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Nesvig v. Nesvig2/25/2004
on Nesvig's claim that this case is about the narrow and limited issue of holding the funds under his interpretation of N.D.R. Prof. Conduct 1.15. That rule deals with safekeeping money in an interest bearing trust account in subdivisions (a) through (c) and authorizes and outlines a lawyer's responsibilities for interest bearing trust accounts either for the benefit of clients, or for benefit of the North Dakota Bar Foundation in subdivisions (d) through (f). The official comment to N.D.R. Prof. Conduct 1.15 provides, in part:
The determination of whether funds of a client or third person could be invested to provide a positive net return to the client, rests in the sound judgment of each lawyer or law firm. No charge of ethical impropriety or other breach of professional conduct shall attend a lawyer's exercise of sound judgment if the lawyer acts in good faith.
[ ] The North Dakota Rules of Professional Conduct were adopted by this Court effective January 1, 1988, as the result of a study of the A.B.A. Model Rules of Professional Conduct by a Professional Conduct Subcommittee of this Court's Attorney Standards Committee. See Minutes of Professional Conduct Subcommittee of Attorney Standards Comm. 2 (Sept. 16, 1983). The A.B.A. Model Rules of Professional Conduct do not include provisions corresponding to N.D.R. Prof. Conduct (d) through (g), or the quoted language from the official comment. As originally submitted to this Court by the Attorney Standards Committee, proposed N.D.R. Prof. Conduct 1.15 did not include the current subdivisions (d) through (g) and the quoted language from the official comment. See North Dakota Rules of Professional Conduct, Supreme Court Docket Number 11437 (filed on September 12, 1986). Subdivisions (d) through (g) and the quoted language in the official comment were proposed after the 1986 North Dakota State Bar Association meeting and a September 6, 1986 meeting of the State Bar Association Board of Governors "to establish a mandatory IOLTA program in North Dakota." See September 22, 1986 letter from John E. Widdel, Jr., President of State Bar Association of North Dakota to Chief Justice Ralph J. Erickstad in Supreme Court Docket Number 11437. Rule 1.15 N.D.R. Prof. Conduct was adopted effective January 1, 1988 with the language in subdivisions (d) through (g) and the good faith language in the official comment. Under N.D.R. Prof. Conduct 1.15(d)(1) and (2), a lawyer must deposit a client's funds in an interest bearing trust account so the interest will benefit either the North Dakota Bar Foundation, or the client, and the lawyer's decision to place funds in either type of account is governed by factors in N.D.R. Prof. Conduct 1.15(d)(3). The history and language of N.D.R. Prof. Conduct 1.15 support a conclusion that the reference to good faith in the comment establishes a standard for a lawyer's decision to deposit money in either a client account or an IOLTA account, see N.D.R. Prof. Conduct 1.15(d), and does not establish a good faith defense for returning a client's money or advising the client.
[ ] Our rules of professional conduct are designed to provide guidance to lawyers and a structure for regulating conduct through disciplinary agencies, and they are not intended to be a basis for civil liability. See Preamble, Scope, and Terms to N.D.R. Prof. Conduct. In Disciplinary Board v. McKechnie, 2003 ND 22, 16, 656 N.W.2d 661, we said disciplinary proceedings differ significantly from malpractice actions, and although the rules of professional conduct set a minimal level of conduct for disciplinary actions, malpractice liability is premised upon the conduct of a reasonable lawyer under the circumstances. See also Olson, 421 N.W.2d at 828; Martinson
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