M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Rule 11.1, N.D.R.Ct., Nonresident Attorneys
The Committee has a request from the State Bar Board for amendments to Rule 11.1, N.D.R.Ct., which governs the appearance of nonresident attorneys in North Dakota court proceedings. The amendments require a nonresident attorney to file a motion to obtain court permission to appear in a North Dakota court proceeding. The amendments also require a $100 filing fee to be remitted to the State Bar Board for funding the attorney disciplinary system.
The authority for Rule 11.1 is found in N.D.C.C. § 27-02-07 which provides: "The supreme court of this state may make all necessary rules for the restraint of persons unlawfully engaging in the practice of the law in this state." The prohibition against the unauthorized practice of law is found in N.D.C.C. § 27-11-01:
Practicing law and serving on courts of record without certificate of admission and without payment of annual license fee prohibited--Penalty. Except as otherwise provided by state law or supreme court rule, a person may not practice law, act as an attorney or counselor at law in this state, or commence, conduct, or defend in any court of record of this state, any action or proceeding in which he is not a party concerned, nor may a person be qualified to serve on a court of record unless he has:
1.Secured from the supreme court a certificate of admission to the bar of this state; and
2.Secured an annual license therefor from the state bar board.
Any person who violates this section is guilty of a class A misdemeanor.
The language in the rule appears to be narrower than the statute. The statute addresses the unauthorized practice of law in general. The rule addresses an appearance in a court proceeding.
What is the effect of the proposal, if any, on depositions taken within the state for cases pending outside the state? Is a deposition a court proceeding? Will a motion have to be filed to obtain the court's permission to take the deposition? Will a $100 filing fee be required to be paid?
At least one court has ruled a deposition is a proceeding requiring nonresident attorneys to move the court for admission pro hac vice. See Hoechst Celanese v. National Union, 623 A.2d 1099, 1113-14 (Del. Super. 1991).
Other courts have ruled taking a deposition constitutes the unauthorized practice of law. State v. Foster, 674 So.2d 747, 749 (Fla. App. 1 Dist. 1996); Mahoning Cty. Bar Assn. v. Rector, 608 N.E.2d 866, 869 (Ohio Bd. Unauth. Prac. 1992).
In Minnesota, a nonresident attorney may appear if a lawyer admitted in Minnesota is also present at the first appearance. Rule 5, Minn.Gen.R.Prac. However, the state in which the nonresident attorney is licensed to practice must likewise grant permission to members of the state bar of Minnesota. M.S.A. § 481.02. Will the adoption of proposed Rule 11.1 inhibit the admission pro hac vice of North Dakota attorneys in Minnesota as a result of the $100 filing fee?
South Dakota and Montana both require a $100 fee to be filed before a nonresident attorney may appear. In addition, under Montana's new rules, effective November 17, 1998, no attorney or firm may appear pro hac vice in more than two pending actions or proceedings in any state court in Montana.
Should Rule 11.1, N.D.R.Ct., be recommended for adoption?