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Lawyer discipline to be reviewed by high court

BISMARCK -- The North Dakota Supreme Court will review changes intended to make the process by which lawyers are investigated and disciplined for professional misconduct more efficient, transparent and just.

BISMARCK -- The North Dakota Supreme Court will review changes intended to make the process by which lawyers are investigated and disciplined for professional misconduct more efficient, transparent and just.

The lawyer discipline system is the way by which attorneys in the state are held responsible for professional misconduct. Anyone can file a complaint against a lawyer. Complaints are reviewed by a regional inquiry committee comprised of lawyers and lay people and may be prosecuted before the state disciplinary board. People file complaints about anything from an attorney not calling them back to stealing their money. Punishments range from simple admonitions to disbarment.

The chief justice asked the American Bar Association to examine the state's lawyer discipline system in 2013 and make recommendations on how to improve it. It was the first outside review of the procedures since 1983.

The Joint Committee on Attorney Standards, a group of lawyers and citizens who discuss qualifications and professional conduct for the profession, met six times over the past year and a half to discuss the ABA's findings and recommendations. They presented a number of substantive and procedural changes to the high court this week.

The most significant changes are to transfer responsibility for investigating cases from three volunteer regional inquiry committees to the Bismarck-based disciplinary counsel and give the disciplinary counsel more power to dismiss cases.

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The changes would address some of the ABA's concerns about consistency across the state, as well as speed up cases that don't implicate the rules, Disciplinary Counsel Kara Johnson said in an interview. Frustrated criminal defendants sometimes write in for help with an appeal and witnesses complain about a rude attorney. These types of complaints, which even if true would not be grounds for a discipline, can take more than three months to resolve with the current process, Johnson said.

James Ganje, staff counsel for the joint committee, noted that the inquiry committees are staffed by volunteers, who juggle their work with the complaints, which often lead to slow processing, a bad situation for lawyers and complainants.

These recommendations represent a compromise with ABA recommendations. The ABA wanted the state to consolidate all three inquiry committees into a statewide one, to reduce inconsistencies in how cases are handled in different regions and reduce perceptions of bias, which may originate from the fact that the people investigating the cases come from the same region as the people being investigated.

Another change the joint committee proposed was that a lawyer who loses a license to practice law, whether temporarily or permanently, should be prohibited from working as a paralegal or law clerk.

"If a suspended lawyer can identify as a paralegal or law clerk, it could pose a possibility of confusion in the mind of the public and potential clients of the status of the person," Ganje said in an interview.

The state bar association, represented by Joseph Wetch, argued in court that this provision was unnecessary and harmful, citing three examples of lawyers who had worked as paralegal or law clerks while their licenses were suspended and successfully regained their lawyer status.

Working such jobs gives lawyers an opportunity to provide for their families, rehabilitate themselves and stay within the legal field, he said. Lawyers are disciplined twice when they are prohibited from using their college degree as well as their law license, he argued. A supervising lawyer would be responsible for disclosing the former lawyer's conduct and ensuring that they do not practice the law.

Some of the justices appeared skeptical of Wetch's proposition. Justice Dale Sandstrom suggested that the lawyer's conduct might be relevant to whether he or she should be allowed to work in the legal field, like if a person had been disbarred for embezzling from a client or misusing a client's information.

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"Hire them at your own risk," Justice Lisa McEvers said.

Joint committee members also proposed making the discipline process more open and transparent. They suggested creating a dedicated site for lawyer discipline and posting vacancies to the discipline board, which reviews serious cases and handles appeals, online. They also suggested posting a standard complaint form online, which people could fill out and mail, instead of writing a free-form letter.

Ways to handle less serious complaints also were presented. The committee suggested sending "advisory letters" to lawyers who barely violated the rules or whose conduct was questionable but didn't quite amount to a rule violation. These letters would essentially tell the lawyer to pay attention to what he or she is doing.

They also recommended a set of guidelines for violations that are appropriate for diversion. For example, the new rules spell out drug abuse and poor practice skills as appropriate for diversion to resources such as counseling, addiction treatment and continuing legal education. Stealing money from a client's trust account, on the other hand, would not.

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