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Top N.D. court approves new lawyer discipline rules

BISMARCK—The North Dakota Supreme Court approved changes to the way lawyers are investigated and punished for professional misconduct earlier this month. The new rules will take effect March 1.

The update comes after a 2014 American Bar Association review concluded that the disciplinary system could be more transparent, streamlined and professional. Following the report, the Joint Committee on Attorney Standards drafted rule recommendations, which were presented to the high court in May.

"I think we were doing discipline well in North Dakota, but it never hurts to take a hard look at yourself when you have a hand in policing the profession," said Tony Weiler, executive director of the State Bar Association of North Dakota. "What you're ultimately doing is protecting the public."

Anyone can file a complaint against a lawyer, ranging from failing to return calls to stealing clients' money. Complaints are reviewed by a volunteer regional inquiry committee composed of lawyers and lay people and then may be prosecuted before the state disciplinary board. Punishments range from simple admonitions to disbarment.

The biggest change is that, starting in March, the Bismarck-based disciplinary counsel's office will investigate the complaints and then provide reports to the regional committees, who will maintain their authority to rule on them.

As it is now, the nine-person committees investigate complaints from their regions with the help of the disciplinary counsel. The ABA noted this may have led to inconsistencies among regions and perceptions of bias, as the investigators came from the same region as those investigated.

James Ganje, staff counsel for the joint committee, told the court in May that the current system, handled by volunteers, often leads to slow processing of complaints.

The investigations involve calling complainants, witnesses, attorneys and searching court records to get a picture of what is going on.

Under the new system, "we'll make a recommendation, but ultimately it will be up to the inquiry committee to make a determination," said Disciplinary Counsel Kara Erickson.

Weiler said the new process should speed up processing of complaints, including those found to be without merit, which will be better for lawyers with looming accusations and members of the public with ongoing concerns.

The new rule will significantly increase the work of the disciplinary counsel's office, which received 189 complaints in 2015, Erickson said. She applied for part-time help in her budget proposal for next year, though it may not come through due to statewide cuts.

The court also approved new language allowing suspended or disbarred lawyers to work in law offices on legal documents and research, under the direct supervision of a licensed lawyer. An attorney for the state bar testified in favor of that practice in May, saying it could help lawyers regain their licenses while providing for their families.

"We don't want to stop somebody from being able to make a living in a much more limited and supervised way," said Weiler, who also favored that rule change.

The joint committee opposed it, saying it could create confusion about the person's status.

In addition, the new rules include a more formal diversion system for less serious misconduct or problems lawyers have that derive from addictions, mental health issues or poor skills. Alternatives to the usual punishments include treatment, training and fee arbitration.

Erickson said she is hoping the rule changes will encourage lawyers and members of the public to spend a minute reviewing the system.

"A lot of lawyers don't know the rules for lawyer discipline unless and until they get in trouble," she said. "Often members of the public don't understand that they can complain against their attorney."

For more information on the new rules, visit www.ndcourts.gov/Court/Notices/20160082/order.htm.

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