August 2010 Gavel - State Bar Association of North Dakota

Transcription

AUGUST 2010 • VOLUME 57, NUMBER 3
CALENDAR OF EVENTS &
CLE SEMINARS
October 8
UND Homecoming Seminar
Grand Forks
October 22
Administrative Law Seminar
Kelly Inn, Bismarck
November 18-19
Family Law Section Seminar
Kelly Inn, Bismarck
December 2-3
Real Property, Probate & Trust Law
Section Seminar
Ramada Plaza Suites, Fargo
Additional seminars will be added
throughout the year. All dates subject
to change.
Official Publication of the State Bar Association of North Dakota
FEATURES
No Stranger to SBAND
Sandi Tabor Begins New Role as President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Children’s Center Benefits from Friendly Rivalry Between Fargo Law Firms . . . . . . . . . . . . . . . 6
111th SBAND Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Know Your SBAND Board Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Big Muddy Lawyers Deliver Food, Information at Bismarck Community Meal Program . . . . 21
Young Lawyer Showcase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
DEPARTMENTS
Professional Transitions and Professional Values
by Kathryn Rand, University of North Dakota Law School . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Electronically Stored Information: The Overview
by Daniel J. Crothers, Justice, North Dakota Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ABA Report:“Mr. Hill Goes to San Francisco”
Assuming a Position on the ABA Board of Governors
by James Hill, SBAND Delegate to the ABA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Memorials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Bar Foundation Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Discipline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
News & Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
State Bar Association of North Dakota Officers
President: Jane Dynes, Fargo
President-Elect: Sandi Tabor, Bismarck
Secretary-Treasurer: Michael Williams, Fargo
Immediate Past President: David Maring, Bismarck
ABA Delegate: James S. Hill, Bismarck
Cover photo: Early summer morning at Lake
Tschida, by photographer and SBAND
President Sandi Tabor.
The Gavel
August 2010
P.O. Box 2136
Bismarck, ND 58502
701-255-1404
Toll free: 1-800-472-2685
www.sband.org
Board of Governors:
Robert Keogh, Dickinson; Hon. Gail Hagerty, Bismarck;
Asmunder S. Benson, III, Bottineau; Fallon Kelly, Lisbon;
Nancy Morris, Fargo; Kristen Pettit, Grand Forks;
Dennis E. Johnson,Williston; Petra Mandigo Hulm,Young Lawyer Rep;
Kathryn Rand, Dean, UND Law School, Grand Forks
The Gavel is published by the State Bar Association of North Dakota
504 N.Washington St., Bismarck, ND 58501
E-mail The Gavel: [email protected]
Statements or opinions expressed herein are those of the authors, and do not necessarily reflect those of the State Bar Association of
North Dakota, its officers, Board of Governors or staff. No endorsement of any product or service offered by any advertisement is
intended or implied by publication in The Gavel. Contributions to The Gavel are welcome, but the right is reserved to select material
to be published. All members of the Association receive The Gavel as part of their annual fees. Annual subscription price to nonmembers is $25. Third class postage paid at Bismarck, North Dakota, 58502.
1
PRESIDENT’S MESSAGE
By Sandi Tabor
President, SBAND
Coming from an SBAND Annual Meeting
always brings with it a list of great ideas to
improve one’s practice and a sense of purpose for what the State Bar Association can
be to its members and to the citizens of
North Dakota. This year’s meeting was no
different. Of the course the success of the
annual meeting is directly attributable to
the dedication of the SBAND staff and the
exuberance of the planning committee.
Many thanks to the planning committee
… Annette Bendish (Chair), Scott Strand
(Co-Chair), Mitch Armstrong, Lee Ann
Barnhardt, Julie Buechler Boschee, Carey
Goetz, Kara Johnson, Tiffany Johnson,
Brent Kary, Jessica Knutson, Petra Mandigo
Hulm, Doug Murch, Zach Pelham, Christina
Sambor and Tony Weiler … for their
efforts at making it an annual meeting to
remember.
An interesting report during the Annual
Meeting focused on some significant
capital improvements needed at the UND
School of Law. Law School Dean Kathryn
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Rand discussed the challenges to continued law school accreditation if renovations
to the existing facility and a new addition
to the school are not approved by the 2013
school year.
While a new law library was constructed
in 1973, no significant changes have been
made to the original facility since its construction in 1922. Unlike fine wine, in
buildings “age” brings technology issues,
ADA accessibility problems and a general
lack of adequate space conducive to education in the 21st century. Law school curricula now emphasize skills and professionalism with courses built on learning experiences in both “real world” and simulation
environments that replicate actual law
practice conditions – a far cry from what
many of us experienced when we attended
large classroom lectures with the
occasional opportunity to participate in the
Legal Aid Clinic.
In her report Dean Rand noted that while
the Law School’s legal education program
has evolved, its facility has not. The most
recent reaccreditation report found the Law
School physical facility to be “less than adequate” and characterized an addition to
and renovation of the existing law school
building as “critical to the success and
future” of the School of Law. It is reasonable
to read into this sentence that future
accreditation is on the line.
What are some of the issues that must be
addressed? Portions of the school are not
ADA compliant, including some classroom
space. Instructional technology lags behind
both educational and legal practice standards in all but one classroom. Classrooms
are not designed to accommodate the types
of educational settings now considered the
norm for legal education. Finally, throughout the Law School and law library there is
insufficient space for individual and group
study.
Finding support for a capital construction
project nearing $10 million is no small
task. However, the Law School team managed to convince the University of North
Dakota to rank it as the # 1 capital
improvement project and to have it ranked
as the # 4 project by the University System.
Unfortunately, the project was eliminated
from the State Board of Higher Education’s
list of capital projects at the Board’s June
meeting.
This decision by the Higher Education
Board will make the appropriation mountain almost insurmountable to overcome
during the 2011 legislative session. But
rather than hang ours heads in defeat, now
is the time for North Dakota lawyers to
remind their respective legislators about
how important it is for the State to maintain an accredited law school in the state.
Some may question the importance of
accreditation, but as our lawyer population
continues to age ever closer to those glorious retirement years, we will need young
lawyers to continue the strong professional
legal community our state now experiences. Demographic data developed by the
ND Supreme Court reveals some stark and
somewhat ominous information about the
aging of our attorney population. For
instance, 26 counties in North Dakota have
no attorneys under the age 40 and 11 of
those counties have no attorneys under the
age of 60. There are five counties in North
Dakota with no attorneys.While some may
joke (in poor taste might I add) that no
attorneys in a county is no great loss …
we all know that access to justice includes
access to attorneys and the loss in those
counties is very real.
This brings me back to why accreditation
is so important for the Law School. Quality
students are not likely to seek admission at
a nonaccredited law school. If accreditation
becomes an issue for the UND School of
Law, students will attend out-of-state
schools. In turn, many will find positions
out-of-state as well. The quality of our profession will suffer and as important, so will
the citizens of North Dakota.
So in the end, what might someone who
is concerned about the UND School of
Law’s future do? First, contact the Law
School and get more information regarding
the issue. Second, contact the attorney
members of the State Board of Higher
Education (Jon Backes, Grant Shaft and
Richie Smith) and encourage them to urge
the Board to reconsider the removal of the
Law School project from the capital
improvements list.And finally, contact your
legislators and tell them how important the
Law School is to our state.
The Gavel
August 2010
INTERVIEW WITH SANDI TABOR
No Stranger To SBAND
Sandi Tabor Begins New Role as President
Over the years, professional organizations
like SBAND draw many members to leadership positions. The level of involvement most
are able to give is usually determined by the
other professional and personal demands in
their lives.
There are exceptions, and new SBAND
President Sandi Tabor is one of them. For
nearly 30 years, and despite many other professional and personal commitments, Tabor
has remained a steady presence, bringing
energy, vision and leadership to SBAND in
all that she has done.
A Devils Lake native, Tabor attended the
University of North Dakota, where she
earned a bachelor degree and went on to the
School of Law, earning her J.D. in 1981. Her
early career included positions at Knife River
Coal Mining Company, MDU Resources
Group Inc and an environmental engineering
in San Diego. In 1992 she returned home to
become executive director of SBAND. In 1996
she became immersed in Bismarck’s city
government when she was elected to the
Bismarck City Commission, serving there for
12 years. In 2000, she became the Chief
Deputy Attorney General for the State of
North Dakota, a position she held for six
years.
Her involvement in Bar Association activities during these years has included chairing
the Legislative Committee, the Indigent
Defense Task Force, the Joint Attorney
Standards Committee and the Pro Bono Task
Force. She also played an active role on the
Supreme Court’s Commission on Gender
Fairness, and two Judicial Planning
Commissions.
Since 2006, Tabor’s professional focus has
been directed toward solving some of the
state’s most complex energy issues in her
positions as vice president of government
affairs for the Lignite Energy Council and as
the director of the North Dakota
The Gavel
August 2010
Sandi Tabor with her nieces, left to right: Tia Tabor, Ali Johnston and Ashley Johnston.
Transmission Authority. Her involvement in
SBAND has remained steadfast, most recently serving on the Board of Governors and
now as President.
In the interview below, Tabor shares her
views on being involved and making a
difference.
Corporations section … again a Randy Lee
orchestration.
Before “mentoring” was a buzz word, Randy
Lee knew the importance of getting young
lawyers involved in the profession and he
was good at doing so.
GAVEL: As a young lawyer, what drew you
to an early involvement in SBAND?
GAVEL: When you were executive director
from 1992 to 1999, what were some of the
major issues facing SBAND?
TABOR: The simple answer is the late
Professor Randy Lee who taught professional
responsibility to many lawyers in North
Dakota during his 30 years on the UND Law
School faculty from 1975 to 2005. I had been
out of law school for about two years when
Randy called and asked me why I did not go
to the State Bar annual meetings. My immediate response was that I did not know anyone who attended the annual meetings.
Always known for a quick response, Randy
said,“You know me.” So I dutifully registered
and attended my first annual meeting. On
Friday when I left the meeting I was the
newly elected chair of the Business and
TABOR: This question is taxing my feeble
memory … at the time TV shows about law
firms were all the rage … LA Law, The
Practice to name a few. These shows often
portrayed lawyers as greedy, unethical
creeps. And if that was not enough they also
suggested that the legal system was corrupt
and that clients could magically get their way
with the wave of a wand or gavel as the case
may be. The profession was facing enormous
criticism and lawyers seemed to be very
unhappy with their chosen career path. The
Bar Association spent a lot of time attempting to work on the public image of the profession.
3
INTERVIEW WITH SANDI TABOR (Continued)
Another huge issue was the funding of the
disciplinary system. In the mid-1990s the
legislature was looking for money from the
Supreme Court budget and ended up focusing on the disciplinary line item. I will
always remember the Friday afternoon I
received a message from my office to call
Chief Justice VandeWalle. When I returned
the call, the Chief wondered if I could come
up to the Capitol. When I told him I was on a
bus with the Bismarck girl’s hockey team on
our way to Billings, Montana, he calmly told
me that the Chair of the House
Appropriations Committee had decided to
pull the funding for discipline system from
the Court budget and let the attorneys pay
for discipline. It was the last time in my lobbying career that I left town during a legislative session.
There was also the time when the Bar
Association decided to amend the North
Dakota Constitution so newly appointed
judges did not have to run for election shortly after being appointed. With a detailed
game plan in hand, the Association managed
to educate the public about the need for the
change and it was approved by the voters by
a wide margin … as I recall to the surprise
of several observers.
GAVEL: When you left SBAND to go to the
Attorney General’s office you remained
involved in SBAND – why?
TABOR: In part because I was chairing the
Legislative Committee and serving on the
Joint Attorney Standards Committee. It was
the Joint Attorney Standards Committee,
however, that kept me busy for a couple of
years as we conducted a complete re-write of
the North Dakota Rules of Professional
Conduct. Professor Lee, Alice Senechal and I
were assigned to review all of the “Group 1”
rules, i.e. rules 1.0 – 1.19. It was an arduous
and yet amusing task.
