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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Can a state's attorney who used to be a public defender prosecute a person they once represented, when the new charge is unrelated to the old case?
Sometimes, but only after a careful Rule 1.9 analysis and safeguards. The committee concluded a prosecutor may handle a case against a former client if the new matter is not the same or substantially …
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?
No. The committee concluded that maternity leave is not a physical condition that materially impairs a lawyer's ability to represent clients and so does not require withdrawal under Rule 1.16(a)(2). B…
Is a licensed lawyer who is not currently practicing law but works as a licensed real estate salesperson bound by the Rules of Professional Conduct?
It depends on the circumstances. The committee concluded that real estate sales work is a 'law-related service,' so under Rule 5.7 a non-practicing lawyer working as a real estate agent may avoid the …
Can a firm that represents a government entity in unrelated matters defend a private client against that same government entity in a fraud investigation, if both clients consent?
The committee concluded Rule 1.7 does not explicitly prohibit the representation, but applies Rule 1.7(c): because the representation only might be adversely affected, the firm may proceed only if it …
Can a lawyer employed in a non-attorney capacity as a state-court case officer also run a limited real-estate and title practice on the side?
The committee concluded the Rules of Professional Conduct contain no express prohibition on dual practice or second occupations. Rule 5.7 supplies the framework: to the extent the case-officer job is …
Can a lawyer with offices in two communities sell one office's practice and keep practicing in the same fields and the same geographic area?
No. The committee concluded that Rule 1.17 does not permit a lawyer who has offices in more than one North Dakota community to sell the practice associated with one office and continue practicing in t…
After serving a summons and complaint, can a lawyer simply withdraw when the client stops paying and communicating, or must the lawyer file the case and move for leave to withdraw?
The lawyer must file the case, pay the filing fee, and move for leave to withdraw. The committee concluded that serving a summons and complaint is an appearance, and under North Dakota Rule of Court 1…
Must a lawyer who represents adoptive parents and can see confidential genetic-parent information in the court file disclose it to the adoptive-parent client on request?
No. The committee concluded a lawyer for adoptive parents is statutorily obligated under N.D.C.C. 14-15-16 to keep the genetic parents' identifying information confidential unless that statute's discl…
If a lawyer agreed to store a client's tangible personal property 'temporarily' and the client is now unreachable, must the lawyer keep storing it, or can the property be treated as abandoned?
The lawyer must keep safeguarding it. The committee concluded that Rule 1.15 requires the lawyer to hold the client's tangible personal property with a fiduciary's care until it can be delivered to th…
When a court asks a public defender about contacts with an absent client, what may the lawyer disclose, and can the lawyer still represent the client on the original and new bail-jumping charges?
A public defender may disclose only nonprivileged facts about contacts with the client, and only when the court orders the answer, not on a mere question, under Rule 1.6(c)(5). On the limited facts, t…
Can a lawyer transfer the stock of a law professional corporation to a revocable living trust for estate planning, if at least one trustee is a licensed attorney?
No. The committee concluded that a revocable living trust may not own stock in a professional corporation that practices law for a profit, even if a trustee is a licensed attorney. Rule 5.4(d)(1) bars…
When a lawyer leaves a firm and some clients choose to follow, does the lawyer automatically represent them, and can the lawyer require new fee agreements?
No automatic relationship, but the lawyer may represent them. The committee concluded that clients who chose to follow a departing lawyer are former clients of the old firm, not automatic clients of t…
If a lawyer practices under a temporary North Dakota license through a required supervising associate, can the lawyer take a case the associate must decline for a conflict of interest?
No, absent informed consent. The committee concluded that because a temporarily licensed lawyer must associate with a designated North Dakota attorney who actively participates and shares actual respo…
Can a North Dakota lawyer move to Minnesota and use physician-recommended medical marijuana while keeping a North Dakota law license?
No. The committee concluded that using medical marijuana, even where a state authorizes it and a physician recommends it, would violate Rule 8.4(b). Marijuana remained illegal under federal law and un…
Can a North Dakota lawyer use an outside collection agency to collect unpaid client fees, and how should the lawyer pay the agency and protect client confidences?
Yes, with two limits. The committee concluded a lawyer may use an outside collection agency or third-party recovery service for unpaid accounts receivable, but the payment to the agency may not be a p…
Is it ethical for a North Dakota lawyer to practice collaborative law, where the lawyer agrees to withdraw if the parties cannot settle and litigation becomes necessary?
