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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When could a child support enforcement investigator who was also a private lawyer represent parents in support matters?
The committee could not decide the proposed representations on the facts supplied. It identified checks for personal government participation, actual knowledge of confidential government…
May a divorce lawyer use a contingent fee to collect spousal support arrearages already awarded by a court?
The committee said Rule 1.5(d)(1)'s domestic-relations contingent-fee ban did not apply to post-divorce collection of court-awarded spousal support arrearages. The arrangement remained subject to…
When may a possibly discharged lawyer contact the client, and may the lawyer retain client papers as security for unpaid fees?
The committee allowed contact until the client notified the lawyer of discharge, including contact to confirm it. A retaining lien was not automatically unethical, but Rule 1.16(e) could require…
Could a lawyer represent the wife after drafting proposed divorce papers naming the husband as plaintiff and initially saying she represented him?
The committee said the described lack of reliance and privileged communications suggested no attorney-client relationship with the husband, so the lawyer could continue for the wife. It reserved a…
May a lawyer continue at trial when a partner may testify, and must the lawyer report possible witness conflicts of opposing counsel?
The committee said the lawyer could continue if no conflict existed, but a partner's conflict would also affect the lawyer. It declined to decide whether opposing counsel had a conflict or whether…
Could a firm sue another law firm after representing that firm's former partner in a separate case where the firm was also a defendant?
The committee found no violation on the stated facts. The former partner, not the other firm, had been the lawyer's client, and the second lawsuit was separate, with the former partner absent and no…
May a prosecutor discuss a pending criminal case with a represented defendant who requests the meeting against counsel's advice?
The committee said the defendant's request did not dispense with Rule 4.2's requirement for defense counsel's consent to a communication about the pending matter. It applied the rule to prosecutors…
May a lawyer oppose future agency rules for one client after advising another client about related proposed rules?
The committee expressed concern that the proposed representation might violate the conflict rules. It identified possible concurrent-client adversity under Rule 1.7 and a substantially related…
How did the committee address contacting inmates as prospective clients and a settlement offer that waived attorney fees?
The committee applied Rule 7.1's restrictions to inmate contact without deciding whether incarceration itself made contact improper. It said the lawyer had to explain the fee-waiver settlement offer…
What conflicts arise when a lawyer sells title insurance as the insurer's agent in a transaction involving a legal client?
The committee identified potential conflicts among the lawyer's clients and the insurer, especially when the lawyer would receive a commission. It said some conflicts might be resolved under Rules…
Could a part-time city prosecutor or firm defend unrelated charges in county court?
The committee said Rule 1.8(j)(1) barred defending prosecutions of the city’s ordinances in any court, but did not bar defense of unrelated state or other-city charges merely because they were heard…
When does a lawyer have to report another lawyer's possible conflict misconduct, and how does client confidentiality affect reporting?
The committee left the knowledge determination to the requesting lawyer but said a knowing continuation of representation despite conflict violations raised a substantial question under Rule 8.3. It…
Could a lawyer whose practice was not limited to divorce use a Yellow Pages advertisement saying 'DIVORCE ONLY'?
The committee said the word 'only' might mislead readers and recommended deleting it. With that word removed, the proposed advertisement appeared permissible under the North Dakota conduct rules.
Could a North Dakota lawyer form a firm with a lawyer admitted in another state and North Dakota federal court, but not admitted to North Dakota state practice?
The committee said Rule 5.4(b) did not bar the partnership because both people were lawyers. Their public communications had to comply with Rules 7.1 and 7.2 and indicate the other lawyer's…
Must a lawyer withdraw as an expert for plaintiffs whose unrelated lawsuit names a corporation represented by the lawyer's firm?
On the stated facts, the committee found no Rule 1.7 conflict requiring withdrawal as an expert. It said the lawyer should disclose the firm's representation to the plaintiffs and obtain their…
Could a lawyer pay a suspended lawyer a referral fee for former tax clients, or employ her to help with their returns?
The committee rejected the proposed referral or fee split while the referring lawyer was suspended. It said she could instead receive a salary as a paralegal in the lawyer's office under direct…
Could the lawyer mail similarly situated judgment debtors about a judgment he had obtained for a client?
The committee said North Dakota Rule 7.1 permitted direct mail, but asked the lawyer to remove a named law firm and a prediction of success from the proposed letter. It did not endorse or verify the…
May two lawyers in the same firm separately represent spouses in an agreed default divorce involving custody and support?
The committee concluded that the firm should not proceed with both spouses' representation on the stated facts because of the likelihood of adversity. The firm should withdraw from one or both…
Could a lawyer destroy or release a disputed bill of sale after one transaction party objected?
On limited facts, the committee said the lawyer was not bound by a request to destroy the file and should retain it. It said a copy should not be released contrary to the party's direction without…
Could a county prosecutor continue juvenile defense in another county after a special prosecutorial appointment there?