GAVEL: Now, despite a very demanding
position with the Lignite Energy Council and
as head of the state’s Transmission Authority,
you have been on the board and are now
president -- you must put a high priority on
SBAND and its issues. Why?
TABOR: Perhaps I am a glutton for punishment. The Bar Association has always taken
the lead in helping the public understand the
legal system, in advocating on behalf of our
profession and in working with the Supreme
Court to address the many issues facing the
legal system in our state. I have been fortunate to be involved over the years in each of
those areas, and through that involvement I
have grown personally and professionally.
I am proud to be an attorney, and to this
day I appreciate the fact that my legal education taught me how to analyze a problem and
find a logical solution. While in law school I
often commented that I felt like I was being
brainwashed, that brainwashing has served
me well throughout my professional career.
My participation in SBAND is just my way of
saying “thank you” to the profession and to
Randy Lee.
GAVEL: What are some of the issues you
have been involved with over the years with
SBAND that have been most rewarding?
TABOR: Probably the most rewarding initiative was working with the Court and Bar
Association to convince the legislature to
adopt the Indigent Defense program and
establish the Indigent Defense Commission.
I was involved in the beginning stages of
developing the enabling statute and worked
with many of the lawyer lobbyists and the
Supreme Court Administrator to secure
Photo by Sandi Tabor
Early morning sunrise in Grand Teton National Park.
4
The Gavel
August 2010
GAVEL: What are some of your goals as
president this year?
TABOR: My main goal is to do no harm.
After successfully achieving that goal, the
rest is downhill.
My focus this year will be to ensure the
implementation of the Pro Bono Task Force
recommendations and to rejuvenate the
Board’s strategic planning process. To help
with the latter, we will be surveying the
membership regarding their ideas about programming, issues facing the profession and
ideas on how SBAND can provide more
assistance to its membership. When you get
your survey, please take a few minutes to
answer the questions and return it to the
Association.
GAVEL: What about SBAND in general, do
you think things are going well, or are there
many challenges out there that need addressing– if so, what are they?
TABOR: Perhaps the most disturbing issue
is the new way in which individual attorneys
are being publically attacked on the web.
Technology has provided many wonderful
opportunities to streamline the practice of
law. Unfortunately, it has also provided
unlimited opportunities for disgruntled
clients or third parties to publically slander
attorneys through the use of websites and
other social networking mediums. Earlier
this year, the Board of Governors hired a
consultant to put together a tool-kit which
contains ideas on ways for attorneys to protect themselves from web-based attacks. We
plan to continue to work with the consultant
to develop more ways to protect our members from unfounded attacks.
Theodore Roosevelt National Park near
Medora.
I also am a gardener with a backyard filled
with flowers and weeds. And last, but never
least, I am a jet-skier!
GAVEL: So, beyond work and SBAND,
what do you do for “fun” and pleasure?
TABOR: I am a photographer … I am fascinated with light whether it is reflections on
a still lake or crepuscular rays through the
clouds. I am very fond of taking photos in
the Tetons and Yellowstone … and I love
taking pictures of the wild horses in the
Photo by Sandi Tabor
funding for the program. It was a monumental effort with a very important goal and I
was pleased to be part of the team that got it
done.
Wild stallions fighting near Medora.
Continental Resources, Inc.
(NYSE, CLR) is a publicly traded mid cap Oil and Gas
Exploration Company ranked among the top oil producers in the United States. We offer a unique job
opportunity for a qualified candidate interested in participating in our continuing corporate growth effort.
Continental has an immediate need for an Assistant General Counsel to work in our corporate headquarters
located in Enid, Oklahoma. The individual will be responsible for a variety of responsibilities within the
company focusing on oil and gas laws and regulations impacting company operations. The position requires:
• 3-plus years experience in an oil and gas company or law firm
• Juris Doctor degree
• Admission to practice law and be in good standing
• Ability to work in computerized office environment, including legal research
EOE. Continental Resources, Inc. offers competitive salaries and an excellent benefit package. If qualified
please apply in confidence to:
Continental Resources, Inc.
Attn: Human Resources
P.O. Box 1032
Enid, OK 73702
Fax: (580) 548-5136
Email: [email protected]
Website: www.contres.com
The Gavel
August 2010
5
COMMUNITY SERVICE
Children’s Center Benefits from
Friendly Rivalry Between Fargo Law Firms
This is part of a series of articles about how
North Dakota lawyers are giving back to their
communities. Suggestions for future stories
should be emailed to Justine Rowinski,
[email protected].
The staff at the supervised visitation and
family safe exchange center in Fargo and
Moorhead called Rainbow Bridge is used to
dealing with area lawyers in court cases
involving children. But, when Colleen
Murray, director of the Lakes and Prairies
Community Action agency that operates
Rainbow Bridge, received a call last spring
from Holly Altendorf, a paralegal at the
Gjesdahl Law Office in Fargo, it wasn’t about
a case.
“She told me her law office wanted to raise
money for the Rainbow Bridge as part of the
Fargo Marathon on May 21,” says Murray.“To
get a call like that is the dream of any nonprofit agency.”
Sponsoring the event with Gjesdahl Law
was the Kennelly & O’Keefe law firm, also of
Fargo.“This was an attempt to participate in
the fun synergy that surrounds the Fargo
Marathon,” said Mike Gjesdahl.“And at the
same time it increased awareness of
Rainbow Bridge and its mission.”
The event became the “Run and Fun for
Rainbow Bridge” and it evolved into a challenge between these two firms to see which
could raise the most money in the Fargo
Marathon’s 5K run and related events.“As a
media hook -- and a successful one at that -we announced that the two offices were competing with one another to see which could
raise the most money for Rainbow Bridge,”
said Gjesdahl.“What? Lawyers competing to
do a good deed? That was sufficiently newsworthy to garner time on three of our local
TV news organizations.”
Gjesdahl said he and Chris Kennelly put
“the touch” on the entire legal community
and business friends. Kennelly said it wasn’t
a very hard sell.“The legal community was
6
very generous and supportive of what we
were doing,” said Kennelly.“The night of the
marathon was beautiful and we were able to
be outside and enjoy ourselves.”
“My office was the host site for our event,”
said Gjesdahl.“It’s located just two blocks
north of the Fargo Dome, where the 5k both
starts and ends. It provided a good place for
runners to gather before and after participating in the 5k. It also provided a good place
and a fun event where runners’ family members and friends could spend time until their
runner returned.”
The day also brought inflatables and other
games such as giant tricycle races from
Games Galore, disc-jockeyed music, barbecue food provided by SpitFire Bar & Grill’s
mobile unit, and a silent auction room,
which filled every room in the law office with
donations from many Fargo businesses.
To raise nearly $8,000 for Rainbow Bridge
in its first year was considered a success by
anyone’s standard. “It was such fun to work
with the lawyers and staff from these law
firms on this project,” said Murray. “This is
such a worthy cause, and I hope we can do it
again.”
“This was a great experience,” said
Kennelly. “Working together with another
law firm in such a collegial fashion was
enjoyable, and we were able to bring greater
awareness of Rainbow Bridge to a wider
group of people.”
More information about Rainbow Bridge
can be found at:
http://rainbowbridgekids.net/.
Shayden Lindbo (daughter of Tatum O’Brien Lindbo) and Noah Gjesdahl (son of Michael Gjesdahl) at the
Run & Fun event.
The Gavel
August 2010
Above: Members of the Gjesdahl firm.
Left: Michael Gjesdahl and Chris Kennelly being interviewed for WDAY News.
The Gavel
August 2010
7
FROM THE DEAN
Professional Transitions
and Professional Values
By Kathryn Rand, Dean
University of North Dakota School of Law
Dean Kathryn Rand
As I write this column, the School of Law’s
Class of 2010 is diligently preparing for the July
bar exam, the last step in their transition from
aspiring attorneys to practicing lawyers. This is a
once-in-a-lifetime milestone for our graduates,
and a familiar annual transition for those of us
at the School of Law.
Each year, the incoming first-year class at UND
School of Law boasts highly qualified students
with diverse backgrounds and broad talents.
Though the Class of 2010 shares much with each
UND Law class that came before it, our most
recent graduates are indeed a very special group.
The Class of 2010 includes, first and foremost,
graduates from North Dakota, as well as graduates from our region, across the country, and
around the world: New York, Florida, Colorado,
Kansas, and Texas – just to name a few home
states of our graduates, as well as Canada,
Bulgaria, Japan, Ethiopia, and Korea. The Class
of 2010 brought a range of experiences and
talents with them to law school. This group of
students included a few “nontraditional”
students embarking on second or even third
careers (one who told me that he’s going to law
school in his “old age”) and a first-generation
college graduate; mothers and fathers; former
teachers and grass-roots organizers; athletes
(including a former UND hockey player) and
musicians (including a veteran performer with
the Medora musical); students who had served a
military tour of duty and students who were
bi- and trilingual… and each of them came to
UND School of Law to gain the knowledge,
skills, and values required by our noble profession. For three years, this group of students
shared successes, setbacks, ambitions, and
obstacles. For three years, this group of students
looked forward to graduation and the start of
their new careers as legal professionals.
On May 8, 2010, sixty-two UND School of Law
graduates crossed the stage at the Chester Fritz
Auditorium to be hooded and receive their
8
diploma. (Thanks to our summer courses, an
additional thirteen graduates completed the
requirements for their juris doctor degrees in
time for our December 2009 commencement.)
North Dakota Supreme Court Justice Mary
Muehlen Maring delivered our May commencement address.When I asked the Class of 2010
why, out of all possible commencement speakers, they wished to have Justice Maring address
their class, their friends, and their families on
the occasion of their law school graduation, here
is what they told me:
The Class of 2010 is composed of law students
with diverse backgrounds, but a common purpose – the purpose to serve the public in some
capacity. The legal education we receive at the
School of Law emphasizes a career of servicedriven leadership. During the last three years,
Justice Maring has served as an example of how
to successfully transfer what we learn in law
school to what we aspire to accomplish in our
legal careers. Through her guidance, she has
inspired us to be life-long students, exemplary
public servants, and responsible young professionals …. Her delivery of the commencement
address would serve as profound capstone to
our new beginning as legal professionals – a
status we attained on the first day of law school
orientation and one we hope to maintain as we
continue on our paths to serve the public.
You can see why we are justifiably proud of
this group of new attorneys.And Justice Maring
didn’t disappoint, either! She shared with the
Class of 2010 a story about photographing her
husband’s law school graduation, only to discover afterwards that she had left the lens cap on
the camera.With both heart and intellect, Justice
Maring used the story to deliver three important
lessons to our graduates:“Number one: Take the
lens cap off. Number two: You can salvage something from even the worst mistake. Number
three: Stay focused on what you are doing.” (You
can watch Justice Maring’s wonderful address on
our website at http://www.law.und.nodak.edu/.)
She left the Class of 2010 with this message:
Your new life will be busy. The first task will be
to study for the bar exam. Then you will start
your career. Along with these challenges, you will
need to balance your work time with the important tasks of taking care of your relationships with
your spouse, family and friends and finding time
for self fulfillment and exercise. With all of these
things going on, you may question whether you
can really make a difference. You can. Each day
you can make a difference by your attitude, how
you treat people, and how you practice your
profession.
What an excellent message to a group of
graduates making the transition from aspiring
attorneys to practicing lawyers. In addition to
studying for (and stressing about) the bar exam,
the Class of 2010 is preparing for a range of
professional careers, in private practice across
North Dakota and our region, as well as in
government and military service, business and
finance ventures, and public interest and
non-profit organizations.
Our graduates’ commitment to public service
and their wide-ranging professional ambitions
illustrate one of the challenges of legal education: we must prepare students for entry into a
highly varied profession where lawyers practice
in different areas of expertise and in widely
ranging contexts, all grounded in the attorney’s
role as a contributor to community.A UNDeducated attorney possesses practical skills and
legal knowledge, and just as importantly, carries
into our profession the values of our state: our
program of legal education emphasizes the
highest standards of professionalism and ethical
conduct, fosters an atmosphere of cooperation
and collaboration, and instills a commitment to
community and public service.
