The State Bar Association of North Dakota Summer 2015 Gavel Magazine | Page 36

DISCUSSION

It should be emphasized that this committee
renders its opinion on the basis of the facts
reported by the requesting attorney. There has
been no independent review of the underlying
facts and specifically of the underlying
litigation. It is simply presumed for the sake
of this opinion that the requesting attorney
is correct in the information that has been
provided.
An attorney has an obligation to protect the
property of a Client. North Dakota Rules of
Professional Conduct Rule 1.15 provides in
relevant part:
(a) A lawyer shall hold property of Clients
. . . that is in a lawyer’s possession in
connection with a representation separate
from the lawyer’s own property.... Other
property shall be identified as such and
appropriately safeguarded. Complete
records of such . . . other property shall
be kept by the lawyer in the manner
prescribed in paragraph (h).

* * *
(d) Upon receiving, in connection with
a representation, funds or other property
in which a Client or third person has an
interest, a lawyer shall promptly notify the
Client . . . . Except as stated in this rule or
otherwise permitted by law or by agreement
with the Client, a lawyer shall promptly
deliver to the Client . . . any funds or other
property that the Client . . . is entitled to
receive and, upon request by the Client . .
. shall promptly render a full accounting
regarding such property.

* * *
(h) A lawyer shall maintain or cause to
be maintained on a current basis records
sufficient to demonstrate compliance with
the provisions of this Rule. Such records
shall be preserved for at least six years after
termination of the representation.
(Emphasis added).
The comments to the Rule further detail an
attorney’s obligation to maintain and preserve
a client’s property: “A lawyer should hold
property of others with the care required of
a professional fiduciary. All property that
is the property of clients . . . must be kept
separate from the lawyer’s business and
personal property.” N.D.R. Prof. Conduct
Rule 1.15, cmt. 1. And “[a] lawyer shall act
with reasonable diligence and promptness in
representing a client.” N.D.R. Prof. Conduct
Rule 1.3.
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THE GAVEL

Rule 1.15 includes the duty to promptly
deliver property to a client and there is an
obligation to retain the property indefinitely
until it can be returned to the owner. A
prior ethics committee opinion does permit
property to be returned to the client’s
authorized representative. See SBANO
Ethics Comm. Op. No. 1997-10 (allowing an
attorney holding personal property of client
to deliver the property to a person authorized
by the client to receive the property).
Because Rule 1.15(d) provides that a lawyer
“shall promptly deliver” to the client “other
property,” a lawyer must pay the costs
associated with delivery, absent an agreement
to the contrary. Further, N.D.R. Prof.
Conduct 1.15(h) provides only that “records”
be preserved for six years after termination
of the representation. This provision should
not be construed as suggesting that the
property itself, if unable to be delivered in
accordance with Rule 1.15(d), should only
be preserved for six years following the
termination of representation. The subject
of Rule 1.15(h) are the records, not the
property. The property, therefore, must be
held and delivered to the client, unless other
arrangements are agreed upon. N.D.R. Prof.
Conduct Rule 1.15(a) and (d).
Here, Attorney and Client agreed that
the property would be stored by Attorney
“temporarily,” until such time Client could
make arrangements to take the property.
“Temporarily” was not defined in the
agreement. The ordinary definition of
“temporary” is: “That which is to last for
a limited time only, as distinguished from
that which is perpetual, or indefinite, in its
duration.” BLACK’S LAW DICTIONARY
1464 (6th ed. 1990). At the same time, the
agreement to store the property “temporarily”
cannot mean that the Attorney who agreed
to store the property is not also bound by
the requirements of N.D.R. Prof. Conduct
Rule 1.15, which require a lawyer to hold
the property until the lawyer delivers it to
the client. Stated another way, the qualifying
word “temporarily” in the agreement between
the Attorney and Client is essentially
rendered meaningless because a lawyer has
a duty under Rule 1.15 to hold the client’s
property with the same care as that of a
fiduciary until such time the lawyer can
deliver the property to the client.
North Dakota’s Uniform Unclaimed

Property Act (“Act”), N.D.C.C. Ch. 4730.1, does not apply to tangible property.
In addition to analyzing the statute, inquiry
was made to the North Dakota Department
of Trust Lands, which is the st ]HY