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In re Petition for Leave to Appeal by Gerber

Supreme Court of North Dakota

August 25, 2015

In the Matter of the Petition for Leave to Appeal by Benjamin Loren Gerber Benjamin Loren Gerber, Petitioner
v.
Disciplinary Board of the North Dakota Supreme Court, Respondent

Page 862

ADMONITION ORDERED.

Scott K. Porsborg, Bismarck, N.D., for petitioner.

Brent J. Edison (argued), Fargo, N.D. and Kara J. Johnson (on brief), Bismarck, N.D., for respondent.

Gerald W. VandeWalle, C.J., Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner.

OPINION

Page 863

Application for disciplinary action.

Per Curiam.

[¶1] Gerber appeals a decision of the Disciplinary Board of the Supreme Court, affirming the Inquiry Committee West determination to admonish him for violating N.D.R. Prof. Conduct 5.5, relating to the unauthorized practice of law. We conclude clear and convincing evidence establishes that Gerber violated N.D.R. Prof. Conduct 5.5(d) and order that Gerber be admonished.

I

[¶2] From about September 2010 until late October or early November 2011, Gerber worked as a " staff attorney" in the Bismarck office of Fredrikson & Byron, P.A., a law firm based in Minneapolis, Minnesota. While in Bismarck, Gerber worked as a registered lobbyist, conducted title research, and assisted in drafting title opinions. Although Gerber was admitted to practice law in Minnesota in October 2010, Gerber has never been licensed to practice law in North Dakota. The Fredrikson firm announced Gerber's hiring in a news release:

For Immediate Release

Fredrikson & Byron Hires Five Attorneys

Minneapolis, MN December 9, 2010--Fredrikson & Byron announces five attorneys joined the firm to support the growing practice in the Bismarck office: . . . Benjamin L. Gerber . . . .
. . . .
Gerber is a government relations specialist in the Government Relations Group and staff attorney in the Energy Group. Gerber works with clients to understand their goals and legislative needs and devises a practical strategy to help them achieve success. He also works as a representative between the client and the North Dakota Legislature, the Governor's office, state agencies, and other federal and local government officials. Gerber's energy practice focuses on title examination and oil and gas law.

[¶3] At the firm, Gerber worked as a " staff attorney" and a " government relations specialist" and represented Fredrikson's clients before the North Dakota Legislature as a registered lobbyist. He was supervised by an attorney in Fredrikson's Minneapolis office. Gerber also researched title issues and assisted in drafting title opinions under the supervision of an attorney in the Bismarck office. A supervising attorney reviewed, revised, approved and signed the final title opinions. Gerber did not obtain or retain his own clients, other than with respect to his lobbying activities, provide any legal advice independent of his supervising attorneys, or perform any work for Fredrikson's clients without their supervision.

[¶4] In October 2011, before leaving the firm, Gerber completed an application for admission to the North Dakota bar.

Page 864

Concerned about Gerber's work at Fredrikson as a " staff attorney," the State Board of Law Examiners requested he provide more information. Gerber responded to the request by affidavit in March 2012, describing his position as a " government relations attorney" and " staff attorney" with the Fredrikson firm in Bismarck and explaining his duties including title opinion research and lobbying work. Gerber also noted reasons for his separation from the firm in the affidavit, stating, " I was not happy with a position as a title exam attorney." In April 2012, the State Board of Law Examiners spoke informally with Gerber by telephone. Gerber subsequently withdrew his application because he had obtained other employment in Minnesota.

[¶5] In September 2012, the State Board of Law Examiners sent a letter to the Disciplinary Board concerning Gerber and the Fredrikson firm " for violations of N.D.R. Prof. Conduct 5.5(a) and (e), as it is apparent from the information provided to the State Board of Law Examiners that Gerber, through Fredrikson & Byron, established a permanent office in Bismarck, North Dakota, and practiced law within the State for approximately 13 months without a license." In September 2012, the Inquiry Committee West opened a file to investigate whether Gerber had violated N.D.R. Prof. Conduct 5.5(a). Gerber filed a written response, explaining his work at the firm and arguing it did not constitute the practice of law.

[¶6] In a June 2013 notice of disposition, the Inquiry Committee concluded the allegations that Gerber violated N.D.R. Prof. Conduct 5.5(a), (b), and (c) could not be sustained against Gerber and dismissed the complaint. In July 2013, Disciplinary Counsel appealed to the Disciplinary Board, citing N.D.R. Prof. Conduct 5.5(a) and (d), and arguing Gerber was held out to the public as entitled to practice law and working on legal matters as a " staff attorney" in a law office located in North Dakota for 13 months constituted the unauthorized practice of law. Disciplinary Counsel asserted the Inquiry Committee's contrary interpretation was wrong as a matter of law and requested the Disciplinary Board to remand the matter back to the Inquiry Committee. In a November 2013 letter, the Disciplinary Board advised the parties the Board had reversed the Inquiry Committee's decision and remanded for the Inquiry Committee to consider offering Gerber consent probation.

[¶7] In March 2014, Gerber filed an additional written response to the Inquiry Committee to consider on remand. In his March 5, 2014, letter, Gerber argued that he did not engage in the practice of law in North Dakota and no evidence showed Gerber held himself out to the public as being licensed in North Dakota. After its March 2014 meeting, the Inquiry Committee concluded Gerber " had violated the provisions of Rule 5.5, N.D.R. Prof. Conduct, when he engaged in work as an attorney in this state, but did not secure a temporary license to practice law." The Inquiry Committee extended to Gerber an offer of consent probation, but Gerber declined. At its June 2014 meeting, the Inquiry Committee further considered the matter, and in a June 25, 2014, notice of disposition, reaffirmed its earlier conclusion that Gerber had " engaged in the unauthorized practice of law, in violation of Rule 5.5, ...


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