We are proud of the Class of 2010, and we are
proud to improve our profession – one
UND-educated attorney at a time.
The Gavel
August 2010
111TH SBAND ANNUAL MEETING
“Denim & Diamonds” was the theme of the 111th Annual Meeting
of the State Bar Association of North Dakota. From June 15 to 18,
state lawyers and judges who
gathered in Bismarck earned
CLE credits, played tennis and
golfed, cooked, toured the area
and enjoyed several social
events.
Above: Margi and Hon. Gary Lee at the Annual Banquet.
Margi was the winner of the diamond donated by
Schumacher Diamond Cutters and Jewelers.
Right: Outgoing SBAND president, Jane Dynes.
Far right: Deuces Wild Dueling Pianos was a hit at the
Opening Night Social.
The Gavel
August 2010
9
Clarence Darrow’s
Legacy Remembered at
Ninth Constitutional
Symposium
Clarence Darrow is considered America’s
greatest lawyer during the period of 1907 to
1926. The SBAND Annual Meeting’s
Constitutional Symposium featured four of
Darrow’s trials and the judges who presided
over them. Through his impersonation of
Darrow, Gary L.Anderson explored the timeless social, legal, professionalism and ethics
issues these trials represented and which
helped establish Darrow’s immortal legacy. He
was assisted by members of the state’s judicial
bench, Judge Joel Medd, Judge Donovan
Foughty, Judge John Paulson and Judge Gail
Hagerty, who helped bring to life the personalities and perspectives of the judges in the
four trials he presented.
Anderson is the CEO of the Clarence Darrow
Foundation, a non-profit organization that is
dedicated to the legacy and perpetuation of
the ideals of Darrow, who “defended the
friendless and frightened” of society. During
the symposium, which was open to the public,
Anderson portrayed Darrow in the following
cases:
• The 1907 Bill Haywood Murder Trial before
Judge Fremont Wood in Idaho. Darrow’s
emphasis regarding “uncorroborated accomplice testimony” in instructing the jury
doomed the judge’s career. The judicial issues
Anderson identified in this case were creation
of extradition precedent law, the appearance
of impropriety, use of uncorroborated testimony and the rule of law, and resisting
political pressure.
• The 1924 Leopold and Loeb Case before
Judge John Caverly in Illinois. In this case, the
judge ruled in favor of what some say is the
greatest anti-death penalty pleading in the
annals of American law. The judicial issues in
this case included efficacy of expert witnesses
in mitigating punishment, death penalty
pleadings and national trial stress on judges.
• The 1925 Scopes “Monkey” trial before Judge
John Raulston in Tennessee. In his presentation Anderson explored whether the judge
was running for office from the bench,
whether he was biased in favor of the prosecution, and whether the media gained their
foothold in the courtroom due to the judge’s
10
Gary Anderson (center) as Darrow, with panel members Judge John Paulson, Judge Donovan Foughty,
Judge Gail Hagerty and Judge Joel Medd.
near obsession with having his photo taken.
The judicial issues included separation of
church and state, radio broadcasts in the
courtroom, media hysteria and judges running for office from the bench.
• The 1925-26 Sweet Trials before Judge Frank
Murphy in Michigan. Darrow had described
the judge as the “kindliest and most understanding man I have ever happened to meet
on the bench.” Anderson’s presentation
covered how Judge Murphy, who went on to
become a U.S. Supreme Court Justice, risked
his career in his pursuit of equal justice for all.
The judicial issues included self-defense
against racial violence, police misconduct,
State sanctioned residential segregation, and
judges who proselytize on social justice
issues.
Social Media, Wind and Water Among CLE Topics
The emerging use of social media in the professional workplace, and energy issues
including wind and water, were among the topics presented in the CLE seminars throughout the annual meeting. In addition to the Constitutional Seminar on Clarence Darrow
and the Legal Services of North Dakota Summer CLE, they included:
• “Eyewitness Error,” presented by Professor Kirsten Daphinais from the University of
North Dakota School of Law, and Dr. Richard Wise, from the University of North Dakota
Department of Psychology.
• “The Fundamentals of Success: Become the Ethical Lawyer Your Mother Always
Thought You Were,” and “Win For Your Client,” presented by Larry Rice, a board certified family law specialist in Memphis, Tennessee.
• “How to Protect Your Reputation Online,” by Mike Mabin and Blaze Culliton of
Agency MABU in Bismarck.
• “The Energy Industry’s Water Appropriation and Wastewater Disposal Issues,” presented by Tami Norgard of the Vogel Law Firm in Moorhead, Minnesota.
• “The 19th Century Confronts the 21st: How Should Bar Regulation Change as
Technology and Client Needs Make it Easy and Efficient for Lawyers to Practice
Across State and National Borders,” presented by Professor Stephen Gillers, New York
University School of Law.
• “Can I Do That? The Ethics of Advertising, from the Yellow Pages to Twitter,”
presented by William Hornsby, ABA Staff Counsel.
• “Blowin’ in the Wind – Here Are Those Answers, My Friend,” presented by Brian
Bjella, Crowley Fleck, PLLP; Commissioner Tony Clark, North Dakota Public Service
Commission; Deb Levchak, staff attorney, Basin Electric Power Cooperative and
moderated by John Olson, John M. Olson, P.C., all of Bismarck.
The Gavel
August 2010
Community Service Awards Recognize Seven State Lawyers
At every SBAND Annual Meeting, one
lawyer from each of the state’s seven judicial
districts is presented with a Community
Service Award. The award recognizes members of the bar who have enhanced the quality of life in their communities. To be considered, the recipients shall:
• Be current members of SBAND and of the
judicial district
• Have adhered to the highest professional
standards during their career
• Be committed to volunteer service outside
of the legal profession
• Be nominated by letter in the annual “call
for nominations” published in the Gavel, or
be nominated by the Board Governors.
This year’s recipients are:
WESLEY ARGUE
Hamilton
Northeast Judicial
District
Wesley Argue has
been involved in a
variety of community organizations in
the Hamilton and
Cavalier area. They
include being the
former municipal judge for the city of
Cavalier, business manager of the Hamilton
Township Cemetery Association, past master
of the Hamilton Masonic Lodge and KCCH
Scottish Rite, director of the Hamilton Men’s
Civic Club, former chairman and secretary of
the district Republican Party, trustee of the
Hamilton Methodist church, an emergency
medical services first responder, vice president and assistant emergency communications officer for the Pembina county Amateur
Radio Club. He also was director of emergency communications for Pembina County
during the 1997 Red River flood.
Argue has also worked on a number of
charitable projects with the North Dakota
community Foundation for the benefit of
small cities, schools and cemeteries, and was
a co-editor of the North Dakota Deskbook. He
is a former member of the SBAND Board of
Governors and chair of the CLE Commission,
and a fellow of the American College of Trust
and Estate Counsel.
The Gavel
August 2010
CHARLES J. PETERSON
Dickinson
Southwest Judicial District
Chuck Peterson was very active in the
Beach Community before moving to
Dickinson in the early 1990s. He continues
his ties to Beach and Golden Valley County, as
well as being active in the Community of
Dickinson.
They include being a board member of the
Dickinson Catholic Schools Schools for nine
years, the Tech Link for Golden Valley County,
the Pro Bono community development
Subiaco Manor, the Dickinson Retirement
Home, and ABLE Inc. He also has been a consultant to the Dickinson Catholic Schools
Fine Arts Board.
Peterson has participated in Habitat for
Humanity India and Africa volunteer trips,
and three God’s Child missions to Guatemala,
including being coordinator for one mission
trip crew.
DAVID HOGUE
Minot
Northwest Judicial District
David Hogue is a partner in the Pringle and
Herigstad Law firm, and was a clerk to Chief
Justice Ralph Erickstad in 1987. He is a
retired Colonel in the military and was a staff
Judge Advocate for the North Dakota National
Guard from 1984 until his retirement this
year. His active duty deployments took him
to Afghanistan, Honduras, and Germany, and
he received a Bronze Star, Global War on
Terrorism Service Medal, and Afghanistan
Expeditionary Medal.
Hogue was the community chairman for
the Minot Magic Fund Committee, a growth
fund financed by a one percent city sales tax
that is used for economic development, capital improvements and tax relief. He chaired
the YMCA Building Committee from 2006
until this year, which oversaw the planning,
fundraising, and construction of a multimillion dollar addition to the Minot Family
YMCA. He is past president of the Minot
Family YMCA and a current member of the
board of directors, and is a member of the
Board of Directors for Dakota Boys and Girls
Ranch Foundation, a residential treatment
facility for children at risk.
Hogue represents District 38 in the North
Dakota Senate, and is vice chair of the
Natural Resources and Finance and Taxation
Committees.
DAN J. DUNN
Fargo
East Central
Judicial District
Dan Dunn is the
Past President of
the Red River
Soccer Club and
was recognized in
2008 as the RRSC
Volunteer of the Year, and statewide as the
North Dakota Youth Soccer Association
Volunteer of the Year in 2009. The American
Diabetes Association also recognized Dan’s
contribution to young athletes by awarding
him the 2007 Amateur Athletics Person of the
Year. In addition to coaching Shanley High
School Varsity football for the past three
years, youth basketball for five years and
youth soccer for three years, Dunn serves as
president of the Shanley Athletic Club and is
the former chair of the Catholic Schools
Network Council. He also serves on the
strategic planning and marketing and public
relations committees, and is a captain for the
Shanley fundraising auction.
Dunn was appointed by the mayor of Fargo
to the Special Assessment Commission, and
is an active member of the Great Western
Exchange Club, helping underprivileged children in the community and elsewhere. He
was past president of the Cass County Bar
Association in 2004, and has served the State
Bar Association as a member of the
Alternative Dispute Resolution Committee,
the Judiciary Standards Committee, and the
Joint Procedures Committee.
11
HON. JOEL
MEDD
FRITZ R.
FREMGEN
Grand Forks
Northeast
Central Judicial
District
Judge Joel D.
Medd is the
longest-serving
district judge in
North Dakota. He
has volunteered his time and talents at many
levels, and has been active with the Boy
Scouts at various levels from scoutmaster at
Minnewauken to the district chair for the
Lake Agassiz District. He has been recognized
with many awards, including the Silver
Beaver. He currently serves on the nominating committee for the Lake Agassiz District
Committee. This year Judge Medd was the
master of ceremonies for the District
Recognition Banquet and has annually sworn
in the District Committee at that banquet.
That commitment this year was a tough
choice that meant missing a UND vs.
Minnesota Gopher hockey game! He has
volunteered to assist in various Boy Scout
programs such as speaking to scouts about
citizenship.
Judge Medd is an active volunteer in his
community. He is a member of the South
Forks Lions Club and previously served as
president. He has participated in projects such
as Christmas in the Park, and the American
Diabetes Bike/Walk-a-Thon, for which he is
notorious for finishing a race after crashing
his bike. He has consistently volunteered his
time to speak to school students, and recently
participated in the Greater Grand Forks
County Bar Association Annual Law Day by
assisting with a mock trial held at the courthouse. In 1997 he was presented with the
Lifetime Achievement Award for participating
in the Trial Advocacy Program, for extra volunteering as a Mock Trial Judge.
He has been the President of the Delta Tau
Delta Corporation for approximately 30 years
and serves on the Delta Tau Delta Educational
Foundation Board. This past year he was the
sound person for the St. Michael’s Church
Annual Fundraiser. An avid photographer, he
uses that passion to publicize the activities of
many organizations.
Jamestown
Southeast
Judicial District
Fritz Fremgen
his wife Jean
Delaney, and their
three children live
in Jamestown. His
first job as a
lawyer was a tour in the Army JAG Corps. He
then started with the Stutsman County State’s
Attorney’s office.