The committee treated the special assistant state's attorney appointment as a prosecutorial appointment under Rule 1.8(j) and found a conflict in the described juvenile defense. It also applied…
Could a North Dakota lawyer mail former and prospective clients about new licensure and an expanded firm?
The committee said the targeted mailings described were not prohibited by North Dakota's conduct rules so long as they were not false or misleading. Its analysis relied on Shapero and the state's…
Did North Dakota Rule 4.2 bar contact with a represented corporation's former employees?
The committee said Rule 4.2 did not extend to former employees. It cautioned against inducing disclosure of the corporation's privileged communications and required the lawyer to identify the…
Could a creditor-firm lawyer interview and advise legal aid clients who might later face collection actions?
The committee allowed the volunteer interview absent an actual conflict, but required screening for existing collection matters. Later action against that client involving financial information…
Could closing lawyers turn old client files over to a successor lawyer without client consent?
The committee said transfer of closed files to another lawyer appeared to require each client's consent. It recommended file-review, notice, retention, and confidentiality guidelines drawn from…
What did the committee say about disclosure when a lawyer believed a client might imminently die by suicide?
Under the then-current Rule 1.6(a), the committee said the lawyer was required to disclose information believed necessary to prevent imminent death or substantial bodily harm, while limiting…
Could a North Dakota law firm list family mediation among its advertised services?
The committee found no prohibition in the professional-conduct rules against listing mediation as a firm service. It declined to decide whether other statutes or administrative rules restricted the…
Could a firm collect part of a departed associate's fees on new client matters without work or joint responsibility?
The committee said an employment-contract provision dividing fees on the former associate's new matters violated Rule 1.5(e) where the firm did no work, assumed no joint responsibility, and the…
What work and file access did the committee allow a suspended lawyer after transferring clients' matters?
The committee permitted supervised paralegal work and certain nonlawyer occupations, but said the suspended lawyer could not do legal work for a corporation. It directed transfer of the entire file…
Could a lawyer rely on the client to report another lawyer's conduct, and did the lawyer need to investigate further?
On the stated facts, the committee found a reporting duty that the client's own report would not satisfy. It said Rule 1.6 protected confidential information and the lawyer need not investigate…
Did one lawyer's conflict disqualify a legal aid organization, and could the affected client consent?
The committee said a legal aid organization could be treated as a firm under Rule 1.10, with a unit-specific inquiry where relevant. Rule 1.10(d) allowed waiver through the affected client's consent…
Could a claimant's lawyer contact an insurer's claims representative directly after defense counsel was appointed?
The committee said Rule 4.2 barred direct contact with the insurer's representative without prior approval from the appointed defense counsel.
Could a lawyer represent a father seeking visitation after the lawyer's firm handled a prior matter involving the mother?
The committee said any conflict imputed to the firm also reached the newly joined lawyer. Representation was possible only if the firm met Rules 1.6 and 1.9 or obtained the mother's consent under Rule 1.9.
May a lawyer distribute standard living-will and health-care power-of-attorney forms without an individual consultation?
The committee identified no rule directly governing the plan, but warned that a lawyer's broad distribution of standard forms could imply they were sufficient for everyone and could raise…
Does a child-support IV-D attorney have a conflict when reviewing an obligor's request after prosecuting that obligor, and what must the attorney tell unrepresented parties?
The committee saw no conflict under the statutes identifying the state as the IV-D attorney's client, but required advance disclosure of that role to unrepresented obligors and obligees under Rule 4.3.
What concerns did the committee identify for a lawyer's proposed combined real estate brokerage and law practice?
The committee expressed concern that the proposed combined corporation might violate the conduct rules, citing the lawyer's own-interest conflicts and Rule 5.4's limits on fee sharing and nonlawyer…
Could a North Dakota lawyer also hold an insurance license and operate both businesses from one office?
The committee found no prohibition on holding both licenses and allowed the businesses to share an office, but said their letterhead and other communications must keep them separate.
Could a lawyer serve as a city prosecutor while taking county felony defense assignments?
The committee said Rule 1.8(j) permitted both roles, but barred a defense likely to require an appearance in the court of the prosecutorial appointment and required case-specific conflict review.
Could a lawyer seek an ex parte domestic-relations interim order after opposing counsel had appeared?
The committee found no professional-conduct bar to seeking an ex parte interim order authorized by North Dakota court rule, even when opposing counsel had appeared.
To whom did the lawyer return an unused retainer paid by a third party?
On the stated facts, the committee said to return the funds to the third party who paid, less earned fees and costs, unless that payer directed otherwise.
Did a lawyer have to report another lawyer's misconduct when reporting would reveal protected client information?
