The State Bar Association of North Dakota Summer 2015 Gavel Magazine | Page 33

STATE BAR ASSOCIATION OF NORTH DAKOTA

ETHICS COMMITTEE OPINION NO. 15-04
This opinion is advisory only

QUESTION PRESENTED: Defendant, despite receiving notices from Court and Public Defender, fails to appear at a

scheduled hearing. At the hearing, Court asks Public Defender what contacts have occurred between Public Defender
and Defendant. State’s Attorney then charges Defendant with bail jumping.
The Ethics Committee has been asked to render opinions on the following:
•
To what extent may Public Defender address Court’s inquiry into contacts with Defendant?
•
Is Public Defender barred from representing Defendant in original action, new bail jumping action, or both?

OPINION

Based on the facts presented below, Public
Defender - when ordered by Court may address the inquiry by disclosing
nonprivileged facts of contacts with
Defendant. However, a mere question
by Court is insufficient to justify Public
Defender’s disclosure. Further, under the
limited facts provided, Public Defender is
not necessarily barred from representing
Defendant in either the original action or
the new bail jumping action.
APPLICABLE NORTH DAKOTA
RULES OF PROFESSIONAL
CONDUCT
Rule 1.6, N.D.R. Prof. Conduct:
Confidentiality of Information Rule 3.3,
N.D.R. Prof. Conduct: Candor Toward the
Tribunal
Rule 1.7, N.D.R. Prof. Conduct: Conflict
of Interest: General Rule Rule 3.7, N.D.R.
Prof. Conduct: Lawyer as Witness

FACTS PRESENTED

Defendant attends initial court appearance,
receives the scheduling order setting forth
all hearing dates and times for the case, and
acknowledges in writing that Defendant
received scheduling order. Public Defender
is assigned.
After learning of assignment, Public
Defender sends to Defendant a notification
letter, which includes another copy of the
scheduling order and an appointment time
for Defendant and Public Defender to
discuss the case. Public Defender’s policy
is that if a defendant does not make the
appointment, Public Defender sends to
defendant a second letter with a request to
reschedule the appointment, a reminder of
the date and time of the next hearing, and

yet another copy of the scheduling order.
Defendant fails to appear at a scheduled
hearing. Public Defender attends the hearing,
and Court, on the record, asks what contacts
have occurred between Public Defender and
Defendant.
State’s Attorney charges bail jumping as
a separate criminal action, based upon
Defendant’s failure to appear at the
scheduled hearing where Public Defender
was present.

DISCUSSION

l. When ordered by Court, Public Defender
may address inquiry by disclosing nonprivileged facts of contacts with Defendant.
The extent to which Public Defender
may address Court’s inquiry into contacts
with Defendant turns largely on Rule 1.6.
Under the rule, a lawyer “shall not reveal
information relating to the representation
of the client” unless (1) the client consents,
(2) disclosure is authorized to carry out the
representation, (3) disclosure is required
because it is necessary “to prevent reasonably
certain death or substantial bodily harm,” or
(4) disclosure is permitted because one of
five scenarios exists. N.D.R. Prof. Conduct
1.6. The rule is “broad,” applying not just to
matters communicated in confidence by the
client but “also to all information relating to
the representation, whatever its source. In
re Disciplinary Action Against Dyer, 2012
ND 118, 4fl 19, 817 N.W.2d 351; N.D.R.
Prof. Conduct 1.6 cmt. 3. Court’s inquiry
into what contacts had occurred between
Public Defender and Defendant thus does
encompass the rule’s broad protection of
“information relating to the representation.”
See N.D.R. Prof. Conduct 1.6(a). Because
Court’s inquiry triggers that protection, the
exceptions to the prohibition on disclosure

must be considered.
Neither of the first two exceptions apply;
no facts show that Defendant consented to
disclosure or that disclosure is authorized
for Public Defender to carry out the
representation. N.D.R. Prof. Conduct 1.6(a).
Nor do any facts suggest that disclosure is
required because it is “necessary to prevent
reasonably certain death or substantial
bodily harm.” N.D.R. Prof. Conduct 1.6(b).
Moreover, of the five scenarios where a
lawyer is permitted to disclose, none of
the first four apply; no facts suggest that
disclosure is necessary (1) to prevent
Defendant from committing a financial
crime or fraud, (2) to prevent or mitigate
substantial injury to another’s finan