Fremgen takes any opportunity he can to
talk with young people about law. Last year, he
was a guest lecturer Jamestown High school’s
government classes and gave merit badge
counseling on law to the Boy Scout troop. He
has raced bicycles most his life, and in 2009
he volunteered as co-director of Jamestown’s
off-road triathlon. Steve Aesoph and Fritz
grew the race, and on June 26, the state’s citizen racers had a chance to rub handle bars
against professionals in race in Jamestown.
12
JAY E.
BURINGRUD
Bismarck
South Central
Judicial District
Jay Buringrud
has served on the
Bismarck Masonic
Foundation Board
and the Central
North Dakota
Speech Therapy Center for Children Board. He
is involved with the Missouri Slope Shrine
Circus and is a Salvation Army bell ringer.A
past-president of the Bismarck Kiwanis Club,
he is active with the club’s major fund-raising
project, Bids for Kids.
He is Past Potentate of the El Zagal Shrine,
and was instrumental in opening the Shrine
Center in Fargo as a major staging area for
fighting the 2009 flood in the Fargo area. He is
a life member of the National Association of
Commissioners on Uniform State Law.
Distinguished
Service Award
Honors
McDonald
Jack McDonald of Bismarck was honored for his contributions to law with
the Distinguished Service Award–the
State Bar Association's highest award.
McDonald, a 1970 University of North
Dakota Law School graduate, is a partner in the Wheeler Wolf Law Firm.
Prior to attending law school, he earned
a master’s degree in journalism.
In presenting the award at the Annual
Meeting awards banquet, law partner
Jim Hill said of McDonald,“He gives the
concept of character a unique description.”
He called McDonald the “face of First
Amendment rights in the state for the
past 30 years. How we tie in with First
Amendment rights is a very subtle but
important part of our profession.”
Of his work lobbying for legislative
issues, Hill said of McDonald,“He is an
unsung hero who knows how to do his
job. When he is in a room speaking for
the legal profession, a calm comes over
the room. It is accepted that Jack knows
what he is talking about. If you are on
Jack’s side of the profession, it’s a pretty
good side to be on.”
As he accepted the award, McDonald
said he was taught at an early age by his
father to give time to civic and community service. “One of the hallmarks of
law is to give back to our profession.
Frankly, that is all I’ve ever wanted to do.”
The Gavel
August 2010
Morrison Receives
Liberty Bell Award
The SBAND Liberty Bell Award was presented to
Suzanne Morrison of Fargo, the law librarian for the
Eighth Circuit U.S. Court of Appeals for the North and
South Dakota federal judges' chambers.
The Liberty Bell Award recognizes individuals who
“promote understanding for our form of government,
encourage greater respect for law and the courts, and
stimulate a deeper sense of responsibility on the part of citizens regarding their duties as
well as their rights.”
In presenting the award, SBAND board member Nancy Morris called Morrison an
“amazing advocate at local, regional, national international on issues related to the
rule of law. The impact her work with law librarians around the world has truly been
remarkable.”
Morrison has worked on legal projects in 13 different countries throughout Eastern
Europe, the Middle East and Asia, including the West Bank and Gaza, Krygystan,
Tajikistan, Kosovo, Slovakia and Albania. Some of these trips abroad have been to help
law schools recover from national or regional strife. Her visits have ranged from one to
several months where she has taught legal research skills, evaluated law libraries and
offered advice to libraries that were in various stages of development.
Closer to home she teaches Information Systems at the University of Mary, Fargo
Center, is a member of the Fargo Library Board, the North Dakota Library Association,
the YWCA, the League of Women Voters, Veterans History Project and she volunteers for
the local hospice. She was awarded the Spirit of Law Librarianship Award from the
American Association of Law Librarians in 2007. She and her husband, Greg, have three
children, Matt, Sarah and Megan.
In accepting the award, Morrison said,“It has been my pleasure to work with the
North Dakota Bar and the ABA on these projects around the world.”
Tabor Recognized
with Outstanding
Chair Award
For her work guiding the 18-member Pro
Bono Task Force in shaping a new Pro Bono
Policy for SBAND, which was approved by
SBAND members at the General Assembly,
incoming SBAND President Sandi Tabor was
recognized with this year’s Outstanding Chair
Award.
In accepting the award, Tabor said,“I have
been on hundreds of SBAND committees and
this is the most committed and enthusiastic
group of people I have ever worked with.”
Dorgan Recognized
with Legislative
Service Award
Retiring U.S. Sen. Byron L. Dorgan was
honored with this year’s Legislative Service
Award. In presenting it, SBAND President
Sandi Tabor called Dorgan one of the true
leaders in the state.“He has worked throughout the years for law enforcement,
firefighters, first responders and alternatives
to jail sentences,” she said.“He also was
responsible for Dru’s Law for violent sex
offenders and helped with crucial early funding for drug courts. He is a champion for
North Dakota and we honor him with this
award tonight.”
Dorgan was unable to attend the award
banquet in person, but staff aide Marian
Houn accepted the award on his behalf and
read a letter he sent.
Sandi Tabor pictured with Mayor John Warford.
The Gavel
August 2010
13
Silent Auction
This year’s Silent Auction raised over
$7,000 for the North Dakota Bar
Foundation. Our sincere thanks to the
following auction contributors:
American Bank Center
Anderson & Associates
Bismarck Downtowner’s Association
Al Boucher
The Bistro
David Bliss
Larry Boschee & Julie Buechler Boschee
Leonard Bucklin
Holly Crothers
Crowley Fleck Attorneys, PLLP
Energy Services Group
Ronald Fischer
Hon. Richard & Cheryl Hagar
James Hill
Gov. John & First Lady Mikey Hoeven
Hon. Carol Kapsner
Robert Keogh
Hon. Gary & Margi Lee
Maring Williams Law Office, PC
McGee Law Firm
Sherry Mills Moore
Tara Mulhauser
William Neumann
ND Newspaper Association
Northwest District Judges
David & Diane Peterson
Lolita Romanick
Robin Schmidt
Alice Senechal
Serkland Law Firm
Starion Financial
UND School of Law
Vogel Law Firm
Wheeler Wolf Law Firm
Zuger Kirmis & Smith
Special thanks to Barney and Cathy
Schumacher of Schumacher Diamond
Cutters & Jewelers for their donation of a
diamond and gemstones for the raffle held
during the Silent Auction.
14
The SBAND Board of Governors met Tuesday and Friday in conjunction with the Annual Meeting.
OFFICERS:
President:
Sandi Tabor, Bismarck
President-Elect:
Kristen S. Pettit, Grand Forks
Secretary-Treasurer:
Michael J. Williams, Fargo
Immediate Past President:
Jane L. Dynes, Fargo
NEW MEMBERS:
NE Judicial District:
Barbara L. Whelan, Grafton
NE Central Judicial District:
Kristen S. Pettit, Grand Forks
SE Judicial District:
Jason R. Butts, Wahpeton
SW Judicial District:
Matthew R. Kolling, Dickinson
BOARD MEMBERS:
ABA Delegate:
James S. Hill, Bismarck
E. Central Judicial District:
Nancy J. Morris, Fargo
NW Judicial District:
Dennis E. Johnson, Watford City
Dean, UND School of Law:
Kathryn Rand, Grand Forks
Executive Director:
William A. Neumann
OUTGOING MEMBERS RECOGNIZED:
David S. Maring, Bismarck
Asmunder S. Benson, III, Bottineau
Fallon M. Kelly, Lisbon
2010 Annual
Meeting Planning
Committee
Thank you to this year’s Annual Meeting
Committee, chaired by Bismarck
attorney, Annette Bendish, and
co-chaired by Moorhead attorney
Scott Strand. Other Committee
members included: Mitch Armstrong,
Lee Ann Barnhardt, Julie Buechler
Boschee, Carey Goetz, Kara Johnson,
Tiffany Johnson, Brent Kary,
Jessica Knutson, Petra Mandigo Hulm,
Doug Murch, Zach Pelham, Christina
Sambor and Tony Weiler.
Memorials
The following members of the North Dakota Bar
who passed away between June 12, 2009 and
June 15, 2010, were remembered:
Cletus J. Schmidt
1924-2009
Hon. Ronald L. Hilden
1945-2009
Thomas A. Dahle
1933-2009
Bruce H. Carlson
1953-2009
Hon. Rodney S.Webb
1935-2009
Hon. Donald E. McCullagh
1912-2009
Jim Odegard
1936-2009
Ralph A.Vinje
1942-2009
Michael “Ray” McIntee
1921-2009
Hon.Adam Gefreh
1918-2009
Alan K. Grindberg
1932-2010
Gene P. Johnson
1934-2010
Brad J. Burgum
1952-2010
Todd W. Foss
1955-2010
J. Howard Stormon
1918-2010
Hon. Lester S. Ketterling
1940-2010
Hon. James M. Bekken
1948-2010
Owen K. Mehrer
1949-2010
Frank F. Jestrab
1914-2010
James D. Erickson
1953-2010
The Gavel
August 2010
A Tribute to SBAND’s
Volunteer Lawyers
June ’09-June ’10
Forty-year service recipients.
Fifty-year service recipients.
Awards Presented for
40, 50 and 60 Years of Service
to the Legal Profession
A total of 23 state lawyers were honored with awards for 40, 50 and 60 years of
membership in the State Bar Association of North Dakota. The recipients are:
40 years
Jon H. Brosseau
Carma Christensen
Hon. Donald L.
Jorgenson
Jack T. McDonald
Michael D. McNair
William E. Sherman
Leland M. Stenehjem, Jr.
Nevin Van de Streek
Aloys Wartner, III
Hon. Robert O. Wefald
Thomas L. Zimney
50 years
Harold G. Annear
Jerry O. Brantner
Leonard H. Bucklin
Hon. William F. Hodny
Joseph C. Honan, Jr.
Brian W. Keohane
Vincent R. Larson
David Orser
Thomas A. Wentz
60 years
John C. Haugland
James R. Jungroth
John E. Riling
Pro Bono Awards
Three lawyers were recognized for their community
service by donating significant amounts of time to the
SBAND Volunteer Lawyer Program last year. Receiving a
small gift and plaque were the following top three attorneys: Robert Keogh, Dickinson, 338 hours; Kent Morrow,
Bismarck, 220 hours, and Paul Murphy, Carrington,
147 hours.
Robert Keogh
Other Groups Meet
The following organizations met in conjunction with the Annual Meeting:
Judicial Planning Committee, Judiciary Standards Committee, Joint Attorney Standards
Committee, North Dakota Bar Foundation Board of Directors, Disciplinary Board of the
Supreme Court, North Dakota Judges Association, SBAND Women Lawyers Section and
the SBAND Young Lawyers Section.
The Gavel
August 2010
The State Bar Association would like to extend a
sincere thank you to all of the charitable attorneys
who helped the Volunteer Lawyer Program in the
past year. Many clients are in need of the services
provided by attorneys who generously donate their
time, expertise and resources, and SBAND wishes
to recognize those individuals.
