take 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.
(b) The term “law-related services” denotes services that might
reasonably be performed in conjunction with and in substance
are related to the provision of legal services, and that are not
prohibited as unauthorized practice of law when provided by a
nonlawyer.
“Rule 5.7 applies to the provision of law-related services by a
lawyer even when the lawyer does not provide any legal services to
the person for whom the law-related services are performed and
whether the law-related services are performed through a law firm
or a separate entity.” Id. at c. 1. The issue of whether the attorney’s
employment or potential employment as a case officer is a “law-
related service” is a fact intensive inquiry for which the Ethics
Committee cannot opine. However, for purposes of this opinion,
assuming the attorney’s dual occupation as a case officer may be
considered a law-related service (see, e.g., Rule 5.7, c. 7 classifying
social work as an example of “law-related services”), the attorney is
obligated to afford the recipients of such services the protections
of the Rules that would otherwise apply to the client-lawyer
relationship. Rule 5.7, c.7.
The comments to Rule 5.7 caution that the lawyer must take “special
care to heed the proscriptions of the Rules addressing conflicts of
interest [Rule 1.7 through 1.11, especially Rules l.7(b) and l.8(a),
(b) and (f )], and to scrupulously adhere to the requirements of
Rule 1.6 relating to disclosure of confidential information.” As the
Ethics Committee previously commented in SBAND Op 98-07,
“[a] principal problem is the possibility that the recipient of the
[law-related] services may expect, for example, the protection of
client confidences, prohibitions against representation or persons
with conflicting interests, and the obligation to maintain professional
independence.”
To the extent that the attorney’s employment as a case officer is
considered a “law-related service,” “even when the law-related and
legal services are provided in circumstances that are distinct from
each other,” the Rules apply to the attorney “unless the attorney takes
reasonable measures to assure that the recipient of the law-related
services knows that the services are not legal services and that the
protections of the lawyer-client relationship do not apply.” Rule 5.7,
c. 2. Similarly, if law-related services are provided through an entity
that is distinct from that which the lawyer provides legal services, and
the lawyer individually or with others has control of such an entity’s
operations, the Rule requires the lawyer to take reasonable measures
to assure that each person using the services of the entity knows that
the services provided by the entity are not legal services, and that the
Rules relating to the lawyer-client relationship do not apply. Rule
5.7, c.3. “A lawyer's control of an entity extends to the ability to direct
32
THE GAVEL
its operation. Whether a lawyer has such control will depend upon
the circumstances of the particular case.” Id. The question of whether
the attorney has control over the entity, or the ability to direct its
operation is a question of fact for which the committee cannot
opine. For purposes of this opinion, assuming that the attorney does
have control over the ability to direct the operation of the law-
related services, the Rules apply unless the attorney takes reasonable
measures to inform the recipient of the law related services otherwise.
Under Rule 5.7, the lawyer bears the burden to make clear to the
recipient of law-related services that the protections of a lawyer-
client relationship do not apply to the provision of law related
services, and if the burden is not met, the Rules of Professional
Conduct will apply to the provision of these services just as if the
lawyer were providing legal services. Ellen J. Bennett, Helen W.
Gunnarsson, Responsibilities Regarding Law-Related Services§ 5.7,
Ann. Mod. Rules Prof. Cond. (9th ed. 2019) (citing Hugh D. Spitzer,
Model Rule 5.7 and Lawyers in Government Jobs–How Can They
Ever Be “Non-Lawyers”?, 30 Geo. J. Legal Ethics 45 (Winter 2017)
(advising lawyers employed in law-related government jobs to follow
procedures contemplated by Rule 5.7 to ensure those the lawyers are
serving understand they are not receiving legal services and are not
entitled to protections of lawyer-client relationship)).
Comment 5 to Rule 5.7 provides guidance on the scope of reasonable
measures to inform the recipient of the law-related services that the
attorney-client relationship does not exist. The form and scope of the
disclosure will vary depending on the nature and sophistication of
the recipient however it is advised that the communication be made
prior to providing law-related services and that the communication
be made in writing. N.D. R. Prof. Conduct Rule 5.7, c. 5-6. Under
some instances where the legal and the law-related services are
so intertwined they cannot be distinguished from each other, the
disclosure imposed by Rule 5.7(a)(2) cannot be met. N.D. R.
Prof. Conduct Rule 5.7, c. 6. Additionally, to the extent the full
protections of the Rules do not apply to “law-related services,” other
legal protections and duties may apply to the recipient. N.D.
R. Prof. Conduct Rule 5.7, c. 8 (citing Rule 8.4 Misconduct).
CONCLUSION
This opinion was drafted by Casey A. Furey and was unanimously
approved by the Ethics Commission on the 15th day of August 2019.
This opinion is provided under Rule l .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.