Yes. The committee concluded that collaborative law is a permissible limited-scope representation under Rule 1.2(c), so long as the client gives informed consent after being told the process's advanta…
Can a North Dakota law firm pay an out-of-state firm a percentage of fees collected in exchange for being its exclusive referral firm for North Dakota clients?
No. The committee concluded the arrangement violates Rule 1.5(e) because the percentage paid to the out-of-state firm is for the referral alone, not in proportion to services performed and with no wri…
Can a debt-collection lawyer use a daily bank sweep on a client trust account to disburse collection payments to the client automatically?
Yes, but with safeguards. The committee concluded a lawyer may set up a separate interest-bearing trust account for a debt-collection client and honor a daily sweep, but only if the sweep removes fund…
Did North Dakota's bar ethics committee uphold or withdraw its opinion limiting 'Super Lawyers' advertising?
The committee withdrew Ethics Opinion 08-02 and declined to issue a new opinion on advertising the 'Super Lawyers' designation. It explained that the New Jersey Supreme Court had vacated the opinion 0…
Does a firm's past collection work for a company bar it from defending a lawyer in a disciplinary case arising from that company's later sale?
No, on the facts. The committee concluded the firm's former collection work for the company was not the same as or substantially related to the lawyer's disciplinary proceeding (which arose from a sal…
Where can a North Dakota lawyer deposit credit card payments for earned fees versus advance retainers, and must a subordinate lawyer report a supervisor's credit card trust-account practice?
Credit card payments for already-earned fees and costs go in the firm's general operating account. For refundable advance retainers, the committee called it the most practical approach to route the cr…
Can a lawyer who serves as a bankruptcy trustee contact a debtor who has a lawyer, without going through that lawyer?
It depends on the lawyer's role. The committee concluded that Rule 4.2 applies only when a lawyer is representing a client, so a lawyer acting solely as a bankruptcy trustee (not as legal counsel for …
Must a lawyer share information about a criminal client's case with the client's court-appointed guardian when the client objects?
The committee concluded that, because a court had given the guardian full authority over the client's legal matters, the lawyer does have an obligation to communicate with the guardian even over the c…
Can a licensed lawyer who works as a clerk of court take pro bono cases through a volunteer lawyer program, especially defending child-support cases in her own district?
No. The committee concluded that the lawyer's position as clerk of court, her statutory duties to the district judges, her access to the state child-support computer system, and her prior work for the…
Can a firm that represents a city in civil matters also take a contract to defend indigent defendants the city is prosecuting?
No. The committee concluded that a firm which represents the city (through contracts with the city attorney) cannot also serve as contract indigent-defense counsel against the city's own prosecutions.…
Can a firm pay a for-profit marketing company an annual fee to advertise its services to a company's employees at a reduced rate?
No. The committee concluded the arrangement violates Rule 7.2(d)(2): paying an annual fee to a for-profit 'lawyer referral service' to steer a select group of employees to the firm is giving something…
Can a state's attorney's office also run the community service program that monitors the sentences it helped obtain?
No. The committee concluded that taking on the community service coordinator role creates an irreconcilable conflict under Rule 1.7, because the program is funded in part by fees from people sentenced…
Does a lawyer have to withdraw because opposing counsel calls the lawyer a 'necessary witness,' when others in the firm know the same facts?
No. The committee concluded that a lawyer is a 'necessary witness' under Rule 3.7 only when the lawyer is the sole available source of material testimony on a contested issue, so as long as others can…
When an agent under a durable power of attorney hires a lawyer to get a client onto Medicaid, and the agency claims the agent mismanaged the client's money, does that create an unwaivable conflict?
The committee concluded the only client is the Medicaid applicant, not the agent, so the agency's claim that the agent mismanaged funds does not by itself create an unwaivable conflict. It is at most …
Can a North Dakota lawyer advertise being named a 'Super Lawyer'?
This opinion has been withdrawn and superseded by SBAND Opinion 09-08. As issued, the committee expressed concern that advertising a 'Super Lawyers' designation without explaining the entity behind it…
Does a lawyer serving as an administrative law judge violate Rule 5.5 by allowing a non-attorney to represent a corporation at an administrative hearing?
The committee concluded that an administrative law judge violates Rule 5.5(e) by knowingly permitting the unauthorized practice of law in a proceeding over which the judge presides, limited to conduct…
Can an indigent-defense lawyer be required, even with a written waiver, to report a client's financial information to the funding commission when it could be disclosed in open court?
