Rule 1.7 does not explicitly prohibit the attorney from undertaking
the representation. However, an attorney in this situation should
proceed with caution and the attorney must make a determination of
whether the attorney reasonably believes that the representation will
not be adversely affected given the circumstances; then the attorney
must get the client’s consent, preferably in writing.
Without further context or facts concerning this representation, the
question of whether the firm’s belief that the representation would
not be adversely affected is reasonable cannot be answered.
CONCLUSION
This opinion was drafted by Sarah Atkinson and was unanimously
approved by the Ethics Committee on the 15th day of August 2019.
This opinion is provided under Rule 1.2(B), North Dakota Rules for
Lawyer Discipline, which states:
A lawyer who acts with good faith and reasonable reliance on a
written opinion or advisory letter of the ethics committee of the
association is not subject to sanction for violation of the North
Dakota Rules of Professional Conduct as to the conduct that is
the subject of the opinion or advisory letter.
ETHICS COMMITTEE OPINION NO. 19-02
THIS OPINION IS ADVISORY ONLY
QUESTION PRESENTED
May an attorney who is employed in a non-attorney capacity by
the North Dakota State Court system as a case officer also engage
in the limited practice of law related to real property? Does this
dual practice create any issues under the North Dakota Rules of
Professional Conduct?
OPINION
The North Dakota Rules of Professional Conduct do not contain
an express prohibition on dual practice or second occupations. See
SBAND Op 98-07. Rule 5.7 provides a framework for attorneys
to evaluate whether they are bound by the Rules when performing
nonlegal services. To the extent the attorney's occupation as a North
Dakota State Court system case officer is a “law-related service,”
the Rules apply to the law-related service unless the attorney takes
reasonable measures to assure that a person obtaining the law-
related services knows that the services are not legal services and
that the protections of the client-lawyer relationship do not exist. See
SBAND Op 98-07.
APPLICABLE NORTH DAKOTA RULES OF
PROFESSIONAL CONDUCT
Rule 5.7 Responsibilities Regarding Law-Related Services
FACTS PRESENTED
The attorney is employed or seeks employment by the North Dakota
State Court system in a non-attorney capacity as a case officer.
Separate from this non-attorney position, the attorney would like
to engage in the limited practice of real estate and property law. The
scope of the attorney's work would include reviewing, updating, and/
or drafting property abstracts, deeds, preliminary title opinions, and
final title opinions at the request of the attorney's legal clients who
would consist of lenders or real estate companies.
With respect to the attorney’s limited legal practice, the attorney
would not typically have contact with the buyers or sellers involved
in the transactions and the request for title opinions or drafting
of documents would be submitted by financial institutions or real
estate companies. The attorney does not anticipate having to appear
in court, engage in litigation with respect to legal services rendered
to their lending and real estate clients, or take on an adversarial role
between parties. Based on these general facts, the attorney questions
whether the limited scope legal practice would create any issues
under the Rules when considering employment as a case officer.
DISCUSSION
I. Rule 5.7 permits attorneys to have dual occupations. If
the dual occupation is considered a “law-related service,”
the attorney is obligated to conduct the law related service
pursuant to the Model Rules of Professional Conduct unless
various disclosures are made to the recipient of the “law-
related service.”
The North Dakota Rules of Professional Conduct do not contain
a prohibition on dual practice. Although the subject matter of the
attorney's dual practice may be distinct from that of a case officer and
the potential for conflicts of interest less likely, the Ethics Committee
cannot opine or hypothesize to the various different factual situations
that may trigger the applicability of particular Rules. In evaluating
the applicability of the Rules to dual practice, the attorney is advised
that the inquiry is focused on whether the nonlegal activities are a
“law-related service.” “When a lawyer performs law-related services
or controls an organization that does so, there exists the potential
for ethical problems.” N.D. R. Prof. Conduct Rule 5.7, c. 1. Rule
5.7 provides a framework for attorneys to evaluate whether they are
bound by the Rules when performing nonlegal services. Specifically,
Rule 5.7 provides,
(a) A lawyer is subject to these Rules with respect to the provision
of law-related services, as defined in paragraph (b), if the law-
related services are provided:
(1) by the lawyer in circumstances that are not distinct
from the lawyer's provision of legal services to clients; or
(2) in other circumstances by an entity controlled by the
lawyer individually or with others if the lawyer fails to
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