Bethany Abrams
Alisha Ankers
LaRoy Baird
Sarah Barron
Anthony Swain Benson
Lynn Boughey
Tressie Brazil
John Bullis
Todd Burianek
Christopher Carlson
Erica Chisholm
Theresa Cole
Stephen Dawson
Bernice Delorme
Lawrence DuBois
Leah duCharme
Cheryl Ellis
Shawnda Ereth
Neil Gillund
John Goff
Rebecca Graves
Dann Greenwood
John Gregge
Donavin Grenz
Sidney Gross
William Hartl
Erin Haug
Timothy Hill
Maureen Holman
Michael Hurly
Ruth Ann Jenny
Samuel Johnson
Ulysses Jones
B.J. Jones
Dale Kadlec
Daniel Kelsch
Robert Keogh
Todd Kranda
Donald Krassin
Tracy Laaveg
Rebecca Lawler
Richard Linnerooth
Jason Loos
Tracy Lyson
Bruce Madlom
Trent Mahler
Jack McDonald
Timothy McLarnan
Thomas Merrick
Sherry Mills Moore
Kent Morrow
Douglas Murch
Paul Murphy
Russell Myhre
Daniel Nagle
John Olson
Thomas Omdahl
Daniel Oster
Joanne Ottmar
Bradley Parrish
Benjamin Pulkrabek
Kimberly Radermacher
Mark Rasmuson
Laura Reynolds
Craig Richie
Kerry Rosenquist
James Sandsmark
Jodie Koch Scherr
Robin Schmidt
Jordan Schuetzle
Robert Schultz
Darla Schuman
Suzanne Schweigert
Ted Seibel
Alan Sheppard
Lynn Slaathaug Moen
Reed Soderstrom
Marina Spahr
Anne Summers
E. Jane Sundby
Robert Thomas
Rudolph Tollefson
Brett Venhuizen
Joseph Vetsch
Michael Ward
Melvin Webster
Anthony Weiler
Kari Winning
Janet Zander
15
Sponsors
Exhibitors
ALPS
Big Muddy Bar Association
Blue Cross Blue Shield of North Dakota
Crowley Fleck Attorneys, PLLP
Ebeltoft. Sickler. Kolling. Grosz. Bouray. PLLC
Eide Bailly, LLP
Maring Williams Law Office, PC
Media Productions
North Dakota Bar Foundation
North Dakota Commission for CLE
Qwest
Schumacher Diamond Cutters & Jewelers
Serkland Law Firm
Smith Bakke Porsborg Schweigert & Armstrong
Starion Financial
Vogel Law Firm
ALPS
Anne Carlsen Center
Casemaker 2.1
Commonwealth Law Book Co.
Eide Bailly, LLP
Guardian & Protective Services, Inc.
Legal Services of North Dakota
Noridian Insurance Services, Inc.
North Dakota Recorders Information Network
Pearl Insurance
Pifer’s Auction & Realty
SBAND Law Related Education
SBAND Lawyer Referral & Information Services
UND School of Law
West, Thomson Reuters
Golf Tournament Winners
1st Gross:
1st Net:
2nd Net:
3rd Net:
Hon. Pat Weir Sr., Pat Weir Jr., Paul Noah
Kara Johnson, Matt Nisbet, Peter Zuger
Jayme Tenneson, Tim Ottmar, Steve Ottmar, Andy Forward
Shelly Nahenga, Clarence Sitter, Brett Johnson, Matt Pickett
Longest Putt, Hole 9:
Longest Putt, Hole 18:
Longest Drive, less than 10 Handicap:
Longest Drive, greater than 10 Handicap:
Longest Drive, Women:
Matt Pickett
Hon. Steve McCullough
Mike Frey
Brian Bergeson
Jerilynn Branter Adams
6th Annual Judge O’Keefe Tennis
Shown here are the participants in the sixth annual James H. O’Keefe Memorial Tennis Tournament.
Joel Medd, Matt Sagsveen, Tom Dickson, Richard Hoberg, Leo Wilkins, and Clarence Darrow, aka Gary Anderson.
The top finishers in singles were Richard Hoberg, first; Tom Dickson, second; and Joel Medd, third. In doubles,
Richard Hoberg-Tom Dickson, first; and Matt Sagsveen-Joel Medd, second. Assisting with the tournament was
Allen Hoberg, father of Richard. Since Allen couldn’t play because of bad knee – his son, Richard substituted.
16
Chief Justice
VandeWalle
Addresses
New Programs
& Initiatives
Chief Justice Gerald VandeWalle highlighted
issues of access in his State of the Judiciary
address presented at the June 17 General
Assembly of the SBAND Annual Meeting.
He addressed e-filing and access to documents, expansion of indigent defense services
and the family mediation program, the new
Commission to Study Racial and Ethnic Bias in
the Courts, the Judicial Planning Committee, a
uniform bar examination, problem solving
courts and the ABA Commission on Ethics
20/20.
This past year the Court began the implementation of a new case management system in the
trial courts, and now all of the counties in the
East Central and Southeast Judicial Districts are
using the new Odyssey system.“One of the
features of this system of which we are most
excited is the ability to electronically file documents,” VandeWalle said.“Our electronic filing
system requires no special licenses or software
on the part of the attorney, nor are there any
extra fees associated with using electronic
filing.”
He said the court is making access to electronic documents available over the web to licensed
North Dakota attorneys at no charge.“We are
doing this because we believe it will assist you in
working more efficiently. Like the judges, you
will have fingertip access to the documents in a
case and more immediate knowledge of when
orders and judgments are issued.”
Regarding criminal defense cases,VandeWalle
said,“On rare occasions, situations arise where a
defendant in a criminal case is deemed incompetent to represent himself yet refuses to hire an
attorney even though he has the financial means
to do so.” He said the Court is exploring legislative solutions that would authorize the
Commission on Legal Counsel for Indigents to
provide defense services to defendants.
The Gavel
August 2010
STATE OF THE JUDICIARY
The family mediation program has been met
with satisfaction from those participating in it,
with 94 percent saying they prefer mediation
over going to court. “I cannot overemphasize
that the primary purpose of this program is not
simply to settle cases,” VandeWalle said.“Rather,
the overriding purpose is to use mediation to
minimize family conflict encourage shared
decision-making, and support healthy communication among family members.We have been
conducting continuing evaluations of the
program since its inception and the participants
continue to tell us in great numbers that they
like the program.”
Based on this encouraging feedback, he said
the Court expanded the program this past year
to include the Southwest, Northwest and
Northeast Judicial Districts, and beginning in
July, the program will be available statewide with
it opening in the East Central and Southeast
Judicial Districts.
A Commission to Study Racial and Ethnic Bias
in the Courts is being co-chaired by Justice Carol
Kapsner and District Court Judge Donovan
Foughty, and it has been meeting since
December 2009. In June, the Commission held
its first set of public meetings to gather direct
input from members of the New Americans
communities in Fargo. Six more meetings are
planned throughout the state and on the reservations within the state.
“In addition to listening to our court users, the
Commission is also looking at the make-up of
the court workforce, the North Dakota bar, and
the representation of minorities on jury panels,”
VandeWalle said. “While I have been asked to
have the Commission investigate areas outside
the judicial system, we need to look at our own
house, and to that end, the Commission will be
issuing an interim report at the end of the year
and we will be asking the legislature for funding
to continue the important work of implementing
the recommendations of the Commission. I ask
you to cooperate with the Commission.”
The Judicial Planning Committee is also
chaired by Justice Kapsner, and is charged with
studying the administration and operation of
the judicial system, assessing the demands and
expectations of court users and the public, and
developing short- and long-term plans for the
court to improve the administration and operation of the judicial system. The Committee
began meeting in June 2009 and is expected to
The Gavel
August 2010
continue to meet throughout the coming year.
VandeWalle said North Dakota is looking at
adopting a Uniform Bar Examination, based on
the recommendation by the State Board of Law
Examiners and the Joint Committee on Attorney
Standards.“Today North Dakota’s bar exam consists of three components: the Multistate Bar
Examination, the Multistate Essay Examination
and the Multistate Performance Test prepared by
the National Conference of Bar Examiners.We
have not tested state specific issues since July,
1999,” he said.
The new Uniform Bar Examination is comprised of these same three components that
North Dakota is now using.A move to this new
exam will not require significant change in
either court rules or in the way it is administered, he said. “The benefit of moving to the
Uniform Bar Examination means that our North
Dakota lawyers whose score meets the criteria
established by other Uniform Bar Exam states
will be allowed to practice law in those states.
Right now, Missouri is the only other state that
has signed on to the Uniform Bar Examination,
but it is anticipated that within a short time several other states will also join in,” he said.
In May,VandeWalle said the state celebrated
the 10th anniversary of the juvenile drug courts
in Fargo and Grand Forks, the first juvenile drug
courts in North Dakota, and they now operate in
Bismarck, Minot,Williston and Devils Lake. In
addition, adult drug courts are now operating in
Bismarck, Fargo, Grand Forks and Minot.“These
problem-solving courts work because the people
involved are using their skills and knowledge to
improve the access to justice and a better life for
the participants,” he said.“I expect the call will
continue for additional drug courts, for mental
health courts, veterans’ courts, reentry courts
and other similar courts.We will need to examine what we can do with the human resources
available within the judicial system as well as
without since these courts require the efforts of
a variety of agencies and service providers.”
VandeWalle serves on the ABA's 20/20
Commission on Ethics, which is reviewing the
admission of foreign lawyers.“There are several
proposals that are circulating to adopt model
rules that would allow foreign lawyers to appear
in court under the pro hac vice rule; to be registered as corporate counsel and to be allowed to
perform legal services on a temporary basis
under the protections of Rule 5.5 of the Rules of
Professional Conduct,” he said.“Frankly, these are
the easy issues; the more difficult issues with
which the 20/20 Commission will deal in the next
two and one-half years include multi-disciplinary
practice, investor-owned and publicly traded law
firms and, significantly for us, if and how lawyers
are regulated and, if regulated, who will regulate
the profession.”
He said the United Kingdom,Australia and
Scotland have enacted or are considering substantial changes to how the profession is regulated in
their countries.“While the American Bar
Association has renewed its commitment to regulation of the profession by the courts of the various
states, it comes as no surprise that not everyone
agrees with that position. Indeed, the United States
Congress and federal agencies have become
increasingly active in certain areas.With technology and the globalization of the practice of law, for
many lawyers, including lawyers in North Dakota,
the courts and the judicial system are irrelevant to
their particular practice. These are difficult issues
with which we are wrestling,” he said.
In closing,VandeWalle said,“I am happy to be
able to say that your judicial system is in good
shape.We are able to handle cases efficiently.We
are fortunate to live in a state which has the financial resources to adequately fund the judicial system.And, we have made some strides in resolving
some of our problem areas. Nevertheless, there is
still much to be done and access to justice remains
a burning issue. I am pleased to hear that the
Board of Governors has established within the
State Bar Foundation a fund to which lawyers who
for various reasons are unable to perform pro bono
activities may contribute to support this important
program of the Association.”
17
MEMBER PROFILES
Know Your SBAND Board Members
This is a series of profiles about
North Dakota lawyers who serve on the
SBAND Board of Governors.
NANCY MORRIS
East Central Judicial District
Hometown, college attended, law school
attended:
I grew up In Fargo. I moved to Grand Forks
and attended the University of North Dakota.
I received my BBA in Banking and Finance
in 1988. I then attended UND Law School,
obtaining my J.D. in 1991.
Any professional work prior to law
school:
I worked at Metropolitan Federal Bank as a
teller for several years while attending
school. I think being robbed at gunpoint
counts as professional experience! Does
being a cocktail waitress count? If not, it
should!
What led you to a career in law:
To be perfectly honest, I decided I wanted to
go to law school when I was in the sixth
grade. I think my naive desire for everyone to
get along prompted this interest, and then as
time progressed I saw the value and importance of our legal system as the best means
available of resolving disputes.
Year admitted to bar:
I was admitted to practice in both North
Dakota and Minnesota in 1991.
Nature of your practice:
I have been a judicial law clerk to Federal
Magistrate Judge Karen Klein for the past 10
years. This position has given me the opportunity to practice in a very diverse and challenging array of areas, including criminal
18
pretrial matters, civil pretrial and trial, and
engage in extensive writing projects. Prior to
this position, I practiced with the Conmy
Law Firm for seven years. While there I
maintained a general practice, with special
emphasis in employment law. A two-year
clerkship with Judge Rodney Webb rounds
out my professional legal experience.
BARBARA WHELAN
Length of time on SBAND Board:
I have been a member of the Board of
Governors since June 2008.
Any professional work prior to law
school:
I was a nanny! I worked for a family in
McLean Virginia (a suburb of Washington,
D.C.).
Other involvement with SBAND prior to
being on Board:
I was a member of the CLE Commission, and
am currently the Chairperson of the Gavel
Editorial Board.
Particular areas of interest regarding
SBAND or legal profession in North
Dakota:
I have a particular interest in community
outreach. Educating the public about the
role of the legal system in our communities
and the significant contributions made by
lawyers on a day to day basis is paramount
to ensuring a favorable reputation as a profession.