The committee said Rule 1.6 protection took priority over disclosure under Rule 8.3. It advised encouraging client consent unless disclosure would substantially prejudice the client's interest.
Could a part-time state’s attorney defend criminal cases in another county?
The committee said Rule 1.8(j) allowed criminal defense in counties outside the prosecutor’s appointment, provided the defense did not involve parties or issues the lawyer had handled as a state’s…
Could a law firm list legal assistants and their certification on its letterhead?
Yes. The committee saw no professional-conduct bar to listing legal assistants or their certification, provided the letterhead clearly identified them as legal assistants and distinguished them from…
Could a lawyer release privileged material from a deceased client’s divorce file in response to a subpoena?
The committee said privileged information from the deceased client’s file could not be released without consent from the estate’s personal representative or a court order. It cited North Dakota Rule…
What did the committee say about client notice and significant original documents in a letter about file disposition?
The committee called for reasonable efforts to contact clients and review files. Significant originals should be returned to clients; if return is not possible, the committee assumed they would go…
Must a lawyer report a serious violation even when another lawyer is expected to report it?
Yes. The committee said the lawyer had a reporting duty despite confidence that someone else would report, provided the known conduct raised a substantial question about the other lawyer’s honesty,…
As this later-overturned opinion originally held, could a city prosecutor defend state-charge cases in county court?
As issued, the committee said the city prosecutor could not defend in county court if the appointment included prosecuting transferred city cases there. It said excluding those transferred cases…
Could a lawyer run for the legislature while the lawyer’s firm lobbied that body for clients?
The committee said candidacy itself was not barred. If elected, the firm’s lobbying would generally be disqualified unless a qualifying constitutional, statutory, or formally adopted legislative…
What duties applied when a person claimed a firm represented him in a matter the firm had declined?
The committee could not decide whether an attorney-client relationship existed. If it did, withdrawal had to satisfy Rule 1.16; if it did not, the committee saw nothing more the firm could do on the…
When must a lawyer report another lawyer’s serious rule violation under Rule 8.3?
The committee said reporting was required once the lawyer knew of a violation raising a substantial question about the other lawyer’s honesty, trustworthiness, or fitness. It said pending court…
Could one firm represent two criminal defendants if defending one would require attacking the other as a witness?
No. The committee unanimously found a clear conflict because defending one client required attacking the other as a witness and might use information gained in that other client’s criminal case. It…
Did the professional-conduct rules bar a lawyer serving on the Racing Commission from a hearing involving a firm with which the lawyer shared fees?
The committee found no problem under the North Dakota Rules of Professional Conduct on the stated facts. It expressly left state appointee rules and possible judicial-conduct requirements outside…
Could a firm take a contingent fee through a nonlawyer transportation specialist representing employee claimants?
The committee found the proposed contingent payment through the nonlawyer agent impermissible fee sharing under Rule 5.4. It said a different arrangement paid by the specialist to represent…
Could a lawyer receive a share of a real estate commission for work tied to legal services on a purchase?
For the proposed purchase transaction, the committee said the fee arrangement was permissible if it complied with Rule 1.5 generally and Rule 1.5(c) particularly. The short response did not decide…
May a lawyer who is also an accountant advertise both professional roles?
The committee said the new rules did not prohibit cross-advertising as the former DR 2-102(E) had. It allowed the lawyer to advertise both roles if the advertising complied with North Dakota Rule 7.1.
Could a lawyer represent a second will contestant after settling another contestant’s claim?
On the stated nonadverse claims and second client’s consent, the committee perceived no conflict. It said former-client consent under Rule 1.9(b) would be required if the second client’s interests…
May a lawyer collect for another firm and later handle a case against a lawyer from that firm?
The committee declined blanket approval or disapproval. It said Rule 1.7 governed each situation, discussed written consent from the firm and client consent after full consultation if a conflict…
Could a law firm mail its newsletter to North Dakota recipients who were not clients?
The committee saw no ethical problem with the described mailing if it followed Colorado Formal Opinion 74. It said North Dakota Rule 7.1 permitted communications to clients and nonclients so long as…
What should a lawyer do when a client rejects a settlement offer and the lawyer doubts the client’s ability to decide?
The committee presumed client competence and said a reasonable client request must be honored. If counsel believed the client could not make the decision, it identified seeking a guardian,…
Could a municipal judge also serve as a state’s attorney in another county or an assistant state’s attorney in the same county?
The committee found no ethical problem with judging in one county while serving as state’s attorney in another. It found no categorical bar to the same-county assistant role, but said the lawyer…
Could a city’s lawyer continue as trial advocate if likely to be a necessary witness?
Assuming the lawyer was likely to be a necessary witness, the committee said Rule 3.7 generally barred acting as trial advocate unless an exception applied. It lacked enough facts to decide whether…
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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.