In accepting new cases , the lawyer should explain the upcoming leave of absence and obtain consent for another attorney to represent the client during the lawyer ’ s leave . See id . at cmt . 6 (“ An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible .”)
The lawyer also has a duty to communicate to existing clients that the lawyer intends to take a leave of absence and that she will not be reasonably available to respond to the client ’ s requests during that period of time . Id . at 1.16 ( cmt . I ).
It is assumed for purposes of this opinion the lawyer does not have another attorney in her firm that is licensed in North Dakota , although this is not stated by the lawyer . The attorney should retain or contract with other lawyers outside her firm that are licensed in North Dakota during her absence to handle her North Dakota case load . Id . at I . I ( cmt . 7 , 8 ). Comments 7 and 8 to Rule I . I of the N . D . R . Prof . Conduct are instructive on retaining or contracting with other lawyers outside the lawyer ’ s own firm . The lawyer must obtain the client ’ s consent and reasonably believe the other lawyer ’ s services will contribute to the competent and ethical representation of the client . Id . at cmt . 7 . The lawyer ’ s discussions with the client and the other attorney should include the scope of the representation , communications with the client , fee sharing , confidentiality , and the other professional obligations . Id . In particular , the lawyers should consult regarding the scope of their respective obligations and allocation of responsibility , including matters before a tribunal which may have additional obligations beyond the scope of the Rules of Professional Responsibility . Id . at cmt . 8 .
Only if a lawyer is unable to find another lawyer licensed under North Dakota law to assume her North Dakota case load , or is unable to obtain her client ’ s consent , and the lawyer will be unable to fulfill her professional duties to the client , then the lawyer may withdraw from representation of the client if it can be accomplished without causing a material adverse effect on the client ’ s interests or if other good cause for withdrawal exists . Id . at l . l 6 ( b )( I , 7 ). If the lawyer is not permitted to withdraw by order of a tribunal or if there would be a material adverse effect on the client ’ s interests , the lawyer must continue the representation of the client notwithstanding good cause for termination . Id . at 1.16 ( c ). If the lawyer is permitted to withdraw , then the lawyer must take reasonable steps to protect the client ’ s interests , allowing for the reasonable notice to the client , time to employ other counsel , surrendering of papers and property , and refunding the advance payment of fees or expenses not earned or incurred . Id . at l . 16 ( e ). would be violations to the Rules of Professional Conduct . Failing to adequately communicate with clients , failure to appear at a hearing , failure to adequately prepare and respond to motions violated the rules of professional conduct requiring attorney to provide competent representation , to abide by clients ’ decisions , to consult with client , to act with reasonable diligence , to reasonably consult with client , to promptly comply with clients ’ reasonable requests for information . Matter of Disciplinary Action Against Bruhn , 2018 ND 186,915 N . W . 2d 850 ( citing N . D . R . Prof . Conduct I . I , l . 2 ( a ), 1.3 , 1.4 , 3.3 ). Similarly , the failure to obtain the clients ’ informed consent prior to referring the client to another attorney can result in violation of the Rules of Professional Conduct . Id .
CONCLUSION A leave of absence for maternity leave is not a physical condition that materially impairs the lawyer ’ s ability to represent the client . However , a lawyer must ensure that the lawyer effectively communicates with her clients that she will not be available during her maternity leave . She should make arrangements with other counsel licensed in North Dakota to handle her North Dakota matters while she is unable to assist those clients . She must obtain the informed consent of her clients for another attorney to handle her clients ’ North Dakota legal matters in her absence . If she is unable to either obtain her client ’ s consent for another attorney licensed in North Dakota to handle her North Dakota case load or is unable to obtain another attorney licensed in North Dakota to handle her case load , she may seek to withdraw from representation of the clients , only if withdrawing from representation would not cause a material adverse effect on the client or with permission of the tribunal .
This opinion was drafted by Katrina Turman Lang and was unanimously approved by the Ethics Committee on the 27th day of October , 2020 .
This opinion is provided under Rule l . 2 ( B ), North Dakota Rules of 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 .
If the lawyer fails to adequately communicate with her clients , fails to arrange for other counsel , fails to obtain her client ’ s consent to refer the client ’ s matter to another attorney , or fails to withdraw from representation of the client during her absence , then there
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