LAWYER DISCIPLINE
• An attorney was admonished for a violation of Rule 5.5 of the
North Dakota Rules of Professional Conduct. The attorney made
an appearance on behalf of a client in South Dakota and filed
paperwork in the district court when the lawyer was not licensed
in South Dakota. As a result, it was found the lawyer engaged in
the unauthorized practice of law and was subject to jurisdiction
in North Dakota under Rule 8.5 of the North Dakota Rules of
Professional Conduct.
• An attorney was admonished for violations of Rules 3.1 and 3.3
of the North Dakota Rules of Professional Conduct. The attorney
filed a lawsuit in state district court against a tribal chairman. The
attorney brought the matter into state district court knowing the
court lacked jurisdiction and failed to adequately inform the court
regarding his reasoning and basis for making the filing.
STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE OPINION NO. 16-04
This opinion is advisory only
QUESTIONS PRESENTED
Criminal Defense Attorney receives prosecutor’s
proposal to release pertinent criminal history information
only upon conditions. Release is conditioned upon
Criminal Defense Attorney’s agreement to not disclose
the information to any “non-criminal justice” person,
including the client, and to destroy the information at
the conclusion of the client’s case.
The Ethics Committee has been asked to render
opinions on the following:
1. Whether Criminal Defense Attorney may agree to
withhold from the client criminal history information
pertinent to the case?
2. Whether Criminal Defense Attorney may, at the
conclusion of the case, destroy the criminal history
information?
OPINION
Based on the facts presented below, Criminal Defense Attorney
is prohibited from agreeing to withhold from the client criminal
history information pertinent to the case. Criminal Defense
Attorney is also prohibited from destroying the criminal history
information at the end of the case.
APPLICABLE NORTH DAKOTA RULES OF
PROFESSIONAL CONDUCT
Rule 1.3, N.D.R. Prof. Conduct: Diligence
Rule 1.4, N.D.R. Prof. Conduct: Communication
Rule 1. 7, N .D.R. Prof. Conduct: Conflict of Interest: General
Rule
Rule 1.19, N.D.R. Prof. Conduct: Files, Papers, and Property
Related to a Representation
FACTS PRESENTED
Criminal Defense Attorney representing a client with a pending
criminal charge makes a discovery request to prosecutor for
criminal history information under N.D.R.Crim.P. 16. Under the
Rule, a properly submitted request triggers the prosecutor’s duty
to disclose to the defense a copy of the criminal defendant’s own
prior criminal record and records of prior criminal convictions of
the prosecutor’s witnesses. See N.D.R.Crim.P. 16(a)(l)(C) & (f )(l)
(C).
The prosecutor responds indicating that the prosecutor has one
or more criminal histories pertaining to the case, but the histories
contain confidential information. Further, the prosecutor will
only release the criminal history information if Criminal Defense
Attorney attests before a notary that:
A. This information shall be considered confidential.
B. This information shall not be released to any person or agency
that is non-criminal justice and [shall] only [be] released on a need
to know basis, being afforded the proper security at all times.
C. [N]o copies shall be made of this information and the
information shall not be used or disclosed for any purpose other
than the litigation or the legal proceedings for which it was
requested.
D. [T]he information shall be destroyed at the end of the litigation
or legal proceeding.
DISCUSSION
I. Criminal Defense Attorney is prohibited from agreeing to withhold
from the client criminal history information pertinent to the case.
Rules relating to consultation and diligence underscore an
attorney’s duty to disclose pertinent information to a client. Rule
1.4 requires the lawyer to “reasonably consult with the client about
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