ND Bar Ethics and Professional Responsibility 2 — Questions and Answers
Question 1: A North Dakota attorney represents a client in a contract dispute. The opposing party contacts the attorney directly to discuss settlement. What must the attorney do?
- Accept the communication since settlement discussions benefit all parties
- Decline to communicate with the opposing party and refer them to their counsel (Correct answer)
- Report the contact to the court immediately
- Obtain written consent from both clients before responding
Correct answer: Decline to communicate with the opposing party and refer them to their counsel
Under NDRPC Rule 4.2, an attorney may not communicate about the subject of representation with a person the attorney knows to be represented by another lawyer without that lawyer's consent.
Question 2: An attorney in North Dakota discovers mid-trial that her client has presented false testimony. The client refuses to correct it. What is the attorney's obligation?
- Maintain client confidentiality and proceed with the case
- Move for a mistrial to avoid prejudice to the opposing party
- Take reasonable remedial measures including disclosure to the tribunal if necessary (Correct answer)
- Withdraw immediately without informing the court of the reason
Correct answer: Take reasonable remedial measures including disclosure to the tribunal if necessary
NDRPC Rule 3.3 requires an attorney who knows a client has offered false evidence to take reasonable remedial measures, including disclosure to the tribunal, even if this requires revealing client confidences.
Question 3: A North Dakota lawyer wants to enter into a business transaction with a client. Under the NDRPC, which condition is NOT required for this to be permissible?
- The terms must be fair and reasonable to the client
- The client must be advised in writing to seek independent counsel
- The transaction must be approved by the state bar (Correct answer)
- The client must give informed consent in a signed writing
Correct answer: The transaction must be approved by the state bar
NDRPC Rule 1.8(a) requires fair terms, written disclosure, advice to seek independent counsel, and written informed consent — but bar approval is not required.
Question 4: Attorney Jones receives a call from a prospective client who describes a legal matter. Jones realizes the matter involves the opposing party in a case Jones is currently handling. What should Jones do?
- Accept the representation since it would benefit the existing client
- Decline the representation due to a conflict of interest (Correct answer)
- Accept the representation and disclose it to both parties later
- Refer the prospective client to a partner in the firm
Correct answer: Decline the representation due to a conflict of interest
Under NDRPC Rule 1.7, a lawyer may not represent a client if the representation is directly adverse to another current client without informed consent from both clients.
Question 5: A North Dakota attorney is asked to write an opinion letter about a complex tax matter outside her area of expertise. What is her professional responsibility?
- Decline the matter entirely since she lacks expertise
- Accept the matter only if she associates with or consults a competent attorney
- Accept the matter and research it thoroughly on her own
- Either associate with a competent attorney, refer the client, or decline the matter (Correct answer)
Correct answer: Either associate with a competent attorney, refer the client, or decline the matter
NDRPC Rule 1.1 requires competence; a lawyer may achieve it through study, association with competent counsel, or by referring the client — but incompetent representation is not an option.
Question 6: Under North Dakota's IOLTA rules, which of the following client funds must be placed in a trust account?
- Funds that clearly belong to the attorney as earned fees
- Funds advanced for future costs that have not yet been incurred (Correct answer)
- Settlement proceeds the client has authorized the attorney to retain as fees
- Retainers that have been fully earned upon receipt
Correct answer: Funds advanced for future costs that have not yet been incurred
NDRPC Rule 1.15 requires that unearned client funds and funds advanced for future costs be held in a trust account separate from the attorney's own funds.
Question 7: A North Dakota lawyer learns that a colleague in her firm is violating the NDRPC in ways that raise a substantial question about the colleague's honesty. What must the lawyer do?
- Report the misconduct to the client affected by it
- Inform the firm's managing partner and take no further action
- Report the conduct to the appropriate professional authority (Correct answer)
- Document the misconduct internally and monitor the situation
Correct answer: Report the conduct to the appropriate professional authority
NDRPC Rule 8.3 requires a lawyer who knows another lawyer has committed a violation raising a substantial question as to honesty or fitness to report it to the appropriate professional authority.
ND Bar Ethics and Professional Responsibility 2
A North Dakota attorney represents a client in a contract dispute.
The opposing party contacts the attorney directly to discuss settlement.
What must the attorney do?