The State Bar Association of North Dakota Fall 2015 Gavel Magazine - Page 37

STATE BAR ASSOCIATION OF NORTH DAKOTA ETHICS COMMITTEE OPINION NO. 15-07 This opinion is advisory only QUESTION PRESENTED The Ethics Committee has been asked to render its opinion on whether Attorney A may ethically withdraw without leave of court, or must Attorney A file the case (incurring the cost of the filing fee) and bring a motion for leave to withdraw? DISCUSSION OPINION Specifically, Rule 11.2(a) of N.D.R.Ct. provides an attorney’s appearance for a party may only be withdrawn upon leave of court. Generally, appearance can be defined as, “a coming into court by a party to a suit, either in person or through an attorney”, or “the voluntary submission to a court’s jurisdiction”. In this case, by serving a summons and complaint, Attorney A is making an appearance by voluntarily submitting himself and his client to that court’s jurisdiction. Based on the facts presented below, Attorney A must file the case, incurring the cost of a filing fee, and bring a motion for leave to withdraw. Withdrawal without leave of court would be in violation of Rule 11.2 of N.D.R.Ct., and therefore also in violation of Rule 3.4(c) of N.D.R. Prof. Conduct. APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT Rule 3.4(c), N.D.R. Prof. Conduct: Fairness to Opposing Party and Counsel Rule 11.2, N.D.R.Ct: Withdrawal of Attorneys FACTS PRESENTED Attorney A serves a summons and complaint which is answered by Party B’s attorney. After the summons and complaint are served, Attorney A’s client moves out of the jurisdiction, stops paying Attorney A’s attorney’s fees, and/or stops communicating, prompting Attorney A to seek to withdraw. Rule 3.4(c) of N.D.R. Prof. Conduct prohibits a lawyer from knowingly disobeying an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. One such rule is N.D.R.Ct. 11.2. Further, reasonable notice of the motion for leave to withdraw must be given by personal service, by registered or certified mail, or via a third-party commercial carrier providing a traceable delivery, directed to the party at the party’s last known business or residence continued on page 38 LAWYER DISCIPLINE, continued failing to reasonably consult with the clients or keep them reasonably informed; N.D.R. Prof. Conduct Rule l.5(a), Fees, by charging unreasonable fees for his services, including charges for overhead items; N.D.R. Prof. Conduct 1.15(a), Safekeeping Property, by failing to hold retainers separate from his own property in an IOLTA account; and N.D.R. Prof. Conduct 1.16(e), Declining or Terminating Representation, by failing to take steps to refund any advanced payment of fee or expense that had not been earned or incurred and by failing to surrender client files and papers. The Supreme Court accepted the findings of fact, conclusions of law, and recommendations of the hearing panel, and ordered Matson suspended from the practice of law in North Dakota for six months and one day effective September 15, 2015. Matson must pay the costs and expenses assessed in the amount of $4,485.43 in the previous disciplinary matter within 30 days and pay the costs and expenses in these proceedings in the amount of $6,287.52 within 60 days. As conditions of reinstatement, Matson must take a continuing legal education course on the rules of professional conduct, pay the costs and expenses ordered, and reimburse the Client Protection Fund for any payments to his clients. The Evenson Sanderson, PC Law Firm in Bismarck is seeking an attorney with at least two years of civil litigation experience. Applicants must be admitted to practice law in state and federal court in North Dakota, possess strong writing and research skills and a strong academic record. Evenson Sanderson is prepared to offer a qualified candidate a very competitive salary and benefit package, as well as an opportunity for a stake in the future of its busy practice. Interested attorneys should send a cover letter, a current resume, a copy of their law school transcript and a significant writing sample to the attention of: Brenda Vitek Evenson Sanderson, PC 103 S. 3rd St. Bismarck, ND 58503 All applications will be held in confidence. FALL 2015 37