The State Bar Association of North Dakota Summer 2015 Gavel Magazine | Page 35

CONCLUSION

Information about what contacts have
occurred between Public Defender and
Defendant constitutes information relating
to the representation under Rule 1.6(a),
which Public Defender must not reveal
unless an exception applies. To respond to
an order by the Court, Public Defender has
applicable exception under Rule 1.6(c) and
may disclose such information to the extent
it’s not privileged under N.D.R.Ev. 502.
Public Defender is not necessarily barred
from continuing to represent Defendant
in existing case. The given facts do not
establish that Public Defender’s ability to
represent Defendant would be adversely
affected by Public Defender’s own interests
or responsibilities to a third person. Thus
there is not necessarily a conflict of interest
under Rule 1.7(a).
Further, Public Defender is not necessarily
barred from representing Defendant in
new bail jumping case. The given facts do
not show that Public Defender would be a
necessary witness in the case or that Public
Defender’s testimony would relate to a
contested issue. Thus there is not necessarily
any bar to representation under Rule 3.7(a).
This opinion was drafted by Cherie Clark
and was unanimously approved by the Ethics
Committee on the 29th day of June, 2015.
This opinion is provided under Rule 1.2(8),
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.

STATE BAR ASSOCIATION OF NORTH DAKOTA

ETHICS COMMITTEE OPINION NO. 15-05
This opinion is advisory only

QUESTION PRESENTED: The requesting Attorney represented Client in a

divorce action. Client received certain household goods and furnishings pursuant
to the judgment in the divorce action. Attorney was asked, and agreed, to pick up
Client’s tangible personal property and store the items “temporarily” until Client
could return from out-of-state to take possession of the items. The Attorney
has unsuccessfully attempted multiple times to contact Client. The Attorney did
speak with Client on at least one occasion and Client agreed to make arrangement
to take delivery of the property. But Client has not made arrangements to take
delivery of the property and is now unreachable.
The Ethics Committee has been asked to render opinions on the following: Must
Attorney continue to store Client’s private property? What ethical obligations to
the Client does Attorney have in relation to personal property the Attorney agreed
to store “temporarily?”
Client’s cell phone and e-mail multiple
OPINION
times. Attorney does have Client’s mother’s
Based on the facts presented below, Attorney
cell phone and was able to contact her on
must continue to store Client’s tangible
one occasion in February 2015. She stated
personal property.
that Client was in substance abuse treatment
and gave Attorney a number to call to get
APPLICABLE NORTH DAKOTA
a hold of Client. Client’s mother also was
RULES OF PROFESSIONAL
very clear that this was “not her problem” and
CONDUCT
that Attorney needed to communicate with
Rule 1.15, N.D.R. Prof. Conduct:
Client.
Safekeeping Property and Professional
Liability Insurance Disclosure
Attorney called the number provided by
Rule 1.3, N.D.R. Prof. Conduct: Diligence
the Client’s mother and spoke with
Client. Client was apologetic, stating several
FACTS PRESENTED
times in the phone call: “I thought my
Attorney represented a Client in a divorce
parents had taken care of that.” Client also
action. A settlement agreement was reached
stated: “I will take care of it right away,”
in the divorce action and was reduced to
“sorry about that,” and “I will call you back
a Judgment. The Judgment provided that
later today after talking to my counselor
the Client was to receive certain household
about getting out of here to take care of it.”
goods and furnishings in the spouse’s
Attorney understood from speaking with
possession. The Judgment went on to state
Client that Client was going t