Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Petition to Permit Temporary Provision of Legal Services

Supreme Court of North Dakota

January 18, 2017

In the Matter of a Petition to Permit Temporary Provision of Legal Services by Qualified Attorneys From Outside North Dakota

          Per Curiam.

         [¶ 1] On December 14, 2016, eight North Dakota licensed lawyers and two lawyers licensed in another state but temporarily licensed in North Dakota filed a petition for an order allowing non-North Dakota licensed lawyers to represent criminal defendants who have been charged as a result of protest activities connected to the Dakota Access Pipeline. The petitioners request that North Dakota's process for admission of lawyers licensed in another state be significantly changed.

         [¶ 2] The petitioners allege the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, as well as Article I, § 12 of the North Dakota Constitution, require that North Dakota admit out-of-state lawyers in temporary practice to adequately handle criminal charges stemming from protest activities which they claim overwhelm the North Dakota bar's ability to adequately represent all defendants. The petitioners request that this Court amend our Admission to Practice Rules.

         [¶ 3] The Court established a comment period ending 4 p.m., Friday, December 30, 2016. We received more than 16, 000 comments supporting or opposing the petition. Many comments reviewed in favor of the petition give the impression that out-of-state lawyers are not allowed to practice in this state. Others suggest the number of lawyers admitted to practice law in North Dakota is inadequate to handle all of the criminal cases that have arisen out of the protests of the Dakota Access Pipeline. The bulk of the comments appeared to be generated by social media and commented on the merits of the charges filed, the actions of law enforcement and prosecuting lawyers, the placement of or need for the pipeline or the protests in general. These comments are extraneous and unhelpful to resolving the issues raised in the petition. Also beyond the scope of our consideration is modification of rules regulating the permanent admission and licensure of those seeking to become North Dakota lawyers.

         [¶ 4] This Court regulates the admission, licensing and disciplining of lawyers under authority granted by N.D. Const. art. VI, § 3. This constitutional responsibility is carried out in our rule-making authority. The Court's current rules do not prevent out- of-state licensed lawyers from temporarily practicing law in North Dakota. Rather, lawyers licensed in another state are allowed to practice law in North Dakota by filing a motion with the district court in which a case is pending, attesting to their admission, licensing and discipline information, associating with a lawyer who is licensed in North Dakota and paying an annual fee. N.D. Admission to Practice R. 3(A). While the North Dakota lawyer's name must be included on all pleadings, that lawyer's in-person appearance can be excused by the district judge presiding in the matter. This pro hac vice process under Rule 3(A) of the Admission to Practice Rules is available now and is regularly used by many clients and lawyers in both criminal and civil cases.

         [¶ 5] North Dakota also allows for full admission by application of experienced lawyers. See N.D. Admission to Practice R. 7. We are among the first states allowing out-of-state lawyers to temporarily practice law in North Dakota while their application for full admission is pending. See N.D. Admission to Practice R. 6.1. Two out-of-state lawyers who signed the petition pending before this Court are right now authorized to practice law in North Dakota under this rule. That is a privilege their resident state of licensure does not grant to North Dakota's or other states' lawyers.

         [¶ 6] Rule 3.1 of the Admission to Practice Rules also authorizes the practice of law in civil matters for lawyers volunteering with approved legal services organizations. Rule 3.2 of the Admission to Practice Rules authorizes the provision of legal services following a determination of a major disaster. These rules, as well as Rule 3 of the Admission to Practice Rules, were reviewed for guidance in light of the petition and the comments received.

         [¶ 7] The petitioners question North Dakota's requirement that lawyers not licensed in North Dakota who seek pro hac vice admission associate with a licensed North Dakota lawyer. Requiring an associate lawyer in the state where a case is venued is common throughout the United States. See COMPARISON OF ABA MODEL RULE FOR PRO HAC VICE ADMISSION WITH STATE VERSIONS, available at http://www.americanbar.org/content/dam/aba/administra tive/professional_responsibility/prohac_admin_comp.authcheckdam.pdf (last visited Jan. 12, 2017). Requiring an associate lawyer is an important and legitimate state interest to protect the public from unlicensed lawyers who often are unfamiliar with state-specific court rules, procedures and laws.

         [¶ 8] The petitioners and many comments suggest an emergency exists which requires amending North Dakota's rules to allow a pro hac vice application and temporary admission process similar to the United States District Court for the District of North Dakota. They suggest that, among other things, the federal process does not require an associate lawyer, and that eliminating the need for an associate lawyer will alleviate the perceived shortage of criminal defense counsel. The federal courts do not require an associate lawyer for a number of reasons, including that the same federal rules of procedure apply nationwide and the cases usually are decided according to federal law. The same cannot be said of our state rules, statutes and judicial rulings.

         [¶ 9] We further reject as unsupported by evidence the suggestion that the South Central Judicial District is not currently handling the protest-related criminal cases in a timely manner due to unavailability of counsel. We have been provided with no evidence that a specific defendant has been denied counsel due to the unavailability of criminal defense or pro hac vice associate lawyers licensed in North Dakota. To the contrary, comments received in this process from the North Dakota Commission on Legal Counsel for Indigents state that lawyers have been assigned in "all cases in which someone has been found eligible to have indigent defense services provided by the Commission." The Commission provided the following information:

• 553 court cases were filed in district court in the South Central Judicial District resulting from Dakota Access Pipeline protests as of December 19, 2016;
• The Commission made 291 case assignments, constituting approximately 53 percent of the protest-related court cases;
• The Commission assigned an attorney in all cases in which a defendant is eligible to receive ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.