Friday, June 8, 2012

Confidentiality And Defending Oneself In Bar Proceedings

The North Dakota Supreme Court has suspended two law partners for nine months for conduct involving mishandling of fees paid from their trust account.

The court summarized its holding:

Evidence that the balance of a trust account fell below the total amount held in
trust supports a finding that the lawyer violated N.D.R. Prof. Conduct

A lawyer is permitted to disclose information related to the
representation of a client when the lawyer is defending himself or herself in
any proceeding concerning the lawyer's representation of the client, including
disciplinary proceedings initiated by a third party.

A lawyer is required to comply with a hearing panel's order to disclose information related to the
representation of a client during a disciplinary proceeding after the lawyer
asserts all nonfrivolous claims to protect the confidential information.

The attorneys had objected to compelled discovery in aid of the bar investigation on confidentiality grounds.

The court held:

In this case, the hearing panel granted Disciplinary Counsel's motion to compel
but also limited the discovery request to help preserve client confidentiality.
The hearing panel's order on the motion to compel was "law" that required Dyer
and Summers to disclose the requested information, and Dyer and Summers were permitted to disclose the requested information under Rule 1.6(c)(5). Although Rule 1.6(c)(5) states a lawyer may reveal information relating to the representation of a client to comply with
other law or court order, the lawyer does not have discretion in deciding
whether to disclose the information because disclosure is required under other
law. See Adams v. Franklin, 924 A.2d 993, 997 (D.C. 2007). The hearing panel has authority to order the parties to disclose information for discovery in disciplinary proceedings, the hearing panel's order is law, and the parties are required to comply with the discovery orders.

(Mike Frisch)

Bar Discipline & Process | Permalink

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