The State Bar Association of North Dakota Fall 2015 Gavel Magazine | Page 37

STATE BAR ASSOCIATION OF NORTH DAKOTA

ETHICS COMMITTEE OPINION NO. 15-07
This opinion is advisory only

QUESTION PRESENTED
The Ethics Committee has been asked to render its opinion on
whether Attorney A may ethically withdraw without leave of
court, or must Attorney A file the case (incurring the cost of the
filing fee) and bring a motion for leave to withdraw?

DISCUSSION

OPINION

Specifically, Rule 11.2(a) of N.D.R.Ct. provides an attorney’s
appearance for a party may only be withdrawn upon leave of court.
Generally, appearance can be defined as, “a coming into court
by a party to a suit, either in person or through an attorney”, or
“the voluntary submission to a court’s jurisdiction”. In this case,
by serving a summons and complaint, Attorney A is making an
appearance by voluntarily submitting himself and his client to that
court’s jurisdiction.

Based on the facts presented below, Attorney A must file the case,
incurring the cost of a filing fee, and bring a motion for leave to
withdraw. Withdrawal without leave of court would be in violation of
Rule 11.2 of N.D.R.Ct., and therefore also in violation of Rule 3.4(c) of
N.D.R. Prof. Conduct.

APPLICABLE NORTH DAKOTA RULES OF
PROFESSIONAL CONDUCT

Rule 3.4(c), N.D.R. Prof. Conduct: Fairness to Opposing Party and
Counsel Rule 11.2, N.D.R.Ct: Withdrawal of Attorneys

FACTS PRESENTED

Attorney A serves a summons and complaint which is answered by
Party B’s attorney. After the summons and complaint are served,
Attorney A’s client moves out of the jurisdiction, stops paying Attorney
A’s attorney’s fees, and/or stops communicating, prompting Attorney A
to seek to withdraw.

Rule 3.4(c) of N.D.R. Prof. Conduct prohibits a lawyer from
knowingly disobeying an obligation under the rules of a tribunal
except for an open refusal based on an assertion that no valid
obligation exists. One such rule is N.D.R.Ct. 11.2.

Further, reasonable notice of the motion for leave to withdraw
must be given by personal service, by registered or certified mail, or
via a third-party commercial carrier providing a traceable delivery,
directed to the party at the party’s last known business or residence

continued on page 38

LAWYER DISCIPLINE, continued
failing to reasonably consult with the clients or keep them reasonably
informed; N.D.R. Prof. Conduct Rule l.5(a), Fees, by charging
unreasonable fees for his services, including charges for overhead
items; N.D.R. Prof. Conduct 1.15(a), Safekeeping Property, by
failing to hold retainers separate from his own property in an IOLTA
account; and N.D.R. Prof. Conduct 1.16(e), Declining or Terminating
Representation, by failing to take steps to refund any advanced payment
of fee or expense that had not been earned or incurred and by failing to
surrender client files and papers.
The Supreme Court accepted the findings of fact, conclusions of law, and
recommendations of the hearing panel, and ordered Matson suspended
from the practice of law in North Dakota for six months and one day
effective September 15, 2015. Matson must pay the costs and expenses
assessed in the amount of $4,485.43 in the previous disciplinary matter
within 30 days and pay the costs and expenses in these proceedings in
the amount of $6,287.52 within 60 days. As conditions of reinstatement,
Matson must take a continuing legal education course on the
rules of professional conduct, pay the costs and expenses ordered, and
reimburse the Client Protection Fund for any payments to his clients.

The Evenson Sanderson, PC Law Firm in Bismarck is
seeking an attorney with at least two years of civil litigation
experience.
Applicants must be admitted to practice law in state and
federal court in North Dakota, possess strong writing and
research skills and a strong academic record.
Evenson Sanderson is prepared to offer a qualified
candidate a very competitive salary and benefit package, as
well as an opportunity for a stake in the future of its busy
practice.
Interested attorneys should send a cover letter, a current
resume, a copy of their law school transcript and a
significant writing sample to the attention of:

Brenda Vitek

Evenson Sanderson, PC

103 S. 3rd St.

Bismarck, ND 58503
All applications will be held in confidence.

FALL 2015

37