a)(2). Permissive withdrawal is also applicable to this attorney’s request under 1.16(b), the
applicable portion which states: “...a lawyer may withdraw from representing a client if
withdrawal can be accomplished without material adverse effect on the interest of the client; or |
other good cause for withdrawal exists.” N.D.R.PROF.CONDUCT Rule 1.16(b)(1,7).

FACTS PRESENTED

The attorney practices immigration law in another state, but is licensed in North Dakota.
She indicates that she intends to take a leave of absence/maternity leave for 7 months following
the birth of her child.

DISCUSSION

Taking maternity leave for an extended period of time is not a physical condition that
impairs an attorney from representing clients and requires her to withdraw under North Dakota
Rule of Professional Conduct Rule 1.16. See Crowston v. Jamestown Public School Dist. No. 1, i
335 N.W.2d 775, 779 (N.D. 1983)(upholding trial court. finding that maternal leave is to further
the maternal bonding process between mother and child and if mother is relatively healthy and
has an uncomplicated delivery she may be able to perform a sedentary job within two weeks
after giving birth). However, this lawyer has several ethical duties to clients that should be
considered prior to her absence and may require withdrawal in the event she is not able to find an
attorney to handle her existing matters, or the client does not consent to another attorney
handling their legal matters during the attorney’s maternity leave.

Prior to taking the leave of absence, the lawyer should take caution in accepting new
cases to limit her case load during her absence. A lawyer’s work load must be controlled so that
each matter can be handled competently. N.D.R.PROF.CONDUCT Rule 1.3 (cmt. 2). A lawyer
should not accept representation in a matter unless it can be performed competently, promptly,
and to completion. Id. at 1.16 (citing Rules 1.2(c) and 6.5; Rule 1.3 at cmt. 4).

In accepting new cases, the lawyer should explain the upcoming leave of absence and
obtain consent for another attorney to represent the client during the lawyer’s leave. See id. at
cmt. 6 (“An agreement between the lawyer and the client regarding the scope of the
representation may limit the matters for which the lawyer is responsible.”).

The lawyer also has a duty to communicate to existing clients that the lawyer intends to
take a leave of absence and that she will not be reasonably available to respond to the client’s
requests during that period of time. Id. at 1.16 (cmt. 1).

It is assumed for purposes of this opinion that the lawyer does not have another attorney
in her firm that is licensed in North Dakota, although this is not stated by the lawyer. The
attorney should retain or contract with other lawyers outside her firm that are licensed in North
Dakota during her absence to handle her North Dakota case load. Id. at 1.1 (cmt.7, 8).
Comments 7 and 8 to Rule 1.1 of the North Dakota Rules of Professional Conduct are instructive
on retaining or contracting with other lawyers outside the lawyer’s own firm. The lawyer must
obtain the client’s consent and reasonably believe the other lawyer’s services will contribute to
the competent and ethical representation of the client. Id. at cmt. 7. The lawyer’s discussions
with the client and the other attorney include should the scope of the representation,
communications with the client, fee sharing, confidentiality and the other professional
obligations. Id. In particular, the lawyers should consult regarding the scope-of their respective
obligations and allocation of responsibility, including matters before a tribunal which may have
additional obligations beyond the scope of the Rules of Professional Responsibility. Id. at cmt.
8. :

• Only if'a lawyer is unable to find another lawyer licensed under North Dakota law to
  assume her North Dakota case load, or is unable to obtain her client’s consent, and the lawyer
  will be unable to fulfill her professional duties to the client, then the lawyer may withdraw
  from representation of the client if it can be accomplished without causing a material adverse
  effect on the client’s interests or if other good cause for withdrawal exists. Id. at 1.16(b)(1,7). If
  the lawyer is not permitted to, withdraw by order of a tribunal or if there would be a material
  adverse effect on the client’s interests, the lawyer must continue the representation of the client
  notwithstanding good cause for termination. Id. at 1.16(c). If the lawyer is permitted to
  _ withdraw, then the lawyer must take reasonable steps to protect the client’s interests, allowing
  for the reasonable notice to the client, time to employ other counsel, surrendering of papers and
  property and refunding the advance payment of fees or expenses not earned or incurred. Id. at
  1.16(e).

If the lawyer fails to adequately communicate with her clients, fails to arrange for other
counsel, fails to obtain her client’s consent to refer the client’s matter to another attorney, or fails
to withdraw from representation of the client during her absence then there would be violations -
to the Rules of Professional Conduct. Failing to adequately communicate with clients, failure to
appear at a hearing, failure to adequately prepare and respond to motions violated the rules of
professional conduct requiring attorney to provide competent representation, to abide by clients’
decisions, to consult with client, to act with reasonable diligence, to reasonably consult with
client, to promptly comply with clients' reasonable requests for information. Matter of
Disciplinary Action Against Bruhn, 2018 ND 186, 915 N.W.2d 850 (citing
N.D. R. Prof. Conduct 1.1, 1.2(a), 1.3, 1.4, 3.3). Similarly, the failure to obtain the clients’
informed consent prior to referring the client to another attorney can result in violation of the
rules of professional conduct. Id.

CONCLUSION

A leave of absence for maternity leave is not a physical condition that materially impairs
the lawyer’s ability to represent the client. However, a lawyer must ensure that the lawyer
effectively communicates with her clients that she will-not be available during her maternity
leave. She should make arrangements with other counsel licensed in North Dakota to handle her
North Dakota matters while she is unable to assist those clients. She must obtain the informed
consent of her clients for another attorney to handle her clients’ North Dakota legal matters in
her absence. If she is unable to either obtain her client’s consent for another attorney licensed in
North Dakota to handle her North Dakota case load-or is unable to obtain another attorney
licensed in North Dakota to handle her case load, she may seek to withdraw from representation
of the clients, only if withdrawing from representation would not cause a material adverse effect
on the client or with permission of the tribunal.

This opinion was drafted by Katrina Turman Lang and was unanimously approved by the

Ethics Committee on the 27th day of October, 2020.

Ethics Committee Chairperson

This opinion is provided under Rule 1.2(B), North Dakota Rules of 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.