The committee concluded that disclosing a client's confidential financial information to the funding commission, knowing it would be filed in open court and could be used against the client, would vio…
If a prosecutor is conflicted out of a matter because it is adverse to a former client, are the other lawyers in the same state's attorney's office also disqualified?
The committee concluded that a state's attorney who formerly represented a party may not handle the office's same matter against that former client under Rule 1.9(a), and that because the lawyers in a…
Does a part-time state's attorney's earlier civil work for someone bar the attorney from later prosecuting that former client?
The committee concluded the question turns on whether the prior civil work is 'substantially related' to the criminal charges, or whether confidential information from it would be used against the for…
If a lawyer's law partner sits on the city council, can the lawyer still defend criminal cases in that city's court?
No. A lawyer who sits on a city council has a non-waivable conflict in defending criminal cases in that city (Opinion 05-06), and Rule 1.10 imputes that conflict to the partner's firm. The committee c…
When another state's disciplinary authority demands client trust-account information, must a lawyer produce it or does confidentiality bar disclosure?
Rule 8.1 requires a lawyer to respond to a disciplinary authority's lawful demand, but it does not require disclosing information protected by Rule 1.6. The committee concluded the lawyer cannot invok…
Can a lawyer let a former client (someone she represented in a mental-health commitment) live in her home to help with the transition to independent living?
The committee concluded that no North Dakota Rule of Professional Conduct directly addresses this and that the arrangement does not violate the rules, so long as the lawyer does not take a position ad…
Can separately located public defender offices run by one state commission be treated as separate law firms, so a conflict in one office is not imputed to the others?
On the facts presented (offices in different cities with separate staff, files, computer systems, and letterhead, no shared access to client confidences, and only administrative oversight by the commi…
Can a North Dakota lawyer pay a per-referral fee to join an internet lawyer referral service?
Paying a referral service for clients gives value for recommending the lawyer's services, which Rule 7.2(d) generally bars, but the committee concluded a lawyer may participate if the service is not-f…
Can a lawyer who serves on the city council and its police commission defend criminal cases in that city's court, and can resigning a seat cure the conflict?
The committee concluded a sitting city council member may not defend city cases moved to district court (a non-waivable conflict that requires resigning the council seat to take such cases). Defending…
Can a North Dakota prosecutor accept a small thank-you gift from a crime victim, and do the ethics rules address it?
The committee concluded that North Dakota's Rules of Professional Conduct do not address whether a prosecutor may accept a gift from a victim. It pointed the prosecutor to a statute (N.D.C.C. 11-16-05…
Can a lawyer collect names of potential clients from seminar attendees and then contact those people to solicit business?
Handing out a form at a seminar that asks attendees to name people who might want the lawyer's services is not itself improper, but using those names to make in-person, telephone, or other real-time s…
If opposing counsel in a divorce claims my firm once represented the other spouse, must I withdraw when no clear attorney-client relationship with that spouse was ever formed?
The committee held that, because it does not act as a fact finder and was given no facts showing the other spouse had ever formed an attorney-client relationship with the firm (no express agreement, n…
If a client secretly makes a side deal that renders a signed court stipulation false, must the lawyer tell the court, and can the lawyer reveal it?
Under the version of Rule 3.3 the committee applied, because the false stipulation amounted to the client's own offer of false evidence, the lawyer's duty was to seek to withdraw without disclosure, n…
Can a law firm sue a company it did transactional work for years ago on behalf of a personal-injury plaintiff, when the firm also represents a bank that lent the company money?
The committee concluded the firm could treat the company as a former client because more than two years had passed with no contact, so Rule 1.9 did not bar a new, unrelated personal-injury suit agains…
Can a North Dakota lawyer keep a fee-splitting agreement with another lawyer who has since been suspended, and pay that lawyer a share of the fee?
Under Rule 1.5(e), the lawyer may pay a now-suspended lawyer only for services that lawyer actually performed before the suspension, and only in an amount proportionate to that work; paying for post-s…
Does a law firm's earlier insurance-coverage opinion for a company create a conflict that bars the firm from later bringing a shareholder derivative or class action on that company's behalf?
Because a derivative action is brought in the right of the corporation, the committee concluded the firm represented the same client (the company) in both matters, so no Rule 1.9 conflict arose on the…
Can a lawyer who once did legal work for a company later sue that company's parent corporation, or the company itself, on behalf of the company's former owners?
Prior work for a subsidiary does not automatically make its corporate parent a former client; whether the parent counts as a client turns on alter-ego and unity-of-interest factors. On the facts prese…
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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. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.