The State Bar Association of North Dakota Spring 2015 Gavel Magazine | Page 38

practice in this jurisdiction who actively
participates in the representation of the client
in the matter, transaction or proceeding, or….
N.D.R. Prof. Conduct 5.5(b) (emphasis
added).
Comment 6 to this Rule further clarifies the
“active participation” role of the associate
attorney:
[6] Paragraph (b)(4) requires the out-of-state
lawyer to associate with a duly licensed local
attorney for all transactions that are pending
in or substantially related to this jurisdiction
and for which pro hac vice admission is
not available. The Rule recognizes that
association with a lawyer licensed in this
jurisdiction is likely to protect the interests
of both clients and the public. The local
lawyer may not serve merely as a conduit
for the out-of-state lawyer, but must actively
participate in and share actual responsibility
for the representation of the client in the
matter. If the licensed lawyers involvement
is merely pro forma, then both lawyers are
subject to discipline under this Rule.
N.D.R. Prof. Conduct 5.5(Comment 6)
(emphasis added).
To actively participate and share actual
responsibility for the representation of a
client in a case where Associate Attorney is
serving in a supervisory capacity, Associate
Attorney must know, understand, and
process the case, alongside Attorney. If
Associate Attorney cannot represent a
client because his/her ability to consider,
recommend, or carry out a course of action
on behalf of the client will be adversely
affected by his/her responsibility to another
client, or third person, or the lawyer’s own
interest, pursuant to N.D. R. Prof. Conduct
1.7(a), that same restriction applies to cases
Associate Attorney supervises.
If Associate Attorney has a conflict of
interest, and cannot actively participate in
Attorney’s potential case, as required by N.D.
Admission to Practice Rules 6.1, and N.D.R.
Prof. Conduct 5.5(b), Attorney should not
accept the case.
The only exception to this opinion would be
if the Associate Attorney reasonably believes
the representation will not be adversely
affected by his/her responsibility to another
client, to a third person, or the lawyer’s own
interest, and both the affected client and
potential client consent. See N.D.R.Prof.
38

THE GAVEL

Conduct 1.7(c) (emphasis added), and
N.D.R. Prof. Conduct 1.18(d).
Furthermore, North Dakota Admission to
Practice Rule 6.1 and N.D.R. Prof. Conduct
5.5(b)(4) do not limit Attorney’s requirement
to work with Associate Attorney only in
formal Court settings. Instead, N.D.R. Prof.
Conduct 5.5(b) requires the involvement of
a local licensed attorney when the Attorney
is providing “legal services.” North Dakota
Admission to Practice Rule 6.1 requires an
associate attorney when Attorney “practices
law.” Our Supreme Court defines “the
practice of law” as:
Practice of law under modern conditions
consists in no small part of work performed
outside of any court and ]