Northeast Judicial District
attended:
Raised in Harvey, ND; Concordia College,
B.A. in Hospital Administration 1986;
University of Baltimore School of Law, J.D.
in 1990
I was deciding between a masters degree in
Hospital Administration or a Law degree.
My mathematics score on the GMAT was
HORRID, but I did OK on the LSAT. Why kill
myself with the all the math-related classes
in business school? I went to law school
wanting to do medical malpractice defense
work – but, I’ve never practiced law in that
area!
Year admitted to bar:
1990 in Maryland (inactive), 1993 in
Minnesota (inactive), 1993 in North Dakota
Favorite quote:
“Life is what you make it. Always has been,
always will be.” Eleanor Roosevelt (and more
recently popularized by Hannah Montana’s“Life’s What You Make It”)
Nature of your Practice:
Walsh County State’s Attorney
Last book read (good or bad):
The Book Thief by Markus Zusak (loved it!)
being on Board:
I was honored to receive the Community
June 2010
The Gavel
August 2010
Service Award from the SBAND in 2003 for
public education on the issues of methamphetamine in our state. I was a presenter at
the SBAND convention that year.
Dakota:
The thing I enjoy the most about practicing
law in North Dakota is the fellowship shared
within the legal community. SBAND is a
good mechanism to bring all of the different
practice areas together. I am interested in
helping to foster the camaraderie between
lawyers practicing in all types of fields –
from government service (like me) to solo
practitioners to large firms.
Favorite quote:
“What does God require of you? To act justly
and to love mercy and to walk humbly with
your God.” Micah 6:8
Winston Churchill – A Life, by Martin
Gilbert
Year admitted to bar: 2003
Nature of your Practice:
I practice at Smith Strege in Wahpeton, it’s
general, mostly criminal defense, but also
family, debtor/creditor, and whatever my
bosses want me to do.
JASON
BUTTS
Since June.
Southeast
Judicial
District
attended: Jamestown; Jamestown College ’94,
UND Law ’03
Any professional work prior to law school:
Teacher at Agua Fria High School,Avondale,
Arizona, ’94-’99
My uncle, John Greenwood was a lawyer, now a
judge, my grandpa and great-grandpa on the
other side of the family were lawyers. I was
always interested in it, but was never my lifelong
dream. Didn’t realize I wanted to be a lawyer
until I figured out teaching wasn’t for me.
being on Board:
I did a few pro bono and reduced fee cases.
Dakota:
Increased member involvement and continuing the excellent work done by SBAND currently.
Favorite quote:
“If you aren’t fired with enthusiasm, you will
be fired with enthusiasm.” Vince Lombardi
Columbine by Dave Cullen
ALTERNATE DISPUTE RESOLUTION SERVICES
QUALIFIED
NEUTRAL MEDIATORS
JACK G. MARCIL
MAUREEN HOLMAN
ROGER J. MINCH
[email protected]
[email protected]
[email protected]
701-232-8957
1-800-726-1963
www.serklandlaw.com
Mediation is an effective and cost efficient
method to resolve disputes. We specialize in
mediation in the following areas:
Personal Injury
Wrongful Death
Professional Malpractice
Construction
Family Law
Products Liability
Estates
Discrimination
Commercial
Contract
Bankruptcy
Banking
Alternate dispute resolution can also include
Arbitration, Early Neutral Evaluation,
Mediation/Med. Abitration.
FAX: 701-237-4049 • 10 Roberts Street, PO Box 6017, Fargo, ND 58108-6017
The Gavel
August 2010
19
LAWYER ETHICS & TECHNOLOGY
Electronically Stored Information:
The Overview
By Daniel J. Crothers, Justice, North Dakota Supreme Court All rights reserved
Understanding the location, availability, accessibility and potential use of electronically stored
information (“ESI”) is important to every lawyer
because of ethical obligations and because of
burgeoning discovery issues.
Electronically assisted human communications have been around since Mr. Morse’s
telegraphic code and Mr. Marconi’s radio came
on the scene in the 1800s. During the following
100 years, the telephone replaced the telegraph
and the television displaced radio as the preeminent media. Then, starting in about 1980, 30
years of unabated technological developments
leapfrogged existing electronically enhanced
human communications to a point where some
now complain “virtual” relationships are displacing personal interaction at a dangerous
rate.1 Our lives in the “cyber” or “virtual” world
not only has changed the way we communicate
with each other, but also has created a mountain
of information we refer to as ESI.
Citation to authority is not needed for
confirmation that information is being stored
electronically now more than it was five years
ago, or ten years ago or twenty years ago.
Looking around a law office or a home reveals
the presence of computers, cellular telephones,
telephone answering machines, Blackberries and
digital cameras, to name just a few technologies.
Each of those devices stores information. That
information is – quite literally – electronically
stored information. If the current device
replaced a prior device, each of us knows the
current model stores more information, and
likely much more information, than the prior
device stored.
One organization has written in the context of
discovery,“The explosive growth and diversification of electronic methods for recording,
communicating, and managing information has
transformed the meaning of the term ‘document.’ While twenty years ago PCs were a novelty
and email was virtually nonexistent, today more
than ninety percent of all information is created
20
in an electronic format.”2 Another source reports
that the majority of electronically created information is never printed, meaning only the
electronic version exists.3 This observation
makes sense when one considers that the billions of daily voicemails, emails, text messages
and social media exchanges are never printed.4
The proliferation of ESI has ethical implications for lawyers. This column has touched on
those obligations in prior Gavel articles about
Email Confidentiality, Telephone Confidentiality,
Public Computers & Confidentiality, Employer’s
Computers, Inadvertent Disclosure and Cloud
Computing.5 The heart of a lawyer’s concern
involves competently handling a client’s matter
while preserving obligations for confidentiality.
Rule 1.1 provides,“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation.”6 Rule 1.6 provides,
“A lawyer shall not reveal information relating to
the representation of the client unless the client
consents.”7
The proliferation of ESI also has a direct
impact on civil discovery and on the presentation of evidence in civil and criminal trials.
Rules 16, 26, 33, 34, 37 and 45 of the Federal
Rules of Civil Procedure were amended effective
2006 to specifically recognize that “documents”
subject to discovery include ESI.8 The drafters
noted:
“As originally adopted, Rule 34 focused on discovery of ‘documents’ and ‘things.’ In 1970, Rule
34(a) was amended to include discovery of data
compilations, anticipating that the use of computerized information would increase. Since
then, the growth in electronically stored information and in the variety of systems for creating
and storing such information has been dramatic…. But it has become increasingly difficult to
say that all forms of electronically stored information, many dynamic in nature, fit within the
traditional concept of a ‘document.’” 9
Effective in 2008, Federal Rule of Evidence 502
was adopted to address the non-wavier of privileges.10 While not limited to ESI, the rule was
made necessary by the regular requirement that
ESI be produced in civil discovery or in a criminal proceeding before all of the documents
could be reviewed and checked for privileged
content.11
North Dakota followed the Federal Civil Rule
changes in 2008 with similar modifications to
Civil Rules 16, 26, 33, 34, 37 and 45.12 North
Dakota preceded the Federal change to the Rule
of Evidence on privilege with N.D.R.Ev. 510,
becoming effective March 1, 2008, and
Fed. R. Evid. 502, becoming effective September
19, 2008.13
I am planning several additional articles on
ESI which will address both ethical issues and
some of the challenges presented in discovery of
electronically stored information. To make these
articles more interesting and useful, I welcome
your comments, experiences, questions and suggestions for precise topics.
1
Scott Kolecki, Are virtual relationships taking precedence
over real life relationships?, Helium (2010),
http://www.helium.com/items/1346905-are-virtual-relationships-taking-precedence-over-real-life-relationships
2
The Sedona Principles: Addressing Electronic Document
Production, The Sedona Conference, 1 (2nd ed. 2007), available
at
http://www.thesedonaconference.org/content/miscFiles/TSC_PR
INCP_2nd_ed_607.pdf
3
Todd L. Nunn, Understanding the New E-Discovery Rules 29
(2006), available at
http://www.klgates.com/files/upload/DATG_Preservation_of_ES
I.pdf
4
For example, CBS News cited a Nielsen Mobile Survey that
United States cell phone users sent 2.5 billion messages per day
in June 2008.
http://wap.cbsnews.com/site?t=eLzNAA61yDTcF-PwFGW.w&sid=cbsnews I can add, based on personal experience from
my cell phone bills and by my teenagers’ monthly utilization,
that number has grown dramatically since 2008.
5
See www.sband.org/Gavel
6
N.D.R. Prof. Conduct 1.1.
7
N.D.R. Prof. Conduct 1.6(a).
8
Fed. R. Civ. P. 16, 26, 33, 34, 37, 45
9
Fed. R. Civ. P. 34(a) note 2006 amendment.
10
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/1
10-322.pdf
11
http://www.law.cornell.edu/rules/fre/ACRule502.htm
12
http://www.ndcourts.gov/court/notices/20070205/Contents.h
tm
13
Id. and n.10, above.
The Gavel
August 2010
LEGAL RESOURCES FAIR
Big Muddy Lawyers Deliver Food, Information
at Bismarck Community Meal Program
For the past two years, the lawyers of the
Big Muddy Bar Association have volunteered
to serve a meal at a Bismarck community
meal program called The Banquet. The meal
is served every Thursday evening at Trinity
Lutheran Church in downtown Bismarck by
volunteers from throughout the community.
Keeping in mind the recent emphasis on
greater pro bono involvement by state
lawyers, the organizers of this summer’s July
dinner added another component – a legal
resources fair.“We decided that this would be
a good opportunity to provide information
on low-cost and no-cost resources to people
who need assistance with legal issues,” said
Judge Gail Hagerty, one of the organizers.
The Gavel
August 2010
Participants in the Legal Resources Fair
on July 22 included:
• The District Court Administrator with
information about summary divorce
proceedings available to parties who may not
have attorneys and small claims court
• The Labor Commissioner’s Office with
information about services, including wage
claims, housing issues and human rights
• Legal Services of North Dakota
• The Regional Child Support Enforcement
Agency
• The Insurance Commissioner’s Office
• The Attorney General’s Consumer
Fraud Unit
• The Indigent Defense Commission
• The State Bar Association with information
about the Volunteer Lawyer Program and the
Lawyer Referral Program
Hagerty said there was good participation
among the area lawyers and the agencies,
with more than 30 volunteers involved.
Serving this meal is one of the community
service projects of the Big Muddy Bar
Association, which meets on the fourth
Thursday of every month.
21
YOUNG LAWYER SHOWCASE
TIFFANY JOHNSON
Tiffany L. Johnson is an associate with Pearce & Durick in Bismarck. She practices in the
areas of Education Law, Employment Law and General Litigation.
Tiffany is originally from Williston, and earned her law degree from the UND School of Law
in 2005. She is licensed to practice in North Dakota and admitted to practice in the U.S.
District Court for the District of North Dakota, the Eight Circuit Court of Appeals, the
Standing Rock Tribal Court, the Fort Berthold Tribal Court, and the Turtle Mountain Tribal
Court. Since graduating from law school she has been named one of the top 40 “young guns”
under 40 by North Dakota Business Watch and recognized by Benchmark Litigation as a
future litigation star.
Currently she serves as the vice president of the Big Muddy Bar Association, the secretary of
the North Dakota Defense Lawyers Association and the vice president of the North Dakota
Council of School Attorneys. She also serves on the Editorial Board for The Gavel.
Tiffany is very active in her community and volunteers for several civic organizations
including Rebuilding Together, Carrie’s Kids, and the Downtowner’s Association. She is a
proud North Dakota resident, dedicated to making the state and her community more
appealing to younger people looking to advance their career goals in this hardworking and
driven region. In her spare time she enjoys spending time with her husband, Justin Vinje, also
an attorney practicing in Bismarck.
