STATE BAR ASSOCIATION OF NORTH DAKOTA ETHICS COMMITTEE OPINION NO . 2020-01
THIS OPINION IS ADVISORY ONLY
QUESTION PRESENTED Is maternity leave a physical condition that impairs an attorney ’ s ability to represent a client and withdraw from court cases while on maternity leave for seven months ?
APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT Several of the North Dakota Rules of Professional Conduct are applicable to this inquiry including Rule 1.1 on competence , 1.3 on diligence , 1.4 on communication , and 1.16 on declining or terminating representation .
Rule 1.1 on competence states : “ A lawyer shall provide competent representation to a client . Competent representation requires the legal knowledge , skill , thoroughness and preparation reasonably necessary for the representation .” N . D . R . Prof . Conduct Rule 1.1 . The applicable comments provide direction in retaining and contracting with other lawyers :
Before a lawyer retains or contracts with other lawyers outside the lawyer ’ s own firm to provide or assist in the provision of legal services to a client , the lawyer should ordinarily obtain consent from the client and must reasonably believe that the other lawyers ’ services will contribute to the competent and ethical representation of the client . See also Rules 1.2 ( allocation of authority ), 1.4 ( communication with client ), 1 . S ( e ) ( fee sharing ), 1.6 ( confidentiality ), and 5.5 ( a ) ( unauthorized practice of law ). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer ’ s own firm will depend upon the circumstances , including the education , experience , and reputation of the nonfirm lawyers ; the nature of the services assigned to the nonfirm lawyers ; and the legal protections , professional conduct rules , and ethical environments of the jurisdictions in which the services will be performed , particularly relating to confidential information :
When lawyers from more than one law firm are providing legal services to the client on a particular matter , the lawyers ordinarily should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them . See Rule 1.2 . When making allocations of responsibility in a matter pending before a tribunal , lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules . N . D . R . Prof . Conduct Rule 1.1 ( cmt . 7,8 )
Rule 1.3 on diligence requires a lawyer to act with reasonable diligence and promptness in representing a client . N . D . R . Prof . Conduct Rule 1.3 .
Also applicable to this inquiry is the lawyer ’ s duties of communication , including making reasonable efforts to keep the client reasonably informed about the status of a matter , and promptly comply with the client ’ s reasonable requests for information . N . D . R . Prof . Conduct Rule l . 4 ( a )( 3-4 ).
Lastly , Rule 1.16 , declining or terminating representation , should be addressed , focusing on whether declining or terminating representation is either mandatory or permissive with the facts presented . N . D . R . Prof . Conduct Rule 1.16 . Subsection ( a )( 2 ) is the specific rule raised by the attorney , which would require mandatory withdrawal , states : “ Except as stated in paragraph ( c ), a lawyer shall not represent a client or , where representation has commenced , shall seek to withdraw from the representation of a client if the lawyer ’ s physical or mental condition materially impairs the lawyer ’ s ability to represent the client .” N . D . R . Prof . Conduct Rule 1.16 ( a ) ( 2 ). Permissive withdrawal is also applicable to this attorney ’ s request under 1.16 ( b ), the applicable portion which states : “... a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interest of the client ; or other good cause for withdrawal exists .” N . D . R . Prof . Conduct Rule 1.16 ( b )( l , 7 ).
FACTS PRESENTED The attorney practices immigration law in another state , but is licensed in North Dakota . She indicates she intends to take a leave of absence / maternity leave for seven months following the birth of her child .
DISCUSSION Taking maternity leave for an extended period of time is not a physical condition that impairs an attorney from representing clients and requires her to withdraw under North Dakota Rule of Professional Conduct Rule 1.16 . See Crowston v . Jamestown Public School Dist . No . I , 335 N . W . 2d 775 , 779 ( N . D . 1983 ) ( upholding trial court finding that maternal leave is to further the maternal bonding process between mother and child and if mother is relatively healthy and has an uncomplicated delivery , she may be able to perform a sedentary job within two weeks after giving birth ). However , this lawyer has several ethical duties to clients that should be considered prior to her absence and may require withdrawal in the event she is not able to find an attorney to handle her existing matters , or the client does not consent to another attorney handling their legal matters during the attorney ’ s maternity leave .
Prior to taking the leave of absence , the lawyer should take caution in accepting new cases to limit her case load during her absence . A lawyer ’ s workload must be controlled so each matter can be handled competently . N . D . R . Prof . Conduct Rule 1.3 ( cmt . 2 ). A lawyer should not accept representation in a matter unless it can be performed competently , promptly , and to completion . Id . at 1.16 ( citing Rules 1.2 ( c ) and 6.5 ; Rule 1.3 at cmt . 4 ).
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