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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 SPRING 2017 35