SAMANTHA M. MILLER
Samantha M. Miller is the law
clerk for the Northeast Judicial
District of North Dakota. Samantha
is originally from Fargo, N.D., and
earned her Bachelor of Science
degree in mass communications –
print journalism, magna cum
laude, from Minnesota State
University Moorhead in 2004. She
earned her Juris Doctor, with distinction, in 2008 from the UND
School of Law. While in law school,
she served on UND’s Student
Government as the law school student senator and later as a justice
in the judicial branch. Samantha is licensed to practice in North Dakota.
Currently, she serves as the Secretary-Treasurer of SBAND’s Young
Lawyers Section. She is also a member of the Paralegal Program
Advisory Committee at the Minnesota School of Business Moorhead. She
is a member of the Walsh County Bar Association and the American Bar
Association.
22
The Gavel
August 2010
AUBREY FIEBELKORN-ZUGER
Aubrey Fiebelkorn-Zuger is a law clerk to Judge Myron H. Bright with the United States
Court of Appeals for the Eighth Circuit.
Aubrey is a native of Watertown, South Dakota. In 2004, she received her Bachelor of Science
degree in English-Teaching and Social and Behavioral Sciences-Teaching from the University
of Mary in Bismarck, N.D. She graduated with distinction from the University of North
Dakota School of Law in 2008 where she was a member of the Board of Editors for the North
Dakota Law Review, won UND’s moot court competition, won the American College of Trial
Lawyers regional trial competition, and competed in the National Trial Competition. Aubrey
was also elected to the Order of the Coif and the Order of Barristers. After graduation, Aubrey
clerked for Justice Mary Muehlen Maring at the North Dakota Supreme Court.
Aubrey is licensed to practice in North Dakota and is also admitted to practice before the
United States Court of Appeals for the Eighth Circuit. She serves as the social director of the
Fargo Young Lawyers Section and coached the University of North Dakota School of Law Trial
Team this year.
Aubrey resides in Fargo. She enjoys traveling and spending time with family and friends. She
is married to Peter Zuger, and they have one son, Aidan.
PETER ZUGER
Peter was born in Bismarck, North Dakota, on June 17, 1980. He attended the University of
Mary in Bismarck, where he graduated in 2003. He went on to receive his J.D. degree from the
University of North Dakota School of Law in 2008. While in law school, Peter was a member of
the Board of Editors for the North Dakota Law Review, won UND’s Moot Court and Mock Trial
competitions, and was a semi-finalist in a regional trial competition hosted by the American
College of Trial Lawyers.
After law school, Peter served as the law clerk for the South Central Judicial District in
Bismarck, North Dakota. Peter joined the Serkland Law Firm in 2009. His practice areas
include commercial litigation, trial work, and banking law.
Peter helped coach the University of North Dakota School of Law Trial Team this year.
He enjoys spending time with family, golfing, and exercising. Peter is married to Aubrey
Fiebelkorn-Zuger, and they have one son, Aidan.
The Young Lawyers Section will be hosting monthly get-togethers the second Tuesday
of each month at 5:30 p.m. Locations will vary, and will be announced via email from
the Young Lawyers Leadership team the first week of the month. For more information
contact Doug Murch at [email protected].
To recommend a young lawyer for a future showcase, contact Erica Shively at
[email protected].
The Gavel
August 2010
23
ABA REPORT
“Mr. Hill Goes to San Francisco”
Assuming a Position
on the ABA Board of Governors
By James Hill
Nothing much prepares you for assuming a
position on the ABA Board of Governors. It’s
no small operation and the breadth of the
organization is enormous. It is not just the
size of the membership that is daunting but
the incredible diversity of the membership
and their professional interests.
There is no training camp for nominees to
the board. Once appointed, you observe from
the nominee table (the “kid’s table”) for two
(2) board meetings and then you are on the
firing line. That is just about enough time to
put together genuine doubt into what you
have committed to do and to inject some
healthy fear as to whether you are ready to
tackle the momentous issues facing the
largest volunteer professional association in
the world.
Since future columns will deal with the
work of the board as well as the work of the
house of delegates, some background about
the board is appropriate. The board is comprised of extensive diversity within the profession. It is comprised of thirty-eight (38)
members. In addition to the six (6) elected
officers, there are governors from eighteen
(18) districts, six (6) section members at
large, one (1) judicial member at large, two
(2) young lawyer members at large, a nonvoting law student, two (2)
women members at large, and
two (2) minority members at
large. North Dakota is in
District 10 which includes the
states of North Dakota, South
Dakota, Nebraska and
Wyoming. That is the seat that
I hold on the Board of
Governors for the next three
(3) years.
The ND Delegation meets with
Justice Crothers on the floor.
24
By definition, the board develops methods
and plans for making the association and its
activities useful to the members in their professional work and administers the facilities
and staff of the association. It is charged with
formulation and administration of the association’s budget and with a policy respecting
authorized expenditures and procedures for
reimbursement to the membership.
A significant part of the work of the board is
done by its standing committees. Currently,
there are five (5) committees to which the
board delegates responsibilities to make recommendations to the board or to take independent action. The five (5) are the Executive
Committee, Operations and Communications
Committee, Program Evaluation and Planning
Committee, Financing Committee, and the
Executive Compensation Committee.
Each board member is assigned to at least
one (1) of the standing committees and I have
been assigned to the Operations and
Communications Committee. The mandate of
the Operations and Communications
Committee is extensive.
The primary areas of responsibility of the
Operations and Communications Committee
include:
James Hill
SBAND Delegate to the ABA
1. Consider all matters involving the
physical facilities of the association and effective administration of the staff under board
approved personnel policies,
2. Retain counsel for the association of
board approved guidelines and approves payment of outside counsel fees,
3. Monitor all meeting policies of the association, including recommendations for the
sites, dates, and program and format of midyear and annual meetings of the association,
4. Propose nominations to the board for all
positions to which the board elects members,
5. Review proposed amendments to sections, divisions, and form committee bylaws
for compliance with rules created by the
board,
6. Oversee all matters pertaining to membership,
7. Make recommendations on the ABA
Metal Award and its recipient,
8. Evaluate the communication needs of the
association and develops recommendations to
the board for appropriate communications to address those needs,
9. Approve sponsorship of meetings
and projects by the association or
any of its sections,
10. Consider appeals of ABA entities denied approval by the Executive
Director to accept or solicit gifts,
contributions, or corporate support,
11. Recommend the merit adjustment package for employees,
12. Retain oversight of various
insurance programs of the associations, and
13. Evaluate the technology needs
of the association.
The Gavel
August 2010
BAR FOUNDATION CONTRIBUTORS
North Dakota
Bar Foundation Contributors
April through June, 2010
Patron
Hon. Laurie A. Fontaine
Hon. Carol Kapsner
Hon. Mary L. Maring
James P.Wang
Silver
Hon. H.F. Gierke, III
Christine A. Hogan
Sustaining
Diane F.Alm
Louis C.Annunziata
Mark A. Bloomquist
Sarah E. Cannon
Zachariah L. Eccleston
MEMORIALS
David A. Engen
Hon. M. Richard Geiger
Katherine B. Itterman
Autumn H. Kahl
Brent A. Kary
Terry W. Knoepfle
Patricia A. Laney
Julie A. Peterson
Stacey C. Tronson
Sarah Young
Other Contributors
MDU Resources Group, Inc.
Charity Match Program
The North Dakota Bar Foundation has
received the following memorial
contributions:
In memory of MeDonna Fryer
(July 17, 2010)
State Bar Association of North Dakota
In memory of Hon. James M. Bekken
(May 3, 2010)
Southeast Judicial District Bar Association
Traynor Law Firm
In memory of Hon. Bert L. Wilson
(July 31, 2010)
Russell & Jane Gilbertson
William A. Neumann
Chief Justice Gerald VandeWalle
In memory of Frank F. Jestrab
(May 16, 2010)
Hon. H.F. Sparky Gierke
Chief Justice Gerald VandeWalle
Frederick Whisenand, Jr.
In memory of Hon. Bayard Lewis
(June 24, 2010)
Michael McCartney, McCartney Law Office
In memory of Bruce B. Bair
(August 8, 2010)
Hon. Carol Kapsner
William A. Neumann
YES! I support the Foundation of our profession, the North Dakota Bar Foundation…
Name ________________________________________________________________________________________________
Firm ________________________________________________________________________________________________
Address ______________________________________________________________________________________________
City ______________________________ State _________ Zip_______________ E-mail ______________________________
Please choose the level of giving that is right for you to help ensure access to justice for all North Dakotans:
I wish to become a member of the Bar Foundation as a:
___ Sustaining Member ($25/yr) ___ Donor ($50/yr) ___Patron ($100/yr) ___ Silver Patron ($250/yr) ___Gold Patron ($500/yr)
I am a member of the Bar Foundation. Enclosed is my annual membership fee for:
___ Sustaining Member ($25/yr) ___ Donor ($50/yr) ___Patron ($100/yr) ___ Silver Patron ($250/yr) ___Gold Patron ($500/yr)
Please return this card with your tax-deductible donation to the NDBF, PO Box 2136, Bismarck, ND 58502.
For NDBF USE ONLY: ❑ Contribution Records Method of payment: ❑ Cash ❑ Check #__________ ( ❑ Personal ❑ Firm)
Received by________________________________________________ Date ____________________________________
This is an abbreviated outline but at least
gives the reader a snap-shot of the extensive
work that just one (1) committee of the board
undertakes in between the board meetings.
In addition, each board member is assigned
a liaison position with some entity or entities
of the association. The practice of assigning
ABA entities, a board member to serve as a
liaison between the entity and the board
began in the early 1960’s. The liaison is
The Gavel
August 2010
responsible for serving as counselor, advisor,
and the negotiator to the entities about the
board and to the board about the entities.
I have been assigned as the Board of
Governor liaison to the Section of Labor and
Employment Law, the Death Penalty
Representation Project which was created in
1986 and finally the Interest On Lawyer Trust
Accounts (IOLTA) committee. These assignments alone demonstrate vividly the
diversity of the association and the work of
board members outside of the context of the
actual board meetings.
In addition to the liaison work and the
meetings of the board are generally four or
five regular meetings during the association
years with the April meeting generally serving
as the budget meeting.
Continued on page 26
25
ABA REPORT (Continued)
At the meeting of the Board of Governors in
San Francisco, the board was most singlyfocused on the budget of the association and
addressing substantial financial issues regarding pension plans of the ABA.
The FY 2011 general revenue budget will
include an approximately ten percent (10%)
reduction from fiscal year 2010. The budget
will be in the range of $96.2 million as
opposed to the FY 2010 budget of $106.8 million. At the same time, the board is involved
in significant work relating to the Standing
Committee on Membership to further address
the financial aspects of the membership.
Substantial discussion was had concerning
the ABA defined benefit plan and is participants. The board is facing the reality that
since 1997 severe economic impact has fallen
upon the program and participants appearing
to mandate substantial changes and adjustments in the defined
benefit program. The matter has been
deferred to the October 2010 meeting of the
board.
What is outlined above gives a taste of the
commitment undertaken by individuals who
assume positions on the Board of Governors
of the ABA. The ABA’s website gives a detailed
outline of the activities and actions of both
the board and the House of Deletes and you
are encouraged to consult that website.
The work of the board comes before the
House of Delegates’ debate. The House itself is
the policymaking body of the American Bar
Association whose responsibilities include
creating and passing the resolutions dealing
with evidence, training and standards of professional conduct of significance to North
Dakota, the House of Delegates in San
Francisco adopted a policy addressing the
issue of Federal Preemption and Civil Gideon,
or a right to counsel civil matters involving
basic human needs.
The House also adopted a resolution citing
the importance of differentiating between
“error” and “prosecutorial misconduct” in
criminal court proceedings. The recommendation clarified that the distinction was to be
made in criminal cases and that the
“American Bar Association urges trial of
Appellant Courts in criminal cases, when
reviewing the conduct of prosecutors to
differentiate between ‘error’ and ‘prosecutorial’ misconduct.”
The House also urged Congress and the federal agencies to be clearer in the preemption
decision-making process. The House listened
to extensive debate relative to what is being
referred to “Civil Gideon,” approving in model
statute for implementing a civil right to counsel.
