ND Bar Ethics and Professional Responsibility 3 — Questions and Answers
Question 1: A North Dakota attorney's client instructs her to pursue a claim the attorney believes is frivolous. What is the attorney's proper course of action?
- File the claim as instructed because the client controls the objectives of representation
- Refuse to file and withdraw from the representation
- File the claim only if she can make a non-frivolous argument for changing existing law (Correct answer)
- Seek court permission before filing any potentially frivolous claim
Correct answer: File the claim only if she can make a non-frivolous argument for changing existing law
NDRPC Rule 3.1 prohibits bringing a frivolous claim, but permits arguments for modification of existing law if a non-frivolous basis exists; the attorney should not file a purely frivolous claim.
Question 2: An attorney in North Dakota receives a $10,000 settlement check payable to both the attorney and the client. The attorney is owed $4,000 in fees. How should the attorney handle these funds?
- Deposit the full amount in the trust account, then disburse $4,000 to herself and $6,000 to the client (Correct answer)
- Deposit $6,000 in trust and $4,000 in her operating account simultaneously
- Request the client endorse the check directly to the attorney before depositing
- Hold the entire check until the client signs a fee agreement confirming the $4,000 owed
Correct answer: Deposit the full amount in the trust account, then disburse $4,000 to herself and $6,000 to the client
NDRPC Rule 1.15 requires depositing mixed funds in trust, then promptly disbursing the client's portion and transferring earned fees to the attorney's account.
Question 3: A North Dakota lawyer represents a corporation. The lawyer discovers that a corporate officer is about to commit fraud that will harm the company. The officer instructs the lawyer to stay silent. What should the lawyer do?
- Follow the officer's instruction since the officer is the lawyer's point of contact
- Report the fraud to law enforcement immediately
- Refer the matter to higher authority within the corporation (Correct answer)
- Withdraw from representation without disclosing the reason
Correct answer: Refer the matter to higher authority within the corporation
NDRPC Rule 1.13 directs a lawyer who knows an officer is acting contrary to the organization's interests to refer the matter up the organizational ladder to prevent harm to the client entity.
Question 4: Under the North Dakota Rules of Professional Conduct, which communication about legal services is presumed to be false or misleading and is prohibited?
- Stating the attorney's area of practice on a website
- Claiming specialization in an area without certification by an approved organization (Correct answer)
- Listing the attorney's bar admission date in an advertisement
- Describing past results in a testimonial with an appropriate disclaimer
Correct answer: Claiming specialization in an area without certification by an approved organization
NDRPC Rule 7.4 prohibits stating that a lawyer is a specialist unless certified by an organization approved by the state bar or the ABA.
Question 5: A lawyer withdraws from representing a client in a pending litigation matter. Which of the following is NOT required upon withdrawal?
- Taking steps to avoid foreseeable prejudice to the client
- Giving reasonable notice to the client
- Surrendering papers and property to which the client is entitled
- Refunding all fees paid, regardless of work completed (Correct answer)
Correct answer: Refunding all fees paid, regardless of work completed
NDRPC Rule 1.16 requires avoiding prejudice, giving notice, and surrendering client property, but only unearned fees must be refunded — not all fees paid.
Question 6: A North Dakota attorney receives confidential information from a prospective client during an initial consultation but declines the representation. May the attorney later represent an adverse party in the same matter?
- Yes, because no attorney-client relationship was formed
- Yes, provided the prospective client consents in writing
- No, unless the received information is not materially adverse to the prospective client (Correct answer)
- No, under any circumstances once confidential information is received
Correct answer: No, unless the received information is not materially adverse to the prospective client
NDRPC Rule 1.18 prohibits representing an adverse party if the lawyer received information from the prospective client that could be significantly harmful, unless informed consent is obtained or the information is not materially adverse.
Question 7: Which of the following statements about North Dakota attorney advertising is CORRECT under the NDRPC?
- Attorneys may pay referral fees to non-lawyers who send clients to them
- Attorneys may not use actors or dramatizations in advertisements under any circumstances
- Attorneys may advertise truthful information about their services (Correct answer)
- Attorneys may not advertise on social media platforms
Correct answer: Attorneys may advertise truthful information about their services
NDRPC Rule 7.1 permits attorneys to advertise as long as the communications are not false or misleading; truthful advertising of services is allowed.
ND Bar Ethics and Professional Responsibility 3
A North Dakota attorney's client instructs her to pursue a claim the attorney believes is frivolous.
What is the attorney's proper course of action?