COURT AMENDS CONDUCT RULES RELATING TO ATTORNEY FEES
MIKE HAGBURG Attorney at Law
The Supreme Court has amended the Rules of Professional Conduct to add clarifying language on fees . The amendments took effect July 1 .
New subdivision ( f ) of Conduct Rule 1.5 states a “ lawyer may charge a flat , fixed fee or minimum fee for a particular representation with services to be rendered in the future .” Such a fee is considered “ the lawyer ’ s property when paid and may be deposited in the lawyer ’ s operating account .”
Meanwhile , Rule 1.5 ’ s new subdivision ( g ) provides that “[ n ] onrefundable fees and nonrefundable retainers are prohibited .” This subdivision also states “[ a ] ny agreement that purports to restrict a client ’ s right to terminate the representation or that unreasonably restricts a client ’ s right to obtain a refund of unearned or unreasonable fees is prohibited .”
Consistent with the amendments to Rule 1.5 , the court also made minor amendments to Conduct Rule 1.15 on safekeeping property .
One type of legal service for which the flat fee authorized by Rule 1.5 ( f ) could be appropriate is a limited representation .
Professional Conduct Rule 1.2 ( c ) allows a lawyer to “ limit the scope of the representation if the client consents in writing after consultation .”
Civil Rule 11 on signing documents , Civil Rule 5 on service , and Rule of Court 11.2 on withdrawal govern procedure in cases where a lawyer desires to provide limited representation .
Work to integrate limited representation into the procedural rules began in 2007 after the Report on Pro Se Litigation in North Dakota recommended expansion of unbundled legal services in the state . The objective was to make it easier for otherwise self-represented litigants to obtain legal assistance on specific issues . At the same time , it was recognized there needed to be a means for attorneys to sever the attorney client relationship once the specific task had been accomplished . Initial rule provisions on limited representation took effect on March 1 , 2009 .
In 2015 , the Minority Justice Implementation Committee discussed taking steps to expand the use of limited representation in North Dakota . The committee thought that making it easier for attorneys to limit the scope of representation could help minorities and the poor get better access to the legal system . The committee researched potential rule amendments in an attempt to find ways to facilitate limited representation .
The Minority Justice Implementation Committee concluded that following the approach taken in Nebraska could make providing limited representation easier . Under Nebraska ’ s rule , attorneys may prepare documents for an otherwise self-represented party without needing to make an appearance at all . The rule also allows essentially automatic withdrawal for attorneys who take steps beyond document preparation and actually make a limited appearance in court on behalf of a client .
The Minority Justice Implementation Committee proposed rule amendments based on the Nebraska model , which ultimately became part of North Dakota ’ s rules in 2016 and remain in effect today .
Rule 11 ( e ) provides details on the services an attorney may perform while assisting an otherwise self-represented party on a limited basis . It indicates when notice of limited representation must be provided to other parties and the court . A notice “ must state precisely the scope of the limited appearance ” but is not required when an attorney merely prepares “ pleadings , briefs , and other documents ” for a party .
Under Rule 5 , when an attorney has served a notice of limited representation under Rule 11 ( e ), service of documents on that attorney is not required except for documents within the scope of the limited representation .
Rule 11.2 explains an attorney who serves a notice of limited representation is not required to formally withdraw upon completion of the activity covered by the notice . Instead , the attorney must file and serve a certificate of completion of limited appearance . After the filing , the attorney has no further obligation to represent the client .
All of North Dakota ’ s court rules may be accessed on the Supreme Court website , www . ndcourts . gov .
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