State Bar Association of North Dakota Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the State Bar Association of North Dakota, with full citations and source links on every page.
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May a lawyer defend a parent against an adult daughter after representing that parent in the parents’ divorce?
On the facts presented, the committee allowed the defense: the daughter had not been the lawyer’s client in the divorce, and an earlier employment discussion established no presumed conflict.
May a North Dakota lawyer pay an out-of-state firm a percentage of fees for cases it refers through the internet?
The committee rejected the proposed agreement because the out-of-state firm assumed no joint responsibility under Rule 1.5(e). If it was not a law firm, the percentage payments would be…
Does an old partner’s former client or a promptly ended intake call disqualify a firm from adverse litigation?
On the facts supplied, the committee found no former-client or intake-call conflict because no related prior matter or usable confidences were shown and the call ended when the party’s name arose.
May a title company employ a salaried lawyer to prepare title opinions and deeds billed to buyers and sellers?
The committee said the proposed work would violate Rules 5.4(d) and 5.5(b) unless it concerned only the company’s own transactions or the company met the stated lawyer ownership and control conditions.
How should a lawyer handle settlement decisions when she doubts a client’s capacity to decide?
The committee said the lawyer must first assess whether the client can decide; if unsure, she must consult a professional, seek consent to disclose confidences, and limit any disclosure without…
May a firm defend another law firm against a potential malpractice claim after briefly consulting with the would-be claimant?
On the facts presented, the committee said the firm could undertake the malpractice defense because the prior consultation was brief and supplied no information beyond what the defendant firm already knew.
May defense counsel speak to police officer witnesses after a prosecutor forbids direct contact?
The committee said defense counsel’s interviews of police officer witnesses would not violate Rule 4.2 despite the directive, provided counsel identified their role under Rule 4.3 and did not…
May a lawyer advertise a large verdict and an aggregate settlement amount in a yellow pages ad?
The committee approved placing a same-type disclaimer immediately after past results but suggested identifying the verdict’s jurisdiction and recipient and deleting the aggregate settlement claim.
Can a firm that bought another practice take a matter adverse to a former client whose closed file it holds?
The committee said the purchasing firm must protect confidential information in acquired closed files and may be barred by Rule 1.7 from adverse representation; it suggested inventorying the files…
May a lawyer represent a husband in divorce after earlier representing the wife in other domestic matters?
The committee found the earlier domestic matters substantially related to the divorce and concluded the lawyer should not accept the husband’s representation over the former client’s objection.
Was a firm barred from suing a doctor because another firm lawyer had formed a corporation naming the doctor as a shareholder?
On the stated facts, the committee found no lawyer-client relationship with the doctor from the incorporation work and no ethics-rule bar to the malpractice suit.
Did the committee permit a law firm to use an online data backup service for client records?
The committee found no Rule 1.6 violation if the firm ensured that transmission and storage security matched the sensitivity of the records and access was limited to authorized personnel.
Will the committee preapprove an entire law firm website for compliance with advertising rules?
The committee declined to preapprove the website or verify all its claims, while holding that website advertising is governed by the same rules as other lawyer advertising.
Does a former firm client conflict remain when the representing lawyer left and the old file was destroyed before a new adverse matter?
The committee said the firm could continue on the stated facts if no remaining lawyer possessed or could access material confidential information; it left litigation disqualification to the court.
May a lawyer who sells insurance or owns an insurance business sell estate-planning products to law clients?
The committee said a lawyer or lawyer-controlled entity may sell insurance and related products to law clients, but compliance with the rules on client transactions, conflicts, confidentiality, and…
Did local telephone numbers for several cities make a one-office firm’s yellow pages ad misleading?
A four-to-three committee majority found the particular ad, read as a whole with its one-office disclosure, was not misleading about office locations; it did not approve other claims in the ad.
May a city attorney and municipal judge also serve as a county commissioner when the firm represents cities in that county?
The committee found no general professional-conduct rule barring the dual public offices, but the lawyer and firm could not represent cities on matters affecting the county; it left judicial-conduct…
Can North Dakota discipline an out-of-state lawyer who practices there, and must local counsel report suspected misconduct?
The committee said the out-of-state lawyer was subject to North Dakota discipline for practice there; local counsel had no duty to report to California but might have a Rule 8.3 duty to initiate…
Can a firm hire opposing counsel’s former secretary and continue the pending case if it screens the employee?
The committee found no ethics-rule bar to continuing the case if the firm used effective screening before the secretary started and no client confidences were disclosed; the court retained authority…
Must a lawyer give a client psychological records when the provider requests nondisclosure?
