SBAND ETHICS COMMITTEE
SBAND ETHICS COMMITTEE
OPINION NO. 25-02 THIS OPINION IS ADVISORY ONLY
FACTS The North Dakota Ethics Commission( the“ Commission”) is a government agency established by an initiated measure resulting in the adoption of Article XIV of the North Dakota Constitution, section 3 of which created the Commission. The Legislature then enacted North Dakota Century Code Chapter 54-66, which facilitates the Commission in its implementation of the rules embedded within Article XIV of the North Dakota Constitution( such rules collectively, the State Ethics Commission Rules).
The Commission provides various training and informational materials to the public and other groups on State Ethics Commission rules. Specifically, the letter requesting an opinion from this body states that:
Commission staff provides educational sessions and training materials to attorneys, lobbyists, the general public, professional organizations, civic organizations, special interest groups, and public officials. The Commission has also hosted online webinars and plans to continue doing so in the future. Providing education to prevent and manage ethical concerns is one of the primary responsibilities of our work. One of the most successful educational initiatives the Commission’ s office has created is its webinar series,“ Dakota Dilemmas.” The Commission plans to continue these webinars in the future.
Some of those who provide this training are lawyers licensed to practice law in North Dakota. The request seeks an advisory opinion providing“ guidance on whether providing educational information about Commission practices, procedures, and rules to various groups of North Dakota citizens implicates a violation of Rule of Professional Conduct 4.3.”
QUESTION PRESENTED Whether providing educational information about Commission practices, procedures, and rules to various groups of North Dakota citizens implicates a violation of Rule of Professional Conduct 4.3.
OPINION The request specifically seeks guidance on Rule of Professional Conduct 4.3( Rule 4.3). That rule provides in its entirety as follows:
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer ' s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
The comments to Rule 4.3 make clear that the chief concern of the rule is ensuring unrepresented persons are not confused about the lawyer’ s role and mistakenly believe the lawyer is disinterested or is a“ disinterested authority on the law even when the lawyer represents a client.” Rule 4.3, Cmt 1. Thus, Rule 4.3“ distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyer’ s client and those in which the person’ s interests are not in conflict with the client’ s.” Rule 4.3, Cmt 2. The comments further provide that“[ w ] hether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur.” The comment also makes clear that a lawyer may always advise an unpresented person to seek his or her own counsel. Id.
An attorney providing the training sessions as described above is not representing a client in a specific matter. Rather, he or she is providing general information about the law to the public. Some of that information may be structured around hypothetical scenarios as in the“ Dakota Dilemmas” series, but they are hypothetical and intended to illustrate the rules. As the above quoted comment makes clear, a relevant consideration is“ the setting in which the behavior and comments occur.” Here, the information is presented in a public forum completely apart from any specific ethics matter before the Ethics Commission. The audiences may include unrepresented persons, but the communications are general in nature and do not address specific instances. Therefore, Rule 4.3 does not act as an absolute bar to the educational communications at issue.
However, this does not mean, in a particular situation, an attorney might not violate Rule 4.3. No specific situations have been presented here and therefore we do not opine on any specific situation.
As a general matter, however, in keeping with the concerns of Rule 4.3, an attorney providing the trainings described herein should be mindful to ensure the audience clearly understands the attorney’ s role and the scope of the communications. For
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