Notable was the passing of the gavel to
President Steven M. Zack of Florida who
becomes the first Hispanic American to hold
a position of President of the American Bar
Association.
The intent of this article was to give this
membership some idea of what the position
of the Board of Governors will entail. With
this and future columns the precise work of
the board can be reviewed as it more specifically relates to the practitioner in North
Dakota.
As always, the recommendations are welcome to the unsigned either by telephone or
through e-mail at: [email protected]
Medical Malpractice Referrals
Lee R. Bissonette, Kathleen M. Loucks, and Carol R. M. Moss represent victims with catastrophic injuries caused
by medical negligence. Included in those cases are 26 cases involving brain-damaged children caused by birth
injuries, poor neonatal care, or failure to diagnose meningitis. All of these cases have resulted in recoveries in
excess of $1 million.They assist clients in obtaining recoveries ranked among the highest in Minnesota, including
the top reported medical malpractice recovery for 2004.
Practice Areas:
Personal Injury Plaintiff: Medical Malpractice
Personal Injury Plaintiff: General
Hellmuth & Johnson, PLLC
10400 Viking Drive, Eden Prairie, MN 55344
Phone 952-941-4005 Toll Free 800-947-2176
www.hjlawfirm.com
26
The Gavel
August 2010
DISCIPLINE
ORDER OF SUSPENSION
Gerald A. Kuhn
A Hearing Panel of the Disciplinary Board
found that Gerald A. Kuhn violated N.D.R. Prof.
Conduct 1.7(a), Conflict of Interest, and N.D.R.
Prof. Conduct 1.14, Client With Limited Capacity.
The Hearing Panel recommended Kuhn be suspended from the practice of law for ninety days
and be required to pay the costs of the disciplinary proceeding of $2,654.07.
The Supreme Court rejected the Hearing Panel’s
finding that Kuhn violated N.D.R. Prof. Conduct
1.7(a), Conflict of Interest, and adopted the
Panel’s finding that Kuhn clearly and convincingly violated N.D.R. Prof. Conduct 1.14. The Court
ordered that Kuhn be suspended from the practice of law for ninety days, effective August 1,
2010, and that he pay the costs of the disciplinary
proceeding in the amount of $2,654.07.
ORDER OF INTERIM SUSPENSION
James G.Wolff
Disciplinary Counsel filed an Application for
Order of Interim Suspension of James G.Wolff on
May 20, 2010 under N.D.R. Lawyer Discipl. 4.1,
Criminal Conduct. The Application stated that
Wolff had been convicted of a Class C Felony,
Issuing Check or Draft Without Sufficient Funds
or Credit. Under the rule, any felony is considered
a serious crime, and upon satisfactory evidence
demonstrating that a lawyer has been convicted
of a serious crime, the Court shall enter an order
immediately suspending the lawyer pending final
disposition of a disciplinary proceeding predicated on the conviction. On June 24, 2009,Wolff had
previously been suspended based on other criminal charges. Disciplinary Board v.Wolff, 2009 ND
111, 767 N.W.2d 170. The Supreme Court adopted
Disciplinary Counsel’s recommendation, and
continued the suspension of James G.Wolff until
further order of the Court, pending final disposition of the disciplinary proceedings predicated
upon the criminal complaints filed.
ORDER OF REPRIMAND
RECIPROCAL DISCIPLINE
Stanley M. Kenny
On June 29, 2010, the Disciplinary Board notified the Supreme Court under N.D.R. Lawyer
Discipl. 4.4(D) that it was recommending the
reciprocal discipline of Stanley M. Kenny, a person admitted to the bar in the State of North
Dakota.
The Record reflects that the Kansas Supreme
Court filed its order on October 9, 2009, issuing a
public censure to Kenny for engaging in misconduct in his representation of a client that had no
substantial purpose other than to burden another
lawyer and coerce a refund of an attorney fee;
that required him to report another lawyer’s perceived professional misconduct rather than
threaten to report it; that was prejudicial to the
administration of justice; and that adversely
reflected on Kenny’s fitness to practice law.
The Record further reflects on October 30,
2009, Disciplinary Counsel served Kenny notice
under N.D.R. Lawyer Discipl. 4.4(B) that a certified copy of an order of discipline entered by the
Supreme Court of Kansas was received. The
notice informed Kenny he had 30 days to file any
claim that imposition of the identical discipline
in ND would be unwarranted and the reasons for
the claim.
There is no signed certified mail receipt
acknowledging service of the notice, however, the
Record does not reflect that notice was returned
as undeliverable. The Record does not reflect that
Kenny served or filed a response to the notice.
The Court considered the matter and ordered
that a reprimand is issued against Stanley M.
Kenny.
A History of Helping People
Dan Dunn graduated from UND School of Law in 1991, with distinction.
He has been certified as a Civil Trial Specialist by NBTA and the Minnesota
State Bar Association and has a highly successful jury trial record. Chambers USA,
a publication which ranks attorneys in the United States, has this to say about Dan:
“Daniel Dunn is a ‘class act,’ according to his clients. ‘Modest, very
personable and totally prepared to work hard and try a case,’ it is
no surprise Dunn is popular among clients. He deals both in commercial
litigation and PI cases, and recently achieved favorable verdicts in
automobile products liability and trucking accident claims.”
Dan accepts referrals in these practice areas:
•Personal Injury •Wrongful Death •Business/Commercial Litigation
Dan also assists attorneys with focus groups (abbreviated mock trials to assist in
identifying trial issues/case value) and is available to serve as a mediator.
Call Dan to discuss referrals, focus groups and mediations at 701-241-4141.
The Gavel
August 2010
Dan Dunn
Serving the Fargo, ND Area
1220 Main Avenue, Suite 105
Fargo, ND 58103
701.241.4141
800.492.5297
Serving the Bismarck, ND Area
400 East Broadway, Suite 307
Bismarck, ND 58501
701.224.0430
[email protected]
27
NEWS &
CLASSIFIED ADVERTISING
Esquire Investments, LLC – Quick cash for estates/heirs that own
producing oil and gas interests. No interests too small. Simplify probate with pre-death sales. N.L. Andersohn, Attorney, Broomfield, CO.
303.650.6414; [email protected].
OFFICE SPACE FOR LEASE
Up to 4,762 square feet; newer, one-story building near intersection of
I-29 and 13th Avenue South, Fargo. Extensive network wiring in place;
high speed internet; geo-thermal heating; 23 parking spaces; handicap accessible; kitchen. Price based on terms of lease. Contact
Kathleen Weir at 701-200-6190 or
[email protected].
WANT TO PURCHASE minerals and other oil/gas interests. Send
details to: PO Box 13557, Denver, CO 80201.
LAW PRACTICE FOR SALE: Active busy practice in southwest North
Dakota. Same owner for over 30 years. Flexible terms. Contact: Ron
Weikum, PO Box 427, Elgin, ND 58533. Phone 701-584-2988. Email:
[email protected].
"With Malice Toward One," a true story of politics, prostitution and
a Pulitzer Prize in Nevada. The story that led to reforming Nevada's
antiquated Grand Jury Reporting. The sale price for each book, signed
by the author, Clyde Biglieri is $25.00, which includes sales tax, packaging and priority mail. Allow tow weeks for delivery. Send check or
money order to: IERI BOOKS, INC., PO Box 911, Reno, NV 89504.
Notes
MYSTERY
LAWYER
?
Each issue will feature one lawyer identified only by his or her
unique activities not related to the law. E-mail your answer to
[email protected] by Wednesday, September 8; the winner will
be chosen through a drawing of all correct responses, receiving
not only fame and glory, but also a $15 coupon good for an
upcoming SBAND CLE. (Members of the lawyer’s firm or
organization are disqualified).
This business attorney grew up playing football and basketball for the Bismarck Demons. Although he continues to
risk life and limb by playing league basketball each winter,
he now spends much of his free time at pools across the
state, watching his two children swim competitively. He
attended law school at the University of Minnesota, but
cheers for the Fighting Sioux in hockey. After practicing law
in Minneapolis for six years after law school, he returned to
Bismarck in 2000, where he was greeted with five tornados
on his first day on the job.
E-mail your answer to [email protected].
May Mystery Lawyer – Tom Murtha
May Mystery Lawyer Winner – Camille O’Kara Hann
Jackrabbit Bar Holds Summer Meeting in Fargo
Fargo was the destination for
bar leaders of eight western
states when the Jackrabbit Bar
Conference gathered for its
annual meeting in Fargo June 35. In addition to SBAND Past
President Jane Dynes, Fargo, who
served as chancellor of the
group, and others from North
Dakota, more than 20 others
attended, from the states of
Idaho, Montana, Nevada, South
Dakota, and Wyoming. Guests
from New York and
Jane Dynes served as chancellor for the
Minnesota also attended.“We
Jackrabbit Bar Annual Meeting.
were honored to also have
Judge Kermit Bye of the
Eighth Circuit Court and Chief Justice Gerald VandeWalle join us,” said
Dynes.
As chancellor of the group Dynes’ responsibility was to help select substantive and educational seminars as well as to host the social events for
which the Jackrabbit Bar has come to be known.
A subset of the Western States Bar Conference, the Jackrabbit Bar gets
28
its name because its members are western states with large geographical
distances between often smaller population centers.“We all still have
jackrabbits in our states,” Dynes said.
Among the conference topics were disaster preparedness with presentations by Fargo City Administrator Pat Zavoral SBAND Executive
Director Bill Neumann and Sarah Theophilus, President of the South
Dakota Young Lawyers, a technology update from Joe Aas of Software
Solutions, a review of energy policy/environmental law by UND Law
Professor Josh Fershee, and an introduction to the new South Dakota
Mentorship program by South Dakota State Bar President Bob Morris
and Sara Theophilus. In addition, Steve Stark provided an illustrated history of North Dakota and Clay Jenkinson portrayed Thomas Jefferson to
the delight of the attendees.
The Jackrabbit conference is typically held in a resort setting. In previous years North Dakota hosted the conference in Medora and Mandan.
“This was a little different for us to hold it in eastern North Dakota,” said
Dynes.“We worked at managing the expectations prior to the meeting,
making sure everyone knew this was a place with no mountains,” said
Dynes.With downtown Fargo being the “resort,” she said those attending
enjoyed getting acquainted with the city and learning more about the
area.” In addition to golfing at area courses, some drove to Jamestown to
visit the buffalo at the town’s Frontier Village.
Next year’s conference is scheduled for Sun Valley, Idaho.
The Gavel
August 2010
IT’S YOUR MEMBERSHIP ASSISTANCE PROGRAM –
WHAT YOU NEED TO KNOW ABOUT IT
SBAND MAP FACT
Since January 2008, SBAND has offered a Member Assistance Program for its members and their
families. More information on the program is available at the SBAND website, www.sband.org.
COST TO MEMBERS: The MAP Program provides up to 8 counseling sessions without cost to SBAND members
and their families. If thre is a referral to another community agency, the service may be covered by health insurance
or other resources. The counselor will work with members to determine the best option and minimize cost.
The SBAND Member Assistance Program offers confidential, professional counseling services in locations across the state
of North Dakota for a variety of concerns, including marital and parenting concerns, emotional crises, financial and family
difficulties, substance abuse evaluations and work-related problems. Members and their families are entitled to receive
up to eight counseling sessions per identified problem area at no charge for each calendar year.
Calls for appointments are taken Monday through Friday, 8:00 am to 4:30 pm, at 701-530-7195 or 800-327-7195,
the St. Alexius Employee Assistance Program. Calls for an emergency or crisis situation are taken
24 hours a day, seven days a week, at these numbers.
The Gavel
August 2010
29
Published by The State Bar Association of North Dakota
P.O. Box 2136
Bismarck, ND 58502
CHANGE SERVICE REQUESTED
PRESORTED STD
US POSTAGE
PAID
BISMARCK, ND
PERMIT NO. 188

August 2010 Gavel - State Bar Association of North Dakota

Transcription

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