The committee said the lawyer must communicate the records when the client requests them or representation requires it, except for a limited delay or withholding to avoid a high probability of…
May a lawyer place business cards and brochures in a chiropractor's or physician's waiting room?
The committee found that placing truthful, nondeceptive cards or brochures in a medical office was permissible, but it would not preapprove a brochure's content and form.
May a lawyer send selected items of stored client property to another person at the client's request?
The committee found no rule prohibiting the lawyer from locating and forwarding specified items of stored client property to a person the client authorized.
Did the committee consider ordinary unencrypted email for routine client matters a Rule 1.6 violation?
The committee said routine unencrypted email with clients or jointly representing lawyers did not violate Rule 1.6 as analyzed in 1997, unless unusual circumstances required stronger security.
May estate counsel represent an attorney whose malpractice defense could reduce recovery on an estate bond?
The committee said Rule 1.7(a) barred the proposed representation because the estate could benefit from the malpractice recovery, creating adverse responsibilities. Consent from both clients did not…
Can a firm continue representing a trustee after earlier family representation and an attempted mediation?
The committee could not resolve the factual conflicts. It said related former-client work could disqualify the firm, and an intermediation under Rule 2.2 would require withdrawal if a client requested it.
Could a firm continue a wrongful-death suit against its current corporate client after limiting recovery to insurance?
The committee found a Rule 1.7(c) conflict despite consent, because the corporation’s condition that recovery stay within insurance limits restricted the parents’ options and adversely affected the…
May a firm sue a former divorce client in an unrelated personal injury action?
The committee said Rule 1.9 did not bar the new accident representation on the stated assumption that the divorce client was a former client and the matters were unrelated. The firm still could not…
Must defense counsel report a prosecutor after confidential mental-health records were apparently sent to another state by mistake?
The committee said no report was required on the stated facts, where the lawyer understood the records’ release to be unintentional and had not found a substantial question about the prosecutor’s…
Can partners represent a family corporation and one 50-percent shareholder in divorce from the other?
With alleged misuse of corporate property, the committee found adverse interests between corporation and husband. It said the wife’s informed consent was required for the firm to continue for the…
Must a state’s attorney step aside from prosecuting a defense lawyer who regularly practices in the same court?
The committee said disqualification was not required on the stated facts merely because the defendant was a practicing local defense lawyer. It left the assessment of any actual conflict to the prosecutor.
Must a lawyer report another lawyer for notarizing that lawyer’s spouse’s signature?
The committee said the alleged notary-statute violation did not, without additional circumstances, raise the substantial question about honesty, trustworthiness, or fitness that would require…
May a law firm pay a nonlawyer electronic exchange fees capped at ten percent of case fees?
The committee treated the described replication payments as apparent referral and fee-sharing payments rather than ordinary expenses. To that extent, Rule 5.4(a) prohibited them.
May a plaintiff’s lawyer interview unrepresented former county officials about a case against the county?
The committee said Rule 4.2 did not bar ex parte contact with unrepresented former county officials. It declined to approve particular questions without the facts needed to apply other rules,…
Must a lawyer withdraw after defective service led to dismissal of one defendant on limitations grounds?
The committee lacked facts to decide the particular case. It said withdrawal was required if the lawyer’s own interests were likely to impair representation; if they only might, continued…
Must a lawyer stop a client from directly contacting a represented opponent or withdraw if the contacts continue?
On the stated facts, the committee said the lawyer had no duty to demand an end to the client’s direct contacts and no duty to withdraw. The lawyer had neither prompted the contacts nor used them to…
May one lawyer represent an insured in a wrongful-death action and the insurer in a related bad-faith action?
The committee said the lawyer should not represent both in the described suits unless each client consented in writing after full disclosure of the implications.
Can a firm continue representing a wife after another partner briefly consulted her husband about the divorce?
The committee said the wife’s lawyer could continue if the husband disclosed no confidential information during his consultation. If he did disclose protected information, the lawyer could not continue.
May a lawyer sue a current organizational client on behalf of another client in an unrelated matter?
The committee said both current clients’ consent after consultation was required, even if the lawyer reasonably believed neither representation would be impaired. Because the organization refused…
May a firm represent a party adverse to a person who briefly consulted one partner before the firm declined that person's case?
The committee permitted the adverse representation if no client relationship formed and the partner obtained no confidential information. The firm had to determine for itself whether the intake…
How did a public interest law firm address conflicts from declined applicants, contractors, spouses, and volunteer staff?
The committee allowed representation against a declined applicant while protecting intake information. It made contractor imputation depend on whether the firms were one firm, applied Rule 1.7 to…
When may a former agency lawyer represent injured workers against the agency?
The committee said prior agency employment alone did not bar later adverse representation. Rule 1.11 barred it where the lawyer had personally and substantially participated in the same client…
How do a public interest firm and its contract lawyer identify and address shared client conflicts?
The committee said both the public interest firm and contract lawyer needed reasonable conflict-identification procedures. It treated the contractor’s associated lawyers as a firm under Rule 1.10 on…
May one firm represent a creditor and a wife in separate cases against her husband?
The committee said the firm must decline the wife’s matters if the dual representation would adversely affect either client. If the lawyers reasonably believed it would not, Rule 1.7(c) required…
May a lawyer use settlement releases copied from a co-plaintiff lawyer’s file after inadvertent disclosure?
The committee said attempting to use the releases in the pending personal injury case did not violate North Dakota conduct rules. It distinguished the inadvertent disclosure of settlement terms from…
Must a lawyer tell the court about a client’s new job after a child-support hearing but before decision?
On the stated facts, the committee found no affirmative duty to disclose the posthearing job change to the court or opposing counsel because the financial evidence was accurate when offered.
May a lawyer who left a firm represent the wife in a support case against the firm’s former client?
The committee said the lawyer would avoid imputed disqualification if she neither acquired material information nor had access to confidential information about the husband while at the former firm,…
May a lawyer voluntarily give a deceased will client’s notes to relatives considering a will contest?
The committee said Rule 1.6 barred voluntary disclosure on the stated facts absent client consent or another rule basis. A court order requiring production would change the result.
May a former judge represent a party in a family matter in which the judge previously acted personally and substantially?
The committee said Rule 1.12(a) barred representation in the described prior matters unless all parties consented after consultation. It also said the former judge should obtain that consent before…
Did a revised notice identifying the lawyer and his clients violate the trial-publicity rule?
The committee said the revised notice did not appear to violate Rule 3.6 on the facts provided. It cautioned that Rules 4.1 through 4.4 and 7.1 might also apply to publication.
Can screening prevent a part-time state’s attorney’s conflict from being imputed to other lawyers in a public interest firm?
The committee said proper screening and notice under Rule 1.11(a) could prevent imputation to other firm lawyers. Merely giving the state’s attorney no casework or a separate office was insufficient.
May a lawyer withhold otherwise discoverable statements and photographs until a defendant’s deposition?
The committee declined to interpret the civil discovery rules. It said a lawyer who violates those rules by omitting requested documents from a certified discovery response would also violate North…
When may a claimant’s lawyer contact Workers Compensation Bureau employees after the bureau retains counsel?
The committee said Rule 4.2 bars contact about the represented matter with bureau employees who can bind the agency, decide the matter, or whose acts or omissions are at issue or imputable to the…
May a plaintiff’s lawyer publish a statewide patient-information request that conceals its litigation purpose?
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…
Must a lawyer report misconduct learned while representing another lawyer in a bar-admission proceeding?
On the facts presented, the committee said the representing lawyer was not required to report the lawyer-client’s conduct. It concluded that Rule 1.6 confidentiality overrides Rule 8.3’s reporting…
May a city council direct its prosecutor to dismiss a criminal case to avoid defense-counsel costs?
The committee said the charging decision belongs to the city prosecutor, not the council. The prosecutor may consider resources and trial costs among the factors in exercising independent discretion.
What conflict arises when a city attorney votes on the planning commission and later advises the city commission on an opposing decision?
The committee said a Rule 1.7 conflict existed when the city and planning commissions disagreed after the city attorney voted on the planning matter. Whether continued representation was possible…
May a district judge's lawyer-spouse appear before other judges in the same district?
The committee said the lawyer-spouse was not prohibited under North Dakota's professional-conduct rules from appearing before other district judges or courts in the district. It left judicial…
What ethics duties arise after a former employee claims his earlier deposition testimony in a client's pending case was false?
The committee said it lacked facts for a specific disclosure ruling. It explained that Rule 3.3 turns on the lawyer's knowledge of falsity and other facts about the evidence, while other fairness…
Could a discharged lawyer disclose a client's last known address in a withdrawal motion despite the client's confidentiality instruction?
Assuming the address was confidential, the committee said disclosure required by North Dakota Rule of Court 11.2(b) did not violate conduct Rule 1.6, where no substitute counsel had appeared. The…
Could a lawyer represent a wife in divorce after the firm had drafted her husband's father's will and trust?
The committee said the husband was not the firm's client merely because he was trustee under his father's will or had requested files. Representation of the wife did not violate the rules so long as…
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Legal ethics opinions from the State Bar Association of North Dakota interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. 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. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.